Mainstone, B.J. v The Public Trustee
[1992] FCA 1003
•30 Oct 1992
1 0 0 3 , \qqa ;:.
JUDGMENT No. ........ ........ .. ..... , ...., ! C A T C H W O R D S
, -
CROSS VESTING - action in relation to Will - Instituted in Federal Court - claim for L , declaration of invalidity - alleged lack of testamentary capacity - third party discovery I sought relating to medical records - not available in Supreme Court - thrd party discovery refused - motion to transfer to Supreme Court - rationale for cross vesting
+ , I legislation - traditional jurisdiction of Supreme Court - administrative supports in place in relation to grants of probate - transfer order made. Jurisdiction of Courts (Cross-vestinel Act 1987 s.4
Jurisdiction of Courts (Cross-vestine) Act 1987 (Cwth) s.5
.,
Federal Court Rules 0. 15A r.8 , ,
3 . ;- i . Richardson Pacific Limited v. Fleldlng (1990) 26 FCR 188 !..
La Rosa Ex uarte Noruard. Rodoat Nomlnees Ptv Limlted and G~luin Park Ptv Ltd 8 . (unrep. Fed. Ct. 26.10.92 French J.) 8 . , . 1 . r
BENJAMIN JOHN MAINSTONE V. THE PUBLIC TRUSTEE, JUNE HONORA 8 _ L i AYRES and DESMOND THOMAS AYRES
No. WAG 172 of 3992FRENCH J.
PERTH30 OCTOBER 1992
IN THE FEDERAL COURT )
OF AUSTRALIA 1 WESTERN AUSTRALIA ) DISTRICT REGISTRY 1 GENERAL DMSION
1 No. WAG 172 of 1992 B E T W E E N : BENJAMIN JOHN MAINSTONE
Applicant
and
THE PUBLIC TRUSTEE
F~rst Respondent
JUNE HONORA AYRES and
DESMOND THOMAS AYRES
Second Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 30 October 1992 WHERE MADE: PERTH
THE COURT ORDERS THAT:
On the applicant's motion filed 7 October 1992:
The motion is dismissed.
2. The applicant pay the respondent's costs of the motion.
On the first respondent's motion filed 28 October 1992:
The proceedings be transferred to the Supreme Court of Western Australia pursuant to s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act (Cwth) 1987.
2. The applicant pay the respondent's costs of the motion.
NOTE: Settlement and entry of Orders 1s dealt with in Order 36 of the
Federal Court Rules.
IN THE FEDERAL COURT )
OF A U S T m L 4 1
WESTERN AUSTRALIA ) DISTRICT REGISTRY 1 GENERAL DIVISION
) No. WAG 172 of 1992 B E T W E E N : BENJAMIN JOHN MAINSTONE
Applicant
and
THE PUBLIC TRUSTEE
First Respondent
JUNE HONORA AYRES and
DESMOND THOMAS AYRES
Second Respondents
CORAM: FRENCH J. 30 October 1992
EX TEMPORE REASONS FOR JUDGMENT
This is an application a e d in the Court on 2 October 1992 by Benjamin
John Mainstone, the son of Maude Sylvada Mainstone who died on 17 April 1992 at
the age of 92 years. Mr Mainstone seeks a declaration pronouncing against the validity of his mother's will dated 2 February 1989 and a declaration that the estate be
administered and distributed as if on an intestacy. The Public Trustee is named as
the first respondent and the testatrix's daughter and son-ln-law as second respondents.
In an amended statement of claim filed on 27 October, Mr Mainstone
pleads the date of death, the execution of the will, the appointment of the Public
Trustee as executor and trustee and the fact that the will devised and bequeathed the
whole of the testatrix's real and personal estate to Mr and Mrs Ayres. It is alleged that at the time of the execution of the will the testatrix was not of sound mind, memory and understanding. This 1s particularised by the further contention that she was diagnosed in 1984 as suffering from dementia and that that diagnosis was confirmed from time to tlme until her death. It is said that by virtue of that dementia the testatrix did not know and approve of the contents of the will and that in the premises the will is not val~d.
Mr Mainstone invokes the jurisdiction of this Court pursuant to s.4(1) of the Jurisdiction of Courts (Cross-vestine) Act 1987 and s.4(2) of the Jurisdiction of Courts (Cross-vestine) Act (Cwth) 1987 in relation to the entirety of the claim. The grounds upon which Mr Mainstone rehes on those statutes are set out in the amended
statement of claim as follows:
1. That probate jurisdlctlon is granted to the Supreme Court of Western Australia by s.18 of the Supreme Court Act 1935.
2. That s.4(1) of the Jurisdiction of Courts (Cross-vesting) Act and s.4(2) of the Jurisdiction of Courts (Cross-vesting) Act (Cwth) confers upon the Federal Court, Inter alia, the junsdlction of the Supreme Court.
