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 consider that the criteria for ordering non-party disclosure under 6R 146 is the same as that under repealed 87R 60 and they are set out in the following passage from Judgment of White J in Commissioner of Police v Channel Seven Adelaide Pty Ltd, 19 June 2008, [2008] SASC 164:
The Court has a discretion with respect to the range of documents which a non-party should be ordered to disclose. That discretion must take account of a number of factors including 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. A non-party should not be required, under the coercion of the Court order, to disclose any more documents than are necessary to dispose fairly of the proceedings. Ultimately the order should be framed so as to best serve the interests of justice in the particular case.
Mr Haines QC for the first defendant relied upon the following statement by Young J (as he then was) in Ryan v Kazacos, 13 March 2001, [2001] NSWSC 140:
There is an additional matter, and that is, it is probable from the evidence that the defendant also asked a Dr Strum, a psychiatrist, to give an opinion, yet no report from Dr Strum was ever forthcoming. The conclusion must be that nothing that Dr Strum said could have assisted the defendant’s case. I should note at this time that the culture in probate proceedings has been that both parties are assisting the Judge to get at the truth and the Court does expect all medical evidence to be produced, whether favourable or unfavourable to a party. It is regrettable that just because these are hotly contested proceedings involving a lot of money the prevailing culture does not seem to have been observed in the instant case.
This passage does not assist the first defendant. The issue I have to determine is whether the documents in question are shown to be sufficiently relevant to the matters in issue in this action to justify an order for their disclosure. Young J could not have been referring to irrelevant material. The situation referred to by Young J in the case before him could not arise in this State because under 6R 160 parties are obliged to disclose any experts reports they obtain even if they do not favour them. It seems there was no such rule in New South Wales in 2001.
The first defendant did not pursue the application in respect of a number of doctors and hospitals named in the application either because those doctors or hospitals had told the first defendant they had no documents or they had voluntarily sent the documents they had to the first defendant’s solicitors. (Whether the first defendant can properly use in this action the documents voluntarily sent to her in response to the service of applications under 6R 146 was not canvassed in the submissions before me and I make no comment upon it.)
In response to the earlier applications, and without any direction of the Court to that effect, the Prince of Wales Hospital and the Repatriation General Hospital each sent their documents to the Registrar of this Court who still holds them. It was agreed in respect of those documents the present application was to be whether they should be made available by the Court for inspection by the parties.
Relevance for the purposes of 6R 146 is to be assessed by reference to the pleadings. The first defendant has pleaded that from about 2003 until his death the deceased had extensive vascular and cerebrovascular disease and suffered from memory loss, confusion and inappropriate behaviour. This is a broad summary of an extensive pleading. There is no pleading of any memory loss, confusion or inappropriate behaviour prior to 2003. The plaintiffs have pleaded behaviour of the deceased at the times of his making the 2004 and the 2006 wills which would be consistent with him having then had testamentary capacity and not being subject to undue influence. The state of mind of the deceased from 2003 onwards is clearly relevant to the issues raised on the pleadings.
The first defendant’s former solicitor had sought an expert opinion from Dr Hecker, a gerontologist, about the deceased’s testamentary capacity at the times of his signing the 2004 and the 2006 wills. Dr Hecker requested further information which she said she needed before she could give the report requested. To support her allegations about the relevance of the documents sought in this application the first defendant put before the Court a letter of 15 March 2007 from Dr Hecker, the relevant parts of which are as follows:
Having perused this information I agree there is concern that Mr Broders may not have had testamentary capacity on these two dates. Reading the medical information it appears that he had extensive vascular disease involving the heart, aorta and peripheral vascular system involving the lower limbs. It is likely that he had small vessel cerebrovascular disease which can have an impact on frontal and executive brain function. This is of importance for decision-making and judgement. Frontal cognitive impairment is often associated with lack of testamentary capacity.
In order to provide further information about the likely state of Mr Broders’ cognitive function and testamentary capacity on the relevant dates, further information supporting this would be required. Useful information would include-
(a)     A history of medical problems provided by his general practitioner.
(b)     A list of medication provided by the general practitioner.
