Estate Grundy; La Valette v Chambers-Grundy

[2018] NSWSC 104

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

13 November 2017, together with written submissions filed 29 November 2017

Date of orders:

15 February 2018

Decision date:

15 February 2018

Jurisdiction:

Equity - Family Provision List

Before:

Lindsay J

Decision:

In case management of a claim for family provision relief the Court determined that:

 

(1)    in the absence of reasonable grounds for a dispensation from the ordinary disclosure obligations of the administrator of a deceased estate, the first defendant, as administrator of the deceased’s estate, is required to make disclosures about his property, and property transactions, outside NSW even though the jurisdiction of the Court to make a family provision order in favour of the plaintiff is limited to property in NSW; and

(2) the first defendant’s application (under sections 7, 8(1)(a) and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 NSW) for a suppression order in respect of non-dispositive provisions of the deceased’s will should be dismissed.

Catchwords:

SUCCESSION – Family provision and maintenance – Practice – Administrator of deceased estate – Obligation of disclosure – Location, size and value of estate and notional estate – Obligation extends to property, and property transactions, outside territorial jurisdiction of court

 

SUCCESSION – Family provision and maintenance – Practice – Deceased person domiciled outside territorial jurisdiction of Court – Court’s jurisdiction to make family provision order limited to property within territorial jurisdiction of Court – Existence of property, and property transactions, outside territorial jurisdiction of court relevant to determination whether to make family provision order affecting property within territorial jurisdiction.

 

COURTS – Administration of justice – Public interest in open justice – Application for suppression order – Probate – Non-dispositive provisions of will – No ground for suppression of information about those provisions.

  SUCCESSION – Wills, probate and administration – Omission of part of will from grant of probate – No allegation that will contains scandalous, offensive or defamatory material or is otherwise abuse of process of court – Application for suppression order in relation to non-dispositive provisions of will – Application dismissed – No ground for departure from open administration of justice.

Legislation Cited:

Civil Procedure Act 2005 NSW
Court Suppression and Non-Publication Orders Act 2010 NSW
Evidence Act 1995 NSW
Probate and Administration Act 1898 NSW and
Succession Act 2006 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

AD v Morrison [2013] NSWSC 625
Andrew v Andrew (2012) 81 NSWLR 656
Application of Forsyth; re Cordova v Phillips Roxane Laboratories Inc [1984] 2 NSWLR 327
Boyle v Sacker (1888) 39 Ch D 249.
Churton v Christian (1988) 13 NSWLR 241
Compagnie Financiere v Peruvian Guano Co. (1882) 11 QBD 55
Dawson v Baker (1994) 120 ACTR 11
El-Zaouk v Draybi [2010] NSWSC 1001
Estate Hemmes; Cameron v Mead [2018] NSWSC 85
Estate Kouvakas; Lukas v Konakas [2014] NSWSC 786
Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89
Goodman v Windeyer (1980) 144 CLR 490
Haque v Haque (No. 1) (1962) 108 CLR 230
Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409
Hitchcock v Pratt (2010) 79 NSWLR 687
In Re Allen [1922] NZLR 218
In the estate of Enjakovic (Dec’d) (2008) 100 SASR 486
In the estate of Hawke, deceased (1973) 6 SASR 278
In the estate of Michael Edward Welsh (deceased) [2014] SASC 13
In the Estate of Turnbull [1975] 2 NSWLR 360
In the will of JP, deceased (1922) 39 WN (NSW) 228 Re N [1950] VLR 139
John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503
Lemon v Mead [2017] WASCA 215
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1
National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372
Neilson v Overseas Projects Corp of Victoria Limited (2005) 223 CLR 331
Perkins v Williams (1900) 17 WN (NSW) 135 McManus v Clouter (1980) 29 ALR 101
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Estate of Thiess [1994] ACL rep 395 NSW 7
Re Fulop (1987) 8 NSWLR 679
Rinehart v Welker [2011] NSWCA 403
Wentworth v Wentworth (1995) 37 NSWLR 703
Wolff v Deavin [2012] NSWSC 1315

Texts Cited:

Reg Grundy (Murdoch Books, Sydney, 2010).
M Davies, A Bell and PLG Brereton (eds), Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, Australia, 9th ed, 2014), paragraphs [3.113]-[3.115]; [17.5] [38.47]

Category:

Procedural and other rulings

Parties:

Plaintiff: Viola La Valette
First Defendant: Carolyn Joy Chambers-Grundy
Second Defendant: Artworld Limited
Third Defendant: RG Properties (Australia) Pty Limited ACN 001 016 146

Representation:

Counsel:
Plaintiff: MK Meek SC
Defendants: CM Harris SC and JE Stuckey-Clarke

  Solicitors:
Plaintiff: Uther Webster & Evans
Defendants: Diamond Conway

File Number(s):

2017/00127105

Judgment

INTRODUCTION

1. This judgment deals with questions (about disclosure of property located, and property transactions effected, beyond the territorial limits of the Court, and an application for suppression of information about the will of a testator domiciled beyond the jurisdiction) arising in case management of an application by an adult daughter (an only child), of a deceased father, for family provision relief under Chapter 3 of the Succession Act 2006 NSW.

THE NATURE OF THE CASE AND ITS DETERMINATION : A SUMMARY

Overview

2. At the time of his death, the deceased person in respect of whose estate, and notional estate, an application for family provision relief is made (widely known in Australia as Reg Grundy) was domiciled (in Bermuda) outside the territorial jurisdiction of the Court.

3. Although the deceased died leaving in New South Wales sufficient property to ground the Court’s jurisdiction to make a family provision order under the Succession Act 2006 (because he left in the State both actual estate and property capable of being designated, under the Act, as notional estate), most of his very substantial wealth appears to have been, as it remains, located outside Australia.

4. The widow of the deceased (his principal beneficiary, the first defendant, a person named as an executor in his will, but not the mother of the plaintiff) opposes the application for family provision relief on grounds that include the following contentions:

1. It is not necessary or appropriate for the widow (as the deceased’s executrix and the plaintiff’s contradictor) to disclose to the Court or to the plaintiff property of the deceased (or prescribed transactions effected by him) outside the territorial jurisdiction of the Court because any information the subject of such a disclosure would be irrelevant to a determination of the plaintiff‘s claim for relief.

2. Nor is it appropriate, because of the irrelevancy of any such information, for the Court to permit the plaintiff to use the processes of the Court (by way of discovery or deployment of subpoenas and notices to produce) to compel disclosure of such information.

3. Giving due recognition to celebrity attaching to the name of the deceased in the Australian media, the Court should make a suppression order under section 7(b) of the Court Suppression and Non-Publication Orders Act 2010 NSW, relying on the grounds for which sections 8(1)(a) and (e) of the Act provide, so as to restrict to the plaintiff and her legal advisors publication of provisions of the will of the deceased (described in the will as “Part 2”) which, as events have transpired, are not dispositive of any property.

5. A grant of probate of the will of the deceased has not been earlier made because the widow (the only one of the deceased’s four named executors who has not renounced a right to apply for probate) initially declined to apply for a grant, contending that no more was required for a disposition of the proceedings, and administration of the estate of the deceased, than an order under rule 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 NSW that she be appointed to represent the deceased’s estate for the purposes of the current proceedings.

6. It is common ground between the parties to the proceedings that, consistently with the judgment of Brereton J in Hitchcock v Pratt (2010) 79 NSWLR 687 at [20] – the correctness of which is accepted by all parties – the Court has jurisdiction to grant to the plaintiff the family provision relief she seeks only if, and to the extent that, the deceased left in NSW actual estate or property capable of being designated as notional estate.

7. Although the widow is the only beneficiary of the deceased other than the plaintiff (and, accordingly, section 61(1) of the Succession Act does not operate so as to allow the Court to disregard her interests in determining the plaintiff’s application for a family provision order), she invites the Court to determine the proceedings on the basis that there are no claimants to property of the deceased in NSW who are in competition with the plaintiff’s claim.

Disclosure of Extra-Territorial Property and Transactions

8. Within limits of her own choosing, the widow has purported to comply with the disclosure obligations of the administrator of a deceased estate ordinarily required (by reference to the Court’s Practice Note SC Eq 7, paragraph 9.1) in family provision proceedings.

9. She has approached her performance of those obligations on the basis (in this judgment, held to be erroneous) that, as a matter of principle:

1. property located, and property transactions effected, outside the territorial limits of NSW are irrelevant to the Court’s exercise of jurisdiction over property within those limits; and

2. it is not incumbent on her to make a full disclosure of the nature and extent of the wealth available to the deceased if she has made available to the Court a fund sufficient to accommodate what she contends is the maximum amount of provision that could reasonably be awarded to the plaintiff and she disclaims any competing claim to the fund.

10. To that extent, at least, her performance of her disclosure obligations as administrator of the estate of the deceased has been less than what is required of her.

11. The gravamen of this judgment is that, reserving questions about whether and to what extent the plaintiff should be permitted further use of the Court’s processes for compulsory disclosure of information, the widow should be given a further opportunity to comply with Practice Note SC Eq 7 with the benefit of the Court’s determination of the questions of principle raised by her.

12. That the deceased had available to him substantial resources beyond the jurisdictional limits of the Court is, or may be, relevant to orders able to be made in favour of the plaintiff affecting property within the Court’s jurisdictional limits.

13. The onus of proof borne by the plaintiff in the principal proceedings (to prove that she has been left without adequate provision for her proper maintenance, education or advancement in life, and that she ought to be granted family provision relief by the Court) might be made lighter by the absence of a competing claim to the estate, or notional estate, of the deceased amenable to orders of the Court.

14. However, the absence of a competing claim does not, of itself, entitle a claimant for family provision relief to an award of the whole of available property. The Court is, in each case, bound to pay due respect to the testamentary intentions of the deceased person whose testamentary arrangements are the subject of the claim. In all the circumstances of a particular case, the nature and extent of a family provision order might be responsive to evidence about variations in the size of a deceased person’s estate or notional estate; but there is no necessary or mathematical correlation between the amplitude of resources available to a deceased person and the size of a family provision order.

15. In the case management phase of the proceedings the deceased’s widow has manifested a strong preference to control the information about the affairs of the deceased, and herself, that is available to the plaintiff and the Court or in the public domain.

