FRIGGER -v- FRIGGER [2023] WASCA 103 (17 July 2023)

I'm not inclined to require submissions because I don't think the matter calls for it. And at that time, I can have a look at the material and just see what I think is the best way forward. Are you comfortable with that, Mrs Frigger?

FRIGGER, MS: Yes, master.

1. The orders made on 28 October 2021 were that the plaintiffs file and serve any further affidavits by 5 November 2021 and that the matter be adjourned to 11 November 2021. The proposed hearing on 11 November did not proceed and the matter was relisted for 16 November 2021. On 16 November 2021 orders were made that the defendants file any further affidavits by 30 November 2021 and that the plaintiffs file any responsive affidavits by 7 December 2021.
2. Further affidavits were filed by the parties. In addition to the affidavit already referred to, the appellant filed affidavits sworn by herself on 11 November 2021 and 10 December 2021. Jessica filed affidavits sworn on 22 October 2021[10] and 7 December 2021. The second respondent filed affidavits sworn on 6 October 2021 and 26 November 2021. The third respondent filed affidavits sworn on 21 October 2021 and 27 November 2021. In later affidavits the parties took the opportunity to respond to matters raised in earlier affidavits. No further documents were filed after 10 December 2021.
3. Although no order requiring the filing of written submissions was made, the appellant did file such submissions. Written submissions were filed by the appellant on 8 December 2021. A further amended version of the written submissions was filed by the appellant on 10 December 2021. In those submissions the appellant set out her claims and the nature of the orders that she was seeking. In particular, in the 10 December 2021 submissions, the appellant set out:
   1. the reasons why the appellant said the respondents' position was indefensible;
   2. the conduct of the respondents prior to the death of Mrs Reid that the appellant claimed had contributed to the 'losses of the deceased estate';
   3. the ways in which the appellant claimed that the respondents had breached their duties as executors; and
   4. the basis for the appellant's claims for compensation.

1. It is apparent from the affidavits that there is considerable longstanding hostility between the appellant and her siblings. The affidavits canvassed a range of disputes between the parties, not all of which were pertinent to the claims made in the Originating Summons.
2. Insofar as is relevant, the appellant stated that shortly after her mother's death, on 4 February 2021, the second respondent sent her an email. In that email the second respondent said that, due to COVID‑19 restrictions, the body of the deceased would be cremated at an unattended cremation, that a memorial service would be held at a later date and that all members of the family would be invited to that service.[11]
3. The appellant also stated that she and Jessica had not received the jewellery referred to on the list attached to her mother's will. On 21 April 2021 she received an email from the second respondent regarding the assets of the estate. In that email the second respondent stated that at the time Mrs Reid's house was cleared prior to sale a number of rings had been found in a dressing table in a small black pouch. These rings, together with two rings that Mrs Reid was wearing at the time of her death, were in the second respondent's possession. The second respondent stated that two of those rings had been allocated to the appellant, one had been allocated to Jessica and the others would be distributed to other family members. The second respondent asked that Jessica be sent to collect the rings and some other personal items.[12]
4. In her affidavits, the second respondent stated that in mid-2016 Mrs Reid moved out of her home to live with the third respondent. The house then remained unoccupied for more than 12 months. During the period that the house was unoccupied the appellant had access to the house and removed 'a considerable amount of items without our consent or permission'. When the house was finally cleared prior to sale, a small bag containing some items of jewellery was found in a dressing table drawer. Those items were a jade and gold ring, a pearl and gold ring, a ruby and diamond flower ring, a blue sapphire and gold ring and a gold wedding band.[13]
5. The second respondent stated that on 21 April 2021 she sent an email to the appellant inviting her to send Jessica to the second respondent's home to collect the jade and gold ring for Jessica and the ruby and diamond flower ring for the appellant. As to the other items on the list, the second respondent said that these were never given to her and were either lost, stolen or previously disposed of by her mother.[14]
6. As to the funeral arrangements, the second respondent stated that at the time of her mother's death COVID‑19 restrictions necessitated a non-attendance cremation, which took place on 11 February 2021. She accepted that in an email to the appellant on 4 February 2021 she said that a memorial service would be held at a later date when all family members could attend. She said in the email that there would be a dinner held at a central location and that anyone who wanted to would be able to deliver a eulogy. She said in the email that she would then organise for the interment of Mrs Reid's ashes with her deceased husband at Pinneroo. Again, everyone would be invited to attend that service.
7. The second respondent stated that arrangements were later made for a memorial mass to be held at St Luke's Catholic Church, Woodvale on 16 April 2021. Mrs Reid's son David, who normally resides in Queensland, was to be in attendance and played a role in organising the service. David made it clear in an email that he would not attend the memorial service if the appellant was present. In the event, David was unable to attend due to travel restrictions. However, the appellant and Jessica were not invited to the service. The second respondent stated that this was because other family members would not attend if the appellant was present and that the appellant's family 'were excluded due to estrangement, caused by her hostility and behaviour to family members and her unpredictable behaviour and any disruption she may cause to proceedings'.[15]
8. In his affidavits, the third respondent stated that when he and his partner packed up his mother's belongings prior to the sale of her house a small bag containing the jade and gold ring, the pearl and gold ring, the ruby and diamond flower ring, the blue sapphire and gold ring and the gold wedding band, was found. These items of jewellery were given to the second respondent for safe keeping.[16]
9. The third respondent stated that after his mother died a memorial service was to be held on a date to be agreed between himself, the second respondent, their brother David and their families. The service was held in April 2021. The appellant was not invited 'because of our continued estrangement from her'.[17]

