Apostolakos v Apostolakos

[2025] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

APOSTOLAKOS v APOSTOLAKOS & ORS

[2025] SASC 100

Decision of the Honourable Justice B Doyle  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

SUCCESSION - FAMILY PROVISION - PROCEDURE - DISCOVERY AND INTERROGATORIES

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES

The applicant makes application under s 7 of the now repealed Inheritance (Family Provision) Act 1972 (SA) for further provision from the estate of her mother (the deceased). The second respondent is a beneficiary under the deceased’s will.

Prior to filing a Response to the Originating Application, the second respondent agreed to a consent order requiring her to make discovery of documents concerning her financial position.  The order was made at a time when the parties were proposing to engage in a mediation of the applicant’s claim.  The second respondent did not comply, or at least did not fully comply, with the discovery order.  The mediation failed.  Subsequently, the second respondent filed a Response in which she made clear that in defending the applicant’s claim, she did not rely on her own financial position as a matter which would militate against the making of further provision in favour of the applicant.

The second respondent made application to set aside the consent order requiring her to make discovery.  The applicant filed an interlocutory application requiring the second respondent to discover documents relating to her financial position.  The applications were referred to a Justice of the Court on the basis that whether and in what circumstances beneficiaries who are respondents to a family provision claim are required to make discovery concerning their financial position is a question of recurrent significance.

Held, dismissing the applicant’s application for discovery and allowing the second respondent’s application to set aside the consent order requiring discovery by her of documents relating to her financial position:

1.in considering the jurisdictional question  whether the applicant has been left without adequate provision for her proper maintenance, education and advancement in life, an evaluative judgment is required which may involve consideration of whether any other beneficiaries assert an equal or greater need for provision from the deceased estate;

2.where a beneficiary under the deceased’s will disavows any assertion that they have an equal or greater need than the applicant, the applicant’s claim is to be assessed with reference to the nature of the applicant’s need and the nature of their claim, and on the basis that the beneficiary’s financial position adds nothing to the weight that might otherwise be attributed to the deceased’s testamentary intention that they should benefit under the will;

3.in such a case, it would not materially assist the applicant, in satisfying the jurisdictional requirement, to establish that the beneficiary is especially wealthy.  Documents recording or evidencing the beneficiary’s financial position are therefore not relevant, and, in any event, not directly relevant, to the determination of the jurisdictional question;

4.in considering the second stage of the inquiry required by a family provision claim, the financial position of beneficiaries under the will may be relevant if the parties adopt a position that the extent of the provision otherwise thought appropriate should be reduced by reference to a beneficiary’s need, or if the beneficiaries assert, as between them, that the burden should be shared on a basis which reflects the relative strength of their financial positions.  That is not the case here;

5.when an application is made to set aside a consent order, it is relevant to consider whether the order was sought pursuant to an antecedent underlying contract, but even in such a case, the Court has power to set aside the order even though there may not be a basis to set aside the contract;

6.this was not a case where the parties entered into a binding antecedent contract in relation to the subject matter of the consent order.  Instead, the parties’ communications were properly characterised as conferral ultimately resulting in consensus as expressed at the hearing;

7.it is in the interests of justice to set aside the consent order because the documents to be discovered are not directly relevant, the discovery would therefore serve no purpose, compliance would be time-consuming and costly, and the state of authority in this State when the order was entered into was somewhat uncertain.

Administration and Probate Act 1958 (Vic) s 91A(2); Inheritance (Family Provision) Act 1972 (SA) ss 7, 9, 10, 17; Succession Act 2006 (NSW) s 60(2)(d); Succession Act 2023 (SA) sch 4 cl 2, s 116; Uniform Civil Rules 2020 (SA) rr 1.5, 12.2, 73.7, 73.8, 73.9, 82.1, 82.2, 83.1, 83.2, 83.3, 86.4, 251.1, 254.11, 254.14, Chapter 7, Parts 3-12, referred to.

Sammut v Kleeman [2012] NSWSC 1030; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191, applied.
Smith v Smith [2018] SASC 93, distinguished.
Amos v Hogg [2018] NSWSC 1226; Anderson v Teboneras [1990] VR 527; Andrew v Andrew (2012) 81 NSWLR 656; Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1; Ball v Newey (1988) 13 NSWLR 489; Barbeques Galore (Aust) Pty Ltd v Jones Lang Lasalle (SA) Pty Ltd [2006] SASC 31; Barns v Barns (2003) 214 CLR 169; Blair v Blair [2002] VSC 131; Blore v Lang (1960) 104 CLR 124; Borebor v Keane [2013] VSC 35; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bosch v Perpetual Trustee Co Ltd (1994) 181 CLR 201; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275; Bowyer v Wood (2007) 99 SASR 190; Bramwell v Bramwell [2022] SASC 122; Bramwell v Bramwell [2023] SASCA 94; Chapple v Wilcox (2014) 87 NSWLR 646; Chavez v Moreton Bay Regional Council [2009] QCA 348; Cherwell District Council v Thames Water Board [1975] 1 WLR 448; Ciric v Ciric [2015] NSWSC 313; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Cross v Wasson (2009) 2 ASTLR 201; Davison v Kempson [2018] VSCA 51; E I du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423; Edgar v Public Trustee for the Northern Territory [2011] NTSC 5; Ellis v Leeder (1951) 82 CLR 645; Goodman v Windeyer (1980) 144 CLR 490; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Harris v Bennett [2004] VSC 171; Harrison v Auld [2021] VSC 73; Hearne v Street (2008) 235 CLR 125; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hyatt v Covalea [2011] VSC 334; In Estate of Berry (deceased) [2016] NSWSC 130; Jodell v Woods [2017] NSWSC 143; Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; Liosatos v Liosatos [2025] NSWSC 44; MacEwan Shaw v Shaw (2003) 11 VR 95; Matthews v Wear [2011] NSWSC 1145; McCosker v McCosker (1957) 97 CLR 566; Meres v Meres [2017] NSWSC 285; Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44; Mitchell v Mitchell [2024] SASC 154; Paino v Hofbauer (1988) 13 NSWLR 193; Paola v State Trustees Ltd [2012] VSC 158; Papantoniou v Foundouradakis [2023] NSWSC 1374; Poletti v Jones [2015] NSWCA 107; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389; Re Adamow (1989) 97 FLR 410; Re Estate MPS (deceased) [2017] NSWSC 482; Re Sinnott [1948] VLR 279; Siebe Gorman & Co Pty Ltd v Pneupac Ltd [1982] 1 WLR 185; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; Steicke v Pederick [2018] SASC 146; Sydney City Council v Ke·Su Investments Pty Ltd [1985] 1 NSWLR 246; Tobin v Ezekiel (2012) 83 NSWLR 757; Verzar v Verzar [2012] NSWSC 1380; White v Barron (1980) 144 CLR 431, discussed.

Foley v Ellis [2008] NSWCA 288; Harrison v Bauld [2021] VSC 73; Kilkenny v Kilkenny [2018] WASCA 197; Field v Inglis (Supreme Court of New South Wales, Young J, 8 February 1994, Unreported), considered.

APOSTOLAKOS v APOSTOLAKOS & ORS
[2025] SASC 100

Civil—interlocutory application

1. B DOYLE J:  These interlocutory applications concern the circumstances in which a beneficiary who is a respondent to a family provision claim should be required to make discovery of documents relating to their financial position or means.

   Background

2. By an Originating Application filed on 30 August 2022, the applicant (‘Paula’) made application under s 7 of the now repealed Inheritance (Family Provision) Act 1972 (SA) (‘IFP Act’) for further provision from the estate of her mother, Vasiliki Markos (‘the deceased’).[1] 

   [1] The IFP Act remains applicable to the action by virtue of clause 2 of Schedule 4 of the Succession Act 2023 (SA).

3. Paula is the executor of the deceased’s estate and is also the first respondent to the action for that reason.[2]  The second respondent (‘Anthea’) and the third respondent are the other two children of the deceased.  There are a number of other named respondents who are relatives of the deceased.  Anthea is a respondent to the proceeding in her capacity as a beneficiary under the deceased’s will.[3]

   [2]    Uniform Civil Rules 2020 (SA) (‘UCRs’), r 254.11(4).

   [3]    UCRs, r 254.11(3)(b).

4. The Originating Application was accompanied by an affidavit sworn by Paula setting out the basis of her claim.[4]  She deposes generally to her personal and financial circumstances, her relationship with the deceased, the assets of the deceased and the effect of the deceased’s will.  The affidavit does not contain any evidence relating to the financial position of Anthea or the third respondent.

   [4]    Affidavit of Paula Apostolakos sworn on 29 August 2022 (FDN 3).

5. On 17 August 2023, and before Anthea had filed a Response,[5] an order was made by consent which required that Anthea:[6]

   produce detailed disclosure documents in relation to her personal financial circumstances showing assets, liabilities, income and expenses referred to in the Applicant’s letter to the Respondent dated 1 August 2023 within 21 days of the date of this order.

   [5]    UCRs, rr 83.1, 83.2, 254.14.

   [6] FDN 29, paragraph [5].

6. The letter of 1 August 2023 had requested disclosure from Anthea in her personal capacity, including her assets, liabilities, income and expenses ‘in order to show her competing need for the purposes of the mediation’.

7. Anthea made informal disclosure of various documents for the purpose of the mediation but this did not involve comprehensive compliance with the consent order.  The mediation proceeded in late 2023.  It was not successful.

8. On 4 April 2024, Anthea was ordered to file a Response within 28 days.  On 2 May 2024, Anthea filed a Response.[7]  Part 1 of the document, titled ‘Attitude to the application’, contains the following:

   1.The Second Respondent denies that by the will of the deceased the Applicant is left without adequate provision for her proper maintenance, education or advancement in life within the meaning of section 7(1)(b) of the Inheritance (Family Provision) Act 1972 (SA) (‘the Act’).

   2.If, which is denied, the Applicant satisfies section 7(1)(b) of the Act, and accordingly the Court may in its discretion order that such further provision as the Court thinks fit be made out of the estate of the deceased for the maintenance, education or advancement of the Applicant (‘further provision’) then the Second Respondent:

   a.       does not put in issue her own financial circumstances and her other circumstances as a reason why further provision should not be made for the Applicant including from that portion of the estate of the deceased to which the Second Respondent is entitled pursuant to the will of the deceased;

   b. says that the burden of the further provision should, as between the persons (other than the Applicant) beneficially entitled to the estate of the deceased under the will of the deceased (including the Second Respondent), be borne by those persons in proportion to the values of their respective interests in the estate in accordance with section 9(2) of the Act and the Court should not otherwise order under section 9(2) of the Act;

   c. says for the purpose of the application of section 9(3) of the Act the Court should not otherwise order under section 9(3) of the Act; and

   d.      says that as to the burden of the further provision which falls on the beneficiaries of the commercial property of the deceased at 162-168 Gilbert Street Adelaide (‘the Gilbert Street property’) given by clause 3(b)(ii) of the will of the deceased, the further provision to be borne by the Gilbert Street property is to be raised or charged against the corpus thereof.