16. After some hesitation, she entered an unconditional appearance in the proceedings, thereby submitting to the jurisdiction of the Court: M Davies, A Bell and PLG Brereton (eds), Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, Australia, 9th ed, 2014), paragraphs [3.113]-[3.115]; Perkins v Williams (1900) 17 WN (NSW) 135; McManus v Clouter (1980) 29 ALR 101 at 112-113; Dawson v Baker (1994) 120 ACTR 11 at 16.

17. She does not challenge the jurisdiction of the Court to require her to make disclosures about property of the deceased, or property transactions effected by him (as it did when it ordered her, in effect, to file and serve an “administrator‘s affidavit” ordinarily required in family provision proceedings by reference to paragraph 9 of the Court’s Practice Note SC Eq 7). However, she does contend that, where (as in the present proceedings) the Court can only make orders in relation to property within its territorial jurisdiction, and there are no other claims for provision competing with an applicant for family provision relief, property of the deceased outside the jurisdiction is irrelevant and should not be made the subject of any order or process for compulsory disclosure.

Application for Suppression of Non-Dispositive Provisions of the Deceased’s Will

18. The widow does not challenge the jurisdiction of the Court to admit to probate the full, unredacted will of the deceased.

19. No application has been made to omit any part of the deceased’s will from a grant of probate (pursuant to the Court’s inherent jurisdiction, discussed in In the will of JP, deceased (1922) 39 WN (NSW) 228; Re N [1950] VLR 139; In the estate of Hawke, deceased (1973) 6 SASR 278; In the estate of Enjakovic (Dec’d) (2008) 100 SASR 486; and In the estate of Michael Edward Welsh (deceased) [2014] SASC 13) on the basis that it is scandalous, offensive, defamatory or otherwise an abuse of the processes of the Court.

20. Nevertheless, the widow does seek to achieve a similar object by her application, under section 7(b) of the Court Suppression and Non- Publication Orders Act 2010, for a “suppression order” based upon the grounds specified in section 8(1)(a) and section 8(1)(e) of the Act.

21. The gravamen of this judgment is that the widow’s application for a suppression order must be dismissed because she has not established a ground for the making of such an order, the effect of which would be to sanction a departure from the obligation of the Court to facilitate an open administration of justice.

PRACTICE NOTE SC EQ 7 : ORDINARY REQUIREMENTS OF AN ADMINISTRATOR’S DISCLOSURE AFFIDAVIT

22. In paragraph 4 of Practice Note SC Eq 7, a practice note of the Court operative in family provision proceedings in the Court, the term “administrator” is defined to include “executor and, where appropriate the person appointed to represent the estate of the deceased for the purposes of [a] hearing” of family provision proceedings.

23. There is no dispute that the first defendant is comprehended by the term “administrator” so defined.

24. So far as presently material, paragraph 9.1 of the Practice Note requires “[an] administrator’s affidavit which is to include:

1. …

2. A description of the nature and value of the assets and liabilities of the deceased at the date of death…

3. What is, or is likely to be, the nature, and an estimate of value, of:

1. The assets and liabilities of the deceased at the date of swearing the affidavit;

2. Any property of the deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property;

3. The gross distributable estate (omitting the costs of the proceedings).

4. A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transactions;

5. The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction;

6. Any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings;

7. …

8. The names and addresses of every person who, in the administrator’s opinion, is, or may be:

1. …

2. …

3. …

4. A person holding property as a trustee or otherwise; ….”

THE COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 NSW

25. With emphasis added, sections 7 and 8 of the Court Suppression and Non-Publication Orders Act provide as follows:

“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.

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,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

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

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(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.”

26. In advancing her application for a suppression order, the widow acknowledges section 6 of Court Suppression and Non-Publication Orders Act, which 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”. She contends that that objective can be attained by restricting publication of a full copy of the deceased’s will to the Court, the plaintiff and the plaintiff‘s legal advisors.

27. In relying upon the ground for the making of a suppression order for which section 8(1)(a) of the Court Suppression and Non Publication Orders Act provides, the widow contends that because the deceased’s will was made pursuant to the law of a foreign jurisdiction (Bermuda) and the estate has been administered there in a manner which has preserved the confidentiality of its terms, principles of consistency (John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; Neilson v Overseas Projects Corp of Victoria Limited (2005) 223 CLR 331) , particular justice (Haque v Haque (No. 1) (1962) 108 CLR 230) and international comity require that, if possible, the Court should attempt to preserve the will from publication in this Court.

28. In grounding her application for a suppression order on section 8(1)(e) of the Court Suppression and Non Publication Orders Act, the widow contends that publication of details of gifts which the deceased would, by his will, have made had she not survived him: (a) would cause significant frictions within her existing confidential employment relationships; and (b) could, because some of the deceased’s prospective beneficiaries are persons who are well known in Australia, cause embarrassment to them.

26. If a suppression order were to be made as sought, it would be appropriate, upon an exercise of the Court’s inherent jurisdiction, to make an ancillary order that any grant of probate made in respect of the deceased’s will omit so much of the will as is the subject of a suppression order. Such a grant, in whatever form it takes, is a judicial act in the character of an order of the Court, as well is one in the nature of a grant of title to property: Estate Kouvakas; Lukas v Konakas [2014] NSWSC 786 at [228]-[233]. If a suppression order were to be made, consistency in formulation of the Court‘s orders would require redaction of the form of the deceased’s will admitted to probate. The question for this judgment (answered in the negative) is whether a suppression order can, and should, be made.

ARRANGEMENTS FOR ADMINISTRATION OF THE DECEASED’S ESTATE

30. In the course of the case management hearing giving rise to this judgment the deceased’s widow agreed, without objection on the part of any other party, to take a grant in common form of probate of the deceased’s will. Her agreement to do so obviated any need to consider: (a) the application made by the plaintiff for a grant of letters of administration with the will annexed pursuant to section 75(1)(a) of the Probate and Administration Act 1898 NSW; and (b) the widow’s own application that she be appointed, pursuant to rule 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 NSW to represent the deceased’s estate in the proceedings.

31. A grant of probate “in common form”, rather than a grant “in solemn form” , is appropriate because such a grant is “inherently revocable” (Tobin v Ezekiel (2012) 83 NSWLR 757at [8]; Dickman v Holly [2013] NSWSC 18 at [235]) and, having regard to the deceased’s domicile and death overseas and the widow’s reluctance for there to be full disclosure of his affairs in Australia, the conditions for a grant of probate in solemn form (identified in Estate Kouvakas; Lukas v Konakas [2014] NSWSC 786 at [249]) have not been satisfied.

CONTEXTUAL ELABORATION

32. Reginald Roy Grundy (“the deceased”) died in Bermuda (his place of domicile) on 6 May 2016, aged 93 years, leaving a will dated 21 January 2011 and sufficient property in NSW to ground the jurisdiction of the Court to admit the will to probate.

33. The deceased, twice married, had but one child: a daughter (the plaintiff) born of his first marriage. The plaintiff was formerly known as Kim Robin Grundy. She changed her name to Robin Sabatier and then, by deed poll in 2000, to her present name, Viola La Valette. She has been known as Robin Grundy.

34. The first defendant (the second wife of the deceased) is his widow. She is also an executor named in his will and, having survived him by 30 days, his principal beneficiary.

35. Under the deceased’s will, as events have transpired, the first defendant takes “the remainder” (the residue) of his estate after provision of a lifetime annuity of $US250,000 granted in favour of the plaintiff and payment of his just debts, funeral and testamentary expenses.

36. The first defendant has deposed to her payment of the deceased’s debts, funeral and testamentary expenses.

37. The deceased’s will named four executors, one of whom was the first defendant. All but the first defendant (including Kerry McGinley Wright and Susan Therese McIntosh, Australian-based associates) formally renounced probate between 15 June 2016 and 25 July 2016. As has been recorded, after abandonment of an alternative case, the first defendant has agreed to take a grant of probate of the will in common form.

38. By a summons filed on 28 April 2017 the plaintiff applies, under chapter 3 of the Succession Act, for a grant of family provision relief in respect of the estate, or notional estate, of the deceased.

39. As a child of the deceased, the plaintiff is an “eligible person” with standing to apply for family provision relief under the Act: Succession Act, section 57(1)(c). Her summons seeking such relief was filed within the time limited by section 58(2) of the Act. It is no impediment to her application that no grant of administration of the estate (an expression defined by section 55(1) as including a grant of probate) has been made before now: section 58(1). Because her standing to apply for relief is grounded on section 57(1)(c), it is not necessary for her to satisfy the Court, for the purpose of section 59(1)(b), that “there are factors which warrant the making” of her application for relief: cf, Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 254.

40. Large questions for determination at a final hearing of the principal proceedings, upon evidence available to the Court at the time of their determination, are:

1. whether “adequate provision for the proper maintenance, education or advancement in life” of the plaintiff has been made by the will of the deceased: Succession Act, section 59(1)(c) .

2. whether, upon an exercise of the discretionary power for which section 59(2) of the Succession Act provides, provision out of the estate (or any designated notional estate) of the deceased “ought to be made for the maintenance, education or advancement in life” of the plaintiff.

41. As confirmed by sections 60(1)(b) and 60(2)(c) of the Succession Act, in determining whether to make a family provision order in favour of the plaintiff, and the nature of any such order, the matters that may be considered by the Court include “the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and any liabilities or charges to which the estate is subject, as in existence when the application is being considered”.

42. As initially filed, the plaintiff’s summons named only the first defendant as a defendant.

43. The first defendant filed an unconditional appearance in the proceedings on 16 June 2017. Earlier appearances before the Court on her behalf were appearances, under protest, in support of a contention that the Court lacked jurisdiction to entertain the proceedings: Davies, Bell and Brereton (eds), Nygh’s Conflict of Laws in Australia (9th ed, 2014), paragraph [3.115]; cf, Boyle v Sacker (1888) 39 Ch D 249.

44. That contention was based upon:

1. the fact, accepted by the plaintiff, that the deceased was domiciled in Bermuda at the time of his death; and

2. an assertion, since disclaimed by the first defendant in light of evidence obtained by the plaintiff on subpoena in these proceedings, that the deceased died without property in NSW.

