BURKE v PUBLIC TRUSTEE FOR THE STATE OF SOUTH AUSTRALIA (1 July 2022)

BURKE v PUBLIC TRUSTEE FOR THE STATE OF

SOUTH AUSTRALIA [2022] SASCA 64 (1 July

2022)

Last Updated: 12 July 2022

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory

provisions prohibiting publication that may apply to this judgment. The onus remains on any

person using material in the judgment to ensure that the intended use of that material does

not breach any such order or provision. Further enquiries may be directed to the Registry of

the Court in which it was generated.

BURKE v PUBLIC TRUSTEE FOR THE STATE OF SOUTH AUSTRALIA

[2022] SASCA 64

Judgment of the Court of Appeal

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice

Stanley)

1 July 2022

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF

APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS -

GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS -

JOINDER OF CAUSES OF ACTION AND OF PARTIES

EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CREATED BY WILL -

OTHER MATTERS

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY

DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF

CONSTRUCTION - WHERE UNCERTAINTY - AS TO PERSON OR OBJECT

EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND

LIABILITIES OF TRUSTEES - GENERAL MATTERS - CONFLICT OF INTEREST

Lady Edith Badger OAM died at the age of 100, a widow with no children or grandchildren.

She left a will dated 16 July 2012 (the 2012 will), which by clause 1 appointed Mr Richard

Burke as her sole executor and trustee and gave the whole of her estate to him to “distribute

the same as he shall know to be in accordance with my wishes”.

A month later, Mr Burke also passed away, without having obtained a grant of probate in her

estate. He was survived by Mrs Carolyn Burke, his wife and the sole executor and beneficiary

of his estate. But Mrs Burke did not obtain a grant of probate in either estate; upon her

request, the Public Trustee obtained a grant of letters of administration with the will annexed

in the estate of each.

In administering Lady Badger’s estate, an issue of construction of the 2012 will arose. That

issue was whether, by clause 1, Lady Badger had given her estate to Mr Burke beneficially or as

the trustee of a half secret trust. On 23 July 2020, the Public Trustee made an application for

judicial advice and directions under s 69 of the Administration and Probate Act 1919 (SA)

(the Act) as to the proper distribution of Lady Badger’s estate. On 17 August 2020, the

primary judge heard that application and reserved her decision.

On 12 November 2020, Mrs Burke made an application to be joined as a party to the Public

Trustee’s application, asserting an interest in the estate and seeking to put an alternative

construction of clause 1 to the effect that Mr Burke had been left the whole of the Lady

Badger’s estate beneficially and, as the sole beneficiary of his estate, she was therefore entitled

to it.

On 25 February 2021, the primary judge refused Mrs Burke’s application for joinder and

determined that, on the proper construction of the 2012 will, Mr Burke had been given Lady

Badger’s estate as trustee of a half secret trust. The objects of the trust were those set out in a

letter of Lady Badger’s wishes dated 15 August 2008 (the 2008 letter of wishes); neither Mr

Burke nor Mrs Burke were included in that letter, and so stood to receive nothing upon

distribution of the estate. The primary judge gave advice and directions that the Public Trustee

would be justified in distributing Lady Badger’s estate on that basis.

Mrs Burke now appeals against the decision to refuse her application for joinder. She does so

on various grounds which may be summarised as involving: (i) complaints about the Public

Trustee’s role, and in particular that she was acting in a position of conflict; (ii) complaints

relating to Mrs Burke’s asserted interest in Lady Badger’s estate, and in particular the primary

judge’s rejection of her contentions as to the proper construction of the 2012 will, and as to the

various bases upon she asserted an interest in the estate, as unarguable; and (iii) procedural

complaints to the effect that the primary judge erred in declining Mrs Burke access to further

documents or information, or to be heard further in relation to matters relevant to complaints

(i) and (ii).

Mrs Burke also applied to adduce further evidence on the appeal in the form of an email sent

to Mrs Burke shortly after the death of Lady Badger.

Held, per Doyle JA (Stanley AJA agreeing), dismissing the appeal:

1. Even taking the evidence at its highest from the perspective of Mrs Burke, it was not

capable of establishing any legal relationship between Mrs Burke and the Public Trustee

that precluded the Public Trustee from bringing the application for advice and

directions, or otherwise gave rise to any duty or obligation owed by the Public Trustee to

Mrs Burke.

2. The Public Trustee’s application was for advice and directions under s 69 of the

Administration and Probate Act 1919 (SA). While there is authority to support a

supplementary jurisdiction under that section to make binding determinations, neither

the parties nor the primary judge sought to invoke that jurisdiction. The appeal should

be approached upon the basis that the application was approached below, namely that it

was necessary for Mrs Burke to establish an arguable basis for an interest in the estate of

Lady Badger in order for her to be joined or otherwise have any further right to be heard

on the application for directions. Even if it might have been preferable had the parties

sought to convert the application into an inter partes hearing that would be binding

upon the parties (and anyone else joined), that did not occur.

3. Mrs Burke did not establish an arguable interest in the estate of Lady Badger. In her

2012 will, Lady Badger left her estate on a half secret trust to Mr Burke. The evidence did

not establish any arguable basis for Mrs Burke’s contention that she or Mr Burke were

beneficiaries under that half secret trust.

4. Mrs Burke has not made out a basis for the receipt on appeal of the further evidence

sought to be relied upon.

5. On the material before the Court, Mrs Burke was given an adequate opportunity to

prepare and present her case as to the Public Trustee’s alleged conflict of interest, and as

to the existence of an arguable interest that might require joinder. Mrs Burke’s

complaint that she was not afforded procedural fairness by the primary judge must be

rejected.

Held, per Livesey P (dissenting), allowing the appeal:

1. The exercise of discretion to refuse joinder was vitiated by two errors. The first was that

the test for standing was conflated with the test for joinder. Mrs Burke had standing

because if her contentions were upheld she was entitled to the estate. She should have

been heard on the application for advice or direction.

2. The second error was that the court gave ex parte advice in circumstances where the

nature of the case required that Mrs Burke not only be heard but joined to facilitate a

binding determination of contested issues of fact and law raised by the application for

advice and Mrs Burke’s contentions. The risk of a multiplicity of proceedings could and

should have been avoided.

3. Issues such as whether Mrs Burke could prove that Lady Badger had expressed an

intention, or a changed intention, in favour of Mr Burke in 2016, and whether that

established a half-secret trust in favour of Mr Burke and ultimately Mrs Burke, were not

unarguable and were appropriate for final determination.

4. Having regard to the breadth of the jurisdiction available to the court under ss 69(4) and

69(6) of the Act, the contested issues of fact and law raised by the Public Trustee and

Mrs Burke should have been made the subject of a binding determination.

5. Observations made regarding three categories of case under s 69 of the Act and when

parties should be heard on an application or joined to facilitate determinations of fact or

law inter partes.

Administration and Probate Act 1891 (SA) ss 91, 99; Administration and Probate Act 1919

(SA) ss 69, 72B; Civil Procedure Rules 1998 UK pt 64; Corporations Act 2001 (Cth) ss 479(3),

600K, sch 2; Corporations Law (Cth) s 479(3); Judicial Trustees Act 1896 UK (59 & 60 Vict, c

35) s 3; Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35) s 30; Law of

property Amendment Act 1860 (UK) (23 & 24 Vict) c 38) s 9; Legal Practitioners Act 1981

(SA) ss 44, 47; Property Act 1860 (SA) s 25; Public Trustee Act 1880 (SA) ss 28, 29; Public

Trustee Act 1995 (SA) s 9; Rules of the Supreme Court 1883 (UK) ord 55 r 3; Rules of the

Supreme Court 1965 (UK) ord 85 r 2; Supreme Court (General Civil Procedure) Rules 2005

(Vic) rr 54.02, 54.04; Supreme Court Act 1935 (SA) ss 27, 40, 49; Supreme Court Act 1970

(NSW) ss 22, 23; Supreme Court Civil Rules 2006 (SA) r 74(1); Supreme Court Rules 1893

(SA) ord 73; Supreme Court Rules 1947 (SA) ord 55; Supreme Court Rules 1987 (SA) rr 63.04,

103; Supreme Court Rules 2006 (SA) r 206; Trustee Act 1893 (SA) ss 22, 78; Trustee Act 1893

(UK) (56 & 57 Vict, c 53) s 51; Trustee Act 1925 (ACT) s 63; Trustee Act 1925 (NSW) s 63;

Trustee Act 1936 (SA) ss 29,25, 56, 91; Trustee Act 1962 (WA) ss 92, 95; Trusts Act 1973 (Qld)

ss 96, 97; Uniform Civil Rules 2020 (SA) rr 22.1, 214.6, 218.17, 232.2, referred to.

Adair v Shaw (1803) 1 Sch & Lef 243; Adsett v Berlouis [1992] FCA 368; (1992) 37 FCR 201;

Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; Assistant Commissioner Michael

James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38; Australian

Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Beck v Henley

[2014] NSWCA 201; Bective v Federal Commissioner of Taxation [1932] HCA 22; (1932) 47

CLR 417; Blackwell v Blackwell [1929] AC 318; Blue Sky Private Equity Ltd v Crawford Giles

Pty Ltd [2012] SASC 28; Brown v Willoughby [2012] WASC 20; Bull v The Queen (2000) 201

CLR 443; Caldwell v Public Trustee (1983) 33 SASR 246; CDJ v VAJ (No 1) (1998) 197 CLR

172; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Collex Waste

Management Services Pty Ltd v The Corporation of the City of Enfield (No 2) [2000] SASC

140; Commonwealth v Construction, Forestry, Mining & Energy Union [2000] FCA 453;

(2000) 171 ALR 379; Countess of Bective v Federal Commissioner of Taxation [1932] HCA

22; (1932) 47 CLR 417; Dixon v White (Supreme Court of NSW, Holland J, 14 April 1982) ;

Duggan v White [2018] NSWSC 364; Equity Trustees Wealth Services Ltd v Wedge [2021]

SASC 80; Federal Commissioner of Taxation v Thomas [2018] HCA 31; (2018) 264 CLR 382;

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; Fortress

Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar

Administration Pty Ltd (in liq) [2015] NSWCA 85; (2015) 89 NSWLR 110; Gardiner v Hughes

(2017) 54 VR 394; Gardiner v Hughes [2017] VSCA 167; Gray v Guardian Trust Australia Ltd

[2003] NSWSC 704; Guest v Webb [1965] VicRp 59; [1965] VR 427; Hall v Carney (No 3)

[2021] SASCA 37; His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian

Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community

Church St Petka Inc [2007] NSWCA 150; Hughes v National Trustees, Executors and Agency

Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; In re McBride [2019] SASC 204; In

the Estate of Badger (deceased) [2021] SASC 25; In the Estate of Hunter [1957] SASR 194; In

the Estate of Martin [1958] SASR 365; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59

SASR 432; Kipping v Ash [1845] EngR 1034; (1845) 1 Rob Ecc 270; Kirsten v Miller [2020]

SASCFC 129; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532; Letten v

Templeton [2014] FCAFC 131; Lottwo Pty Ltd v Tudo [2012] SASC 172; Macedonian

Orthodox Community Church St Petka Inc v Diocesan Bishop of Macedonian Orthodox

Church of Australia and New Zealand [2006] NSWCA 160; (2006) 66 NSWLR 112;

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan

Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42;

(2008) 237 CLR 66; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1990]

UKPC 44; [1991] 3 All ER 198; Martin v Hayward [1908] SALawRp 20; [1908] SALR 187;

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; Morice v Bishop of Durham

[1805] EngR 97; (1805) 10 Ves Jr 522; Ocsalt Pty Ltd v Minister for Mineral Resources &

Energy [2012] SASC 67; OneSteel Manufacturing Pty Ltd v Environment Protection

Authority [2005] SASC 216; (2005) 92 SASR 67; Ong v Lottwo Pty Ltd (2013) 116 SASR 280;

Ottoway v Norman [1972] 2 Ch 698; Owners of Ship "Shin Kobe Maru" v Empire Shipping

Co Inc (1994) 181 CLR 404; Pitt v Environment Resources and Development Court (1995) 66

SASR 274; PJ Nash Pty Ltd v Food and Beverage Australia Limited [2021] SASCA 86; Public

Trustee v Gecker (Supreme Court of NSW, Holland J, 14 April 1982); Public Trustee v

O’Donnell [2008] SASC 181; (2008) 101 SASR 228; Randall v Randall [2016] EWCA Civ 494;

Rawstron v Freud [2014] EWHC 2577 (Ch); Re Australian Motors SA Pty Ltd Staff

Superannuation Fund [2010] SASC 62; Re Beckbessinger [1993] 2 NZLR 362; Re Beddoe;

Downes v Cottam [1892] UKLawRpCh 180; [1893] 1 Ch 547; Re Brown; Ward v Lawler

[1944] Ir R 90; Re Cockell [2016] NSWSC 349; Re Cooper [1939] 1 Ch 811; Re Culina [2004]

NSWSC 504; Re Devoy [1943] St R Qd 137; Re Duncan [1939] VicLawRp 36; [1939] VLR 355;

Re Earl of Radnor’s Will Trusts [1890] UKLawRpCh 129; (1890) 45 ChD 402; Re Egan [1963]

VicRp 46; [1963] VR 318; Re Fleetwood; Sidgreaves v Brewer [1880] UKLawRpCh 130;

(1880) 15 Ch D 594; Re Furness (deceased); Wilson v Kenmare [1943] Ch 415; Re GB Nathan

& Co Pty Ltd (in liq) (1991) 24 NSWLR 674; Re Gillard [1949] VicLawRp 22; [1949] VLR 378;

Re Grose [1949] SAStRp 1; [1949] SASR 55; Re Heyward [2010] SASC 247; Re IOOF

Australia Trustees and the Trustee Act 1936 [1999] SASC 461; Re IOOF Australia Trustees

Ltd and the Australian Tourist Property Trust [1999] 75 SASR 290; Re Jackson [1944]

SAStRp 17; [1944] SASR 82; Re Keen; Evershed v Griffiths [1937] Ch 236; Re Kouvakas

[2014] NSWSC 786; Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005]

NSWSC 558; (2005) 63 NSWLR 441; Re MacGillivray [1946] 2 All ER 302; Re Magarey

Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99 SASR 40; Re Magarey Farlam

Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR 323; Re Magarey Farlam

Lawyers Trust Accounts (No 3) [2007] SASC 9; (2007) 96 SASR 337; Re Markham;

Markham v Markham (1880) 16 Ch 1; Re Muggeridge’s Trusts (1860) 70 ER 569; Re Paulin

[1950] VR 462; Re Pegasus Securities Ltd [1999] SASC 306; (1999) 74 SASR 396; Re Rees;

Williams v Hopkins [1950] Ch 204; Re Ruxton [1946] VicLawRp 8; [1946] VLR 334; Re

Seymour [1934] VicLawRp 2; [1934] VLR 136; Re Tulley; Mackay v Jackson [1918]

ArgusLawRp 80; [1918] VLR 556; Re Watson; Raitman v Ivey [2017] VSC 322; Return to

Work Corporation of South Australia v BI (Contracting) Pty Ltd [2022] SASCA 49; Roland v

Morgan (1848) 13 Jur 23; Russell v Russell (1976) 134 CLR 495; Salmi v Sinivuori [2008]

QSC 321; Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11; Tschirn v Australian Executor

Trustees Ltd [2016] SASC 149; Smith v Smith (1861) 1 Drew & Sm 384; Sudgen v Lord St

Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154; Tobin v Ezekiel [2012] NSWCA 285;

(2011) 83 NSWLR 757; Underwood v Hatton [1842] EngR 371; (1842) 5 Beav 36; Van Wyk v

Albon [2011] VSC 120; Voges v Monaghan [1954] HCA 63; (1954) 94 CLR 231; Walton v The

Queen [1989] HCA 9; (1989) 166 CLR 283; Weiss v The Queen [2005] HCA 81; (2005) 224

CLR 300; Woodward v Goulstone [1886] UKLawRpAC 37; (1886) 11 App Cas 469; Yule v

Irwin (No 2) [2016] SASC 178, considered.

LIVESEY P:

Introduction

1. On 24 July 2020, the Public Trustee for the State of South Australia (the Public

Trustee) applied for “advice or direction” concerning the estate of Lady Edith Maud

Badger OAM (Lady Badger) who died on 24 November 2016 aged 100.

2. The application was made pursuant to s 69(1) of the Administration and Probate Act

1919 (SA) (the Administration and Probate Act) and heard ex parte on 17 August

2020. The Public Trustee was in “difficulty or doubt” regarding the construction of Lady

Badger’s last will (the 2012 will) and in consequence, regarding the distribution of her

estate. Mr Richard Burke (Mr Burke) prepared the 2012 will and is described in it as

Lady Badger’s friend. He died on 29 December 2016.

3. Mr Burke’s widow is the appellant, Mrs Carolyn Burke (Mrs Burke). She gave evidence

in August 2020 at the request of the Public Trustee, but she was not then legally

[1]

represented.

4. After the primary judge reserved her decision, on 12 November 2020 Mrs Burke applied

to be joined. A written application was not made until 22 February 2021, supported by

an affidavit affirmed by Mrs Burke on 11 December 2020. Mrs Burke wished to put an

alternative construction regarding the 2012 will and she asserted that she had an interest

in Lady Badger’s estate. Mrs Burke contended that she should be joined so as to permit

her to adduce evidence and to make full submissions regarding the construction of the

[2]

2012 will and the distribution of the estate.

5. On 25 February 2021, Mrs Burke’s joinder application was heard, with the benefit of

affidavit evidence from Mrs Burke’s solicitor, which exhibited documents and recited

certain of Mrs Burke’s instructions. Mrs Burke’s case was ultimately that, during 2016,

Lady Badger learned that Mr Burke was gravely ill and so she decided to leave her estate

to Mr Burke. Mrs Burke said that this was conveyed by Lady Badger to Mr Burke, and

she relied on a conversation she had with Mr Burke about this before his death in

December 2016, and a note made by an officer of the Public Trustee, Mr Keith

Sinkinson, to whom Mrs Burke spoke about that conversation in the first half of 2017

[3]

(the Sinkinson note).

6. The primary judge was, understandably, troubled that this case was not made clear until

[4]

the eve of the hearing in February 2021, and Mrs Burke’s counsel declined an

adjournment so that further evidence could be filed.

7. At the conclusion to the 25 February 2021 joinder hearing the primary judge ruled that,

on the proper construction of the 2012 will, Lady Badger’s estate was given to Mr Burke

as the trustee of a half-secret trust because clause 1 of the 2012 will disclosed the

existence of a trust but not the beneficial objects of that trust.

8. The primary judge dismissed Mrs Burke’s application for joinder, finding she had no

interest in the proper construction of the 2012 will, nor the application for advice or

[5]

direction more generally. Reasons were published on 12 March 2021.

9. Mrs Burke now appeals against the refusal to order joinder, raising a number of appeal

grounds, most of which it is not necessary to address.

10. As will be seen, this appeal can be determined by reference to a handful of the contested

questions of fact and law raised on the Public Trustee’s ex parte application for advice or

direction and Mrs Burke’s joinder application, and by having regard to the breadth of the

power provided to the court by s 69 of the Administration and Probate Act and under

the rules of court to enable a binding determination to be made inter partes.

11. For the reasons that follow, joinder should have been permitted to enable contested

questions of fact and law to be determined at a trial in a way that bound the Public

Trustee, Mrs Burke and any other interested parties, and which ensured that the

distribution of the estate would not face the risk of further litigation. Notwithstanding

the unsatisfactory way in which these issues were addressed by the protagonists before

the primary judge, the appeal should be allowed.

12. These reasons are set out as follows:

The application for advice or direction concerning the 2012 will

13. The Public Trustee sought advice or direction regarding Lady Badger’s 2012 will, which

is in the following terms:

THIS IS THE LAST WILL AND TESTAMENT of me EDITH MAUD BADGER of Apartment

[...] L’Estrange Street Glenside in the State of South Australia Widow AND I REVOKE all my

former testamentary dispositions.

1. I APPOINT my friend RICHARD DAVID BURKE Estates Manager of [...] Stirling South

Australia my sole executor and trustee and I GIVE the whole of my estate to him that he

shall distribute the same as he shall know to be in accordance with my wishes.

2. I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty

or tax payable in consequence of my death from the my estate, with no subsequent

apportionment between any beneficiaries.

3. I EMPOWER my trustee:

(a) TO SELL, postpone sale, borrow with or without security, lease, accept

surrenders of leases, repair, manage, exchange, appropriate in specie, partition or

otherwise deal with respect to any part of my estate, for such purpose, at such time

or times, on such terms and conditions, and with such determination of value, as

my trustee thinks fit.

(b) TO RETAIN any investments held by me at my death AND TO INVEST any

part of my estate requiring investment in such existing or future forms of

investment and whether a wasting, hazardous or reversionary nature or not, as my

trustee from time to time thinks fit, with power to vary or transpose the same.

4. I DIRECT that my remains be cremated and I EXPRESS THE WISH that my ashes and

those my late husband, Geoffrey Malcolm Badger be scattered in the valleys and over the

cliffs of the Na Pali Coast off the Island of Kauai in the State of Hawaii.

14. The Public Trustee was concerned about the proper construction of clause 1, as well as

the manner in which the estate should be distributed.

15. As is common on an originating application seeking advice or direction from the court

pursuant to s 69 of the Administration and Probate Act, the Public Trustee proceeded ex

parte. She relied on various affidavits which laid out for the benefit of the court the

results of investigations she or her officers and solicitors had made, including inquiries

made with Mrs Burke as part of an extensive search for relevant documents. Various of

the persons with an apparent interest in the estate were served with the proceedings,

including Mrs Burke. She was invited to obtain legal advice if she wished to make

submissions regarding the construction of the will, but she declined that opportunity,

[6]

telling the primary judge that she would leave “things in your hands”.

16. Mrs Burke gave evidence, explaining the limits of her understanding regarding the

source and location of various documents held by her husband, as well as why she

should travel to Hawaii to scatter the ashes of Lady Badger and those of her late

husband, Sir Geoffrey Malcolm Badger (Sir Geoffrey).

17. The Public Trustee, through her senior counsel, outlined two possible approaches to the

question of construction presented for advice. The first was that the 2008 letter of

expression of wishes applied to the 2012 will and the second was that there was no

expression of wishes referable to the 2012 will, in which case the trust failed and the

trustee held the property for those entitled to the residue or the next of kin on intestacy.

As there was no residuary clause, and as the Public Trustee had not yet located any

relatives of Lady Badger in the United Kingdom, the likelihood was that the estate would

revert to the Crown.

18. Given the modest size of the estate, less than $600,000, it was submitted that Public

Trustee could address both arguments, leaving it for the court to determine the question

of construction. Alternatively, a solicitor could be retained to appoint counsel to present

arguments as contradictor on behalf of the next of kin as a class. Ultimately the

[7]

application for advice or direction proceeded without a contradictor.

19. The evidence placed before the court by the Public Trustee showed that Mr Burke, who

[8]

had been employed by the law firm Finlaysons as a manager in wills and estates, had

been assisting Lady Badger for some years. His assistance included facilitating the

preparation of wills, powers of attorney and letters of expression of wishes for Lady

Badger, together with managing her money market account, paying accounts and

providing or arranging what were described in the evidence as “comforts” for Lady

[9]

Badger. These “comforts” appeared to comprise monies incurred from time to time by

Lady Badger. Mr Burke’s assistance became particularly important after Lady Badger

developed macular degeneration and had trouble with reading.

20. The evidence demonstrated that Mr Burke, on instructions from Lady Badger, had

drawn a 2007 will together with a letter of expression of wishes and, later in 2008, he

[10]

drew a revised letter of expression of wishes for Lady Badger.

expression of wishes was in the following terms:

The 2008 letter of

THE EXECUTORS OF THE WILL

of the estate of

LADY EDITH MAUD BADGER DECEASED

LETTER OF EXPRESSION OF WISHES

For the help and guidance of my executors and trustees, I have enumerated below the actions I

request my executors and trustees take during the administration of the trusts of my will dated

rd

the 23 day of April 2007.

The purpose of my request is not to fetter the discretion given to my executors and trustees

but afford them guidance in the way I wish them to exercise their discretion.

Gifts of My Estate

1. RELEASE my wearing apparel to Mrs Faye Willis if she survives me but if she dies

before me, then my wearing apparel is to be released and distributed to THE SMITH

FAMILY, a charitable organisation.

2. PROVIDE for the following:

2.1 set aside a Fund, the income from which will provide an annual scholarship of $5,000 to a

student of the Chemistry Department of the University of Adelaide (School of Organic

Chemistry) for a period of up to 10 years from my death to be called the “Sir Geoffrey

Malcolm Badger Memorial Scholarship Gift”.

2.2 set aside an amount no greater than $400,000 to provide for the cost of a dwelling house,

apartment or, flat for DEBRA ANN WOODS and, of her choosing allowing her absolute

independence and security for the remainder of her lifetime.

2.3 pay $50,000 for DAVID CHRISTOPHER JOHN WOODS.

2.4 pay $50,000 for JAMES RUPERT EDWARD WOODS.

2.5 pay $30,000 for SUE GIACOBBE to be used as a deposit on a house, apartment or, flat of

her choosing.

2.6 pay $10,000 for KEVIN JOHN WOODS.

2.7 pay $10,000 for NARISSA SCHUSTER.

3. PAY AND TRANSFER the residue of my estate as follows –

3.1 $5,000 for QUEEN ADELAIDE CLUB; and

3.2 such other organisations and charitable institutions in such amounts and shares as my

executors and trustees in their absolute discretion think fit and whether income or capital or

both, including, but not limited to, the following:

• THE QUEEN ELIZABETH HOSPITAL RESEARCH FOUNDATION;

• MUSCULAR DYSTROPHY ASSOCIATION INC.;

• MACULAR DEGENERATION FOUNDATION;

• ST. PETER’S CATHEDRAL MUSIC FOUNDATION INC.;

• THE CANCER COUNCIL SOUTH AUSTRALIA;

• THE ART GALLERY OF SOUTH AUSTRALIA;

• THE SPINA BIFIDA & HYDROCEPHALUS ASSOCIATION OF SOUTH AUSTRALIA

INCORPORATED;

• MATER CHILDREN’S HOSPITAL;

• PHOENIX SOCIETY INC.;

• AUSTRALIAN RED CROSS;

• THE AUSTRALIAN BALLET SCHOOL;

• AUSTRALIAN KIDNEY FOUNDATION;

• ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA);

• BARNARDOS AUSTRALIA;

• BLIND WELFARE ASSOCIATION OF SA INCORPORATED;

• COMPASSION AUSTRALIA;

• ANGLICARE SA;

• MEDICINS SANS FRONTIERES;

• ANIMAL WELFARE LEAGUE OF SOUTH AUSTRALIA;

• ALZHEIMER’S AUSTRALIA SA;

• R D N S FOUNDATION;

• ONCOLOGY CHILDREN’S FOUNDATION;

• ENFIELD COMMUNITY FOOD CENTRE;

• ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA;

• ASTHMA FOUNDATION SA;

• THE EPILEPSY CENTRE;

• ADELAIDE BOTANIC GARDENS;

• STATE THEATRE COMPANY OF SOUTH AUSTRALIA; and

• THE MULTIPLE SCLEROSIS SOCIETY OF SA & NT.

without any obligation to ensure equality amongst those organisations, institutions and

charities to which payments are made.

I DECLARE the receipt of the secretary or other authorised officer for the time being for each

organisation, institution and charity nominated by my trustees for its respective benefit shall

be a sufficient discharge to my trustees who shall not be bound to see to the application of

such gifts.

In my desire for privacy it is my express request that my executors and trustees ensure the

contents of this my letter of expression of wishes remains confidential at all times.

DATED the day of 2008.

EDITH MAUD BADGER

21. The primary judge found that the 2007 will was very similar to the 2012 will, and that

clause 2 of the 2007 will was identical in effect to clause 1 of the 2012 will, save that the

2007 will referred to both Mr Tarca (a solicitor at Finlaysons) and Mr Burke as executors

[11]

and trustees, whereas the 2012 will referred only to Mr Burke as executor and trustee.

22. The letters of expression of wishes demonstrated that Lady Badger desired privacy. Both

the 2007 and 2008 letters contained the express request that Lady Badger’s executors

and trustees must “ensure the contents of this my letter of expression of wishes remains

[12]

confidential at all times”.

23. This case raises what is described in the authorities as “a half-secret trust”: that is, the

fact of the trust is disclosed in the will but the beneficial objects are not disclosed in the

[13]

will and are, instead, separately disclosed to the trustee.

The primary judge found

that clause 2 of the 2007 will and clause 1 of the 2012 will each created half-secret trusts.

In this case, the 2007 and 2008 letters of expression of wishes each referred to the 2007

[14]

will.

By these letters the disclosures of Lady Badger’s beneficial objects were made to

Mr Tarca and Mr Burke, as executors and trustees under the 2007 will.

24. The evidence before the court showed that on 16 July 2012 Lady Badger collected the

contents of her Finlaysons deed packet containing the 2007 will and the unsigned 2008

letter of expression of wishes. On the same day, she made the 2012 will, revoked an

enduring power of attorney given in 2001 to Mr Tarca and Mr Burke, and executed a

[15]

new deed of enduring power of attorney appointing Mr Burke as sole donee.

made a “Memorial Arrangements” document.

She also

25. The dilemma confronting the Public Trustee was that, though the evidence disclosed a

2008 letter of expression of wishes that referred to the 2007 will, there was no evidence

of a later letter of expression of wishes that referred to the 2012 will.

26. Accordingly, if the 2008 letter of expression of wishes was not referable to the 2012 will,

and if what Lady Badger intended under the 2012 will is not known because Mr Burke

had since died and made no lasting record of her wishes, there is no “certainty of object”

and the half-secret trust failed, with the trustee holding the property for those entitled to

[16]

the residue or the next of kin on intestacy.

residuary clause.

In this case, the 2012 will contained no

27. Ultimately the primary judge made the factual finding that the 2008 letter of expression

of wishes applied to the 2012 will, even though it made no reference to the 2012 will and

only referred to the 2007 will. I will return to that finding.

28. On this basis the primary judge gave advice or direction to the Public Trustee that she

was “justified in distributing [Lady Badger’s] estate as proposed in her originating

[17]

application”, which accorded with the unsigned 2008 letter of expression of wishes.

The primary judge sought further submissions regarding the scattering of the ashes of

[18]

Lady Badger and Sir Geoffrey.

The determination of the application for joinder by the primary judge

29. After the judge had reserved her decision on the s 69 application, senior counsel for Mrs

Burke appeared on 12 November 2020, foreshadowing an application that Mrs Burke be

[19]

“joined as a respondent” on the basis that she had a “proper interest”.

It was

submitted that it was necessary to put a third approach to the 2012 will, being that Mr

[20]

Richard Burke should receive the entirety of the estate of Lady Badger.

described by counsel for the Public Trustee as a “change of position”.

This was

[21]

30. Whilst it may be that Mrs Burke simply wished to be heard on the s 69 application,

rather than joined as a party to it, both sides proceeded on the basis that she could be

joined to the s 69 application provided she had demonstrated a reasonably arguable

[22]

interest.

31. Indeed, Mrs Burke made it clear that she sought joinder so that she could “fully put” her

evidence and submissions, so that the issues, including the question of construction,

[23]

could then “be determined” by the court.

Whilst the Public Trustee opposed joinder,

pointing to Mrs Burke’s delay in articulating her case and the inadequate evidence

offered in support of it, the alternative submission was that there should be joinder and

the matter adjourned, with Mrs Burke directed to file her affidavit regarding “the secret

wishes” and her counsel directed to make his argument on “legal construction” so that

the matter could be dealt with “relatively promptly within the space of a couple of

[24]

hours”.

32. At the conclusion to the 25 February 2021 hearing the primary judge announced her

decision, refusing joinder.

33. There were, essentially, three limbs to the reasoning of the primary judge for refusing

[25]

joinder.

First, the judge found that the 2012 will created a valid

half-secret trust of which Mr Burke was the trustee. That was a finding made about the

[26]

proper construction of the 2012 will.

The reasons show that that finding was made

with the benefit of, and by rejecting, various of the contentions made by counsel for Mrs

Burke in support of joinder, a number of which were repeated or recast in this Court. It

was a finding that probably entailed the assumption that, at the time of the 2012 will,

there had been some form of expression of wishes to Mr Burke. Were it otherwise, the

half-secret trust may not have come into existence.

34. Secondly, the court found that Lady Badger had never disclosed any wishes regarding

the disposition of her estate to Mr Burke after the 2008 letter of expression of wishes,

particularly, at or from the time of the making of the 2012 will until her death in

[27]

November 2016.

Given the ultimate finding, that there was a valid half-secret trust to

which the 2008 letter of expression of wishes applied, this finding should probably be

understood as accommodating some form of disclosure before or at the time of the

making of the 2012 will.

35. In arriving at this finding, the primary judge made a number of subsidiary findings,

essentially findings of fact. These were that Mrs Burke’s evidence about Lady Badger’s

oral wishes, as revealed in the Sinkinson note prepared in 2017 and found in the Public

[28]

Trustee’s file, was “untenable” and “not reasonably arguable”.

This finding was

supported by the further finding that, because Lady Badger “engaged in prudent will-

making”, it was both “unlikely” and “against the weight of the evidence” that Lady

[29]

Badger conveyed any wishes to Mr Burke orally,

because if she had done so Mr Burke

[30]

would have kept a record and no record has been found.

36. In fact, no document at all has been found explicitly addressing the expression of Lady

Badger’s wishes concerning the 2012 will. For example, there is no note confirming that

her wishes in 2012 remained as they were in 2008. That seems very unusual. One might

well have expected some form of note or letter from a prudent will-maker such as Lady

Badger and from a competent, prudent estates manager such as Mr Burke. Indeed, there

may have been a note or another letter in 2012 but it has now been lost. The possible

explanations for this state of the evidence may be bound up in Lady Badger’s advanced

age and macular degeneration, Mr Burke’s departure from full-time work at Finlaysons,

and later, the way in which documents held in Lady Badger’s accommodation were

removed and the course of Mr Burke’s serious illness during 2016.

37. The primary judge found that, if after Lady Badger learned of Mr Burke’s illness she had

said she wished to leave her estate to him, a “prudent, ethical estates manager in the

position of Mr Burke” would have referred Lady Badger for “independent legal advice

[31]

and will preparation” but there was no evidence of any referral.

38. Thirdly, the primary judge found that in the absence of any evidence of written wishes

concerning the 2012 will, the unsigned copy of the 2008 letter of expression of wishes,

which did not relevantly include Mr or Mrs Burke as beneficiaries, contained the wishes

that Lady Badger intended would apply to her 2012 will and these had not been replaced

[32]

by any subsequent wishes, particularly any oral wishes disclosed to Mr Burke:

The assertion of the purported expression of wish [in the Sinkinson note of 2017] is untenable

and the matters deposed to in Mr Abbott’s affidavit of 22 February 2021 [regarding Mrs

Burke’s instructions] are not reasonably arguable to justify an order for joinder of Mrs Burke

to the Public Trustee’s application. Mrs Burke has no interest in making submissions in

relation to the half secret trust or its beneficial objects. If the half secret trust fails, [Lady

Badger’s] estate does not go to Mrs Burke but on an intestacy.

