Donaldson v Nolan
[2015] WASC 47
•10 FEBRUARY 2015
DONALDSON -v- NOLAN [2015] WASC 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 47 | |
| Case No: | CIV:2867/2013 | 22 JANUARY 2015 | |
| Coram: | MASTER SANDERSON | 10/02/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Applications both dismissed Orders made programming action for trial | ||
| B | |||
| PDF Version |
| Parties: | JOHN RAWSON DONALDSON JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON JEMMA LOUISE DONALDSON THOMAS DEREK DONALDSON ROSANNE DONALDSON GREGORY BRENT DONALDSON VANESSA DONALDSON JACQUELINE DONALDSON VALERIE DOREEN DONALDSON MAITLAND GERALD DONALDSON DAVID TAYLOR SILVER CHAIN NURSING ASSOCIATION (INC) ROBIN BRAZIL DONALDSON JENNIFER LOUISE BROWNING |
Catchwords: | Practice and procedure Application by first defendant for summary judgment Application by plaintiff for discovery Turns on own facts |
Legislation: | Family Provision Act 1972 (WA) Wills Act 1970 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON
First Defendant
JEMMA LOUISE DONALDSON
Second Defendant
THOMAS DEREK DONALDSON
Third Defendant
ROSANNE DONALDSON
Fourth Defendant
GREGORY BRENT DONALDSON
Fifth Defendant
VANESSA DONALDSON
Sixth Defendant
JACQUELINE DONALDSON
Seventh Defendant
VALERIE DOREEN DONALDSON
Eighth Defendant
MAITLAND GERALD DONALDSON
Ninth Defendant
DAVID TAYLOR
Tenth Defendant
SILVER CHAIN NURSING ASSOCIATION (INC)
Eleventh Defendant
ROBIN BRAZIL DONALDSON
Twelfth Defendant
JENNIFER LOUISE BROWNING
Thirteenth Defendant
Catchwords:
Practice and procedure - Application by first defendant for summary judgment - Application by plaintiff for discovery - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Wills Act 1970 (WA)
Result:
Applications both dismissed
Orders made programming action for trial
Category: B
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr S Davies
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Solicitors:
Plaintiff : In person
First Defendant : Taylor Smart
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: These reasons deal with the further management of this case. The plaintiff is self-represented although intermittently over the last 12 months he has had solicitors acting for him. These reasons also deal with a summary judgment application by the first defendant. To explain why I would dismiss the summary judgement application and why I propose to make a series of directions as to the further conduct of the matter it is necessary to detail the procedural history.
2 On 12 December 2013 the plaintiff issued an originating summons seeking orders under the Wills Act 1970 (WA). Relevantly the orders sought were:
1. that authority is given for the revocation of the whole of the will of the Deceased pursuant to section 40 of the Wills Act 1970 ('the Act') as this Honourable Court thinks fit;
2. an interim order under section 7A of the Act that payment be made to the Plaintiff, for $15,000.00 or such sum as this Honourable Court thinks fit.
3 The application was misconceived. Section 40 of the Wills Act deals with the jurisdiction of the court to make, alter or revoke a will. In this case the plaintiff was concerned with the estate of his late father, John Wayne Donaldson. Probate of the deceased's will had by the time proceedings were issued been granted to the first defendant. It is clear what the plaintiff was actually seeking was a revocation of the grant of probate.
4 There is no s 7A in the Wills Act. There is a s 7A in the Family Provision Act 1972 (WA). That section allows for an interim payment from a deceased's estate pending determination of an application under the Act. There is in fact an application under the Family Provision Act currently on foot: see Donaldson v Nolan CIV 2865 of 2013. That application presently stands adjourned sine die pending determination of the application to revoke the grant of probate. If there was to be any distribution to the plaintiff from the deceased's estate an application would need to be made in those proceedings.
5 It is also apparent the action should have been commenced by writ not originating summons. There will inevitably be, in an action for revocation of probate, disputes of fact between the parties. Leaving that issue to one side the plaintiff did when he filed the originating summons file an affidavit in support of his application. The affidavit was sworn 12 December 2013. Working from that affidavit the nature of the plaintiff's claim is as follows.
