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:

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.

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)."

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".

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.

What the applicant is…

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 Dyer v Hunter

Details

AGLC: Dyer v Hunter [1999] VSC 531
Case: [1999] VSC 531
Decision Date: 7 December 1999

CaseChat Overview and Summary

The case of Dyer v Hunter arose in the Supreme Court of a state in Australia. The applicant, Dyer, sought discovery from the prospective defendant, Hunter, under Rule 32.05 of the Rules of the Supreme Court. Dyer believed that Hunter might have relevant information which could substantiate a potential cause of action. The court had to determine whether such a belief was sufficient to warrant an order for discovery from the prospective defendant.

The legal issue before the court was whether the applicant's belief that she may have a cause of action was enough to permit discovery from a prospective defendant. This required an examination of the provisions of Rule 32.05 and the principles that govern the granting of discovery to prospective defendants. The court considered whether the applicant needed to demonstrate a stronger case, such as a prima facie case, before such an order could be granted.

The Supreme Court held that Rule 32.05 does not permit the making of an order for discovery from a prospective defendant solely on the basis that the applicant believes she may have a cause of action. The court emphasised that there must be a more substantial basis for such an order, such as evidence that a cause of action has been established on a balance of probabilities. Given that Dyer had not provided such evidence, the application was dismissed. The court's reasoning was grounded in the need to protect prospective defendants from unnecessary disclosure of information when the applicant's claim is not sufficiently substantiated.

The final orders of the court were that the application for discovery from the prospective defendant was dismissed. The court did not order costs but left the matter open for Dyer to re-apply if she could provide a stronger basis for her claim. The decision underscores the importance of establishing a solid foundation for discovery applications, particularly when they target prospective defendants.

Orders