Donaldson v Nolan [No 3]
[2015] WASC 194
•29 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DONALDSON -v- NOLAN [No 3] [2015] WASC 194
CORAM: BEECH J
HEARD: 22 MAY 2015
DELIVERED : 29 MAY 2015
FILE NO/S: CIV 2867 of 2013
BETWEEN: JOHN RAWSON DONALDSON
Plaintiff
AND
JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON
First DefendantJEMMA LOUISE DONALDSON
Second DefendantTHOMAS DEREK DONALDSON
Third DefendantROSANNE DONALDSON
Fourth DefendantGREGORY BRENT DONALDSON
Fifth DefendantVANESSA DONALDSON
Sixth DefendantJACQUELINE DONALDSON
Seventh DefendantVALERIE DOREEN DONALDSON
Eighth DefendantMAITLAND GERALD DONALDSON
Ninth DefendantDAVID TAYLOR
Tenth DefendantSILVER CHAIN NURSING ASSOCIATION INC
Eleventh DefendantROBIN BRAZIL DONALDSON
Twelfth DefendantJENNIFER LOUISE BROWNING
Thirteenth Defendant
Catchwords:
Courts and judges - Contempt - Whether defendant disobeyed order for discovery
Practice and procedure - Discovery - Whether further discovery should be ordered - Subpoena of documents - Whether leave to issue should be granted
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 98
Rules of the Supreme Court 1971 (WA), O 26 r 6, O 55 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Ms W F Gillan
Second Defendant : Ms W F Gillan
Third Defendant : Ms W F Gillan
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 : Ms W F Gillan
Thirteenth Defendant : Ms W F Gillan
Solicitors:
Plaintiff: In person
First Defendant : Taylor Smart Lawyers & Notaries
Second Defendant : Kershaw Legal
Third Defendant : Kershaw Legal
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 : Kershaw Legal
Thirteenth Defendant : Kershaw Legal
Case(s) referred to in judgment(s):
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41 ‑ 956
Boase v Axis International Management Pty Ltd [2012] WASC 334
Caratti v Boban Pty Ltd (Administrators Appointed) (No 2) [2015] WASC 139
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Commissioner for Consumer Protection v Armstrong [No 4] [2015] WASC 8
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558
Donaldson v Nolan [2015] WASC 47
Donaldson v Nolan [No 2] [2015] WASC 158
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
R v Pearce (1992) 7 WAR 395
Roe v The State of Western Australia [2013] WASC 130
Stanley v Layne Christensen Co [2004] WASCA 50
Tobin v Dodd [2004] WASCA 288
Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Wookey v Quigley [No 5] [2011] WASC 275
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
BEECH J:
Introduction
In this action Mr Donaldson seeks an order revoking probate of his father's will. By chamber summons of 4 March 2015, Mr Donaldson applies for various orders, including an order that the first defendant be committed for contempt, orders for disclosure by the first and second defendants of various documents, and other orders. Mr Donaldson also sought leave to issue a subpoena.
These reasons concern Mr Donaldson's application of 4 March 2015, and the subpoena application.
It is convenient to begin with a general outline of the plaintiff's pleaded case.
The plaintiff's pleaded case
The statement of claim dated 26 September 2014 pleads, in summary, as follows:
(1)Mr Donaldson's father, John Wayne Donaldson (the deceased) died on 20 February 2013;
(2)the deceased executed a will dated 13 February 2009 (the Will), and a codicil dated 5 July 2012 (the Codicil);
(3)the second defendant is the plaintiff's sister. The third defendant is his brother;
(4)the second to thirteenth defendants are beneficiaries or legatees under the Will;
(5)the first defendant is, by the Codicil, the executor of the Will;
(6)Probate of the Will was granted to the first defendant on 21 June 2013; and
(7)the deceased lacked testamentary capacity to create a valid will as at 13 February 2009 and thereafter. That is particularised by the assertion that the deceased was an alcoholic suffering from mental impairment, depression and brain injury, and that he suffered delusions in relation to the plaintiff, including the delusion that he had been assaulted by the plaintiff when no such assault had taken place.
