McCormack v Trevor John Fairs as executor of the estate of Late Maxine Fairs - [2021] WASC 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MCCORMACK -v- TREVOR JOHN FAIRS as executor of the estate of LATE MAXINE FAIRS [2021] WASC 303
CORAM:   ACTING MASTER STRK
HEARD:   25 MARCH 2021
DELIVERED          :   3 SEPTEMBER 2021
FILE NO/S:   CIV 2130 of 2020
BETWEEN:   BRIAN MCCORMACK
Plaintiff
AND
TREVOR JOHN FAIRS as executor of the estate of LATE MAXINE FAIRS
Defendant

Catchwords:

Practice and procedure – Pre‑action discovery – Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	K Woods and A Beckwith
Defendant	:	W Vogt and J S Lushey

Solicitors:

Plaintiff	:	Dentons Australia
Defendant	:	Vogt Graham Lawyers

Cases referred to in decision:

Baumgarther v Baumgarther (1987) 164 CLR 387
BWS v ARV [No 2] [2021] WASCA 62
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Davis v Sagar Pty Ltd (WASC, Sanderson M, Lib No 980443, 10 August 1998, unreported)
Guimelli v Guimelli (1999) 196 CLR 101
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147
Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd (2018) WASC 348
Horwood v Davenport [2014] WASC 436
Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14
Muschinski v Dodds (1985) 160 CLR 583
Optiver Australia Pty Ltd v Tibra Trading Pty ltd [2007] FCA 2065
Rexha v Curtin University of Technology [2002] WASC 152; BC200203154
Roe v The State of Western Australia [2013] WASC 130
St Georges Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146
Trajkoski v Western Australia [2017] WASC 273

ACTING MASTER STRK:

This is the plaintiff's application for pre-action discovery from a potential party whose identity has been ascertained, made by originating summons filed on 13 November 2020. Pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC), the plaintiff seeks an order compelling the defendant to give discovery of the documents described in the schedule to the originating summons. The schedule is reproduced at sch A to these reasons.
The application is opposed by the defendant. While opposition is taken on a number of grounds, the defendant particularly complains that the plaintiff had decided to commence proceedings as against the defendant before the plaintiff made this application for pre-action discovery.
For the reasons set out below, I intend to grant the application.

The applicable principles

There is no dispute as between the parties as to the principles that apply to an application for pre-action discovery pursuant to O 26A r 4 RSC, which provides as follows:
(1) This rule applies if a person who may have a cause of action against a person whose description has been ascertained (the potential party) wants -
(a) to commence proceedings against the potential party; or
(b) to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.
(2) If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule.
(3) The application shall be supported by an affidavit and a copy of both shall be served on the potential party.
(4) On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision.
As was recently observed by the Court of Appeal in BWS v ARV [No 2] [2021] WASCA 62 [29], once the procedural requirements of O 26A r 4(3) RSC are met, the discretionary power under O 26A r 4(4) RSC is enlivened if the court is satisfied that:
1. An applicant for an order 'may have a cause of action against' the potential party (O 26A r 4(1)).
2. The applicant wants 'to commence proceedings against' the potential party (O 26A r 4(1)).
3. The applicant has made 'reasonable enquiries' for the purpose of obtaining sufficient information to enable him or her to decide whether to commence the proceedings (O 26A r 4(1)).
4. The applicant has not been able to obtain sufficient information to enable him or her to make the decision (O 26A r 4(1)).
5. There are 'reasonable grounds for believing' that the potential party had, has, or is likely to have had or have, possession of documents that may assist the applicant in making the decision (O 26A r 4(2)).
O 26A r 4(4) RSC empowers the court, in its discretion, to order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision.[1] The discretion to order pre-action discovery is only enlivened in circumstances where the applicant has not reached a decision about whether or not to commence proceedings.[2]
[1] BWS v ARV [No 2] [30].
[2] The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146 [17]; see also Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd (2018) WASC 348 [35]; and Horwood v Davenport [2014] WASC 436 [8(f)].
I adopt as if set out in full in these reasons the principles applying to an application for pre-action discovery pursuant to O 26A r 4 RSC as described by the Court of Appeal in BWS v ARV [No 2] [27] - [37].

The evidence

At the hearing, evidence was adduced on affidavit without cross-examination of the deponents.
The application was supported by the affidavit of the plaintiff sworn on 12 November 2021. It was also supported by the affidavit of Audrey Penni Webb, a legal secretary employed by Kott Gunning (the firm previously representing the plaintiff in this proceeding), sworn on 25 November 2020, by which she deposed to having effected service of the originating summons and the plaintiff's supporting affidavit on the solicitors for the defendant. The plaintiff further relied upon an outline of submissions filed on 29 January 2021.
In opposition to the application, the defendant swore an affidavit on 29 December 2020. The defendant also relied upon an outline of submissions filed on 29 January 2021.
Annexed to the plaintiff's outline of submissions was a schedule of objections to the defendant's affidavit. On 23 March 2021, a response to the objections was filed on behalf of the defendant. At the hearing of the application, counsel for the plaintiff confirmed that the plaintiff's objections were maintained. I indicated that if the defendant's affidavit was sought to be read by counsel for the defendant, at that time, the plaintiff's objections might be taken and the objections would then be heard and determined.[3]
[3] ts 11 - 12, 26 ‑ 27 (25 March 2021); having regard to Walsh v Adrian Cory Sloan as executor of the estate of the late Laurette Dorothy Keddie [2019] WASCA 107 [74].
Counsel for the defendant referred to a document annexed to the defendant's affidavit during the course of his oral submissions. The parties elected to proceed on the basis that those parts of the defendant's affidavit, not subject to objection, would be read.[4] In the determination of this application, I have had regard to par 41 of the defendant's affidavit and annexure 'TF2'.
[4] ts 26 ‑ 27 (25 March 2021).

