RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE PAPOTTO [2026] WASC 79 (13 March 2026)

1. The Registrar indicated that the court would not accept the writ for filing until such time Sam had obtained leave.
2. By way of an originating motion dated 25 February 2026, Sam now applies for orders that:

(a) leave be granted pursuant to O 67 r 5(1) of the Supreme Court Rules to file the Writ of Summons and Statement of Claim in the form of the draft annexed to an affidavit he has filed: the Affidavit of Sam John Papotto sworn 25 February 2026;

(b) service be dispensed with pursuant to O 67 r 5(1) of the Supreme Court Rules;

(c) the Probate and Executor Proceedings be stayed until further notice; and

(d) cost of the application be in the cause.

1. At the hearing of the originating motion, I indicated that I would grant leave for Sam to file the writ and publish reasons for that decision. These are the reasons.

Why leave is required and when it will be given

1. Sam requires leave to file the writ because the Registrar has refused to accept it for filing under O 67 r 5(1) of the Supreme Court Rules. Order 67 r 5(1) of the Supreme Court Rules relevantly provides:
   1. Abuse of process etc, procedure in case of

(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.

(2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.

1. Order 67 r 5(3) and (4) of the Supreme Court Rules require an application for leave to be made ex parte to a judge and supported by an affidavit.
2. Although O 67 r 5(1) does not state the criteria that is to be applied in determining whether to grant or refuse leave to file or issue a proposed writ, it is accepted that a judge or master should refuse leave to file or issue the writ only if satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding.[1]
3. The caution attendant upon the exercise of the power of summary dismissal elsewhere in the Supreme Court Rules applies with no less force in the context of O 67 r 5. The question for determination is therefore whether Sam's proposed writ would be an abuse of process or a frivolous or vexatious proceeding.[2] When proceedings would be an abuse of process or a frivolous or vexatious proceeding were discussed by Vaughan J (as his Honour then was) in Ex parte Gates.[3] I respectfully agree with and adopt what his Honour has said.
4. Given the Registrar's reasons for refusing to accept the writ for filing, it is useful to begin by saying something about the Caveat Extension Proceedings and the Probate and Executor Proceedings.

The Caveat Extension Proceedings (CIV 1432 of 2025)

1. Registrar Jennings referred to CIV 1432 of 2025 in which Sam was named as the applicant. Those proceedings concern an application made by Sam to extend a caveat over Percy Road, Bayswater (the Property) pursuant to s 138C of the Transfer of Land Act 1893 (WA) (Transfer of Land Act).
2. On 14 July 2025, the Honourable Justice Seaward (as her Honour then was) ordered the extension of the caveat until further order of the court. The circumstances which in which her Honour decided to extend the caveat are set out in written reasons for the decision delivered by her Honour.[4]
3. Sam's claimed interest in the Property was recorded on the caveat as being an 'equitable interest in the property as beneficiary'.[5] Sam represented himself in those proceedings.
4. The basis of Sam's claimed interest is recorded as:[6]

the Gift Deed document signed by Nunziata PAPOTTO also known as Nunziatina PAPOTTO dated 26 August 2023, agreement to gift the property [Redacted] Bayswater, the beneficiary being Sam PAPOTTO

1. Nunziata was Sam's mother. Sadly, during the course of those proceedings, Nunziata passed away.[7]
2. Justice Seaward recorded that Sam had filed a number of affidavits which outlined the basis of his claim. Her Honour summarised the key relevant facts as follows:[8]

(a) Nunziata was discharged from Royal Perth Hospital in April 2023 after having COVID, and Sam stayed with her for nine days and nights to assist her;

(b) after this, Nunziata became scared and lonely living on her own and was continuously asking Sam to stay with her. Sam did so on some occasions but it was difficult as he had his own home and family;

(c) no other family members, including other children of Nunziata, would or could stay with Nunziata;

