IN THE ESTATE OF GLENN JEFFREY SIMONSEN - [2023] WASC 423

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IN THE ESTATE OF GLENN JEFFREY SIMONSEN [2023] WASC 423
CORAM:   SEAWARD J
HEARD:   ON THE PAPERS
DELIVERED          :   7 NOVEMBER 2023
FILE NO/S:   PRO 2087 of 2005
BETWEEN:   Mark Simonsen
Applicant

Catchwords:

Probate - Appeal from decision of a registrar to refuse access to certain probate documents - Access to documents held by the court - Where the court has discretion to provide documents - Whether there are cogent reasons for disclosure - Whether the applicant has a legitimate purpose or interest in seeking access to the documents - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Non-Contentious Probate Rules 1967 (WA) r 3, r 5, r 43A
Rules of the Supreme Court 1971 (WA) O 67B r 16

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Applicant

No appearance

Solicitors:

Applicant

No appearance

Case(s) referred to in decision(s):

Cole v Paisley [2016] NSWSC 349
De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998)
Estate of John William Henry Nicholls (Dec) [2003] WASC 85
In The Estate Of John Gordon Hynes [2023] WASC 309
In The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 210
Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Vikas Rambal Atf The Vikas Rambal Family Trust v Pankaj Oswal Atf The Burrup Trust [2014] WASC 86

SEAWARD J:

Introduction

This is an appeal from the decision of a registrar to refuse to grant the appellant access to certain probate documents in relation to the estate of the late Glenn Jeffrey Simonsen.
For the reasons set out below, I will allow the appeal in part, and grant the appellant access to the motion dated 14 June 2005 only.

Background

The appellant applied by way of email dated 14 September 2023 to the registry seeking access to the following documents in relation to the estate of the late Glenn Jeffrey Simonsen, who died on 29 December 2004:
(a)motion;
(b)affidavit of the executor;
(c)statement of assets and liabilities; and
(d)any other document lodged in the application process.
The applicant had previously been provided with a copy of the grant of probate with the will attached. A review of the court's probate file reveals that there were no other documents lodged in the probate application process other than those already provided to the appellant and those requested by the appellant in his application.
The appellant explained that his reason for requesting a copy of the remaining documents was:
I am the brother of the above mentioned deceased person [Glenn Jeffrey Simonsen] in the above probate matter and have issue with the probate application as the copy of the will provided in the probate application refers to assets of the deceased being 5 Coffey Road, Belmont that were not his to claim and belonged to my late Mother and were fraudulently claimed as assets. I wish to lodge a claim against this estate and require copies of the above required documents in order to prepare my claim and provide relevant documentary evidence in support of this claim.
By letter dated 18 September 2023 (and sent by email on 19 September 2023), the registrar refused to grant the appellant access to the documents for the following reasons:
3.Access to probate documents is governed by the Non-Contentious Probate Rules 1967 (WA) (NCPR).
4.Rule 43A NCPR provides for certain documents to be provided on request. The Rule 9B statement can only be provided pursuant to rule 43A(d) with the leave of the Registrar. Very cogent reasons must be provided for this document to be made available for inspection by you (see De Haas v Murcia & Associates, Supreme Court of Western Australia, Templeman J, 14 September 1998 BC9805868).
5.Preparing for litigation is not a permissible reason. In any event, probate litigation is interest litigation. The will has been proved. You are not a beneficiary under the will. Probate was granted in 2005, some 18 years ago. It is not clear to me that you have any interest in this estate.
