Berzins v Russo (No 2) - [2009] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BERZINS & ANOR v RUSSO & ANOR (No 2)
[2009] SASC 119
Reasons of Judge Lunn a Master of the Supreme Court
4 May 2009
PROCEDURE
Disclosure of documents sought under 6R 146 from doctors and hospitals on issues in Probate action of testamentary capacity and undue influence - criteria for orders - degree of relevance required - "fishing" - some orders made and some refused.

BERZINS & ANOR v RUSSO & ANOR (No 2)
[2009] SASC 119
Reasons on 1^st defendant’s applications for non-party disclosure of documents.

JUDGE LUNN: This is an action for probate in solemn form of a will of the late George Broders (“the deceased”) who died on 7 October 2006. The plaintiffs are the executors appointed under two of his wills and the 2^nd defendant is the principal beneficiary under them. The first defendant is the daughter of the deceased who is the principal beneficiary under an earlier will.
The first defendant has pleaded by her defence and counterclaim that the deceased did not have testamentary capacity and/or was subject to undue influence from the second defendant when he made his will of 20 June 2006 and also his earlier will of 24 February 2004. The first defendant seeks by counterclaim to propound a will made in November 1990.
By an application dated 1 April 2009 the first defendant seeks orders under 6R 146 for non-party disclosure and production of documents against 15 hospitals or doctors. This application supersedes two earlier similar applications made by the first defendant on which no orders were made because the applications were premature in that the pleadings had not been closed so as to enable what documents were relevant to matters in issue to be defined.
Rule 146(1) provides:
(1)If the Court is satisfied, on application by a party to proceedings, that a person (the respondent) who is not a party may be in possession of evidentiary material relevant to a question in issue in the proceedings, the Court may order the respondent-
(a) to disclose to the Court whether the respondent is or has been in possession of relevant evidentiary material; and
(b) if the respondent remains in possession of relevant evidentiary material-to produce it to the Court or to any party or, if the respondent has been but is no longer in possession of relevant evidentiary material, to give the Court any information in the respondent’s possession about the present whereabouts of the material.
The “evidentiary material” here is only documents. Any order must be limited to documents “relevant to a question in issue in the proceedings”. In opposing some of the orders sought the second defendant did not seek to pursue a line of authority under the corresponding repealed 87R 60 that such disclosure was limited to directly relevant documents. In any event I have held that 87R 60 is not to be so construed: Giorgio v Fiorita, 23 August 2008, [2008] SASC 281.
I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berzins v Russo (No 2)

Details

AGLC: Berzins v Russo (No 2) [2009] SASC 119
Case: [2009] SASC 119
Decision Date: 4 May 2009

CaseChat Overview and Summary

The case of Berzins v Russo (No 2) is an action for the probate of a will in solemn form of the late George Broders, who passed away on 7 October 2006. The plaintiffs are the executors appointed under two wills of the deceased, and the second defendant is the principal beneficiary under those wills. The first defendant, who is the deceased’s daughter, claims that he lacked testamentary capacity and was subject to undue influence when he made his will of 20 June 2006 and also his earlier will of 24 February 2004. She seeks by counterclaim to propound a will made in November 1990. The first defendant applied for non-party disclosure of documents from 15 hospitals or doctors under Rule 146 of the Supreme Court Civil Procedure Rules 2006 (SA). The application superseded two earlier similar applications which were dismissed because the pleadings had not been closed.

The central legal issue in this case was whether the documents sought by the first defendant were relevant to the questions in issue in the proceedings, and if so, whether an order should be made for their disclosure. The court had to consider the criteria for ordering non-party disclosure under Rule 146, which includes the directness or indirectness of the relevance of the documents to the issues in the case, the coercive nature of the process, the extent to which the non-party is likely to incur expense or experience difficulty in complying with the order, and the extent to which compliance with the order will impinge upon the confidentiality of the information held by the non-party, or upon the privacy of the non-party or other persons. The court also had to determine whether the application amounted to "fishing" for relevant material.

The court held that the documents relating to the deceased's cardiovascular condition and treatment were relevant and should be obtained. However, the argument centred on whether the records of doctors and hospitals relating to other medical conditions of the deceased not apparently related to his cardiovascular problems were sufficiently relevant to justify an order for their disclosure being made. The court found that there was no evidence that any visits to doctors or hospitals by the deceased occurred in such proximity to any alleged instances of memory loss, confusion, inappropriate behaviour or the like which would make it likely that the doctor or hospital may be able to say something about such behaviour of the deceased. In respect of the doctors and hospitals dealing with other than cardiovascular problems of the deceased, there was no reason to believe that they would have recorded anything relevant to his cardiovascular problems or his cognitive functioning. The application was therefore "fishing" and was to be rejected.

The court refused orders in respect of most of the doctors and hospitals named in the application. The orders were refused in respect of Dr Cehic and Prince of Wales Hospital, Dr Coventry and Dr Silfverskiold, Flinders Medical Centre, Wakefield Hospital and Dr Steele, and Dr Coventry and Dr Silfverskiold. The order against Memorial Hospital was confined to the documents relating to the brain scan procedure. The court directed that all the papers produced by the Repatriation General Hospital be disclosed to Dr Hecker for her to make such use of their contents as she sees fit in preparing her report, but not at this stage to allow inspection by the parties or their solicitors. That can be considered, if need be, in the light of any report from Dr Hecker.

In conclusion, the court made some orders and refused others. The first defendant should now prepare minutes of order to give effect to these reasons, and the parties will be heard on costs.

Orders