1. No further hearing in respect of the matter was held after 16 November 2021. On 16 March 2022, in the absence of the parties, the master delivered oral reasons for dismissing the appellant's claim. The reasons were brief.
2. The reasons commenced by noting that there were two parts to the appellant's claim: 'First, the first plaintiff says that she hasn't been distributed assets from her mother's estate. Second, she says that she was not made aware of arrangements for her mother's funeral'.[18]
3. As to the claim regarding exclusion from the memorial service, the master said:[19]

It is convenient to deal first with that point as to the funeral. The obligation of an executor is to arrange for the proper disposal of the body of the deceased. There is no property in a corpse. The executor does not own the body in any sense. That term is generally used with respect to property. It is a duty to arrange for proper disposal of the corpse. That being so there is certainly no obligation, either at common law, or under some provision of the probate practice, to require an executor to notify anyone as to the funeral arrangements for a deceased person.

Whatever may be the moral obligation, there is nothing legally to require information to be provided to a beneficiary, a next of kin or anyone else, save perhaps for the obligations to notify the Registry of Births, Deaths and Marriages. That part of the plaintiff's application will be dismissed.

1. As to the claim regarding the jewellery, the master said:[20]

In answer to the plaintiff's application, the first defendant filed an affidavit sworn 6 October 2021. She sets out in that affidavit the assets of the deceased, particularly the jewellery assets of the deceased, where those assets were kept and the access that the plaintiff had to those assets from time to time. In summary, she says that the jewellery was kept in the deceased's former home and the plaintiff was given access to that home so that she could collect the jewellery to which she was entitled as and when necessary.

In my view, the defendants have done all that is required of them to properly administer the estate and there is no warrant for ordering the delivery of items of the deceased estate that quite possibly are no longer in her possession. Accordingly, the second aspect of the plaintiff's claim will be dismissed. The appropriate orders are the application be dismissed, no order as to costs.

1. The grounds of appeal are as follows:[21]
   1. The master erred in law by failing to provide the appellant with procedural fairness that was material, as the failure operated to deprive the appellant of the possibility of a successful outcome.
   2. The master erred in mixed law and fact by finding that the appellant had a claim in relation to the corpse of the late Evelyn Reid and dismissed it in circumstances where no such claim was brought.
   3. The master erred in fact by finding that Ms Forsyth-Reid had stated on oath the jewellery bequeathed to the appellant was kept in the deceased's former home and the appellant was given access to the home to collect the bequeathed jewellery as and when necessary, in circumstances where no such statement is in evidence in the proceedings.

1. Before turning to the grounds, it is relevant to make some observations about the nature of the proceedings before the master.
2. Proceedings by Originating Summons are brought pursuant to O 58 of the Rules of the Supreme Court 1971 (WA). The types of cases that can be the subject of such proceedings are those where the parties seek a determination of an issue arising in the administration of a deceased estate or trust, where the parties seek a determination of the construction of a written instrument or where the parties seek determination of the construction or validity of legislation. In the first category the parties can seek a determination of the rights or interests of any person claiming to be a legatee or any question arising in the administration of the estate. Orders may be made directing the executors to do, or abstain from doing, any act in their capacity as executors. Claims for damages or compensation cannot be brought by this procedure.
3. The nature of proceedings by originating summons is that they are conducted in chambers and are intended to be available for the determination of discrete issues where there is no dispute as to the facts. They are a less formal and more efficient process than proceedings by writ. There is no requirement for pleadings and the usual course is to determine the matter on the basis of affidavits: O 58 r 21. If an originating summons is not disposed of on the first hearing, the rules provide that the court shall give such directions as to the further conduct of the proceedings 'as it thinks best adapted to securing the just, expeditious, and economical disposal thereof': O 58 r 27(1).

