Bullock v Grant

[2024] ACTSC 397

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bullock v Grant

Citation: 

[2024] ACTSC 397

Hearing Date: 

13 December 2024

Decision Date: 

13 December 2024

Before:

Mossop J

Decision: 

(1)     Both parties have access to the redacted version of the documents produced in response to the subpoena marked “REDACTED COPY ACCESS PERMITTED ORDERS OF MOSSOP J 13/12/24”.

(2)     The defendant is to pay the plaintiffs’ costs of the subpoena to the Commonwealth Superannuation Corporation and costs arising from its objection to any grant of access to the subpoena material produced by the Commonwealth Superannuation Corporation, including the costs of the hearings on 9 and 13 December 2024.

Catchwords: 

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Objection by defendant to allowing plaintiff access to material produced under subpoena – material related to superannuation benefits paid to deceased’s youngest child – material relevant to circumstances of competing claimant for bounty of testator – material relevant to question of whether adequate provision made – uncontroversial redactions allowed – access granted to both parties – costs consequences where objection unsustainable

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A

Family Provision Act 1969 (ACT)

Cases Cited: 

McCosker v McCosker (1957) 97 CLR 566

Vigolo v Bostin [2005] HCA 11; 221 CLR 191

Parties: 

Michigan Bullock (First Plaintiff)

Seattle Bullock (Second Plaintiff)

Natalie Grant as executor of the will of the late Stuart James Grant (Defendant)

Representation: 

Counsel

S Bell (Plaintiffs)

T Herbertson (Defendant)

Solicitors

Dobinson Davey Clifford Simpson (Plaintiffs)

MV Law (Defendant)

File Number:

SC 156 of 2024

MOSSOP J:

1․These are proceedings involving a claim under the Family Provision Act 1969 (ACT) by the two elder children of the deceased. Those children were born to the deceased and his first wife. The third child of the deceased was born to his second wife.

2․The defendant has objected to access being granted to documents produced by the Commonwealth Superannuation Corporation pursuant to a subpoena. Those documents relate to a decision by the Corporation to pay the deceased’s superannuation benefits to his third child.

3․The deceased’s will gives 40 percent of his estate to his second wife, 10 percent to his sister, who is the executor of the estate, and 50 percent to a testamentary trust for his third child. The will does not leave anything to his first two children, hence the application for family provision.

4․The bases for objection to the production of the material were set out in a letter dated 10 December 2024 from the defendant’s solicitor to the Registrar of the court, which was required to be provided by a direction made by the Registrar on 9 December 2024. That letter will be treated as the written submissions and included on the file. The oral submissions made on behalf of the defendant reiterated the points made in the written submissions.

5․The first point made was that the superannuation benefits were never an asset of the estate. The submission was that they were, therefore, irrelevant to the current litigation.

6․The second point was that there was private or confidential information in relation to the third child likely to be contained within the material produced. The only two aspects of the information that were specifically identified to be private or confidential were the third child’s residential address and the quantum of the payment made by the Commonwealth Superannuation Corporation.

7․When the matter was before me this morning, having heard the submissions of the parties, I directed that the defendant have access to the documents and be in a position to propose redactions of the address after a short adjournment.

8․The defendant was required to provide a complete copy of all documents, including any proposed redactions to the plaintiffs’ solicitor. I reserved my reasons for making those directions.

9․Those directions have now been complied with, although the redactions that were proposed went beyond address details and included bank details, dates of birth, and some other personal information not necessary for the determination of the proceedings.

10․The redactions that have now been proposed are uncontroversial so far as the plaintiffs are concerned.

11․My reasons for requiring that copies of the documents produced be provided to the plaintiff with only limited redactions are as follows.

12․The substantive point made by the defendant was the contention that the payment of superannuation was irrelevant to the proceedings. That was a submission that was clearly without substance. The circumstances of a competing claimant for the bounty of a testator are clearly relevant to the question of whether adequate provision has been made for the plaintiffs and, if it has not, what provision should be made.

13․In McCosker v McCosker (1957) 97 CLR 566 at 571-572, Dixon CJ and Williams J described what was “proper” as follows:

It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune.

14․For present purposes, emphasis must be placed upon the words “in the light of all the competing claims upon the bounty of the testator”.

15․Similarly, in Vigolo v Boston [2005] HCA 11; 221 CLR 191, Callinan and Heydon JJ said at [122]: “The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors”. As a consequence, the fact of, and quantum of, any payment of superannuation benefits to, or for the benefit of, the third child is a matter of significance for the purposes of the plaintiffs’ proceedings. It could not reasonably be contended that the obtaining of documents relating to any payment to the third child lacked a legitimate forensic purpose due to their irrelevance.

16․The same may be said in relation to the privacy submission directed to the quantum of the payment. That is obviously a matter of significance for the determination of the plaintiffs’ claim. In the circumstances, any interest in the privacy of that information is clearly outweighed by the need to obtain that information in order to allow the proper determination of the plaintiffs’ claims.

17․In relation to costs, the plaintiffs had requested details of the payment to the third child prior to the issuing of the subpoena. They sought costs of issuing the subpoena, as well as for the two appearances that have been required, namely, on 9 December 2024 and today. The defendant submitted that costs should be costs in the cause.

18․In my view, the opposition to the provision of the information and to the grant of access to the material produced was unreasonable. Any issue about redaction of the address or other personal information should have been, and would have been able to have been, dealt with between solicitors had it not been for the general, unsustainable, assertion of irrelevance. Parties should not be encouraged to take unsustainable points. That proposition is consistent with the obligation of a party and, hence, of its lawyers, under s 5A of the Court Procedures Act 2004 (ACT). If a party does take an unsustainable point, costs consequences follow.

19․In my view, it is appropriate to make a costs order against the defendant, namely, the executor of the will who has taken the point in these proceedings.

20․Having made a direction earlier today that the defendant have access to the material and provide a complete copy of all documents to the plaintiffs with only the uncontroversial redactions made, it is only necessary to make a limited further order in relation to access.

21․The orders of the Court are:

(1)Both parties have access to the redacted version of the documents produced in response to the subpoena marked “REDACTED COPY ACCESS PERMITTED ORDERS OF MOSSOP J 13/12/24”.

(2)The defendant is to pay the plaintiffs’ costs of the subpoena to the Commonwealth Superannuation Corporation and costs arising from its objection to any grant of access to the subpoena material produced by the Commonwealth Superannuation Corporation, including the costs of the hearings on 9 and 13 December 2024.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 19 December 2024