LA RUSSA -v- CARR [2014] WASC 497 (18 December 2014)

4 The amended notice of appeal identified the source of the asserted right to appeal as r 5(1) of the Non-Contentious Probate Rules 1967. Counsel also sought leave to extend the time to file the appeal pursuant to r 5(2) of those rules. The amended notice of appeal sought as relief an order setting aside the grant of letters of administration made by the Registrar and, in lieu, a grant of letters of administration solely to the Public Trustee for the State of Western Australia. It is to be noted that the Public Trustee is not a party to the asserted appeal; was not an applicant for the original grant of letters of administration, nor, apparently, has he received notice of this appeal/application.

5 The grounds of appeal sought to be raised by this amended notice are:

1. The Registrar erred by finding that the respondent's application was noncontentious and capable of being determined pursuant to the Rules.
2. The Registrar erred by dealing with the application on motion ex parte pursuant to r 6(1) of the Rules and ought to have dealt with the matter by way of summons pursuant to r 4(3) of the Rules.
3. The Registrar erred by acting on the wrong principle or not in accordance with the law, namely that where there are competing noncontentious applications, the first application in the order of lodgement takes priority.
4. The Registrar erred by refusing to accept for filing, or by failing to consider, the affidavit of Tony La Russa sworn 6 November 2014 and thus denied the appellant natural justice.
5. The Registrar erred by granting letters of administration to the respondent despite the actual conflict of interest that existed in respect of the administration of the estate and her interest as a beneficiary.

6 When counsel for the appellant was apprised by the Court of doubts existing about the competency of the asserted appeal and/or the appellant's standing to seek the relief claimed, he sought and was granted an adjournment to address those issues by filing written submissions in support of the competency of the appeal and of the defendant's standing before the application was relisted for further hearing. Directions were given requiring the filing of written submissions and these included the filing of any submissions by the respondent before the matter came on again for further hearing. The Court also indicated to counsel for the appellant that, if the asserted appeal were incompetent, or the appellant acknowledged it to be incompetent, an alternative way of proceeding may be to apply by writ in the contentious jurisdiction for revocation of the existing grant. Again, submissions were invited addressed to the existence or suitability of that as the only proper and available remedy in the circumstances.

7 Since then the appellant has notified the Court that he seeks to abandon the appeal and no further submissions have been filed. In view of the importance of the issues I consider that the competency of the appeal should be considered and examined. The proposal to abandon the appeal will lead to its dismissal but the reasons for this are of general importance.

8 Giuseppe La Russa, late of Gracefield Park Farms, Beermullah West Road, Beermullah, Western Australia, died between 27 and 28 November 2013 intestate. He was survived by his widow, from whom he had been separated in 1991 but never divorced, and by his two adult children, Mrs Anna Carr and Mr Tony La Russa. Only one application for letters of administration of his estate was made and that by his daughter, Mrs Anna Carr. This disclosed that the widow, Maria Angelina Gennarina La Russa, did not wish to apply for letters of administration and that notice of the application by the daughter had been given to her brother.

9 The affidavits filed in support of the daughter's application disclosed that, originally, via their separate solicitors, the brother and sister had considered making a joint application for letters of administration but that their proposals in this regard broke down over a disagreement about what constituted the assets of the estate. According to the applicant, Mrs Anna Carr, the estate included a large debt of some $7 million due to the deceased by La Russa Pastoral Holdings Pty Ltd as Trustee for the La Russa Pastoral Trust, a trustee company for a trust principally conducted by her brother. She maintained that the debt was recorded in the books of account of the trustee company and had been admitted by her brother's solicitors. Her brother, via his solicitors, maintained that the debt had been forgiven and mentioned a deed of release by the deceased father purporting to discharge that debt. Although referred to in the correspondence as being produced, the deed of release of the debt was not supplied to the daughter's solicitors or to the court.

10 In these circumstances, Mrs Anna Carr proceeded to make an application for letters of administration of her father's estate solely in her own name. In her affidavit in support of her application she disclosed the nature of the dispute with her brother and contended that because of the apparent conflict of interest which her brother had in relation to the controversy over the existence of the $7 million debt, he would not be a suitable person to be appointed as coadministrator or to receive a sole grant.