1. The appellant submits that she was denied procedural fairness in that the master:[22]
   1. failed to inquire and understand her claims;
   2. failed to read the parties' evidence;
   3. refused to receive written submissions; and
   4. refused to hear oral submissions.
2. The principles relating to procedural fairness are well settled and were recently outlined in Defendi v Szigligeti as follows.[23]
3. There is no doubt that a court is obliged to accord procedural fairness to a litigant.[24] However, the second, and usually critical, step in any case in which the issue is raised is to determine the content of the requirements of procedural fairness.[25]
4. The content of procedural fairness is not fixed. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. This requires analysis of the procedures of the court, and the legislation and rules which govern them.[26]
5. Whether there is any requirement for oral submissions will depend on the particular case. There is no immutable right to make oral submissions. What is required is that a party is given a reasonable opportunity to present their case by evidence, information, and submissions.[27]
6. In the present case the content of procedural fairness needs to be understood having regard to the nature of the proceedings. Proceedings by originating summons should generally be amenable to being determined efficiently. Provided that a reasonable opportunity to present their case is given to the parties, the issues dealt with by originating summons will sometimes not be such as to require oral submissions.
7. The first and second complaints made by the appellant are merely assertions. There is nothing in the master's reasons, brief though they are, that supports a conclusion that he failed to understand the claims or read the affidavits. To the contrary, as can be seen from [31] and [32] above, the master addressed each of the claims made by the appellant.
8. As to the third complaint, the master did not refuse to receive written submissions, he simply did not require that they be filed. In any event, the appellant did file written submissions. There is no basis for supposing that the master did not consider those submissions.
9. As to the fourth complaint, the master did not refuse to hear oral submissions, he simply determined the matter without a further hearing after all of the affidavits had been filed. In the circumstances of the case, applying the principles in [38] - [42] above, there was no breach of procedural fairness in so proceeding.
10. At the hearing of the appeal the appellant was invited to state what submissions she would have made over and above those contained in her written submissions. She said that she would have made submissions regarding the case law that she has referred to in submissions on this appeal. Plainly, she could have referred to those cases in her written submissions had she wished to do so. In any event, for reasons that we will deal with later, none of the cases relied on support the appellant's contentions. In these circumstances, it cannot be said that the appellant was deprived of a reasonable opportunity to advance matters relevant to the merits of her case.

1. This ground is based upon a misunderstanding.
2. The master did not misapprehend that the appellant was making some claim to 'the corpse' of her deceased mother. Nor did he purport to dismiss any such claim. What his Honour did was set out in brief terms, and by way of context for consideration of the appellant's complaint that she was not notified of the memorial service, the nature of an executor's duty to dispose of the body of the deceased and, in doing so, noted that this duty did not arise from any property rights.
3. There is no doubt that executors have a common law right to claim the testator's body for the purpose of disposal including the manner and place of that disposal. Executors can enforce delivery of the testator's body for the purpose of disposal, if a request to do so is denied. As the master noted, the right of the executors to claim the body and arrange for its disposal does not arise from any property right.[28]
4. It was in that context that the master then went on to deal with the contention that the respondents had a legal duty to invite the appellant and her family to the memorial service. His Honour dealt with this claim by saying that, whatever the moral duty in this regard might be, there was no legal requirement for an executor to notify anyone of the funeral arrangements for a deceased person.[29] This was, plainly, addressed to the appellant's claim regarding being excluded from the memorial service.

1. There was evidence in the affidavits of the second respondent to the effect that the appellant had access to her mother's house between the time that her mother went to live with the third respondent in 2016 and the house being sold. That was a period that was estimated to be about 12 months. During that period the second respondent said that the appellant had attended and taken items from the house. Whilst she did not refer specifically to any items of jewellery, the necessary implication was that the appellant had an opportunity to take items of jewellery. That evidence was disputed by the appellant.
2. The only error in the master's reasons was to suggest that the appellant was given access to her mother's home for the purpose of collecting the bequeathed jewellery.[30] The second respondent, to the contrary, indicated that insofar as the appellant took any items from the house it was without her consent. However, this error is minor and immaterial to the outcome. Whatever might be the explanation for certain items of jewellery no longer being in the possession of Mrs Reid at the time of her death, the issue was what jewellery formed part of the estate at that time.
3. The master's conclusion regarding the jewellery was that the executors had done all that was necessary to distribute the assets of the estate. That conclusion did not depend on whether the appellant had, or may have, taken any jewellery prior to her mother's death. Nothing in the appellant's contentions demonstrates any error in that conclusion.