45. The second and third defendants (respectively joined in the proceedings on 16 June 2017 and 4 August 2017) are corporations which, for present purposes, can be described, summarily and neutrally, as associated with the first defendant and, before his death, the deceased in dealing with property located in NSW. Their joinder reflects the plaintiff’s claim for an order that property not held in the name of the deceased be designated as his notional estate.

46. It is not necessary, for the purpose of the current judgment, to explore in depth the nature or course of the personal relationship between the plaintiff and the deceased. It is sufficient to record that, for some time before the deceased’s death, there was a degree of estrangement between father and daughter, which had not always been the case.

47. Both sides of the record referred to the deceased’s autobiography, Reg Grundy (Murdoch Books, Sydney, 2010). At page 86 of that work, referring to his marriage to the first defendant and a subsequent “moving apart” of himself and the plaintiff, the deceased wrote:

“The loss of my daughter is the greatest heartbreak in my life.

I have lost a daughter and gained a wife who is the light of my life. If only the three of us could have lived happily ever after.”

48. The limited provision made for the plaintiff in the deceased’s will may reflect a perception on his part that she was unreliable in her handling of property and in need of protection. Submissions to that effect have been foreshadowed by the defendants. On the case for which the defendants contend, the deceased had reasonable grounds for disappointment with the plaintiff’s treatment of him and for shielding his property and affairs from her gaze.

49. The deceased’s will did not contemplate that the provision made for the plaintiff would be enlarged in the event that the first defendant failed to survive him by 30 days; as the first defendant is content to have recorded, the plaintiff is not one of the beneficiaries named in that part of the will (Part 2) which she seeks to have suppressed.

50. On the case for which the plaintiff contends, a comparison between the provision made for her (the only child of the deceased) in the will of the deceased and the large provision made in Part 2 of the will for persons unrelated to the deceased, and for causes favoured by him, bears upon an assessment of what is “proper” provision for her.

51. The nature, extent, value and whereabouts of property owned or controlled by the deceased at the time of his death is the subject of ongoing controversy in large part because the first defendant has made disclosures, or concessions, only reluctantly and when confronted with facts independently established by the plaintiff. Concessions made to the plaintiff during the course of the proceedings have been made, at least in part, to forestall further inquiries.

52. As late as 8 May 2017, just over a year after the death of the deceased and after these proceedings had been commenced, the first defendant continued her refusal to provide the plaintiff with a copy of her father’s will. On that date I made a formal notation to the following effect:

“NOTE that the [first] defendant declines to provide to the plaintiff, on any basis, a copy of the will of the deceased (Reginald Roy Grundy) who died on 6 May 2016 in Bermuda.”

53. Not until after the plaintiff (with the benefit of the Court’s subpoena processes) proved otherwise, did the first defendant’s lawyers depart from a mantra that the deceased died without assets. Assertions to that effect were made by the first defendant’s Bermuda lawyers in letters respectively dated 12 August 2016, 12 April 2017 and 25 April 2017.

54. Their letter dated 12 August 2016 addressed to the plaintiff’s solicitors included the following passage (with emphasis added):

“Dr Grundy’s Last Will provided for an annuity to your client of $250,000 during her lifetime free of all taxes and duties . Dr Grundy left the remainder of his estate to Mrs Grundy absolutely. However, Dr Grundy died without any assets in his sole name, so that his estate owned no assets upon death. Therefore, Dr Grundy‘s Last Will will not be submitted for probate in the Supreme Court of Bermuda. Accordingly, under Bermuda law the provisions of Dr Grundy‘s Last Will are not capable of being carried out; although Mrs Grundy has made the necessary arrangements since her husband’s death to continue the $250,000 allowance given to your client during Dr Grundy’s lifetime.”

55. By a letter dated 6 April 2017 the plaintiff’s solicitors provided to the first defendant’s solicitors a copy of the Court’s Practice Note SC Eq 7 and drew attention, particularly, to paragraph 9.1. They requested that the first defendant provide them with the information identified in that paragraph, noting that she would be required to provide that information in the form of an administrator’s affidavit once family provision proceedings had been commenced.

56. The first defendant’s solicitors responded by a letter dated 12 April 2017 which included the following (with emphasis added):

“Dr Grundy died domiciled in Bermuda, leaving a will governed by Bermuda law, and having no assets either in New South Wales or elsewhere.

In those circumstances, we do not consider that the law of New South Wales applies to, or that the Courts in New South Wales have any jurisdiction in respect of his Will or his estate. For that reason, we decline your requests.

We have no instructions to accept service of documents on behalf of our client.”

57. By a letter dated 20 April 2017 addressed to the first defendant’s Bermuda lawyers, the plaintiff’s solicitors noted the Bermuda lawyers’ statement that the deceased died having no assets in New South Wales or elsewhere and invited them to address the question of notional estate, both generally and by specific reference to particular items of property located in New South Wales which the plaintiff contends constitutes notional estate.

58. By a letter dated 25 April 2017 the first defendant’s Bermuda lawyers responded in terms that included the following observations (with emphasis added):

“As ought to have been clear from our letter of 12 April 2017:

(a) Dr Grundy died domiciled in Bermuda and left no estate whether in Bermuda or elsewhere;

(b) the law of New South Wales is irrelevant and the Courts of New South Wales have no jurisdiction;

(c) we do not now have, and nor will we be seeking, any instructions to accept service of any misconceived proceedings that your client should care to issue in New South Wales.

With regard to your comments regarding ‘notional estate’, we are instructed that your factual assertions about the ownership of property in New South Wales by Dr Grundy and our client are wrong. Put simply, we are instructed that there is no ‘notional estate’ even if, which is denied, that concept had any relevance. In the circumstances we have no instructions to provide you either with a copy of the will of Dr Grundy or the undertaking [about disposal of property in New South Wales] that you seek.

Please note that the failure to deal with any particular point in your correspondence ought not to be construed as acceptance. It is denied that your client has any cause of action.”

59. On 28 April 2017 senior counsel for the plaintiff appeared before Slattery J as Duty Judge. His Honour granted the plaintiff leave to file her summons in court, made orders providing for service of court process on the first defendant and granted the plaintiff leave to serve subpoenas on nominated entities.

60. Those subpoenas, and others subsequently issued, provided the plaintiff with evidence to refute the first defendant’s assertions that the deceased died without property in NSW and without any prospect of property in NSW being designated as notional estate.

61. As late as 5 June 2017 the first defendant deposed (in paragraph 3 of her affidavit sworn on that date) that the deceased owned no assets of significant value at the time of his death.

62. Via a notice to produce dated 16 June 2017 addressed to the first defendant (the same date upon which the first defendant entered an unconditional appearance in the proceedings), the plaintiff also discovered that on 1 May 2017 (three days after the commencement of the proceedings), the first defendant and her advisers held a meeting in Sydney vesting assets of “The Grundy Trust” (of which, until she was removed in 2004, the plaintiff was a beneficiary) in favour of the first defendant .

63. The minutes of a meeting of directors of RG Nominees Pty Limited ACN 000 767 706 – the trustee of the Grundy Trust – held on 1 May 2017 record the following as the only business transacted at the meeting (with editorial adaptation):

“Vesting of the Grundy Trust

Pursuant to the power vested in the Company as Trustee of the Trust by clause 19 of the Trust Deed establishing the Trust to declare the distribution date of the Trust at such time as the Trustee in its absolute discretion determines it was resolved that the Trust be determined and that all the assets of the Trust be distributed to [the first defendant] being one of the eligible beneficiaries referred to in clause 16 [of the Trust Deed]….

This resolution has been made having regard to the fact that [the first defendant] is the last living beneficiary under the Trust and the directors regard it as important to settle the Trust on her while she is alive otherwise there is no living beneficiary.

The directors also had regard to the fact that it was the express wish of [the deceased] that on his death [the first defendant] should receive the benefit of the assets of this trust. Tabled at the meeting was a copy of the Memorandum of Wishes of [the deceased].

It was also resolved that the directors be authorised to execute such documents and to do all things as are required to transfer the assets of the Trust to the name of [the first defendant].”

64. The “Memorandum of Wishes” referred to in the minutes was signed by the deceased and dated 26 February 2001. It was in the following terms:

“This is a Memorandum of Wishes to RG Nominees Pty Limited as Trustee of The Grundy Trust.

I am aware that the beneficiaries of the above trust include my wife Joy [the first defendant] and my daughter Robin [the plaintiff].

I am further aware that the underlying assets of the trust largely comprise real estate. It is my expectation that after my death the whole of this real estate be for the benefit of my wife Joy absolutely. Indeed were it not for professional advice that the transfer at this time of the relevant real estate would give rise to serious tax and stamp duty consequences, I would be discussing with you the winding-up of the Grundy Trust and the distribution of the said real estate to Joy and myself.

With that in mind I express the wish that on my death the Trustee in conjunction with Joy reconsider winding-up the trust and transferring the properties to her so that she may sell them.

I fully realise that this memorandum is of no legal effect.”

65. The defendants concede that property the subject of The Grundy Trust, now vested in favour of the first defendant, is available for designation as notional estate of the deceased. It is said to have a value of approximately $1.9 million.

66. Upon a review of financial statements of RG Properties (Australia) Pty Limited (now the third defendant in these proceedings), The Grundy Trust and RG Nominees Pty Limited obtained on subpoena, the plaintiff established (as the first defendant now concedes) that the deceased died leaving as property in NSW debts owed to him totalling $317,280.00. Those debts comprise the following, in each case referable to a loan made by the deceased:

1. a sum of $298,499.00 owed by the third defendant.

2. a sum of $18,744.00 owed by The Grundy Trust.

3. a sum of $37.00 owed by RG Nominees Pty Limited.

67. During his lifetime the deceased and the first defendant were, and were publicly known as, collectors of art sometimes described as “The Grundy Collection” or more specifically by reference to their personal names.

68. On 26 June 2013 several works “from the Collection of Reg Grundy AC OBE and Joy Chambers-Grundy” were sold by public auction in Sydney, realising net proceeds of sale totalling $19,268,066 .61, which was transferred to Monaco between July-October 2013.

