KENWORTHY-GROEN -v- GROVE & ANOR [2021] WASC 364 (28 October 2021)

1. My Executor and Trustee will support Andrew being the manager in charge of the IOH, subject to:
   1. The Executor and Trustee approving purchase and expense of the IOH greater than $100,000; and
   2. The Executor and Trustee approving salaries of the IOH staff;

My Executor and Trustee, in his absolute discretion may review, maintain or revoke the support give to Andrew being the manager in charge of the IOH, at any time.

1. If the IOH remains an asset in which THE GROVE GRANDFATHER FAMILY TRUST has a majority interest, the Executor and Trustee is to encourage, but not force members of my immediate family to work at the IOH. I wish that the business be a place in which the immediate family can always be employed, no matter their circumstances.

1. This application is made under s 45 of the Administration Act 1903 (WA):
   1. Court may settle all questions arising in administration

(1) The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

(2) Such order shall bind all persons whether sui juris or not.

(3) No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.

1. The application is supported by an affidavit of the plaintiff sworn 30 November 2020. In that affidavit the plaintiff sets out the relevant facts and explains why difficulties have arisen in interpreting cl 6 of the will and why the court's advice is sought. Appearing as attachment SKG11 to the affidavit is a copy of counsel's advice dated 30 October 2020. Counsel examined in detail the difficulties in interpreting cl 6 of the deceased's will. He recommended an application be made under s 45 of the Administration Act, and that doubtless was the origin of these proceedings.
2. In April 2021, a dispute arose between the parties as to whether or not the plaintiff ought provide discovery of documents to the first defendant. The matter could not at first be resolved and was set down for a special appointment. Just prior to the hearing of the appointment, the parties reached agreement and the plaintiff consented to an order he provide discovery. This was done by way of an affidavit of discovery sworn by the plaintiff on 14 May 2021. In that document, the plaintiff claimed privilege over certain documents. Without quoting the list in full, a flavour of the nature of the documents over which privilege is claimed can be seen from the description of document 11:

Copy of signed handwritten letter from W Grove to Appius Solicitors marked 'Confidential Urgent' 'Changes to my Will' with instructions to solicitors to prepare for the dominant purpose of obtaining legal advice.

1. By this application, the first defendant challenges the plaintiff's claim to privilege. It does so on a number of grounds including that privilege has been waived. Before dealing with the parties' arguments, I should make two general comments about this application. First, it is clear it is open to the plaintiff to make an application of this kind in the circumstances of this case. In Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another [2008] HCA 42; (2008) 237 CLR 66, the High Court was dealing with s 63(1) of the Trustee's Act 1925 (NSW). That section has its analogue in s 92 of the Trustee's Act 1962 (WA). The comments made by the High Court are equally applicable to s 45 of the Administration Act. The court said:
   1. Only one jurisdictional bar to s 63 relief exists: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument. The Court of Appeal did not deny that both kinds of question existed in the present case. Hence, as the Court of Appeal recognised and as the plaintiffs accept, the dispute in this appeal relates only to the question whether Palmer J erred in the exercise of his discretion.
2. During the course of his submissions, counsel for the plaintiff submitted this application was not really an application for judicial advice. Rather, he said, it was a contest between the first defendant and the second defendant as to whether or not the first defendant was actually a beneficiary under the deceased's will. Counsel said he anticipated that at the hearing of the application, the plaintiff would take no active part. The protagonists would be the first defendant and the second defendant. With respect, I do not accept that to be the case.
3. There is no doubt the plaintiff as executor of the will of the deceased is entitled to invoke the jurisdiction of the court and seek an opinion as to the proper interpretation of cl 6. That does not mean the court will necessarily offer an opinion. In the Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another [2008] HCA 42; (2008) 237 CLR 66 case, the High Court said:
   1. Role of context in applying s 63. Sixthly, the application of s 63 will tend to vary with the type of trust involved. Where there is a non-charitable private trust involving a conflict between beneficiaries, or between beneficiaries alleging a breach of trust out of which a trustee has profited and that trustee, and where the defendants in those proceedings have a personal capacity to fund the defence, it might not be correct to give the trustee an opinion, advice or direction. The position is not necessarily the same where the trust is for a charitable purpose, where the public interest is involved since ex hypothesi the trust is beneficial to the public, where none of the contestants in the litigation about the trust is suing or defending in order to augment, defend or seek the restoration of personal assets, and where a crucial question is the precise terms of the purpose for which the trust exists.
4. It may well be a court would, in the exercise of it's discretion, decline to provide the opinion sought by the plaintiff in these proceedings. But that is not the issue I have to determine. That is a matter for the final hearing. Although counsel for the first defendant expressed reservations as to whether or not the present procedure is the proper way to resolve issues around cl 6, he necessarily accepted the proceedings were properly constituted. He was right to do so; and in doing so, he did not preclude the possibility that at the final hearing the first defendant will argue no direction ought be given. The sole question I have to determine relates to the claim for privilege.
5. Second, there was agreement between the parties as to the proper approach to be adopted to s 45. Allanson J in Re Estate of Anastasios Keriacules Challis (Deceased) [2010] WASC 333 put the position as follows:
   1. The power in s 45 is expressed in very broad terms. Further, unless the context otherwise requires, the provisions of the Trustees Act 1962 (WA) apply to an administrator, by reason of the definition of 'trust' and 'trustee' in s 6 of that Act. Under s 92 of the Trustees Act:

Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

1. In relation to applications by a trustee for the direction of the court, I adopt the summary of Gillard J in Re Atkinson deceased [1971] VicRp 73; [1971] VR 612, 615:

Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do. If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the court for directions on the matter: see Halsbury's Laws of England, 3rd ed, vol 38, pp 946 and 1023‑1024; in Re Brogden [1888] UKLawRpCh 89; (1888), 38 Ch D 546, at p 556; [1888] UKLawRpCh 89; [1886-90] All ER Rep 927; Chettiar v Chettiar (No. 2) [1962] UKPC 1; [1962] 2 All ER 238, at p 245. If the executor or the trustee then followed the direction of the court, it would be protected from any claim by a beneficiary or creditor arising from its action or inaction in accordance with the court's direction: see Underwood v Hatton [1842] EngR 371; (1842), 5 Beav 36; 49 ER 490; Smith v Smith (1861) 1 Dr & Sm 384; 62 ER 426. In cases of real doubt, the proper course for a personal representative or trustee to adopt is to seek the court's decision as to whether or not action should be brought, otherwise the representative or trustee might find itself paying the costs of any proceedings which a court might subsequently say were not 'properly incurred': see Re Beddoe; Downs v Cottam, [1892] UKLawRpCh 180; [1893] 1 Ch 547, at pp 558 and 562.

1. It is the plaintiff's position that the documents over which privilege is claimed are documents covered by legal advice privilege - they were communications passing between the deceased and his solicitors relating to the preparation of his will. The plaintiff says on the passing of the deceased, the documents and the privilege attached to them passed to the executor. The plaintiff says there has been no waiver of privilege and the first defendant is not entitled to inspect the documents.
2. In my view, this is a clear case where privilege has been waived. The position can be illustrated in this way. In his opinion attached to the plaintiff's founding affidavit, counsel refers to the 'principles of construction of testamentary instruments'. He does so by reference to the decision of Kenneth Martin J in Pringle v Pringle [2010] WASC 206 at [25]. One of those principles is that a court can use evidence of the surrounding circumstances in the exercise of interpretation of the will. In fact, that approach is embodied in s 28A of the Wills Act 1970 (WA). In other words, this application by its very nature anticipates putting before the court all of the information which might be relevant to the proper interpretation of cl 6. The fact that the documents over which privilege is claimed are listed in the affidavit of discovery means the plaintiff is of the view they are at least related to a matter in issue between the parties. It would be potentially misleading to the court if these documents were not actively considered in the course of hearing the application. They may not prove to be admissible and they may play no part in the ultimate resolution of the issue. However, they must be made available. If that were not the case, there is the prospect the court might be mislead in providing advice.
3. To be clear then, I am satisfied that by the very act of making of this application, the plaintiff has waived privilege which might otherwise attach to documents related to the deceased's will and its proper interpretation. On that basis, the documents ought be available for inspection by the first defendant.
4. On publication of these reasons, I will provide the plaintiff with the opportunity to consider it's position. Of course, if there was to be an appeal against this decision, it would be inappropriate for the first defendant to have access to the documents pending determination of the appeal. Subject to hearing from the parties, the plaintiff ought pay the defendant's costs of this application including reserved costs.

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