6.I am prepared to provide a copy of the death certificated as it is a document which exists independently of the probate file.
In response to this letter, the appellant wrote to the registry by email dated 20 September 2023 raising matters in response. By letter dated 21 September 2023, the associate to the registrar responded by advising the applicant of his right to appeal the decision of the registrar pursuant to r 5 of the NCPR and advising that the registrar had granted the appellant an extension of time of five days from the date of the court's letter to appeal.
The appellant then filed an appeal notice on 22 September 2023 appealing the decision of the registrar on the following grounds:
1. I appeal in regards to the decision of Registrar Griffin as noted in his letter dated 19 September 2023 concerning documents contained my late brother's probate: PRO 2087/2005
2. I am aggrieved by this decision to refuse access to the probate documents as I am a beneficiary under my late mothers will. I have been denied any inheritance under my mother's will as a result of my late brother's fraudulent actions in illegally obtaining my mother's property as his own.
3. The Public Trustee has renounced dealing with my late mother's estate as they were the nominated executor.
4. As my late brother has illegally claimed ownership of my mother's estate as his own, I do not consider that his will has been proven. I consider the relevant authorities have failed in their duty of care to preserve and maintain my late mother's estate.
5. For the purpose of transparency in the legal process I require a copy of the following:
a)Motion
b) Affidavit of executor
c) Statement of assets and liabilities
6. The requested documents will assist me with legal advice as to any recourse that I may have under the law.
The appeal notice goes on to state that the applicant requests that the decision be made on the papers.
A review of the court's probate file for the estate of Glenn Jeffrey Simonsen reveals that a grant of probate was made to Christopher Glenn Simonsen on 17 June 2005. The will (dated 2 March 2001) was extremely short, providing only for the appointment of an executor and then:
I DEVISE AND BEQUEATH the whole of my estate both real and personal and my dwelling house and land situated at and known as 5 Coffey Road Belmont ('the house property') to my son CHRISTOPHER GLENN SIMONSEN.
The file also reveals that in 2004 the appellant applied for a copy of 'probate documents'. Other correspondence reveals that the grant of probate with the will annexed was provided to the appellant.
Then, in 2005 the appellant wrote to the registry in relation to a caveat he had placed on the house property referred to in the will. It appears from the correspondence that the solicitors for the executor were indicating that they would commence steps to have that caveat removed. The appellant sought 'an order or some other injunction' to prevent the removal of the caveat. The reply from the registry to the appellant stated that the court could not act on a letter, and suggested the appellant obtain legal advice as to what avenues were available to him. It is not clear from the court's file what then occurred in relation to the caveat or the house property referred to in the will.
There is further correspondence from the appellant on the court file in 2006, in which the appellant refers to having obtained a copy of the grant of probate with the will attached, and then goes on to raise a number of concerns as to the validity of the will. The appellant then requested that the court 'look into the probate grant further'. The reply from the registry referred back to the 2005 correspondence, and advised that the court does not initiate legal proceedings and if the appellant wished to take any action to revoke the grant of probate, then he should obtain legal advice as to how that could be achieved. There is no indication from the court file of any action being taken by the appellant.
There is no further correspondence on the court file until the present application for copies of the various documents sought.