The plaintiff also relies upon a document dated 12 January 2015 bearing the title 'Amended Statement of Claim'. Relevantly, in addition to the allegations that the deceased did not have testamentary capacity, the January 2015 amended statement of claim alleges that the deceased was unduly influenced by the plaintiff's siblings in that they made a number of statements about the plaintiff, including that the plaintiff was on hard drugs, and violent. Further, it alleges that the third defendant, as director of Suffolk Investments Pty Ltd, put pressure on the deceased to engage in fraud against the Australian Tax Office prior to writing the Will.
As Mr Donaldson alleges that the first defendant is in contempt of the orders made by Master Sanderson on 10 February 2015, it is necessary to identify the master's orders, and to say something about the reasons which he published for making those orders.
The master's decision of 10 February 2015
On 10 February 2015, the master dismissed an application by the defendant for summary judgment.[1] The master also dealt with the plaintiff's contention that he was entitled to full disclosure of all relevant financial records of the estate, including in relation to Suffolk Investments Pty Ltd. The master found that the financial records of Suffolk Investments were irrelevant to the question of whether or not probate of the deceased's Will and Codicil ought to be revoked.[2]
[1] Donaldson v Nolan [2015] WASC 47.
[2] Donaldson v Nolan [2015] WASC 47 [19].
The master's reasons included the following:[3]
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.
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.
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.
[3] Donaldson v Nolan [2015] WASC 47 [17] ‑ [19].
On 10 February 2015, the master made orders that included the following:
(4)the discovery of the financial records of Suffolk Investments will not be ordered;
(5)the plaintiff is entitled to discovery of any medical reports held by the first defendant and other material which is discoverable such as correspondence, earlier drafts of the will and the like;
...
(7)by 23 February 2015 the first defendant give discovery of all documents, such discovery verified by affidavit;
(8)the plaintiff list all medical evidence upon which he intends to rely, such list to be filed and served by 24 February 2015.
On 23 February 2015, the first defendant filed an affidavit of discovery.
The present application
On 4 March 2015, the plaintiff filed an application for the following orders:
1.[The first defendant] found in 'contempt of court'.
2.[The first defendant] and Jemma Hector (Suffolk Director) provide full and unrestricted disclosure on the full estate of John Wayne Donaldson including last 9 yr of, Suffolk Investments PTY LTD Holding Statements (Chess Statements), all property syndicates, Trust accounts, Superannuation (audited accounts), all Bank Statements, ATO lodgements, contracts for sale of property to Tom Dereck Donaldson (Bedford St), Hardy Rd Nedlands sale and costs, Taylor Smart costs, Trustee costs, siblings bank accounts for last 3 yr, etc etc. Within 7 days.
3.[The plaintiff's] costs to date be paid in full by the estate of JWD within 7 days of the order.
4.The estate of JWD continue to pay the [plaintiff's] costs.
5.The [plaintiff's] income (8.5%) from Suffolk Investments PTY LTD be back paid to time of JWD death. Within 7 days.
6.The court order mediation 3 times once disclosure has been provided.
7.[The first defendant] re lodge 'assets and liabilities' including superannuation.
8.Probate 'suspended' and Testamentary Capacity established.
Also on 4 March 2015, the plaintiff filed an affidavit in support of his application.
In his affidavit he asserted that the first defendant had refused to provide any disclosure asked for in his email since the master's earlier orders. The emails annexed to the affidavit include an email from the plaintiff to the first defendant on 12 February 2015 in which the plaintiff sought discovery of many financial documents. In response, the first defendant referred to par 19 of the master's reasons in which it was stated that discovery of the financial records of Suffolk Investments would not be ordered.
On 12 March 2015, the matter came before the master. Mr Donaldson continued his request for discovery and foreshadowed an application under the discovery provisions of the Corporations Act 2001 (Cth).
The plaintiff also sought that his challenge to the Will in the Family Provision Action be heard at the same time. The master stated that it was neither possible nor appropriate for the Family Provision Action to be heard until the position regarding the Will was known. He also referred to Mr Donaldson's right to seek leave to appeal in relation to discovery.
On 19 March 2015, the master adjourned the matter on the basis that it would need to be reallocated for hearing by a judge, given the contempt application.
