Application of Connelly; The Estate of Nancy Allwood Connelly

[2023] NSWSC 467

Supreme Court

New South Wales

Medium Neutral Citation:

Application of Connelly; The Estate of Nancy Allwood Connelly [2023] NSWSC 467

Hearing dates:

11 April 2023

Date of orders:

4 May 2023

Decision date:

04 May 2023

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court orders that:

(a) The notice of motion filed on 21 February 2023 be dismissed.

(b) There be no order as to the Applicants’ costs of the notice of motion, to the intent that they are to personally bear their own costs of the notice of motion and not recover any costs thereof from the estate of the deceased.

(c) The original grant of Probate be returned to the Applicants’ solicitors by arrangement with the Senior Deputy Registrar in Probate.

Catchwords:

PROBATE AND ADMINISTRATION – Application to amend Probate parchment to exclude the address of one of the executors to whom Probate was granted

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 3, 7, 8a

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 19

Evidence Act 1995 (NSW) ss 91, 92(2), 178

Probate and Administration Act 1898 (NSW) s 33

Succession Act 2006 (NSW) Ch 3

Supreme Court Rules 1970 (NSW) r 78.9

Uniform Civil Procedure Rules 2005 (NSW) r 29.7

Cases Cited:

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

AB v CD (2019) 93 ALJR 321; [2019] HCA 6

Brown (A Pseudonym) v R (No 2) [2019] NSWCCA 69

Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143

Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339

D1 v P1 [2012] NSWCA 314

Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104

Estate of Philip Mack (deceased) [2022] NSWSC 1629

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

HT v The Queen (2019) 269 CLR 403; [2019] HCA 40

John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465

Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774

O’Dell (a pseudonym) v R [2023] NSWCCA 46

R v AB (No 1) (2018) 97 NSWLR 1015; [2018] NSWCCA 113

Re Estate of Crane (2005) 93 SASR 198

Richard Warren James Connelly v R [2012] NSWCCA 144

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Texts Cited:

I H Jacob, “The Inherent Jurisdiction of the Court” (1970) 23(1) Current Legal Problems 23

Category:

Procedural rulings

Parties:

Maxwell Gordon Connelly (first Plaintiff/Applicant)
Graham John Connelly (second Plaintiff/Applicant)

Representation:

Counsel:
M J Heath (Applicants)

Solicitors:
Matthews Folbigg Lawyers (Applicants)

File Number(s):

2022/254495

Publication restriction:

Nil

Judgment

Introduction

1. By notice of motion filed on 21 February 2023, the Applicants, Maxwell Gordon Connelly, and Graham John Connelly, seek the following orders:

“1.   That the residential address of the first named executor Maxwell Gordon Connelly be suppressed in the Grant of Probate case name 2022/254495 issued on 15 December 2022.

2. That the address of Maxwell Gordon Connelly be suppressed due to ground 8(c) of the Court Suppression and Non-publication Orders Act 2010.

3.   That the suppression order will only apply to the Grant of Probate document and that the front page of the Grant of Probate be amended so that the address details for Maxwell Gordon Connelly will be left blank or alternatively be amended to state “c/- Matthews Folbigg, Level 7, 10-14 Smith Street, Parramatta, NSW 2150.”

4.   That this suppression order will remain in place indefinitely or such other order as the Court sees fit.”

2. At no time during the hearing, was any application made for orders, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), in relation to the hearing, or in relation to the publication of these reasons. As will have been read, the application relates only to the Probate document.

Background Facts

3. In order to understand this somewhat unusual claim for relief, it is necessary to provide a narrative of the facts which has been taken from the Court’s Probate envelope (created for non-contentious applications for a grant of probate) and from the documents contained in the Court file, created in respect of the current notice of motion.

4. Nancy Allwood Connelly (the deceased) died on 26 July 2022, aged about 95 years. She left a Will dated 8 November 1990.

