The Law
76Wills can be proved in two ways; being a grant in common form or in solemn form. A grant is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SASR 394 at 398. In the case of a grant in common form, the grant is revocable. The grant, in this respect, is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris & Anor v Belliars & Ors [2010] SASC 147 at [35].
77In the case of a grant in solemn form, (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant) the grant of probate is irrevocable. Or as was put in Tobin v Ezekiel [2012] NSWCA 285, by Campbell JA, at [7]:
"The situation is rather that a grant in solemn form is binding on the parties to the probate suit in which it was granted, on anyone who has been cited to see the proceedings, and also on anyone of full capacity who has an interest and knows of the proceedings but chooses not to intervene: Osborne v Smith (1960) 105 CLR 153; Williams, Mortimer and Sunnucks, op cit p 270."
78As stated, the Plaintiff now seeks the grant in solemn form.
79Section 8 of the Act provides:
"(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State."
80The section applies to wills, whenever made, if the testator dies on, or after, the commencement of the Act (1 March 2008): see Cl 3(3) of Sch 1 of the Act.
81The Act does not comprehensively define a will. Section 3(1) of the Act simply defines "will" as including "a codicil and any other testamentary disposition". It is not necessary that the document said to be a will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a will: Romano v Romano [2003] NSWSC 436, per Bryson J, at [6] - [8].
82As has been written, the Plaintiff relies upon s 8 of the Act. It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594:
"[77] There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J.
[78] The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."
83In Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote:
"Secondly, s18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."
84(While Mahoney JA dissented in the result of that case, the majority did not disagree with his Honour's exposition of the law, which seem no different in principle to those propositions of law articulated by the majority.)
85This passage should not be taken to mean, however, that the statutory formalities enshrined in the Act are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111, at [6]; Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127, at [20].
86In Estate of Masters (decd), Re; Hill v Plummer Priestley JA, at 466, wrote that the particular questions for determination, are "essentially questions of fact".
87The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. Of course, in deciding whether the Court is so satisfied, I am required to take into account that these are Probate proceedings (the nature of the cause of action); that to be determined is what is the last testamentary document of the deceased (the nature of the subject matter of the proceeding); and the gravity of the matters alleged (s 140 Evidence Act 1995).
88In this regard, however, there can be no doubt, and the parties agree, in the present case, that the 2011 document:
(i) Is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them.
(ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": Estate of Williams deceased (1984) 36 SASR 423, at 425.
(iii) Purports to state the testamentary intentions of the deceased.
89In regard to the last matter, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86 at 91 - 92, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, said:
"What is the meaning of the expression 'purporting to be' a will or codicil? ... [T]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which 'purports', to be a will... This document... is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which 'purports' to be a will."
90In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd [1994] FCA 1059; (1994) 51 FCR 446, at 452, Hill J in dealing with the Corporations Law, said:
"The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as:- '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'"
91In Hill v Plummer; In The Estate of Masters, Priestley JA pointed out, at 469, that:
"A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person."
92In Yazbek v Yazbek, Slattery J said, at [83]:
"Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA."
93There is an additional element to be established by a plaintiff. That is, for a document to be declared to be a testamentary instrument pursuant to s 8 of the Act, it is not sufficient that it purports to state only the deceased's testamentary intentions. The deceased must also have intended the document to form his, or her, will, or an alteration to his, or her, will. Thus, for the 2011 document to be admitted to probate, the Plaintiff must establish, on the balance of probabilities, that deceased intended that it operate as his Will, or as an alteration to his Will; that is, it was intended by him to govern the disposition of his property, or some of it, after his death.
94As was recently pointed out by White J in Re Estate of Puruto [2012] NSWSC 827, at [28], "... it is sometimes put the deceased must have intended that, without more, the document should have effect as her Will" (my emphasis). (The genesis of the highlighted phrase is taken from a number of judgments of Powell J including The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (NSWSC, 19 June 1992, unreported). However, in Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56], Powell JA, as a member of the Court of Appeal, with whom Priestley and Stein JJA agreed, noted that the words used in other cases were "without more on her, or his, part".)
95In my view, the use of the words "without more on her, or his, part", where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to "state the testamentary intentions of the deceased person", and then determine whether the Court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question.
96I respectfully agree with what White J said in NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872, at [15]:
"To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55])."
97Also, I accept, as Windeyer AJ pointed out in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, at [18], that:
"Great care must be taken in determining this question. Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills."
98In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way:
"... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the property of the deceased dealt with in the document was to be disposed of upon his or her death."
99It is important, in this regard, to remember what Wrangham J said in In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852, at 855 - 856:
"As Salter J said in Beech's case (In the Estate of Beech, deceased [1923] P 46 at 57):
'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.'
In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on."