11 While the application by Mrs Anna Carr for letters of administration was pending, and some minor requisitions were outstanding, the solicitors for the appellant wrote to the Probate Registry requesting that no grant be made to Mrs Carr or, alternatively, that any grant should be made on the basis that the appellant could have leave to come in and prove and, finally, by lodging an affidavit (but no application) seeking a joint grant of letters of administration in the names of the appellant and the respondent.

12 The response of the Probate Registrar to these various steps by the appellant was to inform him:

(a) that on any application for a grant of letters of administration, unlike applications for probate where there are several executors named in the will, there is never any basis for a grant of letters of administration with liberty for some person with an equal right to a grant to come in and prove later;

(b) that there was only one motion for a grant of letters of administration ever made to the Court, so that the appellant's affidavit could not be received in relation to the respondent's application and, in the absence of any application for a grant made by him, was irrelevant and should be rejected;

(c) that the only application for a grant was by an eligible applicant, so that letters of administration should be granted to Mrs Carr.

13 Records of the Probate Registry also show that two attempts were made to lodge caveats against any grant of representation in this estate (CAV 25 of 2014 and CAV 27 of 2014). The solicitors for the appellant, Mr Tony La Russa, lodged with the Probate Registry on or about 2 April 2014 a caveat by their client against a grant. Omitting formal parts, the caveat read:

Take notice that I, Tony La Russa, 8 Ethel Street, North Perth, WA, 6006, claiming interest in the estate of the said deceased who died on or around 28 November 2013, being a son of the deceased and beneficiary of his estate, do hereby demand that nothing be done without notice to me.

14 However, by letter dated 29 April 2014, the Probate Registrar notified the caveator's solicitors that the caveat could not be accepted because it failed to identify the basis upon which it was lodged. The Probate Registrar referred to authorities in support of the proposition that an assertion by a caveator that he was a son of the deceased and beneficiary did not identify a sufficient interest for preventing a grant or to support a caveat.

15 There is nothing to suggest that the solicitors responded to the Registrar's letter or filed any further caveat or otherwise attempted to define the interest which the caveat sought to protect. No attempt was made to appeal under r 5, or otherwise, from the decision of the Registrar to refuse to accept the caveat.

16 Another caveat was filed by the respondent (CAV 27 of 2014) by which she asserted that she was claiming an interest as the daughter and potential beneficiary of the deceased and demanding that nothing be done without notice to her and that no grant be sealed without prior notice to her. That caveat was also rejected for similar reasons. Again no attempt was made by the respondent to identify the interest which she sought to protect by this caveat or to appeal from the decision of the Registrar not to accept the caveat as filed.

17 Accordingly, by his present alleged appeal, Mr Tony La Russa is seeking to have set aside the grant of letters of administration of his father's estate which was made to his sister in the non-contentious jurisdiction in circumstances where he never applied for a grant himself or with his sister jointly.

18 The affidavit which he attempted to file and which was rejected by the Registrar did depose to his desire to obtain a joint grant, or a grant to his sister alone but with leave for him to come in and prove. In both respects, the affidavit was misguided. As he was not an applicant for any grant, no affidavit by him could be accepted or filed in proceedings brought by another party for a sole grant. Furthermore, as the Registrar correctly stated, there is no mechanism at all for a grant of letters of administration to be made to one administrator reserving liberty to some other person with an equal or other claim to administration to come in later and prove.

19 Properly considered, the appellant's efforts were, in reality, attempts to oppose the making of a grant or at least the making of a grant in the terms sought by the only applicant before the court. As such, they were entirely unsuitable and incongruous in the non-contentious jurisdiction. What the appellant was seeking to do was to prevent a grant being made as sought by the respondent and instead to seek a different form of grant and to do so by raising issues as to the eligibility or suitability of a person with competing interests for a grant of administration. That shows that the appellant was seeking to raise, inadequately, issues only determinable in contentious proceedings.