The subsequent procedural history is set out in my decision of 5 May 2015 in Donaldson v Nolan [No 2],[4] and is not repeated here.
[4] Donaldson v Nolan [No 2] [2015] WASC 158 [6] ‑ [11].
I will deal with the orders sought by Mr Donaldson in turn. I begin with the contempt application.
Contempt application
An allegation of contempt is criminal in nature. All elements must be proved beyond reasonable doubt.[5]
[5] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey & Gaudron JJ).
Order 55 r 5 requires that the summons give particulars of the contempt of which the alleged contemnor is said to be guilty. In the context of an allegation of a criminal nature, this is an important requirement designed to achieve procedural fairness. The party alleging contempt is bound by its particulars of the alleged contempt.[6]
[6] R v Pearce (1992) 7 WAR 395, 403, 405 ‑ 406 (Malcolm CJ, Pidgeon & Rowland JJ agreeing); Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [30] (Beech J).
That requirement has not been complied with in this case. Notwithstanding the latitude that can, in some respects, be afforded to a self‑represented litigant in relation to procedural requirements,[7] given the criminal nature of an allegation of contempt, I would not make a finding of contempt without compliance with these requirements.
[7] See for example, Boase v Axis International Management Pty Ltd [2012] WASC 334 [57] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J).
In any event, for the reasons that follow, I am not satisfied that the first defendant has committed any contempt. To the contrary, the allegation of contempt seems to me to be entirely without foundation.
Based upon Mr Donaldson's affidavit of 4 March 2015, and his submissions in support of this application, Mr Donaldson's complaint is that the first defendant failed to give the discovery requested by Mr Donaldson in his emails of 10 and 12 March 2015. Further, Mr Donaldson emphasises that he has been making similar requests of the first defendant for a considerable period of time.
A failure to give discovery in accordance with Mr Donaldson's request is not a contempt of court. Contempt of court consists, relevantly, in disobedience of an order of the court. The first defendant has not disobeyed the order of Master Sanderson; he has complied with it.
The order of the master was that the first defendant give discovery, such discovery to be verified by affidavit. The extent of the first defendant's discovery obligations was elucidated by pars 4 and 5 of the master's orders of 10 February 2015. Paragraph 4 made clear that discovery of the financial records of Suffolk Investments Pty Ltd would not be ordered. Paragraph 5 stated that Mr Donaldson was entitled to discovery of any medical reports held by the first defendant and other material which is discoverable such as correspondence, earlier drafts of the Will and the like.
By his affidavit of 23 February 2015, the first defendant gave discovery on oath as ordered. That affidavit of discovery included a list of almost 950 documents, the bulk of which were medical in nature relating to the deceased. I am satisfied that the first defendant has complied with the master's order.
Further, not every non‑compliance with an order of the court amounts to contempt. Under s 98 of the Civil Judgments Enforcement Act 2004 (WA), a person who disobeys a judgment is guilty of a contempt of court. Thus, in order for there to be a contempt, there must be disobedience. That requires the alleged contemnor to have voluntarily failed to have done an act which it had the capacity to do. To put it another way, there must have been a deliberate failure to comply with the order, in the sense of failing to comply whilst knowing of the facts that make that conduct a breach of the order.[8] A person who, after making what they believe to be all appropriate enquiries, gives discovery of what they believe to be all relevant documents will not be found in contempt merely because it subsequently emerges that some additional documents should have been discovered, but were not.[9]
[8] Caratti v Boban Pty Ltd (Administrators Appointed) (No 2) [2015] WASC 139 [80] ‑ [87] (Mitchell J); Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [5] (Martin CJ); Commissioner for Consumer Protection v Armstrong [No 4] [2015] WASC 8 [31] (Beech J).
[9] See International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 [68] ‑ [71] (Martin CJ).
Thus, if, contrary to my view, there had been any non‑compliance with the discovery order, it would still have been necessary for Mr Donaldson to show that the first defendant had disobeyed the order for discovery, in the sense I have just explained. However, given that I am satisfied that the first defendant complied with the master's order, that question does not arise.
