Supreme Court Rules

What are they and when do they apply to probate cases? There is a distinct duality in both the rules and guidance that apply to matters related to probate and the Court's processes and procedures.

I recently fell foul of the Rules of the Supreme Court 1971 whilst attempting to respond to a Requisition from the Registrar and Notice of a caveat received from the Supreme Court Probate Division Registrar, in relation to my application for Grant of representation (probate).

The Rules of the Supreme Court 1971 ('the Rules') sets out the rules and requirements for dealing with the Court. These rules and requirements are implemented by the procedures and guidance set out in the Consolidated Practice Directions.

In my defence, so to speak - I did seek out and uncover the Rules before starting my application but the duality of the Western Australia Supreme Court's processes and operations which is reflected in the Rules is somewhat misleading and if not "in the know" i.e. a local legal practitioner, if you take the Rules prima face you would also be likely to fall foul.

What do the rules say about Probate?

The very first section in the Rules, known as an "Order" - which starts on page 44 of the PDF version - sets out when the rules apply and where they do not.

3. Certain proceedings excluded

(1) Subject to the provisions of this Order, these Rules shall have effect in relation to all proceedings in the Supreme Court.

(2) These Rules shall not have effect in relation to proceedings of the kinds specified in the first column of the following Table (being proceedings in respect of which rules may be made under the enactments specified in the 2nd column of that Table) —

So my first take on reading that was - if you are dealing with a non-contentious probate matter under the Administration Act 1903, the specific rules outlined in that Act, along with any rules made under the Supreme Court Act 1935 and the Public Trustee Act 1941 for such matters, would apply directly and that the general Supreme Court Rules do not apply to non-contentious or common form probate business due to the existence of these specialised provisions.

General Applicability of the Rules: The first subsection states that, with certain exceptions, the rules in question govern all proceedings in the Supreme Court. This establishes a broad scope of applicability, indicating that the default position is for these rules to apply across the board.

Specific Exclusions: The second subsection, along with the provided table, identifies specific types of proceedings to which these rules do not apply. These exceptions are based on the premise that certain proceedings are governed by specific statutory provisions that may call for their own set of rules. The mention of "non-contentious or common form probate business" being governed by sections of the Administration Act 1903, Supreme Court Act 1935, and Public Trustee Act 1941 implies that such probate matters follow a different procedural framework tailored to their unique nature.

Which is where the confusion begins. There is a specific set of provisions in the Rules entitled "Order 73 — Probate proceedings", which is approximately 15 or so pages out of the 679 paged PDF.

Upon review of Order 73, which appeared to be all very neatly contained and other than where it made specific references to any other order, rule or process from the broader rules, I assumed that I could pretty much skip the rest of the rules because they do not apply. Thinking that while the general framework of the Supreme Court Rules provides the backdrop for court procedures, for non-contentious probate matters, I should refer to the rules under Order 73 and the procedures specifically designed for these cases as per the Administration Act 1903 and related legislation and its implementation such as the Non-Contentious Probate Rules.

Divisions of the Court

The Supreme Court is comprised of several "divisions", broadly the Civil Division for general civil actions, Criminal Division, Appeals Division and then the Probate Division. Which the quote "death and taxes" rings true in that pretty much everyone will be death with by the Court at some point, even if you've never found yourself in the crosshairs of the law in during your life, you or your estate will however likely passthrough the Probate Division of the Court upon your death.

There is a separate section of the Supreme Court's website specifically for Wills & Probate which sets out its own procedures, forms and guidance. With little to no reference to any other division or the broader rules or practice directions.

Practice Directions

The administrative procedures which implement the rules within the operations of the Court are defined in the Consolidated Practice Directions ('CPD') which is generally divided into sets of procedures for each division, including a specific section for "Specialised Procedures" which cover both "Probate - Non-Contentious or Common Form" in section 9.1 and "Probate Actions (Contentious Matters)" in section 9.2.

eCourt Case Management System

After a cursory review of these other documents, you'll be relieved to see that Court has somewhat made a step into this millennium by moving the process of filing documents with the Court online via their eCourt Case Management System ('ECMS').