6 The plaintiff is the son of the deceased. The second defendant is his sister and the third defendant is his brother. The deceased died on 20 February 2013. The deceased was divorced from the plaintiff's mother in 1989. On 9 March 1991 he married Carol Anne Shannon. They were divorced in 2006.
7 The deceased left a will dated 13 February 2009. There was a codicil to that will dated 5 July 2012. The will and the codicil were admitted to probate on 21 June 2013.
8 Pursuant to the terms of the will the third defendant was appointed executor of the deceased's estate. By the codicil to his will the deceased replaced the third defendant as the executor of his estate and appointed the first defendant as executor. The will contains a number of specific bequests. These are not presently of relevance. There are two clauses which have caused the plaintiff disquiet. They are cl 4 and cl 8. They are in the following term:
4. I GIVE DEVISE and BEQUEATH the share in Suffolk Investments Pty Ltd which I own at the time of my death in the following manner AND I DECLARE THAT if at my death the said share shall be virtue of any amalgamation, reconstruction or rearrangement or capital of the said company or sale of the company's business be represented by a different capital holding then this bequest shall take effect as if it has been a bequest of the capital holding or capital holdings which as a result of such amalgamation, reconstruction or rearrangement of capital or sale took the place of such shares.
(a) My 'A' Class share to my son THOMAS DEREK DONALDSON for his own use and benefit absolutely.
(b) My other shares are to be apportioned so that, when combined with shares in the company already owned by each beneficiary, the final position after this bequest shall be that JEMMA LOUISE DONALDSON and THOMAS DEREK DONALDSON each hold 50% of the total shares in the company owned by me at the date of my death (but excluding the 'A' Class referred to above). 50% is to be calculated as nearly as is practicable given the realities of the share register;
...
8. I have given lengthy consideration to the provision that I have made in this Will for my son JOHN RAWSON DONDALDSON and as a result of his behaviour towards myself and other family members over a lengthy period of time the only provision that I have made for him is as referred to in this Will. The behaviour to which I refer includes physical assaults on me and my property. My son's behaviour as referred to in this clause has not occurred on an isolated basis but has been repeated over many years and for all of these reasons I have not made any great provision for him in this my Will.
9 It is the plaintiff's position the deceased was for many years prior to his death a hopeless alcoholic. The plaintiff maintains this had damaged the deceased's mental capacity to the point where he was incapable of properly managing his affairs and drawing a will. Furthermore, it is the plaintiff's claim the deceased was unduly influenced by the second and third defendant so the will admitted to probate did not accurately reflect the deceased's intentions. In fairness to the plaintiff I should also say he denies ever having assaulted or in any way mistreated the deceased. He says suggestions to the contrary are nothing more than evidence of the deceased's impaired mental condition.
10 For present purposes it is unnecessary to go into further detail as to the plaintiff's claims. However, it is relevant to note annexed to his affidavit were two medical reports and a death certificate which lend some support to the plaintiffs' claims.
11 On 30 April 2014 the first defendant filed an application seeking summary judgment. Given the action was commenced by originating summons summary judgment in favour of the defendant under O 16 of the Rules of the Supreme Court 1971 (WA) was not available. But the first defendant's intention was clear. He wanted to strike out the proceedings as incompetent. The matter was first returned on 13 May 2014. I made orders for the filing of affidavits by the plaintiff and adjourned the matter to a special appointment on 18 June 2014.
12 When the matter came on for hearing the issue of there being no extant statement of claim was raised. After hearing argument I ordered that the action should proceed as if commenced by writ and I gave the plaintiff until 30 July 2014 to file a statement of claim. The matter was adjourned to general chambers on 5 August 2014 for directions.
13 When the matter came on for a further special appointment on 28 August 2014 the plaintiff was represented by solicitors. They sought the opportunity to file a statement of claim - something they had not by then had the chance to do. Over the objection of counsel for the first defendant I further adjourned the matter to allow a statement of claim to be prepared.
14 The matter came on again on 6 October 2014. At that time the plaintiff was represented by Mr Camp of counsel. A statement of claim had been prepared. Counsel for the first defendant complained the statement of claim lacked particulars. Mr Camp while not conceding the point indicated he was prepared to obtain the necessary medical records - by way of subpoena if necessary - and provide particulars. On that basis the matter was further adjourned until 10 November 2014.