The background

The following short summary of the background to the application is not controversial.
The plaintiff is the former de-facto spouse of the late Maxine Kay Fairs, who died on 2 December 2016. On 21 January 2009, the plaintiff and the deceased became the registered proprietors of vacant land situated and known as 2G Mader Crescent, Mount Nausura (Mount Nausura land), as joint tenants.
After building a residence on the Mount Nasura land, the plaintiff and the deceased lived there from September 2014.
On 26 July 2016, the plaintiff and the deceased signed a Form T2A (Transfer of Land), which transfer was lodged with Landgate on 26 July 2016 (the Transfer). The Mount Nasura land was transferred from the plaintiff and the deceased as joint tenants to the plaintiff and the deceased as tenants in common in equal shares.
The deceased made a will on 6 September 2016 and signed a codicil to the will on 19 November 2016. On 24 February 2017, probate of the will and codicil was granted to the defendant, the executor appointed under the will.
The defendant is the former husband of the deceased. The defendant and the deceased were divorced on 18 July 2005. The deceased and the defendant had three children, Amanda Fairs, Clayton Fairs and Jessica Fairs.
Part 6 of the deceased's will provides:
6. Gifts of specific property
(a) I give my one undivided half share in the property situated at 2G Mader Crescent, Mount Nasura in the said State to be divided in equal shares between my children CLAYTON, AMANDA, and JESSICA as tenants in common subject to subclause (c) below.
(b)All furniture, furnishings and chattels I have purchased together with BRIAN are to remain with BRIAN.
(c)It is my wish that as BRIAN holds a fifty percent (50%) share in the said property and resides in the said property as his principle place of residence, that my children's share in the said property be held on trust by my executor and to be transferred to them in their own right as I have gifted to them in subclause a above, when BRIAN:
(i) no longer wishes to continue to reside in the said property as his principal place of residence; or
(ii)remarries or enters into a new de facto relationship; or
(iii)wishes to sell his share of the said property.
(d)If BRIAN vacates the said property, it is my wish that the said property not be used as a rental property or occupied by any person rent-free but sold at fair market value. It is my wish that my Executor obtains three (3) independent property appraisals to arrive at a final fair market sale price for the said property.
(e) If the said property is sold, all my remaining furniture, furnishings and chattels are to be given to my children to do with as they see fit.

Did the plaintiff establish that he 'may have a cause of action'?

The procedural requirements of O 26A r 4(3) RSC were met. Having so determined, I now turn to consider whether the plaintiff established that he 'may have a cause of action' against the defendant.