5. In the deceased’s Will, each of the Applicants was named as an executor. The address of each Applicant was not stated in the Will.

6. On 15 December 2022, this Court granted Probate in common form, of the deceased’s Will, to the Applicants. On this document, the address of each executor was stated.

7. Each of the Applicants is a, now adult, child of the deceased. Richard Warren James Connelly is the only other, now adult, child of the deceased. It appears, from the evidence, that the orders are being sought to ensure that he is not informed of the address of the Applicant, Maxwell.

8. Under Clause 3 of the Will, the three children of the deceased share equally, the deceased’s estate. The value of that estate, at the date of death, was estimated to be $860,000. At the date of death, it consisted of real estate at Doonside, a suburb of Sydney ($750,000), funds held by the NSW Trustee and Guardian, the financial manager of the deceased’s estate before her death ($102,523), cash in bank ($2,917), proceeds of insurance policies ($1,210) and shares ($3,560).

9. Without undue familiarity intended, and for convenience, hereafter, I shall refer to each of the deceased’s children by his first name.

The Proceedings

10. By letter dated 9 January 2023, the solicitors for Maxwell, wrote to the Probate Registrar stating that Maxwell “requires his address be amended… We seek for the Probate to be reissued and the address listed for our client to be changed to the co-executor’s address”.

11. The original grant of Probate, which remains in the Court file, and a self-addressed envelope, were included with the solicitor’s letter.

12. Maxwell’s solicitors are likely to have been advised by a Registrar in Probate that the application referred to would need an order of the Court. Presumably, it was this advice that prompted the filing of the notice of motion on 21 February 2023 and the notice of motion being listed in the Succession List.

13. The matter was listed for directions on 2 occasions. Written submissions were provided to the Court. I shall refer to these submissions later in these reasons.

14. On 11 April 2023, when the matter was listed, Mr M J Heath of counsel appeared for Maxwell. The Court was able to deal with the notice of motion on this occasion as was counsel.

15. There was no appearance by, or on behalf of, Graham, at the hearing, or otherwise. The Court was informed, in written submissions from the Applicant’s solicitor, that he “has no objections and would consent to the first plaintiff’s address being omitted from the Probate parchment”.

16. On each of the occasions the matter was listed, there was also no appearance by, or on behalf of, Richard. This was unsurprising as he had not been served with the notice of motion and had not, otherwise, been made aware of the matter being listed.

17. The notice of motion was read. Maxwell’s affidavit sworn 15 February 2023 was not read in open Court, although reference was made to it. After reading the submissions, and hearing some brief supplementary oral submissions, I reserved my decision. I have since read the affidavit.

Proceedings in NCAT before the death of the deceased

18. In November 2018, Maxwell and Graham made an application to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order appointing the NSW Trustee and Guardian (NSWT&G), in respect of the management of the deceased’s estate, as well as an application for a guardianship order, appointing the Public Guardian, as the deceased’s guardian.

19. Whilst a copy of the application made by Maxwell and Graham is not on the Court file, experience dictates that it would have included, in relation to each, as an Applicant, his postal address, contact details, a daytime telephone, or mobile telephone, number and an email address, respectively. There is no evidence that the address of each of Maxwell and Graham was not provided in that application.

20. At the NCAT hearing, which occurred on 25 January 2019, the deceased attended with Richard. Maxwell and Graham also attended. Presumably, each of the family members, including the deceased, gave oral evidence.

21. Whilst a copy of the transcript of evidence is not in evidence, one would expect that Maxwell would have stated his name, address, and occupation, at the commencement of his oral evidence. There was no evidence that Maxwell’s address was not then provided. There was also no evidence that there was any statement made, at any time during the hearing, that Maxwell’s address was confidential. Nor is there any evidence to suggest that Maxwell has changed his address, at any time, since the NCAT proceedings were heard and determined. (In stating this, it is not suggested that the NCAT proceedings were open to the public. However, in this case, it is not the public at large, but only Richard, in relation to whom Maxwell seeks to have his address withheld.)