For these reasons, I would dismiss the plaintiff's application for an order that the first defendant be committed for contempt.
Application for further discovery
In summary, the plaintiff submits that:
(a)his siblings and the directors of Suffolk Investments unduly influenced the deceased in various respects, including in relation to financial matters. Consequently, full disclosure of all financial records is required;
(b)contrary to the defendants' submissions, Suffolk Investments is a part of these proceedings. That is because Mr Donaldson is a shareholder of Suffolk Investments and that company is part of the estate;
(c)proper discovery has not been given;
(d)fishing is permitted in such an application, referring to O 26A; and
(e)the plaintiff relies on the contents of a letter from a legal practitioner, Mr Camp, to the effect that further disclosure should be given.
It is convenient to deal with the last two of these submissions at the outset.
Fishing is not permitted in the context of an application for further discovery against a party to an action. Applications for discovery under O 26A are of a different character and, for such applications, an element of fishing is permissible. Here, no element of fishing is permissible.
As I attempted to explain to Mr Donaldson in the course of the directions hearing on 30 April 2015,[10] the merit of an argument is not enhanced by the fact that a legal practitioner has expressed an opinion in favour of the argument. An argument must be judged on its own merits, not on the authority, position or qualification of the person making it.
[10] ts 30 April 2015, 45.
As to the second submission, insofar as the application seeks any records of Suffolk Investments Pty Ltd, that company is not a party to these proceedings or to this application. It is not appropriate to order discovery by a non‑party, except based upon an application under O 26A r 5, made against the non‑party. The fact that Suffolk Investments is part of the estate, and that Mr Donaldson is (independently) a shareholder of Suffolk Investments, does not alter or detract from that. The action is against the executor, not against any companies that may be owned by the estate.
In any event, for the reasons below, even if a non‑party application was made against Suffolk Investments in those terms, I would not order discovery of the wide‑ranging categories sought by the plaintiff.
Insofar as the plaintiff seeks orders for discovery against the first and second defendant, the application is in substance an application for further and better discovery.
Principles relevant to an application for further and better discovery were summarised in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd[11] as follows:
In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987 at [5 ‑ 14].
In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:
'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words "either directly or indirectly" because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'
The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.
It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
[11] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] ‑ [6] (Master Newnes).
In the exercise of discretion to grant further discovery, the court should have regard, among other things, to the likely relevance and importance, in relation to the issues in the proceeding, of the documents, and the likely time, cost and inconvenience of searching for and disclosing the documents.[12]
[12] Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17 [13] (Le Miere J).
As Martin CJ observed in Roe v The State of Western Australia,[13] the nature and extent of the apparent relevance of the document will be a significant consideration in the exercise of the discretion whether to order further and better discovery. Satisfaction of the low threshold of relevance in the Peruvian Guano sense will not necessarily justify an exercise of discretion to order discovery. A claim to a broader ambit of discovery must be justified by whether the cost and delay involved in the wider ambit is proportionate to the forensic benefit likely to be derived from the wider ambit, in the context of the value, importance and complexity of the subject matters of the litigation.
[13] Roe v The State of Western Australia [2013] WASC 130 [10] ‑ [13].
I have outlined the issues in this case by reference to the statement of claim and amended statement of claim. In summary, the issues are whether the deceased:
(1)lacked testamentary capacity on grounds of his alcoholism, mental impairment, depression and brain injury;
(2)suffered delusions in relation to the plaintiff; and
(3)was unduly influenced by the plaintiff's siblings in making the Will or the Codicil.
The great bulk of the sweeping range of categories of documents claimed by the plaintiff in this application seem to me to be without any degree of relevance to the issues in these proceedings. As I have said, the plaintiff submits that his siblings' undue influence over the deceased included pressure they put him under in relation to financial matters and on that basis all financial records should be disclosed. Insofar as some financial records may meet the Peruvian Guano test of leading to a train of inquiry, I am not persuaded that the discretion in relation to further discovery should, in all the circumstances, be exercised in favour of an order for further and better discovery. The plaintiff seeks very wide ranging series of categories, extending over a large period of time. The connection of those various categories over those periods of time to the generalised allegations of pressure relating to financial matters is, to my mind, remote. Moreover, the wide ranging categories of discovery sought by the plaintiff would entail a degree of oppression to the defendants, and a cost and inconvenience disproportionate to the likely potential significance of that material to the issues in the case.
