Curry v Byrne

[2007] QSC 400

[2007] QSC 400

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

WHITE J

No 7354 of 2007

ANNE-MARIE CURRY	Plaintiff
and
JOAN ELIZABETH BYRNE	Defendant
BRISBANE ..DATE 09/11/2007

ORDER
HER HONOUR: The applicant is the defendant in the principal

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proceedings. Although by the heading on the Court documents
she is described in her individual name, it is clear that she
is sued in her capacity as executrix of the estate of her

deceased husband.

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She brings this application to set aside some 22 notices of non-party disclosure that were filed by the plaintiff.

The plaintiff seeks to have admitted to probate certain

documents described by her in her pleading as codicils to the	20
will of the deceased. The extant will is a will of 1997.
These codicils relate to a period just before the deceased
took his own life in February this year. The codicils purport
to give certain specific items of property to the plaintiff
and her daughter.	30
The defendant estranged wife is the residuary beneficiary under the will.
Mr Lee, who appears on behalf of the plaintiff/respondent,	40
does not resist the orders to set aside five of those notices, so there are 17 in dispute. It is, however, in my view unnecessary to go in any detail to any of those notices to resolve this application.
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The first issue that needs to be resolved is the standing of the applicant to challenge those notices. Perhaps before dealing with that issue the present state of the proceedings needs to be identified. The pleadings are likely not to be 2 ORDER 60

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closed but a claim and statement of claim has been filed by
the plaintiff and a notice of intention to defend and defence
has also been filed by the defendant. Intimation from the
respondent/plaintiff's solicitor is to the effect that a reply

will be forthcoming and, having looked at the defence, it is	10
clear that that is a document which would be necessary in light of the assertions made in the defence.
The state of the proceedings is quite recent. The claim was
issued on the 22nd of August this year and the notice of	20
intention to defend and defence was filed in the Registry a month later.
Disclosure has not taken place between the parties. Mr Lee
submits that it is anticipated in view of the applicant's	30
attitude to these notices and the grounds upon which she does
so that she is likely to resist proper disclosure and so
further applications would have to be brought. That needs
only to be stated to be rejected as a basis for departing from
the way in which proceedings are conducted in this Court in an	40
orderly fashion.
But returning to the question of standing, the applicant
maintains that she has standing to challenge the notices by
virtue of the provisions of r.245 of the Rules and, in	50
particular, subrule (2) which provides:

"Also another person who would be affected by the notice and who has not been served may object to the production

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of some or all of the documents mentioned in the notice

at any time with the Court's leave." 1

Furthermore, Dr Greinke who appears on behalf of the applicant, relies upon Rule 371 whereby any party affected by a breach of the rules may make an application to the Court to

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set aside all or part of the proceeding. He also relies upon
the inherent power of the Court to regulate its own process
consistently with its rules. He particularly refers to the
recent decision of Brereton J in the Equity Division of the

New South Wales Supreme Court in Street v Luna Park Sydney Pty

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Ltd [2006] NSW SC 95, a decision of the 9th of February 2006.

In a similarly expressed New South Wales rule but not identical Brereton J referred to previous authority in relation to the standing of a party who was not served with

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the non-party disclosure notice to seek to have that notice
set aside or in respect of a subpoena to a witness, which
amounts to the same thing. He discusses past cases,
particularly the observations of McLelland J in Compsyd Pty

Ltd v Streamline Travel Services Pty Ltd [1987] 10 NSWLR 648.

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It is unnecessary to traverse the analysis of the cases which his Honour undertakes but I refer only to paragraph 6:

"Although it might be said that the balance of that
authority weighs in favour of the view that a party does
not automatically have standing to apply to set aside a

subpoena addressed to a third party in the absence of an

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interest in the subject documents, at least two Judges of this Court, Powell and Hunter JJ have expressed the view that being a party to proceedings is of itself sufficient to confer standing. With great respect to what was said by McLelland J, which faithfully follows the words of the then rule, that view gives insufficient weight to the considerations referred to by Powell J in Botany Bay that setting aside a subpoena is an aspect of the Court's

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inherent power to stay abuses of its process in which,

for reasons expressed by Hunter J in Brand, a party has	1
an interest quite apart from any interest in the documents.
In my view, a party to proceedings has a sufficient interest in the regular conduct of those proceedings to invoke the Court's power to set aside a subpoena for production of documents whether or not it has an interest in the subject documents."