22. There was no evidence that Richard has sought, or had, any personal contact with Maxwell after the application for orders in NCAT were made, or after the orders were made by the Tribunal.

23. However, Maxwell asserts that he received “intense abuse, intimidation and threats” from Richard during, and after, the NCAT application, but this general, conclusionary statement, is not supplemented by any examples of the nature, or content of the “abuse, intimidation and threats” or when it occurred.

24. Maxwell also states that he had to cease contact with the deceased because “Richard’s abuse and intimidation was on the verge of becoming physically violent”. Again, this general, conclusionary statement, is not supplemented by any examples of the nature, or content of the abuse and intimidation.

The non-contentious application for Probate

25. Despite any concerns that Maxwell may have had about Richard’s conduct towards him following the NCAT proceedings, he did not consider those concerns to be sufficiently serious to warrant him renouncing Probate of the deceased’s Will, or otherwise seeking an order dispensing with any requirement to include his address on documents being part of the application, to which reference will be made. In none of those documents that were filed in support of the Probate application, in which his address was disclosed, was it stated to be confidential.

26. On 26 August 2022, before applying for the grant of probate, Maxwell and Graham published an online notice of their intention to apply for a grant on the New South Wales Online Registry. The application to publish an online Notice of Intention to Apply for a Grant of Probate was not in evidence.

27. It is to be noted, however, that the current form of the application, which appears on the Supreme Court website, includes under the heading “Details of Applicants”, a space for the residential address of each Applicant. The Court’s guidelines, also published on the same website, inform applicants that a residential address is required.

28. Following the Notice being published, a court case record (the envelope and its contents earlier referred to) was created, and a case number was issued. As there was no dispute that the deceased’s Will was valid, that it had been duly executed, that the persons seeking the grant were the executors named therein, and that there were no persons whose interests would be adversely affected if Probate was granted, the application for Probate may be described as a non-contentious proceeding.

29. The Summons for Probate was filed within 6 months from the date of death of the deceased on 13 October 2022. In that Summons, Maxwell and Graham were each identified as the executors named in the deceased’s Will. Under the heading “Further Details about Plaintiffs”, the complete address of each was shown.

30. In support of the Summons, Maxwell and Graham filed a joint affidavit of executors, sworn on 7 October 2022, in which the full name of each, and his complete address, were shown.

31. There was annexed to the affidavit of executors a copy of the Death Certificate issued under the Births, Deaths and Marriages Registration Act 1995 (NSW). Maxwell was shown as the Informant on the Death Certificate. An address, which was not his, but which appears to have been Graham’s, address was shown thereon.

32. On the front sheet of the Probate document, which was provided by Maxwell’s and Graham’s solicitors to the Court as part of the non-contentious Probate application, there was a reference under the heading “Probate Details” to each of Maxwell and Graham, and the complete residential address of each was shown.

33. As a non-contentious application, it was considered and determined, in Chambers, by a registrar, in the absence of the public and without any attendance by, or on behalf of, any person: Supreme Court Rules 1970 (NSW) (SCR) rule 78.9. No notice of proceedings was required to be served on any person, and there was no defendant named in the Summons: SCR rule 78.1.

34. The Court granted Probate in common form of the deceased’s Will and issued the Probate document which, as is stated, contained the address of each of Maxwell and Graham.

Other events since the death of the deceased

35. On 16 August 2022, Phillip J Briffa, solicitor, of PB Ritz Lawyers, sent an email to the solicitors for Maxwell and Graham, notifying that Richard was intending to make a claim for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) out of the estate of the deceased.

36. The foreshadowed proceedings have not yet been commenced by Richard, but the prescribed period for making the application prescribed by s 58(2) of the Succession Act (not later than 12 months after the date of the death of the deceased person) has not yet expired.