The plaintiff's position

The plaintiff deposes to wanting to commence proceedings against the defendant as executor to the estate of the deceased, and against the three children of the deceased, Amanda Fairs, Clayton Fairs and Jessica Fairs (together, the proposed defendants). The plaintiff contends that the basis for his potential cause of action against the proposed defendants lies in equity, a constructive trust based on:
(a)a joint endeavour under which the plaintiff and the deceased held the Mount Nasura land as joint tenants but the plaintiff made disproportionate financial contributions in the plaintiff's and the deceased's relationship and for and relating to the improvements to the Mount Nasura land; by which the plaintiff acted to his detriment: Muschinski v Dodds (1985) 160 CLR 583; Trajkoski v Western Australia [2017] WASC 273, [26]; or
(b)alternatively, the defendant's unconscionable conduct by maintaining for the benefit of the deceased's children from the plaintiff's disproportionate financial contributions referred to at above paragraph (a) particularly having regards to the deceased's conduct in causing the plaintiff to sign the transfer of land: Baumgarther v Baumgarther (1987) 164 CLR 387; Guimelli v Guimelli (1999) 196 CLR 101; Trajkoski, [29] - [30].[5]
[5] The plaintiff's submissions par 8.
Annexed to the plaintiff's affidavit as 'BJM1' is a draft writ of summons. A copy of the draft writ of summons with indorsement of claim is reproduced at sch B to these reasons.
In his affidavit, the plaintiff deposes to the following:
(a)the plaintiff and the deceased were in a loving and committed relationship for at least eight years;
(b)at the time the plaintiff met the deceased, he was the registered proprietor of and lived at 7 Barbara Road, Roleystone; the deceased was the registered proprietor of and lived at 14 Magenta Close, Thornlie; the deceased worked part-time at Big W Livingstone as the door greeter; and the plaintiff owed his own floor business, McCormack Flooring Services, which he still owns and operates;
(c)the plaintiff had discussions with the deceased about building a house together and he agreed with the deceased that they would, for their benefit, share the costs and expenses of purchasing the Mount Nasura land; constructing the residence on the Mount Nasura land; maintaining the Mount Nasura land; and other associated costs such as rates and taxes;
(d)the plaintiff and the deceased signed a contract to purchase the Mount Nasura land on 4 October 2008. The purchase price for the Mount Nasura land was $270,000 and the plaintiff paid the $2,000 deposit;
(e)the plaintiff and the deceased became the registered proprietors of the Mount Nasura land on 21 January 2009, registered as joint tenants;
(f)to purchase the Mount Nasura land, the plaintiff and the deceased obtained a joint loan from the Australia & New Zealand Banking Group Ltd (ANZ). The loan was secured by an interest only mortgage registered against the Mount Nasura land and the plaintiff's property in Roleystone;
(g)between January 2009 and September 2010, the plaintiff paid the interest only monthly loan repayments on the joint loan, which were approximately $1,100 each month;
(h)on 20 September 2010, the plaintiff sold his property in Roleystone. The net proceeds of sale discharged the mortgage registered on the title to the Roleystone property and the mortgage registered on the title to the Mount Nasura land;
(i)after the plaintiff sold his property in Roleystone, he moved into the property owned by the deceased in Thornlie, where he and the deceased lived until about September 2014;
(j)between 2011 and 2014, as an 'owner builder', the plaintiff constructed the residence on the Mount Nasura land. The plaintiff and the deceased moved into the residence in September 2014;
(k)the deceased managed the plaintiff's finances and their joint finances, and the deceased would assist the plaintiff manage his business finances. The deceased was authorised to access the plaintiff's business bank account and credit card, among other things, to pay for their daily living costs and expenses, such as food, clothing and entertainment;
(l)from various bank accounts held by the plaintiff and from cash, from time to time, the plaintiff paid costs, expenses, accounts and invoices relevant to the construction of the residence on the Mount Nasura land;
(m)between 2011 and 2015, the plaintiff paid $302,519.87 towards the improvements to the Mount Nasura land and the construction of the residence. The plaintiff annexed to his affidavit as 'BJM5' a copy of a schedule of payments that his solicitors asked him to prepare, which he prepared with the assistance of his sister. The plaintiff deposes that the schedule is a summary of all invoices and records that he has in his possession, and it refers to invoices paid between 2011 and 2015 towards the improvements to the Mount Nasura land, cross-referenced to bank account statements and cheque butts;
(n)in early 2013, the plaintiff and the deceased opened a bank account, which was a line of credit account for a maximum of $150,000, which was to be used to pay the costs of completing the construction of the residence on the Mount Nasura land. The plaintiff deposes that the schedule annexed to his affidavit refers to and cross references to invoices payments made from the line of credit in the amount of $81,135.24;
(o)in or around September 2014, the deceased used the proceeds of sale from her property in Thornlie to pay the then outstanding balance of the line of credit in the amount of $122,111.65;
(p)the deceased became unwell during 2015 and was unable to attend her work from time to time. She continued to work part-time until about December 2015. From December 2015, the plaintiff continued to support the deceased by paying for all of her living expenses until her death in December 2016;
(q)the plaintiff also continued to pay all rates, taxes and other costs and expenses relating to the Mount Nasura land and maintenance of the residence, which he continues to do as at the date of his affidavit;
(r)the plaintiff's financial contribution towards the costs described at (c) above were substantially greater than the contribution made by the deceased;
(s)the deceased did not substantially financially contribute to the purchase and development of the Mount Nasura land; the construction of their residence; nor their ongoing de‑facto relationship;
(t)the plaintiff's physical contributions, such as time and labour, to the improvement of the Mount Nasura land and the construction of the residence far outweighed the contribution made by the deceased. The deceased was only involved in the partial design of the residence and the interior design for the residence; and
(u)the plaintiff acted and made contributions on the basis of his and the deceased's joint endeavour, which included making financial contributions to his relationship with the deceased; making financial contributions to the Mount Nasura land amounting to at least $591,519.07; making physical contributions towards the Mount Nasura land; and making physical contributions in caring for the deceased during the latter part of her life.
The plaintiff also deposes to the circumstances surrounding the execution of the Transfer registered on 26 July 2016. The plaintiff says that at some time in or around early July 2016, about six months before the deceased died, the plaintiff recalls the deceased having said words to him to the effect that “our names are not on the title correctly” for the Mount Nasura land and that “we both need to sign some documents to fix it”. The plaintiff recalls that he and the deceased attended Sheridan's Settlement Agency on 22 July 2016 to sign documents to “fix the error”, which the plaintiff now knows was the Transfer. The plaintiff says that he did not obtain legal advice before signing the Transfer; and that he did not know that the Transfer would change the way he and the deceased held their interest in the Mount Nasura land from joint tenants to tenants in common.
The plaintiff says he made all of the contributions referred to in his affidavit, financial or otherwise, because he and the deceased were committed to each other and were to live together at the Mount Nasura land as de‑facto partners on the understanding that their contributions were for each of their benefit and not for the benefit of others.
The plaintiff deposes to his belief that he has an interest in the deceased's half share of the Mount Nasura land based on his disproportionately 'higher value contributions' towards the same. He also complains about the deceased's conduct in causing him, to his detriment, to sign the Transfer while the deceased was unwell so that she could gift her half share to others.

The defendant's position

The defendant submits that the plaintiff's purported causes of action are ill-founded.[6] The defendant complains that:
(a)the plaintiff has not provided any material, other than his allegations in his affidavit which are not founded on evidence, to show that he may have a cause of action that the deceased's conduct in respect of the Transfer should result in the deceased's half share in the property being transferred to the plaintiff;
(b)the plaintiff has not provided sufficient material to prove that the deceased's share in the Mount Nasura land should be held in constructive trust for the plaintiff; and
(c)the purported causes of action are therefore merely speculative, not based on evidence and are ill‑founded.
[6] The defendant's submissions par 7(a).

In this regard the defendant refers to the decision of Le Miere J in the Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147 [36], in which his Honour observed:
Order 26A r 4(1) does not, as FCR O 15 r 6(a) does, require that there be 'reasonable cause to believe' that the applicant may have the right to obtain relief. Nevertheless, the rule should, like FCR O 15 r 6(a), be interpreted to require an objective test. There must be material to establish that the applicant may have a cause of action against the potential party. That requires more than mere suspicion or conjecture but it is not necessary to establish a prima facie case.

