In complex matters involving applications to remove executors or trustees, it is often tempting for parties, and sometimes the court, to propose (or order) that the applicant should plead its case in the formal way.
Practitioners may find it useful to note the observations of Parker J said in Gillespie v Gillespies Cranes Nominees Pty Ltd (2022) 405 ALR 680 at 699-700 [125]:
“As with other exercises of the administrative jurisdiction, an application to remove a trustee is normally made by way of originating summons. Usually there will be no pleadings at all. Like other applications for the exercise of powers in that jurisdiction, an application for removal of a trustee requires a discretionary judgment which depends ultimately on the Court’s perception of what is, in the particular circumstances, in the best interests of the estate. It does not lend itself to formal pleading in the way in which a claim based on a cause with defined factual elements does.”
Those observations are a powerful reminder of the nature of the court’s exercise of its discretion in removal (and arguably other similar) applications.
There are many reasons why Parker J’s observations hold true: for example, in the administration of estates, matters relevant to the exercise of the court’s discretion may occur right up to the hearing, and it would arguably be contrary to the interests of justice to deny an applicant the ability to refer to material plainly relevant to the exercise of the court’s discretion merely because the point was not pleaded. Experienced practitioners will be alert to issues which may arise once a case is pleaded, including the propensity for requests for further and better particulars and the potential for proliferation of schedules to pleadings and responses to requests for particulars, especially in matters involving factual complexity.
Another practical concern is whether the pleading is, in reality, likely to materially improve the parties’ and judge’s understanding of the case, as opposed to other orders which may be available, such as points of claim or early exchange of submissions.
I would respectfully suggest that an approach more consistent with UCPR r 5, in cases where there is a deal of complexity such that there may be efficiencies to be obtained by having a party set out its case, prior to the exchange of submissions, in a succinct and clear way, is to approach the issue by way of an exchange of points of claim and points of defence. Such orders appear to be being made more often by the judges of the Supreme Court of Queensland.
Other considerations may include whether the applicant has already provided a detailed listing statement (for example, for the commercial or wills and estates lists of the Supreme Court of Queensland), whether the parties are legally represented, and the nature of the affidavit evidence.
Ultimately, while there is no one-size-fits-all approach to such applications, the use of pleadings in executor and trustee removal applications runs the risk of being contrary to the efficient resolution of such cases.