69. The defendants contend that the artwork the subject of the sale was owned by the second defendant, a company of which the first defendant is currently the sole shareholder and director.

70. In support of a contention that the deceased had a personal ownership interest in the art the subject of sale, the plaintiff adduced in evidence the auction brochure. Prima facie, it is capable of supporting an inference that the art was owned by the deceased and the first defendant personally. Accordingly, the plaintiff contends that the proceeds of sale should be the subject of a designation as notional estate of the deceased. This aspect of the plaintiff’s case is contested by the defendants.

71. Other artwork, which might for convenience be described as part of “The Grundy Collection”, ownership of which the defendants attribute to the second defendant, is stored at a property known as “Comfort Hill” located at Sutton Forest in the Southern Highlands of New South Wales. That artwork is estimated by the first defendant to have a value of the order of $18,620,350. The plaintiff claims it as part of the deceased’s notional estate. As has been formally recorded in notations made by the Court during the course of the proceedings (and in paragraph 10 of an affidavit sworn by the first defendant on 5 June 2017, confirmed in paragraph 14 of another affidavit sworn by her on 30 October 2017), the defendants are prepared to submit to a designation of it as notional estate

67. On 16 June 2017 (on which date Artworld Limited was joined as a second defendant in the proceedings) a formal notation (numbered 9 in the orders and notations made by the Court on that date) was made in the following terms:

“NOTE that the defendants consent to the artwork owned by Artworld Limited and situated in New South Wales being treated in these proceedings, to the extent necessary to satisfy any family provision order which the Court might see fit to make in favour of the plaintiff under section 63(1) and section 80 of the Succession Act 2006 NSW, as though it were notational estate within the meaning of section 63(5) of the Act.”

73. That notation was preceded on 26 May 2017 by a personal undertaking, and followed on 30 June 2017 by undertakings given to the Court, designed to preserve the artwork, for the purpose of the proceedings, pending further notice.

74. The plaintiff also claims as property available for designation as notional estate of the deceased two parcels of land purchased in the name of the third defendant; namely:

1. the property known as “Comfort Hill”, purchased on 27 April 2007 for $15 million; and

2. a property known as “Whitehorse Inn”, located at Berrima in the Southern Highlands of New South Wales, purchased on 9 August 2012 for $1.43 million.

75. The current value of these properties is not presently the subject of evidence. The plaintiff seeks directions for such evidence to be prepared.

76. The defendants contest the plaintiff’s contention that the land is available for designation as notional estate. They oppose the plaintiff’s application for an order that the first defendant file and serve valuation evidence referable to the land, but they agree that the plaintiff should have reasonable access to the land for the purpose of preparation of valuation evidence on her own account.

77. In any event, the defendants contend that it is neither necessary nor appropriate for the proper determination of the plaintiff’s claim for family provision relief to go beyond the availability to the Court, for disposition of that claim of a “fund” of approximately $20 million comprising:

1. an actual estate of $317,280.00, represented by debts owed to the deceased;

2. $18,620,350.00 or thereabouts, representing artwork which the defendants have agreed to make available for designation as notional estate; and

3. $1.9 million (from the Grundy Trust) potentially available for designation as notional estate.

78. Drawing upon Lemon v Mead [2017] WASCA 215 (22 November 2017) as what is said (over the opposition of the plaintiff) to be a comparable case, the defendants contend that there is no realistic prospect that the plaintiff’s family provision claim will succeed beyond the limits of that $20 million “fund”. In that case the WA Court of Appeal reduced from $25 million to $6.142 million an award of family provision relief made in favour of an estranged adult daughter of a deceased father whose estate was agreed to have been in excess of $1 billion, with about $45.3 million of that estate undistributed at the time of the hearing of the proceedings at first instance.

79. The plaintiff contests the comparability (and, if need be, the correctness) of the Court of Appeal’s decision. She points to differences in the terminology of the WA and NSW legislation. She observes that the WA decision does not deal with interlocutory concerns about disclosure of estate information, the focus of dispute in the present proceedings. She contends that the Court of Appeal did not correctly address the “advancement in life” element of decision-making under section 59 of the NSW Succession Act, said to be an important point of distinction for the purpose of the present proceedings. Ultimately, she contends that the Court of Appeal erred in substituting for the statutory test to be applied by it an assessment of whether the claimant for relief before it had been “provided with a capital sum which is likely to ensure her financial security for the remainder of her life”: [2017] WASCA 215 at [193] and [245]. This error, she contends, involves an impermissible gloss on the legislation to be applied, and (with due regard to Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89 at 151-152[135]) sufficient justification for a NSW judge to decline to follow the Court of Appeal’s judgment . An application for special leave to appeal to the High Court of Australia from the Court of Appeal’s judgment has yet to be determined.

80. A controversy about whether there is any utility in the plaintiff being provided with information about the deceased’s financial affairs beyond the information currently available to her lies at the heart of competing notices of motion filed by the parties (in the case of the plaintiff, on 27 October 2017 and, in the case of the defendants, on 31 October 2017) as a means of crystallising interlocutory disputation which both sides of the record perceive as an impediment to progress towards a mediation of the principal proceedings.

81. For the purpose of these proceedings the defendants concede that, at the time of his death, the deceased’s estate (wherever situated) had a net value of about $214 million. They don’t deny that it may have been a higher figure, but they contend that it is neither necessary nor appropriate to inquire further.

82. The figure of $214 million represents an approximation of the total amount of specific legacies for which Part 2 of the deceased’s will provided in the event (which, plainly, did not occur) that the first defendant did not survive him by 30 days. The defendants invite the Court to infer that, having made provision for specific legacies of that order, the deceased was possessed of property sufficient to cover them.

83. The artificiality of that process of reasoning is reinforced by information in the public domain (in particular, “the BRW Rich List” published by Fairfax Media Limited) suggesting that in 2015 the deceased was possessed of wealth worth $809 million.

84. The parties are on opposite sides of a contest about whether any (and, if so, what) interlocutory procedures should be deployed to enable the plaintiff to have the first defendant verifiably confirm, or herself (the plaintiff) to investigate, the size and composition of the estate and notional estate of the deceased.

85. The plaintiff contends that:

1. no proper determination of a family provision application can be made unless and until the parties place before the Court sufficient evidence of the fund available from the deceased’s estate, and notional estate, after payment of funeral, testamentary and administration expenses, debts and costs: King v Foster [1995] NSWCA 240.

2. the overall size of the deceased’s wealth necessarily informs a determination of what, if any, provision is (within the meaning of section 59 of the Succession Act) “proper” for the plaintiff: Wentworth v Wentworth (1995) 37 NSWLR 703 at 737B-D.

3. a requirement that the nature and extent of the deceased’s estate, and notional estate, be disclosed is reinforced by:

1. the terms of the Succession Act, section 60(2)(c); and

2. an order (numbered 15) made by the Court on 16 June 2017, in the ordinary course, for the defendants to file and serve no later than 25 September 2017 “All documents required by paragraph 9 of [Practice Note SC Eq 7] insofar as they have not already been filed and served.”

86. On 30 October 2017 the first defendant swore an affidavit responsive to paragraph 9.1 of the Practice Note which (in elaboration of an affidavit sworn by her on 29 September 2017) identified property which she concedes is, or may be, amendable to a family provision order; provides general information about “overseas assets” held by the deceased and herself within various corporate and trust structures; and records a concession which is central to the parties’ current, interlocutory disputation.

87. With emphasis added and editorial adaptation, paragraphs 11 - 14 of the first defendant’s affidavit sworn 30 October 2017 are in the following terms:

“[11]   The deceased and I jointly owned our home in Bermuda… which passed to me by survivorship on his death.

[12]   I am informed by [Susan Therese MacIntosh] and believe that the task of identifying and analysing the nature and extent of any control which the deceased may have had over each of the companies and trusts which have been involved in the carrying on of the deceased and my businesses and investments over the past four years, and the transactions in which they were engaged during that period, would be extremely complex, time-consuming and costly. I have not given consideration to whether interests or involvement in any of those companies and trusts might be the subject of any prescribed transaction or relevant property transaction for the purposes of the Succession Act because I believe that the Court has no jurisdiction to make orders designating any of the deceased’s interests in companies and trusts outside New South Wales - or the property in paragraph 11 above - as ‘notional estate’.

[13]   I acknowledge that, had I died before the deceased, then on his death the executors of his estate would have sought Probate of his Will in Bermuda and would have been able to realise sufficient monies from what would then have been the assets in his estate overseas to pay the legacies in Part 2 of his last Will, which total $AUD 214m. However I believe that the value of the only actual estate of the deceased in New South Wales is $317,280.00, and the value of the only potential notional estate in New South Wales is $1,933,947.00….

[14]   Notwithstanding this I am the sole shareholder and director of the second defendant which owns artwork located in New South Wales valued at approximately $18.6m …. The second defendant and I have consented to that artwork being treated as though it were ‘notional estate’ in the proceedings should the Court consider that an Order for provision should be made for the plaintiff which cannot be satisfied out of the actual and any deemed notional estate….”

88. The extent to which the first defendant has endeavoured to comply with the requirements of paragraph 9.1 of the Practice Note is, at least in part, a function of her belief that property holdings, and property transactions effected, outside Australia are not relevant to any decision to be made by the Court about whether to make a family provision order in favour of the plaintiff affecting property in NSW.

89. The first defendant’s disclosure affidavits are supported by affidavits verified by Susan Therese MacIntosh and Kerry McGinley Wright. Ms Macintosh is, by profession, a chartered accountant. Mr Wright is, by profession, a solicitor. Their respective affidavits demonstrate that both have had an intimate involvement in management of the deceased’s affairs over many years, an involvement which has included familiarity with personal relationships within the Grundy family.

90. With editorial adaptation, paragraphs 7 and 8 of an affidavit sworn by Ms MacIntosh on 30 October 2017 are in the following terms:

[7]   I believe that at all times since [the deceased] made his last Will on January 2011 [sic], the only companies involved in the businesses and investments in which he may have had an interest were those [identified in earlier paragraphs of the affidavit]. Those companies have conducted a variety of business and investment activities in their own right or, in the case of some of the overseas companies, were beneficiaries of various trust structures which were established under the laws of the countries in which they were incorporated: none of the trusts were established in New South Wales. None of the companies [identified in the affidavit as incorporated in NSW and involved in businesses and investments of the deceased and the first defendant within NSW] operated through a trust.

