Moore v Duldig - [2021] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MOORE v DULDIG & ORS
[2021] SASC 26
Judgment of Judge Bochner a Master of the Supreme Court

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COMMENCING PROCEEDINGS - GENERALLY
Application for pre-action discovery - interpretation of Rule 242
Uniform Civil Rules 2020 (SA); Administration and Probate Act 1919 (SA); Supreme Court Act 1935 (SA), referred to.
Midhurst (Deceased) v Midhurst [2008] FamCA 393; Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd [2013] SASC 5; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161, considered.

MOORE v DULDIG & ORS
[2021] SASC 26
Civil

In this action, the applicant seeks documents relating to Brian Thomas Moore (the deceased), to allow her to make a decision whether to challenge the validity of the deceased’s purported last will. The applicant is the deceased’s daughter‑in‑law; her husband, Leon, was the deceased’s son who predeceased the deceased. I will refer to him as “Leon” for ease of reference, without intending any disrespect.
As well as Leon, the deceased had four other children, including the first and second respondents. The applicant says that, after her husband’s death, she maintained a close relationship with the deceased; at one point, he asked her to be his executor. On more than one occasion, he told her that he intended, despite Leon’s death, to leave his estate equally between his five children.
The applicant says that from early 2018, the deceased appeared to be unsettled and irritable, and to be suffering from cognitive difficulties. On 12 September 2018, the deceased suffered a stroke. From about October or November 2018, the applicant says that he showed significant signs of dementia. He died at the age of ninety-five in June 2019.
After the deceased’s death, the applicant found that the deceased, in a will dated 18 December 2018, had left her a bequest of only $5,000, and had left nothing to her children (“the December will”). In his previous will, dated 6 August 2018, he had left the applicant a substantial gift.
On 28 June 2019, the applicant caused a caveat to be lodged in the Probate Registry in respect of the deceased’s estate. This caveat was warned in December 2019, and the applicant appeared to that warning. She has sought various documents from the respondents in respect of the deceased’s medical conditions, as well as his will file; the respondents, while providing a small number of documents, have declined to provide the majority of the documents sought. This refusal led to the applicant’s filing an application pursuant to Rule 242 of the Uniform Civil Rules 2020 (the UCR), seeking an order for pre-action discovery. The application is opposed by the respondents.
Rule 242 of the UCR provides:
Part 12—Pre-action discovery—Supreme Court and District Court
242.1—Institution
(1)A person who seeks discovery or production of evidentiary material or information to decide whether or against whom whether to bring a claim…

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 Moore v Duldig

Details

AGLC: Moore v Duldig [2021] SASC 26
Case: [2021] SASC 26
Decision Date: 22 March 2021

CaseChat Overview and Summary

Moore v Duldig involved a dispute over the interpretation of Rule 242 of the South Australian Supreme Court Rules 2006. The case centred on the applicant's attempt to obtain pre-action discovery of certain documents, including two wills made by a deceased person, prior to initiating formal legal proceedings. The respondents argued that the wills could not be admitted into evidence due to section 120 of the Administration and Probate Act 1919 (SA), which prohibits the registration or admission of a will in evidence until administration of the estate has been obtained. The applicants contended that the wills were necessary to establish a reasonable basis for their application, not to prove the deceased's testamentary wishes.

The primary legal issues before the court were whether the applicant could rely on the wills to support her application for pre-action discovery and whether Rule 242 permitted such reliance. The respondents argued that the statutory prohibition in section 120 precluded the wills from being considered in the court, while the applicants maintained that the wills were admissible to show the basis for their application, not to prove the deceased's final testamentary wishes. The court considered whether the wills could be admitted to establish a reasonable basis for the applicant's proposed action, as distinct from proving the deceased's last testamentary wishes.

The court determined that the applicant could rely on the wills for the limited purpose of establishing a reasonable basis for her application. It found that the prohibition in section 120 was not intended to prevent the wills from being considered for this specific purpose. The court emphasised the importance of the object of the rules, which is to facilitate the just, efficient, timely, cost-effective, and proportionate resolution of proceedings. The court rejected the respondents' argument that the application should be dismissed due to the applicant's lack of specificity in her affidavit regarding the use of the documents. It concluded that the applicant could further explain the reasons for seeking the documents in a subsequent affidavit.

The court ordered that the applicant was entitled to rely on the wills to show that there was a reasonable basis for her application. It also noted that the applicant could expand the reasons for seeking the documents in a further affidavit if necessary. The court's decision allowed the applicant to proceed with her application for pre-action discovery, subject to the specific conditions set out in the ruling.