However. upon full review, the duality of the processes is reenforced when you quickly discover that the Probate Division and all matters related are not supported or accepted via the ECMS and may only be made in person or via post - I'll cover this and how I obtained an exemption in another post.

All of these would support my initial belief that there are separate procedures and rules that apply and unless expressly referenced, the other 654 pages of the Rules can safely be skipped. At the time, I also did a quick search for certain terms such as "probate", "requisition" and "caveat", just to make sure that there were no other references that I had missed.

Actually, all of the Rules apply

I was wrong. In actual fact, ALL of the rules apply and therefore must be fully understood before certain processes are augmented and swapped out by those set out in Order 73.

There is a fourth subsection to Order 1, Rule 3 that does exactly what it states and that is to contradict the statements made in the previous subsections of the rule:

(4) In the case of proceedings mentioned in paragraphs (2) and (3), nothing in those paragraphs shall be taken as affecting any provision of any rules (whether made under the Act or any other Act) by virtue of which the Rules of the Supreme Court or any provisions thereof are applied in relation to any of those proceedings.

Interaction with Other Rules: This fourth subsection clarifies that the exclusions mentioned do not negate the application of the Supreme Court Rules or any of its provisions to the excluded proceedings if other rules (made under any act) apply them to those proceedings.

It is this provision that applies the Supreme Court Rules to the excluded categories and where necessary, under other legal frameworks. Essentially, it acknowledges that while these proceedings are primarily governed by their specific statutes, the broader Supreme Court Rules are deemed applicable.

You would hope that these specialised rules take precedence over the general Supreme Court Rules in non-contentious probate proceedings, ensuring that these matters are handled according to the tailored procedures that best suit their nature.

Legal advice

Upon falling to properly follow the rules, my application was rejected with the Registrar stating:

"If you do not understand the process for applying to remove a caveat, it is recommended that you seek legal advice from a practising lawyer experienced in Western Australian probate matters."

I felt compelled to clarify the distinction between "understanding" and "familiarity" in this situation as it was by no means my ability to capability to comprehend the process, but it was that I followed the exactly the procedures and processes set out in the rules and other directions as documented. What I was not aware of where the broader processes for civil and criminal matters that also apply, requiring and understanding of these was necessary to discern when and in which circumstances the augmented or substitute procedures for probate matters also apply.

I wholeheartedly refuse to pay for legal advice purely to navigate the public court system and indulge in its ceremonies and administrative procedures. I recognise the need for proper processes and procedures for the orderly operation of the courts, but advocate their proper definition, and that definition must be easily understood by and accessible to the public.

This statement reflects a principle of accessibility and fairness in legal processes. It suggests that legal procedures should be designed in such a way that individuals without specialised legal education can understand and navigate them. The underlying idea is that if a process is so complex that it necessitates a law degree to be followed, then it could be considered excessively exclusive or potentially unjust, as it would bar the average person from participating without professional legal assistance.

From a legal philosophy standpoint, the statement champions the importance of making the law accessible to all members of society. This is a key aspect of the rule of law, which holds that laws should be public, clear, and equally applicable. Ensuring that legal processes are understandable and manageable by the general public supports transparency and equality before the law, allowing individuals to exercise their rights and fulfil their legal obligations without undue hardship.

While it emphasises the importance of accessibility, whether a process is legally deemed "unlawful" would depend on specific legal standards and interpretations within a jurisdiction's legal system. There are indeed complex areas of law that, while challenging for laypersons to navigate, are not necessarily unlawful due to their complexity. Instead, such situations often highlight the need for legal reform to enhance accessibility and comprehension. It suggests that legal processes should be scrutinised for their accessibility and that overly complex procedures may warrant reconsideration or reform to ensure they comply with broader legal and ethical standards that govern fairness and equal access to justice.

The statement might be used as a rhetorical device to argue for simplifying legal processes and making the law more accessible to non-lawyers. It underscores a broader advocacy for legal reforms aimed at demystifying the legal system and ensuring that individuals can effectively engage with it without being forced to incur the cost of legal representation for straightforward matters.