...

Having considered the evidence before the Court, I am satisfied that when [Lady Badger]

made the 2012 will her wishes were the same as those recorded in the 2008 [letter of

expression of wishes] signed by her. There is no tenable evidence before the Court to suggest

those wishes were later replaced by [Lady Badger].

I am satisfied that the half secret trust in the 2012 will is not void for uncertainty and the

objects of the gift in it are defined in the 2008 [letter of expression of wishes].

Mrs Burke has no interest in making submissions regarding the identities of the beneficial

objects of the half secret trust as she has no interest in [Lady Badger’s] estate. The only

evidence of a gift to Mr Burke and/or to Mrs Burke by [Lady Badger] is in the context of the

Memorial Arrangement document. It is untenable to suggest that Mr Burke or Mrs Burke are

entitled to receive the estate beneficially. Accordingly, Mrs Burke’s application for joinder to

make submissions on whether the trust was a secret or half secret trust question was refused. I

also refuse her application to make submissions regarding the identity of the beneficial objects

of the half secret trust.

39. These conclusions represent an admixture of findings made on the application for advice

or direction, together with findings against giving Mrs Burke an opportunity to make

submissions on that application as well as against joinder generally.

The test for standing and joinder

40. It is at the outset necessary to distinguish between three categories of case under s 69 of

the Administration and Probate Act.

41. The first is where the application for advice or direction proceeds ex parte and effectively

in private. The second category of case is where the court grants leave to a person with

standing, being a sufficient interest to be heard, to make submissions on the application

for advice or direction. Under this category it is not necessary that those with standing

[33]

be formally joined as parties.

The outcome of both categories of case is that judicial

advice is given to a trustee. The advice or direction is not binding, but it secures

protection for the trustee provided full disclosure has been made to the court by the

[34]

trustee, and the trustee acts in accord with the advice or direction given.

42. The third category of case is one where the court determines to rule on questions of fact

or law in a way that is binding. Usually that is done on questions which have been

[35]

framed by the trustee,

but it may arise out of the hearing of an application for advice

or direction, or the way in which interested parties have approached the matters the

subject of the application.

43. It is in the context of a binding determination that the court will consider the proper

form of the proceedings (including whether a new action is required or whether the

[36]

application may simply be recast),

whether it is necessary to notify interested

persons, whether it is necessary to join parties or appoint a contradictor or order

representation by class or category, whether to require points of claim and defence or

move to pleadings, whether to adduce evidence orally or in writing and whether it is

necessary to proceed to a trial. These are simply examples of the kinds of matters that

may be addressed as part of the flexible exercise of the broad jurisdiction available under

s 69 and, if necessary, the rules of court to enable a determination of contested issues of

fact or law to be made inter partes.

44. It is always necessary to keep firmly in mind the category of case before the court so that

what is expected of the court, and whether what is decided is binding, is clearly

understood. This case demonstrates the difficulty and danger associated with a late

application in which the case for the applicant, and the purpose of joinder, has not been

clearly explained or perhaps understood.

45. The need for clarity may become particularly acute where, at times, a hearing may move

between two or more categories of case. For example, an application for advice or

direction under s 69(1) may raise the construction of the trust deed, as well as whether a

trustee is justified in prosecuting or defending litigation. On the first part of the

application, it may be appropriate to hear from those with a sufficient interest, such as

beneficiaries.

46. However the second part of the application is what is often described as a Re Beddoe

[37]

application.

The Re Beddoe procedure provides protection for the trustee who would

[38]

otherwise litigate at the trustee’s own risk on costs.

As Lyons J explained in Salmi v

[39]

Sinivuori,

a Re Beddoe order determines a potential issue between the trustee and

the beneficiaries as to whether the costs of an action should be recoverable by the trustee

as expenses of the trust. There is no decision on the issue of costs as between the trustee

and the other party to the action. A trustee thereby protects the right of indemnity out of

the trust assets in respect of the costs, charges and expenses incurred litigating,

including any costs which the trustee may be ordered to pay to another party in the

[40]

action.

47. The practice usually adopted by the court involves aspects of the Re Beddoe hearing

proceeding in private, for example when considering legal advice and submissions from

or on behalf of the trustee about that advice, but at other times hearing from interested

[41]

parties in open court:

An application for a Re Beddoe order must be made separately from the litigation in which the

trustee is engaged and before a different judge. The applications are usually supported by

advice from a qualified lawyer as to the prospects of success as well as a costs estimate and

evidence as to the value of the estate.

The practice in Australia follows the English procedure which is that whilst the beneficiaries

are served with a claim, neither the beneficiary against whom the trustees propose to litigate,

nor those representing him, would normally be allowed to be present when the merits of the

main action are discussed between the trustee’s counsel and the judge because they might

hear something that they should not, given that it is about the strength or weakness of the

trustee’s case. Whilst the beneficiary and his counsel are allowed into the hearing to address

any arguments they may wish, they must then withdraw while the matter is discussed between

the trustee’s counsel and the judge. The beneficiary’s counsel are then readmitted to be

[42]

informed of the court’s decision.

The basic principles of natural justice mean that material

placed before the judge should be kept to a minimum. In this regard, the respondents to the

current application had the opportunity to put affidavit material before the court.

(footnote omitted)

48. This passage shows how an application under s 69 may move between the first two

categories of case earlier described. One aspect remains private and the subject of advice

from the court to the trustee, whereas those with a proper interest, which usually

includes the beneficiaries, have been served and given notice of the application. That

may lead to an opportunity to be heard and make submissions.

49. If the application remains concerned only with private advice, it is “rare for other parties

to be heard at all before advice is actually given” and it would be “highly exceptional for

the court to permit any other party to adduce evidence or to cross-examine” in the

course of a procedure which is “essentially a request for the court’s private advice”.

[43]

If

the application raises the proper construction of a trust instrument, interested parties

[44]

are often heard,

and they may be permitted to lead relevant evidence even if the

application remains one for advice or direction.

50. It must be emphasised that it is not usually necessary to formally join an interested

[45]

person as a party where the application remains one for advice and direction.

Joinder

is usually only relevant where the court is being invited to make a binding determination

inter partes, especially at the trial of an action.

51. In this case, by asking whether Mrs Burke’s case was “arguable”,

[46]

and describing

various contentions as “untenable”, it is clear that the protagonists and the primary

judge invoked those authorities which are usually applied when considering the joinder

of a party to inter partes litigation, that is, the third category of case earlier outlined.

52. From time to time, the test for joinder to an action has been put as whether the applicant

has shown a tenable, prima facie or arguable case which would warrant joinder to the

[47]

action.

Under the former rules of court, joinder could be ordered where the court was

satisfied that a person had an interest in the subject matter of the action or in a question

[48]

of law or fact involved in the action.

The nature and strength of the proposed case, as

well as the effect of joinder on the efficient and effective resolution of the litigation, are

[49]

relevant considerations.

An important consideration in the exercise of discretion

[50]

regarding joinder is that a multiplicity of proceedings is to be avoided.

53. However in the probate jurisdiction, whether a person should be heard has been put in

terms of whether the applicant has standing, which in turn is determined by whether the

[51]

person has a “sufficient interest” in the proceeding.

That approach was described in

[52]

the following way by the Victorian Court of Appeal in Gardiner v Hughes:

Sufficiency of interest is established by showing that the applicant’s rights would or might be

[53]

[54]

affected if the grant were to be revoked.

The bare possibility of an interest will suffice.

54. As can be seen, that was a case concerning an application to revoke a grant of probate,

not an application for advice or direction. The parties on this appeal proceeded on the

basis that those principles applied to Mrs Burke’s application for joinder and not merely

to whether she might be heard on the application for advice or direction. Whilst there is

authority to support the proposition that beneficiaries are usually notified and heard on

[55]

an application for advice,

each case must depend on its own particular circumstances

and, principally, the nature and effect of the advice or direction sought. In the first

instance, it is for the applicant trustee to make an assessment as to whether the

[56]

application should be made ex parte or on notice.

55. It is doubtful whether these tests are interchangeable, at least in the circumstances of

this case. If what Mrs Burke intended was that she be given an opportunity to be heard

and lead evidence, the question was whether she had a sufficient interest to be accorded

standing on the application for advice or direction.

56. Whilst whether Mrs Burke had standing was a relevant and important consideration

when determining whether she should be joined as a party to a binding determination,

the tests are not the same and joinder can raise broader considerations, especially where

a contested trial is in prospect. Those broader considerations are reflected in the

authorities concerning joinder under r 22.1 of the Uniform Civil Rules 2020 (SA).

57. Though not directly applicable, the ruling of the Victorian Court of Appeal in Gardiner v

Hughes illustrates that the test for standing cannot be confused with the tests applied in

other contexts. After an extensive and helpful review of the authorities the Court

[57]

concluded in these terms:

... very few of the cases are directly concerned with standing. The cases which refer to a prima

[58]

facie case requirement are either contested trials

or applications for summary

[59]

disposition,

or are concerned with the requirements for permitting a matter to go to

References to the need for a prima facie case in those contexts are unsurprising, but

[60]

trial.

[61]

they do not inform the question of standing.

58. The relevant question concerning standing was framed by the Victorian Court of Appeal

as being whether the applicants in that case stood to benefit if their claims were

[62]

upheld:

The question before the Court was not whether the claims should be summarily dismissed, nor

had the Court required the applicant to show a prima facie case during the course of the

proceedings, in the manner described above. The preliminary question was confined to the

issue of standing. Because the applicants stood to benefit if the claims they made in their

summons were upheld, they had standing to pursue that summons.

59. It may be accepted that whether a person has a sufficient interest, or indeed the bare

possibility of an interest, in the questions raised on an application for advice or

direction, or indeed in the administration of the estate or the interpretation of the trust

instrument more generally, may sometimes involve questions of fact and degree. The

nature of the interest claimed is key. Ultimately, what is involved is an evaluation of the

interest claimed and an exercise of discretion under s 69.

60. In most cases the interest may be obvious, for example where the person is a named

beneficiary or is holding trust property. In those cases it will often be convenient to allow

those interested in the estate or its property to make submissions, for example, on the

proper construction of the will or trust deed before the court. That will usually be

desirable where the practical effect of giving the advice or direction sought will affect

financial or other interests, for example because the estate or trust assets will be wholly

[63]

distributed or at least distributed in a particular way.

61. Whether evidence should be received from an interested person raises additional

considerations, and these will include whether the evidence is relevant to the issue on

which the court is being asked to give advice or direction, as well as whether the

evidence is likely to be contentious.

62. The court has a broad discretion when determining how to proceed under an application

for advice or direction made pursuant to s 69 of the Administration and Probate Act.

Whilst the court must be diligent to ensure that the expeditious administration of estates

[64]

is not held up and complicated by unwarranted interference,

it must be equally alert

to cases where the applicant trustee seeking advice or direction, or the interested

persons, are in truth asking the court to resolve complex or disputed questions of fact or

law, ill-suited to resolution on an application for advice or direction.

63. Beneficiaries or others with standing are not bound by ex parte advice. Whether they are

bound by advice given after they have had notice and an opportunity to be heard raises a

[65]

question which was not addressed on this appeal.

Advice or direction given with the

benefit of submissions from beneficiaries or others with standing has not usually been

[66]

regarded as binding anyone.

64. Whether the application should remain one for advice or direction, or transition to a

binding determination, will turn on further considerations. For example, a binding

determination may be the appropriate course where there is a clear contest over difficult

or complex issues of fact or law, where witnesses may be cross-examined and where it is

desirable to avoid, or at least avoid the risk of, a multiplicity of actions. It is in that

context that the joinder of interested parties may arise for consideration.

The balance of these reasons: issues were not unarguable and s 69 of the

Administration and Probate Act

65. I will next address some of the facts as found by the primary judge before highlighting

the issues which arise in this case and on which, in my opinion, Mrs Burke should have

been heard, preferably following joinder in the context of a binding determination made

under s 69 of the Administration and Probate Act and under the rules of court.

66. These issues concern whether there can be an effective disclosure of wishes under a half-

secret trust made after the making of a will, together with the extent to which Mrs Burke

can prove by admissible evidence that her husband, Mr Burke, and in due course she,

became beneficiaries under what amounted to a changed expression of wishes.

67. These issues are considered on the assumption that there was a half-secret trust. Whilst

the primary judge was, with respect, probably correct to find that there was a half-secret

trust it was not appropriate to finally rule on that issue without hearing from Mrs Burke.

In the circumstances, this appeal can be resolved without addressing the various

construction contentions raised by Mrs Burke before the primary judge and on appeal,

including as to whether Mr Burke was to take beneficially under a “hybrid” trust.

68. I will then address the way in which s 69 permits both an application for advice or

direction as well as, generally by way of alternative, a binding determination or trial. The

bifurcated nature of the jurisdiction under s 69 of the Administration and Probate Act,

together with the rules of court, will be illustrated by reference to analogous situations in

other statutory contexts where the courts have recognised the capacity, and at times the

desirability, of proceeding by way of binding determination rather than merely advice or

direction.

69. In addressing these matters, I do not determine any issue other than why joinder should

have been ordered and a final determination made having regard to the breadth of the

power available to the court under ss 69(4) and 69(6) of the Administration and

Probate Act. Rather, I will merely demonstrate how these issues are not unarguable and

are appropriate for final determination.

The Memorial Arrangements document

70. Together with the 2012 will and power of attorney, Mr Burke also prepared a “Memorial

Arrangements” document. This recorded the wish of Lady Badger that, following her

death, her ashes and those of her late husband, Sir Geoffrey, were to be intermingled and

conveyed to Hawaii.

71. It was Lady Badger’s wish that Mr and Mrs Burke should take the ashes to Hawaii and,

once there, their ashes were to be intermingled with frangipani and other sweet fragrant

flowers of the Hawaiian Islands and then scattered in the valleys and over the cliffs of

the Na Pali Coast of the Island of Kauai, just before sunset. It was also Lady Badger’s

wish that an amount of $30,000 was to be appropriated from her portfolio and set aside

in an interest-bearing account named “The Badger Memorial Fund” to fund the expenses

of Mr and Mrs Burke in travelling to Hawaii and carrying out her wishes, including first

class airfares and a candle-lit dinner in the memory of Sir Geoffrey and Lady Badger.

72. The Memorial Arrangements document concluded with the statement that the capital

and income of the Badger Memorial Fund “is a gift to Richard and Carolyn Burke and is

made freely and voluntarily and further, is made in contemplation of my death”.

73. The evidence before the Court disclosed that Sir Geoffrey had been a Professor of

Organic Chemistry and a former Vice Chancellor of the University of Adelaide who had

later developed a keen interest in maritime navigation and edited a book about Captain

James Cook. Sir Geoffrey died in September 2002. Captain Cook’s landing on the island

of Kauai might explain what was proposed in the Memorial Arrangements document.

74. Ultimately the Badger Memorial Fund was not set up, and in 2015 a $30,000 payment

was made from one of Lady Badger’s accounts to another account, but the Public Trustee

[67]

could not identify the identity of the owner of that account.

Whether those monies

went to an account controlled by Mr Burke, or ultimately benefitted Mrs Burke, were

issues which were not addressed on the application for advice although, as has been

seen, the primary judge sought assistance on what should be done with the ashes of Lady

Burke and Sir Geoffrey.

Dealings between Mrs Burke and the Public Trustee

75. The evidence before the court disclosed various dealings between Mrs Burke and the

Public Trustee which were the subject of sustained criticism by Mrs Burke.

76. Lady Badger died as a widower with no children or grandchildren on 24 November 2016.

It seems that there had been no contact with any relatives in the United Kingdom for

many years. The 2012 will appointed Mr Burke as her sole executor and trustee subject

to a half-secret trust. However, Mr Burke developed cancer and became very ill during

2016. He died on 29 December 2016, just over a month after the death of Lady Badger

and without having obtained a grant of probate in her estate.

77. Mr Burke left a will dated 18 January 1997 appointing Mrs Burke as his executor and

sole beneficiary.

78. On Mr Burke’s death, the right to executorship of Lady Badger’s estate passed to Mrs

Burke. However, Mrs Burke did not obtain a grant of probate in Mr Burke’s estate and

she did not therefore obtain the capacity to apply for a grant in the estate of Lady

Badger.

79. Mrs Burke appears to have advised Finlaysons, and later the Public Trustee, that she

wanted the Public Trustee to accept and undertake the role of executor. Accordingly, the

Public Trustee made an application for an order pursuant to s 9(1)(h) of the Public

Trustee Act 1995 (SA) concerning Lady Badger’s estate on 28 June 2017. The Public

Trustee was informed by the Registrar of Probates that the affidavit in support of the

application had to recite the fact and date of the grant of probate in Mr Burke’s estate to

Mrs Burke. As mentioned, Mrs Burke did not obtain a grant of probate in her husband’s

estate.

80. On 8 January 2018, Mrs Burke requested the Public Trustee to make an application

pursuant to s 9(1)(h) for an administration order in respect of Mr Burke’s estate.

81. The Public Trustee obtained a grant of letters of administration with the will annexed in

Mr Burke’s estate on 7 June 2018 and a grant of letters of administration with the will

[68]

annexed in Lady Badger’s estate on 9 August 2018.

82. According to the affidavit of assets and liabilities concerning Mr Burke’s estate, the only

asset was the estate of Lady Badger. The Public Trustee advised the Registrar of Probates

that all of Mr Burke’s other assets were held in joint names.

83. Mrs Burke made a number of complaints about the conduct of the Public Trustee and

her officers. Mrs Burke maintained, in effect, that she was told that she would obtain

Lady Badger’s estate and it was only on this basis that she requested the Public Trustee

to obtain probate. It was suggested that the Public Trustee was affected by a conflict of

interest, and even that she was acting as Mrs Burke’s agent. However, no application to

revoke probate was ever made.

84. The primary judge held that the appellant’s complaints about the conduct of the Public

Trustee could not affect the Public Trustee’s office as the lawfully appointed

administrator of the deceased’s estates and they had no bearing on the construction of

[69]

the 2012 will.

Again, with respect, whilst these findings appear to be correct, it is not

necessary to address the criticisms of Public Trustee for the purposes of determining this

appeal.

The concept of a half-secret trust

85. Where a gift is accompanied by a statement that the gift is to benefit others, that does

not necessarily give rise to a trust. Dixon J described four of the potential interpretations

that may be given to these statements in Bective v Federal Commissioner of

[70]

Taxation.

86. Where a will gives property to a person, ostensibly beneficially, but in fact that person is

to take the property for another, the trust is a “secret trust” or “fully secret trust” because

[71]

the trust is not disclosed in the will.

One purpose in creating the trust is to keep the

[72]

identity of the beneficiary secret. The requirements of a fully secret trust are:

It will be convenient to call the person upon whom such a trust is imposed the “primary

donee” and the beneficiary under that trust the “secondary donee”. The essential elements

which must be proved to exist are: (i) the intention of the testator to subject the primary donee

to an obligation in favour of the secondary donee; (ii) communication of that intention to the

primary donee; and (iii) the acceptance of that obligation by the primary donee either

expressly or by acquiescence. It is immaterial whether these elements precede or succeed the

will of the donor.

87. That is, the essential elements of a secret trust are:

1. the intention of the testator to subject the primary donee to an obligation in favour

of a secondary donee;

2. communication of that intention to the primary donee; and

3. the acceptance of that obligation by the primary donee expressly or by

acquiescence.

88. In the case of a “half-secret trust”, the requirements are similar, but there the will gives

property to a person on trusts which are referred to in the will, but not defined by the

[73]

will,

and the trustee holds the property for the secret beneficiaries or, if the trusts fail,

[74]

for those entitled to the residue or the next of kin on intestacy.

89. In Ledgerwood v Perpetual Trustee Co Ltd, Young J considered the juristic basis for

[75]

half-secret trusts, and how they “operate outside the will”:

The academic writings show that there are two competing theories as to the juristic basis for

half secret trusts. One is that the trust flows from the will itself and the other is that the trust

flows from the effect on the conscience of the person who has acquiesced in the half secret

trust. The views are canvassed by the learned academic authors but the prevailing view is the

latter. Because the trust flows from the effect on the conscience of the fiduciary, it matters not

that there are problems with the formalities under the Wills Act or delegation of testamentary

power or that there is a technical problem such as the beneficiary of the half secret trust

witnessing the will. The main academic writings are Underhill and Hayton (at 235) and J G

Fleming "Secret Trusts" (1947) 12 Conveyancer (NS) 28.

Thus Megarry V-C could say in Re Snowden (deceased) [1979] Ch 528 at 535: "... the whole

basis of secret trusts, as I understand it, is that they operate outside the will, changing nothing

that is written in it, and allowing it to operate according to its tenor, but then fastening a trust

on to the property in the hands of the recipient."

90. A similar approach has been taken to secret trusts, where the confidence is fastened

upon the conscience of the trustee who cannot then appropriate the property to the

trustee’s own use or dispose of it otherwise than in the accordance with the wishes of the

[76]

testator.

91. In Ledgerwood Young J also addressed whether it was necessary for the communication

of the trust to be made by memorandum before or at the time of the making of the

[77]

[78]

will.

The traditional rule, arising from Re Keen,

requires that there be

communication of the existence of the half secret trust at any time up to execution of the

[79]

will. However, according to Young J:

The rule has ... been severely criticised by the highest authority. Professor W S Holdsworth, in

his article “Secret Trusts” (1937) 53 LQR 501, makes a powerful case that there can be no

logical distinction between a secret trust where the communication can be at any time before

death and a half secret trust. He says (p 506) the distinction appears to rest "upon a confusion

of thought in the reasoning of Parker, VC in the case of Johnson v Ball [1851] EngR 959;

(1851) 5 De G & Sm 85, 91; [1851] EngR 959; 64 ER 1029, 1032 which arises from a failure to

distinguish a gift which is an absolute post-mortem gift from a gift which is not ...". Professor

Holdsworth suggests (at 507) that a court should “simplify the law by getting rid of a

distinction which is unreasonable and works substantial injustice”. See also B Perrins "Secret

Trusts: The Key to the Dehors" (1985) 49 Conveyancer 248.

92. By contrast, in the case of a fully secret trust, the communication may be made at any

time after the will, so long as it predates the death of the testator. Young J observed that

there was “very little on secret trusts in Australia” and the cases tended to be cases about

[80]

fully secret trusts.

[81]

93. Young J referred to Guest v Webb.

In that case, the testatrix executed a will, stating

that her executor shall distribute her estate in accordance with discussions between

them. She provided the will to her executor but retained her letter of wishes, saying she

intended to alter it. The ruling was that the testatrix intended to alter her letter and, as it

had not been found at the date of death, she must have revoked her benefaction. Young J

[82]

observed that, in that case, Starke J cited Re Keen for the following proposition:

Where the gift on the face of the will is to the donee as trustee the communication of the

testator’s wishes and intentions must be prior to or contemporaneously with the execution of

the will. Where, however, the donee on the face of the will takes beneficially communication

may be at any time up to death...

94. A large number of texts and authorities, particularly Irish authorities, were considered in

[83]

Ledgerwood. For example, as to the Irish approach, Young J explained:

The law in Ireland as to secret trusts was stated by Monroe, J in Re King's Estate (1888) 21 LR

Ir Ch 273 at 277. Although he found that there was no secret trust arising in that case, Monroe

J laid down seven propositions summarizing the law of Ireland. These have been repeated on

many occasions since and can usefully be found in Delany, Equity and the Law of Trusts in

Ireland (1996) Sweet & Maxwell, Dublin at 94. The fourth proposition is that there can be a

valid half secret trust even if the communication is made subsequent to the execution of the

will.

In Re Browne; Ward v Lawler [1944] Ir R 90, the testator in 1935 had made a will leaving the

whole of his estate to George Ward on the basis that: "I relying on his carrying out the wishes

which I have expressed to him and/or may do so hereafter." In 1942, the testator gave to Mr

Ward a document headed "Instructions" dated 23 November 1939 which he said contained the

manner in which the estate was to be distributed. The testator died later the same day.

Overend J upheld the trust. He said (at 97) that: "It is also immaterial that the trusts were

communicated after the execution of the will, so long as they were communicated to the

legatee, and accepted by him, in the lifetime of the testator."

...

Delany points out (at 96) of her book that the High Court in Ireland had the opportunity of

clearing the matter up in Re Prendville (deceased); Prendiville v Prendiville (High Court of

Ireland, Barron J, 5 December 1990, unreported) (1989 No 597Sp), where the point came

before Barron J. The case is unreported, but it is the subject of an extensive note by J Mee in

“Half Secret Trusts in England and Ireland” (1992) 56 Conveyancer 202. Barron J followed Re

King's Estate and Re Browne and held that there was no difference in the rules applicable to

fully secret and half secret trusts on the subject of communication. Unfortunately, he then, in

the words of Mr Mee (at 203): "...embarked on an ill-advised attempt to demonstrate that, far

from opposing his conclusion, the English cases in fact supported it." Although Re Prendiville

was the subject of an appeal to the Irish Supreme Court, as far as my research has gone, no

appeal was ever heard.

95. Young J held that, as a matter of principle, in the case of half-secret trusts the

[84]

communication may occur at any time after execution of the will but before death.

Young J preferred the reasoning of the Irish case, Re Browne; Ward v Lawler,

that of Re Keen.

[85]

to

96. Accordingly, even though the memorandum of wishes in Ledgerwood was created after

the will, Young J held that this was valid. This view has since been favoured by a number

[86]

of academic texts.

97. The primary judge did not consider this aspect of Ledgerwood.

98. On the hearing of this appeal, the Public Trustee made a formal submission that

Ledgerwood was wrongly decided and that Re Keen is to be preferred. The Public

Trustee cited the dicta of Lord Sumner in Blackwell v Blackwell that a “testator cannot

reserve to himself a power of making future unwitnessed dispositions by merely naming

[87]

a trustee and leaving the purposes of the trust to be supplied afterwards”.

However

that case falls into the Re Keen line of authorities and the statement does not address a

case where the trust has come into existence but the testator has later had a change of

mind about the beneficial objects. In that case the purpose was supplied at the outset but

afterwards changed.

99. In my opinion, and with respect, the approach of Young J in Ledgerwood is at least

reasonably arguable.

100. Strictly, the ruling made by Young J in Ledgerwood arises as an issue in this case only if

no expression of intention at all was made at the time of, or before making, the 2012 will.

101. In the circumstances of this case, however, the question of proof concerning Lady

Badger’s intention potentially arises in two ways. The first is as to whether there was any

evidence of the communication of her intention at or before the making of the 2012 will.

The second is as to whether there was any evidence that she communicated any

intention, including a change in any wishes earlier made, after the making of the 2012

will.

102. The finding that the only communication of wishes made by Lady Badger concerned the

2008 letter of expression of wishes was not incontestable where that letter only referred

to the 2007 will. For example, the finding that the 2008 letter of expression of wishes

applied to the 2012 will was far from clear-cut and there was much to be said for the

[88]

approach taken by Mrs Burke:

Mrs Burke argued that the Public Trustee has proceeded on two erroneous assumptions. The

first is that [Lady Badger’s] wishes at the time she executed the will in 2012 were the same as

the wishes recorded in the unsigned [2008 letter of expression of wishes]. It was submitted

there is absolutely no evidence that [Lady Badger’s] wishes in 2012 were the same, or could

have been the same, or might have been the same, as they were in 2008. It was also submitted

it is an erroneous assumption that [Lady Badger] never provided any indication of her wishes

to Richard Burke or to anyone else from 2012 until her death.

103. Indeed, there is much to be said for the proposition that some written record of

expression of wishes was likely to have been made in 2012. For the purposes of this

appeal, however, it is not necessary to reach any final view. The contest mounted by Ms

Burke tends to show why issues such as these were inappropriate for determination as

part of giving ex parte advice or direction.

104. Even if some communication of intention was made at or before the making of the 2012

will, the further issue is whether that intention can later be changed. Whilst there is

authority to the effect that a change cannot later be made, or at least no material

increase in benefaction can be made, it would appear that the decision often cited for

this rule, Re Cooper, may have been concerned with the characterisation of the

[89]

communication by the testator as “loose and indeterminate”.

Indeed, the Public

Trustee appeared to accept that it was open to Mrs Burke to contend that:

1. The 2012 will created a half-secret trust: and

2. At some stage in 2016, after Mr Burke became seriously ill, Lady Badger told Mr

Burke that he was to be the beneficiary of the half-secret trust.

105. There is also, at least potentially, an issue about whether a trustee can ever take

beneficially under a half-secret trust, notwithstanding a private expression of wishes by

the testator that the trustee should take beneficially. The authority which was cited, Re

[90]

Rees,

was concerned with whether the private expression of wishes by the testator

was inconsistent with the terms of the will as construed, and also with the conflict

between interest and duty in the trustee. It may be that in Re Rees the Court of Appeal

[91]

was concerned with the public policy relating to wills and secret trusts.

106. I would not be prepared to hold, on an appeal against the refusal to order joinder, that

this point is a complete answer to Mrs Burke’s application.

Admissible evidence of Lady Badger’s wishes?

107. The principal difficulty emphasised by the Public Trustee was that there was no

admissible evidence to prove that Lady Badger had expressed her wishes in favour of Mr

Burke.

108. The only evidence before the primary judge was contained in the Public Trustee’s file, in

what was described as the Sinkinson note, and in the affidavit of Mrs Burke’s solicitor,

setting out her instructions.

109. The Sinkinson note recorded the effect of a conversation with Mrs Burke at some stage

[92]

during the first half of 2017:

Richard’s wife Carolyn, advised that Richard had told her that the entire estate was to pass to

him and apart from attending to the disposal of the ashes as directed in the will there were no

other distributions to be made.

110. The Public Trustee contended that, even if it be assumed Lady Badger told Mr Burke

that she intended to benefit him, and that Mr Burke then told Mrs Burke that Lady

Burke had changed her mind in that way, whether before or after the death of Lady

Badger, and then Ms Burke then deposed to these matters, that evidence was hearsay

and inadmissible.

111. On the face of it, the admission of this evidence, whether in the form of the Sinkinson

note or by way of oral evidence from Mrs Burke, confronts considerable hurdles.

112. In Sugden v Lord St Leonards, the majority of the Court of Appeal held that declarations

made by a testator to his daughter after the execution of his will were admissible as

[93]

secondary evidence of its contents.

Jessel MR ruled that the principle underlying all

exceptions to the hearsay rule concerning the declarations of deceased persons was the

same even though the development of those exceptions had been unconnected and

piecemeal. The principle, according to Jessel MR, was that the case must be one in which

it is difficult to obtain other evidence, the declarant must be disinterested, the

declaration must have been made before dispute or litigation arose and the declarant

[94]

must have had a peculiar means of knowledge not possessed in ordinary cases.

113. This attempt to establish the basis for the development of a new exception to the hearsay

[95]

rule has been doubted or at least strictly confined.

Nonetheless, aspects of the ruling

have been followed. For example, in In the Estate of MacGillivray the Court of Appeal

appeared to follow this decision concerning what was described as a “soldier’s will” and

evidence about what the testator said to another soldier concerning the contents of the

[96]

first soldier’s will was admitted.

114. In Walton v The Queen Mason CJ explained that a person’s statements or declarations

are an accepted means of proving that person’s intentions in circumstances where it is

[97]

material to prove what those intentions were:

The hearsay rule applies only to out-of-court statements tendered for the purpose of directly

proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-

court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a

relevant out-of-court statement is admissible evidence of the maker's knowledge or state of

mind when he made the statement in a case where such knowledge or state of mind is a fact in

issue or a fact relevant to a fact in issue: Reg. v. Blastland (1986) AC 41. Similarly, a person's

statements or declarations are an accepted means of proving his intentions in circumstances

where it is material to prove what those intentions were. As Mellish L.J. remarked in Sugden

v. Lord St. Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154, at p 251:

"[W]herever it is material to prove the state of a person's mind, or what was passing in it, and

what were his intentions, there you may prove what he said ...."

The point is that the making of the statement is itself evidence of the author's intentions at the

time the statement was made. Evidence of the making of the statement may be given by the

author himself or, in the case of an oral statement, by any person who heard it made.

115. More recently, in Bull v The Queen this approach to proof of intention was

[98]

reiterated:

Because the purpose or reason for the complainant going to Bull's house was relevant to a fact

in issue (consent and, in the case of Bull, honest belief in consent), the conversation was

admissible as original evidence to prove that purpose or reason. The law of hearsay did not

[99]

prevent its admission. As Lord Justice Mellish pointed out in Sugden v Lord St Leonards,

“wherever it is material to prove the state of a person's mind, or what was passing in it, and

what were his intentions, there you may prove what he said, because that is the only means by

which you can find out what his intentions were.”

116. The admissibility of evidence such as this was considered by the South Australian Law

Reform Institute in its report, ‘Distinguishing between the Deserving and the

[100]

Undeserving’: Family Provision Laws in South Australia.

It was explained that

statements made out of court by a testator about why an applicant has been excluded

from a will have usually been regarded as inadmissible hearsay evidence regarding the

[101]

applicant’s conduct, albeit not as to the testator’s intention:

[102]

The High Court has made clear that, despite some authority to the contrary,

statements are caught by the hearsay rule. Gibbs J explained:

such

It is clear that under the rules of the common law a statement by a testatrix that her son has

been guilty of misconduct, and that for that reason she has excluded him from any benefit

under her will, is not admissible to prove that the son was in fact guilty of misconduct. What

the testatrix said about the son’s conduct is hearsay, and no exception to the rule against

hearsay which is recognised by the common law allows the statement to be given in evidence

[103]

to prove the facts stated.

Such a statement may nevertheless be admissible at common law ‘as original evidence to

prove the knowledge, motive or other state of mind’ of the deceased, ‘should that be

[104]

relevant’.

If evidence is admitted on this limited basis, it cannot be used for the additional

[105]

purpose of proving the truth of a fact asserted in the statement.

Gibbs J (then Harry Gibbs) described the unclear common law position as to the admissibility

and use of such statements and noted that family provision legislation ‘had given rise to

problems in the law of evidence that as yet remain unsolved, and whose solution could

perhaps better be effected by the intervention of the legislature than by the application of the

[106]

existing principles of the law of evidence’.

Gibbs J referred to the legislative precedent in

England in s 1(7) of the Inheritance (Family Provision) Act 1938.

117. The parties did not suggest that there was any statutory aid available to Mrs Burke which

would facilitate proof.

118. The evident difficulty in this case, of course, is not merely that any statement made by

Lady Badger when recounted by Mr Burke is hearsay. Even if that statement was

admissible as proof of Lady Badger’s intention, Mrs Burke is relying upon what she says

she was told about that conversation by Mr Burke before his death. This case presents

the problem of hearsay on hearsay, or perhaps more accurately, hearsay evidence

regarding a statement of intention.

119. Whilst it seems likely that Mrs Burke’s evidence is inadmissible, and it seems unlikely

that there are further documents from Lady Badger (or anyone else) relevant to this

[107]

issue,

it is preferable that these issues be resolved in the context of a hearing in

which it will be for Mrs Burke to present her case fully and finally. The precise nature of

her evidence, and whether there are any documents which support her contentions,

remains to be seen and assessed. Of course, if she is disbelieved about what she says she

was told, then that would be an end to her case.

