Donaldson v Nolan [No 4]

[2015] WASC 423

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   DONALDSON -v- NOLAN [No 4] [2015] WASC 423

CORAM:   BEECH J

HEARD:   ON THE PAPERS

DELIVERED          :   5 NOVEMBER 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 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 - Subpoena of documents - Whether inspection should be permitted - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 36B r 13

Result:

Objection to inspection dismissed
Order for inspection

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance (on the papers)

First Defendant              :     No appearance (on the papers)

Second Defendant         :     No appearance (on the papers)

Third Defendant            :     No appearance (on the papers)

Fourth Defendant           :     No appearance (on the papers)

Fifth Defendant              :     No appearance (on the papers)

Sixth Defendant             :     No appearance (on the papers)

Seventh Defendant         :     No appearance (on the papers)

Eighth Defendant           :     No appearance (on the papers)

Ninth Defendant             :     No appearance (on the papers)

Tenth Defendant            :     No appearance (on the papers)

Eleventh Defendant        :     No appearance (on the papers)

Twelfth Defendant         :     No appearance (on the papers)

Thirteenth Defendant      :     No appearance (on the papers)

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

Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498

1. BEECH J:  The issue on this application is whether the first defendant should be permitted to inspect documents produced to this court by the Magistrates Court.

Background

1. By letter of 25 August 2015, the first defendant's solicitors made a request pursuant to O 36B r 13 to the principal registrar for the production by the Perth Registry of the Magistrates Court of Western Australia of all documentation in the possession of the Perth Magistrates Court relating to the issuance of a violence restraining order against the plaintiff, Mr Donaldson, in the Magistrates Court of Western Australia on 28 September 2005 for the benefit of Mr Mark Peter Hector.

2. The principal registrar wrote to the Manager of Court Records at the Magistrates Court of Western Australia requesting that the documents referred to in the first defendant's request be forwarded to the Supreme Court.

3. On 3 September 2015, I ordered that any documents received by the court pursuant to the principal registrar's letter be delivered to my associate.  I also ordered that the plaintiff have liberty to inspect those documents and, if he opposes inspection, to apply within 14 days of inspection for an order that there be no inspection, with submissions in support.  I directed that if such an application were made:

   (a)the defendants file and serve any submissions on the question of inspection within 14 days thereafter;

   (b)the plaintiff file and serve any submissions in reply within seven days thereafter; and

   (c)the application be determined on the papers.

Mr Donaldson's objection

1. Having inspected the documents received by this court from the Perth Magistrates Court, on 12 October 2015, Mr Donaldson sent an email to my associate in the following terms:

   I object to Peter Nevin viewing the file from magistrates Court.  I [sic] legal advice is Peter Nevin is impartial to these proceedings.  And only creating huge costs for his own benefit.  Currently subject to a complaint with Federal Police and Australian Crime Commission.

   Also Mark Hector is not a witness and can provide no incident report for his lies in VRO application.

2. As the parties were advised by email from my associate of 13 October 2015, I take Mr Donaldson's email to be an application with supporting submissions for an order that there be no inspection.

3. On 26 October 2015, the first defendant filed submissions on the question of inspection.

4. On 27 October 2015, Mr Donaldson sent an email to my associate which, among other things, stated as follows:

   The subpoena just further enhances my case that my father was under undue influence with lies and half truths.  More 'dirty tactic', Allan Camp.  Stinks of desperation.

   There is no police incident report in any VRO?? As there was no need for them.  As provided in the subpoena incident reports.

5. Although it is not entirely clear, I take this to be Mr Donaldson's submissions in reply, opposing an order for inspection.

Principles governing inspection of subpoenaed documents

1. In my view, the principles I stated in Boase v Axis International Management Pty Ltd [No 3][1] apply, or apply by analogy.

   [1] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [11] ‑ [21].

   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: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 374; Stanley v Layne Christensen Co [2004] WASCA 50 [9]; Commonwealth v Albany Port Authority [2006] WASCA 185 [18].

   In advance of trial, the determination of whether a document is relevant is a difficult one:  National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 385; Apache Northwest Pty Ltd (373).