[8]   At various times [the deceased] was a director of overseas companies referred to [in earlier paragraphs of the affidavit. The first defendant] was also a director of the companies at various times. Identifying and analysing the nature and extent of any control [the deceased] might have had over each of those companies and trusts and the transactions in which they were engaged during the three years before he died would be complex, time-consuming and costly, particularly since all of the records are located overseas…. [There] are a large number of companies and trusts involved, which have carried on businesses and/or maintained investments of many different types and in many different locations, and have been required to comply with many different systems of laws which applied in those locations. I believe that there would be a substantial amount of work involved in carrying out this exercise.”

91. Mr Wright’s evidence is not inconsistent with these observations.

92. The defendants contend that the first defendant should be relieved of any obligation to make disclosures about the size, composition, value and whereabouts of the estate, or notional estate, of the deceased beyond disclosures already made (and the plaintiff should be precluded from ongoing pursuit of discovery processes designed further to investigate those subjects) because:

1. the Court should be satisfied that there has been adequate disclosure of property left by the deceased in NSW, whether actual property or property capable of being designated as notional estate of the deceased.

2. where (as in the present proceedings) the Court can only make family provision orders in relation to property in NSW, and there are no persons other than the plaintiff competing with the plaintiff for provision out of the estate or notional estate of the deceased, property outside NSW is irrelevant.

3. by reason of evidence already available, or concessions made by the defendants, in these proceedings the plaintiff has available to her for satisfaction of any family provision order made in her favour a fund of property with a total value of approximately $20 million.

4. that fund is larger than any entitlement to family provision relief that the plaintiff is reasonably likely to be able to prove.

5. whether the deceased’s “estate” is worth $214 million, $809 million or anything of the like is irrelevant because (as confirmed by Lemon v Mead [2017] WASCA 215) the Court must determine the plaintiff’s claim for provision by concentrating on her position (in particular, any “need” she might objectively have), not the size of the estate beyond a reasonable assessment of her needs or considerations of fairness in distribution of the estate between beneficiaries of the deceased.

6. the case management principles found in sections 56-58 of the Civil Procedure Act 2005 NSW mandate that, focusing upon a need “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, the Court should relieve the first defendant of any requirement for further compliance with paragraph 9.1 of Practice Note SC Eq 7.

7. having regard to the requirements of Practice Note SC Eq 11 (entitled “Disclosure in the Equity Division”), the Court should not permit the plaintiff to use the compulsory discovery processes of the Court to obtain documentation from the first defendant, advisers to the first defendant or Fairfax Media Limited (the publisher of the BWR Rich List) sought in her notice of motion.

8. any insistence that the defendants provide the information sought by the plaintiff would be oppressive.

93. So far as is presently material, Practice Note SC Eq 11 is in the following terms:

“Purpose.

3. This practice note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real questions in dispute in the proceedings.

Disclosure

4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.

6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out:

(a) the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

(b) the classes of documents in respect of which disclosure is sought; and

(c) the likely cost of such disclosure.

Costs

7. The Court may impose a limit on the amount of recoverable costs in respect of disclosure.”

CONSIDERATION : DISCLOSURE OF ESTATE PROPERTY INFORMATION

94. The Court has jurisdiction to make a family provision order on the application of the plaintiff because:

1. section 64 of the Succession Act 2006 (read with the Interpretation Act 1987 NSW, section 31(2)(a), and Hitchcock v Pratt (2010) 79 NSWLR 687 at [7], [19]-[20] and [45]) confers jurisdiction on the Court to make a family provision order affecting succession to movable property in NSW of a testator who has died domiciled elsewhere.

2. sections 63(5), 64, 65(2)(c), 66(1)(a), 73(2), 78, 88 and 89(3) of the Succession Act 2006 (read with Hitchcock v Pratt at [19]-[21]; Re Estate of Thiess [1994] ACL Rep 395 NSW 7; Nygh’s Conflict of Laws (9th ed), paragraph [38.47]) confer jurisdiction on the Court to make a family provision order affecting succession to property in NSW able to be designated, and in due course designated, as notional estate.

3. as has been conceded, there is located in NSW both actual estate and property able to be designated as notional estate of the deceased.

95. The true value of the estate of the deceased person in respect of whom an application for family provision relief is made is a matter of fundamental importance in every family provision application: Blore v Lang (1960) 184 CLR 124 at 138.

96. The words “adequate” and “proper” in section 59 (of the Succession Act 2006) must always be relative to the facts of the particular case: Scale’s Case (1962) 107 CLR 9 at 19.

97. In every family provision case the Court must endeavour to place itself in the position of the deceased person, and to consider what he or she ought to have done in all the circumstances of the case, treating the deceased for that purpose as wise and just, rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409 at [40] and [139]), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656).

98. It follows from this that, deciding what family provision (or costs) orders, if any, should be made affecting property in NSW, the Court is entitled to take into account assets beyond the reach of its jurisdiction which inform the extent to which eligible persons, beneficiaries and others having claims on the deceased’s testamentary bounty have and will receive provision: Taylor v Farrugia [2009] NSWSC 801 at [26], [70] and [74]; In the Estate of Turnbull [1975] 2 NSWLR 360 at 367C-D.

99. Adopting the perspective of the deceased, the Court cannot exclude from rational consideration as “irrelevant” knowledge of facts known to, or eminently knowable by, the deceased. There is no logical justification for embracing a notion that forensic knowledge of a deceased person’s wealth, or other personal circumstances, depends on whether it does or does not warrant characterisation as “local”. Nor should the Court artificially constrain an exercise of its jurisdiction by characterising as irrelevant evidence about “foreign” facts which, but for considerations of geography, would be regarded as probative of facts material to a decision to be made by the Court.

100. This conclusion is consistent with, if not reinforced by, the terms of section 60(2)(c) of the Succession Act 2006, which authorises the Court to consider, inter alia, “the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person)”.

95. An executor has a duty, in family provision proceedings, to assist the Court in identifying as fully and early as possible the actual and notional estate of the deceased person the subject of the proceedings, the condition and value of the estate at the date of trial, and the exact burden of the costs order likely to fall on the estate: Fiorentini v O’Neil [1998] NSWCA 79 at pp 5-6.

96. That duty has been reinforced in these proceedings by an order of the Court (on 16 June 2017) that the first defendant (to whom a grant of probate in common form is to be made) file an “administrator’s affidavit” complying with paragraph 9.1 of Practice Note SC Eq 7, with which order the first defendant has partly complied.

97. An application for family provision relief is not immune from an application (under rule 13.4 of the Uniform Civil Procedure Rules 2005 NSW or the inherent jurisdiction of the Court) that it be summarily dismissed. However, the character of a family provision claim is such as to require particular caution to be exercised by the Court before an order for summary dismissal can be made: Warren McKnight (1996) 40 NSWLR 390 at 396; El-Zaouk v Draybi [2010] NSWSC 1001 at [16]-[25], [28] and [32]; Wolff v Deavin [2012] NSWSC 1315 at [35]-[38].

98. Where a family provision claim has not been made within the time limit prescribed by the Succession Act 2006 NSW, section 58 (or perhaps where the claimant is required by section 59(1)(b) of the Act to satisfy the Court that there are factors which warrant the making of the claim) the nature of the claim might lend itself more readily to an application for summary dismissal than a case unconstrained by sections 58 and 59(1)(b). Be that as it may, the discretionary, evaluative decision-making required of the Court under section 59 of the Act, taking into account the facts known to the Court at the time of decision, is such as to counsel caution against an order for summary dismissal. The caselaw noted in the preceding paragraph demonstrates a consciousness of a need to ensure that, before a family provision claim is determined, the claimant has had a reasonable opportunity to place his or her evidence before the Court with the benefit of discovery directed to the topics identified in paragraph 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7 or access to the records of the executor or administrator of the estate the subject of the claim.

99. In the current proceedings the plaintiff made her claim for family provision relief within time. As the deceased’s daughter she has clear standing, as an eligible person, to make her claim, and she is not required to establish “factors warranting” its making. A primary focus for attention is clearly on the relative concepts of “adequate” and “proper” in the context of the criteria for which sections 59(1)(c) and 59(2) provide, in the broader context of the Succession Act, including section 60 and the provisions governing a designation of notional estate.

100. The case management principles embodied in sections 56-60 of the Civil Procedure Act 2005 NSW require the Court (in its facilitation of the just, quick and cheap resolution of real issues in proceedings) to have regard, inter alia, to what is required for the just determination of the proceedings (section 57(1)(a)) and to seek to act in accordance with the dictates of justice (section 58).

101. The plaintiff contends that her claim for family provision relief cannot be justly determined unless she has a reasonable opportunity to place before the Court (with the benefit of access to records controlled by the first defendant) evidence as to the full amplitude of resources available to the deceased.

102. In the absence of a transparent, full disclosure of the deceased’s affairs by the first defendant, the plaintiff (not unreasonably) does not accept that the only property amenable to a family provision order in her favour is that now conceded by the defendants to be available. The plaintiff’s experience of misplaced reluctance on the part of the first defendant to provide basic information about the deceased’s estate (including provision of a copy of his will), and false assurances emanating from the first defendant’s camp about the unavailability of property amenable to family provision orders of the Court, have understandably engendered suspicions about the reliability of representations made by or on behalf of the first defendant about the nature and availability of property generally.

103. In any event, the plaintiff seeks to contend that the size and nature of the estate and notional estate of the deceased (wherever situate) is such that she has an arguable claim – contested by the defendants – to the whole of the property thus far identified as amenable to a family provision order.

104. If the Court were to be satisfied that the only property amenable to a family provision order is a particular, defined fund (and if the first defendant were to concede that an order should be made for the whole of that fund to be provided to the plaintiff) it could reasonably be said that knowledge of property beyond the jurisdictional limits of the Court is irrelevant. But that is not the case here. Even if the defendants are correct in their contention that the property susceptible to a family provision order is limited to the $20 million fund they have identified, the Court cannot ignore the fact that they contend that the plaintiff cannot properly be given the benefit of the whole of that fund. There is a live contest as to how much, if anything, of the identified fund can, and should, be the subject of a family provision order in favour of the plaintiff.