The matter comes before the Court for dlrectlons. Two motlons returnable today
have been filed. The first is a motion by the Public Trustee which seeks orders that
the originating process be set aslde and alternatively the proceedings be dismissed or stayed pursuant to 0.20 r.2. In the further alternat~ve an order is sought that the proceedings be transferred to the Supreme Court of Western Australia under
s..5(4)(b)(i) of the Jurisdiction of Courts (Cross-vestino) Act (Cwth). The second is a motion by the applicant for third party discovery pursuant to 0.15A. That motion seeks orders that persons and organisations named In a schedule to the motion give discovery of documents which are descnbed in another schedule to the motion as:
"Any and all records in relation to MIS. Maud Silvada (sic) Mainstone born 8th day of Apr~l 1900, late of Murlali Lodge, Como, includ~ng registration forms, nurslng notes, specialist reports, memoranda, test results, doctor's notes of appointments, correspondence or other Information
relating to Mrs. Mainstone's mental or pl~ysical health."
The two persons in respect of whom those orders are sought are the Chief Executive
of the Silver Chain Nursing Association and Dr. G. O'Mahoney a medical practitioner.
In support of the motion for stay, dismissal or transfer, an affidavit has
been sworn by the Public Trustee who says that on 2 February 1989 he prepared and
completed a will on instruct~ons from the testatrix. Copies of the ~ 1 1 1 and the death certificate are exhibited. A caveat lodged by Mr Mainstone's former solicitors in the Supreme Court in respect of an earlier will of 21 Auyst 1984 is also exhibited
exhibited is a letter of 17 August 1992 in which the Public Trustee mote to h.lr although that appears to be peripheral to the matters that I have to consider. Also Mainstone's present solicitors advismg that he is making Inquiries regarding the testatrix's testamentary capacity at 2 February 1989 and that he intended to obta~n affidavits Erom the vanous doctors who attended her. The Public Trustee said he would contact the solicitors thereafter to advise of his course of action and that any
queries in relation to the matter should be taken up with him.
On 21 September Mr Mainstone's sol~citors sent a letter to the Pubhc
Trustee in the following terms:
"We understand that you are putting together the papers to make an application to the Supreme Court to prove Mrs Malnstone's will in solemn form. We are in the process of settlement negotiations with Mr Carr, who acts for Mr and Mrs Ayres [the second respondents]. In the circumstances, it may be appropriate for the Public Trustee to delay commencement of its proceedings, especially since the maln motivat~on for settlement negotiations is the size of the estate in comparison to the costs involved in litigation. However, if the Public Trustee is not prepared to concede to this request, please would you let us know 48 hours in advance if you intend to issue proceedings, so that we may take any appropriate steps."
The Public Trustee responded the following day, reiterating his previous adv~ce that he was then making Inquiries regard~ng the testatrn's testamentary capacity at the
date of her last will and that when affidavits had been obtained he would contact the
solicitors further to advise as to the course of action he intended to take. The letter
went on to say:
"Those enquir~es have not yet been completed and therefore it has not been determined as to whether it is
necessary to prove the W111 in solemn form."
The present proceedings were instituted on 2 October. By a letter
dated 16 October the Publlc Trustee expressed surprise at the instituhon of the
proceedings and the fact that they had been commenced in the Federal Court rather
than in the Supreme Court of Western Australia. In reply to a similar inquiry from Dr. Carr, acting for the Ayres, Mr Mainstone's solicitors wrote on 13 October in the
follow~ng terms, inter alia:
"We agree that it is usual to commence such proceedings in the Supreme Court of Western Australia, and the fact that these proceedings have been commenced in the Federal Court should not be seen as an adverse reflection on the competency, efficiency or methods of the Supreme Court. The Supreme Court Rules make no provlsion for "third party discovery", nor do they make provlsion for the production of documents on subpoena pnor to the first day of trial. The Federal Court perrnlts both of these. By now papers in support of an application for third party discovery should have been served upon you. The basis of the applicat~on is the refusal of your clients to permit the Public Trustee to authorise the release to us of any information concerning Mrs Mainstone."
There are other aspects of the letter which I do not need to refer to.
