Corich v The Public Trustee as Administrator of the Estate of Hugh Leslie McGregor (Dec) - [2005] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CORICH -v- THE PUBLIC TRUSTEE as Administrator of the Estate of HUGH LESLIE MCGREGOR (DEC) & ORS [2005] WASC 200

CORAM: MASTER NEWNES

HEARD: 22 AUGUST 2005

DELIVERED : 14 SEPTEMBER 2005

FILE NO/S: CIV 1775 of 2004

MATTER :Section 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
Will and Estate of HUGH LESLIE MCGREGOR, late of 24 Whitfield Street, Lancelin in the State of Western Australia (Dec)

BETWEEN: ROBERTA FRANCES CORICH
Plaintiff
AND
THE PUBLIC TRUSTEE as Administrator of the Estate of HUGH LESLIE MCGREGOR (DEC)
First Defendant
NICOLE CHRISTIE
Second Defendant
LEANNE BAINES
Third Defendant

Catchwords:

Practice and procedure - Appeal against decision of Case Management Registrar refusing application for discovery - Whether ambit of documents sought too wide - Principles to be applied on application for discovery in Inheritance Act claim - Appeal against decision of Registrar refusing to extend time to file further affidavits - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6

Rules of the Supreme Court, O 26 r 7(3), O 26 r 8, O 60A r 4

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M G Clay
First Defendant             :     Ms Y Salleh
Second Defendant         :     Mr M Curwood
Third Defendant           :     Mr M Curwood

Solicitors:

Plaintiff:     Martin de Haas Commercial Lawyers Pty Ltd
First Defendant             :     Public Trustee
Second Defendant         :     Curwood & Co Pty Ltd
Third Defendant           :     Curwood & Co Pty Ltd

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

ASIC v Knightsbridge Managed Funds Ltd [2001] WASC 177
Bell Resources Ltd v Turnbridge Pty Ltd, unreported; SCt of WA (Master White); Library No 7180.2; 30 June 1988
Boston v Basioli [2004] WASC 205

Case(s) also cited:

Nil

MASTER NEWNES: This is an appeal against orders of a Case Management Registrar made on 13 July 2005 by which the Registrar dismissed an application by the plaintiff for discovery of documents and ordered that unless the action was entered for hearing by 18 July 2005 the plaintiff's claim be struck out with costs.
In these proceedings, the plaintiff seeks an order under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) that provision be made for her out of the estate of the late Hugh McGregor, who died on 13 July 2002. The proceedings were commenced by an originating summons filed on 14 June 2004.
In her affidavit in support of the application, the plaintiff says that she had had a relationship with the deceased about 30 years before his death. They renewed contact about 18 years before his death and commenced a de facto relationship, living together in Lancelin. That relationship continued, apart from a period of approximately two years when they lived apart, until the deceased's death. The plaintiff says that she was financially dependent on the deceased throughout that period, save for her pension entitlements.
The affidavit of the plaintiff filed with the application is relatively brief and is substantially focused on whether, shortly before his death, the deceased executed a new will providing for the plaintiff.
At a status conference on 28 July 2004, the Registrar ordered, among other things, that the second and third defendants file any affidavits in opposition to the application by 18 August 2004. It appears that those affidavits were not filed on time. The third defendant's affidavit was filed on 14 September and the second defendant's affidavit was filed on 16 September 2004.
On 23 February 2005, the Registrar ordered, among other things, that the second and third defendants file and serve any further affidavits in opposition to the application by 29 April 2005 and that the plaintiff have leave to enter the matter for hearing within 14 days of the filing of the last of those affidavits.
As it turned out, four affidavits were filed on behalf of the second and third defendants in the last week of March 2005, a further affidavit was filed on 18 April 2005 and another affidavit was filed on 11 May 2005.
The second and third defendants' affidavits filed in September 2004 put squarely in issue the question of whether the plaintiff had lived with the deceased in a de facto relationship as claimed. The second and third defendants contended that the de facto relationship had not endured beyond a period of a year or two in the late 1980s and they went into some detail in respect of what they said was the deceased's living arrangements over the subsequent years. The further four affidavits filed on their behalf in 2005 were directed to the same issue.
Counsel for the plaintiff said that until the affidavits on behalf of the second and third defendants were served there was no intimation that there would be any issue that the deceased and the plaintiff had lived in a de facto relationship.
The Registrar summoned the parties to a status conference on 29 June 2005 to ascertain why the interlocutory timetable had not been adhered to and the matter entered for hearing. At that conference, counsel for the plaintiff foreshadowed an application for discovery. Counsel indicated that there were four categories of documents that had been identified as being relevant. They were the deceased's personal records, travel records, accommodation records and banking and financial records. Counsel said that it was understood the deceased kept a cashbook which in many respects also acted as his diary. Counsel said that the categories of records referred to would bear directly on many of the issues raised in the affidavits as to where the deceased had lived over the relevant period, who had paid the bills, who was the lessee of the properties in which the deceased had lived and so forth. Those documents, it was submitted, would be important for the purposes of finalising further affidavits on behalf of the plaintiff, as they would have to be referred to in those affidavits.
At the status conference, the Registrar ordered that unless the plaintiff achieved entry of the matter for hearing within 10 working days, the plaintiff's claim be struck out with costs in favour of the defendant.
The plaintiff's solicitors filed an application on 1 July 2005 in which the plaintiff sought to have set aside the order of the Case Management Registrar of 29 June 2005 that the matter be entered for hearing within 10 days and sought an order that the time within which the plaintiff was required to file a notice of appointment to hear the originating summons be extended to a date not less than 14 days after the hearing of the application. The plaintiff also sought an order for discovery, relevantly, of:
"All documents which are or have been in [the second and third defendants'] respective possession, custody or power relating to the nature of the relationship of our client and the deceased, including:
4.1personal records, travel records, accommodation records, banking records and financial records of the deceased including the deceased's cashbook
4.2written correspondence between the deceased and our client
4.3records concerning the Lancelin Industrial Centre limited to records relating to the use and occupation of unit 10, 17 King Street, Lancelin, and correspondence between the deceased and the Shire of Gingin in relation to occupation and use of unit 10; and
4.4records concerning the residences at Ellis Court, Lancelin and Whitfield Street, Lancelin and the occupation of those."
The ground of the application to set aside the Registrar's order requiring the matter to be entered for hearing was that it was beyond the jurisdiction of a Case Management Registrar to make such an order, there being no provision in the Rules for a plaintiff in a matter commenced by originating summons to enter the matter for hearing. The plaintiff sought an order that, if a time limit was to be put on the filing of a notice of appointment to hear the originating summons, the requirement to file a certificate of readiness be waived. The latter order was sought because the plaintiff wished to put on further affidavit evidence.