   [7]    FDN 43.

9. Anthea also filed an interlocutory application seeking that the discovery order referred to earlier be ‘set aside and rescinded’.[8]  That application is supported by affidavits addressing the circumstances in which the consent order was made.[9] 

   [8] FDN 44, paragraph [2].

   [9]    FDN 45, FDN 46.

10. By an affidavit made on 9 October 2024,[10] Paula swore in answer to Anthea’s Response, that:

    [26]I understand that the Second Respondent is the owner either solely or jointly of many multiple properties in Adelaide, and either has properties internationally, or has recently received large proceeds of sale for properties held internationally, which she has told me directly.  The Second Respondent also has many motor vehicles, most of which are high value assets such as multiple Cadillacs, a sports car, and a boat.

    [27]The Second Respondent operates a business, which has received the benefit of large sums of money from the deceased’s bank account over the years.

    [28]Further, I say that the Second Respondent’s interest in the properties on King William Road comprise a much higher capital value of the property in contrast to my interest, and as such, receives much higher rental income than me.

    [10] FDN 59.

11. More recently, by interlocutory application filed on 21 October 2024, Paula seeks an order in the following terms:[11]

    [11] FDN 61, paragraph [1].

    Pursuant to r 73.8, the Second Respondent make discovery in accordance with rr 73.2 and 73.3 of all documents which evidence the financial and other resources of the Second Respondent:

    a.as at the date of death of Vasiliki Markos deceased (‘the Deceased’) on 25 November 2019;

    b.to the extent that such financial and other resources of the Second Respondent have changed since that date, as at the date of this Order.

    For the purposes of this Order, ‘financial and other resources’ include:

    c.the assets and liabilities of the Second Respondent; and

    d.the assets and liabilities from which the Second Respondent may gain a financial benefit or detriment (including assets and liabilities of her husband); and

    e.the income and expenses of the Second Respondent.

12. These applications, and another,[12] were referred for hearing before a Justice of the Court, on the basis that the question whether and in what circumstances a respondent to a family provision claim should make discovery relating to their financial position is an issue of recurrent significance. 

    [12] FDN 58.  That application, made by Anthea, seeks discovery of categories of documents from Paula.  Paula did not advance any submissions in opposition to the making of the orders sought, and I am satisfied it is appropriate for those orders to be made.

13. The parties agreed that I should first determine Paula’s more recent application for discovery.  If that succeeds, it becomes unnecessary to resolve Anthea’s application to set aside the earlier consent order.  If it fails, Paula resists Anthea’s application to rescind the relevant consent order primarily on the basis that the consent order was the subject of an agreement between the parties through their solicitors with the result that, even if there were otherwise good reason to set aside the order for discovery, the Court lacks power, or should be extremely reluctant, to do so unless there is a basis to set aside the underlying agreement.

    The statutory foundation for the action

14. At relevant times, s 7 of the IFP Act provided as follows:

    7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person

    (1) Where—

    (a)     a person has died domiciled in the State or owning real or personal property in the State; and

    (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of the Act is left without adequate provision for his proper maintenance, education or advancement in life,

    the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

    (2)…

    (3)The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Cour thinks sufficient.

    (4)The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.

    (5)…

    (6)In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and other periodic or other payments.

15. Section 9 makes further relevant provision, as follows.

    9—Contents or order

    (1)Every order that provision be made for the maintenance, education or advancement of any person out of the estate of a deceased person must, inter alia—

    (a)     specify the amount and nature of the provision thereby made; and

    (b)     specify the part or parts of the estate of the deceased person out of which that provision shall be raised or paid, and prescribe the manner of raising and paying that provision; and

    (c)     state the conditions, restrictions or limitations imposed by the Court.

    (2)Subject to subsection (3) of this section and unless the Court otherwise orders, the burden of any such provision shall, as between the persons beneficially entitled to the estate of the deceased person, be borne by those persons in proportion to the values of their respective interests in the estate.

    (3)Where the deceased person died leaving a will under which two or more persons are successively entitled to any property, the successive interests shall not, unless the Court otherwise orders, be separately valued for the purposes of subsection (2) of this section, but the proportion of the provision to be borne by that property shall be raised or charged against the corpus thereof.

    (4)The Court shall, in every case in which an order is made, direct that a certified copy of the order be made upon the probate of the will, or letters of administration of the estate, of the deceased person, and for that purpose may require the production of the probate or letters of administration.

    (5)The Court may at any time, and from time to time, on the application of the administrator or of any person beneficially entitled to or interested in any part of the estate of the deceased person, rescind or alter any order.

    (6)Notice of an application under subsection (5) of this section must be served upon all persons entitled to any benefit under the order in respect of which the application is made.

    (7)Upon any order being made under this Act, the portion of the estate affected by the order shall be held subject to the provisions of the order.

    (8)The Court may make such order as to the costs of any proceeding under this Act as it considers just.

1. Section 10 provides that every provision made by an order shall, subject to the IFP Act, operate and take effect as if it had been made as by a codicil to the will, or a will, depending on whether the deceased died with a will or intestate. Section 17 of the IFP Act authorises the making of rules of court as may be necessary or expedient for regulating the practice and procedure of the Court to be adopted for the purposes of the IFP Act.

2. The IFP Act has now been repealed and claims made after 1 January 2025 are governed by Part 6 of the Succession Act 2023 (SA).[13] 

   [13] Whilst s 116(1) of that Act is in substantially the same terms as s 7(1) of the IFP Act, s 116(2)(a) gives prominence to the wishes of the deceased person and s 116(2)(b) identifies a number of mandatory considerations, none of which include the financial position of other beneficiaries per se. Potentially, the financial position of other beneficiaries may be relevant to ‘any evidence of the deceased person’s reasons for making the dispositions in the deceased person’s will’. As well, s 116(2)(c) permits the Court to have regard to ‘any other matter that the Court considers relevant’.

3. The parties agreed that authority binding on me requires that a claim under s 7 of the IFP Act be understood as involving a two-stage process.

4. The first stage, which has been described as the ‘jurisdictional question’,[14] calls for a determination of whether an applicant has been left without adequate provision for her proper maintenance, education and advancement in life.  Whilst ultimately a question of fact, the assessment to be made involves an evaluative judgment.[15]  The second stage, which may be described as truly discretionary, requires the court to decide what provision ought to be made from the deceased’s estate and how that is to be achieved.[16]

   [14] White v Barron (1980) 144 CLR 431 at 456 (Wilson J), Singer v Berghouse (1994) 181 CLR 201 at 209 (Mason CJ, Deane and McHugh JJ), Bramwell v Bramwell [2023] SASCA 94 at [76] (Livesey P, Doyle and David JJA).

   [15] Singer v Berghouse (1994) 181 CLR 201 at 210 (Mason CJ, Deane and McHugh JJ).

   [16] See, eg, Bramwell v Bramwell [2023] SASCA 94 at [75]-[79] (Livesey P, Doyle and David JJA).

   The dispute as to relevance  

5. Paula submits that:

   (1)the financial resources or means of a beneficiary under the will are directly relevant to both stages of the inquiry; and

   (2)to the extent that the making of an order for discovery turns on whether the parties have chosen to rely on the financial resources or means of a beneficiary as a relevant matter, Paula does rely on Anthea’s financial position as a relevant matter in this case.  Having done so, it is not solely within the power of Anthea to remove that issue from the field of relevant issues.

6. Paula particularly relies upon the decision in Smith v Smith[17] in advancing the first proposition.  Acknowledging that the decision was under the Supreme Court (Civil) Rules 2006 (SA), rather than the Uniform Civil Rules 2020 (SA) (‘UCRs’), and also that, prior to that decision, it may not have been routine for discovery to be made on the question of the financial position of beneficiaries,[18] she submits that the decision is consistent with High Court authority, and should be followed and applied in this case.

   [17] [2018] SASC 93.

   [18] Paula’s counsel indicated in oral submissions that prior to the decision in Smith v Smith, the practice in this State had been effectively to follow what was described as the Anderson v Teboneras line of authority.  That decision is referred to later in these reasons.

7. Anthea contends that:

   (1)the financial resources or means of other beneficiaries are not directly relevant to the first stage of the inquiry, at least not when the other beneficiaries do not rely on their own need as a reason why the applicant cannot be said to have been left without adequate provision for their proper maintenance, education or advancement in life;

   (2)the financial resources or means of other beneficiaries may be relevant to the second stage, because beneficiaries may seek to rely upon their own need as a matter which may go to reduce or extinguish the provision that should be made for the claimant, or as a reason why other beneficiaries should bear a higher proportion of the reduction in their entitlements necessary to meet the provision to be ordered by the Court, but:

   (a)Anthea has by her Response disavowed any such reliance; and

   (b)it is not open to a claimant positively to contend that the provision to be made to them is to be greater than would otherwise be the case because the other beneficiaries are financially secure or affluent. 

8. In other words, as to the second stage, Anthea contends that her financial position could only be relevant if she were to rely upon it to limit or extinguish the provision that should otherwise be made to Paula, or as a reason to depart from the effect of s 9(2) of the IFP Act, but since she makes no such contention, documents relating to her financial position are irrelevant.

9. Anthea submits that to the extent Smith v Smith suggests otherwise, it ought not to be followed or applied in this case.  Anthea relies upon what is said to be a line of authority in Victoria and New South Wales which, with one possible exception,[19] suggests that a beneficiary may decide not to make an issue of their own financial position.  She also relies upon observations made in two first instance decisions[20]  in this State post-dating Smith v Smith, which are said to be more consistent with the approach adopted in other jurisdictions, and which Anthea contends should prevail here.

   [19] Foley v Ellis [2008] NSWCA 288 at [85]-[91] (Sackville AJA, Beazley JA agreeing).

   [20] Bramwell v Bramwell [2022] SASC 121 at [86]-[87] (Bochner Aux J) and Mitchell v Mitchell [2024] SASC 154 at [132]-[135] (McDonald J).

