Re GRP

[2019] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation:

Re GRP [2019] NSWSC 710

Hearing dates:

3 June 2019

Date of orders:

03 June 2019

Decision date:

03 June 2019

Jurisdiction:

Equity - Adoptions List

Before:

Hallen J

Decision:

The Court:

 

(a) Orders, pursuant to UCPR rule 6.24 that SK, IF, TF and GK, the executors of the estate of VK, be joined as parties to the notice of motion filed by GRP on 24 December 2018.

 

(b) Orders that GRP pay the costs of the executors of the joinder notice of motion.

 

(c) Notes that GRP has served a substantive affidavit in support of the discharge motion and will provide the original to the Court and serve a copy thereof upon the Attorney-General within 7 days.

 

(d) Directs that the executors of the estate of VK serve such evidence upon which it is intended to rely by 4:00 p.m. on 24 June 2019.

 

(e) Directs GRP to serve any evidence in reply by 4:00 p.m. on Friday, 12 July 2019.

 (f) Stands the matter over for further directions before Hallen J at 9:15 a.m. on Monday, 15 July 2019.

Catchwords:

CIVIL PROCEDURE – Parties – Joinder – Applicants are executors of estate of the deceased – Claim in Queensland brought by GRP, the biological son of the deceased who had been adopted in 1965 under Child Welfare Act 1939 (NSW) – Effect of adoption – Adopted son seeks order to discharge the adoption order made in New South Wales – The executors are the named Defendants in the Queensland proceedings – Executors seek joinder to son’s notice of motion for discharge of the adoption order – Son opposes joinder – Whether executors are necessary or proper parties to the discharge notice of motion

Legislation Cited:

Adoption Act 2000 (NSW)
Adoption Information Act 1990 (NSW)
Adoption of Children Act 1965 (NSW)
Child Welfare Act 1939 (NSW)
Civil Procedure Act 2005 (NSW)
Succession Act 1981 (Qld)
Adoption Act 2009 (Qld)

Cases Cited:

Adoption of LVH [2014] NSWSC 1902
APT Finance Pty Ltd v Wingside Nominees Pty Ltd [No 2] [2009] WASCA 235
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350
Fletcher & Ors (as liquidators of Octaviar Ltd & Octaviar Administration Pty Ltd) v Anderson (2014) 103 ACSR 236; [2014] NSWCA 450
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Lee v Australian Executor Trustees Limited as Trustee of the Estate of the Late Ronald William Lee [2019] WASC 96
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Re DG and the Adoption Act 2000 [2007] NSWCA 241
Re Octaviar Administration Pty Ltd (in liq) (2013) 94 ACSR 612; [2013] NSWSC 786
Re Raejoe Pty Limited [2012] NSWSC 1457
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Seller v Jones [2014] NSWCA 19
State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Yuen Wah v Lee Kwok Kee [1995] 2 HKLR 280

Texts Cited:

New South Wales, Law Reform Commission, Review of the Adoption Information Act 1990 (NSW) (July 1992)

Category:

Procedural and other rulings

Parties:

Applicants:
SK, IF, TF and GK, as executors of the estate of VK

  Respondent:
GRP

Representation:

Counsel:
Mr M Bland (Applicants)
Ms R Dart (Attorney-General)

  Solicitors:
Eliadis Lawyers (Applicants)
Jason Nott Solicitors (Respondent)
Crown Solicitor’s Office (Attorney-General)

File Number(s):

A233/2018

Judgment

1. HIS HONOUR: These reasons concern a notice of motion, filed on 25 January 2019 (“the joinder motion”), in which four applicants, SK, IF, TF and GK, to whom I shall refer as “the executors”, seek an order for their joinder to a claim made by a person, to whom I shall refer as GRP, in proceedings to which I shall refer as “the discharge motion”.

2. The discharge motion relates, in part, to the adoption of GRP, by an order of the Supreme Court of New South Wales, made on 26 August 1965. GRP, himself, is the applicant in that notice of motion which was filed on 24 December 2018, in which he seeks an order that the adoption order “be discharged”.

3. I have referred to, and shall refer to, the protagonists and others in a way that preserves his, her, or their, anonymity, because the Court, usually, does not publish material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application, as is required by s 180(1) of the Adoption Act 2000 (NSW) (“the Adoption Act”). The medium neutral citation has been anonymised also.