15 The matter came on again on 10 November 2014. Mr Camp again appeared. Mr Camp said he was not in a position to provide particulars. In an attempt to move the matter forward I suggested to Mr Camp that he should obtain all the medical reports upon which he intended to rely and forward copies of those to the first defendant's solicitors. He indicated he would take this step and on that basis the matter was adjourned to 15 January 2015.
16 When the matter came on in general chambers on 15 January 2015 counsel for the first defendant sought to have the application for summary judgment determined. Mr Camp did not appear. It was unclear if he was any longer instructed. The plaintiff for his part maintained his case was crystal clear, the medical reports were conclusive and at the very least he should have full 'disclosure' of all relevant financial records of the estate.
17 The plaintiff's fixation with this 'disclosure' or discovery has been a constant theme and an unfortunate distraction throughout this whole unhappy process. If I understand the plaintiff correctly he maintains he has an interest in Suffolk Investments Pty Ltd independent of his father's will. But leaving that to one side he maintains that as a consequence of probate of the will being revoked and the will itself being declared invalid he will have an interest in Suffolk Investments and he therefore is presently entitled to discovery of all of the financial records of the company.
18 At all times the first defendant has maintained there is no reason why discovery of the financial records of Suffolk Investments ought be provided to the plaintiff. During the period where solicitors were instructed and Mr Camp was involved a subpoena was issued to a firm of stockbrokers presumably with the intent of obtaining some financial records relating to the company. The solicitors for the first defendant complained about this subpoena and it was withdrawn. Presumably the plaintiff's then solicitors accepted there was no basis for the issue of the subpoena. Clearly they were correct.
19 This discovery issue needs to be resolved finally to prevent the plaintiff raising it again as an issue. The plaintiff did issue a summons on 30 June 2014 which in garbled form appears to seek discovery. In my view the financial records of Suffolk Investments are entirely irrelevant to the question of whether or not probate of the deceased's will and codicil ought be revoked. What is at issue in those proceedings is the mental capacity of the deceased at the time he entered into the will and perhaps what influence was brought to bear upon him by the second and third defendants. Any medical reports held by the first defendant would be discoverable. There may be some other material which is discoverable - correspondence, earlier drafts of a will and the like. The plaintiff is entitled to have discovery of such material but I am not satisfied the financial records of the company are discoverable. Insofar as the chamber summons of 30 June 2014 issued by the plaintiff is directed at that end it will be dismissed. The plaintiff ought be clear on this issue - discovery of the financial records of Suffolk Investments will not be ordered.
20 That leaves the first defendant's application for summary judgment. Although there appears to be no record on file that the statement of claim dated 26 September 2014 is the statement of claim upon which the plaintiff relies it is clear that is the case. If summary judgment were to be granted it would have to be on the basis there was no evidence to support the plaintiff's claim the deceased lacked testamentary capacity when he made his will. It is not easy to marshal the documents which support the plaintiff's case. From time to time medical reports have been lodged but not included in an affidavit in a way that is normally done on a summary judgment application. But it is clear when these medical reports are considered the plaintiff has an arguable case. It is not necessary to go beyond the two medical reports attached to the plaintiff's first affidavit. Moreover there is presently the uncontradicted evidence of the plaintiff as to the deceased's alcoholism and his mental capacity. Taken together I am satisfied the plaintiff has a prima facie case and the application for summary judgment ought be dismissed.
21 The remaining question is how to proceed from this point. Mediation appears not to be an option - the beneficiaries (other than the eleventh defendant) have indicated they would not participate. There is much antipathy between the parties. That being so the matter ought be brought to trial as soon as possible. With that in mind I intend subject to hearing from the parties to make the following orders:
1. By 23 February 2015 the first defendant give discovery of all documents such discovery verified by affidavit;
2. The plaintiff list all medical evidence upon which he intends to rely, such list to be filed and served by 24 February 2015;
3. The matter be entered for hearing by 6 March 2015;
4. A certificate of readiness is dispensed with;
5. Parties provide unavailable dates for a three day trial in April and May 2015 by 16 February 2015; and
6. Costs of the hearing on 15 and 22 January 2015 be reserved.
2
0
2