Augustson v Anthea Kay Augustson as executrix of the estate of Gary Francis Augustson

[2021] WASC 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AUGUSTSON -v- ANTHEA KAY AUGUSTSON as executrix of the estate of GARY FRANCIS AUGUSTSON [2021] WASC 184

CORAM:   KENNETH MARTIN J

HEARD:   ON THE PAPERS

DELIVERED          :   11 JUNE 2021

FILE NO/S:   CIV 1885 of 2020

BETWEEN:   IAN GARY AUGUSTSON

Plaintiff

AND

ANTHEA KAY AUGUSTSON as executrix of the estate of GARY FRANCIS AUGUSTSON

First Defendant

MINABY PTY LTD as trustee for THE AUGUSTSON FAMILY TRUST

Second Defendant

ANTHEA KAY AUGUSTSON

Third Defendant

NORTHKARA NOMINEES PTY LTD

Fourth Defendant

Catchwords:

Practice and procedure - Further use of discovered documents proposed - Release from Harman undertaking - Application not opposed - Special circumstances identified for leave

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Hager Grubb & Partners
First Defendant	:	Williams + Hughes
Second Defendant	:	Williams + Hughes
Third Defendant	:	Williams + Hughes
Fourth Defendant	:	Williams + Hughes

Case(s) referred to in decision(s):

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149

Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [2020] WASC 470

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

KENNETH MARTIN J:

Introduction

1. By his chamber summons dated 23 April 2021, the plaintiff brings what is an unopposed application for leave to make use of a number of specified documents obtained in this action in a further action that the plaintiff proposes to bring in this court.  That proposed action raises related, albeit distinct, issues concerning the administration of a discretionary trust of which the plaintiff is a discretionary beneficiary.  The specified documents in question were all obtained by the plaintiff from the defendants during the discovery process in this action.

2. As was recently explained by Le Miere J in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [2020] WASC 470 (Sandy) at [11], an implied undertaking, better understood as a substantive obligation, applies in relation to documents obtained as a result of the compulsory processes of the court. Such documents, once obtained, may only be used for the purposes for which they have been disclosed - and not for any further collateral or ulterior purpose. That negative use obligation attaching to such documents is sometimes referred to as a Harman undertaking - linked back to the adverse experience of one Harriet Harman (then a relatively junior lawyer and later a cabinet minister in the Blair and Brown governments of the United Kingdom), as related in the House of Lords decision Harman v Secretary of State for the Home Department [1983] 1 AC 280.

3. Nevertheless, as was explained by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, a court may grant leave to allow a further use of such an obtained document where good reason is established. Towards obtaining such permission, in Sandy Le Miere J observed at [12]:

   A court may release a party from the obligation described by the High Court in Hearne v Street, which I will refer to as the Harman obligation.  A person seeking leave to depart from the Harman obligation must show special circumstances.  The test of special circumstances is met if there is a special feature of the case which affords a reason for modifying or releasing the obligation.  This special feature is not usually present.  (my emphasis underlined)

4. I also mention the observations of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225, cited with approval in Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 at [23].

The present application

1. The plaintiff's chamber summons of 23 April 2021 seeking leave, in effect, to be released from his Harman obligation in respect of some 17 scheduled documents identified in the schedule to that summons was made returnable before me in chambers.

2. At that time, counsel for the defendants in the present action, Mr Robertson, indicated that the defendants would not seek to be heard towards opposing the plaintiff's application.  That stance, of course, relevant as it is, does not release the plaintiff from his primary obligation of persuading the court that there exists special circumstances justifying a grant of the leave that is sought to release him from his Harman obligation.

3. To that end, on 11 May 2021 I issued directions allowing for the plaintiff to file and serve written submissions in support of the present application, which I indicated would be determined by me on the papers.

4. Thereafter, I have received the plaintiff's written submissions dated 28 May 2021, signed by senior counsel, Mr Jackson SC.  Pursuant to my directions, a minute of proposed orders has also been provided under which it is sought that:

   1.The plaintiff have leave to use the documents listed in the Schedule to the plaintiff's Chamber Summons for Leave to Use Documents Discovered in this Action in Another Action dated 23 April 2021, being documents discovered in this action, in another action, being the action foreshadowed by the plaintiff in his affidavit sworn 21 April 2021 in support of the application

   2.No order as to costs.