37. There was no evidence that Richard has sought, or has had, any personal contact with Maxwell since the correspondence from Richard’s solicitor foreshadowing the application for a family provision order.

No evidence of application for an apprehended personal violence order

38. As I have already stated, there is no evidence of the nature, or content, of the alleged behaviour, and no specific incidents involving Richard, experienced by Maxwell, were identified. Nor is there any evidence that Maxwell considered what was described as “abuse, intimidation and threats” sufficiently serious to bring his concerns to the attention of NSW Police, or prompt him to make an application for an apprehended personal violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The object of that Act is to empower courts to make an order, in appropriate circumstances, to protect people from violence, intimidation (including harassment) and stalking to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship and that access to courts is as safe, speedy, inexpensive, and simple, as is consistent with justice: s 10.

39. Of course, to obtain such an order there must be evidence of conduct that, in the opinion of the court, is sufficient to warrant the making of the order. Section 19 of the Crimes (Domestic and Personal Violence) Act requires the Court to be “satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.”

40. Of course, should there be evidence available of reasonable grounds to fear and, that Maxwell, in fact, fears, any of those things, Maxwell could make such an application.

Service upon Richard

41. Despite what is written above, Maxwell has stated that, currently, Richard is not aware of his residential address, and that he wishes to ensure that this remains the position. The basis of the premise is unlikely. Perhaps, the evidence means no more than he has not been expressly informed of Maxwell’s address.

42. As Richard is not a respondent named in the notice of motion, Maxwell sought to proceed with the hearing of the notice of motion without Richard being served with a copy of the notice of motion and the supporting affidavits. It was submitted that if Richard were named as a respondent to the notice of motion, and if Maxwell was required to serve the notice of motion upon him, the whole purpose of requesting the orders sought would be defeated.

43. Maxwell contended that there is a real likelihood that Richard’s estranged relationship with him and his family will escalate further during any family provision claim that is commenced. Again, this is mere speculation, as there is no evidence of any contact that Richard has had with Maxwell since the correspondence from Richard’s solicitor was sent.

44. Counsel submitted that Richard has a serious criminal history and referred to the decision of the Court of Criminal Appeal bearing the medium neutral citation Richard Warren JamesConnelly v R [2012] NSWCCA 144.

45. Apart from anything else, it is noted that the judgment was delivered over 10 years ago. Furthermore, whilst I have read the reasons of the Court of Criminal Appeal in those proceedings, I remember that this Court draws inferences based upon the evidence before it. The judgment of another court, including a finding of fact in reasons for judgment, is not admissible to prove the existence of a fact in this proceeding: Evidence Act 1995 (NSW) s 91. An exception to s 91 is contained in s 92(2) of the Evidence Act, which relevantly provides that “[I]n a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through, or under whom, a party claims, has been convicted of an offence”.

46. Section 178 of the Evidence Act provides a procedure for proving, by certificate, particulars of a criminal conviction that are otherwise admissible under the Evidence Act. No such certificate has been produced to the Court in relation to Richard.

47. Having not been named as a respondent to the notice of motion, Richard is not a party to the application being made by Maxwell. Nor was he a party named in the Summons for the grant of Probate. It follows that the exception does not apply.

48. Counsel submitted that the Court may proceed to deal with the matter pursuant to Uniform Civil Procedure Rules 2005 (NSW) rule 29.7, which relevantly provides:

(1) This rule applies when a trial is called on.

(2) If any party is absent, the court--

(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

(b) may adjourn the trial.

49. I do not accept that submission as that rule, also, applies to “a party” being absent. As already stated, Richard is not named as a party to the proceedings and according to Maxwell’s evidence is unaware of the proceedings.