The ground of the application for discovery was that the affidavits filed by the defendants had put in issue whether the plaintiff had lived in a de facto relationship with the deceased. It was said that, by their affidavits, the second and third defendants had acknowledged that following the deceased's death they had been in possession of records of the deceased of the type referred to in the application.
The plaintiff filed an affidavit on 8 July 2005 in answer to the affidavits filed on behalf of the second and third defendants. In that affidavit, the plaintiff went into some detail in support of her claim that she had lived in a de facto relationship with the deceased for some 18 years up to his death. The plaintiff annexed to her affidavit, among other things, copies of entries from her own passport and that of the deceased, showing that they had travelled overseas on several occasions, copies of photographs of them taken in Bali and Port Douglas, copies of birthday cards and Christmas cards signed by the deceased, and a copy of a poem said to have been written by the deceased.
The plaintiff's application of 1 July 2005 came on for hearing before the Registrar on 13 July 2005. In the course of argument on the discovery application it clearly emerged that the Registrar was concerned the application described the documents sought in terms that were too wide and too general. The Registrar put to counsel for the plaintiff that the application appeared to require the second and third defendants to "trawl through papers that may or may not exist and to a degree guess what might be relevant or not". The Registrar noted that the application did not identify specific documents or specify a time period. There was also some discussion about whether the plaintiff's application was an application for particular discovery under O 26 r 8, but nothing turns on that as, in giving reasons for decision, the Registrar proceeded on the basis that it was not such an application.
The Registrar held that the application for discovery was too wide and did not sufficiently identify the documents in respect of which discovery was sought. The Registrar concluded that the application should be dismissed.
The Registrar also declined to give either party further time to file additional affidavits, but did extend the time within which the plaintiff was required to enter the matter for hearing to 18 July 2005.
The plaintiff now appeals against the Registrar's orders, pursuant to O 60A r 4. The ground of the application in respect of the order to enter the matter for hearing is that there is no provision under the Rules for the entry for hearing of a matter commenced by originating summons. The Rules require the filing of a notice of appointment to hear the originating summons. That, it is said, is not the entry of a matter. The plaintiff seeks an order that the time within which the plaintiff is required to file such a notice of appointment to hear the originating summons be extended to a date 14 days after completion of discovery and the disposition of this appeal.
In relation to the application for discovery, the plaintiff contended that the Registrar erred, first, in proceeding on the basis that the plaintiff had to show some special circumstances to justify an order for discovery and, secondly, in proceeding on the basis that it was for the plaintiff to define the limits on any orders for discovery, and implying the plaintiff had failed to do so, when the true position is that it is for the Court in its discretion to define those limits. It was submitted that in its application the plaintiff had suggested appropriate limits to discovery.
I will deal first with the appeal against the Registrar's dismissal of the application for discovery.
It was submitted on behalf of the plaintiff that where proceedings involve contested issues of fact, discovery should be ordered unless good cause is shown to the contrary. Counsel referred to Boston v Basioli [2004] WASC 205 and Bell Resources Ltd v Turnbridge Pty Ltd, unreported; SCt of WA (Master White); Library No 7180.2; 30 June 1988.
It was contended by counsel for the plaintiff that the matter in issue in this instance was very precisely defined, namely, whether the plaintiff was in a de facto relationship with the deceased over the material period. The plaintiff had not sought discovery at large, but had specified the nature of the documents sought in order to keep discovery within reasonable bounds.
It was submitted that if the Registrar believed that the application did not sufficiently confine the scope of discovery, the Registrar had a discretion under O 26 r 7(3) to define and limit the scope of the discovery ordered. It was argued that the Registrar had failed to appreciate the existence of the discretion to tailor the scope of discovery and therefore had failed to consider, and exercise, the discretion. Counsel for the plaintiff submitted that while limits on the scope of discovery were suggested by the application, it was up to the Court to determine the appropriate limits (if any). Counsel referred to the decision in ASIC v Knightsbridge Managed Funds Ltd [2001] WASC 177 at [15] – [19] where, in proceedings under the Corporations Act 2001 (Cth), Owen J said:
" … neither discovery nor inspection is an absolute right in litigation of this nature. Order 26 r 9 provides that the Court 'may' order inspection. It is a matter of discretion. The discretion falls to be exercised judicially and according to established principles stemming from the authorities and from the rules. Nonetheless, the discretionary aspect should not be overlooked. The factors governing the exercise of the discretion include the following:
1.Regard must be had to the nature of the proceedings. This is a Corporations application. Generally speaking, they proceed on affidavit material rather than on pleadings and oral evidence. It is not usual (although the power exists) to order discovery in actions that proceed by way of affidavit: Re Borthwick [1948] Ch 645.
2.There is a strong pointer to the correct approach in O 26 r 11: an order for production of documents should be made only if it is necessary for disposing fairly of the case or for saving costs.
3.It is necessary to identify and bear in mind the precise nature of the relief sought and the issues that have been joined in the proceedings.
4.The power exists to limit discovery in the way set out in O 26 r 7(3)."
I should interpose that there does not seem to me that anything said by Owen J in that case supports the proposition advanced on behalf of the plaintiff.
Counsel for the second and third defendants pointed out that on the appeal the plaintiff had sought to limit the scope of the documents for which discovery was sought further than had been the case before the Registrar. The orders sought on the appeal further limited the documents to the period "after 1994". It was submitted that the application was still too broad.
Counsel submitted that discovery in proceedings of this nature should generally be strictly confined so that the Court keeps discovery within reasonable bounds. In this case, none of the documents were limited in time, the classes of documents were not described with any precision and no affidavit had been filed to show why the interests of justice required discovery. It was submitted that the application for discovery was a fishing expedition, and no basis for it had been established. In addition, the application had been made too late in the day. The matter should already have been entered for hearing and it was only because of the plaintiff's non‑compliance with the order of 29 June 2005 that it had not been entered for hearing.
In Boston v Basioli(supra), I considered the question of whether discovery was available in a proceeding of this nature and, in particular, whether it was necessary to show "special circumstances" before discovery would be ordered. I concluded that it was not. I said (at [34] ‑ [35]):
"It seems to me, having regard to those matters, that to require that 'special circumstances' be shown is to inhibit to too great an extent the exercise of the Court's powers in relation to discovery. It is plain that general discovery in proceedings commenced by originating summons, including proceedings under the Act, will rarely be ordered, given the potential difficulties of ascertaining the matters in issue and the time and cost involved in giving general discovery. The matters in issue must be determined by reference to the originating summons and the affidavits filed in the proceedings. That determination will often be more difficult and possibly less precise than in cases where there are pleadings. It is therefore appropriate that discovery should generally be confined to identified issues so that the Court keeps discovery within reasonable bounds: see Creswick Resources NL v Mining Warden of Victoria [2000] VSC 134 per Gillard J at 39 - 40.
Where, however, a party seeks discovery of documents relevant to identified issues, the question, in my view, is not whether there are 'special circumstances' which justify an order being made, but rather whether in respect of the proceedings in question it is in the interests of justice that such an order be made."
It is therefore necessary to look at the scope of the discovery sought and whether it sufficiently appears that it is in the interests of justice that discovery should be ordered. In turning to the plaintiff's application it is relevant to note that it is not in precisely the same form as it was before the Registrar. The application, as it is framed on the appeal, is in the following terms:
"The second and third defendant give discovery on affidavit of the following classes of documents relevant to the existence or otherwise of a 'de facto marriage' between the deceased and the plaintiff as disclosed by the affidavits filed limited to all documents of the deceased that are or have been in the second and third defendants' possession, custody or power relating to that issue covering the period after 1994, including …"
There then follows the four categories of documents to which I have previously referred.
That is to be compared with the application before the learned Registrar which was as follows:
"The second and third defendants give discovery on affidavit of the following classes of documents relevant to the matters in issue in these proceedings as disclosed by the affidavits filed. All documents which are or have been in their possession, custody or power relating to the nature of the relationship of our client and the deceased, including …"
The four categories are then set out.
As I have mentioned, the application on the appeal is also limited to the period "after 1994", which the application before the Registrar was not.
It will be seen that the ambit of the application before the Registrar was substantially wider than that on the appeal. The former sought all documents relevant to the nature of the relationship between the plaintiff and the deceased, including the four categories specified. The application on appeal appears to be intended to be limited to the period after 1994 and to the four categories alone so far as they are relevant to the existence of a de facto relationship, although the use of the word "including" makes it unclear what is actually intended.
Counsel for the defendants pointed out that this is a rehearing, not a fresh application. In fact, it appears to have been approached by the plaintiff on the basis that it is more in the nature of an amended application.