Disposition

Having regard to the plaintiff's affidavit, I am satisfied that there is an objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.
I do not accept the defendant's submissions reproduced at [27] above. The plaintiff's account is not without documentary foundation. The plaintiff's account is supported by:
(a)a copy of the contract by which the Mount Nasura land was purchased by the plaintiff and the deceased and records the purchase price and deposit (annexure 'BJM2');
(b)a search of the certificate of title for the Mount Nasura land as at 24 January 2014, in which the plaintiff and the deceased are described as the registered proprietors as joint tenants; and a mortgage in favour of ANZ is recorded (annexure 'BJM3');
(c)an unsigned copy of the loan offer from ANZ dated 6 January 2009 which records that the amount of credit is to be $275,000; the lending to be in the name of the plaintiff and the deceased; and states that the loan is to be secured by a registered mortgage already held by ANZ over the plaintiff's Roleystone property, and a new or additional security to be provided to ANZ over the Mount Nasura land (annexure 'BJM4');
(d)the schedule of payments prepared by the plaintiff, being a summary of all invoices and records held in the plaintiff's possession (annexure 'BJM5'), and a bundle of bank statements cross referenced in the schedule (annexure 'BJM6');
(e)the Transfer (annexure 'BJM7'); and
(f)the grant of probate made to the defendant, to which is attached a copy of the deceased's will (annexure 'BJM8').
The plaintiff deposed to the joint endeavour to purchase and develop the Mount Nasura land for his and the deceased's mutual benefit. He produced documentary evidence of his financial contributions to the property. He adduced evidence that indicates that he may have acted to his detriment.
The plaintiff has not annexed to his affidavit all invoices and records held in his possession which the plaintiff says evidences his financial contribution. Instead, he attached the schedule (annexure 'BJM5'). Having regard to the principle of proportionality embodied in O 1 r 4B RSC, I am satisfied that it was not necessary for all invoices and records to have been put into evidence.
I understand the defendant to submit that the plaintiff has not sufficiently established that there was a disparity in relation to the financial and physical contributions made by the plaintiff and those made by the deceased to establish for the purpose of this application, that the plaintiff may have a cause of action.
I have given careful consideration to this submission and to the affidavit evidence. I have had regard to the draft writ annexed to the plaintiff's affidavit. It is not necessary for the plaintiff to have a prima facie cause of action. On balance, I consider the evidence as to purchase price for the Mount Nasura land; the plaintiff's evidence of his financial and physical contributions and the contribution made by the deceased; the plaintiff's evidence as to the circumstances of the Transfer; and the documentary evidence, to be evidence objectively indicating that the plaintiff may have a cause of action and that all facts necessary to give rise to a right to curial relief may be able to be established.
Accordingly, I consider that the jurisdictional question has been met and I now turn to consider the remaining criteria.

Did the plaintiff establish that he wants 'to commence proceedings against' the defendant?

The submissions made on behalf of the parties did not squarely address this question. Rather, the defendant focussed on the question of whether the plaintiff had decided to commence a proceeding against him and the children of the deceased before he made this application for pre-action discovery. I will address this issue in some detail later in these reasons.
Whether the plaintiff wants to commence proceedings is a subjective matter.[7] The requirement for an applicant to have an intention to take proceedings is intended to limit the ability of an applicant to fish for information. That is, an applicant must show that if the missing information sought to be obtained supports the applicant's claim, proceedings would be commenced.[8]
[7] Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [34].
[8] Lexis Nexis, Civil Procedure Western Australia, vol 1, (189-12-19) [26A.4.3].
The plaintiff has deposed to wanting to commence proceedings against each of the proposed defendants.[9] There was correspondence between the parties' respective legal representatives over some months before this application was made.[10] Annexed to the plaintiff's affidavit is a draft writ with an indorsement of claim. On the evidence, I am satisfied that the requisite subjective intention has been established.

Has the plaintiff made 'reasonable enquiries' for the purpose of obtaining sufficient information to enable him to decide whether to commence proceedings?

[9] The plaintiff's affidavit par 4, 81.

[10] The plaintiff's affidavit par 65 - 73, 'BJM9' - 'BJM13'.

The plaintiff must satisfy the court that it has made reasonable enquiries for the purpose of obtaining sufficient information to enable him to make a decision as to whether to commence proceedings.[11] Whether the plaintiff has made enquiries that are reasonable imports an objective standard.[12] The threshold of proof in establishing that reasonable enquiries have been made is a low one.[13] In this case, the parties are in dispute as to whether the plaintiff made reasonable enquiries; and, to the extent enquiries were made, whether they were made for the purpose of obtaining sufficient information to enable the plaintiff to decide whether to commence proceedings.

The plaintiff's position

[11] Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14 [13].

[12] Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty [34]; The New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [14].

[13] Davis v Sagar Pty Ltd (WASC, Sanderson M, Lib No 980443, 10 August 1998, unreported); Rexha v Curtin University of Technology[2002] WASC 152; BC200203154 [25].

The plaintiff contends that he made reasonable enquiries of the defendant for the purpose of obtaining sufficient information to enable him to decide whether to commence proceedings. Reliance is placed on par 65 to 74 of the plaintiff's affidavit and the correspondence as between the parties' respective legal representatives annexed to the plaintiff's affidavit as 'BJM9' - 'BJM13'.
A request was made of the defendant for provision of copies of the documents (or classes of documents) which are now described in the schedule to the originating summons.
The plaintiff deposes that he has no way of accessing or obtaining copies the documents otherwise than from the defendant.[14]

The defendant's position

[14] The plaintiff's affidavit par 74.