120. I am not prepared to say that Mrs Burke has no possible interest in the estate or that this

issue is unarguable based only on an assessment made on the papers.

Section 69 of the Administration and Probate Act 1919 (SA)

121. It is now necessary to address the provision under which the application for advice or

direction was made. Section 69 is in the following terms:

69—Public Trustee and other persons may obtain judicial advice or direction

(1) The Public Trustee shall, and any trustee, executor, or administrator may, when in

difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the

administration of any estate, or the construction of any will, deed, or document.

(2) Such application may be made either without notice to or upon summons served upon any

of the parties interested.

(3) Any person interested in any estate, who is dissatisfied with the conduct of the Public

Trustee in any matter connected with the management or administration thereof, may apply

to a Judge by summons to be served upon the Public Trustee to review such conduct.

(4) A Judge may, upon the hearing of an application under this section, make any order,

declaratory or otherwise, that he sees fit as to the administration of the estate, or the

construction of the will, deed, or document, which is the subject of the application, and also as

to the costs of the application.

(5) Any such order made in the absence of an interested party shall have the same effect, or be

of the same force or validity, so far as regards protection to the Public Trustee, or other

trustee, or the executor, or administrator, as if the same had been a decree or order made in

an action where all parties concerned were represented.

(6) The Judge may refer any question of law arising on an application under this section for

the opinion of the Supreme Court, or may direct an issue to be tried by, or an action to be

instituted in, the Supreme Court.

[108]

122. This case concerns the South Australian iteration of Lord St Leonards’ Act,

which

enabled the court to give “Opinion, Advice or Direction ... on any Question respecting the

[109]

Management or Administration” of a trust or deceased estate.

Lord St Leonard’s Act

was a response to the historical difficulty encountered by trustees and beneficiaries who

had been required to make an application for general administration, sometimes

[110]

referred to as a full administration order.

When made, the order terminated the

authority of the trustee and put the administration of the trust into the hands of the

[111]

court.

Ltd:

As was explained by Young J in McLean v Burns Philp Trustee Co Pty

[112]

The court would order that the trust was to be specifically performed under its supervision,

that nothing was to be done without its imprimatur, that accounts should be taken to see what

the trust assets were and the court would give directions as to how the trust would be carried

out.

123. Because the day-to-day management and administration of the trust or estate came

[113]

under the direct control of the court,

and orders for accounts and inquiries were

routinely made, this was regarded as a “cumbersome and expensive” way of

[114]

proceeding.

The wasted expense became obvious in those cases where trustees were

only concerned with obtaining a more confined order, directed to a specific aspect of the

administration of an estate, and as a result there developed the practice of an applicant

obtaining an order for administration, having a single point determined, and then

[115]

applying to stay the action.

124. In order to address these concerns, Lord St Leonards LC introduced s 30 of the Laws of

[116]

Property Amendment Act 1859 (UK), since known as Lord St Leonards’ Act,

together with the later enactment of s 9 of the Law of Property Amendment Act 1860

[117]

(UK):

The essence of Lord St Leonards' scheme was a cheap, summary procedure available to

trustees for "opinion, advice or direction" on any question respecting "the management or

administration of the trust property". If the trustee acted upon the opinion, advice or

direction, and had not been guilty of "any fraud or wilful concealment or misrepresentation"

in obtaining it, then the trustee's duty was deemed to have been discharged.

125. This Court recently addressed one aspect of Lord St Leonards’ Act, being the statutory

procedure by which the court may bar disputed claims which have been notified to a

[118]

trustee but not prosecuted, thereby avoiding delay in the administration of an estate.

[119]

As it was then explained:

The jurisdiction of this Court, as a Court of Equity, to exercise supervisory jurisdiction in the

[120]

administration of trusts is of long-standing.

Executors or administrators may apply “for

aid and relief in the administration of estates” whenever they “cannot safely administer the

[121]

estate, except under the direction of a Court of Equity”.

It has been said that it is the “duty

[122]

of the Court to enforce the execution of trusts”,

and that “the execution of a trust should

In lieu of the old “administration action” by which a

“Court would order that the trust ... be specifically performed under its supervision”,

[123]

be under the control of the Court”.

[124]

Lord

St Leonards LC introduced legislation in England during the 1850s enabling trustees to obtain

the “opinion, advice or direction” of the Court on questions concerning the administration of

[125]

trusts and,

importantly, where executors and trustees then act on that advice they are

[126]

indemnified.

Aspects of Lord St Leonards’ Act were adopted in South Australia during the 1880s and

[127]

1890s:

trustees and executors may apply for advice or direction under s 69 of the

Administration and Probate Act 1919 (SA). It is well-settled that the jurisdiction or power

which is exercised is concerned with the protection of the trust and its interests, as well as the

protection of the trustee: advice ensures that “the interests of the trust will not be

[128]

subordinated to the trustee’s fear of personal liability for costs”.

126. Although the historical development of this provision has been considered on a number

[129]

of occasions, together with its use in other contexts,

the way in which successive

iterations of Lord St Leonards’ Act were amended to meet perceived difficulties, and the

solution now embodied in s 69 of the Administration and Probate Act, informs the

breadth of the court’s jurisdiction and capacity to provide binding rulings and not

merely private advice to a trustee or an administrator of an estate, whether or not in

conjunction with the rules of court.

127. The nature of the decision to be made by the primary judge was, at least in part,

determined by the nature and scope of the jurisdiction which may potentially be

exercised by the court on an application made under s 69 of the Administration and

Probate Act as well as under the rules of court.

128. The early English cases show that initially the opinion, advice or direction was explicitly

designed to protect the trustee in the event of a claim of breach of trust. That is, the court

was not providing a binding determination which affected the legal rights and

obligations of those associated with or affected by the trust or deceased estate. The

provision permitted the trustee to obtain the court’s opinion on the trustee’s statement

[130]

of facts.

However, where there was a dispute about the facts, or where a beneficiary

before the court on the application sought to introduce further facts, the court would not

[131]

generally give its opinion.

129. In addition, no right of appeal was conferred and, once the trustee obtained the opinion,

[132]

advice or direction of the court, that was either followed or it was not.

130. These concerns were addressed by ord 55 r 3 of the Rules of the Supreme Court 1883

(UK) (1883 Rules). The powers conferred under these rules were broader than s 30 of

Lord St Leonards’ Act because the court was explicitly empowered to make

determinations directing trustees to act, or abstain from acting, as well as to make

binding determinations on particular issues, provided they came within the scope of the

administration of the estate.

131. The 1883 Rules were broadened in 1965 to cover “any question” together with “any

[133]

relief” which could be determined or granted in an administration action.

Because

the English rules enabled binding determinations to be made, affected beneficiaries were

usually joined or at least represented.

132. The evident advantages of the broader powers available under the rules led to s 30 of

[134]

[135]

Lord St Leonards’ Act becoming obsolete,

and eventually to its repeal in the UK.

133. The provision considered by the High Court in Macedonian Church, s 63 of the Trustee

[136]

Act 1925 (NSW),

directly follows the language of s 30 of Lord St Leonards’ Act,

[137]

enabling the court to give “opinion advice or direction”.

134. In South Australia, s 25 of the Property Act 1860 (SA) was “copied, with

[138]

modifications”

from s 30 of Lord St Leonards’ Act, permitting the court to give

“opinion, advice, or direction”. This aspect of the jurisdiction was generally considered

[139]

to operate only as private advice to trustees or administrators of deceased estates:

...the intention was only to give advice on matters of minor importance arising in the course of

administering trusts and not, in order to indemnify trustees, to settle questions of

construction by which beneficiaries might be affected.

135. When providing advice, the court does not exercise a jurisdiction to make binding

[140]

determinations:

[141]

The Court determines what is “in the best interests of the trust estate”,

as “an exception to

[142]

the Court’s ordinary function of deciding disputes between competing litigants”

and does

[143]

not conduct an inter partes trial on the issues.

136. In 1880, South Australian legislation creating the Public Trustee was enacted and, in the

[144]

same legislation, s 28 “made it incumbent”

on the Public Trustee “when in difficulty

or doubt” to apply to the court for “advice or direction” concerning the administration of

[145]

any estate.

However, in addition, the Public Trustee was also empowered to apply to

the Supreme Court concerning the “construction of any will, codicil, deed, or document”,

an innovation which was broader than the power available under s 30 of Lord St

Leonards’ Act.

137. In 1891, the Public Trustee Act 1880 (SA) was repealed and replaced by s 99 of the

Administration and Probate Act 1891 (SA) (1891 Act). This provision is virtually

identical to the present s 69 of the Administration and Probate Act. The principal

difference is one of structure in that the current Act now comprises six sub-sections

rather than the four which appeared in the 1891 Act.

138. The principal innovation was that a discretionary power to apply to the court for advice

or direction was conferred on any executor or administrator, in addition to the

obligation imposed on the Public Trustee.

139. A feature of all of these provisions was that they did not expressly relieve against breach

of trust. Rather, a trustee’s conduct in reliance on judicial advice was under the general

[146]

law not regarded as constituting an actionable breach of trust.

It is necessary to

recognise that these provisions cannot be confused with the separate statutory

procedure available to trustees to seek retrospective relief where they have committed a

[147]

breach of trust.

140. An important inclusion in the 1891 Act was s 99(3), part of which is now s 69(4) of the

Administration and Probate Act, by which a new, much broader power was conferred on

the court. It will be necessary to return to this provision.

141. The South Australian iteration of Lord St Leonards’ Act was eventually repealed when

[148]

the Trustee Act was introduced in 1893.

142. As in England, the judges of the Supreme Court of South Australia introduced a similarly

broad jurisdiction under the rules of court which has been continued in various forms

[149]

down to today.

143. The result is that in South Australia there have been both legislative and rules-based

jurisdictions enabling the court to provide private advice as well as to make binding

determinations inter partes.

144. It has, as will be seen, always been necessary for the court to be both clear and cautious

about which aspect of its jurisdiction is being exercised.

The breadth of s 69 of the Administration and Probate Act

145. Notwithstanding the general applicability of the principles and approach described in

[150]

Macedonian Church,

it is nonetheless important to consider the terms and breadth

of s 69, particularly ss 69(4) and 69(6), of the Administration and Probate Act, which is

in different terms to the provision considered by the High Court, s 63 of the Trustee Act

1925 (NSW).

146. By s 69(1), the Public Trustee shall, and any trustee, executor or administrator may,

when in “difficulty or doubt” apply to a judge for advice or direction “as to matters

connected with the administration of any estate, or the construction or any will, deed, or

document”. Whether the applicant is indisputably a trustee or otherwise an applicant

[151]

under s 69(1) is an essential element of jurisdiction.

147. By s 69(2), the application made by the trustee, executor or administrator “may be made

either without notice to or upon summons served upon any of the parties interested”.

The decision as to whether to proceed ex parte or on notice is a matter to be determined

[152]

by the applicant.

148. By s 69(3), a person “interested in any estate, who is dissatisfied with the conduct of the

Public Trustee” may apply to a judge seeking a review of the Public Trustee’s conduct

provided that conduct is “in any matter connected with the management or

administration” of any estate. That provision was not invoked in this case.

149. Sub-section s 69(4) provides for the range of orders that may be made on an application

made under s 69(1):

A Judge may, upon the hearing of an application under this section, make any order,

declaratory or otherwise, that he sees fit as to the administration of the estate, or the

construction of the will, deed, or document, which is the subject of the application, and also as

to the costs of the application.

150. Sub-section 69(4) has a very broad reach. It is concerned with the hearing of an

application under s 69(1) and permits the court to “make any order, declaratory or

otherwise” that the court sees fit to make about a range of matters. These comprise the

administration of the estate and the construction of the will, deed or document “which is

the subject of the application”.

151. A broad discretion is conferred on the court by s 69, constrained only by the subject

[153]

matter, scope and purpose of s 69.

152. When the precursor provision was considered by Way CJ in Martin v Hayward, sub-

sections 69(4) and 69(5) were one sub-section, s 99(3) of the 1891 Act. At that time the

words “which is the subject of the application” read “which shall be the subject of the

[154]

application”:

A Judge may, upon the hearing of an application under this section, make any order,

declaratory or otherwise, that he shall see fit as to the administration of the estate, or the

construction of the will, deed, or document, which shall be the subject of the application, and

also as to the costs of the application; and any such order made in the absence of an interested

party shall have the same effect, or be of the same force or validity, so far as regards protection

to the Public Trustee, or other trustee, or the executor, or administrator, as if the same had

been a decree or order made in an action where all parties concerned were represented.

[155]

153. Way CJ construed the first part of s 99(3)

as addressing “the contents of the order”

[156]

and limited in its scope to “the subject of the application”.

His Honour held that

provision did not authorise “any order declaratory or otherwise” that the Judge shall see

fit to make as to the administration of the estate, “or the construction of the deed will, or

[157]

document”:

... just as if the order were the decree or judgment in an administration action, and without

being limited to the “subject of the application.”

[158]

154. The former Chief Justice explained that the word “declaratory”:

... is as appropriate to a consultative order in which advice or direction is given as to the

construction of any will or other document for future guidance as to an order relating to past

transactions.

155. Properly understood, this aspect of the ruling was concerned with whether an order

made under this provision was concerned with the exoneration of past misconduct, as

distinct from providing advice or direction about future conduct, an issue to which I

shall return.

156. Whilst the words “the subject of the application” do have a limiting effect, and in that

sense may be contrasted with the very broad scope of the old administration action in

Chancery, it is difficult to see the preceding words as operating to preclude the making of

a binding determination where all interested parties are joined and represented.

157. Two further points may be made. First, it may be that the subject of the application

should be construed as applying to “administration” or “construction”, as distinct from

“the estate”, or “the will, deed or other document” put before the court. That is, the

subject of the application is how the estate should be administered, and the advice

sought about that, rather than the estate or the will etc, more generally. But however the

provision is construed, its reach remains very broad once jurisdiction is invoked by the

making of an application for advice or direction.

158. Secondly, the actual ruling made by Way CJ focussed on the prospective nature of the

advice given by the court and his Honour might possibly have drawn some support for

that from the phrase as it appeared in the 1891 Act: “which shall be the subject of the

application”. The use of the word “shall” might suggest a prospective focus, although

that way of reading that word may be more appropriate in the twenty-first century rather

than the early twentieth.

159. If in a particular case it is thought that s 69(4) is insufficiently broad, there is ample

scope under the rules of court to enable a binding determination to be made between all

interested parties who have been joined and are before the court, thereby avoiding any

problem of inadequate jurisdiction. Given the breadth of s 69(4), that may be unlikely to

often arise.

160. It is true that s 69(5) ensures that any “such order” made under s 69(4), even if made in

the absence of an interested party, has “the same effect, or ... the same force of validity ...

so far as protection” to the Public Trustee or other trustee, executor or administrator “as

if ... made in an action where all parties concerned were represented”. It may be that it

was this aspect of the provision which principally concerned Way CJ in Martin v

[159]

Hayward regarding the potential for procedural injustice.

161. However, three points may be made about that. First, Way CJ was careful to limit the

effect of any advice or direction under his ruling “to matters prospective or

[160]

executory”.

Secondly, s 69(5) is principally concerned with trustee protection, not

the determination of rights and obligations between parties.

162. Thirdly, insofar as that protection is capable of operating in a manner that is unjust, the

exercise of discretion under s 69(4) will be influenced by two further considerations. The

first is that the court may decline to exercise this power in a way that involves the

determination of rights unless all interested parties have been notified and been given an

opportunity to be heard. As earlier explained, whether there should be a binding

determination is a separate question. The second consideration is that it is only judicial

advice, often but not always given ex parte, that has been recognised as one of the

“established exceptions to the general rule that judicial proceedings should be conducted

[161]

in public”,

where the requirement for procedural fairness may “give way to the need

[162]

for confidentiality in order to avoid prejudice to the administration of justice”.

163. This latter principle was regarded as relevant by the High Court to its construction of s

[163]

63 of the Trustee Act 1925 (NSW) in Macedonian Church.

been seen in Magarey Farlam,

By contrast, and as can

[164]

binding determinations ought not ordinarily be

made unless both notice and procedural fairness have been accorded to all interested

parties.

164. Although the approach of the High Court in Macedonian Church has been applied to

applications for advice or direction, additional considerations apply when considering

whether to make binding determinations. Those considerations have been reviewed in

[165]

[166]

authorities such as In the Estate of Martin,

and Magarey Farlam.

165. Finally, the bifurcation in jurisdiction, and the potential for binding determinations to

be made about issues raised on an application for advice or direction, are explicitly

recognised by s 69(6). By this provision the court is given two discretions. The first is a

discretion to refer “any question of law arising ... for the opinion of the Supreme

[167]

[168]

Court”.

This appears to be a procedure similar in form to a case stated.

The

second is a discretion to “direct an issue to be tried by, or an action to be instituted in,

the Supreme Court”. Therefore, by s 69(6) the court may, in the exercise of its discretion,

order that an issue be tried in a way that is binding and which results in any order or

[169]

declaration that the court sees fit to make under s 69(4).

166. It is by ss 69(4) and 69(6) of the Administration and Probate Act that the court may, in

an appropriate case, transition from cases within the first or second categories to one

within the third category of case, if necessary, by also relying on the rules of court,

putting beyond doubt that the determination to be made by the court inter partes will be

binding.

Decisions concerning s 69 of the Administration and Probate Act 1919 (SA)

167. It is necessary to consider statements made by judges from time to time about s 69 or its

predecessor, paying close attention to the context in which those statements were made.

Observations about the former jurisdiction available under Lord St Leonards’ Act cannot

be used to constrain the breadth of the statutory jurisdiction to make binding

determinations under s 69 of the Administration and Probate Act, or indeed under the

rules of court in the exercise of the court’s general jurisdiction.

168. As has been seen, it is also necessary to pay close regard to the terms of the legislation by

[170]

which this jurisdiction is founded.

169. For example, certain observations made by Way CJ in Martin v Hayward might be

taken to reject the contention that the terms of the Trustee Act 1893 were broader than

Lord St Leonards’ Act and, in effect, cut down the literal reach of what is now ss 69(4)

and 69(6). The Chief Justice in that case referred to the court making what was a mere

“consultative order”, that is, as merely being able to give judicial advice which was not

[171]

binding.

That, however, would entail reading the reasons of the former Chief Justice

without regard to the particular context in which they were made.

170. The case concerned the estate of John Martin who had died on 25 November 1889,

leaving a will containing a devise and bequest to his trustees of the residue of his real

and personal estate, which included shares in John Martin & Co Ltd and mining and

banking shares. These shares were later the subject of a claim made by beneficiaries of

the estate.

171. Much earlier, on 17 June 1897 Boucaut J had given advice to the executors and trustees

as to whether they were justified in the exercise of the absolute discretion given to them

under the will in selling the John Martin & Co Ltd shares and in postponing the sale of

the mining and banking shares.

172. It is important to recognise that the sale of the John Martin & Co Ltd shares took place

in 1891, before the application for advice. Likewise, there had already been a significant

delay associated with selling the other shares. The 1891 Act came into force on 19

December 1891, after the conduct occurred which the executors and trustees placed

before Boucaut J for advice.

173. It is also important to recognise that the application for advice or direction before

Boucaut J was made ex parte.

174. The beneficiaries, the five children of the deceased, later came before Way CJ on a point

of law raised by the pleadings, alleging an improper sale of the John Martin & Co Ltd

shares, being a sale at an undervalue and without ascertaining their proper value,

together with neglect in failing to sell the mining and banking shares within a reasonable

time. The beneficiaries were represented by Paris Nesbit KC, and the representatives of

one of the deceased executors and trustees were represented by Sir Josiah Symon KC

and Murray KC. The case was argued over eight days in 1907 and 1908 and the decision

was delivered eight months later in December 1908.

175. The essential question for Way CJ was concerned with the reach of the 1891 Act, and

whether the advice or direction given by Boucaut J in 1897 protected the executors and

trustees against the action brought by the beneficiaries.

176. It was in that context that Way CJ was called upon to consider the operation and effect

of s 99 of the 1891 Act. His Honour held that the 1891Act was intended to apply before

action was taken and it did not authorise the approval of action already taken, when any

right of action for breach of trust had already vested. Moreover, he held that the order

made by Boucaut J was not within jurisdiction and, in any event, as it was made ex

parte, the beneficiaries were not estopped from denying the validity of the order made.

177. Finally, if the breaches of trust were made good, those breaches occurred prior to the

coming into operation of the 1891 Act and the 1891 Act could not be construed so as to

give it a retrospective operation, taking away existing rights.

178. Properly understood, the ruling of Way CJ was not concerned with the breadth of s

[172]

[173]

99(3).

The essence of the ruling was as follows:

This provision was plainly intended to prevent the rights of absent parties being affected

except so far as necessary for the protection of the trustee acting upon judicial advice or

direction, and this is the effect of the sub-section if the “advice or direction” is limited to

matters prospective or executory. It is only when the section has the forced and unnatural

construction placed upon it of authorising the confirmation of past breaches of trust that it

becomes capable of being an instrument of injustice.

179. This provision was not intended to enable the court to relieve a trustee from liability for

a breach of trust if he has acted honestly and reasonably, and ought fairly to be excused,

[174]

and for omitting to obtain the direction of the court in the matter.

In particular, the

notion that the provision could be used to provide a form of exoneration for past

[175]

breaches of trust was rejected in emphatic terms:

It is, however, incredible that the Legislature in this provision for the benefit of an interested

party not represented on an application for advice or direction, intended to place a weapon in

the hands of a defaulting trustee which might enable him, by obtaining an ex parte order

confirming and approving of a flagrant breach of trust, to deprive the beneficiary of his whole

fortune. Take the present case as an example. The plaintiffs allege that between £13,000 and

£14,000 has been lost to the estate by breaches of trust. There may be a complete answer to

this but it is hardly consistent with justice that the testator's children should be debarred from

establishing their claim if they can do so on the merits, by the order in dispute made during

their infancy five or six years after the alleged breaches of trust, on an ex parte application of

which they knew nothing, by one of the trustees concerned in the alleged breaches of trust,

and a new trustee just entering upon his duties.

180. This aspect of the ruling in Martin v Hayward, concerned with the prospective effect of

[176]

advice or direction, was later applied by Mayo J in Re Jackson.

In that case, a

complex family dispute was resolved by deed of family arrangement containing a

condition precedent that it was “subject to this family arrangement becoming binding”.

Various releases and discharges were then intended to operate.

181. An executor applied under s 69 of the Administration and Probate Act for an order

approving entry into the deed of family arrangement. The summons was endorsed with a

note that it was not intended to be served unless the court “shall otherwise order or

direct”.

182. Mayo J declined to give the advice for essentially two reasons. First, he followed the

ruling of Way CJ in Martin v Hayward to the effect that the provision only applied to

matters upon which judicial advice or direction is sought before action is taken, and not

to approve things already done and as to which a right of action may have already

[177]

vested.

Mayo J emphasised that the executor had already entered into the deed. As

[178]

Mayo J explained:

The section is, I think, intended to provide for a situation of doubt or difficulty, that may

confront an administrator or trustee, rendering him uncertain which of two or more possible

courses he should adopt, or, it may be, he is non plussed because no reasonable, or no

practicable, course seems to be open to him at all. This situation of uncertainty, the section

predicates, must have arisen, or be pending, in the course of the administration, by reason of

the circumstances thereof, or because of some ambiguity or equivocation in the trust

instrument. In such a case a judge may tender advice to the administrator or trustee, or he

may direct the administrator or trustee how to act.

183. The second reason for declining to give the advice sought was that the application was

made ex parte. On that basis, Mayo J was clearly concerned that any order he might

[179]

make was not binding and therefore incapable of fulfilling the condition precedent:

That is to say, if I were to make such an order as asked ex parte, and it were properly within

my power to do so, it would be effectual as a defence for the executor in proceedings against

him for breach of duty, but the absent parties may still have enforceable rights against persons

other than the executor, and might even follow the property if entitled thereto, into the hands

of others who had received it pursuant to the terms of the compromise. See Piper J. in In Re

Mallen; Executor Trustee and Agency Co. v Woolbridge [1929] SAStRp 14; [1929] SASR 154,

157.

An order ex parte under s. 69, would not, I think, make the family arrangement binding upon

persons not served with a summons, and could, therefore, not be regarded as fulfilling the

condition precedent stipulated in the instrument.

184. The potential bifurcation of the court’s jurisdiction was clearly recognised in In the

[180]

Estate of Hunter.

In that case, Napier CJ was presented with an application by the

executors of a will seeking advice or direction as to whether, according to the true

construction of the will, an unsecured loan formed part of a bequest or fell into the

residue of the estate.

185. Napier CJ observed that the application for advice or direction was made under the

Administration and Probate Act but, alternatively, under the Supreme Court Act 1935

[181]

(SA)

and rules, the court was asked to determine without administration a question

which arose in the administration of the trusts of the will. The former Chief Justice did

[182]

not regard it as appropriate to join the two forms of proceeding in this way:

It seems to me that these two forms of proceeding ought not to be joined in this way. The

Administration and Probate Act preserves the jurisdiction formerly given by Sir George

Turner’s Act (see Forster v Schlesinger (1886) 54 LT 51; In re Mallen [1929] SAStRp 14;

[1929] SASR 154, 157). Under that procedure the affidavit, filed in support of the application,

is equivalent to a case, stated for the opinion of the Court, in which the trustee vouches for the

accuracy of the facts which he is putting to the Court, and asks for advice and directions. The

direction given to him protects and indemnifies the trustee against any claim for breach of

trust, provided always that the facts have been fully and fairly disclosed, but it leaves the

question open as between beneficiaries who have not been cited to see the proceedings. The

application under the Supreme Court Act and Rules is a proceeding inter partes. It enables

the Court to do what it could formerly have done in the course of an action for administration

by the Court (see In re Medland; Eland v Medland [1889] UKLawRpCh 99; (1889) 41 Ch. D

476, 492), and leads to a final determination of the rights of the parties.

It follows that the two forms of procedure are incompatible, and, in this case, a difficulty has

arisen, in so far as it transpired at the hearing that one of the defendants had died and was not

represented. In the circumstances I propose to give my opinion for what it is worth, but before

any order can be made the applicants or plaintiffs (as the case may be) must elect, as to which

jurisdiction they are invoking, and the record must be put in order.

186. It may be acknowledged that these observations suggest a limitation in the operation of s

69. Respectfully, it may be doubted whether the limitation read into s 69 is supported by

the words of that provision, particularly when s 69(4) is read together with s 69(6).

Nonetheless the course suggested by Napier CJ tends to demonstrate both the capacity

of the court to deal with either private advice or binding determinations (albeit the latter

only under the Supreme Court Act and the rules of court) as well as the need for both the

parties and the court to be very clear about the jurisdiction that is being exercised.

187. The implication from this decision is that, but for the non-appearance by the

representatives of one deceased beneficiary, all relevant parties were before the court. It

appears that those other parties had all been given an opportunity to be heard on the

questions which arose for advice or, as the case may be, for decision. Presumably, if the

representatives of the deceased beneficiary were given an opportunity to be heard then

there would have been no impediment to the court making a binding determination.

That, as has been seen, could have been made under ss 69(4) and 69(6) as well as under

the then rules of court.

188. The scope for making a binding determination likewise appears to have been assumed in

[183]

In the Estate of Martin.

In that case, the trustees of the will and codicil of the

deceased sought advice or direction as to the distribution of a fund which had been set

aside to provide an annuity for the deceased’s daughter. The application appears to have

been served because the parties were represented by senior counsel who made

submissions on a number of difficult issues concerning the delegation of will-making

[184]

power.

189. It may be noted that the judge, Piper AJ, had appeared as leading counsel before Napier

[185]

CJ in In the Estate of Hunter.

Perhaps mindful of the Chief Justice’s concern about

the procedure adopted in that earlier case, Piper AJ referred to various points of

[186]

procedure:

This application was made under s. 69 of the Administration and Probate Act. Such

applications may be made either ex parte, or upon a summons served upon any of the parties

interested. The summons in this case was endorsed:— “It is not intended to serve this

summons on any person, unless directed so to do,” and the matter was then set down before a

Master for directions as to service. It appears that recently there has been growing up a

practice of approaching the Court in this way. Such an endorsement should not, in my

opinion, be made where it is not intended to proceed ex parte or in any other circumstances.

190. The scope for an application under s 69 to be made either ex parte or on notice was then

[187]

emphasised as a matter for the trustee to determine in the first instance:

...an application under s. 69 is to be made either ex parte or on notice to respondents. If it is to

be on notice to respondents, notice should be given to those who, it is considered, should be

served as “persons interested.” Notice should be served, in the first place, ... . This will contain

the necessary endorsements notifying the respondent that he must enter an appearance if he

wishes to be heard; such endorsements have no place on an ex parte summons.

Whether or not the Court should be approached ex parte or on notice to persons interested

must depend, of course, on many factors. Ex parte proceedings may be appropriate when

what is required is advice as to doing some administrative act, they can rarely be appropriate

when advice or direction is sought as to the final distribution of a substantial fund, as was the

case here. It is the responsibility of those who initiate the proceedings to decide whether the

case is a proper one for an approach to the Court to be made without notice to the

beneficiaries and also, if it is a case for notice, to decide to whom notice shall be given in the

first place.

...

Further, I notice that these proceedings are entitled “In the Matter of the estate” of the

deceased. In cases such as this, where the application is made not by executors, but by

trustees, the estate having been fully administered and in the hands of the trustees as such, the

proceedings should be entitled “In the Matter of the trusts of the will of” the testator ...

191. Piper AJ went on to emphasise the obligation in the trustees to ensure that the facts were

placed completely and accurately before the court, as well as to provide a complete and

accurate statement as to the possible persons interested. Piper AJ also held that the

affidavit from the trustee should contain a statement of the respective possible beneficial

interests of the persons interested and the summons should state all questions

categorically and not merely questions such as “who are entitled to” the property in

[188]

question.

on notice:

Accordingly, and regardless whether the application was made ex parte or

[189]

In every case, the section assumes that the applicant trustee, executor or administrator is in

difficulty or doubt. Before the summons is issued, and the affidavit is sworn, it is desirable

that the exact nature of the difficulty or doubt, the question whether the application should be

made ex parte or on notice, and if on notice, who should be served as respondents in the first

place, the form of the questions to be asked, and the facts which should be laid before the

Court, should all be carefully considered, and, in all but the smallest cases, the summons and

affidavit should be settled by counsel.

192. Piper AJ then emphasised that “careful consideration” should be given to whether the

court should be approached by way of an application for advice and direction, or for a

[190]

binding determination of the questions at issue.

Piper AJ explained that advice or

direction given under s 69 is not binding on absent parties and is primarily given for the

protection of the trustees only, whereas an order made under the rules of court leads to a

[191]

final determination of the rights of the parties:

Trustees should, therefore, be careful that they do not risk putting the beneficiaries to the

costs of two proceedings. Where large sums are at issue, and the question to be determined

involves the final distribution of those sums, it appears that proceedings under [the rules of

court] are more appropriate.

193. These observations were made in a context where in “all these cases, the trustees expect

to have their costs out of the estate, and in the ordinary case, they are entitled to an

[192]

order that they be paid them”.

proceedings was to be avoided.

It was in that context that a multiplicity of

194. It is noteworthy that in none of the earlier cases just described did the proper operation

and effect of what is now ss 69(4) and 69(6) of the Administration and Probate Act arise

for decision in a context where all interested parties were before the court, seeking a

binding determination.

195. In Martin v Hayward, Way CJ considered the operation and effect of an order earlier

[193]

made ex parte.

In Re Jackson, Mayo J was concerned with an application to approve

[194]

entry into a deed of family arrangement which was, likewise, made ex parte.

has been seen, Napier CJ in In the Estate of Hunter assumed that a binding

And, as

determination could be made, albeit under the rules of court, provided that all interested

[195]

parties were before the court.

Similarly, in In the Estate of Martin, Piper AJ

assumed that an application made under s 69 of the Administration and Probate Act

could be made either ex parte or on notice but, like Napier CJ, he also assumed that a

[196]

binding determination could be made under the rules of court.

effect of ss 69(4) and 69(6) was not argued.

The operation and

[197]

196. It would, with respect, be erroneous to read provisions such as ss 69(4) and 69(6) which

confer jurisdiction and grant power as making implications or imposing limitations

[198]

which are not found in the words themselves.

197. In my opinion, to the extent that statements have been made from time to time which

suggest that the jurisdiction available under s 69 of the Administration and Probate Act

cannot be used to make binding determinations, and that these could only be made

under the Supreme Court Act and rules of court, those were not necessary for the

decisions made in those cases, they were obiter dicta and not binding. The preferable

view is that the jurisdiction available under ss 69(4) and 69(6) of the Administration

and Probate Act permits the court to make binding determinations. Whilst it is not as

broad as the rules-based jurisdiction, each requires that interested parties be afforded

both notice and procedural fairness. It is in the exercise of that jurisdiction that the court

will consider whether parties should be joined before binding determinations are made

by the court.

Applications for advice or direction in other contexts

198. It is telling that, in later decisions, whether under the Administration and Probate Act

or in other contexts where a variation of Lord St Leonards’ Act has been implemented,

the potential for the court to make binding determinations has been repeatedly accepted.

Whether this is only available under the rules of court has not always been made clear.

199. For example, in Re GB Nathan & Co Pty Ltd, McLelland J considered a liquidator’s

application for directions pursuant to the now repealed s 479(3) of the Corporations

Law (Cth), which became s 479(3) of the Corporations Act 2001 (Cth) (Corporations

Act), but which is now reflected in s 600K of the Corporations Act and sch 2 cl 90-15(1)

[199]

of the Corporations Act.

McLelland J traced the origins of s 479(3) back to English

legislation concerning joint stock companies and legislation concerning both bankruptcy

[200]

and winding up.

His Honour paid close attention to Lord St Leonards’ Act as a

development from the practice of the Court of Chancery under the general law in giving

directions to those entrusted with the administration of property under the control of

court. His Honour gave as examples trustees of trust property, or executors or

administrators of deceased estates, and receivers and managers appointed by the court

[201]

in respect of property the subject of litigation.

200. McLelland J emphasised that Lord St Leonards’ Act did not empower the court to go

beyond what could properly be done under a decree for general administration and it

could not decide questions or provide protection against a claim made by a stranger to

[202]

the litigation.

His Honour recognised that this position was explicitly altered by s 63

of the Trustee Act 1925 (NSW) but, even under that provision, the application was

ordinarily inappropriate where there were factual issues or where there arose for

determination proprietary claims adverse to the relevant trust or estate.

[203]

Accordingly:

The historical antecedents of s 479(3) [of the Corporations Law], the terms of that subsection

and the provisions of s 479 as a whole combined to lead to the conclusion that the only proper

subject of a liquidator’s application for directions is the manner in which the liquidator should

act in carrying out his functions as such, and that the only binding effect of, or arising from, a

direction given in pursuance of such an application (other than rendering the liquidator liable

to appropriate sanctions if a direction in mandatory or prohibitory form is disobeyed) is that

the liquidator, if he has made full and fair disclosure to the court of the material facts, will be

protected from liability for any alleged breach of duty as liquidator to a creditor or

contributory or to the company in respect of anything done by him in accordance with the

direction.