4. These reasons do not relate to the discharge motion which has not, as yet, been set down for hearing. I do not need to say anything about the merits of the discharge motion. All that needs be said is that this Court made directions for notice to be given to the Attorney-General for New South Wales and upon the birth mother of GRP. The notices of motion have “been provided to the Attorney-General as well as the Secretary for the Department of Family and Community Services” (hereafter referred to as “the Secretary”): Tcpt, 9 May 2019, p 2(5-9).

5. At the commencement of the hearing of the joinder motion, Ms E Moss, from the Crown Solicitor’s Office, appeared. She stated that the Attorney-General did not wish to make any submissions on the joinder motion, and that she was unable to state, immediately, what role, if any, the Attorney-General wished to play in the discharge motion. She stated that she could obtain instructions and return to Court later in the morning.

6. Following the reading of the evidence and the submissions of the executors and GRP, the matter was called and Ms R Dart of counsel appeared on behalf of the Attorney-General. She informed the Court that the Attorney-General wished to make submissions on the discharge motion. There can be, and was, no objection to that course. (It is unnecessary to join the Attorney-General as a party as he has a right to appear.)

7. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 56.10 provides:

“(1) Notice must be given to the Secretary of any application for the discharge of an adoption order, declaration of validity, declaration that an adoption is not recognised or an order terminating a legal relationship.

(2) The Supreme Court must not determine any application referred to in subrule (1) unless the Secretary has had a reasonable opportunity to become a party to the proceedings.

(3) Despite subrule (2), the Supreme Court may determine an application referred to in subrule (1) without the Secretary having a reasonable opportunity to become a party to the proceedings if the Court considers it necessary in the circumstances.”

8. There was evidence that the Secretary had also been served with a copy of the discharge motion. In a letter dated 22 May 2019, Ms B Bowman, a legal officer of the Department, informed the solicitor for GRP that:

“The discharge of adoption orders is a matter for the Supreme Court. The Secretary of Family and Community Services does not wish to be heard in relation to your client’s application … Unless you request it, the Secretary is not intending to have any further involvement in this matter.”

9. Although the letter went on to ask “whether you are asking the Secretary to take any particular action in relation to this matter”, there is no evidence that this request was responded to by GRP’s solicitor. In view of the orders to be made on the joinder motion, and the fact that the Attorney-General is to appear on the discharge motion, it is unnecessary for the Secretary to play any further part in the proceedings.

10. Without objection, GRP’s solicitor, Mr J Nott, from the Bar table, informed the Court that the discharge motion had not been served upon the birth mother of GRP. Nothing turns on this, at least, so far as the joinder motion is concerned. Proper evidence of service, or attempts at service, will be required at the hearing of the discharge motion.

The evidence on the joinder motion

11. At the hearing of the joinder motion, the executors read an affidavit affirmed on 6 February 2019, by GK, and an affidavit sworn 1 March 2019, of the executors’ solicitor, Mr E E Eliadis.

12. GRP read an affidavit made on 13 March 2019 of Mr J M Nott and another affidavit made by him on 2 June 2019. Neither party tendered any documents on the joinder motion.

13. Mr M Bland of counsel appeared for the executors and Mr J Nott, solicitor, appeared for GRP. None of the deponents of the affidavits was cross-examined.

14. Following the reading of the affidavits, each legal representative spoke to the written submissions that he, respectively, had lodged and served. Following the adjournment previously referred to, I stated that I proposed to make an order for the joinder of the executors and for GRP to pay the costs of the notice of motion, and that I would publish my reasons. These are the reasons for the orders that I have made.

15. (The course followed was acceptable to all the parties. I shall provide the legal representatives with the medium neutral citation of these reasons at the time I publish them.)

The Background Facts

16. It is necessary to provide some of the background facts in order to put the application for joinder, and the submissions of the parties, into context.

17. GRP was born in July 1965 and is currently almost 54 years old.

18. His birth mother was YML. Although there was some dispute, earlier, about whether VK (“the deceased”) was GRP’s father, paternity testing, which took place with the co-operation of the executors, established that the deceased was, in fact, the biological father of GRP.

19. GRP was the child in respect of whom this Court made an adoption order in July 1965. The adoption order was made pursuant to the Child Welfare Act 1939 (NSW) (“the CW Act”). Thus, the adoption order was made more than 50 years before the discharge motion was filed.

20. The circumstances in which the adoption order was made have not been fully disclosed in the evidence, and the Court’s adoption file, if it still exists, relating to GRP’s adoption, has not been sought or produced. However, there is evidence by GRP that his adoptive parents were NAP and RWP.