Orders

Orders of the court

See [26] - [32]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Secondly, the respondents objected to the applicant’s exhibiting to her affidavits two wills made by the deceased. The respondent relied on s 120 of the Administration and Probate Act 1919 (SA), to argue that the wills could not be admitted into evidence. Section 120 provides:120—No will to be registered or admissible in evidence until proved (1)No will of any person dying on or after the twenty-sixth day of October, 1893, shall be registered, or be admissible or receivable in evidence, except in criminal proceedings or upon application for probate or letters of administration, until administration in respect of the estate comprised therein has been issued or obtained. (2) In this section— "administration" means any probate or letters of administration with or without a will annexed and any rule or order of any Court or Judge, and any deed or document of any kind whatsoever whereby any person becomes entitled at law to administer, take charge of, or become receiver of any property of deceased persons. Both parties conceded that there was very little authority in respect of the operation of this section. Mr Douglas, on behalf of the applicant, submitted that the preclusion related only to the receipt of the will as evidence of the last testamentary wishes of the deceased. As the applicant did not seek to rely on either of the wills to demonstrate the last testamentary wishes of the deceased, but rather relied on them to establish that there was a reasonable basis for her application, she was not precluded from relying on the wills despite the fact that no grant of probate had issued in respect of either of them. Mr Douglas further submitted that there was no suggestion by the respondents that the applicant’s affidavit evidence in respect of the wills was inaccurate. The point taken by the respondents was a technical one simply to exclude evidence that was not otherwise in contest. Mr Magarey, on behalf of the respondents, submitted that s 120 amounts to a statutory prohibition which prevented the documents from being before the court until a grant of probate had issued in respect of either one of them. In my view, the applicant is entitled to rely on the purported wills. The purpose of this reliance is not to establish the final testamentary wishes of the deceased; indeed, the applicant acknowledges that the whole purpose of this application is to allow her to determine whether further legal action is required to determine what those wishes are. The purported wills will be admitted solely to show that there is a reasonable basis for the proposed action by the applicant. This is consistent with the decision of Dawe J in the Family Court of Australia, in the matter of Midhurst (Deceased) v Midhurst,[1] where she said:Considering the combined effects of Section 120 of the Administration and Probate Act 1919 and the provisions of Section 79 of the Judiciary Act 1903, the documents which are now before this Court cannot be accepted by this Court as the Last Will and Testament of the wife because neither of those documents can be admitted or received in evidence as the last will until administration in respect of the wife’s estate has been “issued or obtained”.[2][1] [2008] FamCA 393.[2] Ibid at [52].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Magarey argued that, even if he was wrong in respect of his construction of the UCR, the application should be dismissed. He said that the applicant has not deposed to the help that she would derive from the material that she sought. Further, it is clear from the contents of her affidavit that she is able to formulate any defence to an application for a grant of probate in solemn form in respect of the December will.Consideration When construing the UCR, it is necessary to bear in mind Rule 1.5, which provides:1.5—ObjectThe object of these Rules is to facilitate the just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings governed by these Rules.Notes—Section 14A of the Acts Interpretation Act 1915 generally applies the provisions of the Act to “statutory instruments” such that a reference to an “Act” extends to a “statutory instrument”. These Rules are a “statutory instrument” within the meaning of the Acts Interpretation Act 1915.Section 22 of the Acts Interpretation Act 1915 provides that, where a provision of a statute is reasonably open to more than one construction, a construction that would promote the purpose or object of the statute must be preferred to a construction that would not promote that purpose or object. The object of the rules should be to the forefront of each person’s mind when considering whether and if so which provisions of the UCR apply to a particular procedural event. This was made clear by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[5] where he said:However, it seems to me that the Uniform Civil Rules have been drafted in terms which seek to afford particular prominence and significance to both the objects of the rules, and the complementary obligations upon parties and their lawyers. They seek to encourage and empower the Court (and the parties) to construe and apply the rules in a practical and robust manner designed to promote the just, efficient, timely, cost-effective and proportionate resolution or determination of civil proceedings. Whilst the interests of justice remain paramount, what this requires in the context of modern litigation must be informed by the increasing concerns associated with the complexity, delay and expense associated with civil proceedings.[6][5] [2020] SASC 161.[6] Ibid at [46]. Unfortunately, I am of the view that this does not assist the applicant in this matter. There is no ambiguity in the wording of Rule 242, nor, in my view, can it be regarded as being reasonably open to more than one construction. No amount of practical and robust application of the rule will allow a Master to circumvent its plain terms. I reject Mr Magarey’s first basis for arguing for the dismissal of the application, that the applicant has only deposed to wishing to defend a claim. In my view, it would be open to the applicant to file a further affidavit expanding the reasons for which she sought the documents, to include the ability to make a decision as to whether she should prosecute her own action for a grant of probate in solemn form in respect of a will other than the December will. Mr Magarey has not suggested that any prejudice would have arisen to his client if such had been the case; his objection was merely on the basis that such an “amendment” was made only in submissions rather than in the affidavit material.