201. Whilst the court cannot make binding orders in the nature of judgments when

[204]

determining a liquidator’s application for directions,

McLelland J recognised that

the courts had, in proceedings commenced as a liquidator’s application for directions,

gone on to make orders declaratory of substantive rights “clearly intended to be of

binding effect on the parties to the proceedings, and where necessary, has made

[205]

representative orders for this purpose”:

The procedures of the court are sufficiently flexible to enable proceedings commenced as an

application for directions to be changed into proceedings for the determination of substantive

rights, and this is sometimes a convenient course in order to avoid the need to commence

further proceedings involving additional cost and delay ... However it is important that the

distinction between the two kinds of proceedings be not lost sight of or blurred, and such a

fundamental change should not be permitted unless the court is satisfied that those affected

either consent to that course ... or will not suffer injustice in consequence of the alteration of

the status of the proceedings.

202. Whilst those orders were made in the exercise of the court’s general jurisdiction, rather

than under the legislation permitting the liquidator to make an application for

directions, the capacity to move between the different categories of case was made clear.

203. McLelland J was far from convinced that there was no appeal available from an order

made by the court on a liquidator’s application for directions, notwithstanding some

statements to the contrary. In his opinion, it was strongly arguable that an order made

on a liquidator’s application for directions was an interlocutory order from which an

[206]

appeal lay with leave to the Court of Appeal.

204. In this jurisdiction, whether an order made on an application for advice or direction may

be appealed depends upon whether it is a judgment within the meaning of s 50 of the

Supreme Court Act 1935 (SA) and, in some contexts, non-parties have been regarded as

[207]

having a right of appeal with the leave of the court.

The Full Court recently

proceeded, albeit not without some reservation, on the basis that an appeal by a non-

party against ex parte advice or direction concerned an interlocutory decision and

[208]

required leave to appeal.

205. The reasons of McLelland J in Re GB Nathan & Co Pty Ltd were addressed in some

[209]

detail by Debelle J in Magarey Farlam.

That case considered the breadth of the

statutory jurisdiction to give directions to a supervisor of trust accounts appointed under

the Legal Practitioners Act 1981 (SA) (LPA 1981).

206. In that case, a law firm operated a trust account and it also incorporated a company

through which funds were invested on behalf of clients. In 2005 significant defalcations

were discovered. The Law Society appointed a supervisor of the firm’s trust account

pursuant to s 44 of the LPA 1981. It was discovered that the defalcations were larger

than first thought and affected clients who had deposited money in the trust account as

well as those who had invested in the company. The supervisor applied to the Supreme

Court for directions pursuant to s 47(1) of the LPA 1981.

207. Debelle J addressed the nature of the statutory jurisdiction to give directions and the

extent to which the costs incurred by clients of the firm were payable out of the

guarantee fund. After closely examining the “long pedigree” of the application for

directions procedure, Debelle J explained the way in which a final determination of the

[210]

rights of the parties may be addressed inter partes:

While the procedure provides protection for those whom McLelland J called official

administrators, be they a trustee or a receiver appointed by the court, it does not as a general

rule enable the determination of rights as between parties. So, where a trustee of the estate of

a deceased person applies pursuant to s 69 of the Administration of Probate Act for the advice

or the directions of the court, those directions protect and indemnify the trustee against any

claim for breach of trust, provided always that the facts have been fully and fairly disclosed but

it leaves the question open as between beneficiaries who have not been cited in the

proceedings: Re Mallen; Executor, Trustee & Agency Co of South Australia Ltd v Wooldridge

[1929] SAStRp 14; [1929] SASR 154 at 157; In Estate of Hunter [1957] SASR 194 at 196. Where

it is desirable or necessary to obtain a final determination of the rights of parties, it is

necessary to proceed inter partes: In Estate of Hunter (ibid).

Where the procedures of the court are sufficiently flexible to enable proceedings commenced

as an application for directions to be changed in proceedings for determining substantive

rights, the Court will on occasions make orders binding on the parties to those proceedings.

The Court will do so where the parties consent and the Court has, where necessary, made

representative orders for the purpose: Nathan (at 679); Harrison v Mills [1976] 1 NSWLR 42

at 45-46; Re Staff Benefits Pty Ltd [1979] 1 NSWLR 207. It is a convenient course which

avoids the need to commence further proceedings involving additional costs and delay: Anmi

Pty Ltd v Williams [1981] 2 NSWLR 138 at 156-157. Nevertheless, it is important that the

distinction between an application for directions and proceedings where it is intended to

obtain orders which bind the parties to the proceedings is recognised and not blurred: Nathan

(at 680); Re Standard Insurance Co Pty Ltd [1964] NSWR 427 and Murdoch v Crawford

[1986] VicRp 10; [1986] VR 97 at 100-101; In Estate of Hunter (at 196).

208. As has already been noted, the potential for bifurcation in the exercise of jurisdiction

[211]

requires particular care from both the parties and the court. As Debelle J warned:

Thus, generally speaking, the court will not permit proceedings commenced as an application

for directions to be changed into proceedings for determining substantive rights unless it is

satisfied that those affected are to consent to that course or will not suffer injustice in

consequence of the change in the nature of the proceedings: Nathan (at 680).

The initial application by the supervisor has caused each of the three classes of claimants to

make an application for the determination of their substantive rights. The applications are a

direct consequence of the fact that the supervisor applied for directions as to how she should

distribute the trust moneys remaining after the defalcations. However, notwithstanding that

orders with binding effect are sought and orders have been made so that all parties will be

bound, the proceedings remain the supervisor’s application.

209. Debelle J made directions with respect to the hearing of the supervisor’s application

seeking directions as to the manner in which the monies in the trust account should be

dispersed amongst the various claimants, who were represented in classes, principally

the “pooling claimants” and the “tracing claimants”. He heard evidence and submissions

during November and December 2006 and delivered his decision on 18 January

[212]

2007.

210. Subsequently, the Attorney-General appealed against those orders or directions in so far

as they permitted the costs incurred by clients of the firm to be paid from the guarantee

fund. Although the Full Court dismissed the appeal, observations were made about the

nature of the procedure as well as the precise way in which the legislation permitted

those costs to be paid. The Full Court explicitly endorsed the approach of Debelle J as to

the way an application for directions could transition into proceedings for determining

[213]

substantive rights:

The judge noted that an application for directions could be changed into proceedings for

determining substantive rights if the court’s procedures were sufficiently flexible to allow that.

It may be an appropriate course for the court to adopt to avoid additional cost and delay.

However, the court should only allow that when the parties consent and when the court has all

relevant parties before it or has, when necessary, made representative orders for that purpose.

When it is allowed, it is important to maintain the distinction between an application for

directions and proceedings for obtaining orders which bind the parties. I respectfully agree

with the reasons of the judge in this respect.

(footnote omitted)

211. When addressing the submission made by the Solicitor-General as to whether the costs

of interested parties heard on the application for directions should be payable out of the

guarantee fund, the Full Court considered the exercise of analogous jurisdictions in a

number of other contexts, including on a liquidator’s application for directions, together

with rulings to the effect that the costs of those participants should form part of the

[214]

liquidator’s costs in the winding up of the insolvent company.

Ultimately, the Full

Court ruled that s 47(2) of the LPA 1981 authorised the costs of all participants in a

supervisor’s or manager’s application for directions to be paid from the guarantee

[215]

fund.

212. Recognition of the bifurcation in jurisdiction potentially available to the court has been

[216]

recognised in a number of other contexts by the Supreme Court.

The High Court - Macedonian Church

213. In Macedonian Church the High Court considered orders made by Palmer J, sitting in

the Equity Division of the Supreme Court of New South Wales, in response to a

summons seeking judicial advice under s 63 of the Trustee Act 1925.

214. Section 63 of the Trustee Act 1925 is in the following terms:

(1) A trustee may apply to the Court for an opinion advice or direction on any

question respecting the management or administration of the trust property, or

respecting the interpretation of the trust instrument.

(2) If the trustee acts in accordance with the opinion advice or direction, the

trustee shall be deemed, so far as regards the trustee's own responsibility, to have

discharged the trustee's duty as trustee in the subject matter of the application,

provided that the trustee has not been guilty of any fraud or wilful concealment or

misrepresentation in obtaining the opinion advice or direction.

(3) Rules of court may provide for the use, on an application under this section, of

a written statement signed by the trustee or the trustee's Australian legal

practitioner, or for the use of other material, instead of evidence.

(4) Unless the rules of court otherwise provide, or the Court otherwise directs, it

shall not be necessary to serve notice of the application on any person, or to adduce

evidence by affidavit or otherwise in support of the application.

(5)-(7) (Repealed)

(8) Where the question is who are the beneficiaries or what are their rights as between

themselves, the trustee before conveying or distributing any property in accordance with the

opinion advice or direction shall, unless the Court otherwise directs, give notice to any person

whose rights as beneficiary may be prejudiced by the conveyance or distribution.

(9) The notice shall state shortly the opinion advice or direction, and the intention of the

trustee to convey or distribute in accordance therewith.

(10) Any person who claims that the person's rights as beneficiary will be prejudiced by the

conveyance or distribution may within such time as may be prescribed by rules of court, or as

may be fixed by the Court, apply to the Court for such order or directions as the circumstances

may require, and during such time and while the application is pending, the trustee shall

abstain from making the conveyance or distribution.

(11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any

application under this section is served, or to whom notice is given in accordance with

subsection (8), shall be bound by any opinion advice direction or order given or made under

this section as if the opinion advice direction or order had been given or made in proceedings

to which the person was a party.

215. Given the similarities between s 63 of the Trustee Act 1925 and s 69 of the

Administration and Probate Act, it is unsurprising that the approach of the High Court

in Macedonian Church has been regarded as relevant to the application of s 69 by the

[217]

Supreme Court of South Australia.

Those similarities should not, however, be

permitted to obscure their differences, particularly the broader jurisdiction available

under s 69 of the Administration and Probate Act.

[218]

216. The High Court noted that there were provisions similar to s 63 in Queensland,

[219]

[220]

[221]

South Australia,

Western Australia,

and the Australian Capital Territory.

In

Victoria, however, the powers given by rr 54.02 and 54.03 of the Supreme Court

(General Civil Procedure) Rules 2005 (Vic) were not derived from Lord St Leonards’ Act

but rather than from the 1883 Rules.

217. The High Court left to one side the question how far there is jurisdiction to give judicial

advice by reason of the inherent jurisdiction of a court of equity, or by reason of the

[222]

Supreme Court Act 1970 (NSW).

218. The effect of the judicial advice given by Palmer J in that case was that the entity,

[223]

described as the Association,

was justified in defending proceedings brought against

it and others by the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia

and New Zealand, and a former priest of the St Petka Parish.

219. The judicial advice included an order that the Association was entitled to have recourse

to certain property, other than Church Land, for the purposes of meeting its reasonable

costs in defending litigation up to specified amounts. The New South Wales Court of

Appeal allowed an appeal against those orders but the High Court, in turn, allowed the

[224]

appeal and restored the orders made by Palmer J.

220. The High Court addressed the New South Wales iterations of Lord St Leonards’ Act,

recognising that s 63 of the Trustee Act 1925 introduced three innovations. The first was

that advice could be given about the interpretation of a “trust instrument”, secondly that

evidence could be adduced by affidavit or otherwise and, thirdly, an express right of

[225]

appeal was created.

221. The High Court then considered the rules-based jurisdiction in England and in New

South Wales. Although Lord St Leonards’ Act was repealed in England in 1893, that step

was not taken in New South Wales. As the High Court explained, from 1925, when s 63

was introduced, the statutory facility for giving judicial advice and the rules-based

[226]

facility were usually “treated as serving the same function”.

Whilst it was necessary

[227]

to pay close attention to the provisions which founded jurisdiction,

the divergences

between the two legislative schemes did not obscure important and fundamental

similarities. One example given was how principles governing proceedings instituted

[228]

under the rules of court applied to cases such as Re Beddoe:

That there should be such similarities in the effect achieved by the different provisions is

hardly surprising when it is recognised that each is directed to the same end. Each provides

for a procedure which, if adopted, will not only protect a trustee from later complaint that he

or she should have acted otherwise, but also protect the trustee from personal liability for

costs incurred. And where the question for the Court is whether the trustee would act properly

in instituting or defending litigation, the answer given will necessarily affect the parties to that

other litigation. In particular, the judicial advice proceedings may yield an order which will

give one party to the litigation (the trustee) power to resort to a fund in order to meet the costs

incurred in pursuit or defence of the litigation.

222. As the High Court emphasised, the ruling by the Court of Appeal in Re Beddoe was that

the trustee ought only to have the costs he would have incurred had he applied for leave

to defend at the expense of the trust estate. The High Court explained that the warning

that trustees should not become involved in litigation without first seeking the court’s

[229]

sanction has become an influential aspect of the ruling in Re Beddoe.

223. When construing s 63, the High Court emphasised that it was inappropriate to make

[230]

implications or impose limitations not found in the express words of the legislation.

The only jurisdictional bar to s 63 relief was held to be the existence of a question

respecting the management or administration of the trust property or a question

[231]

respecting the interpretation of the trust instrument.

224. Similarly, the discretion conferred by the provision is “confined only by the subject

matter, scope and purpose of the legislation”. The adversarial nature of the proceedings

about which advice is sought, the tendency of the advice to foreclose an issue raised in

those proceedings, or the fact that the trustees seeking the advice are being sued for

breach of trust are not features to be accorded any “special significance” in the exercise

[232]

of discretion.

225. The High Court emphasised the summary nature of the procedure for obtaining judicial

[233]

advice,

together with the private and personal nature of the advice which is given as

“an exception to the Court’s ordinary function of deciding disputes between competing

[234]

litigants”.

226. The High Court recognised that the application of s 63 may vary with the category of

[235]

trust involved.

The Court addressed the longstanding concern by trustees about

whether they will be indemnified when they are sued, particularly for breach of trust,

given that the office of trustee is gratuitous unless a special arrangement to the contrary

is made. In that context, the provision for obtaining judicial advice about the

prosecution or defence of litigation recognises that a trustee is entitled to an indemnity

properly incurred and obtaining judicial advice will resolve doubt about whether it is

proper for a trustee to incur costs or expenses prosecuting or defending litigation. Whilst

that carries obvious advantages to trustees, it also protects “the interests of the trust”

because “the interests of the trust will not be subordinated to the trustee’s fear of

[236]

personal liability for costs”.

227. The High Court regarded it as a “necessary consequence” of the statutory provision for

judicial advice that trustees who are sued should take no step in defence of the suit

without first obtaining judicial advice, but a decision about whether it would be proper

for a trustee to defend is not to be confused with the issues agitated in the principal

[237]

proceeding:

But deciding whether it would be proper for a trustee to defend proceedings instituted about

the trust is radically different from deciding the issues that are to be agitated in the principal

proceeding. The two steps are not to be elided. In particular, the judicial advice proceedings

are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.

[238]

228. In separate, concurring reasons, Kiefel J explained:

The views expressed by their Honours in the Court of Appeal might be taken to involve a

limitation upon the power given by s 63, which is to say the jurisdiction of the Supreme Court

[239]

to give advice.

However their Honours appear to have dealt with the matter on the basis

[240]

that Palmer J’s discretion miscarried

rather than by reference to any jurisdictional bar.

Proceedings provided for by s 63 do not involve the determination of a controversy, but rather

the giving of advice or direction to a trustee with respect to questions of the kind referred to in

the section. Section 63 is an exception to a Court’s ordinary practice of deciding disputes

[241]

between competing litigants, as Palmer J observed.

But his Honour’s orders were not

determinative of the parties’ rights. The advice given was as to whether, and upon what terms,

proceedings should be pursued in order to finally determine the controversy as to the terms of

the trust upon which the Association held property. The advice was advice respecting the

interpretation of the trust instrument and was therefore within power. The interests of the

parties and the liability of the Association as trustee were to be determined, but in the Main

Proceedings.

229. As has been seen, and in contrast to the observations made in the preceding paragraph

of the reasons of Kiefel J about s 63 of the Trustee Act 1925, the proceedings provided

for by s 69 of the Administration and Probate Act are sufficiently broad to permit the

determination of a controversy, where the relevant parties are joined and the parties and

the court have made it clear that the case is not confined to the first or second category

of case earlier outlined, and is to comprise the third category of case earlier outlined.

230. Nonetheless, because the rights of beneficiaries under private trusts are at least

potentially affected by judicial advice there are certain provisions in s 63 of the Trustee

Act 1925 which require that notice be given to any person whose rights as a beneficiary

may be prejudiced by a trustee conveying or distributing any property in accordance

[242]

with the opinion, advice or direction.

High Court as striking “a compromise”:

These “protections” were described by the

[243]

However, those protections did not alter the primary function of s 63 as creating a procedure

for private advice to trustees. Even if notice of the application for private advice is given to

other persons (by reason of rules of court, or a court direction under s 63(4), or by reason of s

63(8)), those persons are not strictly speaking “parties” to “proceedings” by reason of the

closing words of s 63(11), although they are able to participate in the proceedings to some

extent. Section 63 reflects a compromise between a procedure for affording private advice to

trustees and the need for affected persons to be given a hearing in some cases.

231. Section 63 also incorporates a form of stay under s 63(10). Whilst those beneficiaries

who have been given notice or who claim prejudice do not become parties to

proceedings, s 63(11) stipulates that they “shall be bound by any opinion advice direction

or order” given as if made “in proceedings to which the person was a party”.

[244]

232. These provisions, for which there are no counterparts in other Australian states,

may be contrasted with the terms of s 69 of the Administration and Probate Act earlier

discussed, particularly ss 69(2) and 69(5).

233. As has been seen, s 69(2) essentially leaves it to trustees to determine whether an

application for advice will be made ex parte or on notice to, or upon summons served on,

[245]

“any of the parties interested”.

By s 69(5) any order made in the absence of an

interested party will “have the same effect, ... so far as regards protection to” the trustee,

as if it had been a decree or order made in an action where “all parties concerned were

represented”.

234. It is not necessary to repeat the earlier analysis of s 69(5); it is only concerned with

trustee protection and says nothing about when an interested party who has been heard

will be bound. It does not have the same effect as s 63(11) of the Trustee Act 1925.

Joinder should have been permitted

235. In my view, the primary court should have formally heard from Mrs Burke, and it should

have exercised its discretion in favour of joinder and proceeded to a binding

determination of the issues in contention.

236. The exercise of discretion under s 69 of the Administration and Probate Act was vitiated

by two errors. The first error is that the test for standing was conflated with the test for

joinder and, on that basis, Mrs Burke was not heard. Mrs Burke clearly had standing to

be heard. She should have been heard.

237. The second error is that the court proceeded to give ex parte advice in circumstances

where the nature of the case required not only that Mrs Burke be heard, but that she be

joined to facilitate the court to make a binding determination about the issues and

contentions raised by the Public Trustee and Mrs Burke.

238. My reasons are as follows.

239. First, it is clear that the court was presented with difficult questions of fact concerning

the effect of a number of documents, and the proper inferences to be drawn from those

documents, over a number of years. These included the proper inferences to be drawn

from the documents created by Mr Burke and his conduct, as well as the attitude of Lady

Badger to will-making more generally. The facility of providing private, ex parte judicial

[246]

advice or direction is not well-suited to cases raising contested facts or inferences.

240. It is difficult to see why Mrs Burke should not have been given a proper opportunity to

address the facts, even if only as contradictor to the Public Trustee on the application for

advice or direction. The court hearing a s 69 application has a broad discretion. Each

case must depend on its own particular facts and circumstances. Whilst in many cases

the facility of obtaining private judicial advice should not become unduly complicated, in

this case the facts were complex and contested. For example, the finding that the 2008

letter of expression of wishes applied to the 2012 will was far from clear-cut or

[247]

incontestable.

241. Indeed, the primary judge’s factual findings on both the application for advice or

direction and joinder were only made after she had heard submissions on joinder from

Mrs Burke’s counsel. But to hear submissions from an interested person (or a person

claiming an interest) on whether they should be heard or joined cannot be equated to

actually giving that person a formal opportunity to be properly heard and to make

submissions on the basis that she had standing to do so. Mrs Burke had sufficient

standing to require, at the least, that she be formally heard.

242. Secondly, this case raised difficult and unusual questions regarding the law applicable to

half-secret trusts. This raises considerations similar to those just addressed concerning

contestable facts. Although the primary judge found that it was not tenable that the 2012

will created something other than a half-secret trust, again she made that finding only

after hearing and rejecting submissions from counsel for Mrs Burke on the topic of

joinder. Whilst the position adopted on behalf of Mrs Burke may at times have been

difficult to discern, it would have been preferable if there was a formal contradictor to

the Public Trustee’s contentions regarding the existence and scope of the half-secret

trust identified by the Public Trustee.

243. Thirdly, the process seems to have travelled beyond the mere provision of advice or

direction. It travelled beyond a dismissal of the joinder application. Some, but not all,

contentious issues of fact and law raised by the protagonists were apparently resolved.

Although these findings were at times bound up in the language of joinder, a number of

propositions were resolved adversely to Mrs Burke as if the hearing was an inter partes

summary determination of the issues raised. For example, the court rejected various

contentions advanced for Mrs Burke as “untenable” or “unlikely” or as “against the

[248]

weight of the evidence”.

244. Fourthly, there is a danger and risk of unfairness associated with moving from an

application for advice or direction, which should often be private and expeditious, into

something approaching a summary disposition of various of the factual and legal issues

raised without giving a person who has standing the right to be heard and without the

procedure ever having been made clear. Here that occurred in an attempt to resolve

what was a convoluted application for joinder, but it amounted to summarily resolving

difficult and disputed questions of fact and law in the course of giving advice or direction

and refusing joinder, when Mrs Burke should have been given the opportunity to be

formally heard fully and finally on those matters.

245. The danger and risk of unfairness arises in two respects. First, it becomes unclear

whether the process is confined to giving advice or direction or represents something

[249]

more, akin to a summary judgment on those matters.

Whether the process binds

anyone, particularly the disaffected protagonist, becomes opaque. Secondly, there is the

risk that all relevant issues will not be properly raised and addressed. Here that included

the scope to recognise the expression of, or at least a change in, Lady Badger’s wishes

after executing the 2012 will. The factual basis for that contention was not properly

explored with the benefit of evidence from Mrs Burke on oath in a hearing. Whether that

evidence should have been accepted as credible and reliable was obviously not

addressed. Whether the evidence was otherwise admissible as an exception to the rule

against hearsay was not addressed. Whether the authorities permit a change in wishes

concerning a half-secret trust after the making of a will was not addressed either.

246. Attempts were made to address and resolve aspects of those issues on this appeal, again

under the guise of whether joinder should have been permitted. An appeal against a

refusal to order joinder is an inapt vehicle with which to grapple with these kinds of

issues.

247. Ultimately it remained unclear whether the case remained one within the first category

of case earlier outlined, with the primary judge deciding not to countenance a transition

to the second or possibly the third categories of case earlier outlined, or something else.

248. It should not be thought that this was the fault of the primary judge; it was for those

before the court, principally but not exclusively the appellant, to make very clear what

was being sought or opposed. Whilst it was important for the Public Trustee to reflect, as

she had, on whether what was being sought was appropriate for determination ex parte

or only on notice, it was also important for her to reflect on whether these issues should

be finally determined by the court.

249. There may have been understandable frustration that what had appeared to be an

expeditious and cost-effective path to resolving the difficulty and doubt arising in this

modest estate was being blocked at the last moment. Nonetheless, it was necessary for

the Public Trustee and the court to recognise that, if Mrs Burke’s contentions succeeded,

she would become entitled to the estate.

250. Fifthly, given the complexity of and contest over these various issues, it was necessary to

address them as part of a binding determination made inter partes under s 69 of the

Administration and Probate Act and the rules of court. That approach, the third

category of case earlier outlined, required that Mrs Burke be joined and given a full and

final opportunity to lead evidence and put submissions about these matters so that the

Court was in a position to make a binding determination inter partes.

251. That approach would have foreclosed a number of the problems apparent at the hearing

in February 2021 or on the hearing of this appeal where, from time to time, Mrs Burke

contended that there was further evidence which she wished to lead or arguments she

wished to put but that she had not been given the opportunity to do so.

252. It may be readily accepted that one is entitled to be a little sceptical about that

submission, particularly where some of the matters raised by Mrs Burke were not raised

until only three days before the hearing in February 2021, and where senior counsel for

Mrs Burke declined the invitation from the primary judge to adjourn the February 2021

hearing. Notwithstanding these unsatisfactory features, the explanation probably lies in

the absence of earlier legal representation, and the problem remains that difficult and

disputed issues of fact and law are best determined in the context of a binding

determination rather than on an ex parte application for advice or direction where a

person claiming an interest has not been formally heard.

253. Sixthly and finally, s 69 of the Administration and Probate Act is sufficiently broad in

scope to facilitate transition from an application for advice or direction to a binding

determination with the benefit of the joinder of Mrs Burke so as to resolve the various

issues of fact and law that the Public Trustee and Mrs Burke wished to raise. It was

relevant to consider whether to refuse joinder might have led to, or at least courted the

risk of, a multiplicity of actions.

254. The problem of a multiplicity of actions may be illustrated by considering two features

arising in a case such as this where complex, contested issues arise. First, where an

application is made for advice or direction, the Public Trustee is protected from suit

concerning the matters the subject of the application provided she has made full

disclosure and she acts in accordance with the advice or direction given by the court.

However, that does not prevent a person such as Mrs Burke from pursuing further

litigation, for example, against those who obtain the benefit of the distributed

[250]

estate.

The risk of further litigation should have been but was not avoided.

255. The second consideration concerning a multiplicity of actions is that it is ordinarily the

case that the Public Trustee, like any executor or trustee, will expect to have her costs

met out of the estate. Further litigation may well necessitate further involvement by the

Public Trustee, together with further legal costs which may be claimed from the

[251]

estate.

It may sometimes be better to join the person claiming an interest and obtain

a binding determination, rather than pressing on with private judicial advice or

direction, because the determination will foreclose any risk of further litigation and

associated costs.

256. In cases such as this case it is better to conduct one hearing rather than two or more.

That consideration may be especially important in a case where, as here, the estate is a

relatively modest one compared to the potential costs that may be incurred.

The application to adduce further evidence on appeal

257. Mrs Burke sought to adduce Mr Burke’s letter dated 24 November 2016, written soon

after Lady Badger’s death and sent to Ms Debra Woods, one of three women who were to

receive gifts under Lady Badger’s 2008 letter of expression of wishes. Mr Burke’s letter is

as follows:

Dear Debbie,

Good morning.

I trust you have a better and more restful night when you eventually got to your bed. Please

pass on my thanks to Sue, Narrisa and her sister for the personal care and attention and effort

they have put into ensuring Edith’s last hours were comfortable and happy. A big thank you to

you also for your help and support in what can only be described as a very great sadness for all

of us and myself in particular. Like you Edith and I had a very special bond. Edith requested

that, following her death, I was to offer to you, Sue and Narissa an article, item or memento of

hers so that each would remember Edith fondly. In this instance, I think perhaps Narissa’s

sister should also be included. Accordingly, will you please select and arrange for Sue, Narissa

and her sister to also select one article, item or memento from Edith’s collection of possession

... [illegible] room at “The Lodge”. Once each of you have made your selection, please let me

know and I will ... [illegible] article, item or memento in the estate papers.

The Lodge’ will require me to remove Edith’s possessions as soon as possible in order that the

accommodation may be offered to another who requires aged care. I suggest therefore, the

selection be made to today if possible.

As I explained to you early this morning, Edith’s body was to be offered to The School of

Medical Science but, in the event, the school is unable to accept any gifts prior to 4 December

2016. Accordingly, her Plan A fails and her Plan B now falls into operation. Edith’s body will

be cremated in accordance with her instructions. Edith’s ashes and, those of Geoffrey will be

conveyed to Hawaii, at some convenient future time in accordance with her written

instructions as confirmed in her last will.

I am happy for you to ‘spread the sad news’ regarding Edith’s passing. Are you able to tell me

if Father ... gave Edith the Church’s blessing before she died?

... [illegible] wishes,

Richard

258. The approach to be taken to an application to adduce further evidence on appeal has

[252]

recently been addressed by this Court.

Given the view I have reached regarding the

outcome of this appeal, it is not necessary for me to rule on this application.

259. It is however appropriate to emphasise two matters concerning this letter. The first is

that Mr Burke’s letter dated 24 November 2016 was in the possession of the Public

Trustee but not placed before the primary court. The primary judge did not see it.

Despite the efforts made by the Public Trustee to put all relevant material before the

court, the letter demonstrates that there may yet remain evidence which is relevant to

the case propounded by Mrs Burke, the significance of which has not yet been

appreciated, and why there remains utility in conducting a hearing on evidence in the

course of making a binding determination.

260. The second matter is that it is at least arguable that the content of Mr Burke’s letter

dated 24 November 2016 is inconsistent with the 2008 letter of expression of wishes.

The letter might be thought to suggest that Lady Badger no longer intended to confer

significant monetary benefits on Ms Woods ($400,000), Ms Giacobbe ($30,000) and

Ms Schuster ($10,000) but that she instructed Mr Burke, instead, to offer each of these

women an “article, item or memento of hers so that each would remember [Lady

Badger] fondly”.

261. When one remembers that the 2008 letter of expression of wishes referred only to the

2007 will and not to any other, and that no document has been discovered which

connects the 2008 letter of expression of wishes with the 2012 will, this letter represents

a piece of evidence which was admissible under ss 52 or 53 of the Evidence Act 1929

(SA) and obviously relevant to the kind of fact finding undertaken by the primary judge.

Conclusions

262. It is appropriate to now summarise the way in which s 69 of the Administration and

Probate Act should have been approached when evaluating the course which, in my

opinion, should have been taken in the primary court in this case.

263. It was for the Public Trustee to consider whether the application for advice or direction

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was appropriate for hearing ex parte or only on notice.

It was appropriate that Mrs

Burke and other interested persons were formally served and given an opportunity to

put submissions. That none of the interested parties wished to be heard provided

support for the approach initially taken.

264. However, once Mrs Burke made it plain that she had changed her position and wished to

address what were contestable issues of fact and law, the landscape changed. The

various contentions put forward by Mrs Burke gave rise to a possible interest in the

estate, sufficient to confer standing to be heard. These included contentions that the

half-secret trust under the 2012 will should not be determined by reference to the 2008

letter of expression of wishes, and that it should be determined by reference to a

statement of wishes made after the 2012 will, and by reference to the disclosure which

Mrs Burke says Mr Burke made to her before his death.

265. These contentions, combined with the prospect that, on the advice the Public Trustee

sought from the court, the estate would be wholly distributed in a way that prejudiced

Mrs Burke, demonstrated that she had standing and should formally have been heard on

the application for advice or direction.

266. The difficult and complex nature of these contentions, that they were not unarguable,

were contested and required factual and legal findings to be made by the court,

demonstrated that they were best determined in the context of a hearing inter partes

given the breadth of the jurisdiction available under ss 69(4) and 69(6) of the

Administration and Probate Act and the rules of court, rather than addressed on an ex

parte application for advice or direction. These same considerations demonstrated that

Mrs Burke should have been joined and thereby bound by any determination made by

the court.

267. That is not to say that Mrs Burke will likely succeed with these contentions. The factual

issue concerning her asserted conversation with Mr Burke about what Lady Badger told

him, beset as it is by hearsay, is far from clear. Nonetheless, the availability of further

evidence and the ruling likely to be made by the court with the benefit of evidence and

argument cannot be foreclosed or assumed. Indeed, whether Mrs Burke is likely to

succeed on these issues of fact and law is not the test. It is not appropriate to resolve

these questions summarily, without a hearing on evidence, and under the guise of

refusing joinder.

268. The court should have ordered that Mrs Burke be joined and that she put forward her

evidence and submissions fully and finally so as to facilitate a binding determination by

the court. As was acknowledged by counsel for the Public Trustee at the 25 February

2021 hearing, joinder and a final hearing of Mrs Burke’s contentions could have been

relatively easily and quickly accommodated.

269. In this case the court had determined that it did not need to hear from counsel for the

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next of kin,

and it seems that those who might benefit from a distribution in accord

with the 2008 letter of expression of wishes had declined to be heard. It seems they were

content for the Public Trustee to present the case concerning the 2008 letter or the

alternative of an intestacy. Nonetheless the formal joinder and, if necessary, the

representation of these and any other relevant parties could have been accommodated.

270. Whilst in some cases the trustee might think it better to allow the issues to be pressed or

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contradicted by classes of claimants,

the modest size of this estate and the attitude

of the other interested persons supported the alternative suggested by the Public

Trustee, where she would act as contradictor to Mrs Burke’s case.

271. Joinder with a final determination was necessary because only a binding determination

would in this case protect the Public Trustee and the estate and its beneficiaries from the

time, trouble and costs associated with further litigation. Only a binding ruling could

avoid the risk of a multiplicity of proceedings.

272. Accordingly, the hearing in February 2021 should have been adjourned so that Mrs

Burke was given her final opportunity to put her various contentions and demonstrate

whether she did or did not have any further documents or other evidence to adduce. The

court could have then finally ruled on these matters.

273. I have not addressed many of the other arguments mounted by Mrs Burke. For the

purposes of this appeal it is not necessary to address the contentions made about the

construction of the 2012 will and a so-called “hybrid” trust, nor the contentions made

regarding the criticisms of, and asserted conflict of interest affecting, the Public

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Trustee.

274. It is sufficient for the purposes of the disposition of this appeal to find that there were

issues which gave rise to a sufficient interest in Mrs Burke to be heard and which

warranted her joinder and the making of a binding determination inter partes.

275. Accordingly, I would allow the appeal.

276. DOYLE JA: The appellant (Carolyn Burke) appeals from a decision of the primary

judge refusing her application to be joined as an interested party to an application for

advice and directions brought by the respondent (the Public Trustee). The Public

Trustee’s application for advice and directions related to a proposed approach to the

distribution of the estate of Lady Edith Maud Badger OAM.

277. The primary judge refused Mrs Burke’s application for joinder on the basis that she did

not have any arguable interest in the estate of Lady Badger. Her Honour then gave

advice and directions to the effect that the Public Trustee was justified in distributing the

estate of Lady Badger in the manner proposed in the Public Trustee’s application.

Overview

278. On 24 November 2016, Lady Badger died at the age of 100, a widow with no children or

grandchildren. Her husband, Sir Geoffrey Badger, had died a number of years earlier, on

23 September 2002.

279. Lady Badger left a will dated 16 July 2012 (the 2012 will) which appointed “my friend”

Richard Burke her sole executor and trustee, and by clause 1 gave the whole of her estate

to Mr Burke on terms that he “shall distribute the same as he shall know to be in

accordance with my wishes”.

280. Mr Burke died on 29 December 2016, just over a month after Lady Badger’s death,

without having obtained a grant of probate in Lady Badger’s estate. Mr Burke left a will

dated 18 January 1997. He was survived by his widow, Mrs Burke (the appellant), whom

he named in his will as the sole executor and beneficiary of his estate.

281. Upon Mr Burke’s death, the right to executorship of Lady Badger’s estate passed to Mrs

Burke, as his legal representative. However, as explained later in these reasons, Mrs

Burke did not obtain a grant of probate in Mr Burke’s estate, and therefore did not

obtain the ability to apply for a grant in Lady Badger’s estate. Instead, the Public Trustee

obtained a grant of letters of administration with the will annexed in Mr Burke’s estate,

and a grant of letters of administration with the will annexed in Lady Badger’s estate.

