Wilcox v Wilcox - [2019] NSWSC 306

Supreme Court

New South Wales

Medium Neutral Citation: Wilcox v Wilcox [2019] NSWSC 306
Hearing dates: 25 February 2019
Date of orders: 25 March 2019
Decision date: 25 March 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Direct that the applicant file within 14 days any written submissions (no more than two pages) as to why an order should not be made that Mr Wilcox pay the costs of the first and second respondents in relation to the application on the indemnity basis and why any order for access should not be conditional on those costs being paid or secured in advance.

Catchwords: CIVIL PROCEDURE –– Court administration — Non-party access to court files –– probate and administration of estate proceedings –– application for access to probate file including alleged affidavit(s) made in support –– allegations of fraud –– unnecessary joinder of second respondent by applicant –– orders regarding access deferred and applicant directed to make submissions regarding costs
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1
Practice Note SC Gen 2, [6]-[7]
Succession Act 2006 (NSW), s 59
Uniform Civil Procedure Rules 2005 (NSW), r 49.19
Cases Cited: Chapple v Wilcox [2014] NSWCA 392
Noble Earth Technologies Pty Limited v Hampic Pty Limited trading as Cyndan Chemicals [2012] NSWSC 935
Re Estate of Gowing; Application for Executor’s Commission [2014] NSWSC 247
The Estate of Arthur Michael Falco; Falco v Lambert (No 3) [2015] NSWSC 1343
UTSG Pty Limited v Gwynvill Properties Pty Ltd [2017] NSWSC 558
Wilcox v Wilcox (No 2) [2014] NSWSC 88
Category: Procedural and other rulings
Parties: Robert William Wilcox (Applicant)
The late Patricia Anne Wilcox (executrix and trustee) (First Respondent)
Paul Brian Duffy (Second Respondent)
Representation: Counsel:
E Danis (As “Mackenzie friend” for Applicant)
B Nixon (Solicitor) (First Respondent)
P Duffy (in person, Second Respondent)

File Number(s): 2011/00327494
Publication restriction: Nil

Judgment

HER HONOUR: Before me for hearing on 25 February 2019 was an application by the applicant (Robert Wilcox), seeking review pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) of a decision made by a Registrar of this Court on 3 July 2018 to refuse an application by Mr Wilcox for access to a probate file relating to the Will dated 21 August 2002 of Mr Wilcox’ grandfather, the late Ian Francis Sanderson (the Will). In particular (and relevantly for the purpose of this review application), Mr Wilcox had applied to inspect the original version of the Will that was admitted to probate back in 2011 (the Original Will).
On the hearing of the application before me, in which Mr Wilcox now seeks an order for access to the probate file (without limiting this to the original Will), Mr Wilcox did not have the benefit of legal representation; rather, he was represented by his “Mackenzie friend” (Mr Emil Danis).
The respondents to the present application are, first, Mr John Chapple, the executor and trustee of the estate of the daughter of the late…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilcox v Wilcox

Details

AGLC: Wilcox v Wilcox [2019] NSWSC 306
Case: [2019] NSWSC 306
Decision Date: 25 March 2019

CaseChat Overview and Summary

The matter in Wilcox v Wilcox involved a dispute over access to court files in probate and administration of estate proceedings. The applicant, who was not a party to the probate case, sought access to the probate file and an affidavit(s) made in support of the application for probate. The application was made in the context of an allegation of fraud against a third party, who was not joined as a party in the proceedings. The second respondent, who was a party to the probate case, opposed the application for access and argued that the applicant had not demonstrated a sufficient connection to the estate or the proceedings.

The primary legal issue before the court was whether the applicant, who was not a party to the probate proceedings, was entitled to access the court files, including an affidavit(s) made in support of the application for probate. The court also had to consider whether the second respondent, who was a party to the probate case, should be joined as a party to the proceedings in light of the allegations of fraud against a third party. The court was required to balance the applicant's need for access to the court files against the need to protect the privacy and confidentiality of the parties involved in the probate case.

The court found that the applicant had not demonstrated a sufficient connection to the estate or the proceedings to warrant access to the court files. The court also found that the applicant had not demonstrated that the second respondent should be joined as a party to the proceedings. The court noted that the applicant had not provided any evidence to support the allegations of fraud against the third party, and that the second respondent had not been given an opportunity to respond to the allegations. The court deferred making orders regarding access to the court files and directed the applicant to make submissions regarding costs. The court emphasised the importance of ensuring that the privacy and confidentiality of parties involved in probate and administration of estate proceedings are protected, while also balancing the need for transparency and access to justice.

Orders