The defendant complains that the plaintiff had decided to commence proceedings as against the defendant and the children of the deceased before he made this application for pre-action discovery. The defendant says that therefore, the plaintiff did not make reasonable enquiries for the purpose of obtaining sufficient information to enable him to decide to commence proceedings.
The defendant submits that the plaintiff became aware of the documents the subject of this application upon the defendant willingly notifying him of their existence in the correspondence from the defendant's representatives to the plaintiff's representatives dated 22 September 2020.[15]
[15] The plaintiff's affidavit annexure 'BJM10'.
The defendant says that the purpose of the 22 September 2020 letter was to set out the defendant's defence to the proposed proceedings, and to notify the plaintiff that the defendant intended to defend the proposed proceedings. The defendant submits that the correspondence reveals that the plaintiff had already made his decision to commence proceedings prior to being notified of the documents in the 22 September 2020 letter.
The defendant submits that prior to the issue of that letter, the plaintiff had not made any reasonable enquiries as to the documents in the defendant's possession which may have assisted the plaintiff to determine whether he should commence proceedings, prior to him having decided to commence the proposed proceedings.
The defendant says that the plaintiff was only made aware of the documents upon the defendant willingly (and not obligatorily) notifying the plaintiff of the same by the 22 September 2020 letter, and not as a result of reasonable enquiries made by the plaintiff as to the existence and content of the documents.
The defendant says that given that the plaintiff's solicitors confirmed they had instructions to commence proceedings by their letter of 12 August 2020, it can be inferred that the plaintiff would have commenced proceedings against the defendant without making reasonable enquiries as to any documents in the defendant's possession, if the 22 September 2020 letter had not been sent.

Has the plaintiff already decided to commence proceedings?

I accept the defendant's submission that the discretion to order pre-action discovery is only enlivened in circumstances where the applicant has not already decided to commence proceedings.[16]
[16] The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [17]; see also Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [35].
The defendant relies on the correspondence exchanged as between the parties' legal representatives as evidence of the plaintiff's decision to commence proceedings against the defendant. It is therefore necessary that I consider the correspondence and the plaintiff's evidence in some detail.

The letter of 12 August 2020

By a letter dated 12 August 2020, the (then) solicitors for the plaintiff wrote to the solicitors for the defendant. The letter is annexed to the plaintiff's affidavit as 'BJM9' and is redacted to the extent that it contained a without prejudice proposal.
In the 12 August 2020 letter, the solicitors for the plaintiff set out in some detail their instructions as to, among other things, the nature of the relationship between the plaintiff and the deceased; the circumstances in which the Mount Nasura land was purchased and the residence constructed; the circumstances in which the Transfer was executed and registered; and the terms of the deceased's will.
At par 2(m), the solicitors for the plaintiff state that they are instructed that the plaintiff 'paid all costs and expenses incurred in developing the Land, construction of the Home and all improvements on the Land'.[17]
[17] The plaintiff's affidavit 'BJM9', par 2(m), page 97.
From par 6, the solicitors describe causes of action held by the plaintiff against the deceased's estate in terms similar to those now referenced for the purpose of this application. It is asserted that the deceased held, and the defendant as executor now holds, the deceased's share of the Mount Nasura land on trust for the plaintiff.
At par 10, the solicitors for the plaintiff state as follows:
We have been instructed to apply to the Supreme Court of Western Australia for:
(a) a declaration to that effect; and
(b) an Order that the part of the Deceased's Share held on trust for our client, be transferred to him.
The language of par 10 is unequivocal and reveals as at 12 August 2020, a decision on the part of the plaintiff to commence proceedings against the defendant.

The letter of 22 September 2020

By a letter dated 22 September 2020, the solicitor for the defendant responded to the (then) solicitors for the plaintiff. The letter is annexed to the plaintiff's affidavit as 'BJM10'.
In the 22 September 2020 letter, the solicitors for the defendant set out in some detail their instructions as to, among other things, the nature of the relationship between the plaintiff and the deceased; the circumstances in which the Mount Nasura land was purchased and the residence constructed; the circumstances in which the Transfer was executed and registered; and the terms of the deceased's will.
The plaintiff's characterisation of the deceased's financial contribution to the Mount Nasura land was rebutted, and the assertion that the defendant now holds the deceased's share of the Mount Nasura land on trust for the plaintiff was denied. In support of the defendant's position, reference was made to supporting documents. They are largely the documents that the plaintiff seeks be discovered by this application.

Email communication of 23 September 2020

By an email communication sent on 23 September 2020, the then solicitor for the plaintiff wrote to the defendant's solicitors in the following terms:[18]
Dear Ms Lushy,
I refer to your correspondence to me of yesterday in relation to the above matter.
Please confirm to me by close of business on Friday, 25 September 2020, whether Vogt Graham has instructions to accept service of process on behalf of:
(a) Mr Trevor Fairs, in his capacity as Executor of the Estate of the Late Maxine Kay Fairs; and
(b) Each of Ms Amanda Fairs, Mr Clayton Fairs and Ms Jessica Fairs.
Thank you.
[18] The defendant's affidavit 'TF-2'.
The language of the email supports a finding that as at 23 September 2020, the plaintiff was, through his solicitors, acting in furtherance of his decision to commence proceedings against the defendant, despite receipt of the 22 September 2020 letter.
As noted above, annexed to the plaintiff's affidavit is a draft writ of summons. The date of that document is 23 September 2020. At the hearing of the application, counsel for the plaintiff accepted that the draft writ was prepared on 23 September 2020, or thereabouts.[19]
[19] ts 16 (25 March 2021).
The preparation of the draft writ on or about 23 September 2020 supports a finding that as at 23 September 2020, the plaintiff was, through his solicitors, acting in furtherance of his decision to commence proceedings against the defendant.

