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

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donaldson v Nolan [No 4]

Details

AGLC: Donaldson v Nolan [No 4] [2015] WASC 423
Case: [2015] WASC 423
Decision Date: 5 NOVEMBER 2015

CaseChat Overview and Summary

The case of Donaldson v Nolan [No 4] involved a dispute over the subpoena of documents, specifically those relating to a violence restraining order application made by Mark Hector against the plaintiff. The application was made under the Domestic Violence Act 1994 (WA) and was served on 24 April 2014. The plaintiff sought to prevent the inspection of these documents, arguing that they were irrelevant to the proceedings. The court was required to decide whether the documents were relevant enough to warrant inspection, and if not, what reasons, if any, justified the refusal of inspection.

The legal issue before the court was whether the documents in question met the threshold of "apparent relevance" and, if so, whether any reasons existed to deny inspection. The court considered the nature of the allegations made by the plaintiff, including claims that the deceased lacked testamentary capacity due to delusions about the plaintiff's behaviour towards other family members. The court found that the documents relating to the restraining order application were relevant as they could provide insight into the deceased's state of mind and the objective basis for his statements in the will.

The court concluded that the documents met the low threshold of apparent relevance, as they could potentially shed light on the deceased's perception of the plaintiff's behaviour. The court further held that none of the reasons provided by the plaintiff constituted sufficient grounds to deny inspection. The court clarified that the decision to permit inspection was separate from the determination of whether the documents would be admissible at trial or the weight they might carry if admitted.

In summary, the court ruled in favour of permitting inspection of the documents, finding them to be relevant and not precluded by any of the reasons advanced by the plaintiff. The court emphasised that the decision to allow inspection was based on the documents' apparent relevance and did not involve prejudging their credibility or weight in the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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