50. Counsel accepted that it is a fundamental principle that a party who may be adversely affected by the making of Court orders has a right to be heard but submitted that, here, Richard is not being adversely affected by the order sought to change Maxwell’s address on the Probate document. Nor would it preclude any application that he might make in the future. He submitted that to avoid any problem of future service of documents on Maxwell, or Graham, Graham’s address, or the address of their solicitors, who had consented, could be inserted in the Probate document. Doing that would not cause any inconvenience because there had already been correspondence between Richard’s solicitors and Maxwell’s and Graham’s solicitors about the proposed claim for a family provision order.

49. Rather than adjourning the hearing of the notice of motion upon the basis that the notice of motion was required to be served upon Richard, I decided to proceed with the hearing on an ex parte basis.

The Submissions

52. In relation to the substantive application, counsel submitted:

“7.   The Applicant contends there is power to ‘amend’ the Probate and to make consequential orders to deal with the issue of concern this case.

8.   The authorities make clear there is power to amend a grant of probate. However, the mode of implementing any amendment procedure in the circumstances of this case, if the Court is minded to make the amendment, is a separate issue.

9.   In the present case, it is submitted, that the appropriate procedure to achieve the ‘amendment’ sought is to revoke the grant and issue a fresh grant omitting the address of the Executor.”

53. To ground the Court’s jurisdiction, counsel then relied upon:

“Slip Rule

13. In circumstances where there is a clerical mistake, such as incorrect date of death or name of the deceased in a grant of probate, for example, anecdotal evidence of the Court’s procedure is to manually correct the error and apply the Court’s mini seal to the amendment on the parchment. The power to do this would appear to be the application of the ‘slip rule’ UCPR 36 R17.

14.   The Applicant does not contend that the proposed ‘amendment’ in this case falls within the provisions of the ‘slip rule’.

UCPR Part 54

15. The issue, it is submitted, could fall to be determined as a “question” within the administration of an estate pursuant UCPR Part 54 Rule. However, there is no direct authority that the Applicant can locate on this topic.

Supreme Court Act s 121

16. Given probate grant is made by a Registrar s 121(3) of the Supreme Court Act 1970 (NSW) (SC Act) gives power to the Court to set aside or vary the probate grant in so far as it operates as an order of the Court. Although, it is accepted that the process of that kind of review is generally governed by UCPR r 49.19.”

54. Other than what is written above, counsel did not place reliance upon UCPR rule 54 or under Supreme Court Act 1970 s 121. Presumably, this was because there was really no basis for doing so.

55. Thus, the sole ground relied upon was the inherent jurisdiction of the Court. Counsel wrote:

“20.   It is submitted that the scope of the inherent power is sufficiently broad to allow for the amendment of the probate so as to remove Max’s address.

21.   As the focus of the power is the proper administration of the estate, one relevant issue in this case is the form of the appropriate order. It is submitted the rather than amend the parchment manually, the appropriate course is to revoke the grant and issue a fresh grant noting Max’s address as care of the solicitor’s acting on the administration of the estate for the following reasons:

(i)   A manual amendment is undesirable.

(ii)   Issuing a fresh grant would be administratively easier.”

56. Relying upon my decision in Estate of Philip Mack (deceased) [2022] NSWSC 1629, at [18]-[27], in which I reviewed the authorities outlining what constituted a “proper case” for revocation of a grant, counsel submitted that the circumstances in this case did not fall within the non-exhaustive grounds referred to by Besanko J in Re Estate of Crane (2005) 93 SASR 198 at [25].

57. It was then submitted that “rather than amend the parchment manually, the appropriate course is to revoke the grant and issue a fresh grant noting Max’s address as care of the solicitor’s acting on the administration of the estate” because (i) manual amendment is undesirable and (ii)   issuing a fresh grant would be administratively easier.

58. Surprisingly, whilst there was reference to the Court Suppression and Non-publication Orders Act, no written submissions were made on the applicability of that Act.