282. The Public Trustee was in doubt as to the proper construction of clause 1 of the 2012 will

and the distribution of Lady Badger’s estate. The issues of concern were whether, by

clause 1 of the will, Lady Badger gave her estate to Mr Burke beneficially, or as the

trustee of a half secret trust; and, if the latter, how the objects of that trust were to be

identified.

283. As the Public Trustee was in doubt, the Public Trustee was obliged, pursuant to s 69 of

the Administration and Probate Act 1919 (SA), to make an application for judicial advice

and directions. The Public Trustee made the application on 23 July 2020. The

application sought advice and direction to the effect that the Public Trustee was justified

in distributing Lady Badger’s estate on the premise that, on the proper construction of

the 2012 will, Mr Burke took the estate as trustee of a half secret trust, with the objects of

that trust being those set out in a “Letter of Expression of Wishes of Lady Edith Maud

Badger” dated 15 August 2008 (the 2008 letter of wishes).

284. Neither Mr Burke nor Mrs Burke were named as objects in the 2008 letter of wishes. As

such, and if the estate were to be distributed in accordance with the advice and

directions sought by the Public Trustee, Mrs Burke would not have received anything

from the distribution of the estate and hence had no interest in that estate.

285. The primary judge heard the Public Trustee’s application for advice and directions on 17

August 2020, and reserved her decision.

286. On 12 November 2020, and while her Honour was still reserved, Mrs Burke made an

application to be joined as a party to the application for advice and directions. Mrs Burke

asserted that she (through her interest in Mr Burke’s estate) had an interest in Lady

Badger’s estate that warranted her joinder as an interested party to the application for

advice and directions. She sought to be joined to permit her to put an alternative

construction of clause 1 of the 2012 will to that which was contended for by the Public

Trustee, and to adduce evidence and make submissions on issues that flowed from the

construction of that clause.

287. The essence of Mrs Burke’s position was that, by clause 1 of the 2012 will, Lady Badger

had left the whole of her estate to Mr Burke beneficially, and that, as the sole beneficiary

of Mr Burke’s estate, she was entitled to that estate. Mrs Burke’s counsel ultimately

made submissions as to several other ways in which Mrs Burke (either through Mr

Burke, or in some cases directly in her own right) might have an interest in Lady

Badger’s estate. These included the possibility that even if Mr Burke took as trustee, the

beneficiaries of that trust might have included Mr Burke or Mrs Burke.

288. Mrs Burke also took issue with the Public Trustee’s pursuit of the application more

generally. Her position was that the Public Trustee had given her various assurances that

she (through Mr Burke) was entitled to Lady Badger’s estate and that the Public Trustee

would administer, and was administering, the estate in her interests. Based upon this

understanding, Mrs Burke made two related contentions. First, that the Public Trustee

was, in administering the estate, acting as her agent or trustee. Secondly, that the Public

Trustee was in a position of conflict that prevented her pursuing the application for

advice and directions.

289. While both the Public Trustee and Mrs Burke adduced some evidence addressing the

interests and matters that Mrs Burke sought to pursue through her joinder, Mrs Burke

contended that she should be joined so that she would have an opportunity to adduce

any further evidence and make full submissions in support of her asserted interest in the

estate. She opposed the primary judge addressing the issues in relation to the

construction of the 2012 will, and the distribution of the estate, ahead of her being

joined.

290. On 25 February 2021, after hearing Mrs Burke’s application for joinder, the primary

judge rejected the contentions made by Mrs Burke, both as to the Public Trustee’s ability

to pursue the application for advice and directions, and as to her asserted interest in

Lady Badger’s estate. Her Honour refused Mrs Burke’s application. The primary judge

also announced her decision that, on the proper construction of the 2012 will, Lady

Badger’s estate was given to Mr Burke as trustee of a half secret trust in favour of the

objects identified in the 2008 letter of wishes. Later, on 12 March 2021, her Honour

published her reasons for so concluding.

291. Mrs Burke now appeals the primary judge’s dismissal of her application for joinder.

Although her notice of appeal identifies 14 grounds of appeal, many of those grounds

overlap. Broadly speaking, her grounds of appeal seek to address three categories of

complaints.

292. The first category is what may be described as complaints about the Public Trustee’s

role. It includes complaints that the primary judge erred in rejecting Mrs Burke’s

contentions that the Public Trustee was acting as the agent or trustee of Mrs Burke, was

in a position of conflict, and was not entitled to pursue the application seeking orders

contrary to the interests of Mrs Burke.

293. The second category may be described as complaints relating to Mrs Burke’s asserted

interest in Lady Badger’s estate. It includes complaints to the effect that the primary

judge erred in rejecting as unarguable Mrs Burke’s contentions as to the proper

construction of the 2012 will, and as to the various bases upon which she asserted an

interest in Lady Badger’s estate.

294. The third category may be described as procedural complaints. They involve complaints

to the effect that the primary judge erred in declining Mrs Burke access to further

documents or information, or to give her further opportunity to be heard in relation to

matters relevant to the two categories of complaints already mentioned.

295. Mrs Burke has also made an application to adduce further evidence on the appeal. The

evidence was said to support the existence of her interest in the estate. I address this

issue separately towards the end of these reasons.

296. Before addressing the issues raised by Mrs Burke’s grounds of appeal, and then her

application to adduce further evidence, it is appropriate to set out the factual

background relevant to both the interests asserted by Mrs Burke and the complaints she

makes.

Factual background

297. Richard Burke, although not a qualified lawyer, worked as the ‘Manager of Wills and

Estates’ at the Adelaide law firm, Finlaysons. He held that role for a number of years

until around 2012.

298. At some point in the 1990s, Mr Burke, together with Steven Tarca (a lawyer and partner

from Finlaysons), commenced to look after Lady Badger’s affairs. It appears that the

need for assistance related, at least in part, to the fact that Lady Badger suffered from

macular degeneration and at some point in time began to experience difficulties in

reading her bills and correspondence.

299. Upon Sir Geoffrey Badger’s death in 2002, Mr Burke assisted Lady Badger to arrange his

funeral. Mr Burke was given possession of Sir Geoffrey Badger’s ashes, apparently on the

understanding that it had been his wish that his ashes be scattered in Hawaii. As

explained later, Lady Badger later came to express the same wish in relation to her own

ashes.

300. Following Sir Geoffrey Badger’s death, Mr Burke continued to assist Lady Badger in her

affairs. He regularly visited her at her home. Some of these visits were purely social in

nature. Mrs Burke also came to know Lady Badger, and on occasions, Mr Burke and Mrs

Burke both took Lady Badger on social outings. It is apparent that Lady Badger

developed a friendship with Mr Burke and, it seems, Mrs Burke.

301. Mr Burke (and Mr Tarca) continued to assist Lady Badger in the management of her

affairs until around 2012. In July 2012, Lady Badger terminated her formal engagement

of Finlaysons, but Mr Burke continued to be involved in looking after her affairs. The

capacity in which Mr Burke did so is not entirely clear on the materials before this Court,

although it appears that Mr Burke remained associated with Finlaysons in some way

through to his death in late 2016.

Earlier testamentary documents

302. The only executed will of Lady Badger before the Court is the 2012 will, although it is

apparent on the evidence that this was preceded by several earlier wills.

303. In particular, as a result of inquiries made by the Public Trustee following her

appointment in 2018, a number of documents were obtained from Finlaysons. Those

documents included a 2007 will of Lady Badger (the 2007 will), a “Letter of

Expression of Wishes of Lady Edith Maud Badger” dated 5 May 2007 (the 2007 letter

of wishes) and the 2008 letter of wishes. While these documents were unexecuted, a

letter from Mr Tarca to the Public Trustee explained that these were Finlaysons’ copies

from their files, and that while their files did not contain executed copies of the

documents, Finlaysons’ records nevertheless indicated that the executed and dated

originals of these documents had been taken from the Finlaysons’ deed safe and

delivered to Lady Badger in a deed packet in July 2012.

304. Indeed, the evidence indicated that, on 16 July 2012, Mr Burke provided Lady Badger

with a deed packet containing 23 documents. Those documents included not only the

documents mentioned above, but also an enduring power of attorney of Lady Badger

dated 17 May 2001 appointing Mr Tarca and Mr Burke as donees, and earlier wills of

Lady Badger dated 8 May 1990, 19 September 1990, 15 February 2002, 15 October 2003

and 24 November 2005.

305. Based upon the above, the primary judge found that executed versions of the 2007 will,

and the 2007 and 2008 letters of wishes, were provided to Lady Badger in July 2012.

The Public Trustee has not been able to locate the executed versions of those documents.

306. Based upon Finlaysons’ time records, the primary judge found that Mr Burke drafted

these documents.

307. The 2007 will appointed both Mr Tarca and Mr Burke as the executors and trustees of

the estate. By clause 2, Lady Badger gave the whole of her estate to “my executors and

trustees”, directing “that they shall distribute the same as they shall know to be in

accordance with my wishes”.

308. The 2007 will did not contain any detail of the objects of any trust contemplated by

clause 2. However, it would seem – and the primary judge found – that this detail was

communicated in the 2007 letter of wishes. The 2007 letter of wishes was later replaced

by the 2008 letter of wishes.

309. Each of the 2007 letter of wishes and the 2008 letter of wishes referred to the 2007 will,

and commenced with the following preamble:

The executors of the Will

of the estate of

Lady Edith Maud Badger Deceased

LETTER OF EXPRESSION OF WISHES

For the help and guidance of my executors and trustees, I have enumerated below the actions I

request my executors and trustees take during the administration of the trusts of my will dated

rd

the 23 day of April 2007. The purposes of my request is not to fetter the discretion given to

my executors and trustees but afford them guidance in the way I wish them to exercise their

discretion.

310. Each of the 2007 and 2008 letters of wishes thereafter listed a number of gifts to

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specified individuals (the most sizeable being to a close friend, Debra Woods,

with

more modest gifts to other members of Ms Woods’ family and to Narissa Schuster and

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Sue Giacobbe).

They each also specified that the residuary be given as to $5,000 to

the Queen Adelaide Club, with the balance to be distributed, by her executors and

trustees, in their absolute discretion among a large number of listed charitable

organisations.

311. Both the 2007 and 2008 letters of wishes concluded with the following words:

In my desire for privacy it is my express request that my executors and trustees ensure the

contents of this my letter of expression of wishes remain confidential at all times.

312. Based upon the above, the primary judge held that, through her 2007 will, Lady Badger

had left her estate on a half secret trust, with Mr Tarca and Mr Burke the trustees, and

with the objects of the trust as identified in the 2007 letter of wishes (later replaced by

the 2008 letter of wishes). Her Honour found that the 2008 letter of wishes was signed

by Lady Badger during an attendance upon her by Mr Burke on 15 August 2008.

Lady Badger’s 2012 will

313. The primary judge also held that the evidence established that on 16 July 2012, being the

day that Lady Badger collected from Finlaysons the deed packet containing the 2007 will

and the 2007 and 2008 letters of wishes, she also executed the 2012 will, revoked the

2001 power of attorney, and executed a deed of enduring power of attorney appointing

Mr Burke as her donee. She did so in the presence of Mr Burke.

314. The 2012 will, which has no residuary clause, provided:

THIS IS THE LAST WILL AND TESTAMENT of me EDITH MAUD BADGER of Apartment

[...] L’Estrange Street Glenside in the State of South Australia Widow AND I REVOKE all my

former testamentary dispositions.

1. I APPOINT my friend RICHARD DAVID BURKE Estates Manager of [...] Stirling South

Australia my sole executor and trustee and I GIVE the whole of my estate to him that he

shall distribute the same as he shall know to be in accordance with my wishes.

2. I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty

or tax payable in consequence of my death from the my estate, with no subsequent

appointment between any beneficiaries.

3. I EMPOWER my trustee:

(a) TO SELL, postpone sale, borrow with or without security, lease, accept

surrenders of leases, repair, manage, exchange, appropriate in specie, partition or

otherwise deal with respect to any part of my estate, for such purpose, at such time

or times, on such terms and conditions, and with such determination of value, as

my trustee thinks fit.

(b) TO RETAIN any investments held by me at my death AND TO INVEST any

part of my estate requiring investment in such existing or future forms of

investment and whether a wasting, hazardous or reversionary nature or not, as my

trustee from time to time thinks fit, with power to vary or transpose the same.

4. I DIRECT that my remains be cremated and I EXPRESS THE WISH that my ashes and

those my late husband, Geoffrey Malcolm Badger be scattered in the valleys and over the

cliffs of the Na Pali Coast off the Island of Kauai in the State of Hawaii.

315. The expression of Lady Badger’s precatory wishes in respect of her ashes in clause 4 of

the will was expanded upon in a document titled “Sir Geoffrey and Lady Edith Badger

Memorial Arrangements”, apparently signed by Lady Badger and dated 15 February

2002. This Memorial Arrangements document recorded Lady Badger’s wish that,

following her death, her ashes and those of her late husband be intermingled and

conveyed to Hawaii; and that those ashes be further intermingled with frangipani and

other sweet fragrant flowers of the Hawaiian Islands, and then scattered in the valleys

and over the cliffs of the Na Pali Coast on the Island of Kauai, just prior to sunset.

316. The Memorial Arrangements document also recorded Lady Badger’s wishes that an

amount of $30,000 be appropriated from her assets and set aside in an interest bearing

account to be named “The Badger Memorial Fund”; and that Mr Burke and Mrs Burke

take the ashes to Hawaii, with their expenses in doing so, including first class airfares

and a candle-lit dinner in the memory of Lady Edith and Sir Geoffrey Badger, to be

funded by monies held in the Fund. The document concluded with the following: “The

capital and income of the Fund is a gift to Richard and Carolyn Burke and is made freely

and voluntarily and further, is made in anticipation of my death”.

317. Sir Geoffrey Badger had been a Professor of Organic Chemistry and the Vice Chancellor

of the University of Adelaide. In his retirement he developed a keen interest in maritime

navigation, and edited a book about Captain James Cook. As the primary judge

observed, Captain Cook’s association with Hawaii may explain Lady Badger’s wishes for

her and Sir Geoffrey Badger’s ashes. The evidence also revealed that the Burkes and the

Badgers had a shared fondness for Hawaii. It was a place to which they had each

regularly travelled.

318. There was very little evidence as to the management of Lady Badger’s affairs between

her execution of the 2012 will and her death in 2016. Finlaysons’ time records suggest

that Mr Burke continued to be involved. He recorded time for numerous telephone and

in-person attendances upon Lady Badger, including to arrange for the provision and

payment of “comforts” for her.

Deaths of Lady Badger and Mr Burke

319. Lady Badger had a fall in 2016 that resulted in her being admitted to hospital. Following

her discharge from hospital, Mr Burke assisted her to move from her unit in Glenunga

into a nursing home run by Eldercare. The Glenunga unit was then sold. Lady Badger

asked Mr Burke to organise the sale of the furniture and effects from the unit, which he

did.

320. As mentioned, Lady Badger died on 24 November 2016, aged 100. Mr Burke died about

a month later, on 29 December 2016. He was aged 69, and had fallen ill, and had been

diagnosed with cancer, at some point earlier in 2016.

321. Lady Badger’s ashes ended up in the possession of Mrs Burke. However, neither Mr

Burke nor Mrs Burke ever established the bank account or otherwise arranged the fund

of $30,000 contemplated by the Memorial Arrangements document.

322. The evidence before the primary judge revealed that although Lady Badger had no

children, no living siblings and no nieces or nephews, she did have some distant relatives

who are likely to still be alive.

Administration of Lady Badger’s estate

323. Following Lady Badger’s death, Mr Burke sent an email on 24 November 2016

requesting that a Finlaysons’ file be opened, apparently in anticipation of him making an

application for probate in Lady Badger’s estate. However, he died before making any

such application.

324. In a letter from Mr Tarca of Finlaysons to the Public Trustee dated 1 March 2017, Mr

Tarca stated that Mrs Burke did not wish to seek probate in Lady Badger’s estate. In

particular, Mr Tarca wrote that Mrs Burke had advised Finlaysons:

... that she does not wish to seek a grant of probate in Lady Edith’s estate in favour of herself

as executor once she has obtained a grant of probate in her husband’s Richard Burke’s estate.

... We seek the agreement of the Public Trustee to accept and undertake the role of executor of

Lady Edith’s estate in place of the deceased executor appointed under Lady Edith’s will,

namely Richard Burke.

325. At around the same time, Mr Tarca sent a copy of Lady Badger’s 2012 will to the Public

Trustee.

326. According to the Public Trustee’s records, Mrs Burke subsequently signed a document

requesting the Public Trustee to apply for an order pursuant to s 9(1)(h) of the Public

Trustee Act 1995 (SA) in respect of Lady Badger’s estate on 28 June 2017. Under that

subsection, the Court may make an administration order “if an executor or person

entitled to administration requests the Public Trustee to apply for an order under this

section”.

327. Upon making that application, the Public Trustee was informed by the Registrar of

Probates that the affidavit in support of the application must recite the fact and date of

the grant of probate in Mr Burke’s estate to Mrs Burke. However, Mrs Burke had not

obtained a grant of probate in her husband’s estate. As the primary judge noted, the only

asset in the affidavit of assets and liabilities in respect of Mr Burke’s estate was Lady

Badger’s estate. A letter from the Public Trustee to the Registrar of Probates revealed

that all of Mr Burke’s other assets were held in joint names.

328. According to the Public Trustee’s records, on 8 January 2018, Mrs Burke requested the

Public Trustee, pursuant to s 9(1)(h) of the Public Trustee Act, to make an application

for an administration order in respect of Mr Burke’s estate.

329. On 7 June 2018, the Public Trustee obtained a grant of letters of administration with the

will annexed in Mr Burke’s estate and, on 9 August 2018, the Public Trustee obtained a

grant of letters of administration with the will annexed in Lady Badger’s estate.

330. In a letter to the Public Trustee dated 11 October 2018, Mr Tarca stated that in

Finlaysons’ view the wording of clause 1 of the 2012 will required the location of

evidence of Lady Badger’s wishes, or directions from the Court in relation to the

meaning of the words in that clause, prior to any decision and action in relation to

distribution of the estate. Mr Tarca stated that Finlaysons had not found, or otherwise

been provided with, any evidence or information to indicate Lady Badger’s wishes as

referred to in the 2012 will.

331. Thereafter, the Public Trustee engaged Adelta Legal and gave instructions to bring an

application for advice and directions.

332. According to the affidavit of assets and liabilities in respect of Lady Badger’s estate, it

had a value of $609,600. As at 23 November 2020, the Public Trustee’s records

indicated that she had got in the assets of Lady Badger’s estate and, subject to legal

expenses, had paid the estate’s debts, which had left her holding $580,148 in respect of

the estate.

333. In the course of administering Lady Badger’s estate, the Public Trustee (including

through Adelta Legal) took steps to ensure that appropriate searches had been made for

any documents that might bear upon the proper administration of that estate. In

addition to obtaining all relevant documentation from Finlaysons, searches were also

made to ensure there were no additional documents of significance with Lady Badger’s

accommodation provider, or in the papers left by Mr Burke with Mrs Burke.

334. The searches made by the Public Trustee did not reveal any document or written

evidence indicating Lady Badger’s wishes in relation to her 2012 will that was prepared

either contemporaneously with that will or subsequently. I shall return later in these

reasons to the potential significance in this context of the earlier prepared 2008 letter of

wishes.

335. The Public Trustee, through Adelta Legal, also requested that Mrs Burke deliver up the

ashes of Sir Geoffrey Badger and Lady Badger, on the basis that the scattering of the

ashes was an issue that might be addressed in the proposed application for advice and

directions. Mrs Burke provided the ashes to Adelta Legal in October 2019.

The application for advice or directions

336. On 24 July 2020, the Public Trustee filed the application for advice or directions. The

application was supported by the affidavits of the following people:

◦ Mark Jappe (solicitor from Adelta Legal) dated 23 July 2020. Mr Jappe attached

the various documents referred to earlier in these reasons, and detailed the steps

taken by the Public Trustee to ensure she had obtained all available documents and

information relevant to the issues to be addressed on the application (including a

summary of his discussions about such matters with Mrs Burke).

◦ Margaret Silverton (niece of Sir Geoffrey Badger) dated 6 July 2020. Ms Silverton

set out her understanding to the effect that Lady Badger did not have any living

close relatives, and summarised her understanding of the relationships between

Lady Badger and both Mr Burke and Debra Woods. She described Ms Woods as

having a close and caring relationship with Lady Badger.

◦ Debra Woods (friend of Lady Badger) dated 6 July 2020. Ms Woods summarised

the nature of her friendship with Lady Badger, and her (limited) understanding as

to Lady Badger’s testamentary intentions.

◦ Sue Giacobbe (friend of Lady Badger) dated 7 July 2020. Ms Giacobbe said that in

about 2002 she became a cleaner and carer for Lady Badger. She explained that

over time they developed a close friendship which continued after she ceased to

provide any paid assistance. She also summarised her (limited) understanding as

to Lady Badger’s testamentary intentions.

337. The Public Trustee arranged for each of Ms Silverton, Ms Woods, Ms Giacobbe and Mrs

Burke to be served with the application for advice and directions and the above

affidavits. However, she did not join any of these persons as a party to the application.

338. Mrs Burke attended the hearing of the Public Trustee’s application on 17 August 2020.

She did so without any legal representation. On that occasion, she declined an

opportunity for an adjournment to seek legal representation. She gave oral evidence at

the behest of the Public Trustee. As mentioned earlier, the primary judge reserved her

decision at the conclusion of this hearing.

339. There was a subsequent hearing on 12 November 2020, apparently at the instigation of

Mrs Burke, who, by this time, had legal representation. Through her counsel, Mrs Burke

made an oral application to be joined as an interested party to the application.

340. There were further hearings in relation to the Mrs Burke’s application for joinder on 21

December 2020 and 2 February 2021, culminating in a written application for joinder

dated 11 February 2021, and a substantive hearing of that application on 25 February

2021. The bases advanced for the joinder have been set out earlier in these reasons. The

application was supported by the following affidavits:

◦ Mrs Burke, dated 11 December 2020. Mrs Burke summarised the relationship that

Mr Burke and she had developed with Lady Badger, stating that they had both

become close friends of Lady Badger. She expressed general disagreement with the

affidavits of Ms Silverton, Ms Giacobbe and Ms Woods, without addressing them

in any detail. She also summarised her dealings with the Public Trustee and Adelta

Legal following her husband’s death, including what she said were several

intimations or assurances to her by representatives of the Public Trustee to the

effect that she would ultimately receive Lady Badger’s estate, and that the Public

Trustee was (at least until Adelta Legal’s involvement) administering the estates of

Lady Badger and Mr Burke so as to achieve this outcome. Mrs Burke also outlined

her contended bases for seeking to be joined to the Public Trustee’s application for

advice and directions.

◦ Thomas Abbott (solicitor for Mrs Burke) dated 3 February 2021. Mr Abbott

summarised his communications with the Adelta Legal in which he had sought

various categories of information and documentation.

341. The Public Trustee filed a responding affidavit from Mr Jappe dated 8 February 2021. In

that affidavit, he summarised the dealings between the Public Trustee and Mrs Burke,

and his own communications with Mrs Burke following the retainer of Adelta Legal. This

included a statement from Mr Jappe to the effect that he did not say anything to Mrs

Burke that could be understood as indicating that Adelta Legal or the Public Trustee

acted for her. He also said that when Mrs Burke asked him when she was likely to receive

her money, he told her that it was not clear who the beneficiaries of the estate would be,

and that this would not be known until the Court had made a decision in that regard.

The Public Trustee also filed a further affidavit from Mr Jappe dated 10 February 2021

which attached some further documentation in relation to the Public Trustee’s

administration of Lady Badger’s estate and the communications with Mrs Burke.

342. Mrs Burke relied upon a further affidavit from her solicitor Mr Abbott, dated 19

February 2021, in which he updated and elaborated upon his attempts to obtain

information and documents that Mrs Burke considered relevant to her application.

343. Mrs Burke also relied upon a third affidavit from Mr Abbott, dated 22 February 2021. In

that affidavit, Mr Abbott deposed that he had been informed by Mrs Burke and believed

that:

In 2016, after her husband became seriously ill with cancer, Lady Badger found out about his

illness and his deteriorating medical condition, including the cost of the medications that they

were required to purchase to treat Richard Burke’s deteriorating medical condition; and

Prior to his death, and presumably after the death of Lady Badger, her husband, Richard

Burke, told Mrs Burke that Lady Badger had left her entire estate to him and that Lady Badger

wished Richard Burke to have and enjoy the entirety of her estate owing to his illness and his

needs.

344. Mr Abbott’s affidavit also annexed a document which he had found in the documents

recently disclosed from the Public Trustee’s file. The document appeared to be a file note

prepared by Keith Sinkinson (a representative of the Public Trustee with whom Mrs

Burke had had dealings in relation to Lady Badger’s estate (referred to by the parties as

‘the Sinkinson note’)). While the Sinkinson note was undated, Mr Abbott considered that

it appeared to have been prepared during 2017. It referred to the death of Lady Badger,

her 2012 will and the subsequent death of Mr Burke. It then stated that Mrs Burke was

the executor of Mr Burke’s estate, but did not wish to administer the estate of Lady

Badger, and so had requested and consented to the Public Trustee doing so. The note

then mentioned that there was “some ambiguity” as to who should share in the estate.

After referring to the clause 1 appointment of, and gift to, Mr Burke, the note stated:

I am advised by Steven Tarca of Finlaysons Lawyers that they held a previous will for Lady

Badger made in 2008 in which he and Richard Burke were named as the executors. This will

contained a similar clause. At the same time as making the will Lady Badger had provided to

them details of how she wished her estate to be distributed. Richard Burke, before his death,

had engaged the services of Finlaysons to assist him with the administration of the estate.

Richard had advised that no such statement had been found with her last will. Richard’s wife,

Carolyn, advised that Richard had told her that the entire estate was to pass to him and apart

from attending to the disposal of the ashes as directed in the will there were no other

distributions to be made. This matter may need advice and direction of the Court to determine

the distribution of the estate.

345. At the conclusion of the hearing on 25 February 2021, the primary judge announced her

decisions to refuse joinder, and to give the advice and directions sought in the Public

Trustee’s application. On 12 March 2021, her Honour published her detailed reasons for

these decisions.

The role of the Public Trustee

346. A threshold issue raised by Mrs Burke, both at first instance, and on appeal, is a

complaint that the Public Trustee, in administering Lady Badger’s estate, was doing so

for and on behalf of Mrs Burke, with a view to obtaining the benefit of that estate for her

(via her late husband’s estate). As mentioned earlier, there were two related limbs to Mrs

Burke’s argument. The first was that in administering the estates of Mr Burke and Lady

Badger, the Public Trustee was doing so as agent or trustee for Mrs Burke, and was thus

not entitled to pursue the application for advice and directions that, in effect, sought the

Court’s approval to distribute the estate in a manner that was contrary to Mrs Burke’s

interests. The second was that by pursuing the application the Public Trustee was acting

in a position of conflict. The two limbs of the argument are related, it seems to me,

because they both depend upon the existence of some legal relationship between the

Public Trustee and Mrs Burke; namely, that the Public Trustee was somehow acting as

an agent or trustee for Mrs Burke, which gave rise to an obligation not to act in conflict.

347. In support of these arguments, Mrs Burke relied upon evidence of various

communications that she had had with various representatives of the Public Trustee and

the Public Trustee’s solicitors, Adelta Legal. The general effect of that evidence was that

throughout the period from her husband’s death through to at least the involvement of

Adelta Legal (and the making of the application for advice and directions), Mrs Burke

was led to believe that her husband was the sole beneficiary of Lady Badger’s estate

under the 2012 will, and that as she was in turn the sole beneficiary of her husband’s

estate, she was entitled to Lady Badger’s estate. She relied in this respect upon various

intimations or assurances to this effect that she said were made to her by representatives

of the Public Trustee. She said that it was in this context that she signed the requests

pursuant to s 9(1)(h) of the Public Trustee Act that the Public Trustee be granted probate

of the two estates, and that the reference in the affidavit of assets and liabilities for her

husband’s estate to the entirety of Lady Badger’s estate was consistent with what she had

been told and understood. Mrs Burke said that no-one from the Public Trustee ever

disabused her of this understanding, or explained to her why Adelta Legal had become

involved. She did not understand that the Public Trustee had changed its view as to who

was entitled to Lady Badger’s estate until she became involved (initially as a witness) in

the application for advice and directions brought by the Public Trustee.

348. In the circumstances, I do not think it is necessary to address in any detail the evidence

relied upon by Mrs Burke in this respect. Nor is it necessary to address in any detail the

response by the Public Trustee to this evidence. The reason for this is that, even

accepting the evidence at its highest, I do not think it is of any significance to this appeal

from the primary judge’s refusal to join Mrs Burke as an interested party on the

application for advice and direction.

349. Even taking the evidence at its highest from the perspective of Mrs Burke, I do not think

it rises any higher than a change in the Public Trustee’s view as to whom was entitled to

Lady Badger’s estate under the 2012 will. It would appear that the Public Trustee (or at

least some of its representatives with whom Mrs Burke had dealings) may have initially

taken the view, or at least assumed, that by reason of clause 1 of the 2012 will Lady

Badger had left the entirety of her estate to Mr Burke beneficially. It would also appear

that, consistently with that view or assumption, those same representatives of the Public

Trustee may have made statements, and acted in a manner, that assumed Mrs Burke

would be entitled to Lady Badger’s estate.

350. But even taken at its highest, I do not think the evidence before the primary judge

established, or was capable of establishing, any legal relationship between Mrs Burke

and the Public Trustee that somehow precluded the Public Trustee from bringing the

application for advice and directions, or otherwise gave rise to any duty or obligation

owed by the Public Trustee to Mrs Burke. In the absence of any such duty or obligation it

is meaningless to contend that the Public Trustee acted in conflict; there would be no

duty or obligation with which the Public Trustee’s actions, duties or interests might

conflict.

351. To my mind, the evidence suggests no more than a change in view on the part of the

Public Trustee as to the proper interpretation of clause 1, and hence as to how Lady

Badger’s estate should be distributed. Whether this change in view came as a result of a

communication with Mr Tarca of Finlaysons, advice from Adelta Legal, further reflection

by representatives of the Public Trustee, or some combination of the above, does not

matter. While unfortunate from Mrs Burke’s perspective, there does not appear to be

any basis for thinking that there was anything sinister or inappropriate about the

circumstances that led to the Public Trustee ultimately seeking the Court’s approval to

distribute Lady Badger’s estate on the basis that it had been left to Mr Burke as the

trustee of a half secret trust. But even if there was a basis for criticising or impugning the

Public Trustee’s conduct in this regard, the proper vehicle for pursuing that complaint

about the Public Trustee’s conduct would have been an application seeking the removal

of her from her role as administrator of the estates of Lady Badger and Mr Burke. Not

having pursued any such application, I do not regard the present application for advice

and directions as an appropriate vehicle for their ventilation.

352. In rejecting Mrs Burke’s challenge to the Public Trustee’s ability to pursue her

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application for advice and directions, the primary judge reasoned:

Mrs Burke argued on her application for joinder that she did not renounce executorship of

Edith’s estate and that the Public Trustee “got her to sign” the documents permitting the

Public Trustee to apply for grants pursuant to s 9(1)(h) in Edith’s estate and Mr Burke’s estate.

Mrs Burke sought to be joined to argue that having regard to the representations made to her

by officers of the Public Trustee, the Public Trustee was acting for as her agent and obtaining

probate for her. Mrs Burke maintained she is trustee of both Edith’s estate and Mr Burke’s

estate.

Mrs Burke contended that the conduct of the Public Trustee is such that it is no longer open to

her to seek orders which are contrary to the conduct that she has engaged in regarding Edith’s

estate and Mr Burke’s estate. Mrs Burke questioned whether the Public Trustee’s application

is properly constituted having regard to the prior orders and grants being made and whether it

is open to the Public Trustee to seek directions in Edith’s estate. She also questioned “the

finality of orders made by a Master of this Court sitting in the Probate jurisdiction”.

The Public Trustee is the lawfully appointed administrator of Edith’s estate and Mr Burke’s

estate. The grants have not been recalled or revoked. They are binding, valid, and “conclusive

as to the appointment of the Public Trustee as administrator and where the grant is with the

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will annexed conclusive as to the validity and contents of that will”.

determine the meaning of the contents or the terms of the wills.

The grants do not

Mrs Burke’s complaints and allegations regarding her interactions with the Public Trustee are

detailed extensively in her affidavit and that of her solicitor. Whether they have any basis is

not a matter for my determination and has no bearing on the proper construction of the 2012

will and the distribution of Edith’s estate which is the matter for determination on the Public

Trustee’s application.

353. I agree with the primary judge’s reasoning. Mrs Burke has not identified any basis to

impugn the lawful appointment of the Public Trustee as the administrator of the estates

of Lady Badger or Mr Burke. The grants of probate not having been recalled or revoked,

they are conclusive as to the appointments of the Public Trustee. Those appointments

are to the exclusion of the right that Mrs Burke might otherwise have had to seek grants

of probate in her own name, and act as executor or trustee of those estates, given the

terms of the wills of Lady Badger and Mr Burke.

354. As the lawfully appointed administrator of Lady Badger’s estate, the Public Trustee owed

the usual obligation to administer the estate in accordance with the terms of the 2012

will, and all of the duties and obligations attendant upon this overarching obligation.

Those obligations included the obligation under s 69 of the Administration and Probate

Act to seek advice and direction of this Court in the event of “difficulty or doubt” about

the proper distribution of the estate.

355. In administering Lady Badger’s estate, the Public Trustee was doing so in her own right.

Even if the Public Trustee commenced doing so with a belief and expectation that this

would be for the benefit of Mrs Burke, she was not doing so as an agent or trustee of Mrs

Burke. There is no basis for Mrs Burke’s contention that, in administering the estate, the

Public Trustee owed some duty to act in the interests of Mrs Burke.

356. For the reasons given, I would reject the first category of complaints made by Mrs Burke

on this appeal.

The joinder application

357. Mrs Burke’s application for joinder as a party was brought pursuant to r 22.1 of the

Uniform Civil Rules 2020 (SA). Under r 22.1(1), the Court may order the joinder of a

party to a proceeding on such conditions as it thinks fit.

358. In exercising its discretion to order that a non-party be joined as a defendant to ordinary

inter partes litigation, the Court will generally have regard to the nature and strength of

the interest relied upon by the party seeking to be joined, as well as the broader

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implications for the efficient and effective resolution of the relevant litigation.

The

applicant for joinder must make out a proper case to justify joinder; an order for joinder

will not ordinarily be made as a matter of course. In considering the sufficiency of the

interest of an applicant for joinder, it is sometimes said that the applicant must establish

[262]

an arguable case as to the existence of the relevant interest.

359. The parties to the present appeal suggested that the Court may be assisted by the test for

standing in probate matters. They referred in this respect to the articulation of that test

[263]

by McLeish JA in Gardiner v Hughes:

First, in order to establish standing, an applicant for an order revoking a grant of probate or

[264]

letters of administration must have a sufficient interest in the proceeding.