10. Anthea also contends that the categories of discovery formulated in Paula’s application are, on any view, too wide.

    Procedural context

11. Proceedings under the IFP Act are governed by Division 3 of Part 4 of Chapter 20 of the UCRs.

12. Rule 251.1(2) provides that except to the extent that a rule in Chapter 20 excludes, modifies or is inconsistent with the other provisions of the UCRs, the other provisions of the UCRs applicable to a claim or originating application (as the case may be) apply to an action the subject of the Chapter.

13. An action for provision under the IFP Act must be instituted by filing an Originating Application and supporting affidavit in accordance with r 82.1.[21]  As a result, it is the rules relating to ‘originating applications’, which are contained in Chapter 8, that are, subject to contrary provision, picked up, rather than the Rules concerning ‘claims’ which are located in Chapter 7.

    [21] UCRs, r 254.11.

14. Whereas the Rules with respect to claims contemplate pleadings[22] and require general discovery to be made unless the Court otherwise orders or the parties unanimously agree otherwise,[23] proceedings by way of originating application require only that the Originating Application specify the orders to be sought and the statutory or other basis for them.[24]  There must be an accompanying supporting affidavit,[25] which must set out the facts on which the applicant relies to seek the order sought.[26] 

    [22] UCRs, Chapter 7, Parts 3-12.

    [23] UCRs, r 73.7(1).

    [24] UCRs, r 82.1(1), Form 2.

    [25] UCRs, r 82.1(2).

    [26] UCRs, r 82.2(1)(b).

15. A respondent who wishes to oppose or make submissions about an originating application must file a ‘Response’ in the prescribed form setting out the party’s response to facts alleged in support of the application, other facts the party contends are relevant to the application and the party’s response to the orders sought.[27]  The respondent should also file an affidavit if they wish to rely on any facts in addition to or contrary to those relied on by the applicant (whether in the originating application or supporting affidavit).[28]  If an applicant wishes to rely on any facts in response to a responding affidavit, they must within 14 days after service of the responding affidavit file a reply affidavit in the prescribed form.[29]

    [27] UCRs, r 83.1(1).

    [28] UCRs, r 83.2(1).

    [29] UCRs, r 83.3(1).

16. Otherwise, the UCRs confer a broad power on the Court in respect of, but do not presumptively provide for, the making of orders for the filing and service of ‘lists of documents’ and other interlocutory steps that are or may be required under Chapter 7 in respect of claims.[30] 

    [30] UCRs, r 86.4.

17. It follows that an order for discovery is in the discretion of the Court in IFP Act matters. By using the expression ‘lists of documents’, the provisions of Part 13 of Chapter 7 are referenced. Under that Part, a party may be required to file a list of documents in relation to ‘discoverable documents’. That Part contemplates that documents may be discoverable in three broad ways. First, they may be discoverable because they are required to form part of ‘general discovery’ because they are ‘directly relevant to an issue raised in the proceedings and, if pleadings have been filed, the issues for this purpose are defined by the pleadings’.[31]  Without limiting that class of documents, a document is directly relevant if it is intended to be relied on at trial by that party or it supports or adversely affects a party’s case.[32]  Secondly, they may be discoverable because they fall within a category in respect of which discovery is ordered, but under the relevant rule, a document must also qualify as discoverable for general discoverable purposes in order to be discovered.[33]  In other words, discovery by category is a limiting, not an extending, facility.  Thirdly, a document may be discoverable because it has been the subject of an order for ‘specific discovery’.  That can be by agreement, or by an order of the Court.[34]  The Court might, under this rule, order discovery of documents which would not be required to be discovered by way of ‘general discovery’.

    [31] UCRs, r 73.7(5).

    [32] UCRs, r 73.7(6).

    [33] UCRs, r 73.8(2)(a).

    [34] UCRs, r 73.9.

18. Returning to Division 3 of Part 4 of Chapter 20, relevantly, it provides that the applicant must join the administrator of the estate and any person having a beneficial interest in the estate and who may be adversely affected by a judgment in the action as a respondent.[35] 

    [35] UCRs, r 254.11(3).

19. The respondent must, if they wish to rely on any facts in addition to or contrary to those relied on by the applicant (in the applicant’s supporting affidavit), file and serve a responding affidavit within 28 days.  Where that occurs, the respondent is not required to file a Response.[36]  To that extent, Division 3 marks a departure from Chapter 8, but not otherwise.

    [36] UCRs, r 254.14.

20. In this case, Anthea has not availed herself of the exemption from filing a Response.  She has instead chosen to file a Response.

21. Paula’s application for discovery relies upon the Court’s power to make an order for ‘discovery by category’, and not ‘specific discovery’.  Accordingly, it can only succeed if the documents that would fall within the categories would be discoverable by way of ‘general discovery’.  That means that they must be directly relevant to an issue ‘raised in the proceeding’.  As there are no pleadings, resort must be had, by analogy, to the documents which the UCRs contemplate will identify and define the issues for trial. 

22. Where a document is only directly relevant if a particular proposition of law asserted by one party or the other is correct, it is sufficient to show that the question of law is reasonably arguable.[37] 

    [37] Barbeques Galore (Aust) Pty Ltd v Jones Lang Lasalle (SA) Pty Ltd [2006] SASC 31 at [22] (Besanko J).

23. By contrast, the earlier order, which Anthea seeks to have set aside, was by consent, and therefore can be justified as an order for ‘specific discovery’ irrespective of whether each document within the agreed category would be discoverable by way of general discovery. 

24. The Court has, however, power to vary or set aside the order made in August 2023, given its interlocutory nature.  If an express source is required, it may be found in r 103.3 of the UCRs.  The Court also has the power under r 12.1(1) to make any order that it considers appropriate in the interests of justice.

25. No party submitted that I should depart from the UCRs.  The applications before me must be resolved by reference to the UCRs and the procedural context in which they arise.  Having regard to the way Paula’s application is framed, it will only succeed if the documents are directly relevant to an issue that is properly ‘raised in the proceeding’.

    The state of authority

26. Paula contends that the observation made in Smith v Smith,[38] to the effect that the financial resources of all beneficiaries are relevant to the jurisdictional question whether or not they positively advance a competing claim of need, whilst not strictly binding on me, is correct, and should be applied to proceedings under the UCRs and, indeed, to this action. 

    [38] [2018] SASC 93.

27. Paula contends that although the parties in that case may not have drawn the Court’s attention to the body of interstate authority which may be in tension with the proposition just described, it is soundly based upon High Court authority.

28. Before considering the authorities in this State, it is therefore helpful to begin by considering such guidance as may be available from the High Court authorities concerning family provision legislation, before turning to the approach in other jurisdictions, particularly Victoria and New South Wales. 

29. It is true that each statute must be considered according to its text, context and purpose, but the various family provision statutes share a common origin and the substantive provisions are, in most cases, expressed in essentially similar language.  In a passage subsequently referred to with approval by Gummow and Hayne JJ in Barns v Barns,[39] Dixon CJ observed in Coates v National Trustees Executors and Agency Co Ltd that:[40]

    [t]he legislation of the various States is all grounded on the same policy and found its source in New Zealand.  Refined distinctions between the Acts are to be avoided.

    [39] (2003) 214 CLR 169 at [43].

    [40] (1956) 95 CLR 494 at 507.

30. That said, the procedural context in which decisions in other jurisdictions have arisen must be borne in mind. For instance, in this State, whilst the IFP Act only required a claimant to serve on persons other than the administrator of the estate to the extent that the Court directs,[41] the UCRs require any person with a beneficial interest in the estate that may be adversely affected by the making of an order to be joined as a respondent.[42]  There is no such general requirement in New South Wales or Victoria.  In those jurisdictions, the question of inter partes discovery on the part of persons who may benefit under the will or pursuant to the rules of intestacy does not arise as a matter of course.  The administrator or executor of the deceased estate in respect of which the claim is made may or may not be in possession of documents relating to the financial position of all such beneficiaries.  If not, questions of relevance may arise in respect of applications for non-party discovery or the issue of subpoenae.

    [41] IFP Act, s 7(2).

    [42] UCRs, r 254.11(3)(b).

    Decisions of the High Court

31. Both parties accept that the financial position of a beneficiary may be relevant to the second stage of the analysis in a family provision claim.  In respect of the first stage, however, they are in dispute about when, if ever, the financial position of a beneficiary who may be affected by an order for provision is relevant.  That turns upon the factors that may bear upon whether a claimant has been left without adequate provision for their proper maintenance, education or advancement in life.

32. The descriptors ‘adequate’ and ‘proper’ have different meanings in this context.  In McCosker v McCosker,[43] Dixon CJ and Williams J referred to what had been said by the Privy Council in Bosch v Perpetual Trustee Co Ltd[44] in this regard:[45]

    The use of the word “proper” in this connection is of considerable importance.  It connotes something different from the word “adequate”.  A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance.  So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances.

    [43] (1957) 97 CLR 566.

    [44] [1938] AC 463.

    [45] [1938] AC 463 at 476.

33. In relation to the word ‘proper’, Dixon CJ and Williams J elaborated:[46]

    It means proper in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.

    [46] (1957) 97 CLR 566 at 571-572.

34. A few years later, in Pontifical Societyfor thePropagation of the Faith v Scales,[47] Dixon CJ said that:[48]

    What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them.  There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.

    [47] (1962) 107 CLR 9.

    [48] (1962) 107 CLR 9 at 19.

35. In Goodman v Windeyer,[49] Gibbs J said that the words ‘adequate’ and ‘proper’ are relative.  There are no fixed standards, with the court forming opinions based upon its own general knowledge and experience of current social conditions and standards.[50]

    [49] (1980) 144 CLR 490.

    [50] (1980) 144 CLR 490 at 502.

36. In Singer v Berghouse,[51] the plurality emphasised that the statute under consideration contemplated a two-stage test.[52]  The first stage involves a question of objective fact (albeit one with an evaluative character) to be determined by the judge at the date of the hearing.  The second stage, whilst involving a similar task in some respects, is discretionary in the accepted sense.[53]

    [51] (1994) 181 CLR 201.

    [52] (1994) 181 CLR 201 at 208-209 (Mason CJ, Deane and McHugh JJ).

    [53] (1994) 181 CLR 201 at 210-211 (Mason CJ, Deane and McHugh JJ).