21. RWP, who was the adoptive father, died in June 1970. GRP left the home of his adoptive mother, NAP, in 1991, and, thereafter, had limited contact with her. NAP died in September 2002. At the time of her death, GRP had not spoken to her for over one year. However, there is some evidence that provision was made by NAP, in her Will, for GRP.

22. In 1991, after the commencement of the Adoption Information Act 1990 (NSW), GRP accessed his pre-adoption original birth certificate. He was able to obtain information about his mother, YML, who, then, was living in Otago, New Zealand. Shortly thereafter, GRP visited YML, in New Zealand, and she revealed that the deceased was his biological father.

23. There is a dispute about the nature of the relationship of the deceased and GRP following their meeting in about 1993.

24. The deceased died on 2 June 2017 in Queensland. He left a Will made on 19 March 2015. On 25 September 2017, the Supreme Court of Queensland granted Probate of that Will to the executors.

25. Relevantly, under the deceased’s Will, GRP is named as a beneficiary. The Will provides that the deceased granted to GRP “the right to reside, during his lifetime, one (1) single bedroom unit of my Trustees’ choosing, in their sole and absolute discretion, in any complex, or property, that forms part of the Trust property, during his lifetime, to have the use and occupation and enjoyment thereof, rent free but subject to the payment by him of all expenses, repairs, maintenance and rectification work to keep the said unit in the same condition and state of repair as at the commencement of habitation of said unit in relation to the said property during the period of his occupation thereof.” The executors were directed “to hold at least one (1) single bedroom unit as part of the Trust property at all times during the lifetime of the same”.

26. The executors, SK and IF are siblings of the deceased. GK is a nephew of the deceased, SK and IF, and TF is the son of IF. Each is a beneficiary named in the Will of the deceased.

27. On 1 March 2018, GRP filed an originating application, in the Supreme Court of Queensland, seeking an order pursuant to s 41(1) of the Succession Act 1981 (Qld) that additional provision be made for his proper maintenance and support, out of the estate of the deceased. Naturally, the executors are the named Defendants in those proceedings.

28. For the purposes of the joinder motion, nothing turns on the disputes of fact which relate to GRP’s application for additional provision out of the estate of the deceased.

29. There appears to be no dispute that, currently, GRP does not have standing to make the application, because s 41(1) of the Succession Act 1981 (Qld) permits an application to be made only by the deceased person’s spouse, child or dependant. Unless GRP is successful in the discharge motion, for reasons to which I shall refer, he will not be a person in respect of whom an order for additional provision may be made.

30. Nor is it necessary to go through the details of the delay that has occurred in relation to the proceedings involving the estate of the deceased. On 2 May 2018, Douglas J made orders, one of which was that GRP was to commence proceedings in this Court for orders pursuant to s 93 of the Adoption Act.

31. In a letter, dated 20 July 2018, the executors’ lawyers wrote to GRP’s lawyer referring to s 93 of the Adoption Act and asked that the executors be joined “as a party to your client’s application on the basis that the estate clearly has an interest in the outcome of such application”. A request was also made that “you forward to us a copy of your client’s application once it has been filed...”.

32. Although it was submitted on behalf of the executors that there was no response to the letter of 20 July 2018, GRP’s solicitor relied upon a letter dated 30 January 2019, sent by him on that date. Nothing turns on whether this was a letter in response, as it is not in dispute that GRP has consistently, even at the hearing, opposed the joinder of the executors to the discharge motion.

The effect of the adoption of GRP

33. The modern law of adoption is wholly the product of legislation. The current legislation in New South Wales is the Adoption Act. However, at the time of GRP’s adoption, the relevant legislation was the CW Act. (In 1967, it was replaced by the Adoption of Children Act 1965 (NSW)).

34. The full title of the CW Act was “An Act to consolidate and amend the law relating to children and young persons; to repeal the Child Welfare Act, 1923, and the Child Welfare (Amendment) Act, 1924; to amend the Interstate Destitute Persons Relief Act, 1919, and certain other Acts; to validate certain matters; and for purposes connected therewith.”