The Law

59. The probate jurisdiction of the Court, as now constituted, can be traced back to clauses 14 to 17 of Letters Patent dated 13 October 1823 (now known as “The Third Charter of Justice) issued pursuant to the Imperial Statute for Geo IV c 96, colloquially known as the New South Wales Act, 1823 (Imp), s 10 of which authorised establishment of the Court as a court of “ecclesiastical” (that is, probate) jurisdiction.

60. The jurisdiction of the Supreme Court, sometimes described as “inherent jurisdiction”, is that preserved by s 22 of the Supreme Court Act 1970 (NSW), supplemented by s 23 of that Act.

61. Section 22 provides that the Supreme Court of New South Wales, as formerly established as the superior court of record in New South Wales, is hereby continued. Section 23 grants the Court “all jurisdiction which may be necessary for the administration of justice in New South Wales”. As such, the Court has general jurisdiction within New South Wales. Thus, the jurisdiction of the Court, to that extent, is broad and unconfined. There are no defined, or closed, categories, with its scope being limited only by the requirements of the administration of justice. However, the jurisdiction “does not extend to the exercise of judicial power exclusively vested in another court, nor, generally speaking, does it permit an order that a government officer exercise a discretionary power in a particular way. Where the court is exercising a discretionary power, it will similarly be confined by the conditions, express and implied, which limit the exercise of the court’s discretion: Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113 at 127; [2018] NSWCA 143 at [63].

62. In “The Inherent Jurisdiction of the Court” (1970) 23(1) Current Legal Problems 23, I H Jacob, discussing the inherent jurisdiction of the superior courts in the United Kingdom, wrote, at 27-28:

“The essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute ... The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.”

63. As was described in Grassby v The Queen (1989) 168 CLR 1 at 16; [1989] HCA 45 at [21] (Dawson J):

“Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical ... But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster.”

64. More recently, in HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [82], Gordon J observed, in relation to the inherent power of superior courts to make orders comparable to the order sought in this case, that “[a]ny such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court”.

65. In addition, s 33 of the Probate and Administration Act1898 (NSW) provides that “[T]he jurisdiction and authority, prior to the coming into operation of the Probate Act of 1890, vested in or exercised by the Court or by the Primary Judge in Equity in respect of the estates of deceased persons, shall be vested in and exercised by the Court”.

66. It seems to me, therefore, that the Court has power to make an order along the lines sought. However, that conclusion does not mean that the Court should exercise the power.

67. I turn then to the Court Suppression and Non-publication Orders Act.

68. Section 3 of the Court Suppression and Non-publication Orders Act contains a number of definitions. Relevantly, it states:

In this Act—

…

information includes any document.

…

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

…

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine or other written publication, or

(b) broadcast by radio or television, or

(c) public exhibition, or

(d) broadcast or publication by means of the Internet.

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

69. In relation to the differences of significance between a suppression order and a non-publication order, I refer to Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774, in which Basten AJ wrote, at [17]:

“The definition of “suppression order” indicates that such an order is a prohibition or restriction on “the disclosure of information”, not on access to it. There are two differences of significance between a suppression order and a non-publication order. First, suppression orders may have a broader effect, because they restrict any form of disclosure, not necessarily by publishing. Secondly, suppression orders may involve publication and therefore include all non-publication orders. Importantly, both definitions have two limbs, namely prohibition or restriction. That allows orders to be crafted to meet the exigencies of the particular case.”

70. Section 4 confirms that the Act does not limit, or otherwise affect, any inherent jurisdiction, or any powers that the Court has apart from the Act, to regulate its proceedings.

71. Section 6 is the starting point for consideration of the application made by Maxwell for a suppression order. It provides that in deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

72. In Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383 at 421; [2021] NSWCA 339, at [217], the Court (Bathurst CJ, Leeming JA, and Simpson AJA) observed that suppression and non-publication orders “represent a departure from the general and fundamental principle that justice is administered openly, in courts and by judgments that are accessible to the general public.”