37. In respect of the first stage, Mason CJ, Deane and McHugh JJ doubted the usefulness of the references to ‘moral duty’ or ‘moral obligation’ that had previously been associated with the inquiry whether the provision (if any) made for a claimant was ‘inadequate’ for the claimant’s ‘proper maintenance, education and advancement in life’.[54]  They endorsed the observation made in Bosch v Perpetual Trustee Co Ltd as to the difference between ‘adequate’ and ‘proper’ and the interrelationship between ‘adequate provision’ and ‘proper maintenance’ etc.  The plurality went on to say that:[55]

    The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

    The determination of the second stage, should it arise, involves similar considerations.  Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.  In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.  Take, for example, a case like Ellis v Leeder,[56] where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.

    [54] (1994) 181 CLR 201 at 209 (Mason CJ, Deane and McHugh JJ).

    [55] (1994) 181 CLR 201 at 209-210.

    [56] (1951) 82 CLR 645.

1. In Vigolo v Bostin,[57] the members of the Court expressed different views as to the extent to which questions of morality were involved in resolving applications under the legislation. 

   [57] (2005) 221 CLR 191.

2. Gleeson CJ considered that the concept of propriety was value-laden and must have a source external to the decision-maker, being morality.  He considered that this was consistent both with authority and extrinsic materials which shed light on the legislative purpose.  The legislation is not confined to, or entirely preoccupied with, relieving against poverty.  As his Honour said:[58]

   The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children.  The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution.  The legislative power was to make ‘proper’ provision.  Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship.  That is one of the fundamental ideas upon which the structure of our society is based.

   Similarly, when courts came to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall.  In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate).  It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives.[59] Why is this so?  The answer, again, lies in concepts of moral obligation.

   [58] (2005) 221 CLR 191 at [12]-[13].

   [59] See, eg, Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510, per Dixon CJ.

3. The Chief Justice later observed that:[60]

   In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.

   [60] (2005) 221 CLR 191 at [25].

4. The primary judge in that case had not been persuaded that the adult son claimant had been left without adequate provision for his proper maintenance and advancement.  There were findings that the claimant had been adequately and proportionately compensated for his contributions to the farming business of his father (the testator) during his father’s life and that, by comparison with his four siblings to whom the estate was left, he had been given opportunities by his parents that were to his significant financial advantage.  His claim was not based on financial need.  He was relatively wealthy, and each of his siblings was not.

5. Notwithstanding his view that questions of moral obligation were relevant under the legislation, Gleeson CJ, like the other members of the Court, held that the primary judge had not erred in failing to be persuaded that the claimant had been left without adequate provision for his maintenance, education or advancement.  Having referred to the primary findings of fact made by the trial judge, the Chief Justice said that:[61]

   [w]hatever justification, in personal terms, might have existed for a grievance on the part of the appellant, it did not, in [those circumstances], amount to a claim (moral, natural or legitimate) that demanded testamentary recognition by a judicious father.

   [61] (2005) 221 CLR 191 at [37].

6. Gummow and Hayne JJ considered that references to ‘moral duty’, whilst appropriate in inviting attention to the questions presented by the relevant legislation, were liable to be misunderstood.[62]  However, they reached the same result.  The trial judge had not erred in failing to be persuaded that the appellant was entitled to succeed on the jurisdictional question.

   [62] (2005) 221 CLR 191 at [73].

7. Callinan and Heydon JJ felt no reluctance, at least in some cases, to use the expressions ‘moral duty’ and ‘moral obligation’, and to apply the concepts underlying them, which include the idea of ‘moral claims’, observing that there were several material indications in the legislation that moral considerations may be relevant.  They emphasised, however, that a moral claim could not be a claim founded upon considerations not contemplated by the legislation.[63]

   [63] (2005) 221 CLR 191 at [113].

8. Their Honours concluded:[64]

   For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act.

   We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

   On any basis however in this case, we do not think that the appellant was entitled to succeed, whether a two staged inquiry is appropriate or not.  The appellant has more than enough for his proper maintenance, support, education or advancement in life even assuming that the promise is relevant.  It seems to us that the family settlement which was made in 1993 rendered the promise no longer relevant, or of any significance. …

   The appellant is a middle-aged, married father of one dependent child, and is of substantial means.  At the time of his father’s death, he and his wife had assets worth approximately $1.5m.  No evidence was adduced at trial of the amount of money required (or desired) by the appellant for his ‘proper maintenance, support, education or advancement in life’, and no suggestion could be made that the appellant was unable to meet, from his own resources, the cost of properly maintaining, supporting, educating or advancing himself in life.

   With respect to the appellant’s ‘moral claim’, the trial judge found that the appellant was ‘adequately compensated for the considerable effort, energy and expertise he devoted to the farming business’.  …

   The financial positions of the respondents at the time of the testator’s death are also relevant. …

   [64] (2005) 221 CLR 191 at [121]-[126].

9. After canvassing the financial positions of the other children of the testator, Callinan and Heydon JJ concluded that the finding of the trial judge that the appellant did not have a moral claim that he asserted to share in his father’s estate should not be disturbed.[65] 

   [65] (2005) 221 CLR 191 at [131].

10. Common to the approach of all members of the Court in Vigolo v Bostin, and indeed the earlier decisions of the Court, is a recognition that the first stage inquiry is not confined to an assessment of whether the claimant would by some objective standard be left in a state of financial need if no provision is ordered by the Court.  The required analysis is contextual, and more nuanced than that. 

11. So, on the one hand, a claimant who is financially independent and not destitute may nevertheless have been left without adequate provision for their proper maintenance, education or advancement in life when regard is had to circumstances such as the size of the deceased’s estate, the contributions, financial or otherwise, made by the claimant to the deceased during their life, and the relative absence of other needy objects of the deceased’s benefaction.  Whether or not it is to be characterised as having a ‘moral’ dimension, the question whether the claimant has been left with adequate provision for their proper maintenance etc. by the standards of a wise and just testator is affected by the extent to which others who stand to benefit from the deceased estate are themselves in similar or greater need. 

12. Conversely, a claimant who is, by prevailing societal standards, financially needy, might fail to establish the jurisdictional requirement when regard is had to circumstances such as the modest nature of the estate, events that have occurred prior to death (such as inter vivos financial or other assistance, or conduct which might be seen as severing any moral obligation), or the more pressing needs of other persons to whom a similar or greater moral obligation may be owed.

13. It is one thing to recognise the potential significance to the jurisdictional question of these other contextual considerations which are required to give meaning to the value-laden adjectives ‘adequate’ and ‘proper’, and so as to avoid the assessment being made in a vacuum.  But that does not mean that the court is tasked with assessing what may have been the ideal, or most just, distribution of the deceased’s wealth, on the basis that if what the claimant has been left falls short against that measure, it follows that they have been left without adequate provision in the relevant sense.  To adopt that approach would untether the inquiry from the central concepts of the adequacy of the provision for the proper maintenance, education and advancement in life. 

14. The difference is between, on the one hand, recognising that surrounding circumstances can inform what is ‘adequate’ and ‘proper’ and that the needs and claims of others can bear on that question, and, on the other, intervening whenever the testator’s will, or the rules of intestacy, would fail to distribute wealth to those in the family who are the least affluent, or whenever, in the court’s view, a more fair distribution of wealth might have been achieved.  Intervention on the latter basis is beyond the statutory mischief and purpose.  

15. In Hughes v National Trustees Executors and Agency Co of Australasia Ltd,[66] Gibbs J said that ‘the court is not entitled to re-write the will of a testator in accordance with its own ideas of fairness or justice’.  Fullagar and Menzies JJ had said something similar in Blore v Lang.[67]An illustration of that limitation is the observation, perhaps reflective of the time at which it was made, that:[68]

    in the case of an adult son, who has received an education and is well able to earn his living, the father’s moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) ‘to do what he likes with his own’.

    [66] (1979) 143 CLR 134 at 146.

    [67] (1960) 104 CLR 124 at 134-135.

    [68] Anderson v Teboneras [1990] VR 527 at 539 (Ormiston J), quoting Fullagar J in Re Sinnott [1948] VLR 279 at 281.

16. Confining attention, for the moment, to the relevant High Court authorities, it is clear that the existence and quality of competing claims are relevant to the first stage of the requisite analysis.  Indeed, Callinan and Heydon JJ considered that the financial position of other actual or potential beneficiaries (apart from the claimant) may bear on the first stage of the inquiry. 

17. That, however, is a subtly different question from whether the documents recording or evidencing the financial position of the persons who might have competing claims are directly relevant, without more. 

18. First, that a matter is potentially relevant to a legal issue does not, of itself, resolve the question whether it is directly relevant in a particular case.  Generally speaking, in an adversarial system, the parties may select, from a potentially wide range of matters, those upon which they rely to advance or defeat a claim. 

19. Secondly, an applicant’s reliance upon an asserted fact as relevant to advancing his or her claim does not make it so, thereby compelling discovery of any documents that bear on whether that factual assertion can be made good. That is because curial interference under statute with a testator’s exercise of (or decision not to exercise) testamentary freedom is authorised only where to fail to do so would leave the applicant with inadequate provision for their proper maintenance, education or advancement.  The inquiries that are truly relevant to resolving that question are not entirely at large. 

20. In assessing whether a testator failed to make adequate provision for the proper maintenance etc. of an applicant, it may be important in a particular case to have regard to the existence and quality of the competing claims.  That is because the statutory scheme would be incoherent if factors which bore on the applicant’s claim were ignored in connection with the position of other beneficiaries whose entitlements will inevitably have to give way to some extent if an order for provision is made.  Just as financial need on the part of an applicant is relevant, so must be equal or greater financial need on the part of another claimant whom the testator has chosen to benefit.  Where demonstrated, that need adds weight to the significance that may otherwise be accorded to the exercise of testamentary freedom.

21. At the first stage of the inquiry, regard is had to these other claims only for the purpose of assessing whether, notwithstanding what might otherwise appear to be reasons for concluding that the applicant has been left without adequate provision for the proper maintenance etc., that conclusion ought not, in the final analysis, be reached.  But if competing need has not been raised, and the applicant would still fail to show they have been left without adequate provision for the proper maintenance, etc., it is hard to see how their claim would be made good by proving the wealth of other beneficiaries.

22. Of course, the relevance of demonstrating wealth or affluence may be different at the second stage, if for no other reason than that, if a choice has to be made as to which beneficiaries should receive a reduced distribution, and in what proportions, their relative financial positions vis-à-vis one another may take on a particular significance. 

23. Having made those general and preliminary observations, I turn to address the state of authority in this State and elsewhere, before reaching a concluded view as to the appropriate disposition of this case.