Email communications of 1 October 2020 and 13 October 2020

By an email communication of 1 October 2020, the (then) solicitors for the plaintiff wrote to the solicitors for the defendant. It appears that the purpose of the email was to attach a letter. A copy of the email communication is annexed to the affidavit of the plaintiff as 'BJM11'. A copy of the letter was not annexed to the plaintiff's affidavit and no letter dated 1 October 2020 is in evidence.
By an email communication of 13 October 2020, the (then) solicitors for the plaintiff sent a further email to the solicitors for the defendant. Reference is again made to a letter attached, although the letter is not in evidence. The (then) solicitors for the plaintiff noted they had not received a response to their earlier email communication; and requested they be urgently provided with the documents requested in the letter. The email communication forms part of the chain of correspondence annexed to the affidavit of the plaintiff as 'BJM11'.
On 13 October 2020, the solicitors for the defendant responded to the email communication from the (then) plaintiff's solicitors in the following terms:
Dear Ms Woods
1)  I refer to your letter to me dated 1 October 2020 and your below email of today's date.
2)  I note that your client has not commenced proceedings against my client as executor of the estate of the late Maxine Kay Fairs (the Estate).
3)  My client is not currently obligated to provide your client with the documents you have requested.
4)  Therefore, I am instructed to not provide your client with any confidential documents belonging to the Estate at this time.
5)  I confirm that I am instructed to defend your client's claim should your client initiate proceedings against my client.
…
The email communication forms part of the chain annexed to the affidavit of the plaintiff as 'BJM12'.

The letter of 27 October 2020

By letter dated 27 October 2020, the (then) solicitors for the plaintiff again request a copy of the documents referred to in the 22 September 2020 letter.
Relevantly, the plaintiff's solicitors asserted as follows:
The Documents are relevant to our client's claimed equitable interest in the late Maxine Kaye Fairs' (Deceased) interest in the land at 2G Madler Crescent, Mount Nasura (Land).
Because of the contents of your letter to us dated 22 September 2020, our client has not yet made a decision about whether or not to commence his proposed Supreme Court proceedings, as foreshadowed in our letter to your clients dated 12 August 2020 (Proposed proceedings).
A consideration and review of the Documents will allow our client to make a better informed decision about whether or not he should commence the Proposed Proceedings.
We, therefore, again request that you provide to us a copy of the Documents within 7 days from the date of this letter.
…
By that letter, the plaintiff's (then) solicitors foreshadow making this application for pre-action discovery.

The plaintiff's evidence

In his affidavit, the plaintiff at par 75 to 81 addresses his state of mind, particularly whether he has decided to commence proceedings.
The defendant's evidence is as follows:
75.If the contents of the [22 September 2020 letter] including the assertion that Maxine contributed: “in excess of about $547,000 towards the Mt Nasura Property from her own funds” (Allegations):
(a)to the purchase and development of the Mount Nasura Land and the construction of the Residence; and
(b) our ongoing de-facto relationship,
are correct and substantiated I understand that I might not have the cause of actions I believe I have as set out in the draft writ attached hereto and marked BJM1.
76. It is my understanding that if my beliefs as set out in above paragraphs 55 and 64 are wrong and the Allegations are correct, then I might not have an interest in Maxine's half share of the Mount Nasura Land.
77.Because of this, since receipt of the [22 September 2020 letter], I have been unable to reach a decision about whether or not I should commence the Proposed Proceedings, particularly because of the legal costs risks and consequences to me and the proposed Defendants if I commenced the Proposed Proceedings and subsequently needed to withdraw them. I verily believe that I would be likely liable for the proposed Defendants legal costs if I took such actions.
78.If I do not have the opportunity to consider the relevant documents, I have no way of verifying whether the Allegations are correct.
79.By this application I am trying to obtain sufficient information to enable me to make a carefully considered decision about whether to commence the Proposed Proceedings.
80.I verily believe that if I am able to inspect or obtain copies of the Relevant Documents and obtain legal advice about them and the impact that those documents have on the Proposed Proceedings and claimed interest I have in [the deceased's] half share of the Mount Nasura Land I will be able to better decide whether or not to commence the Proposed Proceedings against the Proposed Defendants.
81.If the documents do not support the allegations or if there are any concerns about the accuracy or authenticity of the relevant documents, I will commence the Proposed Proceedings as set out in the draft writ attached as BJM1.

Disposition

On behalf of the plaintiff, it was conceded that he had provided instructions to commence proceedings.[20] It was submitted that while he had given such instructions, he had later cause to reflect and subsequently become indecisive,[21] and as at 13 November 2020 (when he caused this application to be filed), the plaintiff had not made the decision to commence proceedings.[22]
[20] ts 4 (25 March 2021).
[21] ts 7, 10 (25 March 2021).
[22] ts 7, 10 (25 March 2021).
Counsel for the plaintiff submitted that relevant date for assessing whether an applicant had decided to commence proceedings is at the date of the application. Counsel referred to a number of authorities in support of this submission: ANSA Enterprises Pty Ltd v Commonwealth Bank of Australia [2014] WASC 314 [13(5)]; Horwood v Davenport [8(f)], and Coventry Seafoods (Aus) Pty Ltd v SK Marketing [2019] WASC 47 [6].[23] While these authorities did not involve a purported change of position by the application, I am satisfied that relevant date for assessing whether an applicant had decided to commence proceedings is at the date of the application.
[23] ts 10 (25 March 2021).
The defendant contends that by this application, the plaintiff seeks to ascertain the strength of the defendants' defence to the proposed proceedings and to buttress the decision he has already made to bring the proceedings. Further, as a decision has been made to commence proceedings, the defendant says that the plaintiff's application for pre-action discovery should be considered to be an abuse of process.[24]
[24] The defendant's submissions par 41 ‑ 46; ts 20 (25 March 2021).
I have given careful consideration to the correspondence between the parties that pre-dated the application, and to the plaintiff's evidence. The plaintiff was not cross-examined in relation to his evidence. The effect of his evidence is that while he had made a decision to commence proceedings, sometime after receipt of the 22 September 2020 letter, his position changed and he had become unable to reach a decision about whether or not he should commence proceedings.
The plaintiff's evidence proffers a reasonable explanation for his change of position when considered in the context of the correspondence exchanged. In effect, he deposes to being concerned about the legal costs, risks and consequences to him of commencing proceedings without the documents constituting or recording the material facts or information necessary to determine the material facts.
While instructions were given by plaintiff to his (then) solicitors to prepare a writ of summons and on 23 September 2020 (after receipt of the 22 September 2020 letter), to write to the defendant confirming whether they had instructions to accept service, the writ was not presented for filing.
On balance, I am not satisfied that the evidence discloses that when this application was filed, the plaintiff had decided to commence proceedings.
Having so determined, I turn to the question of whether the plaintiff has made 'reasonable enquiries'.
As observed by Smith J in Hirsberg (ATF LPH Development Keegan Street Trust) v Jameson Moore Pty Ltd,[25] the enquiries made by the plaintiff and the information the plaintiff has obtained are all subjective matters. Whether the enquiries are reasonable imports an objective standard.
[25] Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [34].
Request was made on behalf of the plaintiff from the defendant for provision of copies of the documents which are now described in the schedule to the originating summons. Given the nature of the documents, I accept that the plaintiff had no way of accessing or obtaining copies otherwise than from the defendant. On balance, I find that objectively, by instructing his solicitors to write to the defendant's representatives, the plaintiffs made reasonable enquiries for the purpose of obtaining sufficient information to enable him to decide whether to commence proceedings.