35. Part XIX of the CW Act, commencing at s 162, dealt with adoption. Section 168 provided:

“When an order of adoption is made, for all purposes civil and criminal, and as regards all legal and equitable rights and liabilities, the adopted child shall be deemed to be a child of the adopting parent, and the adopting parent shall be deemed to be a parent of the adopted child, as if such child had been born to such adopting parent in lawful wedlock, and the order of adoption shall terminate all rights and liabilities existing between the child and his natural parents other than the right of the child to take property as heir or next of kin of his natural parents or of their lineal or collateral kindred:

Provided always that such adopted child shall not by such adoption —

(a) acquire any right, title, or interest in any property under any deed, will, or instrument whatsoever made or executed prior to the date of such order of adoption unless it is expressly so stated in such deed, will, or instrument;

(b) be entitled to take any property limited to the heirs of the body of the adopting parent;

(c) be entitled to take any property as next of kin to any lineal or collateral kindred of the adopting parent;

(d) be entitled to take any property as next of kin to any child of the adopting parent.”

36. When an adoption order was made, an amended birth certificate was issued by the Registry of Births, Deaths and Marriages, showing the adopted person to be the child of the adoptive parents. The adopted child, even as an adult (until 1991), had no right to access the original birth certificate, except on the order of a court. Similarly, birth parents had no right to obtain a copy of the amended birth certificate: New South Wales, Law Reform Commission, Review of the Adoption Information Act 1990 (NSW) (July 1992) at [2.8].

37. Thus, under the CW Act, as under the current Act, an adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded, in law, as the parents of the adopted child. The parental responsibility for the adopted child by the birth parents is also extinguished. Thus, an adoption order results, not only in the creation of a new legal status between individuals, but also in the destruction of the status as between others: Re DG and the Adoption Act 2000 [2007] NSWCA 241, per Basten JA, at [4]. (These principles operate in other jurisdictions within Australia: see, for example, s 214 Adoption Act 2009 (Qld).) An adoption order is the only order that permanently, and, subject to a discharge order, irrevocably, terminates the relationship between a parent and child.

38. Section 170 of the CW Act also provided:

“The court, on the application of an adopting parent or of a reputable person on behalf of an adopted child, may vary or discharge any order of adoption subject to such terms and conditions as it thinks fit.

When an order of adoption is discharged, then, subject to the conditions, if any, named in the discharging order, the child or person in respect of whom the order of adoption was made and his natural parents shall be deemed for all purposes to be restored to the same position inter se as existed immediately before the order of adoption was made:

Provided that such restoration shall not affect anything lawfully done whilst the order of adoption was in force.”

39. The CW Act identified no specific ground upon which a discharge order could be made and provided no time limit for making such an application. The section conferred a broad discretion on the Court.

40. In Adoption of LVH [2014] NSWSC 1902, Brereton J (as his Honour then was) was dealing with an adoption order made in December 1964, and an application, filed in July 2013, seeking an order pursuant to Adoption Act 2000, s 93, discharging that order. His Honour dealt with the application to discharge under s 93 of the Adoption Act. Neither party submitted that this was an inappropriate way to proceed. Therefore, I shall, hereafter, refer to the relevant provisions of the Adoption Act.

41. “Child” is relevantly defined in the Dictionary to the Adoption Act as “(b) a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made.”

42. Section 93(1) of the Adoption Act provides that "concerned person" means the Attorney-General, or any party to an adoption. It is only “a concerned person” who may apply to the Court for an order discharging an adoption order.

43. Section 93(3) provides that the Court is to give each concerned person (other than the applicant for the discharge order) notice of the application. Importantly, s 93 does not state that only a “concerned person” is able to be a party to the application for the discharge order.

39. Section 93(4) provides that the Court may make a discharge order if it is satisfied that (a) the adoption order, or any consent to adoption, was obtained by fraud, duress, or other improper means, or (b) there is some other exceptional reason why the adoption order should be discharged.

40. Section 93(5) provides that the Court must not make a discharge order if it appears to the Court that (a) the making of the order would be prejudicial to the best interests of the child, or (b) if the application for the order is made by the child – the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information or contact with a person under Chapter 8 (Adoption information).

41. Accordingly, s 93 is available to discharge the order the subject of these proceedings. Whether the Court should do so will be the subject of the discharge motion hearing.

42. Section 94 of the Adoption Act provides that the Court may require the Secretary to investigate the application. The Court has not made such a requirement of the Secretary, and will not do so in light of the correspondence received to which reference has been made.

43. Under s 95 of the Adoption Act, as earlier referred to, if an adoption order is made, the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child. In addition, the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child. Section 95 does not have effect so as to deprive an adopted child of any vested, or contingent, property right acquired by the child before the making of the adoption order: s 97(1) of the Adoption Act.