In an affidavit sworn by Ms. Pitt, who is an employee of Mr Malnstone's
solicitors, she says that on 6 August she asked an officer of the Public Trustee for an
authority from the Trustee to the various medical and paramedical organisat~ons
involved m the cure of the testatrix to permit Mr Ma~nstone and his advisers access to
the relevant records. She sent a facsimle transmission w~th a draft of the authority to the Public Trustee's officer on 6 August. On 10 August she was contacted by a Miss Corbett who informed her that the Public Trustee was acting on the instructions of
the beneficiaries and that those instructions were to refuse to give the author~sation
sought. On the same day she wrote to the Silver Chain Nursing Association seeking
access to their records. There were references throughout the testatrix's medical
records, obtained by Mr Mainstone from the Department of Veterans' Affairs under
the Freedom of Information Act, to the fact that Mrs Mainstone received both
nursing and domestic assistance from the Silver Chain Nursing Association. On 14
August, Ms. P ~ t t recelved a response from the Silver Chain Nurs~ng Association
declining the request unless and until it was authorised by the executor. She also
requested access to the records of Dr. G. O'Mahoney by a letter dated 10 August and at the time of swearlng the affidav~t of 5 October she had received no response. In a supplementary affidavit, Ms. Pitt says that after Dr. O'Mahoney had been served with the motion for third party discovery in these proceedings she recelved a telephone message from his receptionist that he had responded to her letter dated 10 August and advising that a further copy would be forwarded to her. A copy of that letter is exhibited. It is dated 10 August and it says, Inter aha:
"My notes do not make any reference to this lady's mental capacity or testamentary capacity or to any behavioural changes that may ~ndicate mental incapacity.
I am unwilling to permit access to the medical records
unless proper author~ty to release these notes is provided!'
There 1s a further supplementary affidavit sworn by Ms. Pitt. There she says, on
instructions from Mr Mainstone, that the testatrix had resided at Murlali Lodge in
Como for some years prior to her death on 12 October. She has inspected the
records at the Lodge. Among them were coples of a hostel care assessment form of 7 July 1989 signed by Dr. O'Mahoney and assessing the testatrx as suitable for hostel
care. The supervisor of the Lodge refused Ms. Pitt's request for a copy of the document and referred her to the Department of Community Services and Health
who were said to hold the original. Ms. Pitt wrote to that department and was telephoned by an officer of its legal services branch on 26 October who told her that the department was prepared to release a copy of the form provided it could do so in the courts within the provisions of the Privacy Act. He adv~sed that the department preferred to be under subpoena or other court order to produce any documents held
by it because of that Act. She informed him that an order for third party discovery 1s
being sought in these proceedings and is to be heard today and that she would seek to
amend the application to join the department as a party required to make an affidavit of discovery. That, in essence, is the evidence which is before me in relation to the
Dr. Carr, representing Mr and Mrs Ayres, has said from the bar table
that his clients will authorise the Publ~c Trustee to provide any authority for the purpose of access by the applicant to medlcal records relating to the testatrix. There
was some dispute as to whether or not such authority was explicitly sought directly from Mr and Mrs Ayres or their solicitor beforehand. I am not in a position to try
that issue now. On 10 August, Messrs. Williams and Hughes wrote dlrectly to the
Ayres. Their letter did not seek access to any document; it rather asserted Mr
Mainstone's contention that the testatrix had lacked relevant testamentary capacity in
February 1989. I am proceeding now on the basis that the Ayres have indicated that the access to the relevant medical records wlll be authorised for purposes of Mr Mainstone's further inqu~ries. In a sense, that concession makes the motion for third
party discovery redundant because it would appear that the objective sought has been achieved so far as third party discovery is concerned. But, in any event, assumlng for the moment that the matter were to remaln in this court, I would not have ordered third party discovery at this stage in the proceedings and possibly not at all.
Thlrd party discovery 1s governed by 0.15A r.8 of the Federal Court
Rules which provides that:
"On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that the person has or is likely to have or has had or is likely to have had in the person's possession any document whlch relates to any question in the proceedings shall make discovery to the applicant of any such document."
