Where angels fear to tread: Non-party requests for access to Court files relating to a deceased estate

Deceased estates, possible inheritances and windfall gains are, for many, the ‘pot of gold’ at the end of the rainbow. If they miss out, disappointed family and friends often want to know why. Claims such as non-disclosure, fraud and unjust enrichment are common.

How does a disappointed party find evidence for such claims? Often they’ll seek access to Court files relating to a deceased estate, hoping to find evidence there.

The recent Supreme Court decision of Wilcox v Wilcox [2019] NSWSC 306 examined the issue of non-party access to Court files. In a fair and balanced judgment, the Chief Judge in Equity succinctly summarised the practice relating to non–party access to Court files and the relevant principles applicable to a review of a decision by a Court registrar.

Practice

Access to Court files in any legal proceedings is restricted to the parties in those proceedings, except with the leave of the Court. The practice is set out in paragraphs 6 and 7 of ‘Practice Note SC Gen 2, Supreme Court – Access to Court Files’.

A non-party seeking access must complete and sign a prescribed Court form that describes the documents to be inspected and stating why access should be granted. A non-refundable file retrieval fee (currently $82) is payable and the person seeking access must also sign an undertaking not to tamper with any document or remove the Court file from the registry inspection area.

Access to Court files will only be granted to a non-party if a registrar or judge is satisfied that ‘exceptional circumstances’ exist.

If one can establish such circumstances and the registrar or judge does not determine that all or part of the Court file should be kept confidential, the non-party will be able to access material from the file. Paragraph 7 of the Practice Note provides that materials to which access will normally be granted are:

• pleadings and judgments in deceased estate proceedings that have been concluded

• documents that record what was said or done in open Court

• material admitted into evidence, such as the affidavit of executor or administrator in a deceased estate

• information that would have been seen or heard by any person that was present in open Court.

The Practice Note allows the registrar or judge to notify interested parties before dealing with an application for access. In some circumstances, this could convert a simple administrative application into a costly and risky contested Court matter.

Exceptional circumstances

What constitutes exceptional circumstances has been well established by case law such as Robb J. in UTSG Pty Ltd V Gwynvill Properties Pty Ltd [2017] NSWSC 558 at [59].

The need to establish exceptional circumstances recognises the balance between the Court’s reasons for imposing restrictions on material secured for use in its proceedings and a non-party’s reasons for wanting access. Reasons for relaxing the restriction involve the wider public interest, including the administration of justice and the general administration of the law (UTSG at [58]).

To establish exceptional circumstances, good reason must be shown why information obtained in legal proceedings should be used for the advantage of a non-party for purposes not related to those proceedings. The discretion is a broad one and all circumstances of the matter must be examined (UTSG at [58]).

Factors relevant to granting a non-party access to a Court file may include:

• the nature of the document

• the circumstances surrounding its creation

• the attitude of the person who created the document and any possible prejudice to that person

• the nature of the information in the document (whether it contains confidential or commercially sensitive information)

• importantly, the likely contribution of the document to allowing the non-party to achieve justice in other proceedings (UTSG at [58]).

Wilcox v Wilcox

This case involved a somewhat confused application by Robert Wilcox for access to a Court file relating to a deceased estate.

The initial application was to inspect the original Will of the late Ian Francis Sanderson, which was admitted to probate in 2011. The executor was the late mother of the applicant. The Registrar refused the application.

By notice of motion the applicant then sought a review of the Registrar’s decision pursuant to the relevant Court rules and joined two solicitors to his motion. The first solicitor was the executor and trustee of the applicant’s mother’s estate. The second solicitor prepared the executor’s affidavit in support of the application for probate of the Will of Mr Sanderson in 2010.

The applicant did not have legal representation but was informally assisted by a barrister acting as a ‘McKenzie friend’.

The background to the application for access stemmed from 2010 legal proceedings relating to the estate of Mr Sanderson in which the applicant sought a family provision order and claimed relief based on ‘contractual estoppel’. The applicant was successful in his family provision claim at first instance, but the decision was later overturned by the NSW Court of Appeal. This prompted Mr Wilcox to pursue an application for access based on what he alleged (without substantiation) was fraudulent behaviour.

The first solicitor opposed the application. The second solicitor should not have been joined in the motion as no relief had been sought against him and he had no interest in the outcome.

Ward CJ found that no error had been made by the Registrar in refusing the application for access to the original Will. Therefore, the application for review of the Registrar’s decision of 3 January 2018 should be dismissed.

In the proceedings before Ward CJ, the application for access was changed to seek an order for access to the entire probate file, mainly for inspecting the affidavits in support of the probate application. This was an endeavour by the applicant to find support for his serious fraud allegations.

In a fair and balanced judgment the Chief Judge allowed access provided Mr Wilcox paid the full costs of the two solicitors that he joined in his motion. An order for access was deferred to allow Mr Wilcox 14 days to provide brief written submissions on the costs issue.

The need for clear guidance

Non-parties seeking access to Court files should seek clear guidance on the process and risks involved, including precisely what documents need to be accessed and for what reasons. A speculative and unsubstantiated legal claim may not constitute the ‘exceptional circumstances’ required to allow the Court to grant access. Prudent guidance should also point out the risk of an administrative application for access becoming risky and costly contested Court proceedings.

Author: Gerard Basha