Blair v Blair

[2002] VSC 131

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4257 of 2000

In the Matter of Part IV of the Administration and Probate Act 1958

In the Matter of the Will and Estate of DOUGLAS WILLIAM BLAIR (Deceased)

RICHARD MALCOLM DOUGLAS BLAIR	Plaintiff
v.
STEPHEN GARDE BLAIR	Defendant

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 APRIL 2002
DATE OF RULING:	23 APRIL 2002
CASE MAY BE CITED AS:	BLAIR v. BLAIR
MEDIUM NEUTRAL CITATION:	[2002] VSC 131	First Revision:  26 June 2002

---

CATCHWORDS:      Ruling – Costs – Testator's Family Maintenance – Subpoena served on corporation associated with the defendant – Relevance of the documents required to be produced – Application for costs by the third party to whom the subpoena was directed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R. Wells with Mr. A. Verspaandonk	Ingpen & Bent
For the Defendant	Mr. R. Cook	Koutsantoni & Associates
For Rural and Agricultural Management Pty. Ltd. and Greenwood Nominees Pty. Ltd.	Mr. T. Davies	Oakley Thompson & Co. Pty. Ltd.

HIS HONOUR:

1. A separate ruling is sought on the costs of two companies to each of which the plaintiff directed a subpoena to produce documents. It was alleged that these documents were relevant as going to the financial resources of the defendant, Stephen Blair. As a beneficiary of the estate, the question of his financial resources is a matter to which, by s.91(4)(h) of the Administration and Probate Act 1958, the Court must have regard.

1. It cannot follow, however, that in every case the Court must examine to the last minute detail the financial resources of every beneficiary of every estate upon which a claim is made under Part IV of the Act.  On the contrary, the Court should in my opinion make it clear to both the parties and their legal representatives that the mere commencement of proceedings under the Part does not carry with it a general and unrestricted licence (including the use of discovery and the power to subpoena documents) to delve into the affairs of actual or potential claimants or beneficiaries.

1. Unless this is made clear, a potential danger may become real.  It is that, given the relatively recent amendments to the provisions of Part IV, courts will be swamped with evidence merely because that evidence concerned matters to which (following those amendments) the courts must have regard.  But “having regard” to a matter does not necessarily mean examining it under a microscope.  It is vitally important that a sense of proportion be retained.  Otherwise, cases under Part IV will become a travesty of wasted time, money and other resources.  Justice cannot be administered by such means. 

1. This case illustrates the point.  The plaintiff, Richard Blair, is a claimant who, as a child and as an adult student, was – but is no longer – dependent upon the testator.  Indeed, he is a veterinary surgeon who by the time of his father's death had moved well beyond the stage of dependency and who was then, and is now, able to make adequate provision for the proper maintenance and support of his family and himself.  The strength of his case was necessarily constrained by those circumstances.  Opposed to him in this litigation was his brother, who is the only other possible claimant on his father's estate.  But his brother, as the undisputed evidence quickly disclosed, is similarly able to support himself and his family. 

1. Richard knew this.  He also knew that he was the only claimant, and that the estate was valued for probate at over $700,000.  With a moment’s further thought, he would also have realised that this litigation was, therefore, never likely to reach a point at which the defendant could properly argue that any provision, or further provision, for the plaintiff would leave the defendant without adequate means for his (the defendant's) proper maintenance and support.  But unless that point were reached, with the result that there would be a real contest about the share each brother would receive from a limited fund, a close examination of the defendant's financial resources was not merely unwarranted but quite inappropriate.  Given, as Richard knew, that Stephen was never likely to be a claimant himself, Stephen’s wealth was never likely to be a relevant issue.

1. The plaintiff did not wait, before serving the subpoenas in question, to discover whether or not the unlikely would happen, and the documents sought by subpoena become relevant.  Instead, each subpoena was made returnable on or before the first day of trial.  At that point there was no reasonable prospect that the documents produced would be of assistance;  and they never in reality assumed any relevance at all.

1. It is true that, by orders made by consent on 14 August 2000, Master Evans directed that the defendant discover "[a]ny documents relating to the sources of income for [certain specified financial years]… of… any proprietary limited company in which the defendant and/or his wife had or have an interest".  It is said that the documents covered by the subpoenas fall within this description.  Even if they do, however, the court may – and in my opinion should – form its own opinion about their relevance;  and (if only because we are not here concerned with discovery) the companies, as separate entities, may in any event take a different position in that regard from that of the defendant himself.  This, in my opinion, remains true even if the companies are (as the plaintiff submits) "third parties in name only":  see the plaintiffs’ outline of submissions as to the costs of the relevant subpoenas. 

1. It is settled that expense and loss incurred by a non-party in complying with a subpoena for the production of documents includes the cost of legal advice obtained on questions of confidentiality and privilege with respect to the documents:  see Williams Civil Procedure Victoria at paragraph 42.08.5 and the cases there cited.  In my opinion, the cost of legal advice obtained on the question of relevance should similarly be included. 

1. In those circumstances, it seems to me that each of the two companies should receive its reasonable costs of complying with the subpoena.  It was submitted that I should fix those costs.  To that end, a schedule of costs was submitted to me.  I, however, am not in a position to judge the reasonableness of the items included in that schedule.  It seems to me that the Taxing Master is much better placed.  Given that the cost of preparation of a bill of costs for taxation, and attending to the taxation, may be allowed, it seems to me that – failing agreement – the quantum of costs should be determined on taxation in the usual way.

---