For these reasons I decline to make any order for further and better discovery.
Other orders sought by the plaintiff
Paragraphs 3 and 4 of the plaintiff's application seek orders that his costs to date be paid in full out of the estate, and that thereafter the estate continue to pay his costs. I note that, at least for the substantial bulk of these proceedings, the plaintiff has not been legally represented. In any event, on the material before me, I am not satisfied that any interim order should be made for the payment by the estate of the plaintiff's costs. The question of costs is generally dealt with at the conclusion of the proceedings when an informed decision can be made about it. No sufficient reason has been shown for departing from that approach.
Paragraph 5 of the plaintiff's application seeks an order that Suffolk Investments pay what is described as the 'plaintiff's income (8.5%)' to the plaintiff, back to the time of the deceased's death. It would not be appropriate to make any such order in the circumstances where Suffolk Investments is not a party to these proceedings. Further and in any event, there is nothing in the material before me to sustain the making of such an order, particularly at an interlocutory stage of the proceedings.
The plaintiff also seeks an order for mediation 'three times'. At the hearing on 22 May 2015, the plaintiff handed up, without objection, an email from an accredited mediator apparently on behalf of the second defendant inviting participation in a process of mediation. Counsel for the first, second, third, twelfth and thirteenth defendants informed me that the other defendants were firmly opposed to mediation at this stage.
In circumstances where that course is, at this stage, opposed by certain of the defendants, and in circumstances where it is not in dispute that the third defendant has a violence restraining order against the plaintiff,[14] I would not order mediation. However, in my view it will be appropriate that there be an order for mediation at some stage before trial. That should occur when the parties have further exposed their cases by identifying the evidence on which they rely. The mediation should be arranged so that it does not delay the progress of the action to trial.
[14] ts 22 May 2015, 68.
Moreover, nothing I have said should be thought to preclude or discourage the plaintiff from, in the meantime, taking up the invitation from the accredited mediator on the second defendant's behalf to initiate communication between the plaintiff and the second defendant with a view to seeing whether there may be a way to resolve the dispute. To the contrary, the taking of such a step by two parties, both of whom are evidently willing to do so, would be very constructive and is to be encouraged.
Paragraph 7 seeks an order that the first defendant, the executor, re‑lodge the statement of assets and liabilities. The plaintiff has failed to satisfy me that any such order should be made, particularly at an interlocutory stage.
Finally, par 8 of the plaintiff's application seeks an order that probate be suspended and 'testamentary capacity established'. I am not persuaded that any interim order, suspending the grant of probate, should be made. Rather, these proceedings should be brought to the point where they can be determined as soon as possible in order to ascertain whether the grant of probate to the first defendant as executor should be revoked.
For these reasons, I would dismiss the plaintiff's application by summons of 4 March 2015.
Application for leave to issue a subpoena
That brings me to the plaintiff's application for leave to issue a subpoena.
The plaintiff seeks leave to issue a subpoena to Hartleys Ltd to produce documents before trial. The categories of documents sought are, in summary, all financial records, including records relating to superannuation, held by Hartleys Ltd relating to the deceased, and to the deceased's company JWD Associated Holdings.
At the hearing on 22 May 2015 the plaintiff made an oral application for leave to issue a subpoena in the same terms in the Family Provision Action, CIV 2865 of 2013. That followed a suggestion from the court that he may wish to consider doing so.[15] However, by email sent on 22 May 2015 after the conclusion of the hearing, the plaintiff withdrew that application. Consequently the position in relation to the Family Provision Action does not fall to be considered.
[15] ts 22 May 2015, 69 ‑ 71.
Legal principles relating to the issue of subpoenas and to the inspection of documents produced under a subpoena may be summarised as follows.
Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.[16]
[16] Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374 (Kennedy, Pidgeon & Franklyn JJ); Stanley v Layne Christensen Co [2004] WASCA 50 [9] (Miller & EM Heenan JJ); Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18] (Steytler P).