(d) at a family lunch on 1 June 2023 to celebrate Nunziata's 95th birthday, at which some family members were present, it was suggested that Sam and his family move in with Nunziata;

(e) Nunziata also said that she wanted and would leave the Property to Sam, and asked Sam to bring her the papers and she will sign over the house to him;

(f) Sam attaches to his affidavit evidence a letter from his sister, Rosa Zonato, dated 18 June 2024, confirming that this conversation took place;

(g) Sam deposes that on 18 August 2023, Nunziata signed a document (which is attached to his affidavit) which contains wording in English and Italian. The English wording states:

I, Nunziata Papotto, of [Redacted] Bayswater, hereby authorise my son Sam Papotto to instruct a solicitor to prepare the following documents:

(1) an enduring power of attorney in the donee name of Sam Papotto

(2) a gifting deed and transfer of land document for the property

(h) Sam deposes that on 26 August 2023, Nunziata signed a document he describes as a Deed, which contains wording in English and Italian. The English wording states that:

I, Nunziata Papotto of [Redacted] Bayswater, hereby state that:

(1) I wish to gift to my son Sam Papotto the property free from any claims that may arise

(2) the gift is for my son and his family, because they have promised to look after me until I die in the home I have gifted him

(3) I wish for my solicitor to make necessary changes to my will to exclude any whole estate and appoint my son Sam Papotto to be the executor and trustee of my will

(4) I have made this decision of my own free will without threats, intimidation, duress, or collusion from anyone

(5) I've made this decision with the knowledge and understanding of the consequence of making this decision.

(i) Sam also deposes that he has a recording of Nunziata in mid‑June 2023 in which Nunziata indicates that she understood her decision to gift the Property;

(j) Sam moved into the Property at the end of August 2023; and

(k) a guardianship order and an administration order were first made in relation to Nunziata by the State Administrative Tribunal on 29 September 2023.

18 Justice Seaward noted that no other formal steps were taken to give effect to the proposed gift of the Property to Sam and no transfer form was prepared, signed, or registered with Landgate.[9]

1. Justice Seaward observed that Sam's claim for an interest in the Property is on the basis that his mother gifted him the Property, that gift was perfected, and that Nunziata is estopped from denying the gift of the Property.[10]
2. Justice Seaward considered that Sam had difficulties in demonstrating that his claim has or may have substance, or that there is a serious question to be tried.[11]
3. Her Honour considered that even if Sam's evidence were accepted, the evidence relied upon fell short of what the law requires to alienate the Property as a perfected gift. Her Honour observed that no transfer of land form was completed, signed, or provided to Sam, and no duplicate certificate of title provided. She considered that these matters raised a real question as to whether the gift could have been withdrawn by Nunziata at any time.[12]
4. With regard to Sam's estoppel claim, Seaward J noted that in order to establish an estoppel, Sam must establish that he relied on the representation made and has acted to his detriment. Her Honour observed that even accepting that Sam relied on the representation made by moving in with Nunziata, Sam has not filed any evidence of any detriment, for example, that he had sold his own house in reliance on the representation.[13]
5. With regard to the balance of convenience, Seaward J observed that while she did not consider Sam's case to be strong and there are a number of difficulties with it, following the death of Nunziata, there does not appear to be any prejudice to her if the caveat is extended. She further observed that a grant of probate will need to be obtained in relation to Nunziata's estate and, subject to the terms of her will, her estate administered.[14]
6. Justice Seaward noted that she had been told that the executors of Nunziata's estate are her four children, which includes Sam. She observed that time might be needed for the executors to determine the way forward, whether they wish to look into removing the Caveat, or whether some other mechanism for resolving the matter is appropriate. She said that it is also possible that a Family Provision Act 1972 (WA) claim may be made in the future.[15]
7. Justice Seaward noted that the situation had developed since the notice to remove the caveat had been issued by Nunziata's guardian, the Public Trustee, which wished to sell the Property to pay for Nunziata's residential care facility.[16]
8. Her Honour observed that she had considered the fact that any decision not to extend the caveat would not prevent Sam from taking legal action to vindicate his claim to the property or prevent Sam from undertaking any applications in the context of the administration of Nunziata's estate.[17]
9. Ultimately, Seaward J concluded that as the factual circumstances underpinning the request for the removal of the caveat no longer existed, there is not necessarily any prejudice for the caveat to remain on the title, whereas there is potential prejudice to Sam if the caveat were to be removed. Her Honour observed that it is open to the executors of the estate to consider the position going forward and she acknowledged that the balance of convenience might change.[18]

