Berzins v Russo
[2008] SASC 192
•17 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BERZINS & ANOR v RUSSO & ANOR
[2008] SASC 192
Reasons of Judge Lunn a Master of the Supreme Court
17 July 2008
PROCEDURE
Pleading under Supreme Court Rules 2006 - one defendant in Probate action under 6R 205 seeking to strike out defence and counterclaim of another defendant under 6R 104 - whether this can be a resort to evidence - requirements for pleading a counterclaim - not pleaded with sufficient particularity or to disclose all material facts on case to be made out at trial - whether can obtain disclosure of documents before having to plead particulars - defence and counterclaim struck out.
BERZINS & ANOR v RUSSO & ANOR
[2008] SASC 192Reasons on the second defendant’s application to strike out the defence and counterclaim of the first defendant.
JUDGE LUNN: George Martin Broders (“the deceased’) died on 7 October 2006. The plaintiffs are his executors appointed under a will dated 20 June 2006. They have instituted this probate action seeking a grant of probate over that will in solemn form. The first defendant is a daughter of the deceased. The second defendant is the principal beneficiary under the will of 20 June 2006.
On 4 October 2007 the first defendant brought an interlocutory application under 6R 146 seeking orders for non-party discovery against 24 persons and on 7 November a further application for discovery against another non-party. When that first application initially came before me I expressed doubt whether any order could be made under 6R 146 until after the close of pleadings. The first defendant had the application adjourned. On 18 January 2008 she filed an amended defence and counterclaim (“the defence and counterclaim”) which pleaded that in respect of the 20 June 2006 will the deceased did not have testamentary capacity and in making it he had been subjected to undue influence by the second defendant. She counterclaimed for probate in solemn form of an earlier will dated 4 November 1990. On 25 March 2008 the solicitors for the second defendant wrote to the first defendant’s solicitors requesting that they amend the counterclaim to plead proper particulars of the allegations made. By a responding letter of 17 April 2008 the solicitor for the first defendant gave a few particulars, but asserted that either the defence and counterclaim complied with the Rules or that they would be obtaining a medical report from Dr Heckler, an expert gerontologist, after they had obtain the non party discovery previously sought.
On 7 May 2008 the second defendant issued an application in the following terms.
1That the Defence and Counterclaim of the first defendant be struck out as an abuse of process of the Court.
2Alternatively, that the defence and counterclaim of the first defendant be struck out pursuant to Rule 104 for failure to disclose a reasonable cause of action or defence and failure to comply with Rules 98, 99 and 100.
3Alternatively, an order pursuant to Rule 103 that the first defence (sic) provides further and better particulars of her defence and counterclaim.
…..
Application made pursuant to rule 25.04 of the Supreme Court Rules.
It was not suggested that the second defendant could not seek to strike out a defence and counterclaim of the first defendant. As it is a probate action in rem, one defendant can attack another defendant’s pleadings in this way. The plaintiffs took no part in the argument on this application and said they would abide the event.
The precise powers of the Court invoked by the second defendant on this application are important. Paragraph 2 is expressly limited to relief under 6R 104 which provides:
The Court may strike out a pleading in whole or in part if the pleading –
(a)does not comply with these rules; and
(b)is an abuse of the process of the Court or prejudices the proper conduct of the action.
In his submissions, counsel for the second defendant only referred to 6R 104. I infer that paragraph 1 is also brought under 6R 104. There was no reference to the application being brought under either 6R 193 or the inherent jurisdiction of the Court. The reference in the application to “Rule 25.04” is meaningless as there is no rule of that number in the present Rules. Insofar as it may have been a mistaken reference to the power to give summary judgment for a defendant under the Supreme Court Rules 1987 it is of no consequence because it was not suggested that the second defendant was seeking summary judgment under the equivalent 6R 232 of the Supreme Court Civil Rules 2006. (In relation to paragraph 3 counsel for the second defendant asked that it be deferred as he wished to consider, if necessary, whether he wished to pursue that before a defence was filed).
Rule 104 deals only with striking out pleadings and not striking out actions. The first defendant’s counterclaim, as a secondary action by her, cannot be struck out as an action brought by a cross-claim on the present application but only under the inherent jurisdiction of the Court or 6R 193. On this application the defence and counterclaim can only be struck out as pleadings and as nothing more. By analogy with the previous repealed rules, which dealt with striking out of pleadings as distinct from striking out of actions, the application is to be dealt with on the face of the pleading and not on affidavits about the evidence to support the pleadings: Egan v Minister for Transport (1976) 14 SASR 445 at 458; Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1985) 124 LSJS 15 at 17-18. Under 6R 104 the only relevance here of the affidavits about the evidence to the matters pleaded by the first defendant, or the lack of that evidence, is on the consequential issue of whether the second defendant should be given permission to re-plead her defence and counterclaim.
Counsel for the second defendant relied on English cases saying that it was an abuse of process to bring an action where there was no evidence of a reasonable basis for it: Steamship Mutual Underwriting Ltd v Trollope & Colls Ltd (1986) 33 Building Law Review 77; Hytrac Conveyors Ltd c Conveyors International Ltd [1983] 1 WLR 44. However, these cases were concerned with striking out the action, and not merely the pleading. They are not applicable under 6R 104.