105. If the property under the control of the deceased at the time of his death, or disposed of in anticipation of death, had a total value of $809 million or thereabouts, the plaintiff proposes to contend that an estate of that size warrants a significantly more favourable view of her claim on the bounty of the deceased than if his estate and notional estate were (as the defendants invite the Court to assume) worth no more than $214 million or thereabouts.

106. There may well be a diminishing marginal utility in steps taken to compel the first defendant, and others, to disclose wealth of the deceased beyond the value of $214 million, or some other figure (and, accordingly, a limit to what is reasonable to insist upon being disclosed); but a distinct possibility, assessed on reasonable grounds, that the deceased may have enjoyed wealth of the order of $809 million (not merely $214 million) cannot fairly be ignored.

107. In the absence of full disclosure of the property available to the deceased, it is not unreasonable for the plaintiff to seek to establish with greater certainty the nature, location and full extent of the deceased’s estate and notional estate. A difference of $1 million here or there in the valuation of a large estate might not affect an assessment of the plaintiff’s case. A difference of half a billion dollars might have greater significance.

108. The potential availability to a claimant for family provision relief of a large estate, unqualified by competing claims upon it by any living person, may have a gravitational pull on the size of an award of family provision relief, beyond the bare notion of the claimant’s “need” for relief (Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 at [29]-[32]), even if (as illustrated by Estate Hemmes; Cameron v Mead [2018] NSWSC 85) respect for the testamentary intentions of the deceased operates as a restraint upon the amount of provision deemed “proper” to award. In a large estate a “proper” provision for maintenance, education or advancement of an eligible person may (but will not necessarily) far outweigh what is necessary for his or her “adequate” maintenance, education or advancement: Wentworth v Wentworth (1995) 37 NSWLR 703 at 737.

109. The case sought to be made by the plaintiff cannot, in effect, be summarily dismissed by denial to her of a reasonable opportunity for discovery of information bearing upon the value and nature of the deceased’s property, or by relieving the first defendant of the obligation of disclosure ordinarily defined by reference to paragraph 9 .1(b)-(f) and (h)(iv) of Practice Note SC Eq 7.

110. It is not necessary for me, at this interlocutory stage of the proceedings, to form a concluded view about the comparability or correctness of the judgment of the WA Court of Appeal in Lemon v Mead [2017] WASC 215. It is sufficient for me to record that, in my opinion, the cases advanced by the plaintiff and the defendants respectively by reference to that judgment are reasonably open.

111. A trial judge might well in due course conclude that the defendants are correct in their basic contention that, whether the deceased’s estate and notional estate are attributed a total value of not more than $214 million or brought into account at a value four times that amount, any grant of family provision relief made in favour of the plaintiff cannot reasonably exceed the “fund” of about $20 million which the defendants have identified as available to abide the Court’s orders. A trial judge might also, in due course, agree with the defendants’ contention (currently supported by calculations verified in a solicitor’s affidavit sworn 29 September 2017) that any reasonable quantification of the plaintiff’s currently expressed “needs” for provision from the estate, or notional estate, of the deceased must come in under $20 million, and she should not be permitted to inflate her aspirations in line with disclosures of available resources.

112. Nevertheless, in my opinion it is not appropriate, by limitation of information available to the plaintiff about the size and composition of the estate and notional estate of the deceased, in effect to shut the plaintiff out from advancing at a final hearing a case that a substantial difference in the value of the deceased’s “estate” calls for an award of family provision relief responsive (if not proportionate) to the size of that “estate”, not limited to an absolute amount notionally directed only to provision to her of “financial security”.

113. What is “proper” maintenance for a person eligible to apply for a family provision order is, it must be remembered, relative to the facts of the particular case, one of which facts is the size of the estate. The Court should not, by pre-emptive interlocutory orders, constrain due consideration of what is “proper” maintenance for the plaintiff. A finding about what is “proper”, relative to the facts of the particular case, must await an evaluative judgement made after a final hearing – conducted after the plaintiff has had a reasonable opportunity to present evidence with the benefit of a reasonable amount of information about the full amplitude of resources available to the deceased.

114. Any entitlement the plaintiff has to information about the size and composition of the estate and notional estate of the deceased (and any obligation which the first defendant has as administrator of the deceased’s estate to provide such information) must be qualified by considerations of reasonableness, measured against the purpose for which such information is required. Of particular importance in the current proceedings is reliable, verifiable information bearing upon the nature and size of the deceased’s estate and notional estate, and upon whether any (and, if so, what) property is or may be amenable to an order for family provision relief.

115. In the absence of reasonable grounds for a dispensation from the ordinary disclosure obligations of the administrator of a deceased estate, the first defendant, as administrator of the deceased’s estate, is required to make disclosures about his property, and property transactions, outside NSW even though the jurisdiction of the Court to make a family provision order in favour of the plaintiff is limited to property in NSW.

116. It is not necessary, in the current judgment, to explore the limits of what is “reasonable” or to do so by reference to the different criteria which, from time to time, have governed the Court’s discovery procedures (eg, Compagnie Financiere v Peruvian Guano Co. (1882) 11 QBD 55 at 62 in former times) or steps involved in obtaining documentation via a subpoena or notice to produce (eg, National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 at 381 et seq). Whatever might be the precise limits of disclosures that might be required of an administrator, an administrator does have an obligation to make disclosures about the estate and notional estate of the deceased person whose affairs he or she is charged with administering; a claimant for family provision relief generally requires information from the administrator for a just determination of his or her claim; and the Court has need of such information in order to perform its functions.

117. If family provision proceedings are to be conducted and determined in a manner that conforms to the case management principles enunciated in the Civil Procedure Act 2005 NSW, sections 56-60, allowance needs to be made for the possibility that some of the procedural norms that govern other civil proceedings (not necessarily more adversarial than family provision proceedings but, at least, proceedings in which no party is under an obligation to make disclosures such as those required of an administrator in family provision proceedings) do not necessarily apply.

118. With emphasis added, paragraph 8 of Practice Note SC Eq 7 provides context in which paragraph 9 of the Practice Note provides for the Court to make directions for the service of an administrator’s affidavit:

“8. At the first directions hearing [of a family provision application, made in proceedings commenced by summons with a return date] the Court will give directions for the purpose of making information available at the earliest practicable date so that all parties may make realistic assessment of their respective cases. The Court will also give directions to encourage the early resolution of the proceedings including by referring the matter to mediation at a suitable time. The parties are expected to confer for the purpose of providing to the Court a timetable for the preparation of the matter for this purpose.”

125. It is in this context, for example, that an administrator’s affidavit requires an administrator to provide estimates of the value of assets and liabilities of the deceased. To the extent that an estimate of value might involve an expression of opinion based upon expertise, that is something which, in another context, the Court might decline to require of a person under subpoena: eg, Application of Forsyth; re Cordova v v Phillips Roxane Laboratories Inc [1984] 2 NSWLR 327 at 334-335.

126. The orderly conduct of family provision proceedings requires purposive pragmatism here. That that is so is illustrated by paragraph 21 of Practice Note SC Eq 7, which (with emphasis added) is in the following terms:

“Proof of certain matters

21. Unless the Court orders otherwise, or reasonable notice is given that strict proof is necessary, parties may give evidence as follows:

(a)   A curbside appraisal by a real estate agent of any real property.

(b)   An estimate of the value, or a monetary amount, for the non-monetary assets of the estate other than real estate.

(c)   Internet, or other media, advertisements of the asking price of real estate.

(d)   The plaintiff’s, or beneficiary’s best estimate of costs or expenses of items the plaintiff or the beneficiary wishes to acquire.

(e)   The plaintiff’s, or the beneficiary’s, best estimate of costs or expenses of any renovation or refurbishment of property the plaintiff or the beneficiary wishes to incur;

(f)   A description by the plaintiff, or by the beneficiary, of any physical, intellectual, or mental, disability, from which it is alleged the plaintiff, or the beneficiary, or dependent of the plaintiff or beneficiary, is suffering, together with a copy of any medical, or other report, in support of the condition alleged.”

127. Paragraph 22 of Practice Note SC Eq 7 confirms that “Practice Note SC Eq 5 – Expert Evidence in the Equity Division applies [in family provision proceedings] with any necessary adaptations, if expert evidence is necessary to assist the Court”. The terms in which this is expressed are consistent with the pragmatic approach to adjectival issues which generally characterise the conduct of family provision claims.

128. Subject to orders made by the Court in management of the particular case, Practice Notes SC Eq 5, 7 and 11 (reinforced by the Civil Procedure Act 2005 NSW, section 15) provide authoritative guidance in the preparation of cases for trial. They are underwritten by broad, express powers in the Court (found, for example, in sections 61-63 of the Civil Procedure Act 2005) to give directions as to practice and procedure, the conduct of hearings and procedural irregularities.

129. There is no occasion for paragraph 9 of Practice Note SC Eq 7 or, still less, an order of the Court that an administrator’s affidavit be served, to be read down, or otherwise qualified, by reference to Practice Note SC Eq 11. Whatever questions might be in dispute in family provision proceedings, the information which paragraph 9 of Practice Note SC Eq 7 anticipates will ordinarily be made available by the administrator of an estate, to a claimant for family provision relief and to the Court, is information which generally lies peculiarly within the knowledge of the administrator or is information which the administrator is best placed to ascertain without undue cost or delay.

130. Practice Note SC Eq 7 is designed to accommodate a specific form of proceeding (under Chapter 3 of the Succession Act) ordinarily case managed in a specialist list of the Court (the Family Provision List) or by reference to procedural norms governing the conduct of business in that list.

131. I am not satisfied that imposition on the first defendant of a requirement that she comply fully with Practice Note SC Eq 7 would be oppressive of her, or otherwise unreasonable. She has long had notice of paragraph 9.1 of the Practice Note, with ample forewarning and opportunity to collate the information now required of her. She has long had personal involvement in conduct of the business affairs of the deceased and herself. She has long had, and continues to have, access to professional advisers long familiar with those affairs. I am not persuaded that the defendants’ assertions of oppression are sufficient to render the first defendant immune from disclosure of information which at each stage of the proceedings she has, possibly for purely adversarial reasons, sought to withhold from disclosure.