The Probate and Executor Proceedings (CIV 2046 of 2025)

1. Registrar Jennings also referred to CIV 2046 of 2025.
2. Those proceedings have been commenced by Anthony and Nunzio as executors of Nunziata's estate. The defendants to those proceedings are Sam and Rosa, also in their capacity as executors.
3. Anthony and Nunzio seek the following relief:

(a) there be a grant of probate in non-contentious form of the Last Will and Testament of the late Nunziata in favour of them;

(b) Sam and Rosa be passed over as nominated executors of the Nunziata's estate; and

(c) Anthony and Nunzio's costs of the proceedings be paid out of the estate on a solicitor and own client basis.

1. The claims made by Anthony and Nunzio are set out in a statement of claim they have filed.
2. The statement of claim refers to the caveat that Sam lodged and the subsequent Supreme Court proceedings.[19]
3. Anthony and Nunzio allege that Sam is in a position of conflict to take up his position as executor because:[20]

(a) Sam alleges that he had an interest in the Property because of the gift that Sam alleges that Nunziata made to him;

(b) the determination of whether the alleged gift is valid or not is likely to require further litigation in which Sam will be a party in his own right; and

(c) Sam's interest in those purported proceedings will be adverse to Nunziata's estate, as the Property comprises most of the value of the estate.

1. Anthony and Nunzio allege that Rosa is also in a position of conflict because Sam had named her as a 'material supporting witness' in material that Sam filed with Landgate.[21]
2. Anthony and Nunzio maintain that they are not in a position of conflict.[22]
3. Sam has filed a defence and counterclaim. He also appears to be representing himself in those proceedings.
4. The defence and counterclaim do not take the form of a conventional pleading. Rather, Sam appears to have copied the statement of claim and then added his response to each paragraph of the statement of claim below that paragraph.
5. Paragraph 14 of the statement of claim pleads the fact that Sam lodged the caveat. In response, the defence and counterclaim filed on 30 December 2025 pleaded the following:[23]

Judicial Determination: Only a Court (typically the Supreme Court of Western Australia) has the authority to determine the actual validity of the interest claimed in a caveat

1. The defence and counterclaim have now been amended to delete this.
2. Paragraph 15 of the statement of claim pleads the fact that Sam commenced the Caveat Extension Proceedings. Paragraph 15 of the defence and counterclaim filed on 30 December 2025 denied the allegation and pleaded:
   1. Court proceeding commenced after receiving a 21 Day Notice from the public Trustee.
   2. The defendant was required to seek an extension. The caveat did not prevent the sale of the property because the property was not on the market and there was no buyer.
3. The defence and counterclaim have now been amended to delete this.
4. Paragraph 18 of the statement of claim pleads the allegation that Sam is in a position of conflict. Paragraph 18 of the defence and counterclaim pleads:

Nunzio and Tony [sic] current court proceedings are delaying the process in settling the estate of Mrs Papotto.

1. Paragraph 21 of the statement of claim pleads the allegation that Anthony and Nunzio maintain that they are not in a position of conflict. Paragraph 21 of the defence and counterclaim pleads:

a) This matter is an action against Sam or Rosa and should be in Nunzio and Tony own right as it has nothing to do with administrating the Will and other decrees of Mrs Papotto.
>
> b) Nunzio and Tony have Duty of Impartiality as Executors they must treat all beneficiaries fairly and cannot favour their own interests or collude with others to disadvantage a specific beneficiary.
>
> e) Mrs Papotto change [sic] her Will in 2018 to included Rosa and Sam so that Nunzio and Tony did not have sole control of her estate.