    The position in Victoria

24. In Victoria, in Anderson v Teboneras,[69] Ormiston J observed that:[70] 

    Here the estate is one of significant but moderate value so that it is relevant to inquire what are the competing claims of the beneficiaries, without ignoring the need to leave untouched the testator’s distribution so far as may be fairly practicable.  Moreover, after making due allowance for the testator’s desire to benefit his widow and children, it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator’s bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.

    [69] [1990] VR 527.

    [70] [1990] VR 527 at 535.

25. That approach has been consistently applied in Victoria,[71] and was referred to with approval by the Court of Appeal in Davison v Kempson.[72]

    [71] See, eg, Borebor v Keane [2013] VSC 35 at [65] (Hargrave J).

    [72] [2018] VSCA 51 at [38] (Tate, Santamaria and Beach JJA).

26. More recently, in Harrison v Bauld,[73] the husband of the testator caused to be issued a subpoena to one of the testator’s children in their capacity as trustee of a trust of which the other children were beneficiaries. One ground of asserted relevance was to ascertain the extent to which the deceased’s children had benefits conferred upon them during the testator’s lifetime. The husband pointed out that under s 91A(2) of the Administration and Probate Act 1958 (Vic), the factors which a court may take into account included ‘the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of any other eligible person or beneficiary of the estate’ and ‘any benefits previously given by the deceased to any eligible person or beneficiary’.

    [73] [2021] VSC 73.

27. Derham AsJ said that:[74]

    [74] [2021] VSC 73 at [24]-[30].

    It is well established that the fact that the subpoenaed documents relate to one or more of the specific matters in s 91A(2) of the A&P Act does not demonstrate that the documents sought relate to an issue in the proceeding. The answer to that question is to be determined by the pleadings (if there are any, and that is unusual in Part IV proceedings) or the affidavit material filed by the parties in the proceeding.[75]

    No substantive affidavits have been filed by or on behalf of the defendant or the other beneficiaries of the estate.  For the documents sought to be relevant, and for there to be a legitimate forensic purpose for the documents to be subpoenaed, there needs to be evidence filed by or on behalf of the defendant as to whether there are competing claims by other beneficiaries, whether those beneficiaries are in need and whether their interests in the estate may be affected by benefits they received from the deceased during her lifetime. 

    Despite the factors identified in s 91A(2) of the A & P Act, it remains a matter for the parties to determine the issues and the scope of the Court’s inquiry.[76]  Knowledge of the defendant’s and other beneficiaries’ financial resources and needs will not assist the plaintiff in discharging his burden of proof with respect to the jurisdictional questions.[77]

    It has been accepted over many years that, if a beneficiary says nothing as to their financial position or other claims on the testator’s bounty, then the Court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, they have adequate resources upon which to live: Anderson v Teboneras.[78]

    I note, however, the comment made by Redlich J in Harris v Bennett (No 3) that:

    If a beneficiary is not intending to make a claim against the estate based upon financial need it is desirable that such a position should be adumbrated, either in the affidavits filed or in a pleading.  Given the amended form of the statute and matters to which a court must have regard it is undesirable that a court should be left to make assumptions or draw inferences from the absence of material filed …[79]

    In my view this is a matter that ought to be taken up by defendants in the conduct proceedings under Part IV of the A & P Act.  I would expect that the defendant’s affidavits in response to the plaintiff’s affidavits should make clear whether the three children of the deceased who are beneficiaries of the estate, who are all eligible persons under the A & P Act, themselves have a financial need in competition with the plaintiff.

    The commencement of proceedings under Part IV does not carry with it a general and unrestricted licence (including the use of the power to subpoena documents) to delve into the affairs of actual or potential claimants or beneficiaries.[80]  …

    [75] Harris v Bennett [2004] VSC 171, [14]; reported as Harris v Bennett (No 3) [(2004) 8 VR 425.

    [76] Harris v Bennett [2004] VSC 171, [36].

    [77] Ibid, [44].

    [78] [1990] VR 527, 535. See also Harris v Bennett (supra) [18], and [27]-[32].

    [79] [2004] VSC 171, [43].

    [80] Blair v Blair [2002] VSC 131, [2]-[3]; Harris v Bennett (supra) [50].

1. In addition to those authorities cited by Derham AsJ, there have been other decisions of the Supreme Court of Victoria  to the effect that a beneficiary may elect not to bring forward any evidence of their financial position, in which case it will be assumed that they do not advance any claim based on financial need.[81]

   [81] Hyatt v Covalea [2011] VSC 334 at [128] (Zammitt AsJ), Paola v State Trustees Ltd [2012] VSC 158 at [46] (Zammitt AsJ).

   The position in New South Wales

2. In New South Wales, the relevance of and extent of access to documents evidencing the financial means of beneficiaries was considered by Young J in Field v Inglis.[82]  In that case, a Master had disallowed paragraphs of a notice to produce issued to the defendant who was the executrix and primary beneficiary under the will.  The defendant had expressly stated that she would not raise her financial and material circumstances as a matter which might have the effect of reducing or extinguishing any order which might otherwise be made in favour of the plaintiff. 

   [82] Supreme Court of New South Wales, Young J, 8 February 1994, Unreported.

3. In explaining his reasons for dismissing the appeal, Young J said:

   The question that arises here is not one to which one would necessarily give the same answer in every set of circumstances because the circumstances where the moral claims and wealth of other possible objects of the testatrix's beneficence may have relevance in certain situations; see Dickey on Family Provision After Death at 118 and 119. However, it seems to me that in a case where a testatrix has devised her estate to a person who the court may assume is a wealthy woman, that of itself is of no relevance. It is open to all of us to make our wills in a way (subject to the court's order under this Act) we think fit, whether the person we choose to leave our property to is deserving or has needs or otherwise. The court when dealing with an application under this Act first has to concern itself with whether the applicant is an eligible person and whether she was not left the amount that she ought to have been left by the testatrix. On those two questions the wealth or otherwise of other possible objects of the testatrix's benefaction is irrelevant. If one gets to the stage of working out the quantum of the order then the first thing one does is to think of what would have been the proper provision to make for the applicant, if nothing else came into consideration. In many cases one will see that competing claims of other children or of, indeed, other people may reduce what the applicant might otherwise receive. However, under s 20 (1) of the Act, on an application in relation to a deceased person, the court may disregard interests of any eligible person who has not made an application in relation to the deceased person. This seems to me to suggest that the court is relieved, when considering the circumstances of the case, from having to consider the situation of a person who has not made an application. I think the same thing occurs when a beneficiary says to the court I do not wish to put anything about my means or circumstances which could have the effect of reducing any order that would otherwise be proper to make for the applicant.

   It is a little unsatisfactory having to make a determination of this sort of matter on an interlocutory motion because some times the full facts and circumstances do not come to light until the final hearing. However, it is also in the interests of everybody to keep costs and expenses to a minimum in litigation and to get the real question between the parties on for trial as soon as possible.

   In the instant case, I cannot see, in the light of the attitude taken by the defendant as a beneficiary in her own right, how her means could be relevant to any matter which would be before the court on the final hearing, for the reasons I have already given.

4. In Foley v Ellis,[83] the claimant was one of three children of her mother, a widower.  She was left a one-ninth share of the residue of the estate, worth about $165,000.  She had a strained relationship with her mother and her two siblings, the executors and respondents.  Her siblings received a greater share of the residue.  The primary judge rejected the claim, observing:

   The [appellant] cannot establish her claim by relying on the fact (if such be the fact) that neither [of her siblings] is in comparable financial circumstances to those of the [appellant].  They are the chief chosen objects of the testamentary beneficence of the Deceased.  There is no need for them to prove anything.

   The [appellant] must establish her claim upon its own merits.  The competing claims of [the siblings] may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the [appellant] might otherwise have established.  However, those competing claims cannot have the effect of enhancing the claim of the [appellant].   

   [83] [2008] NSWCA 288.

5. On appeal, Sackville JA (with whom Beazley JA agreed) considered that the primary judge had erred in various respects, including by failing to take into account the resources available to, and the needs of, the siblings in determining that the appellant had not established that she had been left without adequate provision by the deceased’s will. 

6. After referring, inter alia, to the observations of Mason CJ, Deane and McHugh JJ in Singer v Berghouse, Sackville JA said that:[84]

   This language strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty.  These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.

   The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231):

   Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably.  Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. (Emphasis added.)

   Similarly, in Palmer v Dolman [2005] NSWCA 361, Ipp JA held (at [115]) that the circumstances to be taken into account in that case included the fact that none of the beneficiaries nominated in the deceased’s will (other than the applicant and one other beneficiary) “had any claim on [the testator’s] bounty or demonstrated need”.

   In the present case, the learned primary Judge referred to the financial and personal circumstances of [the siblings] and carefully calculated their entitlements under the will of the Deceased.  Nonetheless, his Honour made it clear that the appellant had to “establish her claim upon its own merits”.  He specifically said that, while the competing claims of [the siblings] might have reduced any entitlement the appellant otherwise could have established, “those competing claims cannot have the effect of enhancing [her] claim”.  That observation is not consistent with the statutory requirement that the competing claims of all potential beneficiaries must be taken into account in determining whether the application has been left without adequate provision for her proper maintenance and advancement in life.

   [84] [2008] NSWCA 288 at [88]-[90].

7. Sackville JA also considered that the primary judge erred in finding that there was no reason why the appellant could not increase her earnings by working full time.  On a fresh consideration of the threshold question, his Honour said that the contrast between the appellant’s parlous circumstances and the relatively secure position of her siblings strongly suggested that the provision made by the deceased for the appellant was not adequate for her proper maintenance and advancement in life.  Having regard to all the circumstances, Sackville JA was not persuaded that the estrangement between the deceased and the appellant, nor the appellant’s conduct towards the deceased, detracted from that conclusion.

8. Basten JA agreed that the judge erred in assessing the applicant’s earning capacity.  He went on to say, with reference to Sackville JA’s reasons:[85]

   His Honour is also of the view that the trial judge erred in treating the respective claims of the applicant and her siblings as irrelevant to an assessment of the adequacy of the provision made for her by her mother.  I agree with his Honour’s statement of principle; whether the trial judge intended to depart from those principles is, however, less clear.  The quantum of the applicant’s claim suggests that it was designed to achieve a degree of financial equality with her siblings.  That would not be a proper basis for determining the adequacy of provision.  It may have been that, in making the impugned remarks, the trial judge intended to reject that approach, rather than to deny relevance to the relationship of the deceased with the applicant’s siblings, or the social or moral context more generally.

   [85] [2008] NSWCA 288 at [9].