Legal principles

Appeal principles

Rule 5 of the NCPR deals with appeals from a decision of a registrar, and provides:
(1)A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.
(2) An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Registry within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.
(3) A notice of appeal shall be served on every person, other than the appellant, who appeared or was represented before the Registrar.
(4) Where a notice of appeal is required to be served, there shall be at least 2 clear days between service of the notice and the day of hearing.
An appeal to a judge from a decision of registrar pursuant to r 5 of the NCPR is by way of a hearing de novo and it is therefore not necessary for an appellant to demonstrate any error in the decision of the Registrar.[1]
[1] Estate of John William Henry Nicholls (Dec) [2003] WASC 85 [2] ‑ [14]; In The Estate Of John Gordon Hynes [2023] WASC 309 [5].
There were no other parties to the application made by the appellant to the Registrar.

NCPR and access to documents

Rule 3(1) of the NCPR provides, relevantly, that the Rules of the Supreme Court 1971 (WA) (SCR) and the general practice of the court apply, so far as may be practicable, to proceedings to which the NCPR relate, but only to the extent that the Administration Act 1903 (WA) do not provide otherwise.
In relation to access to documents, both the SCR and the NCPR contain relevant provisions.
Starting with the SCR, the regime for access to documents is contained in O 67B. The regime draws a distinction between documents held by the court in respect of a proceeding commenced on or after 1 March 2018 (addressed in div 1 ‑ 6) and a proceeding commenced before 1 March 2018 (addressed in div 7).
The term 'proceeding' is defined in O 67B r 1 as including 'any proceeding on a probate application', and the term 'probate application' is defined as:
an application for a grant, as defined in the Non-contentious Probate Rules 1976 rule 2
The regime contained in div 7 of O 67B is applicable to a person other than a party to a proceeding, who wants access to information or a record or other thing held by the court in respect of a proceeding commenced before 1 March 2018.[2] Order 67B r 16 provides as follows:
[2] O 67B r 15.
(1) Any person referred to in rule 15 is, on payment of the prescribed fee, entitled during office hours to inspect and be given a copy of any of these filed documents -
(a) any writ, and the statement of claim (if any) indorsed on the writ under Order 6 rule 3;
(b) any originating application made under the Corporations Act 2001 (Commonwealth);
(c) any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005;
(d) any judgment or order given or made in court;
(e) with the leave of the Court or a registrar, any other document.
(2)An application for leave made under subrule (1)(e) need not be served on any person.
The NCPR also provides for access to documents. Rule 43A provides as follows:
Any person shall, on payment of the prescribed fee, be entitled during office hours to search for and obtain a copy of any of the following documents filed or of record in the Registry, namely —
(a) a will or codicil that has been proved;
(b) a grant of probate or administration;
(c) an order to administer; and
(d) with the leave of the Registrar, any other document.
Rule 43A(d) of the NCPR and O 67B r 16(1)(e) of the SCR each grant the court the discretion to provide person a copy of documents not otherwise specified in the respective rules. No criteria are specified in relation to the exercise of that discretion.
The documents which are the subject of the appellant's application all fall outside of the categories of documents to which a person is entitled (upon the payment of the requisite fee) to obtain without the leave of the court, pursuant to either O 67B r 16(1)(e) of the SCR or r 43A(d) of the NCPR.
There are limited authorities regarding r 43A(d) of the NCPR. In the decision of De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates,[3] Templeman J considered an appeal from a decision of a registrar to grant Murcia & Associates access to the r 9B statement of assets and liabilities. The law firm acted for persons who were not beneficiaries but claimed an interest in the estate. The reason given by the law firm in seeking access was to put the executors on notice of their client's claim, to ensure that the assets of the estate were not dissipated prior to resolution of that claim.
[3] De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998).
The executor appealed the decision of the registrar and the law firm did not appear at the appeal. Templeman J noted that no criteria were specified in r 43A(d), but noted that the wording was similar to the predecessor to the current O 67B r 16(1)(e) of the SCR. Templeman J then had regard to the commentary in Civil Procedure in Western Australia and concluded that:[4]
… very cogent reasons should be provided if the document is to be made available for inspection.
[4] De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998), 5.
Templeman J did not accept the proposition in the appeal notice that the discretion conferred by r 43A(d) should not be exercised in favour of a solicitor with no interest in the estate or a solicitor acting for a party with no interest in the estate. His Honour observed that there may be situations in which a person who is not a beneficiary may nevertheless be able to demonstrate cogent reasons for disclosure of the statement of assets and liabilities.[5]