132. As evidenced by paragraph 12 of her affidavit sworn 30 October 2017, the first defendant has “not given consideration” to facts relating to overseas property and transactions because of her belief that they are not relevant to any decision to be made by the Court in the principal proceedings.

133. She should be required to review her disclosure obligations afresh in light of this judgment, focusing particularly on what might be done to provide reliable, verifiable information bearing upon: (a) the nature and size of the deceased’s estate and notional estate; and (b) identification of all property that is or may be amendable to a family provision order.

134. It might be that some of the specific demands for disclosure made by the plaintiff via an application for an order for discovery or for the service of subpoenas (it must be said, in the absence of full compliance by the first defendant with the Practice Note) involve an element of oppression which might be required, in the future, to be addressed. However, the immediate focus for attention should be on securing, so far as reasonably practicable, the first defendant’s full compliance with the order made for her to provide the information identified in paragraphs 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7.

127. I propose, accordingly, to direct that such information be provided and, subject to one qualification, to defer for the time being questions about what (if any) further documentation the plaintiff should be allowed to seek by deployment of the Court’s processes for compulsory disclosure.

128. For the time being, a pause should be placed upon the plaintiff’s application for a discovery order against the first defendant and on her application for leave to issue subpoenas addressed to Kerry McGinley Wright and Susan Therese Mcintosh (as earlier noted, business associates of the first defendant, and the deceased, named as executors in the deceased’s will).

129. That said, the plaintiff should be granted leave to issue a subpoena directed to Fairfax Media Limited, the publisher of the BRW Rich List, with a view to ascertaining the information upon which an estimate of the first defendant’s wealth at $809 million was based. Such a subpoena would be directed to a discrete class of documents which, if they exist, can reasonably be assumed to be more conveniently available than the broad range of documentation which the plaintiff presently seeks to obtain from the defendants and persons perceived to be associated with the defendants.

130. I am not to be taken, by this ruling, to have decided against making an order for discovery against the first defendant, or against authorisation of the issue of subpoenas, in the terms sought in the plaintiff’s notice of motion filed 27 October 2017 or otherwise. I propose to reserve for further consideration the plaintiff’s application for such relief, pending allowance to the first defendant of a further opportunity to comply fully with the Court’s order that she serve an administrator’s affidavit compliant with paragraph 9.1 of Practice Note SC Eq 7.

131. The first defendant should be allowed that opportunity to comply with the Court’s order in light of the Court’s determination: (a) that full disclosure of information about the estate, and notional estate, of the deceased (wherever situate) is material to a just determination of the plaintiff’s family provision application; and (b) that no claimed immunity from disclosure of overseas property and property transactions is upheld.

132. In my opinion, having regard to: (i) case management principles; (ii) the nature of the particular, principal proceedings before the Court; and (iii) the Court’s determination that information regarding property of the deceased (and property transactions effected by him) are relevant to a just determination of the principal proceedings, the appropriate course is:

1. to order that, within a reasonable specified time, the first defendant serve an administrator’s affidavit complying with paragraphs 9.1(b)-(f) and (h) (iv) of Practice Note SC Eq 7 to the extent that she has not already done so.

2. to order that the first defendant be granted leave to issue a subpoena addressed to Fairfax Media Limited in the terms set forth in annexure “D” to her notice of motion filed 27 October 2017.

3. to reserve for further consideration the plaintiff’s application (made by reference to paragraphs 3 and 4(a)-(b) of that notice of motion) for compulsory production of documentation by the first defendant, Kerry McGinley Wright and Susan Therese Mcintosh.

4. to note that the defendants agree that the plaintiff should have reasonable access to the properties respectively known as “Comfort Hill” and “Whitehorse Inn” for the purpose of preparation of valuation evidence on her own account.

141. It is not necessary, at this stage, to consider whether the first defendant should be ordered to file and serve valuation evidence in relation to “Comfort Hill” and/or “Whitehorse Inn” beyond provision, in her administrator’s affidavit, of her estimate of the value of the land.

142. If the first defendant does not, without reasonable excuse, fully perform hereafter her obligation to file an administrator’s affidavit compliant with Practice Note SC Eq 7 consideration might have to be given to consequential orders, which might extend to the plaintiff’s deferred claims for relief or other forms of discovery.

143. On a review of her disclosure obligations the first defendant might well determine that prudence dictates that she anticipate, in order to meet on her own terms, the demands for information which the plaintiff has hitherto made.

144. In due course, as the parties themselves anticipate, orders should be made (if required) for the facilitation of a mediation of the principal proceedings. Whether it is now timely for an order for mediation to be made is a question upon which I propose to consult the parties in light of publication of this judgment.

CONSIDERATION : APPLICATION FOR A SUPPRESSION ORDER

145. Section 4 of the Court Suppression and Non-Publication Orders Act 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. The section provides confirmation, if confirmation be required, of the continuing operation of the Court’s power to omit from a grant of probate material which it would be an abuse of the processes of the Court to publish in a grant.

146. Section 5 of the Court Suppression and Non-Publication Orders Act confirms that the Act does not limit or otherwise affect the operation of a provision made by or under any other Act that prohibits or restricts, or authorises the Court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings. This section confirms, if confirmation be necessary, the power of the Court under section 71 of the Civil Procedure Act 2005 NSW to order that the business of the Court be conducted in the absence of the public if the presence of the public would defeat the ends of justice.

147. Section 6 of the Court Suppression and Non-Publication Orders Act 2010 NSW is the starting point for consideration of the defendants’ application for a suppression order in its mandatory requirement that the Court “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. The language of section 6 requires that the Court “take into account” the public interest in open justice as a fundamentally important consideration, recognising that (as provided for in section 8) there may be grounds for a departure from “open justice” in a particular case.

148. The word “necessary”, found in each of the grounds for which section 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 (NSW) (1986) 5 NSWLR 465 at 476-477.

149. The defendants bear the forensic onus of persuading the Court to make the order which they seek under section 7 of the Court Suppression and Non-Publication Orders Act: AD v Morrison [2013] NSWSC 625 at [15]. That must be so in a court system predicated upon an open administration of justice. The defendants seek a departure from that norm. They must justify the departure for which they contend.

150. The defendants’ application for a suppression order invokes section 7(b), not section 7(a).

151. There is no dispute between the parties that section 7(b) is broad enough to support an order that (to paraphrase the definition of “suppression order” in section 3) prohibits or restricts the disclosure of information about the terms of Part 2 of the deceased’s will, a copy of which has been provided to the Court and (on terms as to confidentiality) the legal representatives of the plaintiff for the purpose of the proceedings.

152. I am not satisfied, however, that either of the grounds relied upon by the defendants for the making of a suppression order has been made out.

153. The first ground relied upon by the defendants requires the Court to be satisfied that a suppression order is “necessary to prevent prejudice to the proper administration of justice”: section 8(1)(a).

154. The question whether a suppression order should be made is one of procedure rather than one of substance; it is directed to regulation of proceedings in the Court, not to the existence, extent or enforceability of rights or duties: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 at [97]-[99]. In the absence of evidence about the content of Bermudan law it is not a question which, upon an application of NSW law, requires the Court to defer to assertions about the law of Bermuda (assuming that Bermudan law favours non-publication of information), still less any secrecy the first defendant has been able to maintain in Bermuda by expediency in not making an application for a grant of probate there.

155. Foreign law is a question of fact which generally requires proof: Davies, Bell and Brereton (eds), Nygh’s Conflict of Laws in Australia (9th ed, 2014), paragraph [17.5] et seq; Evidence Act 1995 NSW, sections 174-75. The defendants have not placed before the Court evidence which establishes (rather than merely asserts) that, under Bermuda law, the first defendant (in any capacity) has an entitlement, or obligation, to maintain any secrecy that attaches to Part 2 of the deceased’s will.

156. Without disclosure to the Court of information about the deceased’s property, an independent assessment cannot be made of the first defendant’s contention that the nature of that property was such that the first defendant was, and would be, able to administer his estate in Bermuda without any application for, or grant of, probate in Bermuda.

157. The second ground relied upon by the defendants in support of a suppression order (articulated by reference to section 8(1)(e)) boils down, essentially, to an assertion that the first defendant (in dealing with employees), and persons named by the deceased as potential beneficiaries in Part 2 of his will, would suffer embarrassment if publication of Part 2 is not restricted to the parties to these proceedings.

158. That is how the first defendant framed her case for a suppression order in paragraphs 8-9 of an affidavit sworn by her on 5 June 2017, here reproduced with editorial adaptation:

“[8]   My husband was a very successful international businessman who worked for approximately 50 years in radio and television production and distribution. Although he never courted publicity he had a high media profile and indeed he was a household name in Australia. I am deeply concerned that there would be significant media interest in the contents of his Will and in his estate which will be heightened by the existence of, and the eventual hearing of, these proceedings. Indeed, I am informed by [a solicitor in the employ of the firm retained by the defendants] and believe that she saw photographers with cameras recording Counsel who appear for me as they left the Court building at the first Directions Hearing on 4 May 2017.

[9]    Nothing in Part 2 of my husband’s Will is relevant to the proceedings, but disclosure of the contents of Part 2 would cause significant embarrassment and distress to me; could raise expectations and/or engender extensive resentment in others, including persons who are still employed by me; would or could generate media speculation as to the contents of my will; and would further focus the spotlight of media attention on my husband, his private affairs and his private life which during his long life he specifically avoided. For these reasons I respectfully request that access to Part 2 of the Will be limited to the plaintiff’s solicitors and counsel”.

159. Even if (which is doubtful) a public interest argument based upon “embarrassment” (of any of the types here in contemplation) should be accepted, such embarrassment does not outweigh – let alone significantly outweigh – the public interest in open justice.

160. There is no suggestion of scandal, impropriety or the like attaching to the deceased or any person named in his will. The Court should be slow to infer a cause for “embarrassment” in the mere fact that a particular person, or cause, was sufficiently well regarded by the deceased to be named as a potential object of a testamentary gift.

161. As I am not satisfied that either ground relied upon by the defendants for a suppression order has been made out, their application for such an order must be dismissed.