44. Subject to s 97(1), s 95, relevantly, has effect in relation to a disposition of property, whether by will, or otherwise, and whether made before, or after, the commencement of the relevant provisions. In neither s 95 nor s 98 of the Adoption Act is there anything that affects the operation of any provision in a will or other instrument, whether made or coming into operation before or after the commencement of s 98, distinguishing between adopted children and children other than adopted children: s 98(4) of the Adoption Act. Of course, in the present case, GRP is referred to, by name, in the deceased’s Will.

45. Only if an order were made discharging the adoption order made in respect of GRP, and subject to the conditions, if any, named in the discharging order, GRP as the person in respect of whom the order of adoption was made, and his natural parents, are then deemed, for all purposes, to be restored to the same position, inter se, as existed immediately before the order of adoption was made.

46. Section 118(1) of the Adoption Act provides that the Court may permit such persons as the Court thinks fit to appear in, or be joined as parties to, the proceedings for an adoption order. The Dictionary to the Act provides “‘adoption order’ means an order for adoption of a child made or recognised under this Act or a former Act”. “‘[F]ormer Act", relevantly, means “(a) the Child Welfare Act 1923 and the Child Welfare Act 1939 or either of those Acts, or (b) the Adoption of Children Act 1965, or (c) the Adoption Information Act 1990”. “‘[D]ischarge order" means an order for the discharge of an adoption order.

47. In light of the above definitions, it is difficult to treat the discharge motion as “proceedings for an adoption order”. This was accepted by the solicitor for GRP during submissions (despite the fact that he had referred to the section as being applicable in his amended written submissions). It is unnecessary for this section to be considered further.

The joinder motion

53. Whilst GRP accepts that the Court has the power to permit the executors to be joined as parties, he opposes their joinder to the discharge notice of motion.

54. The executors’ application for joinder is made pursuant to UCPR r 6.24(1), which relevantly provides:

“(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.”

55. The rule is stated in general terms. There are two parts, the first relating to the joinder of a proper party, that is a person who “ought to have been joined as a party” to the proceeding and the second relating to a "necessary" party, being “a person … who is necessary to the determination of all matters in dispute”: Re Raejoe Pty Limited [2012] NSWSC 1457, per Black J, at [6].

56. The term "party" is not defined in the Civil Procedure Act2005 (NSW) (“the Civil Procedure Act”) or in the UCPR.

57. UCPR r 6.27 provides that a person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant. In this case, the executors seek to be joined as respondents to the discharge motion.

58. In accordance with UCPR r 6.27, it is necessary for an applicant for joinder to demonstrate a prima facie case that they, he, or she “ought to have been joined as a party” or that he or she is a "necessary" party to the proceeding. Ultimately, however, the joinder of a person as a party is a discretionary matter and the Court may exercise its discretion, even though the persons who seek to be joined as a party are persons, against whom no relief is sought. Each case must be determined on its own facts.

59. There is nothing in the UCPR that suggests that the rule to which reference has been made do not apply to matters under the Adoption Act.

60. It is to be remembered that when exercising any power given to the Court by the Civil Procedure Act and the rules of court, the Court must seek to give effect to the overriding purpose, in their application to civil proceedings, to facilitate the just, quick and cheap resolution of the real issues in proceedings: s 56 of the Civil Procedure Act.

61. It must also be remembered that in entertaining “an application for joinder and exercise of discretion, each case has to be judged on its own facts”: Chu Yuen Wah v Lee Kwok Kee [1995] 2 HKLR 280, per Liu JA (as his Honour then was), at [23].

62. In State of Victoria v Sutton (1998) 195 CLR 291, at 316; [1998] HCA 56, at [77], McHugh J wrote what might be regarded as the foundational principle:

“The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court.” (Footnotes omitted)

63. In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131]-[132], the High Court referred to News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870, a decision of the Full Court of the Federal Court, and applied a test of direct effect on the legal rights of another person. The plurality accepted the submission that “where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined”.

64. The plurality, at [132], also made reference to a passage of the Full Federal Court in News Limited v Australian Rugby Football League Limited, at 524-525, that:

"Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest."

65. Also in News Limited v Australian Rugby Football League Limited, at 525, the Full Federal Court noted:

“Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties.”

66. The Court, at 525, also noted that the test “involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected”. (See Lee v Australian Executor Trustees Limited as Trustee of the Estate of the Late Ronald William Lee [2019] WASC 96, for a recent application of the test.)

67. In Seller v Jones [2014] NSWCA 19, McColl JA noted, at [50], that the threshold as to whether an order may have the effect referred to is not high.

68. In Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, Leeming JA (Meagher JA and Tobias AJA agreeing) wrote, at [51]-[52] and [57]:

“It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.