[5] De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998), 6.
Templeman J granted the appeal on the basis that reasons given by the solicitors did not justify granting the solicitors inspection or a copy of the statement of assets and liabilities. His Honour observed that the solicitors had been provided with a copy of the grant of probate and the information contained in the grant was sufficient for the purposes referred to in their application. His Honour concluded that the mere fact that the solicitors said they were engaged in commercial litigation involving the estate did not constitute a very cogent reason:[6]
It seems to me that there must be something more, demonstrating a particular need, before the documents should be released.
[6] De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998), 6 - 7.
In contrast, the scope of the discretion in O 67B r 16(1)(e) has been the subject of greater consideration by this court. Le Miere J considered the principles relevant to the exercise of the discretion under O 67B r 16(1)(e) and its predecessor in a number of decisions, including In The Hancock Family Memorial Foundation Ltd v Fieldhouse[No 6][7] and Vikas Rambal Atf The Vikas Rambal Family Trust v Pankaj Oswal Atf The Burrup Trust.[8] The key principles which can be drawn from these decisions are as follows:
[7] In The Hancock Family Memorial Foundation Ltd v Fieldhouse[No 6] [2021] WASC 210 [23] ‑ [36].
[8] Vikas Rambal Atf The Vikas Rambal Family Trust v Pankaj Oswal Atf The Burrup Trust [2014] WASC 86 [6] ‑ [10].
(a)Order 67B r 16(1)(e) does not state the factors that the court is to take into account in exercising its discretion to grant leave. The discretion, like every statutory discretion, is limited by the subject matter, scope and purpose of the statute under which it is considered. The discretion is to be exercised in the interests of justice, having regard to all the circumstances.
(b)There is no unfettered right to inspect documents on the court file, save as expressly provided for in the SCR.
(c)The applicant must identify the document/s or class of document/s in respect of which leave to inspect is sought.
(d)The applicant must explain why they seek access to the documents/s and how granting access is in the interests of justice. The court will not grant access to a person who does not have a legitimate purpose for, or interest in, accessing the document.
(e)A legitimate interest in this context includes a wide range of interests. It includes a private interest, but it does not extend to personal curiosity (ie, what is of interest to know; that which gratifies curiosity or merely provides information or amusement).
(f)The principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision-making process, including the process of determining pre‑trial applications. In such cases the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access. The concept of open justice has two elements. First being to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. The second being to enable the public to understand how the justice system works and why decisions are taken.
(g)A party who is engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which the applicant is involved.
(h)Where the documents sought have been filed, but not read, the principle of open justice is not engaged at all, and the court should only give access to such documents where there are strong grounds for thinking it necessary in the interest of justice to do so.
(i)In exercising the discretion, the court carries out a fact specific balancing exercise taking into account the principle of open justice, the potential value of the information in advancing the purpose and legitimate interest of the applicant, and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others.
Given the similarity in the wording of O 67B r 16(1)(e) and r 43A(d) of the NCPR, I consider the above authorities are equally applicable to the exercise of the court's discretion under r 43A(d) of the NCPR. I do not consider there to be any conflict between the position as articulated by Templeman J in De Haas (as an Executor of Estate of Mettam (Dec'd)) v Murcia & Associates,[9] and the authorities regarding O 67B r 16(1)(e) of the SCR. The reference by Templeman J to 'very cogent reasons' is, in my view, merely a form of the requirement that an applicant has a legitimate purpose for, or legitimate interest in, seeking access to the documents in question.
[9] De Haas (as an Executor of Estate of Mettam (Dec'd) v Murcia & Associates (a firm) (Unreported, WASC, BC9805868, 14 September 1998).
In applying the principles set out above in relation to O 67B r 16(1)(e) to an application made under r 43A(d) of the NCPR it will, of course, be necessary to have regard to the fact an applicant is seeking access to documents in the context of an application for a grant of probate. Various factors regarding the nature of the documents sought and the probate processes of the court may be relevant to the exercise of the discretion. This is simply part of the process of conducting the fact specific balancing exercise referred to in the authorities.