162. Even if I were otherwise satisfied that the defendants had made out a ground for a suppression order, an impediment to the making of an order (required to be taken into account upon an exercise of the discretion for which section 7 provides, if not in the operation of section 8) is conduct of the first defendant in her active deployment of the media, in these proceedings, as part of her adversarial contest with the plaintiff. During the course of the proceedings, in the immediate aftermath of an appearance before the Court on a directions hearing (held on 23 October 2017), she gave an interview to a major media outlet (reported as an “exclusive” interview by the Daily Telegraph on 24 October 2017) to explain her case for opposition to the plaintiff’s family provision application.

163. It is no answer to say, as the first defendant says, that she refrained from any disclosure about Part 2 of the deceased’s will in giving her interview. She deliberately cultivated public fascination with the celebrity status of the deceased and herself, and with family drama attending the plaintiff’s application for family provision relief, in a manner critical of the plaintiff. Her courting of media attention renders more difficult her application to have her affairs shielded from public scrutiny that ordinarily attends proceedings in the Court.

164. In declining to make a suppression order (or to continue the operation of interlocutory suppression orders), I have given consideration to the question whether names found in Part 2 of the deceased’s will might be redacted, leaving the balance of the document prospectively, potentially in the public domain.

165. I am not satisfied that a redaction order is appropriate, or practical. At least some of the legacies for which Part 2 provides are accompanied by a statement of reasons for the grant of a legacy. A partial redaction of Part 2 would appear to lack any real utility; no order for such a redaction has been sought by any party.

166. The defendants’ reliance on the omission from Part 2 of the will of any reference to the plaintiff highlights the relevance of that part of the will to adjudication of the plaintiff’s family provision claim. The deceased was entitled to set out his priorities and preferences in his will, and the first defendant as representative of his estate is entitled to have them taken into account in opposition to the plaintiff’s claim. However, equally, absent some compelling reason to the contrary, the plaintiff is entitled to have the deceased’s priorities and preferences openly examined vis-á-vis her own claim to his bounty without being constrained in presentation of her case by a suppression order. The public interest in open justice must prevail.

CONCLUSION

167. Subject to allowing the parties an opportunity to be heard about the form of orders (including costs orders) to be made, I propose to make orders to the following effect:

1. ORDER that probate of the will dated 21 January 2011 of Reginald Roy Grundy, who died in Bermuda on 6 May 2016, be granted to the first defendant in common form.

2. ORDER that the proceedings be referred to the Registrar to complete the grant.

3. ORDER that the first defendant forthwith lodge with the Registry the original of the will dated 21 January 2011.

4. ORDER that further compliance with the Probate Rules otherwise be dispensed with.

5. ORDER that, to the extent that she has not yet done so, the first defendant, no later than 30 March 2017, file and serve an administrator’s affidavit compliant with paragraphs 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7.

6. NOTE that the defendants agree that they will allow the plaintiff, or cause her to be allowed, reasonable access to the properties respectively known as “Comfort Hill” and “Whitehorse Inn” for the purpose of preparation of evidence as to the values of those properties and each of them.

7. ORDER that the plaintiff be granted leave to issue a subpoena addressed to Fairfax Media Limited substantially in the terms set forth in an Annexure “D” to the notice of motion filed by her on 27 October 2017.

8. RESERVE for further consideration the application made by the plaintiff (for the production of documents by the first defendant, Kerry McGinley Wright and Susan Therese Mcintosh) in paragraphs 3 and 4(a)-(b) of her notice of motion filed 27 October 2017.

9. RESERVE for further consideration the application made by the plaintiff (for an order that the first defendant file and serve valuation evidence relating to “Comfort Hill” and “Whitehorse Inn”) in paragraph 2 of her notice of motion filed 27 October 2017.

10. ORDER that Orders 19 and 20 made on 16 June 2017, as varied by Orders 7 and 8 on 30 June 2017, relating to publication of Part 2 of the will dated 21 January 2011 of Reginald Roy Grundy be discharged.

11. ORDER that the defendants’ application for orders under the Court Suppression and Non-Publication Orders Act 2010 NSW (made by notices of motion filed on 29 June 2017 and 31 October 2017) be dismissed.

12. ORDER that the claims for relief made by the plaintiff in paragraphs 9 and 10 of her notice of motion filed 27 October 2017 (superseded by a grant of probate in favour of the first defendant pursuant to these orders) be dismissed.

13. ORDER that the notice of motion filed by the defendants on 31 October 2017 otherwise be dismissed.

14. ORDER that the proceedings be listed for directions on a specified date shortly after the date specified in Order 5.

15. ORDER that the defendants pay the plaintiff’s costs of:

1. the defendants’ application for a suppression order;

2. the applications otherwise made by the defendants by their notice of motion filed 31 October 2017; and

3. the plaintiff’s notice of motion filed on 27 October 2017.

16. ORDER that those costs be assessed on the ordinary basis.

17. ORDER that the plaintiff be at liberty to proceed forthwith to an assessment and enforcement of costs payable pursuant to these orders.

18. ORDER, subject to further order, that no party file or serve a subpoena or notice to produce without the prior leave of a judge of the Court.

168. The last of these proposed orders is designed not to preclude the parties from having access to the Court’s procedures for compulsory disclosure of documents, but to regulate their access to those procedures during a reasonable period to be allowed to the first defendant to file and serve an affidavit, or affidavits, fully compliant with Practice Note SC Eq 7, paragraphs 9.1(b)-(f) and (h)(i). More light, and less heat, is currently required in identification of the deceased’s property arrangements.

169. With that observation, I invite the parties’ submissions about whether, in their current state of preparedness, the proceedings are in need of, and ripe for, an order for mediation.

170. The plaintiff has been substantially successful on the applications the subject of consideration in this judgment. Prima facie, an order should be made for the costs of those applications to follow the event: UCPR rule 42.1.

171. The plaintiff seeks an order for her costs to be assessed on the indemnity basis. Prima facie, costs should be assessed on the ordinary basis, not the indemnity basis. Although the defendants have – at times, for too long - resisted the plaintiff’s applications, they cannot, on the evidence presently before the Court, fairly be said to have misconducted themselves in their opposition.

ADDENDUM – 15 February 2018

172. Having allowed the parties an opportunity to make submissions about the form of the Court’s orders and costs, Lindsay J made the following orders:

1. ORDER that probate of the will dated 21 January 2011 of Reginald Roy Grundy, who died in Bermuda on 6 May 2016, be granted to the first defendant in common form.

1. ORDER that the proceedings be referred to the Registrar to complete the grant.

2. ORDER that the first defendant forthwith lodge with the Registry the original of the will dated 21 January 2011.

3. ORDER that further compliance with the Probate Rules otherwise be dispensed with.

4. ORDER that, to the extent that she has not yet done so, the first defendant, no later than 3 April 2018, file and serve an administrator’s affidavit compliant with paragraphs 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7.

5. NOTE that the defendants agree that they will allow the plaintiff, or cause her to be allowed, reasonable access to the properties respectively known as “Comfort Hill” and “Whitehorse Inn” for the purpose of preparation of evidence as to the values of those properties and each of them.

6. ORDER that the plaintiff be granted leave to issue a subpoena addressed to Fairfax Media Limited substantially in the terms set forth in an Annexure “D” to the notice of motion filed by her on 27 October 2017.

7. RESERVE for further consideration the application made by the plaintiff (for the production of documents by the first defendant, Kerry McGinley Wright and Susan Therese Mcintosh) in paragraphs 3 and 4(a)-(b) of her notice of motion filed 27 October 2017.

8. RESERVE for further consideration the application made by the plaintiff (for an order that the first defendant file and serve valuation evidence relating to “Comfort Hill” and “Whitehorse Inn”) in paragraph 2 of her notice of motion filed 27 October 2017.

9. ORDER that Orders 19 and 20 made on 16 June 2017, as varied by Orders 7 and 8 on 30 June 2017, relating to publication of Part 2 of the will dated 21 January 2011 of Reginald Roy Grundy be discharged.

10. ORDER that the defendants’ application for orders under the Court Suppression and Non-Publication Orders Act 2010 NSW (made by notices of motion filed on 29 June 2017 and 31 October 2017) be dismissed.

11. ORDER that the claims for relief made by the plaintiff in paragraphs 9 and 10 of her notice of motion filed 27 October 2017 (superseded by a grant of probate in favour of the first defendant pursuant to these orders) be dismissed.

12. ORDER that the notice of motion filed by the defendants on 31 October 2017 otherwise be dismissed.

13. NOTE that it is agreed between the parties that, within a reasonable time of today’s date, the plaintiff will request and the defendants will supply copies of documents specifically referred to in affidavits which the defendants have foreshadowed they propose to rely upon at a final hearing.

14. ORDER that the plaintiff, no later than 9 April 2018, so far as she is reasonably able to do so, serve her affidavits in reply on all questions other than financial questions, reserving an entitlement to apply for an opportunity to file further evidence in light of any affidavit served by the first defendant pursuant to Order 5 of these orders.

15. ORDER that the parties be granted access, including photocopy access, to documents produced to the Court on subpoena by the St George Bank (being documents described within the records of the Court as Packet S17) on the following terms:

1. the plaintiff is to have first access, a right to be exercised no later than 20 February 2018; and

2. all parties are to have access thereafter.

17. RESERVE for further consideration the question whether any (and, if so, what) orders are required for a mediation.

18. ORDER that the proceedings be listed for directions before Lindsay J on 11 April 2018 at 9.30am.

19. ORDER that the defendants pay the plaintiff’s costs of:

1. the defendants’ application for a suppression order;

2. the applications otherwise made by the defendants by their notice of motion filed 31 October 2017; and

3. the plaintiff’s notice of motion filed on 27 October 2017.

20. ORDER that those costs be assessed on the ordinary basis.

21. ORDER that the plaintiff be at liberty to proceed forthwith to an assessment and enforcement of costs payable pursuant to these orders.

22. ORDER, subject to further order, that no party file or serve a subpoena or notice to produce without the prior leave of a judge of the Court.

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Amendments

15 February 2018 - corrected formatting

15 February 2018 - Addendum 15 February 2018

Para 28 "fraction" altered to "friction".

Decision last updated: 15 February 2018