(c)     Copies of the reports or preferably films from any brain scans performed including CT scan, MRI scan or SPECT scan of the brain.
(d)     Copies of any cognitive assessment undertaken including an objective Mini Mental State Examination or other formal cognitive scales.
(e)     A copy of the general practitioner notes particularly following 2001.
(f)    A copy of the Wakefield Hospital notes from his admission on October 2003 and any subsequent admissions.
(g)     A copy of the Repatriation General Hospital notes relating to this gentleman.
…..
Dr Hecker only says that the information in (a)-(g) would be useful rather than necessary. She did not request all the documents within the very broad ambit of the present application.
The first defendant and the plaintiffs properly conceded that documents relating to the deceased’s cardiovascular condition and treatment are relevant and should be obtained. 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. While it is possible that doctors and hospitals treating the deceased for other ailments may have included in their records matters relevant to the deceased’s cognitive functions, which if they had occurred would be relevant on the pleadings, there is no evidence that this did occur. There is also 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 is no reason to believe that they would have recorded anything relevant to his cardiovascular problems or his cognitive functioning. On the similar “on the cards” test for the production of documents on subpoenas it would not be held that it was “on the cards” that such documents contain relevant material: Civil Procedure South Australia Vol 1 [6R 176.40]. Mere relevance of such documents without more is not sufficient: AG (NSW) v Chidgey (2008) 182 A Crim R 536. Insofar as there is no proper basis to infer that a doctor or hospital would have something in their notes relating to the deceased’s cardiovascular condition or cognitive states, as distinct from an off chance that this may have occurred, the application is “fishing” and is to be rejected.
I now deal with each of the applications on which an order is still sought:
Dr Cehic and Prince of Wales Hospital. Though unrelated, each concerned the fitting of a pacemaker in 2001 and May 2004 respectively. The orders are refused.
Dr Coventry and Dr Silfverskiold. These doctors treated the deceased for skin cancers in April 2005 and February 2006 which appear to be unrelated to anything in issue on the pleading. The orders are refused.
Flinders Medical Centre. At this hospital the deceased had a colon resection in April 1987, part of a lung removed in 1990, an admission for unspecified pain in 1999 and in June 2004 and a diagnosis which included a bone scan. None appear related to the matters in issue. The order is refused.
Wakefield Hospital and Dr Steele. The deceased was admitted to the Wakefield Hospital in October 2003 and was treated there by Dr Steele, but the nature of his medical problem at that time was unknown. Dr Hecker in her letter of 15 March 2007 said a copy of the Wakefield Hospital notes would be useful, but she did not elaborate on the reasons for this. There is nothing on the evidence to show that the deceased’s stay in Wakefield Hospital and his treatment by Dr Steele related to his cardiovascular condition or involved any cognitive assessment. The order is refused.
Memorial Hospital. The deceased had a CT scan of his brain in that hospital in November 2001. It is conceded documents relating to that procedure are relevant. He apparently also had tests relating to his heart there at about the same time which apparently led to insertion of his first pacemaker. This is not directly relevant to any matter in issue. The order against that hospital will be confined to the documents relating to the brain scan procedure.
Repatriation General Hospital. The deceased was admitted to this hospital on a number of occasions for cardiovascular, urological and other conditions. As the records of this hospital are now held by the Court this most expeditious way to resolve the issue is for me to inspect them. I have now done so.
I was not able to decipher some of the handwritten notes and did not understand some of the medical terminology. As far as I could ascertain there is little said about the deceased’s cognitive functioning. While much of the documents do not relate to vascular and cerebro-vascular issues I am uncertain about the relevance of some documents to those issues and so cannot properly divide the papers into those relevant to those issues and those which are not. The documents are bound into the files in substantially, but not perfect, chronological order. If the documents are now separated into those which can be inspected and which cannot be inspected it will be difficult subsequently to reconstruct the files in their historical order.
Subject to hearing any objections from the parties, I am inclined to direct all the papers produced by this 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.
The first defendant should now prepare minutes of order to give effect to these reasons. I will hear the parties on costs.