In advance of trial, the determination of whether a document is relevant is a difficult one.[17] The necessity of having a document in order to fairly dispose of the issues at trial might well not become apparent before trial.[18]
[17] National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385 (Moffit P, Hutley & Glass JJA agreeing); Apache Northwest Pty Ltd (373).
[18] Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
One object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage in proceedings. Accordingly, a narrow view should not be taken as to the legitimate purposes of a subpoena of apparent relevance.[19]
[19] Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
There is no requirement that to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a subpoena. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.[20]
[20] Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
In Australian Gas Light Co v Australian Competition & Consumer Commission[21] French J said as follows:
It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
This passage was cited with approval in Darbyshirev Gilbert[22] and Commonwealth of Australia v Albany Port Authority at [18].
[21] Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41 ‑ 956 [8].
[22] Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558 [13] (Pullin JA, Roberts‑Smith JA agreeing).
A subpoena of documents must be in a proper form. The class or classes of documents sought to be produced must be sufficiently clearly identified. The classes should not be specified in terms that direct attention to, and call for, judgment of, the relevance of the documents to issues in the proceedings to which the recipient is not a party.[23]
[23] Darbyshire [15].
The determination of whether inspection should be permitted of documents produced on subpoena is separate from the question of whether to grant leave to issue the subpoena.[24]
[24] Waind (381); Apache Northwest Pty Ltd (371); Stanley v Layne Christensen Co [11] ‑ [13].
Further, the question of inspection is distinct from the question of whether a document may be tendered at trial.[25] The tests are very different. Many documents might meet the apparent relevance threshold for inspection, but fall well short of being sufficiently relevant to be admissible at trial.
[25] Waind (381); Apache Northwest Pty Ltd (371).
If a document is apparently relevant, inspection will usually be permitted, even though it is not admissible as it stands and the party seeking the document has not undertaken to tender it or use it in cross-examination.[26] Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information.[27] However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, when determining whether to permit inspection.[28]
[26] See Waind (385); Apache Northwest Pty Ltd (373 - 374).
[27] Apache Northwest Pty Ltd (379); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38 (Hayne JA, Winneke P & Phillips JA agreeing).
[28] Apache Northwest Pty Ltd (380 - 381).
The principles of case‑flow management and the objects in O 1 r 4B of the Rules of the Supreme Court 1971 (WA) must be kept in mind when determining whether to permit inspection.[29]
[29] Wookey v Quigley [No 5] [2011] WASC 275 [35] (Kenneth Martin J).
The subpoena proposed by the plaintiff seeks the identified classes of documents from 2007 to the present. In my view, documents of the proposed classes after the death of the deceased are entirely irrelevant to, and incapable of bearing on, the issues in this case. As I have said, the issues in this case relate to the validity of the Will, the deceased's state of mind at the times he made the Will and the Codicil and whether, before he died, he was subjected to undue influence in any of the various ways alleged by the plaintiff. Subsequent financial records are of no assistance in relation to those issues.
As to the documents sought in the years before the deceased's death, for reasons corresponding to those I have given relating to the application for further and better discovery, such documents are in my view, not apparently relevant or, if and to the extent that some documents within the class of documents broadly framed to span six years have any relevance, I would not exercise my discretion in favour of the issue of the subpoena. In my view, on any assessment, the potential assistance to be derived from any documents within the classes sought and for the years sought is at best very small; it would not justify requiring the production of six years of records, and the consequent incursion on the privacy of the deceased and his company.
For these reasons, I would not grant leave to issue the subpoena. If the subpoena were issued, I would not grant leave to the plaintiff to inspect the documents.
Application to issue subpoena in CIV 1461 of 2015
Mr Donaldson also seeks leave to issue a subpoena in the same terms in his application for pre‑action discovery in CIV 1461 of 2015.
It is not necessary to invite submissions from the defendant, Suffolk Investments, in that action because, for the reasons that follow, I decline to grant leave.
In my opinion, the limited nature of the proceedings in the Pre‑Action Discovery Application militates decisively against the grant of leave to issue a subpoena to produce documents before trial.