In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between ‘legal’ and ‘commercial’ interests. His Lordship said at 56:

‘A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?’

Contrary to Council's submission that ‘the line of authority from the Super League case must be read in the context of the overriding purpose set out in the Civil Procedure Act’, nothing in ss 56-59 of the Civil Procedure Act undermines this principle, at least in its application to the present case. The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order. That is why the High Court referred to the position of the non-party Walker Corporation in John Alexander's Clubs at [153] as depending on ‘matters of right affecting non-parties which rest on general law principles of natural justice’.”

69. Leeming JA, at [61], also confirmed that because the underlying concern is natural justice, joinder is not always necessary. His Honour referred to UCPR r 6.23, which provides that proceedings are not defeated merely because of the misjoinder or non-joinder of a party, ultimately considering that where a party would suffer no prejudice by not being joined to the proceedings, joinder is not essential.

70. The “direct effect” test may be met even where there are a number of stages between the order and its effect upon a non-party’s rights or liabilities: see, albeit in a different context, Re Octaviar Administration Pty Ltd (in liq) (2013) 94 ACSR 612; [2013] NSWSC 786; and Fletcher & Ors (as liquidators of Octaviar Ltd & Octaviar Administration Pty Ltd) v Anderson (2014) 103 ACSR 236; [2014] NSWCA 450, at [95] and [98].

71. In China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350, the Court of Appeal in Queensland (Gotterson JA, with whom Fraser and McMurdo JJA agreed) held, at [60], that:

“These cases reveal a systematic approach taken by courts to the determination of whether orders made or sought have had, or if made, will have, a direct effect on a legal right or liability. That approach has involved an identification of the specific legal right or liability said to have been affected or liable to be affected, and an assessment of its legal characteristics. Next, the court has inquired into whether the right or liability itself has been affected, or is liable to be affected. Typically, the inquiry has sought to establish whether there is an effect on the existence of the right or liability or on its legal characteristics; or whether there is an effect on the legal environment in which the right might be exercised or the liability discharged, such as would impact upon its exercise or discharge from a legal perspective. An effect of either kind has been regarded by courts as a direct effect on the right or liability for the purposes of the test.”

72. UCPR r 6.24(1) is in discretionary terms – the court “may” order that the person be joined as a party. In APT Finance Pty Ltd v Wingside Nominees Pty Ltd [No 2] [2009] WASCA 235 Wheeler JA, with whom Newnes JA agreed, wrote, at [29]:

“It has been held that the court has a discretion to refuse an order for joinder: Lancaster Banking Company v Cooper (1878) 9 Ch D 594. However, it is difficult to justify the exclusion of a party whose presence is necessary for the effectual determination and adjudication of matters in dispute and, consequently, it would seem that any discretionary power to decline an order would generally be confined to practical matters of convenience or disruption which might tell against the late admission of such a party: Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 149 at [8].”

73. Finally, it should be noted that, at general law, a person affected by an order of the Court, who has not had an opportunity to be heard, is entitled, as of right, to have that order set aside: Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5; John Alexander's Clubs Pty Ltd v White City Tennis Club, at [131]ff.

The Submissions

74. The executors submitted, in writing, that:

“[GRP] currently has no standing to seek … an order because section 41(1) only permits an application for further provision to be brought by a spouse, child or dependant of the deceased and section 214(3) of the Adoption Act 2009 (Qld) provides that on the making of a final adoption order, “the adopted child stops being a child of a former parent”. By section 291(1) of that Act, an adoption under the law of another State has the same effect as an adoption order made in Queensland under that Act.

It is accordingly submitted that the executors’ liabilities would be directly affected by the making of an order for discharge of [GRP’s] adoption order because such an order would immediately enable [GRP] to proceed with his claim against them for further provision out of the deceased’s estate.

Moreover, paragraph 3 of [GK’s] affidavit shows that if joined as parties to [GRP’s] motion, the executors propose to lead evidence controverting statements by [GRP] as to the nature and extent of his relationship with the deceased and showing that [GRP] received a benefit from the estate of his adoptive mother. It is therefore submitted that the executors are both proper and necessary parties on this additional basis.”

75. In his supplementary written submissions handed up at the hearing, GRP wrote that:

“The ground(s) on which the Estate’s Notice of Motion dated 25 January 2019 seeks to rely appears to be:-

a. That the Executors of the Estate’s liabilities would be directly [affected] by the making of an order to discharge an adoption. That is not true. No explanation or details are provided as to what liabilities will be [affected] by the making of an order pursuant to section 93 of the Adoption Act or the extent to which those liabilities will be [affected] by reason of the making of an order pursuant to section 93 of the Adoption Act;

b. That the Executors of the Estate wish to lead evidence which contradicts the statements by… [GRP] as to the nature and extent of his relationship with the deceased; and

c. The Plaintiff received a benefit from the estate of his adoptive mother.

[GRP] resists the Estate’s Notice of Motion.

The joinder application will have the immediate effect of inflicting further injury to the Applicant. Particularly having regard to paragraph 20b. above.

In summary, if the Estate is allowed to continue to ventilate, unhinged, the issues raised by the affidavit(s) of [Mr E E] Eliadis sworn 1 March 2019 and [the affidavit of] G K sworn 6 February 2019 the essential objective of the Adoption Act will be almost certainly defeated.

The granting of the joinder application will set back, not advance, as required by section 8(1)(a) of the Adoption Act the best interests of the child.”

76. Also, in his supplementary submissions handed up at the hearing, it was put on behalf of GRP, that:

“The highest the effect of the order for discharge of [GRP’s] adoption will have on the Executors is that [GRP]’s right(s) to pursue his cause of action in the Brisbane Supreme Court … will be perfected. Therefore, the effect can only be described as indirect or consequential.”

77. As will be read, for reasons given hereunder, I do not accept GRP’s submissions.

Determination

78. There are a “great variety” of circumstances where persons may be necessary parties and a “flexibility of approach” is required to determine whether they are necessary parties: Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, at 56.

79. I have little doubt that the executors are both proper, and necessary, parties to the discharge motion.

80. A discharge order will have a direct effect on the administration of the deceased’s estate. As executors, the applicants for joinder have a substantial interest in the efficient administration of the deceased’s estate. The order that will be made on the discharge notice of motion will be very relevant to them in a legal sense.

81. Considering the practical realities of the discharge motion, this is not a case in which the effect of an order discharging the adoption, on the executors, can be characterised as only indirect or consequential. One has to consider the orders sought in the Queensland proceedings. If the order sought by GRP in the discharge notice of motion is made, he will be a person eligible to continue with the Queensland proceedings, and if those proceedings are successful, any order for additional provision will have a direct, and material, effect, on the value of the deceased’s estate.

82. Furthermore, an order for additional provision in favour of GRP, if one is made, will, to a corresponding extent, be detrimental to other beneficiaries, whose interests in the deceased’s estate are sufficiently represented by the executors. (Of course, each of the executors is also a beneficiary.) In addition, the costs of the Queensland proceedings may also affect the value of the estate available for distribution.

83. There is another reason that I think the executors should be parties to the discharge motion. By the joinder, the executors will be given an opportunity to be heard, and they will be bound by the outcome of the proceedings. They will not be able to argue a contrary position if the Queensland proceedings continue. Both the duplication of hearings on the same subject matter and the possibility of inconsistent decisions will be avoided. The executors will also have standing to appeal in relation to the orders made in the discharge motion.

84. In addition, by joinder, they will have the obligations, as well as rights, of a party to proceedings, including being at risk, or obtaining the benefit, of a costs order. (This is not to suggest that the discharge motion would, ultimately, be an appropriate one for such an order.)

78. The executors, as effective contradictors, will also be able to argue that the discharge motion “is motivated by … other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information or contact with a person under Chapter 8 (Adoption information)” and accordingly, the Court must not make a discharge order: s 93(5) of the Adoption Act.

79. Yet a further reason for joinder is that the issue raised by GRP is an important one, and which, in the present context, undoubtedly, will raise a somewhat unusual issue, namely, the discharge of an adoption order, many years after the adoption, where the child, the subject of that order, is an adult, and in circumstances where discharge motion is made, on one view, because if it is not, an application for additional provision out of the deceased’s estate will not be successful.

80. The executors will also be entitled to make submissions on whether there are “exceptional reasons” for the Court making a discharge order, pursuant to s 93(4)(b) of the Adoption Act. (In GRP’s written submissions, it is put that the Court will be “asked to apply s 93(4)(b) of the Adoption Act…”).

81. The executors may have evidence that will be relevant to the issue. In this, and otherwise, they may be of assistance to the Court, by making submissions, which the Court should have to assist it to reach a correct determination, and the orders that should be made in the exercise of the Court’s jurisdiction, particularly if the opportunity given to each of the Attorney-General, YML, or the Secretary, is not taken up. (It has been noted earlier in these reasons that the Secretary has indicated to GRP’s solicitor he “does not wish to be heard” in relation to GRP’s claim).