The rule was discussed by Burchett J. in Richardson Pacific Ltd v. Fielding (1990) 26
FCR 188. As appears from his Honour's discussion, the power is of its nature exceptional and is not one to be exerclsed routmely. The facil~ties for inter partes discovery provided by the rules of court and for the issue of subpoenas may well, if
sufficient for the purposes of the litigation, exclude resort to 0.15A. That is subject to the qualification enunciated by his Honour that the language of the rule 1s not to be read down by that approach for it may be that in particular cases the evldence will
suggest that third party discovery will provide an appropriate and reasonable solution
to real problems whether or not insufficiency of the normal discovery and subpoena
processes has been demonstrated. That general proposition is one that I adopted and applied in a judgment handed down on 26 October 1992 in La Rosa Ex uarte Norcard, Rodpat Nomlnees Ptv L~mited and Gllpin Park Ptv Ltd (unreported). I all]
certainly not satisfied that, by the ordlnary processes of discovery or inter partes proceedings available in thls or the Supreme Court, access to the relevant documents could not have been obtalned to the extent that any of them were in the power of the PubIic Trustee to obtain. I have regard there in parhcular to the possibility of
obtaining the doctor's notes. However, third party discovery at this stage would have been inappropriate, grounds for it were not made out on the materials which were
before me and I would simply dismiss the applicant's motion of 7 October 1992.
The question then arises as to what should be done with the
proceedings. It has been submitted that the application 1s premature because the
Public Trustee has not concluded his inquir~es into the question of testamentav
capacity and whether it will be necessary to seek to prove the will in solemn form. It is not clear to me that that is a basis for asserting that the proceedings are premature.
It is certainly not a basis for denymg jur~sdictlon either in thls Court or in the Supreme Court. It may be a question of the extent to which proceedings should be
stayed pending further investigation but it is certainly not a basis for dismissal. There was also an allegation against Mr Mainstone of collateral purpose. So far as that goes, I am not prepared to say that these proceedings have been instituted for an
improper purpose. I would need stronger evidence than that which is presently
before me to come to that conclusion. No doubt the desire to obtain third party discovery was a factor m filing an application in this Court and at this time. To the extent that that may have involved the quest for a legitimate juridical advantage, even if in the event it was not achieved, I do not thlnk there is suficient evidence to
stigmatise the application as an abuse of process. The question then is where should it proceed? It seems clear that the Supreme Court, which traditionally has had the
administration of probate jurisdiction, should ordinarily continue to exerclse that jurisdiction where matters involving contests over wills are concerned. It would be a rare case in which the valid~ty of a will would be put in issue in this Court as a matter of invocation of that primary jurisdiction via the cross-vesting legislation. That is not to say that the question could never properly,arise. Each case must be dealt with on its own merits. It was certainly the object of the cross-vesting legislation and the
general plan behind it at the time of its inception that it should overcome the difficulty generated by jurisdictional disputes, where the jurisdiction of the State and Federal courts overlap and questions arose as to which court had relevant junsdictlon in a particular case. It was not intended that there be a general convergence and
merger of the two jurisdictions. It would be most inconvenient to have a proceeding continuing in this court in which the validity of a will was in issue, where the gTant of probate would properly be administered in respect of that estate by the State
Supreme Court, where the relevant mechanisms and adrninlstrative supports are in place.
In detern~i~ung whether a matter should be transferred from thls Court
to the State Supreme Court, I have regard, under ~.5(4)(b)(ii) of the Junsdiction of
Courts (Cross-vestinc) Act (Cwth) to the question:
"(A) Whether in the oplnion of [this] court, apart from t h s
Act and any law of a state relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in [thls] court and capable of being instituted in the Supreme Court of a State or Territory."
That criterion is plainly satisfied. I also have regard to:
"(B) the extent to which, m the opinion of [this] court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-sub-paragraph (A) and not
\Whin the jurisdiction of [this] court apart from this Act
and any law of the State relatlng to cross-vesting of
jurisdiction!'
The application involves principles of law which are part of the common law and
which are traditionally administered by the State Supreme Courts. I am also required to have regard to the interests of justice. The interests of justice include the administration of justice in a way that does not fragment proceedings or split them up between different courts. It is plain in ths case that the Interests of justice requlre
that thls proceeding be determined in the Supreme Court. Questions of improper
purpose or premature invocation of the jurisdiction can be dealt with there.
On the first respondent's motion of 28 October, I propose to order that
to the Jurisdiction of Courts (Cross-vestme) Act (Cwth) 1987. The applicant's motion the proceedings be transferred to the Supreme Court of Western Australia pursuant for third party discovery will be dismissed.
I certify that the preceding
eleven (11) pages are a true
copy of the Reasons for Judgmentof his Honour Justice French.
Counsel for the Applicant: Ms. G. Pitt
Solicitors for the Applicant: Williams & Hughes
Counsel for the First Respondent: Mr S. Bhojani
Solicitors for the Second Respondent: Publlc Trustee of Western Australia
Counsel for the Second Respondents: Dr. C.J. Carr
Solicitors for the Respondents: C.J. Carr
Date of Hearing: 30 October 1992
Date of Judgment: 30 October 1992
0