100In Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, White J, at [17], noted, also:
"Section 8 permits part of a document to form a deceased person's will if it states his or her testamentary intentions and the person intended that part of the document to operate as his will. The intention that the document, or part, form the person's will may, and usually will, exist at the time the document is brought into existence. But the section may also be satisfied if the deceased subsequently forms the intention that the document, or part, have a present operation as the deceased's will. (See Bell v Crewes [2011] NSWSC 1159 at [25] citing Application of Kencalo; In the Estate of Buharoff ; and Mr Justice Powell, " Recent Developments in New South Wales in the law relating to wills " (1993) 67 ALJ 25 at [38]).
101In determining whether the Court is satisfied that the deceased person "intended the document to form his, or her, will, or to form an alteration to his, or her, will", the Court may, in addition to the document or part, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
102It is always difficult to assess the intentions of a person who has left no specific directions, or indications, relating to his, or her, will. All that the Court can do, in those circumstances, is to look at such facts as are available, in order to determine what was more likely to have been intended by the deceased in respect of the document concerned: In The Estate of Stewart (unreported decision, Cohen J 12 April, 1996).
103In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J noted, at 539-540:
"While each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
It will, I think, be apparent from what I have said - and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge - that, in cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than "instructions", or a note of "instructions", for a will (see, eg, In the Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will."
104A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at 111.
105The object of a signature on a testamentary document was recently considered in Marley v Rawlings [2012] EWCA Civ 61; [2013] 2 WLR 205. After referring to Wood v Smith, Mrs Justice Proudman, at [51], wrote:
"Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made. In support of this view of the purpose of the signature, it is worth noting that in devising rules to apply after the Wills Act, in Guardhouse v Blackburn (1865-69) LR 1 P & D 109 at 116, Sir J P Wilde included the following:
"Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents.""
106While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative: In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452.
107The document, itself, must also be considered in context (Estate of Gwendoline Myrtle Wray; Public Trustee v Commins; Masters v Cameron [1954] 91 CLR 353; The Estate of Silady (NSWSC, 21 November, 1994, unreported). An intention that the document be the will of the person who wrote it may be inferred from the physical form of the document itself: The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111; In the Estate of Margaret, Deceased, [2012] NSWSC 1490, at [31].
108Also important to bear in mind will be the degree of closeness in time of death to the preparation of the document; evidence of the deceased's state of mind leading up to the preparation of the document; and the availability of persons to act as attesting witnesses (Re Nicholls [1996] 1 Qd R 179, at 181-182); and the relative publicity given to the document: Snape v Gibson Re Estate of Paul Francis Snape [2006] NSWSC 829.
109Additionally, the Court may take into account the existence of prior solicitor-drawn wills when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may effect the question whether the court should be satisfied that the deceased intended the informal document to be his, or her, will or an alteration to his, or her, will: Estate of Peter Brock, per Hollingworth J, at [34].
110In this case, the 2011 document commences with the words "To Hamer & Hamer Legal ... I wish you to make the following changes to my current will". Although I shall refer to the Defendant's submissions in more detail, later, she submits that the document should be regarded as "nothing other than a list of instructions to Mr Hamer for (as the document states) changes to my current will".
111This submission requires a consideration of the principles that apply in respect of instructions and whether instructions for a will may be admitted to probate.
112I gratefully adopt, in this regard, what was recently stated by Philippides J in the Supreme Court of Queensland in Re Gloria May Limpus Deceased [2013] QSC 66:
"[6] In Theobald on Wills, it is stated in respect of "instructions for a will" that:
"A duly executed instrument, described as instructions for a will, may have effect as a will, if it appears that it was intended to take effect in the absence of a more formal instrument."
[7] On that topic the learned authors of Jarman on Wills state as follows:
"Instructions for a will
A paper merely expressing an intention to instruct a solicitor to prepare a will making a particular disposition of property, will not be admitted to probate in the absence of evidence of intention that such paper should have a testamentary operation. But instruments headed 'Plan of a will', or 'Heads of a will', or 'Sketch of my will', or 'Memorandum of my intended will', or 'Notes of an intended settlement', have been held to operate as valid testamentary dispositions, if duly executed. But probate was refused of an instrument duly executed and attested as a will, but headed 'This is not meant as a legal will, but as a guide'."
[8] Likewise, Williams on Wills states:
"Instructions for will. These can be admitted only if executed as a will[ and must be something more than mere heads of instructions."
[9] The matters has been considered in New Zealand in the decisions of In re Gilmour [1948] NZLR 687 and In re Barnes (Deceased), Public Trustee v Barnes [1954] NZLR 714.
[10] In In re Barnes the testator signed, in his solicitor's office, a document headed "Instructions for the will of [the testator]" and the signatures of two witnesses were appended to it. The testator was informed that a will in proper form could be prepared ready for execution the same afternoon by 5.00 pm, but he said he could not wait. He died more than a year later, without having executed any other testamentary document. The evidence showed that, during the last weeks of his life, he intended to make a new final will, and the making of such will would have included the revocation of the "instructions" document.
