Which case won?

The case for the executor
  • I don’t want my brother to know my home address because his past history gives me every reason to be concerned for my safety.
  • My brother has served two prison terms, including one for the manufacture of methylamphetamine.
  • While he was on bail, he tried to procure someone to render a potential victim blind and deaf as retribution for telling the police about his drug manufacturing.
  • I have received intense abuse, intimidation and threats from my brother.
  • The abuse and intimidation were so extreme that I was forced to cease contact with my mother during her lifetime.
  • My brother currently does not know my residential address and I wish to ensure this remains the case, particularly since he has stated his intention to make a claim for a family provision order out of our mother’s estate.
The case for the probate jurisdiction
  • It is a fundamental principle of our legal system that justice is administered openly, in courts and by judgments that are accessible to the public.
  • While it is true that the brother in question has a criminal history, the judgment against him was more than ten years ago.
  • The executor has provided no evidence of the nature or content of the abuse, intimidation and threats he claims his brother has made.
  • If the executor is concerned for his safety, he could take the simple step of contacting the police to seek an apprehended personal violence order against his brother.
  • There is no evidence that the executor’s address has been omitted from documents in these or in previous legal proceedings, nor any evidence that the address has previously been regarded as confidential.
  • The brother in question could easily find the executor’s address by other means.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a46%
case b54%

Expert commentary on the court's decision

Olivia Galvin
Olivia GalvinParalegal
“Mere embarrassment, discomfort, reputational damage, or even financial loss are not sufficient to justify a departure from the principle of open justice.”
Executor fails to obtain suppression order for home address

In the case of Application of Connelly; The Estate of Nancy Allwood Connelly [2023] NSWSC 467, the judge decided not to suppress the address of Maxwell Gordon Connelly, the first executor of the estate, despite the arguments he had advanced regarding his brother Richard Warren James Connelly. 

The court was not swayed by Richard Connelly’s criminal history, pointing out not only that it dated back more than ten years, but also that “the judgment of another court… is not admissible to prove the existence of a fact in this proceeding.” 

It was noted that under section 178 of the Evidence Act, there is a procedure for obtaining a certificate setting out particulars of a criminal conviction. Maxwell Connelly could have obtained such a certificate as evidence to the court of his brother’s criminal past, but he did not do so. 

Duty of court to protect from violence, intimidation and stalking

The Supreme Court has a duty to protect everyone from violence, including intimidation and stalking. It is a fundamental aspect of maintaining a fair, just and secure legal system. 

However, in this case the evidence provided by Maxwell Connelly of the abuse and intimidation he claimed to have suffered was unconvincingly vague. He provided only conclusionary statements that the abuse had occurred, without giving any examples of such abuse. 

The judge suggested that if he had further evidence and concerns for his safety, he should seek an apprehended personal violence order, as this process is safe, speedy, inexpensive and simple. 

Importance of safeguarding public interest in open justice

The court drew upon several earlier judgments in stating that suppression orders should only be made in exceptional circumstances, as they represent “a departure from the general and fundamental principle that justice is administered openly, in courts and by judgments that are accessible to the general public.” 

Such orders must “do no more than is necessary to achieve the due administration of justice, based on the material before the court.” 

The court pointed out that any departure from open justice required a compelling justification. Mere embarrassment, discomfort, reputational damage, or even financial loss were not sufficient to justify a departure from this principle. 

It was noted that the outcome may have been different if Maxwell Connelly had provided more evidence of his brother’s behaviour. 

Administration of deceased estates

When a person dies leaving an asset pool of $30,000 or more, a grant of probate, or letters of administration (if there is no will) must be obtained to allow for the transfer of such assets.  

The role of an executor in a probate application is to attend to the signing of legal documentation and to distribute the estate in accordance with the deceased’s wishes.  

Conflict between an executor and other beneficiaries can complicate the administration of a deceased estate. 

It is important to speak to your lawyer in the first instance if you wish for any details to remain private in a legal proceeding.  

If you are worried for your safety, you should go to the police. 

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

Latest from Stacks

chat button

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy