Boyd v Cassius Holdings Pty Ltd as Trustee of the J P Boyd Family Trust - [2003] WASC 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOYD & ORS -v- CASSIUS HOLDINGS PTY LTD as Trustee of the J P BOYD FAMILY TRUST & ANOR [2003] WASC 40

CORAM: MASTER SANDERSON

HEARD: 26 FEBRUARY 2003

DELIVERED : 19 MARCH 2003

FILE NO/S: CIV 1973 of 2002

MATTER :Trustees Act 1962-1978

BETWEEN: LYNETTE MARIE BOYD
LISA ANNE QUAIN
COLIN LEONARD BOYD
SHARON HILTON as Beneficiaries of the J P BOYD FAMILY TRUST
First Plaintiff
SHARON HILTON as Executrix of the Estate of the late JOAN PATRICIA BOYD
Second Plaintiff
AND
CASSIUS HOLDINGS PTY LTD as Trustee of the J P BOYD FAMILY TRUST
First Defendant
KEVIN ROBERT MANN
Second Defendant

Catchwords:

Practice and procedure - Application to strike out all or certain parts of affidavits - Turns on own facts

Legislation:

Nil

Result:

Certain parts of affidavits struck out

Category: B

Representation:

Counsel:

First Plaintiff                :     Mrs P M Edward
Second Plaintiff            :     Mrs P M Edward
First Defendant             :     No appearance
Second Defendant         :     In person

Solicitors:

First Plaintiff                :     Verschuer Edward
Second Plaintiff            :     Verschuer Edward
First Defendant             :     No appearance
Second Defendant         :     In person

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

Nil

Case(s) also cited:

Avery v Worldworld Testing Services Pty Ltd (1990) 2 ACSR 834
Christie v Christie (1983) LP 8 Ch App 499
Hughes v Miles [2000] WASC 154
Lake v Albion Life Assurance Society (1876) 45 LJQB 663
Legal Practice Board v Said, unreported; SCt of WA; Library No 940003; 12 January 1994
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Millington v Loring [1880] 6 QBD 190
R v Chee [1980] VR 303
Rossage v Rossage [1961] All ER 600
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (1984) 1 All ER 296

