MCARTHUR v GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR

[2024] WASCA 15

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Probate proceedings
3. › Interlocutory applications
4. › Examination of witnesses before trial
5. › Order to bring in will or testamentary paper
6. › Whether power to examine extends to testamentary intentions generally
7. › Rules of the Supreme Court 1971 (WA), O 73 r 20(1)
8. › Court of Probate Act 1857 (UK), s 26
1. Practice and Procedure
2. › Case management powers
3. › Pre-trial examination of witnesses
4. › Whether case management powers support ordering affidavit evidence and cross-examination before trial
5. › Discretionary considerations
6. › Rules of the Supreme Court 1971 (WA), O 4A r 5A(1)
1. Practice and Procedure
2. › Legal professional privilege
3. › Nature as substantive right
4. › Whether court has power to override privilege through procedural rules
5. › Whether waiver of privilege should be declared on appeal
1. Practice and Procedure
2. › Procedural fairness
3. › Failure to determine application on its merits
4. › Whether judicial officer must inform parties if proposing to decide on different basis

Quick Take

In Western Australia, O 73 r 20(1) RSC does not permit pre-trial examination of witnesses in probate proceedings at large as to testamentary intentions; the rule is confined to examination ancillary to the production of testamentary papers, and broader examination must be sought under case management powers with appropriate justification.