Section 56(3) of the Civil Procedure Act 2005 (NSW) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. That conduct is also measured against the common law (including equity) and statutory obligations of an executor, including to the Court.
The role of executor is given legal effect by an order of the Court. It is a fiduciary position which also ensures the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.
On 9 June 2009, Ronald Whit (“the deceased”) died, leaving a Will dated May 1997 (the Will). The deceased’s son Ronald Whit (“the executor”) was granted probate by the Court on 1 June 2017 supported by an affidavit filed on 24 May 2017, which set out the assets of the Estate at $175,000 net assets.
Ms Mottley (“the plaintiff”) commenced proceedings on 21 December 2018 seeking that the grant of probate be revoked and that the executor file verified accounts (“the proceedings”). The plaintiff engaged a process server to serve the commencing documents personally on the executor at his address in Yallourn North, Victoria; those attempts occurred between January and July 2019.
The Court made orders on September 2 2019, although the statement of claim was personally served on the executor on 6 September 2019, he has no recollection that this occurred. extending the time for service of the statement of claim upon the executor to 21 December 2019. Orders were also made for substituted service.
On 25 November 2019, the Court listed the matter for hearing on 3 February 2020 and made an order for the plaintiff to notify the executor of the hearing date. The plaintiff’s solicitor sent a letter by express post to the executor on 26 November 2019, notifying him of the hearing on 3 February 2020 to his address in Yallourn North, Victoria, and his email address; an SMS message notifying the executor of the hearing date on 27 November 2019.
The executor moved out of the address in Yallourn North, Victoria around early December 2019.
In February 2020, the proceedings were listed for hearing and directions before Rein J. The executor did not appear. Further orders were made that the plaintiff serve the orders personally on the executor. Between 14 February 2020 and 17 August 2020, several attempts were made to locate and personally serve the executor following those orders.
On 19 August 2020, the plaintiff’s solicitor sent an email to the executor that included:
- (a) A copy of the Court’s Judgment of 14 February 2020.
- (b) A copy of Exhibit A, the Court Book referred to in the Judgment of 14 February 2020.
- (c) A copy of the written submissions provided by Counsel to the Court for the hearing on Monday 3 February 2020, Counsel’s later submissions emailed to his Honour’s Associate on Monday 10 February 2020, a copy of the Affidavit of Patrick Thomas Smith dated 11 August 2020, and a copy of the Affidavit of Michael Henry Atkinson dated 30 January 2020.
- (d) a copy of the orders made on 19 August 2020.
On 16 October 2020, the proceedings were listed for hearing; the executor did not appear in person or via audio-visual link.
The plaintiff’s representatives sought a bench warrant for the executor’s arrest; two days later Rein J ordered that a warrant be issued under s97 of the Civil Procedure Act 2005 addressed to the sheriff to arrest the executor and to bring that person before the Court for these proceedings detaining that person in custody in the meantime.
The Sheriff’s Office sent a letter by express post and via email to the defendant on 22 February 2021, requiring him to surrender himself to the Court by 24 March 2021. The defendant did not surrender himself to the Court.
On 13 December 2021, the executor was arrested in a caravan park at Moe, Victoria, by several Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sheriff’s Officers. The following morning the executor was flown to Sydney in the custody of NSW Sheriff’s Officers.
The proceedings returned for further directions before Rein J on 15 December 2021. The executor was present in court and was separately represented for the substantive probate proceedings and the contempt motion. The executor did not comply with the orders made on 15 December 2021
On 21 March 2022, the proceedings were listed for directions before Hallen J. the executor personally assured the Court that he would comply with the Orders by 4 April 2022. The executor failed to comply with the Orders by 4 April 2022 or at all and it has now been 12 months’ non-compliance with the Orders.
In Prothonotary of the Supreme Court of New South Wales v Whit  NSWSC 264 the New South Wales Supreme Court sentenced the executor to twelve months imprisonment, subject to the sentence being suspended if he complied with the Court’s orders that gave rise to the proceedings against him.
‘In addition to the need both to punish Mr Whit and compel his compliance with the orders of which he was in contempt, his sentence may serve as a salutary reminder of the importance the Court attaches to the proper discharge of an executor’s duties and to deter departure from the high standard of conduct which is expected of executors both under the general law and statute’Prothonotary of the Supreme Court of New South Wales v Whit  NSWSC 264 at 
Moreover, ‘his contemptuous conduct occurred in the context of him being an executor and defendant in proceedings affecting the estate committed to his administration’ (at ).
The Court determined inter alia that a sentence of one year was appropriate considering ‘the need for a sentence that would be sufficient to deter others from similar conduct and remind executors generally of the importance of their obligations as such both inside and outside the courtroom’.Prothonotary of the Supreme Court of New South Wales v Whit  NSWSC 264 at 
In sentencing, the Court considered that the executor’s conduct has been a criminal contempt involving serious or contumacious disregard of the Orders. That seriousness is established by the Executor Issue and the Circumstances [70-74]. The Orders required compliance by 2 March 2022. The executor offered no reason, motive or excuse for his contempt. Furthermore, the Court believes the seriousness of the contempt was aggravated by the executor’s failure to fulfil his further assurance to the Court on 21 March 2022. That aggravating feature warrants a longer sentence than might otherwise have been the case.