9. The unsuccessful respondents applied for special leave to appeal contending, inter alia, that the approach of Sackville JA was inconsistent with the approach of Young J in Eq in Field v Inglis.  Special leave was refused on the basis that if leave were granted and the appeal allowed on that basis, the matter would have to be remitted for re-hearing in the Court of Appeal.  The Court was not satisfied the outcome which could then properly be reached by the Court of Appeal would significantly differ from that under the orders now under challenge, making it an unsuitable case in which to agitate the point of principle for which the applicant contended.[86]

   [86] Ellis v Foley [2009] HCATrans 143.

10. The subsequent course of authority in New South Wales does not suggest that Sackville JA’s reasons have been understood as mandating an inquiry into the financial position of other beneficiaries even where they disavow financial need on their part.

11. In Estate of the Harrigan; Cowmey v Whibley,[87] the claimant in a family provision claim advanced under the Succession Act 2006 (NSW) sought a pre-emptive ruling that the other beneficiaries of the estate not be permitted to file or rely on evidence as to their own financial need. Ward J was not persuaded it was appropriate to make such an order for the reason that she could not be satisfied that the evidence was on any view irrelevant to the ultimate issue. Her Honour’s analysis supports the proposition that it may be relevant to consider the hardship that may be caused upon a person who would otherwise stand to benefit, albeit indirectly, if the will is upheld. It does not directly consider the converse situation where a claimant wishes to rely on the lack of financial need of a beneficiary, or someone who would take through those means, in a circumstance where that beneficiary or person is not themselves claiming to have a financial need. Whilst her Honour had regard to observations made in Vigolo v Bostin, the application was decided in the context of the New South Wales legislation which provides that on a family provision application the Court may have regard to the financial capacity and financial needs, both present and future, of ‘any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased’s estate’.[88]

    [87] [2012] NSWSC 291.

    [88] Succession Act 2006 (NSW), s 60(2)(d).

12. In Tobin v Ezekiel,[89] one issue raised on appeal by the deceased’s two daughters whose mother had left her entire estate to her two sons (the executors) was that the primary judge had, despite finding the sons to be unreliable witnesses, proceeded on the basis that the two sons did not have any assets or resources of significance beyond those they conceded.  The appellants argued that in circumstances where the sons had failed to provide truthful and complete evidence concerning their financial circumstances, the court should disregard any claim of need on their part when considering the competing claims and assessing whether adequate provision had been made for their proper maintenance etc.  Meagher JA, with whom Basten and Campbell JJA agreed, said that:[90]

    The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has a sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (Supreme Court,   Macready M, 5 December 1996, unreported) at 6.  The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.

    [89] (2012) 83 NSWLR 757.

    [90] (2012) 83 NSWLR 757 at [94].

13. In Sammut v Kleeman,[91] Hallen AsJ undertook a survey of the relevant authorities and summarised the relevant approach to be taken under the Succession Act 2006 (NSW). The claimant in that case was the grandson of the testator. He was of modest means and had a limited earning capacity. The estate was also relatively modest.

    [91] [2012] NSWSC 1030.

14. There was no evidence of the financial resources (including earning capacity) and financial needs, both present and future, of the beneficiaries of the deceased person’s estate.  The solicitors of the other beneficiaries under the will had indicated that whilst they denied that the claimant was an eligible person, they would not be raising their financial circumstances as providing any competition to the claimant’s claim on the basis of their needs.[92]

    [92] [2012] NSWSC 1030 at [133].

15. Hallen AsJ observed:[93]

    There is no statutory mandate requiring a beneficiary, or beneficiaries, to provide such details of his, or her, financial circumstances to the Court.  A beneficiary is entitled to elect to remain silent in relation to all matters, and in particular, as to his, or her, financial resources (including earning capacity) and financial needs, both present and future.  In addition, as here, a beneficiary may expressly decline to submit that he, or she, has a competing financial need and provide no evidence of financial resources or needs.

    Where, as in this case, the beneficiaries have declined to provide such evidence to the Court, the important question is what inference, if any, should be drawn from the beneficiaries’ silence?

    In the present case, the beneficiaries are parties to the proceedings.  Thus, the Court may assume that they do not wish their financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] per Macready AsJ.

    The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany [2011] NSWSC 1549 at [49] - [51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548.

    However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act.)

    Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty".

    The court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier.

    [93] [2012] NSWSC 1030 at [134]-[140].

16. In Poletti v Jones,[94] Basten JA, with whom Emmett and Leeming JJA agreed, referred to his reasons in Andrew v Andrew,[95] in which he had suggested that the changes in the structure of the legislative provisions resulting from the enactment of ss 59 and 60 of the Succession Act 2006 (NSW) meant that a two stage process was no longer required. But that did not mean that there might not be circumstances in which is was the preferable way to proceed. The testator left his estate to two of his five children, deliberately excluding three who he perceived as having sided with his former wife in a matrimonial dispute. The two excluded daughters made a claim based on need. Need was established. On appeal, the Court considered it was appropriate that they receive the same percentage share of the estate as the son who had received 15% of the estate under the will. That son was considered to have a similar need to the two daughter claimants. The other son, to whom 85% of the estate had been left, had not adduced evidence of his financial position. In those circumstances, Basten JA had observed that it could be inferred that he had no need for provision from the estate and, on the comparative basis, he was significantly better off than his sisters, citing Sammut v Kleemann.

    [94] [2015] NSWCA 107.

    [95] (2012) 81 NSWLR 656; [2012] NSWCA 308 at [29].

17. In Estate of Berry (deceased),[96] Lindsay J noted that several of the other beneficiaries of the deceased’s estate had taken a deliberate forensic decision not to adduce evidence about their respective financial and material resources, despite having been given that opportunity.  He said that the consequence was that the Court could disregard any financial claims the beneficiaries may have on the deceased’s estate, though not moral claims they may have on the bounty of the deceased.[97]  His Honour made similar observations in Re Estate MPS (deceased).[98]

    [96] [2016] NSWSC 130.

    [97] [2016] NSWSC 130 at [37]-[38].

    [98] [2017] NSWSC 482 at [55]-[56].

18. In Jodell v Woods,[99] Hallen J repeated what he had said in Sammut v Kleeman, adding reference to Tobin v Ezekiel and Basten JA’s remarks in Poletti v Jones.  In a similar vein, in Meres v Meres,[100] Hallen J said that:

    Of course, the Defendant is entitled to elect to remain silent about his financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s disposition to him as a part devisee, regardless of his financial position or needs.

    [99] [2017] NSWSC 143 at [30]-[31].

    [100] [2017] NSWSC 285 at [85].

1. The position would be different if the court were required or entitled to step into the shoes of a deceased and distribute their wealth on some basis inversely reflecting all potential claimants’ financial means or prospects.  If that were the law, a rival beneficiary who is a respondent to the claim could scarcely unilaterally withhold disclosure of their financial position, yet enjoy a relatively neutral presumption that they are not in any particular need.

2. As earlier explained, however, that is not the law.  The basis for the court’s intervention, and the focus of the jurisdictional question, is upon the position of the applicant, albeit assessed in a context that may require consideration to be given to the need of other persons if such need be asserted by them.

   The approach to discovery in this State

3. Unless a beneficiary wishes the court to consider their financial circumstances as bearing on (that is, tending against) a conclusion that the applicant should succeed on the jurisdictional question, documents recording or evidencing their financial position are not directly relevant.

4. Where the beneficiary does not rely on their own need, the question of whether the applicant would be left without adequate provision for the proper maintenance, education or advancement in life will be assessed on the basis that whatever other reasons the testator may have had for benefiting that beneficiary, his or her financial need is not a reason why the court should refrain from concluding, by the standards of a wise and just testator, that issue in the applicant’s favour. 

5. If, on that basis, the jurisdictional issue would not be resolved in the applicant’s favour, the applicant’s position will not be materially improved by showing that the beneficiaries who made no claim of need are especially wealthy. Documents relating to their financial position are therefore not relevant, and, in any case, are not directly relevant.

6. Whilst questions of relevance are conceptually distinct from questions of case management, where possible, it is desirable to adopt an approach that tends to minimise the cost, delay and the interference with privacy which is characteristic of discovery.[137]  In my view it is particularly desirable in estate claims to which beneficiaries are required to be parties, for no reason relating to anything they are alleged to have done or failed to have done. 

   [137] UCRs, rr 1.5, 12.2.

7. For that reason, even if I had concluded that, irrespective of the position adopted by a beneficiary in a family provision claim, documents relating to their financial position were relevant, I would take the view that, because family provision claims are brought by originating application with the consequence that discovery is discretionary,[138] in respect of the financial position of beneficiaries, the discretion should be exercised judiciously and sparingly. 

   [138] The position was different when Smith v Smith [2018] SASC 93 was decided.

8. In most cases, an order that a party make discovery of all documents bearing on (or ‘recording or evidencing’) their present financial position and earning capacity would, if properly complied with, lead to voluminous and duplicative discovery.  In order to advance the objects of the UCRs, and to ensure that the parties’ privacy not be compromised more than is necessary for justice to be achieved, I would favour an approach that is proportionate and targeted.  This would likely involve the identification of discrete categories of documents, and directions facilitating conferral with respect to the agreement of facts before more detailed or comprehensive discovery is required.

   Paula’s application for discovery against Anthea

9. As earlier explained, Paula seeks an order that Anthea make discovery of documents which evidence her financial and other resources (defined in the application to mean her assets and liabilities and the assets and liabilities from which she may gain a benefit or detriment – including those of her husband, and her income and expenses) at the date of the deceased’s death and subsequently.

10. Insofar as they are relevant to the issue of the financial means of Anthea, the originating application, accompanying affidavit, Response, and responding affidavit were summarised earlier in these reasons.

11. The Response makes clear that if Paula satisfies the jurisdictional requirement, Anthea does not put her own financial circumstances forward as a reason why provision should not be made. She contends that any provision should be made by reference to the default approach suggested by s 9(2) of the IFP Act and no other beneficiary suggests otherwise.

12. It became clear in the course of argument that, if and to the extent that her own financial need might be relevant to the jurisdictional issue, she equally does not rely upon it in that context.  In my view, the position adopted by Anthea is such that discovery with respect to her financial position would serve no real purpose.  By virtue of the position Anthea has adopted, Paula’s claim will be considered on the basis that there was no need for a wise and just testator to make provision for Anthea on the ground of financial need.  With respect to the jurisdictional question, it would serve no purpose to establish that Anthea is, by some measure, especially wealthy. 

13. It therefore does not assist Paula that she has, by her responding affidavit, sought to raise Anthea’s financial position.  The assertions in Paula’s affidavit are not properly responsive, but even if they had been raised in the affidavit supporting the Originating Application, they would not, in my view, make documents relating to that issue discoverable, given the position adopted by Anthea.

14. If it were the case that Anthea is, by some measure, especially wealthy, that might support an order for provision being made on a basis that sees her bear some disproportionately higher share of the reduction required to finance the provision to be made to Paula, but, as matters stand, that is not a live issue between any of the parties.

15. In those circumstances, I am not satisfied that the documents sought are directly relevant.  If, contrary to my view, they have some relevance, I would consider that the relevance is so slight that I would not be persuaded, at this stage of the proceeding, to order discovery, and, in any event, not in the broad terms sought.

16. It therefore becomes necessary for me to consider the application to rescind or set aside the earlier consent order.

    Anthea’s application to rescind or set aside the consent order

17. Anthea’s application to rescind or set aside the order made by consent on 17 August 2023 relies upon the power of the Court under r 103.3 of the UCRs.  That rule specifically contemplates the making of a later order varying or setting aside an earlier interlocutory order.

    The nature of the power and the relevance of contract

18. Whilst the rule is silent as to the criterion for its application, undoubtedly it is to be exercised when required by the interests of justice.  The interests of justice comprehend a variety of considerations including, on the one hand, the desirability of revisiting earlier interlocutory orders where they are shown to be wrong, or to no longer be apt to achieve their purpose, and, on the other hand, the importance and efficiencies associated with finality and the avoidance of re-litigation of procedural issues.  In the particular context of orders made by consent, there will be further consideration to which the interests of justice may accord weight, namely, the respect and importance that the law accords to party autonomy and, where relevant, freedom of contract.

19. As to the latter, the English courts, exemplified by the observations of Lord Denning in Siebe Gorman & Co Ltd v Pneupac Ltd,[139] adopted the position that they would only interfere with a consent order based on a contract on the grounds that they would interfere with any other contract.

    [139] [1982] 2 WLR 185 at 189.

20. The position adopted in Australia, whilst recognising the importance of the distinction between orders effected consistently with a contract and orders which are by consent in a more general sense, has not been so rigid. 

21. In Paino v Hofbauer,[140] McHugh JA, with whom Samuels and Clarke JJA agreed, was not prepared to adopt Lord Denning’s approach to consent orders based on contracts.  The discretion under the rules was not to be equated with the extent of the Court’s powers to vary or set aside contracts, but, nevertheless:[141]

    when a party asks that a consent order based on a contract should be set aside or varied and the underlying contract could not be set aside or varied, the case would need to be exceptional before the Court would exercise its discretion in favour of an applicant.  Moreover, by itself the failure of the applicant to comply with the terms of a consent order based on a contract could rarely, if ever, be a sufficient ground to vary the order.  

    [140] (1988) 13 NSWLR 193 at 198.

    [141] (1988) 13 NSWLR 193 at 198.

22. That approach was re-affirmed by a Court of Appeal comprising Bathurst CJ, Beazley P and McColl JA in Lachlan v HP Mercantile Pty Ltd.[142]  They explained that McHugh JA’s reference to the case needing to be exceptional (where there is an underlying contract) did not fetter the discretion of the judicial officer; instead it was a statement of an appropriate exercise of discretion in a particular type of case, reflecting that in such cases the court’s general discretion is exercised in the context of the respect the law gives to parties being held to their bargain.[143]

    [142] (2015) 89 NSWLR 198.

    [143] (2015) 89 NSWLR 198 at [27].

23. It may be that the view expressed by Woodward and Foster JJ in the Full Court of the Federal Court in R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd,[144] is more liberal.[145]  They said that:[146]

    It is convenient to begin by considering whether there was in fact a binding contract between the parties expressed by the consent order, or whether this was one of the frequent cases in which an interlocutory order is made on the application of one party with the other party or parties consenting – in the sense of not objecting – but without there being any intention of entering into a formal and binding contract; see Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189; [1982] 1 All ER 377 at 380. Courts are very familiar with the circumstance in which parties reach an agreement, either after a good deal of negotiation or perhaps quite readily, about the orders that should be made for the future conduct of an action. We would be most reluctant to reach any conclusion which tended to inhibit the ready consent of practitioners to the making of sensible arrangements in such cases. It would normally be understood by them that, if circumstances arose which made it necessary, they would be entitled to apply to the court for a variation of the orders to which they had consented. No doubt the fact of their consent would be a relevant consideration for the court in deciding whether to order a variation, but it would be understood by all that the ultimate decision was in the court's hands.

    [144] (1988) 18 FCR 389.

    [145] Chavez v Moreton Bay Regional Council [2009] QCA 348 at [39] (Keane JA).

    [146] (1988) 18 FCR 389 at 390-391.

24. Shortly prior to that decision, in E I du Pont de Nemours & Co v Commissioner of Patents,[147] Burchett J had said that:[148]

    In my view, it would be a rare case where it would be proper to construe a consent to an order giving a procedural direction as amounting to a contract removing from the Court thereafter its ordinary control over such a direction. For obvious reasons, and as Winn LJ pointed out, the Court prefers to retain such a control. When parties ask the Court to make by consent an order of that nature, it seems to me that the prima facie, and almost invariable, intention is that their agreement shall be subject to the ordinary powers which the Court would have if it proceeded, apart from consent, to make an order of the kind contemplated. It is on that basis that the Court is asked to make the order, and it would not readily do so on any other basis, because "the public interest in the due administration of justice takes account of but is not limited to (the parties') wishes", as Mahoney JA put it in Sydney City Council v Ke·Su Investments Pty Ltd [1985] 1 NSWLR 246 at 257: cf Cherwell District Council v Thames Water Board [1975] 1 WLR 448. The parties have not agreed to sell a washing machine - they have invoked the jurisdiction of the Court, with all that that entails.

    [147] (1987) 16 FCR 423.

    [148] (1987) 16 FCR 423 at 435.

25. Whilst other intermediate courts have also recognised the importance of the distinction between consent orders consequent upon ‘real contracts’ (that is, a separate and distinct bargain) and those which simply reflect sensible co-operation in respect of interlocutory issues, they have recognised that in the former category of case the Court retains a discretion that may in rare cases be favourably exercised notwithstanding the absence of grounds to set aside the underlying contract.[149]  There needs to be ‘good reason’ in the former category of case to deprive the other party of the benefit of the agreement.[150]

    [149] See, eg, Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 at [60] (Quinlan CJ, Beech and Vaughan JJA), Steicke v Pederick [2018] SASC 146 at [14] (Judge Dart).

    [150] See, eg, Chavez v Moreton Bay Regional Council [2009] QCA 348 at [39] (Keane JA, Holmes JA and McMeekin J agreeing).

26. In determining whether the case falls within one category or the other, it may assist to consider: the nature and extent of the history of negotiation about the subject matter of the order, the extent to which there was compromise and the nature of any quid pro quo, the extent to which there was language or conduct consistent with concepts of offer and acceptance, and the nature of the subject matter itself.  At one extreme, an agreement with respect to the final resolution of a claim is far more likely to involve a ‘real contract’ than is an agreement with respect to the length of time to be allowed for the provision of an expert report as reflected in a consent order. 

27. In many cases, whilst interlocutory orders are, by the time a hearing commences, agreed, the process by which that agreement has reached is more properly characterised as conferral leading to a consistent position that is then conveyed to the Court, consistently with the parties’ obligations to avoid unnecessary disputation and cost, rather than as involving the entry by the parties into a separate and discrete bilateral (or multilateral) contract which binds them to move the Court for orders.

28. Interlocutory orders are, of their nature, less likely to be made in pursuance of a ‘real contract’ in the sense being considered.  With some exceptions,[151] it is usually within the power of the parties to resolve litigation by contract, and to cause the proceeding to be concluded consistently with that agreement.  In the case of procedural matters which are interlocutory in nature, whilst the Court expects parties to confer, and will very often make directions which reflect any common ground that results, the Court has an institutional interest in procedural matters that may dictate that a different approach be taken.  The Court may makes some but not all of an agreed suite of orders.  Further, the orders are, of their nature, generally reviewable.  Parties come to procedural hearings mindful that events may not play out precisely as has been discussed.  These contextual circumstances do not mean that there are not ‘real contracts’ about procedural orders.  The authorities show that there are.[152]  They are, however, less common than is the case in respect of the overall settlement of a monetary claim.

    [151] Attwells v Jackson Lalic Lawyers (2016) 259 CLR 1 at [61] (French CJ, Kiefel, Bell, Gaegler and Keane JJ).

    [152] R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389, Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44.

    The circumstances relevant to the consent order

29. The circumstances concerning and surrounding the making of the consent order are the subject of affidavits made by Paula,[153] Paula’s solicitors,[154] Anthea’s solicitor[155] and Anthea.[156]  I received the affidavits of Anthea’s solicitor subject to an objection in respect of certain paragraphs which were said to be conclusory or argumentative.  I have only had regard to parts of the affidavits that comprise statements of objective fact.  I have disregarded conclusory assertions as to the ‘purpose’ of the orders.

    [153] Affidavit of Paula Apostolakos sworn on 6 June 2024 (FDN 48), Affidavit of Paula Apostolakos sworn on 8 July 2024 (FDN 53).

    [154] Affidavit of Mark Peter Jappe affirmed on 2 August 2023 (FDN 25), Affidavit of Mark Peter Jappe affirmed on 6 June 2024 (FDN 49), Affidavit of Daniel Paul Miller sworn on 18 October 2024 (FDN 62).

    [155] Affidavit of Sari Kheder sworn 2 May 2024 (FDN 45), corrected in one respect by his affidavit sworn 6 May 2024 (FDN 46).

    [156] Affidavit of Anthea Mackenzie affirmed on 24 June 2024 (FDN 50).