2. A counterclaim appears after the defence. The counterclaim states that Sam seeks to set aside the writ on one or more of the following grounds:

(a) there is no evidential proof of the defendants acting as executors of any wrong doing, such as fraud, misconduct, incompetence, unreasonable delays, or acting in their own self-interest;

(b) there is no evidential proof of abuse of process by defendants;

(c) the application is without merit, groundless, or intended to harass the other party;

(d) the defendants have extended multiple proposals regarding the administration of the estate to the solicitor; and

(e) the writ may prejudice or delay the fair trial of the action.

1. Another paragraph of the counterclaim refers to 'removing an executor in WA'. The paragraph states that the court will only remove an executor if they have breached their fiduciary duty, and as such, a beneficiary must have actual evidence that an executor has engaged in fraud, misconduct or incompetence.
2. It is alleged that Nunzio and Tony are in a position of conflict because they are putting their own interests before those of the estate.
3. The counterclaim pleads that alternatively, there may be evidence that Nunzio and Tony are acting improperly. An allegation is made that they are conspiring to interfere with the proper legal administration of Nunziata's estate.
4. The only relief mentioned in the counterclaim is the setting aside of the writ in the Probate and Executor Proceedings.

1. As I have mentioned, Sam attempted to file a writ of summons on 19 January 2026. The writ is indorsed as follows:

The claim of the Plaintiff arises in circumstances where;

1. The Plaintiff and Defendants are the children of the late Nunziata Papotto otherwise NUNZIATINA PAPOTTO ("the Deceased").
2. The Deceased died on 7th June 2025.
3. The Deceased executed a will dated 7th December 2018 ("the Will").
4. The Plaintiff, Rosa Zonato, and the Defendants are nominated in the Will to act as executors jointly.
5. By the Will, the Deceased appointed the Plaintiff, Rosa Zonato and the Defendants, Nunzio and Tony Papotto, as executors.
6. In or about May and June 2023, the Deceased promised to gift the property located at 4 Percy Road, Bayswater, WA, to the Plaintiff.
7. Rosa Zonato was present when the Deceased made this promise on multiple occasions, including specifically on June 1, 2023.
8. In mid-June 2023, the Deceased recorded a statement (the 'Recorded Statement') confirming her intention to gift the property at 4 Percy Road, Bayswater, to the Plaintiff.
   1. At the time of making the Representations in June 2023, the Deceased possessed the requisite legal capacity to understand the nature and consequences of her decision to gift the Property.
9. On 26 August 2023, the Deceased executed a letter in both English and Italian (the "Letter of Instruction") instructing her solicitor to amend the Will to bequeath her entire estate, including the property, to the Plaintiff, Sam Papotto, and to appoint him as sole Executor and Trustee.
   1. In August 2023, in reliance upon the Representations and at the express request of the Deceased, the Plaintiff and his family moved into the Property to provide the Deceased with permanent, live-in care for the remainder of her life
10. The Plaintiff lodged a caveat on the property in 2024.
11. The Defendants have declined to execute or finalise the Grant of Probate application in accordance with the Plaintiff's recommendations.
12. The first and second Defendants are in a position of conflict of interest in relation to the administration of the estate, as they dispute the Plaintiff's claim to the property. 13. The Defendants' actions are causing undue delay in the proper legal administration of the Deceased's estate.

In the circumstances, 'The Plaintiff's claim is as executor of the will that:

1. The Deceased made an inter vivos gift or an effective testamentary disposition of the property located at 4 Percy Road, Bayswater, to the Plaintiff in June 2023.
2. Alternatively, the Deceased created an equitable interest in the property for the benefit of the Plaintiff.'