Has the applicant not been able to obtain sufficient information to enable him to make the decision?

The court is prohibited from exercising the power to grant pre-action discovery where the court finds that the applicant has already sufficient information to enable a decision to be made as to whether to commence or take the proceeding.[26]
[26] The Hancock Memoral Foundation Ltd v Fieldhouse [No 2] [40], citing Optiver Australia Pty Ltd v Tibra Trading Pty ltd [2007] FCA 2065; Lexis Nexis, Civil Procedure Western Australia, vol 1, (189-12-19) [26A.4.5] also citing The New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [61].
The applicant may (subjectively) consider that he has not been able to obtain sufficient information to decide whether or not to commence proceedings. However, it is for the court to review the sufficiency of the information already obtained, and whether (objectively) more is reasonably required.[27] The sufficiency of the knowledge is an objective standard, but is determined with reference to the knowledge and circumstances of the applicant.[28]
[27] Horwood v Davenport [98].
[28] Hirschberg (ATF LPH Developments Keegan Street Trust) & Jameson Moore Pty Ltd [34], citing The New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [14].
What is reasonably required may include documents necessary to determine whether an applicant has the right to obtain the relief sought.[29] In weighing up whether to commence proceedings, an applicant may be entitled to discovery in order to determine what defences are available to the defendant and their possible strengths,[30] and to review the merits of the claim.[31]
[29] The New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [38] – [39].
[30] ts 8 (25 March 2021); The Hancock Memoral Foundation Ltd v Fieldhouse [No 2] [39], Telstra Corporation v Minister for Broadband [59], citing St Georges Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147.
[31] Rexha v Curtain University of Technology [43].
The defendant contends that the plaintiff has sufficient information to make a decision whether to commence proceedings given he had already made the decision to commence proceedings.[32]
[32] The defendant's submissions par 58.
The application is finally balanced on this point. Not only has the defendant referred to a number of documents in the 22 September 2020 letter, in some cases, the contents of documents are substantively described. Further, the plaintiff is not a stranger to the Mount Nasura land nor to the deceased, with access to his own banking records and records for jointly held accounts.
On balance, I accept the plaintiff's submission that in seeking to access the documents, he seeks to ascertain merits and whether there is a claim to pursue, so as to make an informed decision as to whether to commence proceedings.
While the defendant has provided an insight into the content of the requested documents by the 22 September 2020 letter, I accept the submission made on behalf of the plaintiff that objectively, he has not been able to obtain sufficient information to enable him to make the decision.

Are there 'reasonable grounds for believing' that the potential party had, has, or is likely to have had or have, possession of documents that may assist the plaintiff in making the decision?

This was not a question that occupied the attention of counsel in their written or oral submissions.
I am satisfied that the 22 September 2020 letter provides a reasonable basis for the plaintiff to believe that the defendant has in his possession documents that may assist the plaintiff in making the decision.

Ought the discretion be exercised in favour of the plaintiff?