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Irrespective of whether the applicant has standing by virtue simply of being a party to the proceedings, I have concluded that she does have an interest in these proceedings. It comes

about in this way: that she is the residuary beneficiary of

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the estate. It is clear that the respondent, who is the
plaintiff, will seek her costs out of the estate and those
costs will include the costs associated with the non-party
disclosure notices. That is made clear by a letter from her

solicitor dated the 3rd of August 2007 to the applicant's

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solicitors in which the solicitors wrote:

"We put you on notice that our client intends to seek
reimbursement of her costs from the estate in undertaking
the above [the proof that the documents are testamentary
instruments] whether or not the Court determines that the

four letters are testamentary instruments."

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That being so, I then turn to the issue of whether or not the notices ought be set aside. I would do so on this basis without descending to the particulars of the notices themselves, namely, that it is premature. Until disclosure

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has taken place between the parties, resort to the non-party
disclosure procedure is precluded by the rules of Court where
other ways which do not impact upon non-parties are required
to be sought for the document. There are many of these
documents which may be relevant to the matters in issue 5 ORDER 60

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between the parties which will be in the possession or control
of the applicant in her capacity as executrix of the

deceased's estate.

There are further complaints about the documents themselves	10
which would deal with the rule 371 point, namely, that the non-party is left to struggle with the pleadings which are exhibited to the notices to ascertain whether the broad
categories of documents which are described in the notice are
relevant to the matters in issue between the parties, and	20
again in the absence of a reply, that becomes an even more difficult task.
It is also submitted that the non-party disclosure is sought
for a collateral purpose or that they amount to a fishing	30
expedition in order to find out as much as possible about the deceased man's estate. I do not propose to deal with those submissions because, in my view, I have disposed of the application sufficiently.
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...
HER HONOUR: I have just added that the applicant serve each
recipient of a notice the subject of the application with a
copy of this order.	50
...

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HER HONOUR: The applicant seeks the costs of this application

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and also the costs reserved on the 2nd of November 2007 to be

assessed on the indemnity basis.

It is unusual to order such costs and good reason must be

advanced for doing so. Dr Greinke submits that this was such	10
a departure from the regular manner of proceeding that it
would justify such an order; that the rules were disregarded by prematurely seeking non-party disclosure; that there were many departures from the proper form to be used; and that in many ways the process was outside the ambit of the rules about	20
non-party disclosure themselves.
Mr Lee submits that the applicant was not entirely successful
inasmuch as an order in futuro preventing the plaintiff from
bringing any further notices for non-party disclosure without	30
first serving the respondent and that leave was not granted to object at large with respect to any further notices.
Furthermore, Mr Lee submits that the Judge will be best placed
at the end of the trial to gauge the usefulness of this	40
exercise, whether or not the defendant complies with her
obligations about disclosure, and the fact that the plaintiff
has been forced into the position of being the active party in
the litigation because the defendant as executrix has not
sought to propound the 1997 will in solemn form of law but has	50

left it to her to seek to propound the alleged codicils.
I am persuaded that this was not a case of an inexperienced 7 ORDER 60

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person acting on her own but a person with the advice of her
lawyers who sought to disregard the proper processes that are
in place in the rules for access to documents that might be

relevant to the matters in issue.

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The failure to follow the form in many cases, the broad nature
of the documents sought, the failure to identify with any
particularity the issue to which the documents sought should
be referred, all suggest to me that this is a proper case for

ordering costs on the indemnity basis, and I so order. 20

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