Estate of Bernadette Therese Campion

[2025] NSWSC 1126

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of Bernadette Therese Campion [2025] NSWSC 1126

Hearing dates:

26 September 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Equity - Probate List

Before:

Kunc J

Decision:

Directions made for filing of amended summons in response to requisitions

Catchwords:

SUCCESSION — Probate and administration — Practice and procedure — Practice in relation to responding to requisitions

Legislation Cited:

Succession Act 2006 (NSW)

UCPR Pt 49 r 49.19

Cases Cited:

Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382

Re Estate of Max Frederick Dippert [2001] NSWSC 167

Category:

Consequential orders

Parties:

Ellen Mary Majella Campion (Plaintiff)
Germaine Carmel Hannaford (Second Plaintiff)
Adam Michael Vainauskas (Third Plaintiff)

Representation:

Counsel: T Fishburn (Estate)

Solicitors: Stephen Wawn & Associates (Estate)

File Number(s):

2024/368843

Publication restriction:

Nil

JUDGMENT

1. This morning I made directions for the filing of an amended summons in this matter to seek rectification of a will. I indicated I would publish reasons for those directions because the relisting of the matter before me today raises the issue of how requisitions in probate matters should be dealt with by applicants for probate.

2. Because it involves the practice of the Registry, I invited the Registrar in Probate to sit with me when I heard the application, not least to make the point, if it needs to be made, that the Registrars are as much exercising, within their delegation, the Court's jurisdiction as the judges. This applies to the raising of requisitions, which are the product of considerable care and skill on the part of the Registrars, and are an essential function of the Court in being able to deal with the many non-contentious probate applications filed each year (there being 30,801 uncontested applications filed last year as opposed to 465 contentious applications).

3. I also wish to make clear at the outset that none of what follows is intended to be critical of Ms T Fishburn of Counsel, who appeared today, or her instructing solicitor. I accept that, as the legal representatives of the plaintiffs, they have acted with courtesy and out of a genuine doubt as to how to proceed.

4. These proceedings concern the estate of the late Bernadette Therese Campion who published her last will on 8 April 2024. There is no issue about the validity of the will, and the plaintiffs are the named executors in the will. They have applied for probate of the will in common form.

5. The matter came before me as Duty Judge on 17 July 2025. On that occasion I appointed the plaintiffs as interim administrators and receivers of the deceased's personal and real estate, primarily in order to effect a sale of certain real estate pending the grant of probate. When my chambers were advised of a request for relisting, I assumed it was pursuant to liberty to apply that I had granted as part of the orders I had made.

6. As it turns out, Ms Fishburn properly made clear at the outset that the reason for relisting before me was more on the basis of what was said to be my familiarity with the matter. That may be appropriate in matters which a particular judge is case managing. In other matters, it often involves a generous assumption on the part of the practitioner which does not reflect the judicial reality.

7. Absent specific leave to restore to a particular judge, matters in lists such as Probate or Family Provision should be relisted in the ordinary course before the Registrar in Probate on the next directions day, or in urgent cases before the List Judge or Duty Judge.

8. The presenting issue is that two properties in the will appear to have been incorrectly described as to their street numbers. A Senior Deputy Registrar issued requisitions to the effect that the summons for probate should be amended to bring a claim for rectification under s 27 of the Succession Act 2006 (NSW). I express no view as to the outcome of any such claim. I do accept that the plaintiffs' representatives did have a reasonable doubt about the extent to which the requisition was intended to refer to one of the properties which they considered they had not been able to clarify. I have resolved that doubt and made directions for the filing of an amended summons in accordance with the requisitions.

9. It remains only to make five observations in relation to requisitions in the Probate jurisdiction, beyond the obvious point that they must be complied with as promptly as possible in the particular case. Delay in compliance is often a source of costs being unnecessarily incurred. These observations are intended to be of general application, but the Court accepts there may be exceptional cases.

10. First, I begin by recalling for completeness the only other judicial comment of which I am aware on the topic of requisitions. It appears in the judgment of Young J (as his Honour then was) in Re Estate of Max Frederick Dippert [2001] NSWSC 167 and remains applicable:

37 The first is that when the Registrar in Probate made requisitions in this estate, he was met in reply with a document from the plaintiffs' solicitors which asks for further and better particulars, that is about four pages in length. This is not the way in which the Court expects requisitions to be dealt. If a solicitor cannot understand requisitions, then he or she should get counsel's advice: he or she does not interrogate the Court.

11. Second, in Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382 I made the point that in terms of practitioners' duties, including candour and courtesy, there was no difference between physically appearing in court and being in the online court. The same applies in relation to communications with the Court in relation to requisitions. They are not casual administrative encounters.

12. Third, and without derogating from Young J's observations, common sense must still have a role to play in achieving a just, quick and cheap outcome. Where a practitioner (or self-represented applicant) is in genuine doubt about the meaning of a requisition or is of the view that there has been an obvious error or misunderstanding, a brief, courteous written inquiry to the Court for clarification is appropriate. However, once the Court has replied, if any doubt remains, counsel's advice should be sought or my fourth observation should be engaged.

13. Fourth, where the preceding paragraph does not apply, or has been exhausted, and an applicant disagrees with the requisition, the Court does not expect there to be further correspondence other than a request for reasons (if they have not already been given). The requisition is an act of a Registrar. This means that the proper course is for the dissatisfied applicant to file a motion for review of the requisition under UCPR Pt 49 r 49.19 to be dealt with by the Court in the ordinary course.

14. Fifth, if an applicant does not wish to challenge the requisition, but is of the view that in order to comply with the requisition directions are required, the matter should be listed in the usual way before the Registrar in Probate, who may make the necessary directions, or refer the matter back to the relevant Registrar or to the List Judge.

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Decision last updated: 26 September 2025