Dyer v Hunter

[1999] VSC 531

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 7552 of 1999

DOROTHY DYER	Plaintiff
v.
ASHLEY FERGUSON HUNTER AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 DECEMBER 1999
DATE OF JUDGMENT:	7 DECEMBER 1999
CASE MAY BE CITED AS:	DYER v. HUNTER
MEDIA NEUTRAL CITATION:	[1999] VSC 531

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CATCHWORDS:      Practice and procedure – Discovery from prospective defendant – R.S.C. 32.05 – Applicant already believes that she may have a cause of action – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B. Monotti	Harwood Andrews
For the Defendants	R. Wells	Ingham & Bent

HIS HONOUR:

1. I have before me a summons filed in the court by the applicant, Dorothy Dyer, whereby the applicant seeks from the respondents, Ashley Ferguson Hunter and Ron William Salmon, who are sued as executors and trustees of the will and estate of Shane Anthony Hunter, deceased, discovery of what on the face of it can only be described as voluminous financial documentation relating to the business activities of the deceased and some six trusts controlled by him from 30 June 1992 to the date of the deceased's death.

1. The application is made pursuant to the provisions of Rule 32.05 of the Supreme Court Rules, the relevant provisions of which for present purposes read:

"Where -

(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the court from the person whose description he has ascertained;

(b)after making all reasonable enquiries the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the court to obtain that relief –

the court may order that that person [that is, the person referred to in sub-clause (c) of the rule] shall make discovery to the applicant of any document of the kind described in paragraph (c)."

1. The background to the application may be summarised as follows.  The deceased died on 16 September 1998 leaving a will dated 24 December 1996.  Probate of the will was granted to the respondents on 13 September 1999.  By his will the deceased left the whole of his estate to be divided equally between four of his five children.  In his will the deceased has stated that he deliberately made no provision for a fifth child, a daughter, "she not having had any contact with me for at least the last two-and-a-half years and she having indicated to me that she wants nothing to do with me or to be involved with me or in my estate at any time whatsoever". 

1. The applicant has sworn that for a continuous period of more than five-and-a-half years prior to the death of the deceased, she and the deceased enjoyed a close and loving permanent relationship.  Indeed, she has sworn that pursuant to an agreement between her and the deceased made in January 1993 the two of them had intended to marry. 

1. What the applicant is contemplating is taking a proceeding against the estate of the deceased pursuant to Part IV of the Administration and Probate Act seeking that adequate provision be made for her maintenance and support from the estate of the deceased. 

1. The applicant contends that she is unable to institute such a proceeding until such time as she has available to her the financial information sought in her summons.

1. The purpose of Rule 32.05 is to enable a person to determine whether or not he or she has a cause of action against an identified prospective defendant.  If the applicant already believes that there is a cause of action, discovery is not available to enable the applicant to verify that belief or otherwise to ascertain the strength of the case for the right to relief.  In that regard see the decision of Gobbo, J. in Gibson v. Australia and New Zealand Banking Group Ltd, unreported, 30 August 1991.  Or, as was stated by the Court of Appeal in Mercantile Mutual Insurance Australia Ltd v. Household Financial Services Ltd, unreported, 22 May 1997, the rule cannot be used to obtain material to verify a cause of action which the applicant already knows that it has.  The applicant must be seeking to determine whether a right to obtain relief exists, not simply the strength of a right to obtain relief which is believed to exist;  that is, to determine the likelihood of success in a proceeding to obtain the relief:  see Petrolite Pty Ltd v. Hong Kong Bank Ltd, the unreported decision of Cummins, J., 10 February 1992.

1. In the present case the applicant already knows that she is not a beneficiary of the estate of the deceased in circumstances where, if her testimony in relation to the matter is correct - and I refer in that regard to the content of her affidavit sworn 16 November 1999 - she would already know that she may have a cause of action against the estate of the deceased.

1. In my view the applicant already does have sufficient information available to her to determine whether she has a cause of action against the estate of the deceased.  What I consider she is now seeking by means of this application is the detail of the financial activities of the deceased over the six or so years prior to his death, with a view to determining how much her claim might be worth.  In my opinion that has nothing to do with the question as to whether or not she may have a cause of action against the estate of the deceased.  That information could relate only to the potential size of her claim.

1. In my opinion, having regard to the material that is already available to the applicant, including the inventory of the assets and liabilities of the deceased filed in the court at the time the application for probate of his estate was lodged, and the material now appearing in the affidavits filed by the two defendants to the proceeding, the applicant already would know that she has, or may have, a good cause of action, and I consider her present application to be misconceived.

1. Accordingly the application is dismissed with costs to be taxed and paid by the applicant.

(Discussion ensued re costs.)

1. HIS HONOUR:  I shall certainly exclude from that order the costs of the respondents of yesterday.

(Discussion ensued.)

1. HIS HONOUR:  I make no further order in respect of the costs.

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