Sufficiency of

interest is established by showing that the applicant’s rights would or might be affected if the

[265]

[266]

grant were to be revoked.

The bare possibility of an interest will suffice.

360. While this formulation suggests a fairly low threshold, even the “bare possibility” of an

interest nevertheless connotes something more than a mere assertion of an interest, or

mere speculation as to the existence of the interest. While it does not require the Court

to embark upon any detailed assessment of the merits of the claimed interest, let alone

embark upon a ‘mini trial’ of that interest, the evidence must nevertheless reveal a basis,

as a matter of fact and law, for the interest said to justify joinder. Understood in this

way, I do not think the test for joinder in probate matters differs much from the test

applicable in other inter partes litigation.

361. It seems to me that different, or at least additional, considerations may apply when the

application for joinder is made in proceedings under s 69 of the Administration and

Probate Act, given the nature of the Court’s advisory jurisdiction under that section.

362. As the authorities have recognised, the provision of judicial advice to trustees serves

both to protect a trustee who acts upon the advice provided, and to protect the interests

of the trust. It achieves the latter both by ensuring that the interests of the trust do not

become subordinated to the fear a trustee might otherwise have of personal liability, and

by providing a summary style procedure to assist and guide a trustee (rather than

forcing the trustee to rely upon the more cumbersome and expensive exercise of an

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action for general administration).

363. Consistent with the above purposes of the Court’s advisory jurisdiction, an application

for judicial advice or direction does not involve the determination of a controversy inter

partes. It does not involve a trial of the issues that may arise between the trustee and any

other interested party. In that sense, the advisory jurisdiction conferred by s 69 may be

understood as an exception to the Court’s ordinary practice of deciding disputes between

competing litigants.

364. Advice provided in the exercise of the advisory jurisdiction is in the nature of private

advice to a trustee. It does not conclusively determine the substantive issues in relation

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to which the advice is sought.

It is for this reason that the terms of the advice or

directions given under s 69 are usually expressed in terms of what the trustee would be

justified in doing, or what it would be appropriate for the trustee to do.

365. The procedure provided for in s 69(2) of the Administration and Probate Act, whereby a

trustee may elect to commence an application either without notice to, or upon

summons served upon, interested parties reflects the nature of the advisory jurisdiction.

Given that the exercise of this jurisdiction does not entail making binding orders that

may affect the interests of beneficiaries, the adoption of an ex parte procedure will often

be appropriate.

366. It would appear that the jurisdiction conferred upon the Court by s 69 of the

Administration and Probate Act extends beyond this advisory jurisdiction and includes

a supplementary jurisdiction to make binding determinations. Support for this

supplementary jurisdiction may be found in the wording of s 69(4), which provides that

a judge may, upon the hearing of an application under s 69 “make any order, declaratory

or otherwise, that he sees fit as to the administration of the estate, or the construction of

the will, deed, or document, which is the subject of the application”.

367. While there is early authority against the existence of this supplementary

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jurisdiction,

more recent authority supports the potential for a flexible approach to

the Court’s jurisdiction under s 69. As Debelle J explained in Re Magarey Farlam

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Lawyers Trust Accounts (No 2):

Where the procedures of the court are sufficiently flexible to enable proceedings commenced

as an application for directions to be changed into proceedings for determining substantive

rights, the Court will on occasions make orders binding on the parties to those proceedings.

The Court will do so where the parties consent and the Court has, where necessary, made

representative orders for the purpose ... It is a convenient course which avoids the need to

commence further proceedings involving additional costs and delay ... Nevertheless it is

important that the distinction between an application for directions and proceedings where it

is intended to obtain orders which bind the parties to the proceedings is recognised and not

blurred ...

368. This flexibility would be consistent with the recognition in the Macedonian Church case

of the scope under ss 63(8)-(11) of the Trustee Act 1925 (NSW) for a ‘compromise’

procedure to be adopted, in appropriate cases, whereby affected persons may be given

notice and an opportunity to be heard, with the result that the advice may become

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binding.

369. But regardless of whether s 69 of the Administration and Probate Act confers a

supplementary binding jurisdiction upon the Court, there was no clear request that the

primary judge in the present case exercise that jurisdiction. The terms of the Public

Trustee’s application, and of the advice and directions ultimately given, make it clear

that the proceedings were based firmly in the Court’s advisory jurisdiction.

370. In exercising the Court’s advisory jurisdiction, there will be cases in which it is

appropriate to ensure that potentially affected persons are given notice of the application

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and an opportunity to be heard.

It was appropriate in the present case that Mrs

Burke be given notice and an opportunity to be heard, which she was. However, given

that the proceedings are in the nature of private advice, and do not involve any binding

determination of affected persons’ rights, it seems to me that it will be relatively rare that

a non-party will be entitled to an order that they be joined as a party (with all the

attendant rights of ordinary inter partes litigation, such as discovery and the

opportunity to participate fully in a contested hearing). If the applicant consents, then it

may be that the Court will consider it convenient to convert the proceedings into

ordinary inter partes proceedings so as to achieve a binding outcome of the matter in

dispute. But where, as here, that is not how the applicant wishes to proceed, I consider

that the Court will have a broad discretion to decline joinder.

371. The primary judge approached Mrs Burke’s application for joinder on the basis that the

issue for determination on the application was whether Mrs Burke had an arguable case

as to an interest in the Public Trustee’s application, which in turn required consideration

of whether she had an arguable case as to an interest in Lady Badger’s estate (either

directly or, more likely, through her interest in Mr Burke’s estate). This accords with the

approach adopted to applications for joinder in ordinary inter partes litigation.

372. On appeal, the Public Trustee noted the potential for an argument that a more stringent

test might apply in the case of an application for joinder to an application for advice and

directions, but ultimately did not press that argument. She was content for this Court to

approach the matter on the basis of the usual test for joinder. For the reasons I have set

out above, I have some reservations as to the appropriateness of this approach. I am not

sure that it adequately reflects the breadth of the Court’s discretion in relation to joinder

in the context of a trustee’s application for private advice. However, given the position of

the Public Trustee, I intend to approach the application on the basis the primary judge

did.

373. Since preparing these reasons, I have had the opportunity to read a draft of Livesey P’s

reasons. Consistently with the above, I agree with his Honour that the primary judge is

likely to have had power under s 69(4) of the Administration and Probate Act to

accommodate a conversion of the application for advice and directions into an inter

partes hearing, and to then make orders that would have been binding upon the parties.

374. It may be that a (late) conversion of the application for advice and directions into a

binding determination would have been a preferable course. However, it may not have

been a simple matter. There were other people who had an interest in the matters that

Mrs Burke sought to ventilate, including those who stood to benefit under the 2008

letter of wishes. It would have been necessary to give further consideration to the

positions of these people in the event of a conversion to a binding determination. It is

difficult to say whether or not their positions could have been conveniently

accommodated.

375. To my mind, the potential complications associated with a late conversion of an

application for advice and directions into a binding determination tend to underscore

the breadth of a judge’s discretion to permit a trustee to continue with their application

for advice and directions, and hence to decline any request for conversion of the

application into a binding determination, and indeed to decline to otherwise give one of

several interested parties the formal status of a party to the application or any greater

opportunity to be heard on that application than Mrs Burke was given in the present

case. It is, of course, important to bear in mind that if the application is dealt with in the

ordinary non-binding manner then this may have practical consequences for a person in

the position of Mrs Burke; however, because the orders made are not binding, that

person’s legal rights will be preserved. They will remain free to pursue those rights in the

ordinary way.

376. In any event, regardless of what may have been possible or preferable, as the authorities

summarised by Livesey P emphasise, the parties and the Court must be clear about the

way in which proceedings under s 69 of the Administration and Probate Act are being

conducted. Here, some of the issues emerged in a late and unsatisfactory manner and,

despite Mrs Burke ultimately being represented, there was never any clear application or

request that this matter be converted into a hearing that would produce a binding

outcome. The Public Trustee did not consent to her application taking on that different

form or significance, and her position before this Court was that she did not wish to

proceed in that manner. In my view, it is apparent from both the substance and form of

the primary judge’s reasons, as well as the form of the orders made, that her Honour

considered that the application remained one that was advisory in nature.

377. In the absence of any clear request by the parties that her Honour treat this as a matter

appropriate for a binding inter partes determination, or for the application for joinder to

be considered through this procedural prism, I do not think it can be said that her

Honour erred in approaching the matter in the manner she did. Indeed, while Mrs

Burke’s appeal grounds and submissions were somewhat discursive, I do not understand

any of the grounds of appeal to include a complaint to the effect that her Honour erred

in not permitting the application to be converted into a binding inter partes hearing.

Even Mrs Burke’s procedural complaints to the effect that the primary judge ought to

have given her a further opportunity to be heard did not involve any direct complaint to

the effect that her Honour ought to have required such a conversion. In those

circumstances, while I accept that it might have been preferable had the parties sought

to proceed in that way, and that the procedure of joinder may not have been entirely

apposite for an application for non-binding advice or directions, I consider it

appropriate to approach the application and appeal on the basis the primary judge did.

The interest claimed by Mrs Burke

378. Mrs Burke claimed an interest on the basis that, upon the proper construction of the

2012 will, Lady Badger gave the whole of her estate to Mr Burke beneficially. In the

alternative, she claimed an interest on the basis that even if Lady Badger left her estate

to Mr Burke on trust, she and Mr Burke were potential beneficiaries of that trust. She

contended that an interest on either of these bases was at least arguable. As explained

later, Mrs Burke also advanced several variants of these two bases for her contended

interest, however, I do not think they add materially to the arguments advanced in

support of her position.

379. The Public Trustee contested Mrs Burke’s claimed interest on the basis that, upon the

proper construction of the 2012 will, Lady Badger gave the whole of her estate to Mr

Burke on trust. As to the nature and terms of that trust, her primary contention was that

the trust was a half secret trust, and that the beneficiaries under the trust were as set out

in the 2008 letter of wishes. But importantly, as the Public Trustee further contended,

even if the beneficiaries were not as set out in the 2008 letter of wishes, there was no

basis for finding that Mr or Mrs Burke were beneficiaries. There was no evidential basis

for the Court to find any other communication of Lady Badger’s wishes, whether at the

time of the execution of her 2012 will or subsequently; let alone a communication that

identified Mr Burke (or Mrs Burke) as an intended beneficiary of those wishes. As a

result, if the beneficiaries were not as set out in the 2008 letter of wishes, then the trust

would fail for want of any identified beneficiaries, and the estate would fall to be

distributed as on an intestacy (which would not result in any distribution to Mr or Mrs

Burke). Based upon the above analysis, the Public Trustee contended that Mrs Burke

had not demonstrated any arguable basis for an interest in Lady Badger’s estate.

380. The primary judge analysed each of the above contentions and ultimately rejected Mrs

Burke’s claimed interest as untenable. It is appropriate to address each of these

contentions in turn.

381. However, before doing so, I mention for the sake of completeness that Mrs Burke also

contended that Mr Burke’s legal interest as trustee might of itself justify joinder. To the

extent this argument was pressed on appeal, I do not think it has merit. Once one

accepts the validity of the appointment of the Public Trustee to administer the estates of

Mr Burke and Lady Badger, this would include the Public Trustee acting as trustee of the

trust created through Lady Badger’s will.

The construction issue

382. The issue of construction arising under Lady Badger’s 2012 will was whether clause 1

entailed a gift of her estate to Mr Burke beneficially, or to Mr Burke on trust.

383. Mrs Burke contended that the mere fact that the Public Trustee had sought advice or

directions, predicated upon doubt about the proper distribution of the estate, was

sufficient to establish the arguability of her contention that clause 1 entailed a gift to Mr

Burke beneficially. The primary judge correctly rejected this contention on the basis that

the doubt that justified the application concerned the identification of the beneficiaries

of the trust, and hence the distribution of the estate in accordance with that trust.

384. In further contending that it was arguable that clause 1 entailed a gift to Mr Burke

beneficially, Mrs Burke focused upon the reference to Mr Burke as her friend and the

words “I GIVE the whole of my estate to him”.

385. However, these words are not to be construed in isolation. They must be construed in

the context of the balance of the wording of that clause. Immediately prior to these

words was a reference to the appointment of Mr Burke as Lady Badger’s sole executor

and trustee. And immediately after these words there was reference to the gift to Mr

Burke being so that “he shall distribute the same as he shall know to be in accordance

with my wishes.”

386. Mrs Burke did not directly address the earlier reference to Mr Burke as trustee, but

contended that the reference to the distribution of the estate was no more than an

indication that she may decide to indicate her wishes to him; but that the gift was one

made to him beneficially. She challenged the Public Trustee’s reliance upon the

references to “shall” as directory and mandatory, contending that they were merely

expressions of the future tense, and hence consistent with her construction of the clause

as involving precatory words only, and not imposing any legal obligation or condition

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upon the gift to Mr Burke.

[274]

387. In rejecting Mrs Burke’s textual argument, the primary judge explained:

In construing Edith’s will, I need to discover her intentions and the scheme she conceived for

her will. Her intentions and scheme are to be ascertained from an examination of the language

of the 2012 will viewed as a whole. This involves identifying the natural and ordinary meaning

of words and sentences used in the will in the context of all provisions in the will. In this task,

I can be aided only by such facts as existed and were known to Edith at the date of her will

which are admissible in interpreting the language of the will, but subjective evidence of Edith’s

intentions cannot be taken in account.

On my reading of the 2012 will, the first instance of the word “shall” in clause 1 obliges Mr

Burke to distribute Edith’s estate. Edith intended and the scheme she conceived for the 2012

will was that as trustee Mr Burke would distribute her estate or in other words pass it on to

secret beneficiaries. She did not intend that he hold it beneficially. In my view, the 2012 will

makes clear that Mr Burke takes the estate as trustee upon Edith’s death. The second instance

of the word “shall” relates to the obligation imposed on Edith’s trustee to distribute her estate

in accordance with her wishes, which is discussed below ...

388. The primary judge then mentioned several broader contextual considerations that she

considered provided support for her interpretation of the 2012 will.

389. The first was an inference to be drawn from a comparison between the terms of the 2012

will and the 2007 will (which was revoked by the 2012 will). As her Honour noted, the

2007 will was in generally similar terms, with the primary difference being that the 2007

will appointed both Mr Tarca and Mr Burke as executors and trustees, whereas the 2012

will appointed Mr Burke as the sole executor and trustee. Significantly, clause 2 of the

2007 will was in relevantly identical terms to clause 1 of the 2012 will in that it gave the

whole of Lady Badger’s estate to her executors and trustees (that is, Mr Tarca and Mr

Burke) with a direction that “they shall distribute the same as they shall know to be in

accordance with my wishes.” The primary judge reasoned that, having regard to the

reference in the 2007 and 2008 letters of wishes to “the administration of the trusts of

rd

my will dated 23 day of April 2007”, there could be no doubt that the 2007 will gave

[275]

Lady Badger’s estate to Mr Tarca and Mr Burke on trust. Her Honour said:

Thus, the wording of clause 2 of the 2007 will giving rise to a half secret trust being virtually

identical to the wording of clause 1 of the 2012 will supports my interpretation that on the

proper construction of the 2012 will Edith gave Mr Burke her estate to distribute to those for

whom he was holding the gift as trustee.

390. The second of the broader contextual considerations was an inference drawn from the

fact that Mr Burke, who drafted the 2012 will, was an estates manager and experienced

drafter of wills. The primary judge reasoned that had Lady Badger intended to give the

whole of her estate to Mr Burke beneficially, then it was reasonable to infer that he

would have drafted the 2012 in terms that said so more clearly or directly (such as he did

in his own will).

391. The third of the broader contextual considerations was a finding that, as an estates

manager and will drafter working in a law firm, it was most unlikely that Mr Burke

would not have been aware of his fiduciary obligations to his clients, with the result that

– if Lady Badger had intended to give the estate to him beneficially – he would have

referred her for independent legal advice. In a similar vein, her Honour reasoned that

whilst Mr Burke was not a lawyer, as an employee in Finlaysons’ wills and estate

practice, it is also most unlikely that he would have been unaware of the Australian

Professional Conduct Rules which prohibited a solicitor drawing a will under which the

[276]

solicitor receives a substantial benefit. Her Honour concluded:

It is reasonable to infer that a prudent, ethical estates manager in the position of Mr Burke

who was intimately involved in the financial affairs of an elderly client with no known relatives

and suffering macular degeneration, would have, had the client expressed the wish to make

the estates manager their sole beneficiary, referred the client for independent legal advice and

will preparation.

392. The primary judge concluded her reasoning on the construction of clause 1 by

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stating:

It is untenable and not reasonably arguable to suggest that Edith by clause 1 gave her estate

beneficially to Mr Burke.

On the proper construction of clause 1 of the 2012 will, Edith appointed Mr Burke as her sole

executor and trustee and gave him the estate to distribute to those for whom he was holding

the gift as trustee. Accordingly, Mrs Burke’s application for joinder to make submissions on

this question was refused.

393. In challenging the primary judge’s construction of clause 1, Mrs Burke took issue with

the primary judge’s reliance upon the third of the broader contextual considerations. She

pointed out that her Honour appeared to have overlooked the possibility that Mr Burke

may have advised Lady Badger that she should seek independent advice, but that Lady

Badger might nevertheless have declined to seek independent advice, or might have

sought and obtained such advice but maintained her desire to give her estate to Mr

Burke. While these are possibilities, it seems to me that, in the scenarios contemplated

by Mrs Burke’s submissions, it is likely that Mr Burke would have been keen to

document his advice to Lady Badger. No record of any such advice has been located. It

does not follow that Mr Burke did not give the contemplated advice; but the absence of

any record of that advice is a relevant factor.

394. I accept that only limited weight can be ascribed to the third of the broader contextual

considerations relied upon by the primary judge. But given the force of the balance of the

primary judge’s reasoning on the construction issue, with which I agree, I do not think

that the limited weight to be ascribed to this matter is of any moment on this appeal.

395. In addition to repeating her submissions made below, Mrs Burke contended on appeal

that the references in clause 1 to the estate being distributed in accordance with Lady

Badger’s wishes might be construed as a mere condition upon a beneficial gift to Mr

Burke, rather than as giving rise to a trust. In support of this construction, Mrs Burke

relied upon Dixon J’s recognition of the possibility of a beneficial, but conditional, gift in

a passage from his Honour’s reasons in Countess of Bective v Federal Commissioner for

[278]

[279]

Taxation,

as applied by Parker J in Duggan v White.

396. I accept that, in an appropriate case, a testamentary gift might be construed as

beneficial, but nevertheless conditional. But I do not accept that the gift in clause 1 of

Lady Badger’s 2012 will is open to this construction. In the face of the express reference

to Mr Burke as trustee, the mandatory or imperative terms in which the gift is expressed,

and the broader contextual considerations identified by the primary judge, I do not think

clause 1 can be construed as intending anything other than a disposition through the

mechanism of a trust.

397. In summary, for essentially the same reasons that the primary judge rejected as

unarguable Mrs Burke’s submissions to the effect that clause 1 should be construed as an

unconditional beneficial gift to Mr Burke (with the references to Lady Badger’s wishes

being construed as merely precatory expressions of her motives or expectations), I would

also reject as unarguable Mrs Burke’s submissions to the effect that it should be

construed as a conditional beneficial gift to Mr Burke.

398. I thus agree with the primary judge’s conclusion that Mrs Burke has not established any

arguable basis for her contention that clause 1 entailed a beneficial gift of Lady Badger’s

estate to Mr Burke. It was plainly a gift to him to hold on trust.

399. For completeness, I add that I do not think that the difficulty or doubt concerning the

identification of the objects of the clause 1 trust (addressed below) detracts in any

material way from this conclusion. For the reasons set out, I am satisfied that clause 1

conveys the requisite objective intention to create a trust. If the objects of that trust

cannot be identified on the available evidence, then the trust will fail. But so be it. This is

not a basis for impugning the objective intention that I have divined through a process of

construing the will.

The nature of the trust

400. Before the primary judge, Mrs Burke argued that, even accepting that the 2012 will

created a trust, she had an interest in the determination of the nature of the trust; that is,

whether it was a half secret trust, a fully secret trust or some hybrid form of trust. She

argued that she had an interest in this issue because the form of the trust was relevant to

the identification of the beneficiaries of the trust, and that Mr Burke (or she) may well

have been included within those beneficiaries.

401. I will deal separately, in the next section of these reasons, with the issue of whether the

Burkes might have been included within the beneficiaries of the trust. But before doing

so, it is convenient to address the primary judge’s conclusion that the trust created by

clause 1 of the 2012 was a half secret trust.

402. As the 2012 will did not disclose the terms of the trust, the Public Trustee relied upon the

species of trusts known as secret trusts. These are trusts that exist, and take effect,

outside of the will. They arise in circumstances where the testator makes a gift to a

person (the primary donee), but desires and tells the primary donee that he or she is to

hold the gift on trust for another person or persons (the secondary donee). They are

known as “secret trusts” because one reason for creating them is to keep the identity of

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the ultimate beneficiary out of the will, the will being a public document.

403. Where, on the face of the will, the primary donee takes beneficially and the trust is not

disclosed, the trust is known as a “fully secret” trust. Where the will reveals the existence

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of the secret trust, it is known as a “half secret” trust.

404. The existence of a secret trust depends upon proof of the requisite intention,

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communication and acceptance, being:

◦ an intention on the part of the testator to subject the primary donee to an

obligation in favour of the secondary donee;

◦ communication of that intention to the primary donee; and

◦ acceptance of that obligation by the primary donee, either expressly or by

implication.

405. In the case of a fully secret trust, the communication to the primary donee may occur at

any point during the testator’s life. However, as elaborated upon below, in the case of a

half secret trust, it may be that the communication needs to be made no later than the

time when the will is executed.

406. The primary judge held that the trust created through the 2012 will was not a fully secret

trust because the existence of the trust was disclosed in the terms of the will. I agree with

the primary judge’s reasoning and conclusion on this issue.

407. Having concluded that the 2012 will expressly created a trust, I also agree with the

primary judge that it follows that it was a half secret trust. The 2012 will did not disclose

the names, or otherwise describe, the intended beneficiaries of the trust. But it indicated

that those details were to be communicated separately to the trustee, Mr Burke. It did so

through the statement that Mr Burke shall distribute the estate “as he shall know to be in

accordance with my wishes”.

408. As mentioned, in order for the half secret trust to take effect, it must be communicated

to the trustee and the trustee must agree to be bound by it. The primary judge was

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prepared to infer that that occurred. Her Honour reasoned:

Mr Burke must have been informed about the intended trust by Edith and he must have

agreed to be bound by it for the trust to take effect. I infer Edith communicated her intention

to create a half secret trust when she gave Mr Burke her instruction for the 2012 will. I refer to

the matters detailed earlier in these reasons, particularly at para [39], concerning the

documents executed by Edith on 16 July 2012. The evidence clearly shows that Mr Burke

attended on Edith on 16 July 2012 when she received her documents from the deed packet in

her name from Finlaysons’ deed safe and executed the 2012 will. I also infer Mr Burke agreed

to be bound by the half secret trust created by the 2012 will when Edith confirmed her

intention to create the trust upon her execution of the will on 16 July 2012.

409. Having satisfied herself of these matters, the primary judge concluded that there was no

reasonable argument against the interpretation of the 2012 will as giving Lady Badger’s

estate to Mr Burke as a trustee of a half secret trust.

410. The subsequent death of Mr Burke (after the death of Lady Badger) is no barrier to the

Court’s recognition of this half secret trust. In Ledgerwood v Perpetual Trustee Co

[284]

Ltd,

Young J held that where a trustee of a half secret trust renounces probate, by

reason of the principle that equity will not allow a trust to fail for lack of a trustee, the

trust does not fail. In the present case, Mr Burke did not renounce probate; rather, he

died. But, as the primary judge observed, any trust created under the 2012 will was not

something that lay with Mr Burke personally. The Public Trustee, as administrator with

the will annexed, remained bound by the half secret trust of the estate if it was otherwise

valid.

411. However, as the primary judge went on to observe, a half secret trust, like any trust,

requires certainty of objects. In other words, it must be possible to identify the

beneficiaries of the half secret trust. If a half secret trust fails for lack of certainty of

objects, then the intended trustee does not take beneficially. Rather, he or she holds the

[285]

property for those who are entitled to the residue, or to the next of kin on intestacy.

412. In the present case, there was no residuary beneficiary. And, importantly, so far as Mrs

Burke’s joinder application is concerned, she had no entitlement as next of kin on

intestacy. The consequence of this is that if, for some reason, the half secret trust that the

primary judge found Lady Badger intended to create through clause 1 of her will did fail

for uncertainty of objects, this was incapable of giving rise to any interest on the part of

Mrs Burke. Rather, her application for joinder required that she demonstrate a

possibility that Mr Burke (or she) might have been nominated as a beneficiary of the half

secret trust. The trial judge rejected this possibility as unarguable. I address this issue in

the next section of these reasons.

413. Before turning to address the identification of the beneficiaries or objects of the half

secret trust created by clause 1, I mention Mrs Burke’s argument that clause 1 might

have involved the creation of some hybrid form of trust. As I understand that argument,

it involved a contention to the effect that clause 1 might be construed as providing for

some form of contingent half secret trust; that is, the gift contemplated, and would take

effect as, a half secret trust if and when Lady Badger communicated her wishes and they

were accepted by Mr Burke, but in the absence of that communication occurring prior to

Lady Badger’s death, the gift would take effect as a beneficial gift to Mr Burke.

414. For the reasons explained later, I accept that it is reasonably arguable that a

communication of the objects of a half secret trust that occurs after execution of the will

may give rise to a valid half secret trust. However, I do not accept Mrs Burke’s

contention that, in the event that the objects are not communicated, then the gift

somehow reverts to a beneficial gift to the putative trustee. To the extent that the law

might recognise a species of floating or contingent half secret trust that would operate in

the manner contemplated by Mrs Burke’s submissions, there is no textual basis in clause

1 of Lady Badger’s will for its existence in the present case.

Identification of the beneficiaries of the half secret trust

415. Having accepted that the 2012 will is to be construed as giving rise to a half secret trust,

the issue becomes whether the half secret trust that Lady Badger intended to create

through clause 1 of the 2012 will was sufficiently certain to permit distribution in

accordance with the identified wishes of Lady Badger, or whether the object or objects of

those wishes were unable to be proved, or were otherwise uncertain, with the result that

the half secret trust was not validly created and the estate would be distributed as on

intestacy.

416. The Public Trustee submitted that the beneficiaries or objects of the half secret trust

were those identified in the 2008 letter of wishes.

417. Mrs Burke sought to be joined not only to oppose the Public Trustee’s contention that

the 2012 will created a half secret trust, with the objects or beneficiaries of that trust

being as identified in the 2008 letter of wishes, but also to advance an argument that Mr

Burke (or she) were beneficiaries of any such trust.

418. Mrs Burke argued, for example, that it was possible that at the time Lady Badger made

her will she had other beneficiaries in mind, but that later, as their friendship grew and

after Mr Burke became ill in 2016, she may have wished for him to take beneficially, and

may have expressed that wish to him.

419. In support of this possibility, Mrs Burke relied upon two aspects of the evidence adduced

on the joinder application. The first was the following passage from the affidavit of Mrs

Burke’s solicitor, Mr Abbott dated 22 February 2021 in which he set out his instructions

from Mrs Burke as to her knowledge of Lady Badger’s wishes:

In 2016, after her husband became seriously ill with cancer, Lady Badger found out about his

illness and his deteriorating condition, including the cost of medications that they were

required to purchase to treat Richard Burke’s deteriorating medical condition; and

Prior to his death, and presumably after the death of Lady Badger, her husband, Richard

Burke, told Mrs Burke that Lady Badger had left her entire estate to him and that Lady Badger

wished Richard Burke to have and enjoy the entirety of her estate owing to his illness and his

needs.

420. Mrs Burke also relied upon the following passage from the Sinkinson note, being the file

note apparently prepared by Mr Sinkinson of the Public Trustee’s office in 2017:

Richard’s wife Carolyn, advised that Richard had told her that the entire estate was to pass to

him and apart from attending to the disposal of the ashes as directed in the will there were no

other distributions to be made.

421. The primary judge ultimately found in favour of the Public Trustee’s contention that the

objects of the half secret trust were as set out in the 2008 letter of wishes. More

importantly, given that the present appeal involves a challenge to the correctness of the

primary judge’s refusal to join Mrs Burke (rather than an appeal against the judge’s

advice or direction that the Public Trustee would be justified in distributing the estate in

accordance with the 2008 letter of wishes), the primary judge rejected as untenable Mrs

Burke’s contentions that Mr Burke (or she) were nominated as objects of the half secret

trust (either at the outset, or through some later nomination or replacement of the

objects).

422. Before turning to address the detail of the primary judge’s reasoning on this issue it is

appropriate to mention an issue of principle that was a potential obstacle to Mrs Burke’s

contentions, to the extent that they depended upon the nomination of Mr Burke (or her)

as an object of the half secret trust at a point in time after the execution of Lady Badger’s

will.

423. In the case of a fully secret trust, it is accepted that the requisite communication (and

acceptance) of the testator’s intention that the primary donee hold on trust for the

secondary donee may occur at any time prior to the testator’s death. In the case of a half

secret trust, the position is less clear. There is English authority to the effect that this

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communication (and acceptance) must occur no later than the execution of the will.

[287]

424. However, in Ledgerwood v Perpetual Trustee Co Ltd,

Young J surveyed the

authorities and academic literature in the area, and concluded that there was no reason

in principle why the position in respect of a half secret trust should differ from that

which applies in respect of a fully secret trust. As his Honour explained, the weight of

judicial authority and academic opinion suggests that the juristic basis for a half secret

trust lies in the effect the communication and acceptance has on the conscience of the

primary donee, with the result that the trust takes effect outside of the will. Accepting

this to be so, there is, with respect, much force in his Honour’s conclusion that there is

no logical basis for distinguishing between fully secret and half secret trusts in relation

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to the timing of the requisite communication and acceptance.

425. That said, I do not consider it necessary to express any concluded view on the issue. The

reason for this is that Mrs Burke’s appeal does not call for any concluded view as to the

objects of the half secret trust created by clause 1 of Lady Badger’s will. Rather, the issue

is whether Mrs Burke demonstrated an arguable case, or a possibility, that Mr Burke (or

she) was a beneficiary of the half secret trust. In this context, it is sufficient for Mrs

Burke’s purposes that I accept that it is at least arguable that an expression of wishes (or

[289]

indeed, a variation to, or replacement, of an earlier expression of wishes

) after the

execution of the 2012 will, but before Lady Badger’s death, would be valid and binding.

426. I return to the primary judge’s reasoning in support of her conclusion that the objects of

the half secret trust in the 2012 will were as set out in the 2008 letter of wishes. Her

Honour commenced by observing that there was no evidence that any other

memorandum or letter of wishes was provided to Finlaysons with the 2012 will. Her

Honour noted in this context that Mr Tarca had confirmed that there were no further

testamentary documents in the possession of Finlaysons. And the searches made by the

Public Trustee have not otherwise located any such documents.

427. The primary judge next observed that it appeared from the evidence that Lady Badger

was in possession of the original executed 2008 letter of wishes when she made the 2012

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will. Her Honour explained:

It appears, having regard to the letter to Edith from Mr Burke dated 11 July 2012, that Edith

requested the deed packet and that Mr Burke assisted Edith in having her documents removed

from the deed safe. Edith acknowledged receipt of those documents on 16 July 2012, which

documents included the 2007 will, the 2008 [letter of wishes], and the enduring power of

attorney given to Mr Tarca and Mr Burke. On the same day Edith executed the 2012 will

revoking the 2007 will, she also revoked the enduring power of attorney given to Mr Tarca and

Mr Burke and executed an enduring power of attorney in Mr Burke’s favour. I therefore infer

that Edith had in her possession the original executed 2007 will and the original executed

2008 [letter of wishes] when she made the 2012 will.

428. The primary judge reiterated the validity of the earlier half secret trust created through

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Lady Badger’s 2007 will, with the objects as set out in the 2008 letter of wishes.

As

her Honour observed, it reflected an apparent desire by Lady Badger to keep the objects

of her bequests secret.

429. The issue was whether, when making her 2012 will, Lady Badger communicated her

wishes to Mr Burke, either orally or in writing. Having noted that the only testamentary

documents or letters of wishes before the Court were those to which reference has

already been made in these reasons, her Honour said that there was “no evidence before

me to suggest that a [letter of wishes] was made after the [2008 letter of wishes], at the

time of the making of the 2012 will, or after the making of the 2012 will before [Lady

[292]

Badger’s] death.”

letter of wishes.

The only written evidence of Lady Badger’s wishes was the 2008

430. The primary judge considered it “unlikely that [Lady Badger] would make the 2012 will

and then simply rely upon an oral statement to Mr Burke as to the potential objects of

[293]

her trust.”

Her Honour reasoned that Lady Badger had engaged in prudent will-

making and executed the 2007 and 2008 letters of wishes with professional assistance.

Her Honour concluded that it “would seem against the weight of the evidence that in

2012 or later she in fact told Mr Burke orally what she wanted, and he kept no record of

[294]

it.”

Her Honour added that it was also very unlikely that Mr Burke, an experienced

estates manager, would have lost, or not have provided to Finlaysons, any documentary

expression of wishes prepared contemporaneously with the execution of the 2012 will.

431. The primary judge was satisfied on the evidence that Lady Badger and Mr Burke were

aware of the 2008 letter of wishes at the time the 2012 will was executed. On her

Honour’s findings, it had been executed in August 2008, with the executed original kept

in Finlaysons’ deed safe until it was provided to Lady Badger, in the deed packet of

documents requested by her, contemporaneously with her execution of the 2012 will in

July 2012. The primary judge was satisfied, on the evidence, that when Lady Badger

made her 2012 will, “her wishes were the same as those recorded in [2008 letter of

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wishes] signed by her.”

432. Importantly, for the purposes of the present appeal (being an appeal from the refusal of

joinder rather than the advice or directions given by the primary judge), the primary

judge went on to conclude that she was also not satisfied that there was any tenable basis

in the evidence for the suggested possibility that Lady Badger might have made some

other communication of her wishes to Mr Burke, either at the time of execution of the

[296]

2012 will or later.

433. In this respect, the primary judge again noted the likelihood that Mr Burke would have

referred Lady Badger for independent advice had she expressed a wish to benefit

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him:

It is reasonable to infer that a prudent, ethical estates manager in the position of Mr Burke

who had prepared a will containing a half secret trust for an elderly client (with no known

relatives and suffering macular degeneration) and who was intimately involved in the financial

affairs of that client would have, had the client expressed the wish to make the estates

manager and/or the estates manager’s relative the objects of the half secret trust, referred the

client for independent legal advice and will preparation.

434. The primary judge was also dismissive of Mrs Burke’s reliance upon Mr Burke’s illness,

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the Sinkinson note and the evidence of Mr Abbott. Her Honour explained:

Mrs Burke asserted that Edith found out about Mr Burke’s illness in 2016 and expressed the

wish that Mr Burke have the entirety of her estate (“the purported expression of wish”). Mrs

Burke contended that the Sinkinson note supports her instructions, as deposed to in Mr

Abbott’s affidavit sworn on 22 February 2021.