Disposition

In the present case I am of the view that the regime in r 43A of the NCPR is applicable to the appellant's application. I have reached this view given the probate application was made and granted in 2005 and there are no current proceedings on foot in relation to that probate application and the combined effect of r 3(1) and r 43A of the NCPR. However, the question of which regime is applicable does not have any practical consequences in the present case, given the similarity in the wording of the access regimes and the corresponding legal principles applicable to exercise of the discretion under each regime.
In the exercise of my discretion, I am of the view that the appellant's appeal should be allowed in part only. I have formed the view that the appellant should be granted access to the motion dated 14 June 2005 only, and not granted access to the affidavit or the statement of assets and liabilities. In reaching this conclusion, I have had regard to the principles referred to in the above authorities and I have conducted the fact specific balancing exercise required. In reaching this conclusion the following factors are most relevant.
I have had regard to the fact that the applicant has identified the specific documents he is seeking.
The authorities place significant emphasis on the principle of open justice and provide that the principle is a strong reason for allowing access to documents that have been read by the court as part of the decision‑making process, including the process of determining pre‑trial applications. I note that the authorities provide that in such cases the court should lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access.
However, it is also relevant to consider the nature of the documents and the context in which they are held by the court. The documents sought here relate to an application for probate and are held by the court as an incidence of its probate jurisdiction. In terms of the concept of open justice, it is relevant to observe that grants of probate in the common form (which this grant is) are conducted on an ex parte basis in chambers without a hearing in open court pursuant to the NCPR.[10] Accordingly, whilst the documents sought by the appellant have been relied upon by the court in considering and granting probate to the executor, this is not a case where the documents have been read into open court in the manner that occurs in a contested inter partes hearing.
[10] Rule 6 of the NCPR.
The documents which the appellant is seeking access to are all documents which an applicant for a grant of probate is required, pursuant to the NCPR, to provide to the court. The information contained in the affidavit in support of the application for a grant of probate and the statement of assets and liabilities contain personal, private and often sensitive information about the deceased, including details of all movable property of the estate of the deceased and the value of that property as well as details of all debts owing by the deceased. Therefore, this is not a case of a party voluntarily participating in litigation and putting information before the court to be read in open court.
Rule 43A of the NCPR implicitly acknowledges some of these factors, by making access to the grant and will or codicil that has been proved documents which any person is able to obtain from the court for payment of the applicable fee, and any other document requires the leave of a registrar.
It is therefore necessary to give particular consideration to the reason/s the appellant seeks copies of these documents. The reasons given by the appellant in his original email application and his appeal notice are directed to the appellant's belief that the property referred to in the deceased's will (being 5 Coffey Road, Belmont) in fact belonged to his mother, and not the deceased. The appellant asserts that the deceased fraudulently and illegally obtained this property as his own, and therefore the appellant has been denied any inheritance under his mother's will. The appellant further claims that because of this (alleged) illegality he does not consider that the deceased's will has been proven. The appellant has not provided any evidence or explanation of the allegations of fraud or illegality. However, it appears that these allegations are directed to matters which occurred during the lifetime of his mother and the deceased.
The appellant also says that he seeks access to these documents for the purposes of transparency in the legal process as the requested documents will assist him with legal advice as to any recourse that he may have under the law. This is not a case where the appellant has indicated that he has any current litigation on foot in relation to the property or the validity of the will. Rather, the appellant's reason for seeking access to the documents is to use them to seek legal advice. The appellant has not indicated whether he has retained solicitors for this purpose at this stage or not. It is also not stated by the appellant that any solicitors have indicated that they require these documents for the purposes of providing legal advice.
It is also not clear precisely what claim the appellant may have against the estate. I observe that the appellant is not a beneficiary under the deceased's will and therefore does not have an interest in the due administration of the estate from that perspective. As the brother of the deceased, the appellant is also not eligible to bring a claim under the Family Provision Act 1972 (WA) in relation to the will. Further, there is no explanation of, and it is not clear to me how, the documents sought are relevant or necessary in order for the appellant to challenge the transfer of the property from the appellant's mother to the deceased. This is something which, it appears, occurred prior to the death of both his mother and his brother.
To the extent that the appellant is indicating that he wishes to challenge the grant of probate, the basis given in the application and the appeal notice is directed to the alleged fraudulent transfer of the property from the appellant's mother to the deceased during their lifetimes. It is not clear on its face how this is a basis for challenging the grant of probate (as opposed to the administration of the estate). Further, an application to revoke a grant of probate in the common form still brings with it a requirement that the applicant have standing. The caselaw refers to probate litigation as being 'interest litigation', meaning that a person must demonstrate an interest in the grant of probate or the administration the estate in order to have standing to apply to revoke a grant.[11] Given the appellant is not a beneficiary or a creditor of the estate, the basis for his standing is unclear.
[11] Cole vPaisley [2016] NSWSC 349 [53] ‑ [55]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.
I am therefore of the view that the appellant does not have cogent reasons for, or a legitimate interest in, obtaining a copy of the affidavit and the statement of assets and liabilities, and there are good reasons for refusing access to these documents.
However, I consider the position is different in relation to the motion. This document is merely the form by which an application for probate in the common form is made. It, unlike the affidavit and the statement of assets and liabilities, does not contain confidential or sensitive information about the deceased. The provision of this document, together with grant and the will, serve a public purpose in providing evidence of an application for probate, and the resulting decision of the court. I note that this is reflected in the relevant provisions of O 67B of the SCR which apply to proceedings commenced on or after 1 March 2018, where the originating motion is now a document which any person is entitled to access upon payment of the relevant fee.

Orders

For the reasons set out above, I make the following orders:
1.The appeal is allowed in part.
2.The appellant is granted access to the originating motion dated 14 June 2005 only.
3.The appeal is otherwise dismissed.
4.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
8 NOVEMBER 2023