73. In O’Dell (a pseudonym) v R [2023] NSWCCA 46, the Court of Criminal Appeal (Leeming JA, Adamson JA, and Garling J) wrote at [6], in relation to the Court Suppression and Non-publication Orders Act:

“The starting point is that “a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 of the Court Suppression and Non-publication Orders Act. As was noted in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27], that provision “reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances”. In HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [82], Gordon J observed, in relation to the inherent power of superior courts to make comparable orders, that “[a]ny such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court”.

74. The principal power conferred on NSW courts is found in s 7 which provides:

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

75. Such a power conferred is not discretionary: Council of the New South Wales Bar Association v EFA (a pseudonym) at [218]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48] per Bathurst CJ and McColl JA.

76. Section 8 specifies the grounds for making a suppression order. Relevantly for present purposes, it states:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

…

(c) the order is necessary to protect the safety of any person,

…

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

77. The ground relied upon in the present case is s 8(1)(c).

78. In AB v CD (2019) 93 ALJR 321; [2019] HCA 6 at [15], Nettle J wrote in relation to when assessing whether an order is necessary to protect a person’s safety, the Court must be satisfied:

“…of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.”

79. In Brown (A Pseudonym) v R(No 2) [2019] NSWCCA 69 at [27], Payne JA, Johnson and N Adams JJ stated that the word “necessary” set a high threshold:

“Subsections 8(1)(a) to (e) specify a number of grounds upon which such an order can be made. All of them require that the order sought be “necessary” to protect an identified interest. The exceptional nature of the power and the high threshold imposed by “necessity” may be seen from the fact that it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart at [31]; D1 v P1 [2012] NSWCA 314 at [48].

80. In Council of the New South Wales Bar Association v EFA (a pseudonym), the Court wrote at [218] – [224]:

“Notwithstanding the use of the word “may” in s 7, the power conferred is not discretionary. Accordingly, once the necessity of an order for the relevant purpose is established, refusal to make the order is not an option.

That raises the question of what amounts to a “necessity”. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, in the context of the Non-publication Act, Basten JA said:

“46. The meaning of ‘necessary’ depends on the context in which it is used. In s 8(1), it is used in relation to an order of the Court, or, in practical terms a proposed order, because it identifies a standard as to which the Court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a) a purpose of the order will be ‘to prevent prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, maybe minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree; the proposed order may diminish the risk of prejudice or it may obviate the risk entirely. All of these variables may effect what is considered ‘necessary’ in particular circumstances.”

Bathurst CJ agreed, adding:

“8 … Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word ‘necessary’ should not be given a narrow construction.”

Bathurst CJ adopted observations of Mahoney JA in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131. Mahoney JA said (at 161):

“This leads to the consideration of what is meant by ‘necessary to secure the proper administration of justice’ in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the Court. …”

Those observations by Mahoney JA, adopted by Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13], were made in relation to non-publication orders made under the common law, prior to the 2010 codification represented by the Non-publication Orders Act. Their adoption by Bathurst CJ in Fairfax Digital establishes their continuing relevance.

Nevertheless, the assessment of “necessity” must be made with due regard to the primary objective of the administration of justice, stated in s 6, as the safeguarding of the public interest in open justice. In Rinehart v Welker Bathurst CJ and McColl JA said:

“26. The principle of legality favours a construction of legislation such as the [Non-publication Orders Act] which, consistently with a statutory scheme, has the least adverse impact on the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle, Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [5], [27] (French CJ), see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P).”

In Hogan v Australian Crime Commission the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said (in the context of a parallel power conferred by s 50 of the Federal Court of Australia Act 1976 (Cth)):

“30 … ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Perish [(1980) 43 FLR 129 at 133] that the collocation of necessity to prevent prejudice to the administration of justice and the necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’.”