The discretion to order pre-action discovery is not exercised as a matter of course. The court will exercise caution before making an order for pre-action discovery. An order will only be made where it is reasonably necessary to achieve the proper administration of justice.[33]
[33] BWS v ARV [No 2] [35], citing McCarthy v Dolpag Pty Ltd [13]; Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33 [82] (Steytler J), [1] (Malcolm CJ agreeing), [24] (Wallwork J agreeing); and Kelbush [120].
As was recently observed by the Court of Appeal in BWS v ARV [No 2],[34] in Central Exchange Ltd v Anaconda Nickel Ltd, a number of non-exhaustive factors were identified as relevant to the exercise of the discretion:[35]
[34] BWS v ARV [No 2] [35].
[35] Central Exchange Ltd v Anaconda Nickel Ltd [82] - [83]. See also Kelbush [120].
1. The likelihood that a cause of action of the kind suggested will be found to exist.
2. The nature and significance of the potential cause of action.
3. The likely effect of an order of the kind contended for on the potential party.
4. Whether the applicant has any other adequate means of obtaining the information.
5. The nature and confidentiality of the documents proposed to be obtained.
6. The possible significance of the information in the documents to the decision whether to commence the contemplated proceedings.
7. Whether the applicant is able to compensate the potential party for its cost of complying with the order.
8. Whether there is any evidence of bad faith on the part of the applicant.
Further, the Court of Appeal noted that in Kelbush, Mitchell J (Martin CJ and Buss JA agreeing) added to this non-exhaustive list of relevant factors. Also relevant is the extent to which the cost and effort involved in undertaking the proposed discovery and inspection is proportionate to the likely value of the claim if successful.[36] The notion of proportionality is central to the exercise of the discretion to order discovery within existing proceedings;[37] it has no lesser role in the application of O 26A r 4. The cost and delay involved in the provision of the pre-action discovery as sought should be proportionate to the forensic benefit likely to be derived and to the value and importance or complexity of the subject matter of the contemplated proceedings.[38]
[36] BWS v ARV [No 2] [36] and [6], citing Kelbush [121], [123].
[37] BWS v ARV [No 2] [36]; Roe v The State of Western Australia [2013] WASC 130 [10] - [11].
[38] BWS v ARV [No 2] [36]; Kelbush [6].
I have borne these factors in the balance in determining this application.
I have weighed in the balance that the plaintiff has demonstrated that he may have a cause of action against the defendant. However, the likelihood that a cause of action of the kind suggested will be found to exist does not weigh heavily in the balance either for or against the application.
I have weighed in the balance the nature of the potential cause of action and the significance to the plaintiff, as revealed in the plaintiff's affidavit. I find that these weigh in favour of the exercise of discretion.
On the evidence before me, it does not appear that an order requiring discovery by affidavit of the documents referenced in the 22 September 2020 letter will adversely affect the defendant if made. Having been referenced in the 22 September 2020 letter, one would expect that the documents were collated and are readily available to the defendant. No evidence was adduced that would suggest otherwise.
On the evidence before me, it would appear that the plaintiff has no other adequate means of obtaining the information and I have weighed this in the balance.
I have had regard to the nature and confidentiality of the documents sought. I accept that they are likely to contain sensitive confidential information pertaining to the estate of the deceased. But I am also cognisant that the plaintiff was the deceased's de-facto; and the documents concern the contributions made to the Mount Nasura land and residence, property in which he holds an interest. I am satisfied that the issue of sensitivity and confidentiality will be adequately addressed by the implied undertaking not to use documents discovered for any other or ulterior purpose.[39]
[39] Kelbush [132].
I have had regard to the possible significance of the information in the documents to the plaintiff's decision whether to commence proceedings. On the plaintiff's evidence, access to the documents referred to in the 22 September 2020 letter is necessary for the plaintiff to make a decision.[40]
[40] The plaintiff's affidavit par 81.
There is no suggestion that the plaintiff is not able to meet the defendant's costs of compliance, albeit by the originating summons, the plaintiff seeks that the defendant's costs of compliance be reserved to a date to be fixed by the court.
The defendant submits that there has been bad faith on the part of the plaintiff in so far as he had decided to commence proceedings, but now purports that he is undecided.[41]
[41] The defendant's submissions par 67 - 68.
For the reasons expressed at [73] to [79] above, this submission is not made out, and I am not satisfied that there is evidence of bad faith on the part of the plaintiff.
Finally, I have had regard to the likely cost and effort involved in the defendant undertaking the proposed discovery and the plaintiff attending to inspection, and whether they are proportionate to the likely value of the claim if successful. There is no evidence of the likely costs of discovery nor of inspection. As noted above, the documents were largely referenced in the 22 September 2020 letter and one might expect them to be collated and readily available to the defendant. The collation and preparation of the affidavit of discovery of the documents identified at 1 ‑ 8 of the schedule to the originating summons would not appear likely to involve significant cost, and such costs would appear likely to be proportionate to the forensic benefit to the plaintiff potentially derived.
The defendants have not put before the court any evidence of specific prejudice which they will, or might, suffer if the application is granted.
Having weighed all of these matters in the balance, I am satisfied that the discretion ought be exercised in favour of the plaintiff.

If so, what documents ought to be discovered?

If any order for pre-action discovery is made, only those documents relevant to a cause of action with the potential party should be discovered.[42] Furthermore, a line must be drawn between applying for pre-trial discovery in order to facilitate a decision about whether to commence proceedings and seeking discovery to test the strength of the opposing case in detail.[43]
[42] Horwood v Davenport [14].
[43] Rexha v Curtin University of Technology [27] ‑ [28].
I accept that it is important to keep in mind that the discretion is not intended to enable an applicant to obtain every document that would assist it in its case, rather the party is entitled to such information as is reasonably necessary to decide whether to commence proceedings. The rule is not intended to supplant or duplicate the ordinary process of discovery.[44]
[44] The New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [66].
Having regard to matters of proportionality, and the documents necessary to facilitate the making of a decision about whether to commence proceedings, I propose to make an order for production of the documents (or class of documents) described in the schedule at items 1 ‑ 8 (that is, the documents and classes of documents referenced in the 22 September 2020 letter) and not item 9. To require discovery of all documents that fall within item 9 would be akin to requiring the defendant to attend to substantive discovery, and go beyond that necessary to facilitate the making of a decision.

Conclusions and orders

I am satisfied that an order for pre-action discovery against the defendant is reasonably necessary to achieve the proper administration of justice. It is therefore appropriate to exercise discretion pursuant to RSC O 26A r 4 to make orders on the present application.
Once the parties have the opportunity to consider these reasons, I will hear from them as to the final form of order and costs.

SCHEDULE A

SCHEDULE B
*This image has been taken from annexure ‘BJM1’ of the affidavit of Brian McCormack sworn on 12 November 2020. This image does not display the faint draft watermark that is visible on the original.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Justice Strk
3 SEPTEMBER 2021

[26] Hirschberg (ATF LPH Developments Keegan Street Trust) & Jameson Moore Pty Ltd [34].