RELIEF SOUGHT

The Plaintiff seeks the following orders:

1. A declaration that the Plaintiff is the beneficial owner of the property located at 4 Percy Road, Bayswater, WA.
2. An order for specific performance of the Deceased's promise to gift the property to the Plaintiff.

1. Orders necessary to facilitate the transfer of the property to the Plaintiff.

1. Further or other relief as the Court deems fit.

1. It seems to me that by the writ, Sam is seeking to vindicate the claim that he claimed supported the caveat considered in the Caveat Extension Proceedings.
2. While it is true that in the Caveat Extension Proceedings, Seaward J identified that Sam's claim was not strong and had difficulties, her Honour did not go so far as to conclude that it had no substance or did not give rise to a serious question to be tried. Nor did she conclude that it was frivolous or vexatious. Plainly, her Honour considered that the claim had sufficient merit to support the extension of the caveat.
3. The Caveat Extension Proceedings did not require or involve the final determination of Sam's claim. The final determination of that claim has been left for another occasion. Given that the caveat has been extended, it is both appropriate and necessary that proceedings be commenced to permit the final determination of Sam's claim. The fact that the determination of Sam's claim would require further proceedings was anticipated by Anthony and Nunzio in the Probate and Executor Proceedings.
4. It does not seem to me that substantive determination of the merits of Sam's claim is an issue that arises for determination on the pleadings in the Probate and Executor Proceedings. While the fact that Sam makes the claim is advanced as the basis of Anthony's and Nunzio's argument that Sam is in a position of conflict, they do not seek a determination of the merits of the claim. Nor is it apparent to me that either Sam's defence, or his counterclaim, raise that issue for determination.
5. Unlike the position before Vaughan J in Ex parte Gates,[24] Sam has supported his application with an affidavit in which he deposes to the evidentiary basis of his claim. He also put evidence before Seaward J as part of the Caveat Extension Proceedings.
6. In these circumstances, it does not appear to me that it would be either frivolous or vexatious, or an abuse of process, for Sam to file the writ. Indeed, given that extension of the caveat, it seems appropriate to me that he filed the writ. I will give leave for him to do so.

The other relief sought is these proceedings is not appropriate

1. Although I will make an order for costs, I am not inclined to make any of the other orders sought by the originating motion.
2. The originating motion seeks an order that Sam have leave to file his statement of claim. It is not apparent to me that the filing of the statement of claim was refused or, in any event, requires leave (once the writ is filed). I therefore do not consider it necessary, or appropriate, for me to make that order.
3. The originating motion also seeks an order dispensing with service. These proceedings have been commenced ex parte and do not name a defendant. It is therefore unclear to me who Sam proposes to serve the originating motion on or why service would be necessary.
4. Further, the originating motion seeks a stay of the Probate and Executor Proceedings. An ex parte application for leave to file the writ is not the appropriate occasion for such an application to be determined. If that application is to be made, it should be made on an inter partes basis either in the new proceedings, or in the Probate and Executor Proceedings.
5. In relation to costs, I consider that the appropriate costs order is that the costs of these proceedings be in the cause of the new proceedings that will be commenced by the filing of the writ. Given that Sam is self-represented, any costs would presumably be limited to any filing fees he has incurred.

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

[1] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23] (Allen) and Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [20] (Ex parte Gates).

[2] Allen [23] and Ex parte Gates [20].

[4] Papotto v Papotto (deceased) [2025] WASC 288 (Caveat Extension Judgment).

[7] Caveat Extension Judgment [2], [8].

[11] Caveat Extension Judgment [27] - [30].

[16] Caveat Extension Judgment [34] - [35].

[17] Caveat Extension Judgment [34] - [35].

[18] Caveat Extension Judgment [41] - [42], [44].

[19] Statement of Claim [14] - [16].

[20] Statement of Claim [18], [20].

[21] Statement of Claim [17], [19].