20 Had the appellant persisted with his attempt to lodge a caveat against a grant in favour of Mrs Carr and succeeded in doing so, the existence of that caveat would have prevented a grant being made to her. Unless the caveat had been withdrawn, removed or expired, this would have left the respondent in a position where, to obtain any grant of representation, she would have been compelled to commence an action in the contentious jurisdiction seeking a grant of letters of administration to her in solemn form of law. Had that been done, the appellant would have, necessarily, been made a party to those proceedings and been able to defend them and, as one would expect, to have advanced his own counterclaim for a grant of letters of administration to himself alone or to himself and his sister. Alternatively, if he had been able to persuade any person with a sufficient interest, such as the Public Trustee, to join with him in a counterclaim for letters of administration, that could also have been done. However, the court will not make any grant of representation to a person, whether the Public Trustee or anyone else, unless that person or entity applies individually, and produces evidence to show an entitlement, actual or discretionary, to obtain the relief sought. Any applicant must swear or affirm his or its ability and intention to administer the estate according to law, if granted representation.

21 Now after a full grant of letters of administration has been made to the respondent, with the result that the estate of the deceased has vested in her (s 8 of the Administration Act) the court is faced with this asserted appeal, including a claim that the grant should be 'set aside'. This is solecism because, once made, a court does not 'set aside' any grant of probate or letters of administration. Rather, if sufficient cause is shown, the court may revoke a grant of probate or letters of administration either in the noncontentious or in the contentious jurisdiction and then make another grant to whomever and of such kind, as the circumstances, after proper investigation and proof, reveal to be so entitled.

Appeal to a Judge under r 5 of the Non-Contentious Probate Rules

22 This provision relied on by the appellant is r 5 of the NonContentious Probate Rules 1967, which is in the following terms:

(1) A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.

(2) An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Registry within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.

(3) A notice of appeal shall be served on every person, other than the appellant, who appeared or was represented before the Registrar.

(4) Where a notice of appeal is required to be served, there shall be at least 2 clear days between service of the notice and the day of hearing.

23 There is very little authority about the scope of the right of appeal under r 5. The only instances which I have been able to identify or been referred to are Re Estate of Dudley Herbert Crossland (dec) [2001] WASC 21; Reyburn & Anor [2002] WASCA 171; Re Estate of John William Henry Nicholls (dec) [2003] WASC 85; and Davis v Davis [2014] WASC 395.

24 In the most recent of these cases, Davis v Davis, Jenkins J refers to the nature of an appeal under r 5 as explained by Barker J in Re the Estate of John Henry William Nicholls (dec) and went on to cite with approval Barker J's observations:

Consequently, and as recognised by the learned authors of Wills, Probate and Administration Service Western Australia (Butterworths 1999, loose leaf service), the Registrars of probate exercise specific, that is, limited statutory and regulatory power under r 4. In a real sense, a Registrar of the Court exercises the voluntary or non-contentious probate jurisdiction under the Non-Contentious Probate Rules as a delegate of a Judge of the Court and each decision is subject to review by a Judge, whether on a reference to the Judge by the Registrar or in an appeal against a decision of the Registrar to a Judge.

It follows, in my view, that an 'appeal' to a Judge under r 5(1) should be treated as an appeal de novo, so that it is open to the Judge on the hearing of such an 'appeal' to hear the matter afresh. On such a reference or 'appeal' under these rules, the Judge is effectively exercising the jurisdiction created by s 6 of the Administration Act that was delegated by the rules to the Registrar. Such an 'appeal' is not one in the strict sense, nor is it appropriate to view the 'appeal' as one by way of rehearing where the Court will only act to correct an identified error on the part of the Registrar. In effect, the court exercises an original jurisdiction on such an 'appeal' [13] - [14].

25 All these cases involved proceedings entirely in the non-contentious jurisdiction and were either appeals against a refusal of a Registrar to make a grant or from a decision of a Registrar refusing to accept a caveat against a grant. In every case, the appellant was a party to proceedings then before the court either as an applicant for a grant of representation or as a caveator.

26 Rule 5 of the Non-Contentious Probate Rules is similar, but not identical, to r 65(1) of the Non-Contentious Probate Rules 1987 (SI1987 No 2024) made under s 127 of the Supreme Court Act 1981 (England) - see Tristram and Coote's Probate Practice (28th ed, 1995) 923 et seq and its antecedents.