6R 98 provides in respect of both defences and counterclaims:
General rules of pleading
98 …..
(2)A pleading –
…..
(b)must state only material facts relied on and not the evidence or arguments by which the facts are to be proved; and
(c)must not contain matter that is –
…..
(iii)frivolous or vexatious; or
(iv)an abuse of the process of the Court in some other respect.
(d)must plead such facts as give fair notice of the party’s case at trial.
6R 100(1)(e) provides that the defence:
(e)must contain a short statement of material facts on which each special defence is based.
6R 91(1) provides that originating process for a secondary action must include, or be accompanied by, a statement of the plaintiff’s claim. By 6R 29(1)(a) counterclaims are secondary actions. 6R 99(1) on statements of claim generally, which by virtue of the Rules previously mentioned, applies to counterclaims and requires that the counterclaim:
(c)must contain a short statement of material facts on which each cause of action is based.
Under the Rules quoted, both the defence and the counterclaim (which are in similar terms) must plead both the material facts relied on and such facts as give fair notice of the first defendant’s case at trial. I accept the submission of the second defendant’s counsel that the defence and counterclaim do not satisfy these requirements in significant ways and to such an extent that they prejudice the proper conduct of the action. The pleadings are far too general and lacking in particularity. As I said in Wunda Joinery Pty Ltd (in liquidation) v Wunda Projects Australia Pty Limited & Ors, 16 August 2007, [2007] SASC 301 at [9]:
These, and other, paragraphs of the SOC adopt a style of generalised, vague and elliptical pleadings which was common before the repealed R 46 and 46A, but which those rules had sought to eliminate: Rupcic v Baulderstone (1987) 46 SASR99 at 102-103; Williams v Telecommunication Commission (1988) 52 SASR 215 at 222; Jones v Nuske below. The practice of say as little as possible in a pleading so as to give the party as much room as possible to manoeuvre at the trial within the breadth and generality of the pleading is to be firmly discouraged. The vice in paragraphs 16-18 of the SOC is not merely a lack of particularity, but an embarrassment and prejudice to the Court and the other parties from not being given a meaningful and functional pleading. A useful test for a meaningful and functional pleading is having read it do I believe that I understand the essence of the case being put forward by the pleader. Here I do not.
Similar comments apply here.
The parts of the pleading particularly suffering from these defects are:
3 …..
ithe deceased did not intend to give effect to the 2006 will; and
iithe deceased did not have the testamentary capacity to make that will; and
…..
ivthe 2006 will was made in suspicious circumstances.
3.1….
…..
3.1.2did not the nature, extent and value of his estate;
3.1.3 was not aware of the nature of the claims of the first defendant.
…..
3.3The deceased at the time at the time (sic) he gave instructions for and executed the 2006 will was suffering diseases, impairments and/or mental conditions that
3.3.1adversely impacted on his frontal and executive brain function; and
3.3.2impaired his decision-making and judgment to a degree which impaired his testamentary capacity and in addition made him vulnerable to influence.
3.4The deceased at the time he gave instructions for and executed the 2006 will had a history of heavy alcohol consumption prior to the date of the execution which adversely impacted on his short-term memory and executive function to a degree which impaired his testamentary capacity and in addition made him overborne by influence brought to bear by the second defendant.
3.5The deceased at the time he gave instructions for and executed the 2006 will was suffering numerous diseases, impairments and/or mental conditions of such severity and length, the combined and cumulative effect of which was that he was so feeble as to have lost his testamentary capacity and so dependent as to have become vulnerable to influence by the second defendant.
3.6The deceased in the making of the 2006 will contradicted his previous testamentary intentions expressed frequently and over a long period of time when he had a sound, fess and disposing mind and memory.
…..
3.8The deceased at the time he gave instructions for and executed the 2006 will forgot or was mentally unable to consider that which he had promised to the first defendant in lucid times with his significant Latvian assets and his reasons for those promises.
…..
4.1The deceased was influenced by the second defendant when he gave instructions for and executed the 2006 will.
4.1.1The deceased entered into a relationship with the second defendant …..
…..
4.1.3That relationship was also founded on the financial support of the second defendant by the deceased.
4.1.4A relationship of physical, mental and emotional dependence from the deceased to the second defendant developed within a short time of the commencement of their relationship and he needed her as carer, companion, secretary, nurse and sexual partner¸ which services she gave to him.
4.1.5The second defendant threatened to withdraw her services to the deceased upon which he depended unless he acceded to her wishes concerning his testamentary dispositions and accordingly he acceded to her wishes.
…..
4.1.7The second defendant against the will of the deceased, isolated the deceased from his only child, the first defendant, and from his only grandchild his grandson Dario, from his only brother Falks Broders and from his cousin and property manager Dedzis Broders in Latvia.