I should say that, on the hearing of this appeal, it was not entirely clear whether the plaintiff actually sought all of the records set out in the four specified categories or only of such records as were "relevant to the existence or otherwise of a 'de facto marriage' between the deceased and the plaintiff ". If the former, there is no evidence that it is in the interests of justice that such discovery on such a wide‑ranging basis should be ordered. It would constitute generally discovery in all but name. In that context, it must be borne in mind too that the records sought cover a period of some seven years.
However, even on the basis that what is sought by way of discovery are solely documents in the four categories created after 1994, that are "relevant to the existence or others of a 'de facto marriage' between the deceased and the plaintiff", in my view the application is too wide.
The qualification that only records relevant to the existence or otherwise of a "de facto marriage" between the deceased and the plaintiff are to be discovered introduces a nebulous criterion that, in my view, would also place an unfair and unreasonable burden on these defendants. It is, for instance, by no means clear what records concerning the Lancelin Industrial Centre, or the Lancelin residences, would be relevant to the existence of a de facto marriage. The same may be said of the deceased's personal records.
In the course of argument, counsel for the plaintiff confirmed that it was the plaintiff's submission that, where the ambit of an application for discovery was found to be too wide, it was up to the Court to narrow the scope of the discovery as necessary and then to make orders under O 26 r 7.
I do not accept that submission. In my view, that is to misunderstand entirely the nature of the discretion of the Court under O 26 r 7. There will often be cases where the scope of the discovery sought is too wide, but readily lends itself to a specific and appropriate limitation or limitations, or where the proper limitation is self‑evident. In those circumstances the Court may decline to order discovery to the extent sought but order discovery confined to such limits. But in the end, where the scope of the discovery sought by a party is too wide, it is not incumbent upon the Court to refashion it to bring it within proper limits. A party who brings such an application is not entitled to rely upon the Court to do so.
In the present case, no further limitation on the ambit of the discovery sought was suggested before the learned Registrar and I do not regard the additional limitations proposed in the notice of appeal as sufficient. In my view, the ambit of the discovery sought goes beyond reasonable bounds. The proper scope of any discovery that might reasonably be required by the plaintiff is by no means self‑evident on the papers before me. In the circumstances, I do not consider it is the task of the Court to endeavour to fashion for the plaintiff what the plaintiff's legal advisers ought to have fashioned for her.
I should also say that the plaintiff's contention in the notice of appeal that the affidavit evidence of the second and third defendants "verify[ies] that they were in possession of records of the type sought by [the] application following the death of the deceased and at the time they swore their affidavits" substantially overstates the position. In her affidavit, the third defendant says only that at the deceased's factory unit, in the presence of the plaintiff, she "retrieved the metal cabinet that contained my father's will" and located the will. The third defendant says that she and the second defendant took the metal cabinet home with them. There is no other reference to the contents of the metal cabinet or the deceased's records. The second defendant does not refer in her affidavit to the deceased's records at all.
In the plaintiff's affidavit, the plaintiff refers to the second defendant removing "papers and files from the factory unit" after the deceased's death and later to finding the deceased's "papers and belongings" at the local rubbish tip, but does not say what the nature or contents of those papers was. The plaintiff does not say that papers of the nature of those now sought on discovery were kept by the deceased in the metal filing cabinet or elsewhere at the factory unit, or even that he had retained papers of that sort. The furthest the plaintiff's evidence goes in that respect is a statement that the deceased had an office at the factory unit.
While it might be inferred that the deceased was likely to have retained at least his recent and current banking, financial and business records, and to have kept them in the office at the factory unit, it is not evident why such things as the deceased's "personal records" or "travel records" or correspondence with the plaintiff, would be expected to be found there. It is not therefore apparent on the evidence why such material might be expected to have come into the possession of the second and third defendants.
The third defendant has annexed to her affidavit bank statements for the deceased from BankWest for the period of July to December 2001 and the plaintiff's counsel submitted it can therefore be inferred that the defendants have had in their possession documents of the various types now sought by way of discovery. Whatever inference might be drawn from the third defendant's possession of the deceased's banking records, I do not think the broad inference contended for by the plaintiff could properly be drawn.
It relation to the claim for discovery of correspondence between the plaintiff and the deceased, it is notable that there is no evidence to suggest that any correspondence was ever sent to the deceased by the plaintiff. The plaintiff simply says that the deceased gave her Valentines Day, birthday and Christmas cards and wrote poems that he left about the house. Had there been correspondence from the plaintiff to the deceased, it would have been a simple matter for the plaintiff to say so. It is not apparent why any correspondence going the other way, that is, from the deceased to the plaintiff, would have been in the possession of the deceased.
On the material before me, I am not satisfied it is in the interests of justice that an order for discovery of the nature sought, or any similar order, should be made. I would therefore dismiss the appeal against the Registrar's refusal to order discovery. If the plaintiff is able to identify specific, identifiable categories of documents that are relevant to a specified issue or issues in the proceedings, then leave to bring a further application might be sought.
I would also dismiss the appeal against the order to enter the matter for trial by 18 July 2005. Insofar as it was contended that the order was beyond the jurisdiction of the Registrar because a matter commenced by originating summons is not "entered for trial", that seems to me to be the triumph of form over substance. It is evident from the transcript of the hearing before the Registrar on 29 June, and again on 13 July 2005, that counsel for the plaintiff was in no doubt as to what the Registrar intended. Indeed, on 18 July 2005 the plaintiff filed a notice of appointment to hear the originating summons, in order, as counsel put it, "to protect the plaintiff's position". In my view, there is no substance in this ground.
So far as the plaintiff sought on the appeal further time within which she was required to file a notice of appointment to hear the originating summons, or an order that the requirement to file a certificate of readiness be waived, I am not persuaded that there are grounds to interfere with the order of the Registrar. On the hearing of the application on 13 July 2005, the plaintiff's counsel sought unsuccessfully to have the time extended to the end of July, to enable further affidavits to be filed on behalf of the plaintiff. That time has come and gone, and on the hearing of the appeal the plaintiff sought until the end of September to file the notice of appointment. It was submitted that that time was necessary because the plaintiff lived in Lancelin, and because the further affidavits were being obtained from third parties who had no interest in the matter, so that it was taking time to obtain those affidavits.
I recognise there may be difficulties in procuring affidavits from third parties in those circumstances, but the fact remains that the plaintiff has been on notice since September 2004 that the question of the de facto relationship was in issue. Counsel for the plaintiff submitted before the Registrar that the plaintiff was entitled to wait until the filing of the final affidavit on behalf of the defendants before embarking upon the task of responding to the defendants' affidavits. I do not accept that. The issue is not a minor or peripheral one. It is a critical, threshold issue, going to the entitlement of the plaintiff to make a claim under the Act. No reason has been shown why substantial progress could not have been made on the further affidavits to be filed on behalf of the plaintiff on that issue from, at the latest, October 2004 and the affidavits filed well before now.
I do not consider that, in refusing to allow further time, the Registrar was in error. Indeed, as it has turned out, even had the Registrar acceded to the plaintiff's application on 13 July 2005, the plaintiff's affidavits would not have been filed within the extended time. That rather confirms there were good grounds for the Registrar's obvious concern that unless some finality was imposed on the interlocutory proceedings, delays on the plaintiff's side would unreasonably postpone the setting down for hearing, and ultimate determination, of the matter.
If the plaintiff requires further time to file additional affidavits in support of her claim, the proper course is to make an application, supported by affidavit, to file and serve those affidavits out of time.
I would dismiss the appeal. I will hear the parties on costs.