[11] Turner J held that, on the evidence, the testator executed the document meaning that it should operate as his effective will unless before his death he should execute in its stead a more formal document, embodying the same provisions, which his solicitor was to prepare. There was no need to rely on the presumption that the document, duly executed, was intended to be a will, as the testator's solicitor's evidence was sufficient to help to convince the court that the testator executed the document intending that it would operate as a will until some more formal document should be prepared and executed. Having considered the decision of In re Gilmour [1948] NZLR 687, Turner J said (at 718):
"In the present case, like Gresson J [in In re Gilmour], I am put upon inquiry by the use of the term 'instructions for a will', by the lack of form of the document, and by the absence of any words designating it as a final testamentary instrument. Like Gresson J, I listened to such extrinsic evidence as was available as to the circumstances in which the document came to be executed; but, unlike him, I was presented with direct and cogent evidence - that of [the testator's solicitor]. It clearly appears from this evidence that the document was signed so as to operate as a will until a more formal document should be signed."
[12] In re Barnes was considered by the Supreme Court of Western Australian in Re Ogley (dec'd); Ex parte The Public Trustee [2004] WASC 277. In that case, Mr Johnstone, a Wills Manager with the Public Trust Office completed a form headed "Will Instructions" with information provided by Mr Ogley's wife. The form was a standard form used by the Public Trustee to take down instructions from a testator with the intent that a formal will will be drawn up at a later date. Mr Johnstone then met with Mr Ogley, who was suffering from cancer and expected to have three to six months to live, and read through the instructions and explained to him what was in those instructions in some detail. Mr Ogley confirmed that what was written was in accordance with his wishes. Mr Ogley, Mrs Ogley and Mr Johnstone signed the form at the bottom of the final page and it was dated by Mr Johnstone. The signatures of Mr and Mrs Ogley were then witnessed. The Registrar declined to grant probate in common form because he was not satisfied that the deceased intended the document in question to be his will. An appeal against that decision was allowed and probate in common form was granted.
[13] In determining the matter, Sanderson M referred to the South Australian decision of Estate of Treloar (1984) 36 SASR 41, to In re Barnes, and to some of the early English authorities, and said:
"[13] The circumstances in which a Will can be contained in instructions were discussed by Legoe J in the Estate of Treloar (1984) 36 SASR 41. His Honour refers to Tristam & Coote, Theobald and Halsbury's Laws of England, in setting out the circumstances when instructions for a Will may have effect as a Will: see pp 43-44. These include:
(a) if it can be shown that the instructions represented how the testator intended to dispose of the estate;
(b) if the instrument was intended to take effect in the absence of a more formal document;
(c) if the document should be depository and operate provisionally until a more formal will was prepared.
[14] In the Goods of Fisher (1869) 20 LTR 684, Lord Penzance directs that a presumption arises when instructions are executed that it is intended will take effect as a Will, even where in future a more regular form is intended. In Re Meynill; Meynill v Meynill (1940) WN 273, Barnard J accepts that the presumption arises where formalities have not been complied with. In In re Barnes (Dec) [1954] NZLR 714 Turner J expressed the view that if the document has been executed animo testandi and the formalities observed, it becomes the last Will and testament of the deceased and was not revoked by any 'mere change of intention'. It is to be noted that the authorities suggest that a Will is not to be regarded as contained in instructions in the absence of evidence of animus testandi: see Lister v Smith (1863) 3 Sw & Tr 282; Torre v Castle (1836) 1 Curt 303; Whyte v Pollok (1882) 7 App Cas 400."
[14] Nevertheless, Sanderson M cautioned:
"Having said all of that, it is clear that each case must be decided on its merit 'because so much depends on the particular circumstances': see Hines v Hines [1999] WASC 111 per Owen J at 25. In that same case his Honour pointed out (at 26) that determining whether the document is a testamentary instrument is a less difficult task when independent evidence is available."
[15] Sanderson M concluded at [18] that, while the evidence was "thin", he was satisfied that it established that the deceased intended that the signed instructions would be an "interim will". The deceased, by his conduct, had indicated that he had signed a will and was satisfied that what he was signing was consistent with the way he intended to dispose of his property. Sanderson M further observed at [19]:
"It must be borne in mind in an application such as this that it is the Court's role to facilitate, rather than hinder a deceased's intention to settle his affairs. That is what Lord O'Hagan said so long ago [in Whyte v Pollok (1882) 7 App Cas 400] and it is as true today as it was then. In my view, there is no justification for coming to any conclusion other than that the signed instructions contain the Will of the deceased."
113I make it clear that I do not intend what I have described as "principles" or "statements in other cases" to be elevated into rules of law. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.
114As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380, in another context, but equally apt in this case, at [131]:
"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."