4.1.7.1She did not allow the deceased to see any of them alone; and accordingly
4.1.7.2she removed privacy, intimacy and a close personal relationship of the deceased from his family, thus alienating the deceased from the abovenamed persons …..
4.1.7.3she destroyed the deceased’s independent way of thinking;
4.1.7.4she caused the deceased to mistrust Dedzis Broders;
4.1.7.5she severed the deceased from their advice and counsel; and
4.1.7.6she took over his mind.
4.1.8The deceased recognized the second defendant’s influence upon him but was unable to resist it.
4.1.9The deceased became feeble and lost his ability to exercise his own will or to resist the will of the second defendant.
Without going through every instance, there is no indication what the second defendant’s case at trial will be concerning the “suspicious circumstances” in 3(iv), “the nature of the claims of the first defendant” in 3.1.3, the “diseases, impairments and/or mental conditions” in 3.3 and 3.5, “his previous testamentary intentions” in 3.6, the promises and the reasons for them referred to in 3.8, the “financial support” in 4.1.3, the threat in 4.1.5 and the acts by which the deceased was isolated in 4.1.7.
Some of the pleading quoted is no more than statements of conclusions drawn from unstated material facts. Those material facts must be pleaded: Seven Network Ltd v News Limited [2003] FCA 388, 6 May 2003; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; H Stanke & Sons v O’Meara below at [91].
As was the position under R 46A of the Supreme Court Rules 1987 a pleader is required from the outset to state the material facts, and the facts to give fair notice of the case, in the initial pleading: Salena Estate Wines Pty Ltd v De Vitol, Full Court, [2005] SASC 274 at [49]. It is no longer permissible to delay giving particulars until the Court makes interlocutory orders that they be given. Insofar as a party cannot plead a necessary part of the pleading until later, that needs to be acknowledged in the pleading, and then it is in the discretion of the Court whether to allow the pleading of those matters to be deferred: Wunda Joinery Pty Ltd v Wunda Projects Australia Pty Ltd above at [26], where I said:
….. There is no doubt that the Court has a discretion to allow a party to defer giving particulars until after it has had disclosure and inspection of the other parties’ documents: Chapman v Conservation Council of SA, Debelle J, [1998] SASC s 6973; Electricity Trust of SA v Union Insurance Company, Perry J, 9 July 1997, Judgment No S 6241; Ross v Blake Motors [1951] 2 All ER 689 at 695. In order to exercise that discretion the Court should have some factual basis on which to act which causes it to conclude that the plaintiff does not have the documents it needs to give the necessary particulars, the other party does have those documents and the justice of the case requires that there should be disclosure of them before the particulars are given. …..
That was not done here.
Counsel for the first defendant referred (without naming it) to the decision of Marini v MLH Insurance Brokers Pty Ltd, Besanko J, 2 December 2004, Judgment No [2004] SASC 400, unreported at [18] which held that an action should not ordinarily be struck out for want of particularity. To similar effect it was said in H Stanke & Sons Pty Ltd v O’Meara (2007) 97 SASR 450 at [91] that pleadings should not be struck out for want of particularity, but rather an order should be sought for further particulars to be given. However, this is not the ordinary case. There is some considerable doubt on the affidavits whether the first defendant can plead the necessary material facts and particularity. In any event this is not only a defect of want of particularity but also of the material facts from which conclusions have been drawn: Holcon Australia Pty Ltd v Corporation of Walkerville, White J, 13 December 2007, Judgment No [2007] SASC 437 at [17-18]. Thus it is proper to strike out the defence and counterclaim and to put an onus on the first defendant to put forward a pleading in proper form if a further defence and counterclaim is to be pursued. (While some of the defects may be able to be dealt with by amendment, it is undesirable to adopt a piece-meal approach and it is in the interests of justice that the whole pleading should be struck out at this stage).
Accordingly, there will be an order that the defence and counterclaim filed on 18 January 2008 be struck out.
The first defendant’s two applications under 6R 146 were also argued concurrently with the second defendant’s application. They are to be dismissed as there is no longer any question in issue in the proceeding raised by the pleading to which the applications can relate. If these applications are to be renewed in any form, I indicate that they were too broad in their scope and not to have been sufficiently related to what information Dr Heckler required to give her report. As it may be the subject of argument, I make no comment on whether it is now open to the first defendant to make any application under 6R 32 before any application is made to file a further counterclaim.
I have today made the following orders:
1That the amended defence and counterclaim of the first defendant filed on 18 January 2008 be struck out as pleadings.
2Liberty to the first defendant to apply for permission to file any further defence and counterclaim.
3The applications by first defendant under 6R 146 of 4 October 2007 and 7 November 2007 are dismissed.
4The first defendant is to be liable to the second defendant for her costs as agreed or adjudicated upon for the application to strike out and for non party discovery.
5Hearings on 10 and 26 June 2008 certified fit for counsel for the second defendant.
6First defendant to be liable to the plaintiffs for their costs as agreed or adjudicated upon of the applications for non party discovery.
7Liberty to the second defendant to apply for any supplementary orders relating to costs.
8Further directions hearing set for 25 July 2008 at 9.45 am.
11
0