I note that Mrs Burke made no mention of the purported expression of wish in her affidavit of

11 December 2020. Acknowledging that Mrs Burke did not have the benefit of legal

representation when she gave evidence on 17 August 2020, I also note that she made no

mention of the purported expression of wish. Rather, her focus was on the $30,000 pursuant

to the Memorial Arrangements document.

Edith was aged 99 in 2016 and Mr Burke appears to have been managing her financial affairs

up until her death. It is most unlikely that had Edith told Mr Burke she wished for him to take

her whole estate that he – being a prudent and ethical estates manager – would not have

referred her for independent advice and will making.

The assertion of the purported expression of wish is untenable and the matters deposed to in

Mr Abbott’s affidavit of 22 February 2021 are not reasonably arguable to justify an order for

joinder of Mrs Burke to the Public Trustee’s application. Mrs Burke has no interest in making

submissions in relation to the half secret trust or its beneficial objects. If the half secret trust

fails, Edith’s estate does not go to Mrs Burke but on an intestacy.

[299]

435. The primary judge concluded:

Having considered the evidence before the Court, I am satisfied that when Edith made the

2012 will her wishes were the same as those recorded in the 2008 LOEW signed by her. There

is no tenable evidence before the Court to suggest those wishes were later replaced by Edith.

I am satisfied that the half secret trust in the 2012 will is not void for uncertainty and the

objects of the gift in it are defined in the 2008 LOEW.

436. Relying upon these conclusions, the primary judge refused Mrs Burke’s application for

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joinder, explaining:

Mrs Burke has no interest in making submissions regarding the identities of the beneficial

objects of the half secret trust as she has no interest in Edith’s estate. The only evidence of a

gift to Mr Burke and/or to Mrs Burke by Edith is in the context of the Memorial Arrangement

document. It is untenable to suggest that Mr Burke or Mrs Burke are entitled to receive the

estate beneficially. Accordingly, Mrs Burke’s application for joinder to make submissions on

whether the trust was a secret or half secret trust question was refused. I also refuse her

application to make submissions regarding the identity of the beneficial objects of the half

secret trust.

437. In my view, the issue of whether the evidence established a proper basis for the primary

judge’s conclusion that the objects of the half secret trust in clause 1 of the 2012 will were

as set out in the 2008 letter of wishes was finally balanced.

438. It is significant, in my view, that the 2008 letter of wishes was, in its terms, directed to

the half secret trust created under the 2007 will. It follows that the primary judge’s

conclusion that the 2008 letter of wishes identified the objects of the half secret trust

created under the 2012 will entailed an implicit conclusion that, when executing her

2012 will, Lady Badger communicated her desire that her 2008 wishes would, from that

time, apply in respect of the 2012 will (despite that will not being mentioned in the 2008

letter of wishes). It would seem that her Honour had in mind an oral communication to

this effect. While such a communication was entirely possible, one might have expected

a fresh documentary record of those wishes to have been created that referred in terms

to the 2012 will. The absence of any such documentary record (whether because it was

not created, or because it has been lost) sits a little uncomfortably with the primary

judge’s emphasis, in this context and elsewhere, upon both Lady Badger’s practice of

seeking, and Mr Burke’s practice of providing, prudent and professional testamentary

services.

439. In short, while there is some force in the primary judge’s reasoning as to the applicability

of the 2008 letter of wishes, the issue is finely balanced.

440. However, this does not assist Mrs Burke. In order for her to establish an arguable

interest in Lady Badger’s estate, it was necessary for her to establish an arguable basis

for contending that Mr Burke was nominated as an object of the half secret trust. For

essentially the reasons given by the primary judge, the evidence that she relied upon fell

short of what was required to justify her joinder.

441. In considering the evidence relied upon by Mrs Burke in this context, it is important to

retain a focus upon the need for her to establish an arguable basis for a communication

by Lady Badger to Mr Burke that he was to be a (or the) beneficiary of the half secret

trust under the 2012 will. (While Mrs Burke at times submitted that she might herself

have been a beneficiary under that trust, there was simply no evidence at all to support

this submission. This speculative possibility can thus be put to one side.)

442. There was undoubtedly an evidential basis before the primary judge for contending that

Mr Burke had a long association with Lady Badger, and that he came to be a friend of

Lady Badger. Indeed, Lady Badger described him as her “friend” in clause 1 of her will.

As such, there was a basis for contending that Mr Burke was someone who Lady Badger

might well have wished to benefit through her estate; and that it would not have been

surprising had she chosen to do so. Further, the prospect of Lady Badger wishing to

benefit Mr Burke might be said to have increased in 2016 once Lady Badger learned of

Mr Burke’s illness.

443. But the evidence suggesting that Lady Badger may have wished to benefit Mr Burke was

not enough. It was insufficient to establish an arguable basis for Mrs Burke’s contention

that Lady Badger made any particular communication of her wishes to Mr Burke,

whether in July 2012 or subsequently, that included him as a beneficiary of the trust

created under the 2012 will.

444. There was no direct evidence of any such communication. The high point of the evidence

in this respect was the hearsay evidence in the form of the passages from the affidavit of

Mr Abbott and the Sinkinson note referred to above.

445. The passage from the affidavit of Mr Abbott was double hearsay and very general in its

terms. It amounted to no more than a statement from Mr Abbott, on information and

belief from Mrs Burke, that at some point prior to Mr Burke’s death, but “presumably

after the death of Lady Badger”, Mr Burke had told her that Lady Badger “had left her

entire estate to him and ... wished [him] to have and enjoy the entirety of her estate

owing to his illness and his needs”.

446. Even assuming Mrs Burke were to give evidence to this effect, it would still be

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hearsay.

And given that Mr Burke and Lady Badger are both deceased it does not

seem that the evidence will ever rise any higher than this.

447. In addition to being hearsay, the evidence is entirely non-specific as to the timing,

nature or terms of any communication by Lady Badger to Mr Burke of her wishes. The

reference to Mr Burke’s illness suggests the contemplated communication must have

occurred in 2016, and so some four years after the creation of the half secret trust. That

would leave uncertain whether there was some interim expression of wishes, with the

result that the evidence was intended to establish a replacement or variation of those

wishes. Importantly, the evidence does not address the manner in which Lady Badger

intended to benefit Mr Burke; that is, whether she was merely contemplating that she

might alter her will to make him a (or the) beneficiary, or whether she had

communicated an intention that he be a beneficiary under the existing half secret trust.

448. In short, the evidence of Mr Abbott provides no real basis at all for the contention that

Lady Badger made Mr Burke a beneficiary of the half secret trust that she created in her

2012 will. If Mrs Burke was in a position to add any detail or precision, it is difficult to

see why that was not included within the affidavit material placed before the Court,

given that the very purpose of those affidavits was to demonstrate the basis for Mrs

Burke’s asserted interest in Lady Badger’s estate. But even taking a flexible approach

that allows for the possibility that, if pressed on the issue, Mrs Burke may be able to

provide some additional (hearsay) detail and colour, I am not persuaded that the

evidence is capable of establishing anything more than a speculative basis for the

asserted interest.

449. The passage from the Sinkinson note suffers from similar defects. Again, it is double

hearsay evidence of a most general kind. In this case, the note apparently contains a

record of Mr Sinkinson’s recollection of a conversation with Mrs Burke, which

presumably took place in early 2017, in which Mrs Burke said that Mr Burke had told her

“that the entire estate was to pass to him”.

450. Even accepting that the note is likely to have been prepared relatively

contemporaneously with Mr Sinkinson’s conversation with Mrs Burke, and is an

accurate record of that conversation, the evidence remains very general. And even if it be

assumed that Mrs Burke could give evidence to the effect of what she apparently said to

Mr Sinkinson, the evidence would remain hearsay and very general in its terms. It does

not add in any material way to the passage from the affidavit of Mr Abbott.

451. It was not suggested that Mrs Burke could give any evidence that rose any higher than

the passages from the Mr Abbott affidavit and Sinkinson note to which I have referred.

Certainly there was no suggestion that she could give any direct evidence of a relevant

communication between Lady Badger and Mr Burke. Mrs Burke does not purport to

have been privy to any communication by Lady Badger as to her testamentary wishes, let

alone a communication by Lady Badger as to the objects of the half secret trust in her

2012 will.

452. In my view, there was simply no evidential foundation for Mrs Burke’s contention that

Mr Burke might have been an object of the half secret trust created through clause 1 of

the 2012 will. The evidence fell short of establishing any arguable basis for the requisite

communication by Lady Badger to Mr Burke to the effect that he was a (or the)

beneficiary of the half secret trust. Mrs Burke’s asserted interest in the estate was based

upon little more than speculation.

Application to adduce further evidence

453. Mrs Burke sought to adduce further fresh evidence on appeal in the form of an email

from Mr Burke to Ms Woods (a friend of Lady Badger) dated 24 November 2016. The

email only recently came to the attention of Mrs Burke’s advisors, and is a

communication that occurred only a few hours after Lady Badger died. For the reasons

developed below, Mrs Burke contends that the evidence is relevant to her asserted

interest in Lady Badger’s estate.

454. The email was in the following terms:

Dear Debbie,

Good morning.

I trust you [had] a better and more restful night when you eventually got to your bed. Please

pass on my thanks to Sue, Narrisa and her sister for the personal care and attention and effort

they have put in ensuring Edith’s last hours were comfortable and happy. A big thank you to

you also for your help and support in what can only be described as a very great sadness for all

of us and myself in particular. Like you, Edith and I had a very special bond. Edith requested

that, following her death, I was to offer to you, Sue and Narissa an article, item or memento of

hers so that each would remember Edith fondly. In this instance, I think perhaps Narissa’s

sister should also be included. Accordingly, will you please select and arrange for Sue, Narissa

and her sister to also select one article, item or memento from Edith’s collection of

possessions in her room at ‘The Lodge’. Once each of you have made your selection, please let

me know and I will record the article, item or memento in the estate papers.

‘The Lodge’ will require me to remove Edith’s possessions as soon as possible in order that the

accommodation may be offered to another who requires aged care. I suggest therefore, the

selection be made today if possible.

As I explained to you early this morning, Edith’s body was to be offered to The School of

Medical Science. But, in the event, the school is unable to accept any gifts prior to 4 December

2016. Accordingly, her Plan A fails and her Plan B now falls into operation. Edith’s body will

be cremated in accordance with her instructions. Edith’s ashes and those of Geoffrey will be

conveyed to Hawaii, at some convenient future time in accordance with her written

instructions as confirmed in her last will.

I am happy for you to ‘spread the sad news’ regarding Edith’s passing. Are you able to tell me

if Father Prince gave Edith the Church’s blessing before she died?

Warmest wishes,

Richard

Richard D Burke

Executor

455. The principles governing the reception of further evidence on an appeal are well known,

and do not require any detailed exposition. In short, the Court has a broad discretion

under r 218.17(1)(c) of the Uniform Civil Rules 2020 (SA) to receive further evidence on

a question of fact that arises on an appeal. The discretion is not circumscribed by the

[302]

common law principles governing the reception of “fresh evidence” on appeal,

although similar considerations apply. In particular, it will generally be relevant to

[303]

consider:

◦ whether the evidence was available, or could with reasonable diligence have been

obtained, for use at the hearing below;

◦ whether the evidence is such that it would have had an important influence on the

decision below. While it need not necessarily be decisive, it must be more than

merely relevant or useful;

◦ the likely practical impact of receiving the evidence, including whether it is

controversial or contested, and if so likely to require cross-examination, further

responding evidence and/or that the matter be remitted for rehearing; and

◦ the public interest in the finality of litigation.

456. The relevance of the last two considerations, and in particular the public interest in

finality, was emphasised by the Full Court in both Chakravarti v Advertiser

[304]

Newspapers Ltd

and Collex Waste Management Services Pty Ltd v The

[305]

Corporation of the City of Enfield (No 2).

457. Addressing the first of the relevant considerations identified above, the email was

located within the files of the Public Trustee. It was included within “a large bundle of

photocopied documents” provided to Mrs Burke’s solicitors on 11 February 2021, and

hence was in their possession at the time of the hearing of Mrs Burke’s application for

joinder. In that sense, the document was one that was available, or could with

reasonable diligence have been available, for use by Mrs Burke at that hearing.

458. That said, it is nevertheless relevant that the document had always been available to the

Public Trustee, and only came into the possession of Mrs Burke’s solicitors relatively late

in the piece and as part of a large number of documents. As an affidavit from Mrs

Burke’s solicitor frankly acknowledges, when he first reviewed these documents he did

not appreciate the potential significance of this email. That only became apparent to him

after the primary judge had delivered her reasons and he was preparing the matter for

appeal. In my view, the failure to appreciate the potential significance of this email in a

timely manner was understandable given the relatively late and evolving nature of Mrs

Burke’s involvement in the matter.

459. More importantly, however, I am not satisfied that the email would have had an

important influence upon the outcome of the hearing before the primary judge.

460. Mrs Burke relies upon the email as supporting her case that Mr Burke was the recipient

of oral wishes from Lady Badger after the date of the 2012 will and prior to her death.

Mrs Burke relies in this respect upon two particular passages from the email. The first is

the reference to Lady Badger having “requested that, following her death, I was to offer

to you, Sue [Giacobbe] and Narissa [Schuster] an article, item or memento of hers so

that each of you would remember Edith fondly.” The second is the reference to Lady

Badger’s desire that her body be offered to The School of Medical Science.

461. It is true that the email provides some evidence that Lady Badger communicated with

Mr Burke about her (post-death) wishes at some point in the lead up to her death.

However, I do not think the passages relied upon carry the significance that Mrs Burke

seeks to attribute to them.

462. As to the first passage, Mrs Burke contends that it shows that Lady Badger no longer

wished to benefit Ms Woods, Ms Giacobbe and Ms Schuster in the manner specified in

the 2008 letter of wishes. The 2008 letter of wishes specified distributions of up to

[306]

[307]

$400,000 to Ms Woods,

$30,000 to Ms Giacobbe

and $10,000 to Ms Schuster.

Mrs Burke contends that it can be inferred from this first passage from the email that

Lady Badger communicated to Mr Burke that she no longer wished to benefit these

women in accordance with the 2008 letter of wishes; that she wished to confine their

benefit to an “article, item or memento”.

463. I do not draw this inference from the email. I do not read the email as providing any

basis for impugning the ongoing applicability of the 2008 letter of wishes. To my mind,

the email suggests a more limited and informal communication by Lady Badger,

probably in the immediate lead up to her death, to the effect that she wished these

women to have a token by which to remember her. I do not think any such

communication suggests that Lady Badger wished to confine these women to these

tokens, or is otherwise inconsistent with the objects of the half secret trust created

through the 2012 will remaining as set out in the 2008 letter of wishes. This

construction of the email, as suggestive of an informal communication rather than a

communication as to the objects of the half secret trust, is supported by Mr Burke’s

statement in the following sentence of the email that “I think perhaps Narissa’s sister

should also be included.” Mr Burke could not have believed that he could simply add a

person to the objects of the trust, whereas he might well have considered it appropriate

to include Ms Schuster’s sister amongst the persons to receive a mere token from Lady

Badger’s possessions.

464. Further, even if this first passage from the email might be construed as bearing upon the

probability of the objects of the half secret trust being as set out in the 2008 letter of

wishes, it does not bear directly upon the issues relevant to the outcome of the joinder

application. Success on the joinder application turned upon Mrs Burke establishing

some basis for contending that she had some interest in Lady Badger’s estate, and not

simply challenging the primary judge’s conclusion in relation to the 2008 letter of

wishes. While I accept that the two issues overlap to some extent, the joinder application

was nevertheless focused upon the former rather than the latter.

465. As to the second passage from the email, Mrs Burke points out that it implied a

communication to Mr Burke in relation to Lady Badger’s body (namely, that it be offered

to the School of Medical Science) that differed from the wish expressed in her 2012 will

(namely, that her body be cremated and her ashes scattered off the coast of Hawaii).

That may well be so, but I do not see how this would have influenced the outcome of the

joinder application. While it suggests that Lady Badger did communicate with Mr Burke

about her post-death wishes in the period following the execution of her 2012 will, this is

hardly surprising given that Mr Burke was her friend and the sole executor under her

2012 will. But the apparent variation in her wishes as to her body does not bear directly

upon the objects of the half secret trust she had established (or the relevance of the 2008

letter of wishes to the same), let alone upon the existence of some interest on the part

Mrs Burke under that trust.

466. Having regard to the very limited relevance of the 24 November 2016 email from Mr

Burke to Ms Woods, I would decline the application to receive it as further evidence on

Mrs Burke’s appeal from the primary judge’s decision to refuse her application for

joinder.

Procedural complaints

467. Mrs Burke’s grounds of appeal include complaints to the effect that she was denied

procedural fairness, both in respect of her case that the Public Trustee had a conflict of

interest, and in respect of her case that she had an arguable interest in the estate of Lady

Badger.

468. I have earlier in these reasons recounted the procedural history to Mrs Burke’s joinder

application. Relevantly, Mrs Burke was served with a copy of the Public Trustee’s

application for advice and directions dated 24 July 2020, and the supporting affidavits.

She appeared as a witness at the hearing on 17 August 2020. She obtained legal

representation at some point prior to the hearing on 12 November 2020, and was

represented at that hearing and at the subsequent hearings on 21 December 2020, 2

February 2021 and 25 February 2021 (when her application for joinder was heard). Mrs

Burke was given ample opportunity to file affidavit evidence in support of her

application. She filed a lengthy affidavit dated 11 December 2020, setting out her

evidence. She subsequently filed three affidavits from her solicitor.

469. In relation to her case that the Public Trustee had a conflict of interest, the primary

judge received several affidavits (each with documentary exhibits) addressing the

relevant communications. It is plain from those affidavits that there were several

disputes between Mrs Burke’s solicitors and the Public Trustee’s solicitors in relation to

access to documents. It seems from the material before this Court that Mrs Burke’s

solicitors were ultimately provided with most, if not all, of the documents they sought.

To the extent that there remained any requests outstanding, Mrs Burke has not

established that they relate to any documents which are likely to cast any significant

light upon Mrs Burke’s allegation of a conflict of interest.

470. But even if there were further documents that bore on the communications between Mrs

Burke and the Public Trustee, the difficulty with Mrs Burke’s case as to the existence of a

conflict was such that it was not likely to be addressed through further documents. As

explained earlier, the difficulty with her case in this respect was that the Public Trustee

did not ever assume any legal obligations to her that might have supported an allegation

of conflict.

471. In relation to Mrs Burke’s case that she had an arguable interest in Lady Badger’s estate,

I am not satisfied that there is any basis for any contention that the primary judge or

Mrs Burke did not have access to all relevant documents; that is, all documents relevant

to Lady Badger’s testamentary intentions and wishes, and in particular any

communication from Lady Badger to the effect that she intended that Mr Burke (or Mrs

Burke) be an object of the half secret trust in her 2012 will.

472. On my understanding of the documents disclosed to Mrs Burke, and my reading of the

transcript of the hearings before the primary judge, Mrs Burke was given an adequate

opportunity to prepare and present her case as to the existence of a conflict and as to the

existence of an arguable interest that might require joinder. I would reject Mrs Burke’s

complaints to the contrary.

Summary

473. At the risk of unnecessary repetition, I conclude by summarising that Mrs Burke’s

application for joinder required that she demonstrate a possibility that she, through Mr

Burke, had an interest in the estate of Lady Badger. For the reasons explained, Lady

Badger’s 2012 will left her estate to Mr Burke as trustee and not beneficially. While the

task of identifying the objects of that trust was attended by some doubt and difficulty,

this did not provide a basis for Mrs Burke’s joinder. She was not an object of the 2008

letter of wishes, and if the objects were not otherwise able to be appropriately identified,

then the estate would not have gone to Mr Burke beneficially. Rather, the trust would

have failed and the estate would have gone to Lady Badger’s next of kin on intestacy.

474. Thus, in order to succeed in her application for joinder, Mrs Burke was required to

demonstrate a basis for the possibility that Mr Burke was an object of the half secret

trust in the 2012 will. Evidence that Mr Burke was a close associate and friend of Lady

Badger, such that she might be expected to have been favourably disposed towards him,

or might have wanted to benefit him, was not enough for this purpose. Success on the

application for joinder required some evidential basis for thinking that Lady Badger

communicated to Mr Burke that he was to be a (or the) beneficiary under the half secret

trust in her 2012 will. For the reasons explained, and even allowing for the possibility

that a communication post-dating the execution of the 2012 will may have sufficed for

this purpose, Mrs Burke has not adduced any direct evidence of any such

communication. To the extent that there was any evidence at all that bore upon this

issue, it was not only hearsay, but also very general in nature. The possibility that Mr

Burke was an object of the half secret trust remained speculative at best.

475. For these reasons, I am not persuaded that the primary judge erred in refusing Mrs

Burke’s application to be joined as a party to the Public Trustee’s application for advice

or direction.

Costs

476. The primary judge ordered that Mrs Burke pay the Public Trustee’s costs of her

application for joinder, on a standard basis.

477. Mrs Burke’s grounds of appeal include a challenge to this order. While Mrs Burke

advanced some submissions in support of this aspect of her appeal, it was not addressed

in any detail by the parties. Further, it seems to me that the matters set out in these

reasons may be relevant to this Court’s consideration of the primary judge’s costs order.

478. In the circumstances, I consider it appropriate to defer consideration of the issue of

costs, both at first instance and on appeal, until the parties have had an opportunity to

consider these reasons.

Conclusion

479. For the reasons set out, I would dismiss Mrs Burke’s appeal from the primary judge’s

order refusing her application for joinder. I would hear the parties further in relation to

the appeal against the primary judge’s costs order, and in relation to the costs of the

appeal.

480. STANLEY AJA: In this matter I gratefully adopt the exposition of the background facts

and the analysis of the relevant legal principles set out in the judgments of Livesey P and

Doyle JA. I generally agree with them as to the nature of the jurisdiction conferred by s

69 of the Administration and Probate Act 1919 (SA) (‘the Act’) and the power of joinder

conferred by r 22.1 of the Uniform Civil Rules 2020 (SA). However, the issue is whether

the primary judge committed appealable error in refusing to join the appellant to the

application pursuant to s 69 for advice and direction. In my view she did not.

481. While I agree with Livesey P that given the complexity of and contest over the various

issues he has canvassed in his reasons, it was open to the primary judge to address them

as part of a binding determination made inter partes pursuant to s 69 of the Act and the

rules of Court, that was not the path taken by the appellant either before the primary

judge or on appeal. The appellant did not clearly apply to the Court for a binding inter

partes determination. On the contrary, she merely sought to be joined to the application

for advice and direction. She was afforded the opportunity to be heard and adduce

evidence on the joinder application.

482. It is important to recognise that this application for advice and direction is an

application for private advice. The advisory jurisdiction conferred by s 69 of the Act is

protective. It does not conclusively decide the issue in respect of which the Public

Trustee, and any trustee, executor or administrator (‘the trustee’), has sought advice. It

[308]

operates to protect the trustee and the interests of the trust.

It may be that the test

for joinder on an application pursuant to s 69 of the Act is more onerous than is the case

where an application is made for joinder in inter partes proceedings. An application for

advice and direction is generally made in private. That is because the trustee is seeking

the advice of the Court to determine the steps to be taken in the best interests of the

administration of the estate. Care must be exercised to ensure that the procedure does

not result in the disclosure of information concerning the strengths and weaknesses of

the trustee’s case. In many instances that will justify the hearing of the application for

advice and direction ex parte. Accordingly, an application for joinder to an ex parte

application for advice and direction might be required to meet a more stringent test than

whether the party seeking to be joined can demonstrate an interest in the subject matter

of the proceedings in circumstances where the trustee is not seeking the conclusive

determination of substantive rights.

483. However, it is not necessary to decide that question on this occasion. The primary judge

rejected the application for joinder on the basis that the appellant had no interest in the

proper construction of the 2012 will or the application for advice and direction in

[309]

relation to the distribution of Lady Badger’s estate.

The test applied by the primary

judge is the correct test applicable to an application for joinder to inter partes

[310]

proceedings.

Accordingly, the test adopted by the primary judge probably operated

to the advantage of the appellant.

484. I would dismiss the appeal from the order refusing the application for joinder. I

otherwise agree with the reasons of Doyle JA.

485. I would hear the parties further in relation to the appeal against the costs order made by

the primary judge and in relation to the costs of this appeal.

[1]

See the reasons of the primary judge, In the Estate of Badger (deceased) [2021] SASC 25,

[125] (Bampton J).

[2]

In the Estate of Badger (deceased) [2021] SASC 25, [8] (Bampton J).

[3]

In the Estate of Badger (deceased) [2021] SASC 25, [7]-[9], [124] (Bampton J).

[4]

In the Estate of Badger (deceased) [2021] SASC 25, [125] (Bampton J).

[5]

In the Estate of Badger (deceased) [2021] SASC 25, [11] (Bampton J).

[6]

T2-3, 17 August 2020.

[7]

[8]

[9]

T5-8, 14 August 2020; T4, 17 August 2020.

In the Estate of Badger (deceased) [2021] SASC 25, [14] (Bampton J).

In the Estate of Badger (deceased) [2021] SASC 25, [12]-[13] (Bampton J).

[10]

[11]

[12]

In the Estate of Badger (deceased) [2021] SASC 25, [29]-[32] (Bampton J).

In the Estate of Badger (deceased) [2021] SASC 25, [79]-[80] (Bampton J).

In the Estate of Badger (deceased) [2021] SASC 25, [31]-[32] (Bampton J). Regrettably it

is necessary to set out these documents so as to illustrate the contentions made.

[13]

th

CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9 ed, 2013) vol 1,

[36.10]; Rawstron v Freud [2014] EWHC 2577 (Ch), [15]-[33] (Spearman QC).

[14]

In the Estate of Badger (deceased) [2021] SASC 25, [31] (Bampton J).

[15]

In the Estate of Badger (deceased) [2021] SASC 25, [39]-[40] (Bampton J).

[16]

See Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 (Ledgerwood); CH

th

Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9 ed, 2013) vol 1, [36.10];

Rawstron v Freud [2014] EWHC 2577 (Ch).

[17]

In the Estate of Badger (deceased) [2021] SASC 25, [136] (Bampton J).

[18]

In the Estate of Badger (deceased) [2021] SASC 25, [137] (Bampton J).

[19]

T2.3-T2.6, 12 November 2020.

[20]

T6.1-6.7; T6.29-6.32, 12 November 2020.

[21]

T16.33-16.34, 12 November 2020.

[22]

T21, T24, 21 December 2020 (Ower QC for the Public Trustee). T2, T18, 25 February 2021

(M L Abbott QC for Mrs Burke).

[23]

T15-17, 25 February 2021 (M L Abbott QC for Mrs Burke).

[24]

T41, 25 February 2021 (Ower QC for the Public Trustee).

[25]

In her reasons delivered on 12 March 2021, In the Estate of Badger (deceased) [2021]

SASC 25.

[26]

In the Estate of Badger (deceased) [2021] SASC 25, [77], [107] (Bampton J).

[27]

In the Estate of Badger (deceased) [2021] SASC 25, [120], [122], [128], [131] (Bampton J).

[28]

In the Estate of Badger (deceased) [2021] SASC 25, [127] (Bampton J).

[29]

In the Estate of Badger (deceased) [2021] SASC 25, [120] (Bampton J).

[30]

In the Estate of Badger (deceased) [2021] SASC 25, [122] (Bampton J).

[31]

In the Estate of Badger (deceased) [2021] SASC 25, [123] (Bampton J).

[32]

In the Estate of Badger (deceased) [2021] SASC 25, [127]-[133] (Bampton J).

[33]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66 (Macedonian Church), [65] (Gummow ACJ, Kirby, Hayne

and Heydon JJ): despite the “compromise” embodied in the “protections” afforded to persons

whose interests may be affected by the advice, including the ability to participate to some

extent, they do not become “strictly speaking ‘parties’” and the process remains one of

“affording private advice to trustees”.

[34]

See, for example, Public Trustee v O’Donnell [2008] SASC 181; (2008) 101 SASR 228,

[25]-[30] (Gray J); In re McBride [2019] SASC 204, [12]-[16] (Stanley J).

[35]

See, for example, Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80, [1],

[84]-[85] (Blue J).

[36]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323 (Magarey Farlam). (Debelle J); and on appeal, Re Magarey Farlam Lawyers Trust

Accounts [2007] SASC 307; (2007) 99 SASR 40 (White J, with whom Nyland and Kelly JJ

agreed); Re Magarey Farlam Lawyers Trust Accounts (No 3) [2007] SASC 9; (2007) 96

SASR 337 (the determination made).

[37]

Re Beddoe; Downes v Cottam [1892] UKLawRpCh 180; [1893] 1 Ch 547, 562 (Bowen LJ,

with whom Smith LJ agreed). As to whether the court should make an order regarding the

costs to be incurred, see the decision of Palmer J in Re Application of Macedonian Orthodox

Community Church St Petka Inc (No 3) [2006] NSWSC 1247, [59]-[62], citing Sir Robert

Megarry’s direction in Re Dallaway (dec’d) [1982] 1 WLR 756, 761-762: “...subject to any

order made by the trial judge, the bank will be entitled to be indemnified out of the estate for

all costs for which it is liable, even if the defence or the counterclaim, or both, are

unsuccessful.”

[38]

Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, [9] (Austin J).

[39]

Salmi v Sinivuori [2008] QSC 321, [13] (Lyons J).

[40]

Salmi v Sinivuori [2008] QSC 321, [13] (Lyons J). The way in which a trustee may be

deprived of recourse to the indemnity, and the factors which it is relevant to consider, were

addressed in the case of a trustee in bankruptcy in Adsett v Berlouis [1992] FCA 368; (1992)

37 FCR 201 (Northrop, Wilcox and Cooper JJ).

[41]

Salmi v Sinivuori [2008] QSC 321, [14]-[15] (Lyons J).

[42]

th

John Mowbray and Thomas Lewin, Lewin on Trusts, (Sweet & Maxwell, 18 ed, 2008),

600.

[43]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, 447 (Palmer J).

[44]

In the Estate of Martin [1958] SASR 365.

[45]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [65] (Gummow ACJ, Kirby, Hayne and Heydon JJ): the

“protections” afforded to persons whose interests may be affected by the advice, do not extend

to them becoming “strictly speaking parties.”

[46]

In the Estate of Badger (deceased) [2021] SASC 25, [71] (Bampton J).

[47]

Lottwo Pty Ltd (in liq) v Tudo [2012] SASC 172, [43] (White J); on appeal Ong v Lottwo

Pty Ltd (in liq) (2013) 116 SASR 280, [16], [50]-[53] (Nicholson J, with whom Kourakis CJ

and Stanley J agreed).

[48]

Supreme Court Civil Rules 2006 (SA) r 74(1)(a); cf, Uniform Civil Rules 2020 (SA) r 22.1.

No submissions were made about the difference between a “respondent” and an “interested

party” under r 21.1.

[49]

Pitt v Environment Resources and Development Court (1995) 66 SASR 274, 275-276

(Doyle CJ), 281-282 (Duggan J); OneSteel v Environment Protection Authority [2005] SASC

216; (2005) 92 SASR 67, 275-276 (Debelle J); Ocsalt v Minister [2012] SASC 67, [4]-[9]

(Judge Lunn).

[50]

JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432, 442 (King CJ, with whom

Prior and Perry JJ agreed), see also Supreme Court Act 1935 (SA) s 27.

[51]

Re Devoy [1943] St R Qd 137.

[52]

Gardiner v Hughes (2017) 54 VR 394, [90] (McLeish JA, with whom Tate and Kyrou JJA

agreed).

[53]

Re Cockell [2016] NSWSC 349, [17] (Lindsay J); Re Kouvakas [2014] NSWSC 786,

[212]-[217] (Lindsay J), probate litigation is “interest litigation”.

[54]

Kipping v Ash [1845] EngR 1034; (1845) 1 Rob Eccl 270; 163 ER 1035; Re Gillard [1949]

VicLawRp 22; [1949] VLR 378; Re Culina; Poulos v Pellicer [2004] NSWSC 504. See also

Randall v Randall [2016] EWCA Civ 494.

[55]

See Kirsten v Miller [2020] SASCFC 129, [16]-[19] (Kourakis CJ, Kelly and Blue JJ),

where this proposition was found to be “sufficiently arguable ... to warrant consideration by

the Full Court”, citing Re Moritz [1960] Ch 251, 255 (Wynn-Parry J); Re Eaton [1964] 3 All ER

229, 230 (Wilberforce J); Smith v Croft [1986] 2 All ER 551, 558 (Walton J); Alsop Wilkinson

v Neary [1996] 1 WLR 1220, 1226 (Lightman J); Craig v Humberclyde Industrial Finance

Group Ltd [1998] EWCA Civ 1025; [1999] 1 WLR 129, 136 (Morritt LJ).

[56]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[57]

Gardiner v Hughes (2017) 54 VR 394, [88] (McLeish JA, with whom Tate and Kyrou JJA

agreed).

[58]

Tobin v Ezekiel [2012] NSWCA 285; (2011) 83 NSWLR 757; Re Cockell [2016] NSWSC

349.

[59]

Van Wyk v Albon [2011] VSC 120; Re Kouvakas [2014] NSWSC 786.

[60]

Re Seymour [1934] VicLawRp 2; [1934] VLR 136; Re Egan [1963] VicRp 46; [1963] VR

318; Re Cockell [2016] NSWSC 349.

[61]

Cf Re Watson; Raitman v Ivey [2017] VSC 322, [15] (McMillan J), setting out three

threshold requirements on an application for revocation: standing, explanation for delay and a

prima facie case. The judge dealt with the requirement of standing separately from the

requirement for a prima facie case, [19], [24]-[45] (McMillan J).

[62]

Gardiner v Hughes (2017) 54 VR 394, [94] (McLeish JA, with whom Tate and Kyrou JJA

agreed).

[63]

In the Estate of Martin [1958] SASR 365, 379 (Piper AJ), “Ex parte proceedings ... can

rarely be appropriate when advice or direction is sought as to the final distribution of a

substantial fund...Where large sums are at issue, and the question to be determined involves

the final distribution of those sums, it appears that proceedings under [the rules of court] are

more appropriate”.

[64]

From those without an interest, being “outside busybodies”, Re Culina; Poulos v Pellicar

[2004] NSWSC 504, [10]-[17] (Windeyer J); Gardiner v Hughes (2017) 54 VR 394, [16]

(McLeish JA, with whom Tate and Kyrou JJA agreed), “officious inter-meddlers”.

[65]

The position in South Australia may be contrasted with s 63(11) of the Trustee Act 1925

(NSW), addressed in connection with the Macedonian Church case, below.

[66]

In the Estate of Hunter [1957] SASR 194, 195-196 (Napier CJ), a case where almost all of

the interested parties were before the court. Cf, In the Estate of Martin [1958] SASR 365, 380

(Piper AJ): “the advice and directions given under s 69 is not binding on absent parties and

is primarily given for the protection of the trustees only” (emphasis added). It may be that a

party who has been heard but not joined is not strictly bound but subject to a form of estoppel

or other preclusion. It is not appropriate to address that issue on this appeal in the absence of

submissions.

[67]

In the Estate of Badger (deceased) [2021] SASC 25, [44], [55]-[57] (Bampton J).

[68]

In the Estate of Badger (deceased) [2021] SASC 25, [59]-[62] (Bampton J).

[69]

In The Estate of Badger (Deceased) [2021] SASC 25, [69]-[70] (Bampton J).

[70]

Bective v Federal Commissioner of Taxation [1932] HCA 22; (1932) 47 CLR 417, 418-419

(Dixon J). The requisite analysis is objective, see for example Duggan v White [2018] NSWSC

364, [23]-[24] (Parker J).

[71]

th

L Tucker, N Le Poidevin and J Brightwell, Lewin on Trusts (Sweet & Maxwell, 20 ed,

2020) [3-078].

[72]

Ottaway v Norman [1972] 2 Ch 698, 711 (Brightman J). See also Blackwell v Blackwell

th

[1929] AC 318; CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9 ed,

2013) vol 1, [36.10].

[73]

Re Fleetwood; Sidgreaves v Brewer [1880] UKLawRpCh 130; (1880) 15 Ch D 594 (“to be

applied as I have requested him to do”); Blackwell v Blackwell [1929] AC 318 (“for the

purposes indicated by me to them”); Re Beckbessinger [1993] 2 NZLR 362 (“to be held by

them in accordance with a confidential memorandum which I have given to them”).

[74]

th

CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9 ed, 2013) vol 1,

[36.10].

[75]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 536-537 (Young J).

[76]

Voges v Monaghan [1954] HCA 63; (1954) 94 CLR 231, 240 (Fullagar and Kitto JJ), citing

Lord Davey in French v French [1902] 1 IR 172: “probably as clear an exposition of the

principle as is to be found in the books.”

[77]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 537 (Young J).

[78]

Re Keen; Evershed v Griffiths [1937] Ch 236 (Re Keen). According to Young J, this

approach “has its genesis in at least one of the judgments in Blackwell v Blackwell (at 339)

and which has been reinforced by the recent decision of Re Bateman's Will Trusts; Brierley v

Perry [1970] 1 WLR 1463” and it has been applied in other common law jurisdictions, such as

Canada and New Zealand, see generally Ledgerwood (1997) 41 NSWLR 532, 536-538.

[79]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 537 (Young J).

[80]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 539 (Young J). See, for

example, Re Tilley; Mackie v Jackson [1918] ArgusLawRp 80; (1918) 25 ALR 6, sub nom Re

Tulley; Mackay v Jackson [1918] ArgusLawRp 80; [1918] VLR 556; Voges v Monagham

[1954] HCA 63; (1954) 94 CLR 231; Guest v Webb [1965] VicRp 59; [1965] VR 427; Dixon v

White (Supreme Court of NSW, Holland J, 14 April 1982) and Public Trustee v Gecker

(Supreme Court of NSW, Holland J, 14 April 1982).

[81]

Guest v Webb [1965] VicRp 59; [1965] VR 427.

[82]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 539-540 (Young J).

[83]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 538 (Young J).

[84]

[85]

[86]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 540-541 (Young J).

Re Brown; Ward v Lawler [1944] Ir R 90.

th

J McGhee at al, Snell’s Equity (Sweet & Maxwell, 34 ed, 2020) [24-029]; L Tucker, N Le

th

Poidevin and J Brightwell, Lewin on Trusts (Sweet & Maxwell, 20 ed, 2020) [3-085] (to

some extent); JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis

Butterworths, 8 ed, 2016) [7-24]; Alexander Learmonth et al, Theobald on Wills (Sweet &

th

Maxwell, 19 ed, 2021) [5-023].

[87]

Blackwell v Blackwell [1929] AC 318, 339 (Lord Sumner).

[88]

In the Estate of Badger (deceased) [2021] SASC 25, [114] (Bampton J).

[89]

Re Cooper; Le Nexe-Foster v National Provincial Bank [1939] Ch 811 (Re Cooper), 818

(Sir Wilfred Greene MR), regarding an increase in a bequest from £5,000 to £10,000. See JD

th

Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 8

ed, 2016) [7-25].

[90]

Re Rees; Williams v Hopkins [1950] Ch 204 (Re Rees).

[91]

Re Rees; Williams v Hopkins [1950] Ch 204, 210-211 (Evershed MR, with whom Cohen

and Asquith LJJ agreed).

[92]

In the Estate of Badger (deceased) [2021] SASC 25, [94] (Bampton J).

[93]

Sudgen v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154, 225 (Cockburn CJ).

This case concerned the proof of the contents of the will of Lord St Leonards. The evidence

about its contents came from his daughter who was a beneficiary who deposed to statements

her father had made about the will before and after execution. See generally, JD Heydon,

‘Chapter 17 – The Rule Against Hearsay: Principal Exceptions at Common Law’ in Cross on

Evidence, [33315] for a close analysis of this decision and those that have considered it.

[94]

Sudgen v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154, 241 (Jessel MR).

[95]

Woodward v Goulstone [1886] UKLawRpAC 37; (1886) 11 App Cas 469, 480 (Lord

Hershell LC); Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979]

HCA 2; (1979) 143 CLR 134, 149 (Gibbs J, with whom Mason and Aickin JJ agreed). See also

Harry Gibbs, ‘Admissibility of Statements by a Testator in Testator’s Family Maintenance

Proceedings’ [1953] UQLawJl 5; (1953) 2 University of Queensland Law Journal 150.

[96]

Re MacGillivray [1946] 2 All ER 302, 305-306 (Cohen LJ, with whom Somervell LJ

agreed, Scott LJ dissenting).

[97]

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288 (Mason CJ, who agreed with

the majority judgment of Wilson, Dawson and Toohey JJ)

[98]

Bull v The Queen (2000) 201 CLR 443, [121] (McHugh, Gummow and Hayne JJ).

[99]

Sugden v Lord St Leonards [1876] UKLawRpPro 17; (1876) 1 PD 154, 251, applied by

Mason CJ in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288.

[100]

South Australian Law Reform Institute, ‘Distinguishing between the Deserving and the

Undeserving’: Family Provision Laws in South Australia (Report No 9, December 2017).

[101]

South Australian Law Reform Institute, ‘Distinguishing between the Deserving and the

Undeserving’: Family Provision Laws in South Australia (Report No 9, December 2017)

[3.3.19]-[3.3.21].

[102]

See, for example, Re Duncan [1939] VicLawRp 36; [1939] VLR 355, 360; Re Ruxton

[1946] VicLawRp 8; [1946] VLR 334, 335–336; Re Paulin [1950] VR 462. See also Harry

Gibbs, ‘Admissibility of Statements by a Testator in Testator’s Family Maintenance

Proceedings’ [1953] UQLawJl 5; (1953) 2 University of Queensland Law Journal 150.

[103]

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2;

(1979) 143 CLR 134, 149 (Gibbs J, with whom Mason and Aickin JJ agreed). Gibbs J also

clarified at p 150 the limited use to which such statements could be put: ‘In some jurisdictions,

the rules of the common law have been modified by statutory provisions, which allow the

court to have regard to evidence as to the reasons given by a testatrix for making the

dispositions which she had made by her will. Legislation of that kind has been enacted in the

United Kingdom, New Zealand and some parts of Australia. No such legislation has however

been enacted in Victoria or indeed in most of the Australian States. Nevertheless, in Australia

for many years the courts have admitted evidence of statements made by a testatrix explaining

why she made her will as she did. In taking this course, the courts have no doubt been

influenced by a desire to be informed of the reasons which actuated the testatrix to make the

dispositions she had made, and by the consideration that in cases of this kind a claim is made

against the estate of a person who is deceased and can no longer give evidence in support of

what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage

justifies its reception. The question is for what purpose it may be used, once admitted. The

balance of authority clearly favours the view that it is admissible only to provide some

evidence of the reason why the testatrix has disposed of her estate in a particular way, and that

it is not admissible to prove that what the testatrix said or believed was true’.

[104]

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2;

(1979) 143 CLR 134, 149 (Gibbs J, with whom Mason and Aickin JJ agreed).

[105]

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2;

(1979) 143 CLR 134, 149, 153 (Gibbs J, with whom Mason and Aickin JJ agreed). See also

National Committee for Uniform Succession Laws, Family Provisions: Supplementary Report

to the Standing Committee of Attorneys General, (Report 58, 2004) [7.72].

[106]

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2;

(1979) 143 CLR 134, 149, 153 (Gibbs J, with whom Mason and Aickin JJ agreed).

[107]

See, however the letter the subject of the application to adduce further evidence, below.

[108]

Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35) (Lord St Leonards’

Act) s 30.

[109]

Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35) s 30.

[110]

Queensland Law Reform Commission, Administration of Estates of Deceased Persons:

Report of the National Committee for Uniform Succession Laws to the Standing Committee

of Attorneys General (Queensland), April 2009, Ch 20.

[111]

Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (Sweet &

st

Maxwell, 21 ed, 2018) [57-02].

[112]

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, 633.

[113]

Re Furness (deceased); Wilson v Kenmare [1943] Ch 415.

[114]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, 445 (Palmer J).

[115]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, 445.

[116]

Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35).

[117]

Law of Property Amendment Act 1860 (UK) (23 & 24 Vict, c 38); Beck v Henley [2014]

NSWCA 201, [48] (Leeming JA, with whom Beazley P and Sackville AJA agreed).

[118]

Hall v Carney (No 3) [2021] SASCA 37, concerning what has become s 29 of the Trustee

Act 1936 (SA). Under that provision, an order may be made setting a six-month timeframe

within which disputed claims must be made and, if they are not made, executors may apply to

the court for a “barring order”. Where a barring order is made, executors may administer the

estate without regard to the disputed claims and without risk of personal liability.

[119]

Hall v Carney (No 3) [2021] SASCA 37, [42]-[43] (Doyle, Livesey and Bleby JJA).

[120]

See generally, Chief Justice Susan Kiefel AC, ‘Judicial Advice to Trustees: Its Origins,

Purposes and Nature’ [2019] MelbULawRw 26; (2017) 42(3) Melbourne University Law

Review 993, 933.

[121]

Joseph Story, Commentaries on Equity Jurisprudence, As Administered in England and

America (Andesite Press, 1836) vol 1, 514, 543.

[122]

Adair v Shaw (1803) 1 Sch & Lef 243, 262 (Lord Redesdale LC).

[123]

Morice v Bishop of Durham [1805] EngR 97; (1805) 10 Ves Jr 522; 32 ER 947, 954 (Lord

Eldon LC).

[124]

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, 633 (Young J).

[125]

Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35) s 30.

[126]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [69] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[127]

In 1880, s 28 of the Public Trustee Act 1880 (SA) was enacted, empowering the Public

Trustee to obtain the advice of the Court on questions concerning the administration of trusts.

In 1891, this provision was expanded to apply to “any trustee, executor or administrator” as

well as the Public Trustee: see Administration and Probate Act 1891 (SA) s 91. Section 29 of

the Trustee Act 1936 (SA) was first enacted in 1893 as s 22 of the Trustee Act 1893 (SA).

[128]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [71] (Gummow ACJ, Kirby, Hayne and Heydon JJ), [196] (Kiefel

J, as she then was).

[129]

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 677-679 (McLelland J);

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan

Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand Church [2008]

HCA 42; (2008) 237 CLR 66, [37] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[130]

Re Muggeridge’s Trusts (1860) 70 ER 569, 570 (Sir W Page Wood VC) cited in Re Grose

[1949] SAStRp 1; [1949] SASR 55, 60 (Mayo J).

[131]

Re Grose [1949] SAStRp 1; [1949] SASR 55, 59-60 (Mayo J).

[132]

See Chief Justice Susan Kiefel AC, ‘Judicial Advice to Trustees: Its Origins, Purposes and

Nature’ [2019] MelbULawRw 26; (2017) 42(3) Melbourne University Law Review 993,

1004-1005.

[133]

Rules of the Supreme Court 1965 (UK) ord 85 r 2; now Civil Procedure Rules 1998 (UK)

pt 64; see here Uniform Civil Rules 2020 (SA) r 232.2.

[134]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 192 (Way CJ).

[135]

Trustee Act 1893 (UK) (56 & 57 Vict, c 53) s 51. See Chief Justice Susan Kiefel AC,

‘Judicial Advice to Trustees: Its Origins, Purposes and Nature’ [2019] MelbULawRw 26;

(2017) 42(3) Melbourne University Law Review 993, 997.

[136]

(Trustee Act 1925).

[137]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [37]-[38] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[138]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 191 (Way CJ).

[139]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 192 (Way CJ).

[140]

Hall v Carney (No 3) [2021] SASCA 37, [44] (Doyle, Livesey and Bleby JJA).

[141]

Marley v Mutual Security Merchant Bank & Trust Co Ltd [1990] UKPC 44; [1991] 3 All

ER 198, 201 (Lord Oliver).

[142]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [64] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[143]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [74] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[144]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 192 (Way CJ).

[145]

Public Trustee Act 1880 (SA) s 28.

[146]

Underwood v Hatton [1842] EngR 371; (1842) 5 Beav 36; 49 ER 490; Roland v Morgan

(1848) 13 Jur 23, 26; Smith v Smith (1861) 1 Drew & Sm 384, 387; 62 ER 426, 427; Re Earl of

Radnor’s Will Trusts [1890] UKLawRpCh 129; (1890) 45 ChD 402, 423.

[147]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 192 (Way CJ), unlike the

Judicial Trustees Act 1896 (UK) (59 & 60 Vict, c 35) s 3. In South Australia, see s 56 of the

Trustee Act 1936 (SA), which allows for relief from breach of trust where the trustee has acted

honestly and reasonably and ought fairly to be excused for the breach, and for omitting to

obtain the directions of the court in the matter.

[148]

Trustee Act 1893 (SA) (Trustee Act 1893). Section 78 of that Act was the counterpart to

s 99 of the Administration and Probate Act 1891 (SA). Section 91 of the present Trustee Act

1936 (SA) is the counterpart to s 69 of the current Administration and Probate Act 1919 (SA).

[149]

The local equivalent of ord 55 r 3 of the Rules of the Supreme Court 1883 (UK) was ord

73 of the Supreme Court Rules 1893 (SA), see Martin v Hayward [1908] SALawRp 20; [1908]

SALR 187, 192 (Way CJ). See Supreme Court Rules 1947 (SA) ord 55; Supreme Court Rules

1987 (SA) rr 63.04 and 103; Supreme Court Rules 2006 (SA) r 206; and Uniform Civil Rules

2020 (SA), r 232.2.

[150]

Addressed below.

[151]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, [24] (Palmer J).

[152]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[153]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [59] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[154]

[155]

[156]

[157]

[158]

[159]

Administration and Probate Act 1891 (SA) s 99(3).

Now, Administration and Probate Act 1919 (SA) s 69(4).

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 195 (Way CJ).

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 195-196 (Way CJ).

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196 (Way CJ).

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196 (Way CJ). Addressed

below.

[160]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196 (Way CJ).

[161]

Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Assistant Commissioner Michael

James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, [68] (French CJ), [156]

(Hayne, Crennan, Kiefel and Bell JJ), [181]-[188] (Gageler J).

[162]

Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7;

(2013) 252 CLR 38, [70] (French CJ).

[163]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [64]-[65] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[164]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323; on appeal, Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99

SASR 40.

[165]

In the Estate of Martin [1958] SASR 365.

[166]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323; on appeal, Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99

SASR 40.

[167]

Administration and Probate Act 1919 (SA) s 69(6).

[168]

See Supreme Court Act 1935 (SA) s 49 and Uniform Civil Rules 2020 (SA) r 214.6.

[169]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [59] (Gummow ACJ, Kirby, Hayne and Heydon JJ) the

discretion conferred by the provision is “confined only by the subject matter, scope and

purpose of the legislation”.

[170]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [44] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[171]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196; see also Re Jackson

[1944] SAStRp 17; [1944] SASR 82, 86 (Mayo J).

[172]

Now Administration and Probate Act 1919 (SA) s 69(4).

[173]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196 (Way CJ). See also Re

Jackson [1944] SAStRp 17; [1944] SASR 82, 86 (Mayo J) and Caldwell v Public Trustee (1983)

33 SASR 246, 251 (Legoe J).

[174]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 192 (Way CJ), unlike the

Judicial Trustees Act 1896 (UK) (59 & 60 Vict, c 35) s 3. In South Australia, see Trustee Act

1936 (SA) s 56.

[175]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187, 196-197 (Way CJ).

[176]

[177]

[178]

Re Jackson [1944] SAStRp 17; [1944] SASR 82.

Re Jackson [1944] SAStRp 17; [1944] SASR 82, 85 (Mayo J).

Re Jackson [1944] SAStRp 17; [1944] SASR 82, 85 (Mayo J), citing Martin v Hayward

[1908] SALawRp 20; [1908] SALR 187, 197 (Way CJ).

[179]

Re Jackson [1944] SAStRp 17; [1944] SASR 82, 86 (Mayo J), citing Martin v Hayward

[1908] SALawRp 20; [1908] SALR 187, 197 (Way CJ).

[180]

In the Estate of Hunter [1957] SASR 194.

[181]

(Supreme Court Act).

[182]

In the Estate of Hunter [1957] SASR 194, 195-196 (Napier CJ).

[183]

In the Estate of Martin [1958] SASR 365.

[184]

In the Estate of Martin [1958] SASR 365, 374-379, citing, amongst other materials, DM

Gordon QC Delegation of Will-Making Power (1953) 69 Law Quarterly Review 334; Tatham v

Huxtable (1950) 81 CLR 389 and In re Blyth [1935] SAStRp 45; [1935] SASR 287 (Richards J).

[185]

In the Estate of Hunter [1957] SASR 194.

[186]

In the Estate of Martin [1958] SASR 365, 379 (Piper AJ).

[187]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[188]

In the Estate of Martin [1958] SASR 365, 380.

[189]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[190]

In the Estate of Martin [1958] SASR 365, 380. His Honour referred to the rules as

permitting the determination of the questions at issue.

[191]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[192]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ), citing In re Buckton; Buckton v

Buckton [1907] UKLawRpCh 98; (1907) 2 Ch 406, 414.

[193]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187.

[194]

Re Jackson [1944] SAStRp 17; [1944] SASR 82.

[195]

Re Estate of Hunter [1957] SASR 194.

[196]

In the Estate of Martin [1958] SASR 365, 380.

[197]

In the Estate of Martin [1958] SASR 365.

[198]

Owners of Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, 421

(Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh JJ); Macedonian

Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of

Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237

CLR 66, [55]-[56] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[199]

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674.

[200]

[201]

[202]

[203]

[204]

[205]

[206]

[207]

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 677.

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 677 (McLelland J).

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 678.

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 679 (McLelland J).

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 680 (McLelland J).

Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 680.

In Re Markham; Markham v Markham (1880) 16 Ch 1, it was recognised that leave to

appeal may be given to a person who had not been heard and who was a potential beneficiary

under a will. See also Commonwealth v Construction, Forestry, Mining & Energy Union

[2000] FCA 453; (2000) 171 ALR 379, [16] (Black CJ, Sundberg and Tamberlin JJ); Fortress

Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89, [31]-[35] (Emmett,

Nicholas and Robertson JJ); Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322,

[311]-[319] (Siopis J); Letten v Templeton [2014] FCAFC 131, [13]-[15] (Davies J, with whom

Bezanko and White JJ agreed); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher

& Barnet (as liquidators of Octaviar Administration Pty Ltd (in liq)) [2015] NSWCA 85;

(2015) 89 NSWLR 110, [75]-[96] (Bathurst CJ, with whom Beazley P, Macfarlan, Meagher and

Barrett JJA agreed).

[208]

See Kirsten v Miller [2020] SASCFC 129, [14]-[15] (Kourakis CJ, Kelly and Blue JJ). The

question of leave to appeal was referred for hearing as on appeal.

[209]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323.

[210]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323, [27]-[28].

[211]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323, [29]-[30].

[212]

Re Magarey Farlam Lawyers Trust Accounts (No 3) [2007] SASC 9; (2007) 96 SASR

337. The decision was in favour of the so-called tracing claimants rather than the pooling

claimants.

[213]

Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99 SASR 40,

[43] (White J, with whom Nyland and Kelly JJ agreed).

[214]

Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99 SASR 40,

[47]-[52] (White J, with whom Nyland and Kelly JJ agreed), citing Farrow Finance Co Ltd (in

liq) v ANZ Executors & Trustee Co Ltd (1997) 23 ACSR 521; Re New Cap Reinsurance

Corporation Holdings Ltd [2001] NSWSC 1001, [5], [11]-[12] (Santow J); Ansett Australia Ltd

v Ansett Australia Ground Staff Superannuation Plan Pty Ltd [2002] VSC 114; (2002) 41

ACSR 598, [23]-[25] (Warren J); Re GPI Leisure Corp Ltd (in liq) [1994] FCA 1164; (1994) 53

FCR 365; Australian Securities Commission v Melbourne Asset Management Nominees Pty

Ltd [1994] FCA 1031; (1994) 49 FCR 334.

[215]

Re Magarey Farlam Lawyers Trust Accounts [2007] SASC 307; (2007) 99 SASR 40,

[60]-[61] (White J, with whom Nyland and Kelly JJ agreed): the court disagreed, however,

with the further finding made by Debelle J that s 47(2) vested a discretion with respect to

costs. The source of any discretion to be exercised with respect to costs was to be found in s

40(1) of the Supreme Court Act 1935 (SA) and the rules of court.

[216]

Re Pegasus Securities Ltd [1999] SASC 306; (1999) 74 SASR 396, [11] (Wicks J): “it

seems to me that in this matter the trustee must elect whether it will seek advice and direction

under s 69 of the Administration Probate Act 1919 (SA) and s 91 of the Trustee Act 1936 (SA)

on the one hand or pursue the matter by way of a summons for construction under r 63.04 of

the Supreme Court Rules on the other.”; Re IOOF Australia Trustees and the Trustee Act

1936 [1999] SASC 461, [2] (Debelle J): “The combined effect of s 91 of the Trustee Act and of s

69 of the Administration and Probate Act is that a trustee may, among other things, apply to a

judge for advice and directions as to matters concerned with the administration of any trust:

see s 69(1). Upon hearing the application, the judge may make any order, declaratory or

otherwise, as he thinks fit as to the administration of the trust and also as to the costs of the

application: see s 69(3) [sic, s69(4)]”; Re IOOF Australia Trustees Ltd and the Australian

Tourist Property Trust [1999] 75 SASR 290.

[217]

Re Australian Motors SA Pty Ltd Staff Superannuation Fund [2010] SASC 62, [10]-[12]

(Gray J); Re Heyward [2010] SASC 247, [15] (Duggan J); Blue Sky Private Equity Ltd v

Crawford Giles Pty Ltd [2012] SASC 28, [45] (Gray J); Yule v Irwin (No 2) [2016] SASC 178,

[130] (Nicholson J).

[218]

Trusts Act 1973 (Qld) ss 96 and 97.

[219]

Trustee Act 1936 (SA) s 91 and the Administration and Probate Act 1919 (SA) s 69.

[220]

Trustees Act 1962 (WA) ss 92 and 95.

[221]

Trustee Act 1925 (ACT) s 63.

[222]

Supreme Court Act 1970 (NSW) ss 22 and 1970183/s23.html"> 23, see Macedonian

Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of

Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237

CLR 66, [34] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[223]

A registered proprietor of land previously held on trust by trustees appointed under a

deed of trust pursuant to a constitution adopted by the parishioners of the St Petka Parish in

1977.

[224]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [6] (Gummow ACJ, Kirby, Hayne and Heydon JJ). The Court of

Appeal also refused an application by the Bishop and a former priest for leave to appeal

against certain directions made by Palmer J. Those plaintiffs applied for special leave to cross

appeal but the High Court dismissed that application with costs.

[225]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [40] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[226]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [43] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[227]

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[228]

Re Beddoe; Downes v Cottam [1892] UKLawRpCh 180; [1893] 1 Ch 547 (Re Beddoe);

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan

Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42;

(2008) 237 CLR 66, [44]-[45] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[229]

Re Beddoe; Downes v Cottam [1892] UKLawRpCh 180; [1893] 1 Ch 547, 557 (Lindley

LJ), 562, 564 (Bowen LJ); Macedonian Orthodox Community Church St Petka Inc v His

Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New

Zealand [2008] HCA 42; (2008) 237 CLR 66, [47]-[48] (Gummow ACJ, Kirby, Hayne and

Heydon JJ).

[230]

Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, 421 (Mason

CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Macedonian Orthodox

Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian

Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66,

[55]-[56] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[231]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [58] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[232]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [59] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[233]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [61]-[63] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[234]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, [23] (Palmer J), approved in Macedonian Orthodox Community

Church St Petka Inc v Diocesan Bishop of Macedonian Orthodox Church of Australia and

New Zealand [2006] NSWCA 160; (2006) 66 NSWLR 112, 122 [40] (Beazley and Giles JJA);

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan

Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42;

(2008) 237 CLR 66, [64]-[65] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[235]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [67]-[68] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[236]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [69]-[72] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[237]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [74] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[238]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [194]-[195] (Kiefel J).

[239]

See Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57,

[54]-[64] (Gummow and Hayne JJ).

[240]

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox

Church of Australia and New Zealand v The Macedonian Orthodox Community Church St

Petka Inc [2007] NSWCA 150, [7] (Hodgson JA), [78] (Ipp JA).

[241]

Re Macedonian Orthodox Community Church St Petka Inc (No 2) [2005] NSWSC 558;

(2005) 63 NSWLR 441, [23].

[242]

Trustee Act 1925 (NSW) s 63(8)-(11).

[243]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66, [65] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[244]

Beck v Henley [2014] NSWCA 201, [56] (Leeming JA, with whom Beazley P and Sackville

AJA agreed).

[245]

[246]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

See the South Australian cases such as Re Jackson [1944] SAStRp 17; [1944] SASR 82, as

well as, for example, the cases referred to in Beck v Henley [2014] NSWCA 201, [50]-[54]

(Leeming JA, with whom Beazley P and Sackville AJA agreed).

[247]

In the Estate of Badger (deceased) [2021] SASC 25, [114] (Bampton J).

[248]

In The Estate of Badger (deceased) [2021] SASC 25, [120], [122], [126] and [127]

(Bampton J).

[249]

Cf, Gardiner v Hughes (2017) 54 VR 394, [94] (McLeish JA, with whom Tate and Kyrou

JJA agreed).

[250]

Re Jackson [1944] SAStRp 17; [1944] SASR 82, 85-86 (Mayo J).

[251]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ), citing In re Buckton; Buckton v

Buckton [1907] UKLawRpCh 98; (1907) 2 Ch 406, 414.

[252]

See Uniform Civil Rules 2020 (SA) r 218.17(1)(c); PJ Nash Pty Ltd v Food and Beverage

Australia Limited [2021] SASCA 86, [66] (Lovell, Livesey and Bleby JJA); Return to Work

Corporation of South Australia v BI (Contracting) Pty Ltd [2022] SASCA 49, [75]-[77]

(Livesey P and Bleby JJA). See also Chakravarti v Advertiser Newspapers Ltd (1998) 72

SASR 361, 372-373 (Doyle CJ and Perry J); Collex Waste Management Services Pty Ltd v The

Corporation of the City of Enfield (No 2) [2000] SASC 140, [27]-[28] (Bleby J, with whom

Doyle CJ and Lander J agreed).

[253]

In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

[254]

See pt 3A, s 72B of the Administration and Probate Act 1919 (SA).

[255]

As occurred in Re Magarey Farlam Lawyers Trust Accounts (No 3) [2007] SASC 9;

(2007) 96 SASR 337 where the contest was generally between the so-called tracing claimants

and the pooling claimants.

[256]

In the Estate of Badger (deceased) [2021] SASC 25, [69]-[70], [92]-[107] (Bampton J).

[257]

Being a gift of up to $200,000 (in the 2007 letter of wishes) and $400,000 (in the 2008

letter of wishes) to enable her to purchase a house.

[258]

The 2008 letter of wishes also included a gift of $5,000 to a scholarship in the name of

Sir Geoffrey Badger.

[259]

In the Estate of Badger (Deceased) [2021] SASC 25 at [66]- [70] (the Reasons).

[260]

Learmonth et al, Williams, Mortimer & Sunnucks - Executors, Administrators and

st

Probate, (21 ed, 2018) at [34-02].

[261]

Ong v Lottwo Pty Ltd (2013) 116 SASR 280 at [50]-[58] (Nicholson J, Kourakis CJ and

Stanley J agreeing); Ocsalt Pty Ltd v Minister for Mineral Resources & Energy [2012] SASC

67 at [4]- [9] (Judge Lunn); OneSteel Manufacturing Pty Ltd v Environment Protection

Authority [2005] SASC 216; (2005) 92 SASR 67 at [18]- [26] (Debelle J); Pitt v Environment

Resources and Development Court (1995) 66 SASR 274 at 275-276 (Doyle CJ), 281-282

(Duggan J, Nyland J agreeing).

[262]

Lottwo Pty Ltd v Tudo [2012] SASC 172 at [43] (White J); and on appeal in Ong v

Lottwo Pty Ltd (2013) 116 SASR 280 at [16], [50]-[53] (Nicholson J, Kourakis CJ and Stanley

JJ agreeing).

[263]

Gardiner v Hughes [2017] VSCA 167 at [90] (McLeish JA, Tate and Kyrou JJA agreeing).

[264]

[265]

[266]

Re Devoy [1943] St R Qd 137.

Re Cockell [2016] NSWSC 349; Re Kouvakas [2014] NSWSC 786.

Kipping v Ash [1845] EngR 1034; (1845) 1 Rob Ecc 270; 163 ER 1035; Re Gillard [1949]

VicLawRp 22; [1949] VLR 378; Re Culina [2004] NSWSC 504. See also Randall v Randall

[2016] EWCA Civ 494.

[267]

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the

Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66 (the Macedonian Church case) at [45], [61]-[62], [65],

[71]-[72] (Gummow ACJ, Kirby, Hayne and Heydon JJ), at [196] (Kiefel J); Federal

Commissioner of Taxation v Thomas [2018] HCA 31; (2018) 264 CLR 382 at [57] (Kiefel CJ,

Bell, Keane, Nettle, Gordon and Edelman JJ); Tschirn v Australian Executor Trustees Ltd

[2016] SASC 149 at [54], [57] (Doyle J); In the Estate of McBride [2019] SASC 204 at [12]-

[14] (Stanley J).

[268]

Macedonian Church case at [64], [74] (Gummow ACJ, Kirby, Hayne and Heydon JJ), at

[195] (Kiefel J); Federal Commissioner of Taxation v Thomas [2018] HCA 31; (2018) 264

CLR 382 at [55]- [57] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).

[269]

Martin v Hayward [1908] SALawRp 20; [1908] SALR 187 at 195-196 (Way CJ).

[270]

Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; (2006) 96 SASR

323 at [28] (Debelle J) (citations omitted), approved in Re Magarey Farlam Lawyers Trust

Accounts [2007] SASC 307; (2007) 99 SASR 40 at [43] (White J, Nyland and Kelly JJ

agreeing).

[271]

Macedonian Church case at [34], [65] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[272]

See Kirsten v Miller [2020] SASCFC 129 at [16]- [19] (Kourakis CJ, Kelly and Blue JJ);

Marley v Mutual Security Merchant Bank and Trust Co Ltd [1990] UKPC 44; [1991] 3 All ER

198 at 201 (Privy Council).

[273]

See, for example, Brown v Willoughby [2012] WASC 20 at [25], [28], [43] (Heenan J).

[274]

Reasons at [76]-[77] (omitting citations).

[275]

Reasons at [81].

[276]

Reasons at [87].

[277]

Reasons at [88]-[89].

[278]

Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22; (1932) 47 CLR

417 at 418-419 (Dixon J).

[279]

Duggan v White [2018] NSWSC 364 at [24] (Parker J).

[280]

[281]

[282]

[283]

[284]

[285]

th

Tucker et al, Lewin on Trusts, (20 ed, 2019) at [3-076].

Lewin on Trusts, at [3-078].

Reasons at [106].

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 535 (Young J).

th

Lewin on Trusts, at [3-097]; Barlow et al (eds), Williams on Wills, (9 ed, 2008) at

th

[36.10]; Heydon and Leeming, Jacobs’ Law of Trusts in Australia, (8 ed, 2016) at [7-23]; Re

Boyes [1884] UKLawRpCh 95; (1884) 26 Ch D 531; Re Pugh’s Wills Trusts [1967] 1 WLR

1262.

[286]

Blackwell v Blackwell [1929] AC 318 at 339; Re Keen [1937] Ch 236 at 244-247 (Lord

Wright MR); Williams on Wills, at [36.11].

[287]

Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 536-540 (Young J).

[288]

th

Learmonth et al, Theobald on Wills, (19 ed, 2021) at [5-023]; Jacobs’ Law of Trusts in

Australia, at [7-24].

[289]

Cf Re Cooper [1939] 1 Ch 811, referred to in Theobald on Wills, at [5-024], and Jacobs’

Law of Trusts in Australia, at [7-25].

[290]

Reasons at [116].

[291]

Assuming the validity of this post-execution of the will expression of wishes, but noting

that even if it was not valid (by reason of its timing), this would make little difference for

present purposes given the similarly expressed wishes in the 2007 letter of wishes.

[292]

Reasons at [128].

[293]

Reasons at [120].

[294]

Reasons at [120].

[295]

Reasons at [131].

[296]

Reasons at [131].

[297]

Reasons at [123] (omitting citations).

[298]

Reasons at [124]-[127].

[299]

Reasons at [131]-[132].

[300]

Reasons at [133].

[301]

And, potentially unlike any evidence that Mr Burke might have been able to give (had he

not died) of communications to him by Lady Badger, would not appear to fall within any

recognised exception or qualification to the operation of the rule against hearsay (Hughes v

National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143

CLR 134 at 137-138 (Barwick CJ), at 149-153 (Gibbs J), at 159 (Murphy J); Bull v The Queen

(2000) 201 CLR 443 at [79], [122] (McHugh, Gummow and Hayne JJ).

[302]

CDJ v VAJ (No 1) (1998) 197 CLR 172 at [52] (Gaudron J), [104]-[108] (McHugh,

Gummow and Callinan JJ).

[303]

CDJ v VAJ (No 1) (1998) 197 CLR 172 at [55] (Gaudron J), [111]-[116] (McHugh,

Gummow and Callinan JJ) and [186]-[189] (Kirby J); Sunlight Nominees Pty Ltd v Zotti

[2019] SASCFC 11 at [39]- [41] (Blue J).

[304]

Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 372-373 (Doyle CJ and

Perry J, Williams J agreeing).

[305]

Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No

2) [2000] SASC 140 at [17], [27]-[28] (Bleby J, Doyle CJ and Lander J agreeing).

[306]

To provide for the cost of a dwelling house, apartment or flat of her choosing to allow her

absolute independence and security for the remainder of her lifetime.

[307]

[308]

To be used as a deposit on a house, apartment or flat of her choosing.

Macedonian Orthodox Community Church St Petka Inc v His Eminence Peter the

Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008]

HCA 42; (2008) 237 CLR 66 at [45], [61]-[62], [65], [71]-[72] and [196].

[309]

In the Estate of Badger (deceased) [2021] SASC 25 at [11].

[310]

Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280 at [50]-[55].