   In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account.  The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial:  Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].

   Ultimately the relevance of the documents produced will be a question for determination at the trial.  It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the party seeking to issue the subpoenas and the recipient of the subpoenas:  Apache Northwest Pty Ltd (379).

   Documents can be inspected whether or not they are in an admissible form:  Waind (385); Apache Northwest Pty Ltd (372).

   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:  Stanley v Layne Christensen Co [9]; Commonwealth v Albany Port Authority [18].

   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:  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:  Waind (381); Apache Northwest Pty Ltd (371).  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.

   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:  Waind (385); Apache Northwest Pty Ltd (373 ‑ 374).

   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:  Apache Northwest Pty Ltd (379); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection: Apache Northwest Pty Ltd (380 ‑ 381).

   The principles of case flow management and the objects in O 1 r 4(b) of the Rules of the Supreme Court 1971 (WA) must be kept in mind in the exercise of discretion whether to permit inspection: Wookey v Quigley (No 5) [2011] WASC 275 [35].

2. In summary, once apparent relevance is demonstrated, inspection will generally be ordered in the absence of a good reason to the contrary.[2]

   [2] Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374 (the Court).

The disposition of the application

1. I am satisfied that the documents the subject of the subpoena meet the low threshold of apparent relevance. 

2. One of the issues in the action arises from the plaintiff's allegation that the deceased suffered delusions respecting the plaintiff and, on that and other grounds, lacked testamentary capacity.  In his will, the deceased stated reasons for the relatively small provision made for his son, the plaintiff.  He stated that that was 'as a result of his behaviour towards myself and other family members over a lengthy period of time'.  Given the plaintiff's allegations in the statement of claim, the deceased's state of mind is a central issue in the action.  One element of the deceased's thinking at the time he made his will was his belief or perception that the plaintiff had behaved badly towards other family members over a long period of time.

3. In those circumstances, documents on the court file relating to a violence restraining order that restrained the plaintiff from making contact with Mark Hector, who is married to the second defendant, and so the son‑in‑law of the deceased and brother‑in‑law of the plaintiff, give rise to lines of inquiry relevant to the issues at trial.  Among other things, material on the court file may bear upon, or give rise to lines of inquiry about, the extent to which there was an objective foundation for the deceased's statement, in his will, about the plaintiff's behaviour towards other family members.  The existence of an objective foundation for such a statement would tend against a conclusion that the statement was the product of, or indicative of, any delusion.

4. For these reasons, I am satisfied that the documents the subject of the subpoena meet the threshold of apparent relevance.

5. In my view, for the reasons that follow, none of the matters stated in Mr Donaldson's email of 12 October 2015 constitute any reason to decline to permit inspection of apparently relevant documents.

6. The first paragraph of that email relates to Mr Nevin, the solicitor for the first defendant.  The main point made appears to be that as solicitor for the executor, Mr Nevin and by extension his client should not be active participants in the proceedings.  I do not accept that that is so.  I am not persuaded that there is anything inappropriate in the executor of the will seeking to uphold the validity of the will.

7. For the reasons already given, the fact that Mr Hector will not or may not be a witness at the trial does not deny the apparent relevance of the documents the subject of the subpoena.  Insofar as Mr Donaldson characterises Mr Hector's violence restraining order application as involving 'lies', determination of whether inspection is appropriate does not involve forming a judgment as to the credibility of assertions made in the material, or as to the weight that might be given to it were it to be admitted at trial.  The principles governing inspection, set out earlier in these reasons, make it clear that the question of whether inspection may be permitted is quite distinct from the question of whether a document may be tendered at trial.  Similarly, the question of the weight to be given to a document, if admitted, does not control the question of whether inspection should be permitted.

8. Insofar as what Mr Donaldson said in his email of 27 October 2015, adds to what he said in his email of 12 October 2015, for corresponding reasons, nothing asserted by Mr Donaldson in that email provides any ground to decline to order inspection of the documents subpoenaed.

Conclusion

1. For these reasons, I dismiss the plaintiff's application for an order that there be no inspection, and order that the first defendant be permitted to inspect the subpoenaed documents.