1. None of the grounds of appeal has any merit and the appeal should accordingly be dismissed.
2. Further and in any event, none of the grounds directly addresses the merits of the claims made in the originating summons. The appellant has sought to select aspects of the proceedings, rather than addressing the central question of whether her claims had any plausible substance. That question cannot be avoided, as if there was no arguable basis for bringing the proceedings the appeal must fail regardless of the merits of the grounds of appeal. In oral submissions the appellant had an opportunity to address the substance of her claims.
3. As to the claims regarding the jewellery, it is apparent from the will that the items of jewellery referred to on the list were specific bequests. It is not unusual that between the time a will is made and the death of the testator, the property owned by the testator will change. Insofar as a will contains specific bequests, that is bequests of items that are specifically identified and which represent an intention on the part of the testator to give specific items, such bequests will fail by reason of ademption if the identified items no longer form part of the estate at the time of the testator's death.[31]
4. In this case 10 years elapsed between the time the will was made and the death of Mrs Reid. Of the items on the list which were indicated as being for the appellant and her daughter, there was evidence that the ruby and diamond flower ring and the jade and gold ring formed part of the estate. The uncontested evidence was that the second respondent had advised the appellant by email on 21 April 2021 that a number of rings were available for collection by Jessica. Though not individually identified in the email to the appellant, the second respondent stated in her affidavit of 6 October 2021 that these rings included the ruby and diamond flower ring and the jade and gold ring. The second respondent stated that she had received no response to her email and the rings had not been collected.
5. At the appeal hearing the appellant said that she had not arranged for collection of the rings, essentially because Jessica did not want to attend the second respondent's home. However, she accepted that she had made no arrangements for any other person to collect the rings on her behalf. This does not support a conclusion that the respondents have failed in their duties to distribute the assets of the estate.
6. As regards the other items of jewellery (the Franklin Mint silver star brooch, the silver chain and bracelet in a grey pouch and the short gold rope chain), the available evidence was that those items no longer formed part of the assets of the deceased at the time of her death. There was no evidence to the contrary. The only matters raised by the appellant in that regard were speculation as to what might have happened to those items and a second-hand report that a gold chain had been given to another relative.
7. The assets of an estate are those assets owned by the deceased immediately prior to his or her death.[32] There was nothing to suggest that the executors had failed in their duties in respect of those items of jewellery that formed part of the estate. Clearly the executors could not be required to deliver up items which did not form part of the estate.
8. As regards the claims for compensation in respect of the funeral arrangements, the appellant is simply wrong in suggesting that executors have an enforceable legal duty to ensure that all members of the deceased's family are invited to the funeral. The cases relied on by the appellant do not establish or support the existence of such a duty. To the extent that they are relevant, they establish that an executor cannot use the common law power to dispose of the body in such a way as to exclude family members.[33] A person with the privilege of choosing how to bury a body, or to cremate the body, is expected to consult with other stakeholders, but is not legally bound to do so.[34]
9. This was not a case regarding disposal of the body or relating to the conduct of a funeral. It related to a memorial service held two months after the death and cremation of the deceased. The holding of such a service was not a duty of the executors. It is apparent that the appellant and her family were not invited to that service due to long‑held acrimony. Those who arranged and attended the service simply did not want the appellant to be present. That was their prerogative. There is no reasonable basis upon which to assert that the executors were under a legal duty to invite the appellant and her family to that service. Far less can there be any viable claim to compensation for failing to do so.
10. The appellant's claims were entirely without merit.
11. It is highly regrettable that the appellant has seen fit to bring legal proceedings to further what is essentially a personal grievance that is entirely without merit and raises no legal issues. The misuse of public resources of the court has now been compounded by the bringing of this appeal. The proceedings at first instance and on appeal are an abuse of process and should never have been brought.
12. For the above reasons the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[6] Originating Summons dated 2 September 2021.

[7] Originating Summons dated 2 September 2021.

[8] Affidavit of Angela Cecilia Theresa Frigger dated 28 September 2021, 3 - 5.

[11] Affidavit of Angela Frigger sworn 27 September 2021, 8.

[12] Affidavit of Angela Frigger sworn 27 September 2021, 14.

[13] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 2 - 3.

[14] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 2.

[15] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 3 - 4.

[16] Affidavit of Keith Ashley Reid sworn 27 November 2021, 2.

[17] Affidavit of Keith Ashley Reid sworn 27 November 2021, 2.

[23] Defendi v Szigligeti [2019] WASCA 115 [45] - [48].

[24] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].

[25] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.

[26] Lieschke (456); Pompano [156]; Shrestha [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].

[27] Cole (589); Tanos (395 ‑ 396); Lieschke (456); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; International Finance Trust Co Ltd [54], [141] ‑ [144]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]; Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592, which has been cited with approval in many cases; see Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] and fn 91 thereof; Shrestha [38].

[28] Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680, 685.

[31] See Fairweather v Fairweather [1994] HCA 11; (1944) 69 CLR 121, 128.

[32] Wills Act 1970 (WA), s 26(1)(a); Administration Act 1903 (WA), s 8.

[33] Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126; Spratt v Hayden [2010] WASC 340; Mourish v Wynne [2009] WASC 85.

[34] Smith v Tamworth City Council (694).