82. As stated earlier, the discharge motion has not been listed for hearing. Therefore, no hearing date needs to be vacated. There will be no prejudice, to GRP, by the determination of his notice of motion being delayed. There will be no practical matters of convenience, or disruption, which might tell against the admission of the executors as a party.

83. Yet, the prejudice to the executors of the discharge notice of motion being determined without the outcome being binding on them, and by the public interest in ensuring that all matters in dispute concerning the adoption of GRP are effectually, and completely, determined, would be substantial.

84. The Court must also manage the discharge motion with the overriding objects set out in the Civil Procedure Act including promoting the just determination of the proceedings, disposing, efficiently, the business of the court, and facilitating the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties: s 57(1) Civil Procedure Act. The result of the discharge motion may also determine, finally, the Queensland proceedings.

85. Finally, as executors to whom Probate has been granted, they stand in the place of the deceased. Had the deceased been alive, even though he was not identified as such on GRP’s Birth Certificate, it now having been established that he was the birth father, and had GRP filed a notice of motion to discharge the adoption order, he (the deceased) would have been a proper party to the proceedings. He would have been entitled to call evidence against the relief sought by GRP, and if he did not wish to do that, he would have been entitled to be heard on the weaknesses in the application to discharge the adoption order. The executors should now be entitled to do so.

86. I have not forgotten that in any adoption proceedings, the Court must consider the best interests of the child: s 90(1)(a) of the Adoption Act. I am unpersuaded that this factor plays any significant role in the determination of the joinder motion. The best interests of GRP will, or may, be relevant on the discharge motion. Those interests cannot be determinative of the executors’ application, which is preliminary to the discharge motion.

87. For all of these reasons, the executors are necessary, and proper, parties to the discharge notice of motion. It would be advisable to join them as respondents, rather than simply permitting them to appear at the hearing of the discharge motion. Ultimately, it is in the interests of justice that they be joined.

88. Turning to the issue of costs, upon which submissions were orally made, I do not accept there to be anything before the Court that would disentitle the executors to their prima facie right, as successful applicants for joinder, to have their costs of the joinder motion: UCPR r 42.1.

89. In this regard, I have earlier referred to the letter dated 20 July 2018 to GRP’s solicitor requesting that the executors be joined as parties to any application for the discharge of the adoption order. As submitted, had GRP done what was asked, it would have been unnecessary for the executors’ application to be made and the delay in dealing with the discharge motion would not have occurred.

90. I am unpersuaded that there is any reason for the Court to “otherwise order” that the executors should receive their costs. GRP has consistently maintained his opposition to the order for joinder that has been sought and by that opposition has put the executors to substantial costs of having to argue their position.

91. In the executors’ outline of submissions, a submission is made that the executors’ costs, calculated on the indemnity basis, of the joinder motion be made, presumably under s 98(1) of the Civil Procedure Act. I am not prepared to make such an order as there are no special, or unusual, features that would justify such an order. Merely because GRP has opposed the executors’ joinder motion is not sufficient to make that order.

92. At the conclusion of the hearing of the joinder motion, the Court made the following orders:

1. Orders, pursuant to UCPR r 6.24, that SK, IF, TF and GK, the executors of the estate of VK, be joined as parties to the notice of motion filed by GRP on 24 December 2018.

2. Orders that GRP pay the costs of the executors of the joinder notice of motion.

100. Following the making of the orders relating to the joinder motion, the Court made the following directions so that the discharge motion could be made ready for hearing:

1. Notes that GRP has served a substantive affidavit in support of the discharge motion and will provide the original to the Court and serve a copy thereof upon the Attorney-General within 7 days.

2. Directs that the executors of the estate of VK serve such evidence upon which it is intended to rely by 4:00 p.m. on 24 June 2019.

3. Directs GRP to serve any evidence in reply by 4:00 p.m. on Friday, 12 July 2019.

4. Stands the matter over for further directions before Hallen J at 9:15 a.m. on Monday, 15 July 2019.

101. I have indicated to the parties, that if the Court receives a joint memorandum prior to the adjourned date, confirming that the matter is then ready for hearing, I shall endeavour, because the major protagonists are in Queensland, to deal with listing the discharge motion, administratively, in Chambers, without the need for any party to appear before the Court on the first date that I have available for a three day hearing.

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Decision last updated: 13 June 2019