MASTER SANDERSON: This is the second defendant's application to strike out, in their entirety, the affidavits of Lynette Marie Boyd ("Ms Boyd"), sworn 10 July 2002 and Kym Dianne Mann‑Piercy ("Ms Mann‑Piercy"), sworn 12 September 2002. In the chamber summons it is said by the second defendant that the affidavits offend O 37 r 6 in that they are not confined to such facts as the deponent is able to prove of her own knowledge, or alternatively, they are scandalous, irrelevant or otherwise oppressive under O 37 r 7.
It is convenient to deal first with the affidavit of Ms Mann‑Piercy. Ms Mann‑Piercy says she was married to the second defendant between 1977 and 1994: see par 3. She annexes to her affidavit a copy of a transcript of proceedings in the Family Court of Western Australia which took place on 31 January 2001. Strictly speaking, what should be before the Court is a certified copy of the transcript of proceedings. However, Ms Mann‑Piercy says that she was present in Court throughout the proceedings and is able to vouch for the accuracy of the transcript. In my view that is sufficient. On that basis, par 1, 2 and 3 of her affidavit can stand.
The rest of the affidavit ought be struck out. Reference is made by Ms Mann‑Piercy to certain parts of the transcript, presumably for the purpose of emphasising what was said by the second defendant. The transcript speaks for itself. What is to be found in par 4 of Ms Mann‑Piercy's affidavit is, in effect, submissions. It is not evidence. It has no place in the affidavit and for that reason it should be removed.
Before dealing with Ms Boyd's affidavit, it is appropriate that I say something about this matter generally, and the evidence to be led on the hearing of the application. The plaintiffs' action is brought under the provisions of O 45 and O 58 of the Rules of the Supreme Court and under s 77 and s 78(h) of the Trustees Act. It is clear from the originating summons that what the plaintiffs seek is final relief. That being the case, O 37 r 6(2) is not relevant. It is incumbent upon any deponent to observe the rules of evidence. That means the rules of evidence in relation to hearsay must be observed. It also means that, strictly speaking, matters which are irrelevant ought be excluded from the evidence. However, it is difficult on an interlocutory application to determine just what may prove to be relevant at the final hearing. That being so, it is proper to strike out material as irrelevant only when there can be no question as to whether or not it might be relevant. In a case where the ambit of the evidence is rather narrow and the affidavits filed by the parties are not voluminous, the inclusion of material which is irrelevant or of marginal relevance does not create a significant mischief. For these reasons, when dealing with the objection to affidavit material on the basis of relevance, I have adopted a liberal approach.
The first two paragraphs of Ms Boyd's affidavit identify her and exhibit a copy of the grant of probate of the Will of the late Joan Patricia Boyd ("the deceased"). Both are unobjectionable. By par 3, Ms Boyd outlines occasions on which the second defendant and her mother met. The final sentence of par 3 is somewhat vague and of marginal relevance, but it does contain direct evidence of what Ms Boyd heard. All of par 3 can stand in its present form.
Paragraphs 4(a) and 4(c) are inadmissible. Paragraph 4(a) is simply irrelevant. It is not picked up elsewhere in the evidence and it can have no probative value in relation to this application. It should be struck out. Paragraph 4(c) is conclusory. It too should be struck out.
Paragraph 5 is direct evidence from the deponent as to what she heard take place between the second defendant and her late mother. It is worthy of note that the oral agreement referred to in the paragraph is not tied to a place and time, nor is any attempt made to give evidence as to actually what passed between the deponent's late mother and the second defendant. While that may limit the probative value of par 5, it does not make it inadmissible. Accordingly the paragraph can stand.
Similar comments might be made with respect to par 6. Once again, no attempt is made to anchor the paragraph in time and place, nor is evidence given of the conversation which took place between the second defendant and the deponent's mother. Nonetheless, the paragraph provides a broad sketch of what the deponent heard and it is therefore admissible. The documents referred to in that paragraph are also clearly admissible. The paragraph can stand.
Paragraphs 7, 8 and 9 are also admissible. Paragraphs 7 and 8 are evidence from the deponent of conversations that she overhead between her deceased mother and the second defendant. Paragraph 9 admits into evidence certain documents. These documents are admissible and the paragraph is unobjectionable.
Paragraph 10 is admissible. It reports on what the deponent heard pass between her late mother and the second defendant.
The first sentence of par 11 should be struck out. It contains inadmissible hearsay. The rest of the paragraph is admissible. It reports on certain searches which have been made, copies of which are annexed to the affidavit. While the commentary is, strictly speaking, irrelevant - the documents speak for themselves - it is not so objectionable as to warrant being struck out. Save then for the first sentence of par 11, the rest of that paragraph can stand.
Paragraph 12 deals with matters of fact and annexes a document which is admissible. It is unobjectionable and it can remain.
Paragraph 13 contains a mixture of the admissible and inadmissible. The first sentence of par 13 is clearly inadmissible. Evidence that the deceased asked the deponent to accompany her to a meeting with AFS Strategic Planners is admissible, as is a copy of the invoice from that firm. However, the reference to the passing of the deceased before the first defendant could be replaced as trustee is inadmissible. I am not satisfied that it is possible to strike out parts of par 13 so as to leave admissible material which makes any sense. On that basis, par 13 ought be struck out in its entirety.
The first sentence of par 14 ought be struck out. It is conclusory and therefore irrelevant. The documents passing between the deponent and various parties are admissible and those documents speak for themselves. The rest of par 14 can therefore remain.
Paragraphs 15 and 16 deal with matters of fact and are admissible. They should remain.
The final sentence of par 17 is hearsay and is inadmissible. As I have said, this affidavit is not for use in interlocutory proceedings and O 37 r 6(2) has no relevance. Strictly speaking, the first sentence of par 17 is not in a form which is proper. However, the matter dealt with in that sentence is of peripheral relevance and the sentence itself is not so offensive as to require it to be struck out. It puts the rest of the material in par 17 in context. Accordingly, apart from the final sentence of par 17, the rest of the paragraph can stand.
Paragraph 18 deals with matters of fact which are within the deponent's knowledge. The material is admissible and the paragraph can stand.
In the light of these reasons it may be appropriate for the plaintiffs to file further affidavits in support of their application. It may also be necessary for the defendants to file further affidavits. I will hear the parties as to programming orders and as to costs.