81. At [227]-[228], the Court discussed the approaches to the application of s 8(1)(c), on the grounds that it was necessary to protect the safety of a person and stated that one had been dubbed “the probable harm” approach and the other “the calculus of risk” approach. The “calculus of risk approach” required a court to consider the nature, imminence, and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person. It was said that the “calculus of risk” approach “appears, in the decided cases, to have gained ascendency as the preferred approach.”

82. In AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (“AB v R”) the Court, comprising Hoeben CJ at CL (as he then was), Price and Adamson JJ, when considering an application for a suppression order on the grounds that it was necessary to protect the safety of a person, determined that the correct approach to the interpretation of s 8(1)(c) of the Act is the “calculus of risk approach”. This requires a court to consider the nature, imminence, and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person: AB v R at [55] to [58]. The “probable harm” approach required proof of the probability of harm in the absence of an order.

83. Under the calculus of risk approach, it appears that if the prospective harm is very severe, then it may be the case that an order would be necessary even if the risk of harm does not go beyond a mere possibility.

81. Whilst “safety” within the Act can include “psychological safety”, including aggravation of a pre-existing mental condition, in addition to the risk of physical harm, by suicide or other self-harm: (see AB v R at [59]), mere embarrassment, discomfort, reputational damage, or even financial loss are not sufficient to justify a departure from the principle of open justice. It is not enough for a person to identify that they will develop or aggravate a psychological condition. The assertion must be considered in the context of all of the circumstances, including the nature and severity of that psychological condition and the (potential) severity of any possible aggravation: A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [49]-[53] and [97] per Cavanagh J.

82. A person’s mere belief that a pre-existing psychological condition may be exacerbated or aggravated is generally of itself insufficient for the purposes of establishing that an order is necessary to protect the safety of that person or another person: A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) at [83] per Cavanagh J; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465.

83. In R v AB (No 1) (2018) 97 NSWLR 1015; [2018] NSWCCA 113, Meagher JA wrote at [42], in relation to s 8(1)(c) of the Act:

“[It] directs attention to whether the continuation of the suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome.”

87. The word “necessary”, found in each of the grounds for which s 8 provides, compels recognition that a departure from “open justice” requires a compelling justification: Rinehart v Welker [2011] NSWCA 403 at [29], citing John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476-477; Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [148].

88. The Court also placed weight on whether the orders sought would be effective, or whether they would lack utility, citing Bathurst CJ’s comments in D1 v P1 [2012] NSWCA 314, at [52], that emphasised the need to consider the utility of making the order.

Determination

89. Having considered all the available evidence, I am not satisfied that the orders sought should be made. There is insufficient evidence to satisfy me that there has been conduct which justifies the making of any orders. The evidence that has been provided is vague in the extreme and amount really to no more than allegations unsupported by any incidents.

90. Furthermore, the documents that would otherwise be available to Richard, or his legal representatives, to obtain Maxwell’s address, include the application made to NCAT and the documents in the court case record (the envelope and its contents earlier referred to). As a beneficiary named in the deceased’s Will, he could make application to inspect these documents. Therefore, orders would be required prohibiting access to all the documents in the non-contentious application for the grant of probate which contains Maxwell’s address. There was no explanation provided going to why he had stated his address on the occasions that he had before the notice of motion was filed.

91. Finally, if there is evidence of Richard’s conduct which has given rise to what are alleged to be concerns pertaining to his safety, an apprehended personal violence order could be sought by Maxwell. As stated, access to courts for such an order is as safe, speedy, inexpensive, and simple, as is reasonably possible.

92. In all the circumstances, not being satisfied that the orders sought by Maxwell and Graham should be made, the Court orders that:

1. The notice of motion filed on 21 February 2023 be dismissed.

2. There be no order as to the Applicants’ costs of the notice of motion, to the intent that they are to personally bear their own costs of the notice of motion and not recover any costs thereof from the estate of the deceased.

3. The original grant of Probate be returned to the Applicants’ solicitors by arrangement with the Senior Deputy Registrar in Probate.

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Decision last updated: 05 May 2023