The documents the subject of a proposed subpoena must have apparent relevance to the issues in the proceedings in which the subpoena is to be issued. The central issue in this proceeding is whether the defendant, Suffolk Investments, should be ordered to give pre‑action discovery under O 26A r 4. That rule applies when a person who may have a cause of action against a potential party wants to take proceedings against the party but after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence the proceedings. The Pre‑Action Discovery Application is not a vehicle for any substantive claim by Mr Donaldson against Suffolk Investments; it is only an application for discovery to assist in Mr Donaldson's decision whether to bring an action against Suffolk Investments.
Whether leave to issue a subpoena in those terms should be granted in any substantive proceedings between Mr Donaldson and Suffolk Investments does not arise. That is not the character of the Pre‑Action Discovery Application. In my view, it would be inappropriate as a matter of case management and of discretion to permit a subpoena of documents in the Pre‑Action Discovery Application.
Request under O 36B r 13
Prior to the hearing on 22 May 2015, the plaintiff requested that a request made by the first defendant's solicitors in this action to Principal Registrar Gething be brought before the court at the hearing on 22 May 2015.[30]
[30] Email of 15 May 2015.
The first defendant's solicitors made a request by letter to Principal Registrar Gething under O 36B r 13. That rule provides as follows:
Documents and things in custody of court
(1)A party who seeks production of a document or thing in the custody of the Court or of another court may inform the registrar in writing accordingly, identifying the document or thing.
(2)If the document or thing is in the custody of the Court, the registrar must produce the document or thing ‑
(a)in Court or to any person authorised to take evidence in the proceeding, as required by the party; or
(b)as the Court directs.
(3)If the document or thing is in the custody of another court, the registrar must, unless the Court has otherwise ordered ‑
(a)request the other court to send the document or thing to the registrar; and
(b)after receiving it, produce the document or thing ‑
(i)in Court or to any person authorised to take evidence in the proceeding as required by the party; or
(ii)as the Court directs.
The first defendant's solicitors sought production by the Magistrates Court of documents relating to a violence restraining order obtained by the deceased against the plaintiff in proceedings PE 387 of 2009, and any other violence restraining order made by the Magistrates Court at the request of any other party to the proceedings.
By his letter of 18 May 2015, Principal Registrar Gething wrote to the Manager, Records at the Magistrates Court, requesting delivery by that court to this court of documents in relation to the proceeding in PE 387 of 2009.
In order to protect the plaintiff's right to object to inspection of the documents by the parties, at the hearing on 22 May 2015 I made orders to the following effect:
(1)any documents received by this court pursuant to the principal registrar's letter of 18 May 2015 be delivered to my associate;
(2)any documents received in that way be available to inspected by the plaintiff within 14 days of his being notified by my associate that such documents had been received; and
(3)if the plaintiff opposes inspection by other parties he must apply within 14 days of inspection for an order that there be no inspection, supported by submissions.
In oral submissions the plaintiff complained that the subpoenas that he sought to issue and the documents sought by the first defendant to be produced seemed to be being treated in different fashion, reflecting 'double standards'.[31] Because the documents sought by the first defendant are in the possession of another court, a different procedural rule applies.[32] In any event, in my view, the two applications for documents are different because the documents sought by the first defendant are directly relevant to the issues in these proceedings, while the documents sought by the plaintiff are not. A central issue in this action is the deceased's state of mind when he made the Will. There is a specific allegation by the plaintiff that the deceased was under a delusion that the plaintiff had assaulted him. The material sought from the Magistrates Court, namely the file relating to an application by the deceased for a violence restraining order against the plaintiff, is directly relevant to that allegation.
[31] ts 22 May 2015, 73, 75.
[32] O 36B r 13.
That conclusion is relevant to, but not decisive of, the question of inspection. The question of inspection will be determined at a later stage, in accordance with the process outlined in the Orders of 22 May 2015.
Conclusion
For the reasons I have given:
(1)I would dismiss the plaintiff's application by summons of 4 March 2015;
(2)I would dismiss the plaintiff's application for leave to issue a subpoena to Hartleys Ltd.
I will hear from the parties as to costs.
Shortly after the publication of these reasons there will be a directions hearing at which directions should be made to bring the action to trial.
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