27 The applicable rules of this Court, Rules of the Supreme Court 1971, O 73, and the Non-Contentious Probate Rules 1967 make a clear distinction between non-contentious proceedings and contentious proceedings. As RSC O 73 r 1(2) stipulates, that Order refers to a probate action as meaning an action for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business. By contrast, the Non-Contentious Probate Rules refer exclusively to common form business or eponymously proceedings in which there is no issue between the parties as to the right to a grant, the validity of a will, or the eligibility of a party to either a grant of probate or to a grant of letters of administration or, for that matter, other disputes between parties which may arise in relation to whether there should be, and if so to whom, any grant of representation.

28 The Administration Act and the Non-Contentious Probate Rules make provision for circumstances where, and when, issues of contention between rival parties arise. This may occur when a party lodges a caveat against a grant which cannot or should not be removed on application under s 64(1) of the Administration Act or where a Registrar considers, for any one of several sufficient reasons, that a grant should not be made or where a doubt exists as to whom or in what terms any grant ought be made, including cases where there is a dispute about the validity of any will being propounded.

29 In those instances, a Registrar in the common form jurisdiction will decline or refuse to make a grant, leaving it to the parties, if so advised, to institute an action in the contentious jurisdiction seeking the relief desired. In those latter instances, the action will proceed as a probate action under RSC O 73 and the court will eventually be called upon to pronounce, after receiving all relevant evidence and hearing from parties entitled to be heard, whether any and, if so, what grant of representation should issue. Any grant made in the contentious jurisdiction after such a hearing will be a grant of probate or letters of administration in solemn form of law with all the consequences that that entails - as to which, see Wheatley v Edgar [2003] WASC 118 [17] - [24].

30 It follows from this clear division between the contentious and the noncontentious probate jurisdiction of the court that it is entirely mistaken and inappropriate to rely on the right of appeal conferred by r 5 of the NonContentious Probate Rules to agitate a contentious issue between rival parties which can only be determined in the contentious jurisdiction. There are simply not the procedures or the facilities in the non-contentious jurisdiction to deal with disputed claims between rival parties for grants of representation. In this case, as already pointed out, there were not even rival claims because the Registrar was only ever seised of one application for a grant, namely the one brought by the respondent which succeeded in obtaining the grant which has been made.

31 The issues which the appellant seeks to raise on this asserted appeal are entirely contentious. They do not arise from the application which was before the Registrar which led to the grant made. Even if the appellant had followed a different procedure and succeeded in having a caveat in proper form accepted by the registry against any grant, or alternatively, had he made an application for a grant in his own name in the noncontentious jurisdiction, the Registrar dealing with the matter would then have been confronted with rival applications or a disputed application. That would inevitably have meant that the Registrar would have declined to make any common form grant, leaving it to one or other or both of the dispute parties to commence a probate action and obtain, if he or she could, the desired grant in solemn form of law.

32 It follows, therefore, that I consider that the present appeal is misconceived and incompetent. For that reason, it should be dismissed, leaving the existing grant of letters of administration of her late father's estate in favour of the respondent entirely undisturbed.

33 Should the appellant still wish to challenge the grant of letters of administration of his father's estate in favour of the respondent, it will be necessary for him to apply, if so advised, for a revocation of the existing grant and its replacement by some different form of grant.

34 A Registrar in the non-contentious jurisdiction has the power to revoke a grant made in common form - Non-Contentious Probate Rules r 4(1) and 35 - but that jurisdiction is restricted to voluntary or noncontentious business together with the inherent jurisdiction of the court to recall or revoke a grant at the court's own motion where required. As to the circumstances in which revocation of a grant would be made in the non-contentious jurisdiction see, generally, Williams Mortimer & Sunnucks, 'Executors, Administrators and Probate' (19th ed, 2008) 27; Tristram and Coote's Probate Practice (28th ed, 1995) 17; and Dal Pont G and Mackie K, 'Law of Succession' (10th ed, 2013) 361 - 372.

35 In the present instance, where there is no suggestion of clerical error or mistake in the making of the grant, the assertions by the appellant to the effect that a grant of his father's estate should be made to him or to some other person other than the respondent clearly reveal that the nature of the relief which he is seeking can only be obtained in a contentious jurisdiction. It will be for him to decide whether or not he wishes to commence contentious proceedings for the reservation of the present grant.

36 For the present, however, this appeal must be dismissed as incompetent.