1. For the short reasons that follow, I am of the view that special circumstances have indeed been demonstrated on the present application which provide a sufficient basis upon which leave releasing the plaintiff from his Harman obligations as proposed should be granted - in the terms of the orders sought under the plaintiff's minute.

Present action and proposed further action

1. The present action was commenced in 2020.  In short, the plaintiff contends that prior to the death of his late father, Gary Francis Augustson, he had been promised by his father that certain fishing assets of the family would pass to him.  Consequently, the plaintiff relied upon such promises, ultimately to his detriment when they were not met. 

2. Essentially then, what is presently pursued is an equitable promissory estoppel action by which the plaintiff seeks to obtain the fishing assets he contends were promised to him by his late father.  In that endeavour, he pursues this action against his father's widow, the first defendant, in her capacity as the executor of his late father's estate (as first defendant) and also in her personal capacity (as third defendant).  Likewise, the plaintiff pursues two related corporations.  The second defendant corporation, Minaby Pty Ltd (Minaby) is the trustee of the Augustson Family Trust and owns a number of crayfish licences which are the subject of the plaintiff's claim as fishing assets promised to him.  The fourth defendant, Northkara Nominees Pty Ltd, also owns a number of assets which are the subject of the plaintiff's claim.

3. In the course of the present action, the defendants have provided discovery verified by an affidavit of the first and third defendant, sworn 23 November 2020.

4. Arising out of the plaintiff's lawyers' scrutiny of some of the discovered materials has emerged a related by further concern of the plaintiff.  This arises over certain trust distributions made allegedly to non‑stipulated beneficiaries of the Auguston Family Trust - which then allegedly led to a 2021 amendment to the trust deed.  The plaintiff contends that the 2021 amendment is not a valid amendment for a number of reasons (see pars 5 to 10 of the plaintiff's written submissions dated 28 May 2021).

5. Consequently, under a proposed draft writ and statement of claim which are found annexed as attachment IGA5 to the plaintiff's affidavit sworn 23 April 2021 made in support of the present application, there can be observed what is proposed as the plaintiff's further action in this court and a draft statement of claim pleading that the plaintiff wishes to advance in this court on the proposed further action. 

6. The plaintiff's position, put very frankly and appropriately to the court, is that without utilising those identified discovered documents which were only obtained through the discovery processes undertaken to date in the present action, there is no sufficient foundation for him to support his proposed further action under the proposed statement of claim.

7. As may be further seen from the proposed writ of summons and statement of claim, there is a substantial overlap in terms of the proposed defendants which again, would include Minaby as first defendant (in its capacity as the trustee of the Augustson Family Trust), Anthea Kay Augustson as second defendant (in its capacity as guardian of the Augustson Family Trust), Anthea Kay Augustson as third defendant (in her own right) and Theary Pty Ltd as fourth defendant.

8. The remaining natural person proposed defendants appear to be wider members of the plaintiff's family who potentially stand to be affected by the relief sought in the plaintiff's proposed further action.

Evaluation of the present application

1. In the circumstances where there is a substantial intersection of like parties and related issues (albeit not identical) concerning or related to the fishing assets of the late Gary Augustson and their ownership and control via corporations now featuring the third defendant (Anthea Augustson) as a residual director, I am persuaded that special circumstances have been demonstrated to support a grant of leave in the terms as sought under the plaintiff's minute of orders. 

2. I am satisfied that there is a commonality between the proposed parties to a new action as essentially overlapping protagonists, under circumstances and where it would appear that, at least the same legal representation is likely to exist through the defendants' lawyers, Williams + Hughes, acting for the defendants, or at least most of them, in the proposed further proceedings.  That being the case, underlying policy issues concerning the protection of privacy and confidentiality of the discovered documents in their proposed further utilisation is significantly ameliorated.

3. In the end, I accept the essentially uncontradicted position as communicated under the plaintiff's written submissions in support of leave - to the effect that the proposed use of the specified discovered documents by the proposed further action of the plaintiff in this court is necessary and, indeed central, to the plaintiff's case and will facilitate an achieving of justice in those proceedings when commenced.

4. Consequently, upon publication of these reasons, orders should issue in the terms of the plaintiff's minute seen under the orders in [8] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RC

Research Associate to the Honourable Justice Martin

11 JUNE 2021