30. By way of brief overview:

    (1)the proceeding was commenced on 30 August 2022 in the way set out earlier in these reasons;

    (2)on 28 September 2022, there was an order that the matter proceed to mediation before Judge Bochner on 27 April 2023;

    (3)on 1 February 2023, Anthea filed an affidavit relating to various matters;

    (4)the mediation due to be held on 27 April 2023 was vacated and relisted for 4 August 2023;

    (5)the parties were, for a time, occupied with an application for revocation of the grant of probate issued on 22 March 2022;

    (6)on 2 August 2023, Paula made application to adjourn the mediation, on the basis that relevant valuations had not been obtained.  Reference was also made to requests made to Anthea by Paula, commencing by correspondence on 13 July 2023, and culminating in a letter of 1 August 2023, for discovery.  I return to that correspondence below;

    (7)at a hearing on 3 August 2023, an Auxiliary Judge noted that the parties were not realistically in a position to proceed to mediation but directed that the parties’ lawyers attend on that date to prepare an agenda to progress the matter to mediation in the near future.  As explained further below, the parties did meet on 4 August 2023;

    (8)at a hearing on 17 August 2023, orders were made including the consent order requiring production of documents by Anthea (set out earlier in these reasons), and the matter was adjourned to a directions hearing on 15 November 2023 at 9.15 am.  In the form of order ultimately granted, there recital stated as follows:

    The mediation scheduled for 4 August 2023 was adjourned due to concerns about outstanding discovery and other matters.  The parties have attempted to resolve these issues with a view to progressing the matter without further delay.  It has been agreed that the issues of double probate, rectification and/or construction of clause 3(b)(ii) of the deceased’s Will are to be deferred to further consideration, if necessary, after the parties attend a mediation.

    (9)the hearing scheduled for 15 November 2023 was in turn adjourned by consent to 7 December 2023 because the parties had agreed to mediate on 24 November 2023.  The mediation on that date was unsuccessful and the matter returned to Court on 7 December 2023.

31. I now address in greater detail the correspondence relating to discovery by Anthea and the circumstances of the hearing on 17 August 2023.

32. The correspondence between the parties concerning discovery by Anthea commenced on 13 July 2023.  By letter of that date, Paula’s solicitors stated they were instructed to seek disclosure from Anthea regarding her financial circumstances including her assets, liabilities, income and expenses.  The letter went on to describe specific categories of documents.  The letter concluded by requesting that disclosure was ‘complied with’ by 27 July 2023.

1. On 28 July 2023, Anthea’s solicitor sent an email to Paula’s solicitors stating, amongst other things, that her client was in the process of obtaining her tax returns and that further disclosure would be provided when it was received.

2. On 1 August 2023, Paula’s solicitors again wrote to Anthea’s solicitor seeking disclosure regarding Anthea’s financial circumstances, and noting that the disclosure that had been given mostly pertained to estate matters.  The letter continued:

   As your client is not an executor of her estate, we request disclosure from your client in her personal capacity, including her assets, liabilities, income and expenses in order to show her competing need for the purposes of the mediation.

3. The letter went on to list particular documents that were requested.  The letter concluded by requesting that disclosure by made by the following morning. 

4. That did not occur and, as explained above, the mediation did not proceed on 4 August 2023.  Instead, the parties’ representatives met on that day.  At the conclusion of the meeting, the solicitors for Paula in her capacity as executor sent an email to the other parties’ representatives attaching proposed draft minutes for instructions to be sought by their respective clients.  The draft minutes differed in some respects from the orders that were ultimately made by Judge Dart on 17 August 2023.  They did not include what was ultimately order 5, relating to discovery by Anthea of documents relating to her financial position.

5. Anthea’s solicitor responded on 12 August 2023 indicating his client was prepared to consent to the minutes once additions and amendments had been made, particularly, to require Paula to make disclosure of certain leases.

6. On 14 August 2023, Paula’s solicitors circulated amended orders.  These included the order that was ultimately made in relation to discovery by Anthea.  By an email sent on the same day, Anthea’s solicitor asked Paula’s solicitors to explain the relevance of the request for his client’s financials.  The email continued:

   Our client is not seeking a provision and this is not her application.  Therefore we struggle to see any relevance regarding why your client must know what assets our client holds or what her financial position is.

7. Later that day, Paula’s solicitors responded:

   As explained in previous correspondence to the other parties which was copied to you and at the recent meeting, the financials of respondents are relevant to I(FP)A proceedings due to the need for the court to assess competing need.

   If you require authority, I refer you to Judge Bochner’s decision in Smith v Smith (which I attach).

8. A further revised set of minutes was circulated in response to amendments proposed by the other respondents on 16 August 2023.  These minutes contemplated an order for ‘court mediation’. 

9. There was no written response from Anthea prior to the hearing on 17 August 2023, and there is no evidence that, prior to the hearing, there was any communication of an agreement to orders being made in the terms then under discussion.

10. Paula’s solicitors have given evidence that during the hearing, Anthea’s solicitor, in her presence, said words to the effect that the parties had considered the amended draft orders and that Anthea stated that she would consent to them, in particular the discovery order, on the basis that the order was mutual as between Anthea and Paula.  According to Paula’s solicitors, it was not expressly stated during the hearing that the order was exclusively for mediation purposes.  During the course of the hearing, Judge Dart indicated that in view of the size of the estate, the Court would not offer a further mediation, and thus it appears that the orders were agreed in the expectation of a private mediation being convened, rather than a court mediation as the draft minutes contemplated.

11. What appears then to have occurred is that revised minutes of order were provided to the Court and orders were made in terms which omitted any reference to the matter being referred to court mediation, but in circumstances where it remained in contemplation that a mediation was to occur.  That much is apparent both from the context and the recital to the orders, extracted earlier.

12. It appears that Anthea provided various redacted bank statements for a limited period but did not otherwise make discovery of documents of the kind required by the consent orders.  Subsequently, various trust deeds and tax returns were provided, however, it appears to be common ground that the mediation ultimately proceeded without Anthea making full and complete disclosure of the documents required to be discovered by the consent order.

    Consideration

13. Anthea’s written submissions included a contention that the consent order was made only for the purpose of the mediation and that it was, once the mediation was (unsuccessfully) completed, spent. 

14. In writing, she also advanced an allied contention that the so-called Harman obligation[157] would have precluded Paula from using any documents disclosed pursuant to the order for the purposes of the litigation, as distinct from for the purposes of the mediation.

    [157] Harman v Secretary of State for the Home Department [1983] 1 AC 280, Hearne v Street (2008) 235 CLR 125.

15. In my view, whilst the discovery was requested for the purposes of dealing with an (anticipated) contention of competing need at mediation, and whilst the consent orders were framed in anticipation of and with a view to facilitating participation in the mediation, the orders cannot be construed as orders for discovery to be used exclusively for that purpose.

16. Ordinarily, most documents that would be relevant for participation in a mediation would also be relevant for the conduct of the case.  Absent clearer language in the relevant orders, I would not conclude that an order for discovery designed to facilitate participation in a mediation, or for which mediation has been the impetus, is limited in that way, so as to require an application for release from the Harman obligation in the event that reliance is to be placed upon the materials more generally.

17. I also would not accept that the order was ‘spent’, or inoperative, once the date for the mediation had passed. 

18. That said, the context in which the orders were agreed to is not irrelevant to a wider consideration of the interests of justice.  The discovery order was made before a Response had been filed to the Originating Application, and with the forthcoming mediation providing the impetus for the request that led to the discovery order.  Anthea’s position in the litigation has now been refined by the Response she filed after the mediation.

19. In my view, although there was a relatively significant history of to and fro between the parties preceding the discovery order, culminating in Anthea’s solicitor telling informing the Court that the relevant order was agreed, there was not, in this case, an antecedent binding bilateral or multilateral agreement in relation to the making of the consent order. 

20. What was under discussion was a suite of orders, involving a number of parties, who were working towards a court mediation.  As events transpired, Judge Dart indicated that, the Court having sought to facilitate two earlier mediation dates, the parties should arrange a private mediation.  The orders required a slight adjustment as a consequence.  Whilst the matter is not free from doubt, I would characterise what occurred here as conferral culminating, at the hearing, in a consensus position, rather than orders sought from the Court pursuant to and as required by an antecedent binding agreement.

21. I therefore do not consider that it is necessary to give significant weight to the respect the law gives to parties being held to their bargains.  That is not to say that I accord no weight to the desirability of parties acting consistently with positions resulting from conferral.  In the present case, however, I have concluded that it is in the interests of justice to set aside the relevant consent order, because:

    ·for the reasons set out earlier, whilst it was not clear at the time the discovery order was made, it is now clear that Anthea does not rely on her own financial circumstances as a matter which militates against an order for provision, either as to the jurisdictional question, or at the second stage, if its reached;

    ·the consent order has not been complied with.  Whilst that is not to be condoned, the fact is, to require compliance with it would now serve no useful purpose in the proceeding;

    ·the process of making disclosure pursuant to the order is likely to be relatively time-consuming and costly;

    ·to the extent that substantive consideration was given to whether an order for discovery would have been ordered (had it not been agreed), the position in this jurisdiction was not as clear as it might have been.   

22. Assuming that I am correct as to my substantive analysis of relevance, there is no particular prejudice that Paula can point to which counts against the order being set aside.  It was not submitted that she agreed to take some step which she would otherwise not have taken, nor have been required to take, on the faith of the agreement. 

23. In those circumstances, I am persuaded that this is a proper case for the exercise of jurisdiction to set aside the relevant order.

24. Even if I were to have characterised this case as falling into the category of cases involving a ‘real contract’, the authorities recognise that the Court retains a power, for good reason in an exceptional case, to set aside an interlocutory order reached in pursuance of a contract even if there are not demonstrated grounds to vitiate the underlying contract.  I accept that here, there are insufficient grounds to vitiate any underlying contract or agreement.[158]  I consider, however, that essentially for the reasons I have summarised above, coupled with the absence of relevant prejudice, there are good reasons making this an exceptional case in which to set aside the earlier interlocutory order. 

    [158] Anthea’s solicitor’s evidence that Anthea did not understand the extent of effort and cost that would be required to give the agreed discovery is plainly not a basis to set aside any agreement if one had been reached.

    Discovery on other grounds

25. There are references in the affidavit material to contentions on the part of Paula that particular bank statements in Anthea’s possession may be relevant to demonstrate transactions that have a relevance independently of the significance that Anthea’s financial position may have to the IFP Act claim. The parties did not make any oral submissions about whether particular discovery relevant to this issue should be ordered. I have not considered whether further discovery on that different and more limited basis is appropriate. I do not intend, by my disposition of the interlocutory applications before me, to foreclose any further consideration of that issue.

    Disposition

26. For the reasons I have given, I propose to make orders:

    ·dismissing Paula’s application for discovery against Anthea (FDN 61);

    ·granting Anthea’s application to set aside paragraph 5 of the orders made on 17 August 2023 (FDN 44);

    ·granting Anthea’s application for specific categories of documents from Paula (FDN 58).

27. I will hear the parties as to costs.