Moore v Duldig

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 or to formulate a claim may institute an action under this rule by filing an Originating Application and supporting affidavit in accordance with rule 82.1.
(2)     The supporting affidavit must identify—
(a)     the person against whom the applicant is contemplating bringing a claim and the cause of action contemplated;
(b)     the evidentiary material or information sought; and
(c)     why the applicant requires the evidentiary material or information to determine whether a cause of action exists or against whom the claim lies or to formulate the claim properly.
242.2—Order
(1)     The Court may make an order under subrule (2) if satisfied that—
(a)     the applicant may have a good cause of action against another person;
(b)     the person against whom the order is sought may be in possession or custody of, or have power over, evidentiary material or information relevant to the possible cause of action; and
(c)     the applicant requires discovery or production of relevant evidentiary material or information to—
(i)    decide whether a cause of action exists;
(ii)     decide against whom the claim lies; or
(iii)    formulate the claim properly.
(2)     If the Court is satisfied under subrule (1), the Court may—
(a)     order that the respondent file and serve on the applicant a document disclosing whether the respondent is or has been in possession or custody of, or has or had power over, evidentiary material relevant to the possible cause of action and, if so, providing full particulars of such evidentiary material;
(b)     order that the respondent produce any evidentiary material relevant to the possible cause of action to the Court or for inspection or copying by the applicant;
(c)     order that the respondent make discovery as if the respondent were a party to a substantive action for the possible cause of action and for that purpose specify any matters or make any order that could be specified or made in respect of a party under Chapter 7 Part 13;
(d)     order that the respondent verify discovery or production by affidavit;
(e)     order that the respondent provide specified information to the Court;
(f)     order that the respondent attend before the Court for examination; or
(g)     make any other or further order as it thinks fit, including as to costs.
(3)If the Court makes an order under subrule (2), the Court may subsequently make a further order under subrule (2).
Example—
If the Court orders that the respondent make discovery, after the respondent has done so the Court may order that the respondent attend before the Court for examination.
242.3—Compensation
(1)Unless the Court otherwise orders, the respondent is entitled to payment by the applicant of reasonable compensation for the time and expense involved in complying with an order made under rule 242.2.
(2)The compensation is to be fixed by agreement or in default of agreement by the Court.
Primarily, the issue in contention between the parties at the hearing of this application was the true construction of Rule 242, and whether it applied to proposed actions or proceedings which are to be commenced by way of originating application.
I note that at the commencement of the hearing, a number of objections were made by the respondents in respect of the applicant’s affidavit material. Firstly, the respondents objected to the receipt of hearsay evidence in the applicant’s affidavit material. I determined that the hearing amounted to a “directions hearing” within the meaning of the UCR. This was on the basis that the application did not result in a final determination of any of the legal rights of the parties. As a result, I allowed first-hand hearsay evidence to be relied on during the course of the argument.
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].
The purported wills are not before the Court in this matter as evidence of the last will of the deceased; rather they are before the Court to demonstrate that there is, or may be, a dispute as to which document is his last will.
The applicant’s submissions
Mr Douglas referred to the judgement of White J in Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd,[3] while acknowledging that it dealt with Rule 242’s predecessor rule, Rule 32 of the Supreme Court Civil Rules 2006. He relied on the following passages:
As already seen, r 32 vests the Court with a discretionary power which may be exercised in anticipation of an action. Before the discretion may be exercised, the Court must be satisfied, on an objective consideration, of two conditions: first, that the applicant may have a good cause of action and, secondly, that it requires further information for at least one of the purposes stated in subr (1). That requires an applicant to place before the Court satisfactory evidence to establish the two preconditions enlivening the discretion. It may be that a favourable exercise of the discretion will usually follow once these two preconditions have been established but that should not be assumed.
…
First, the investigative powers may be exercised only if the Court is satisfied that the plaintiff may have a good cause of action and requires further information for at least one of the three enumerated purposes. Those purposes do not include the enabling of plaintiffs to assess their chances of proving the proposed causes of action or to obtain evidence to assist in proving the proposed claims.[4]
(footnotes omitted)
[3] [2013] SASC 5.
[4] Ibid at [16] – [22].
Mr Douglas submitted that, for practical purposes, the wording of Rule 242 is identical to that of Rule 32, as a result of which the authorities dealing with Rule 32 continue to apply. He argued that the applicant brought this application to allow her to make a forensic decision as to whether she should oppose an application for a grant of probate in solemn form in respect of the December will or whether she should institute her own proceedings to propound an earlier will. In order to make this decision, it is important that she has available to her all relevant documents and information. This is particularly in light of the fact that the UCR does not impose any special cost rules in respect of probate actions. Thus, it is necessary for the applicant to make an informed decision prior to issuing or seeking to defend an action, and thus making herself liable to adverse costs orders.
Mr Douglas submitted that the only real difference between Rule 32 and Rule 242 is that Rule 242 refers specifically to “claims”. He noted that it is a feature of the UCR that actions are divided into claims and originating applications, and that different rules apply in respect of each. He accepted that Rule 242 refers to “claims”; he argued however that this should not be read narrowly so as to include actions commenced only by way of claim. Mr Douglas argued that because the applicant was relying on Rule 242.2(1)(c)(i), which refers to a cause of action, there was no need to make a decision as to whether the balance of Rule 242 only applied to proposed actions which are started by way of a claim. He argued that regardless of whether an action was started by way of claim or originating application, the applicant was always required to formulate the cause of action in a proper fashion. As a result, the rule should not be read down so as to apply only to actions commenced by way of claim. He submitted that the word “claim” in this context is analogous to “proceeding”.
He contended that even if he was incorrect in this submission, the court has the express power to vary the operation of the rules where required to do so in the interests of justice. He argued that Rule 242 makes no sense if it is read down to exclude actions commenced by way of originating application. He argued that if there was any ambiguity as to the meaning of the rule, the court should look to its context to allow an objective construction.
Mr Douglas submitted that clearly the question faced by the applicant merits exploration; he noted that the respondents, in fact, conceded that there was evidence to suggest the possibility of lack of capacity. He submitted that the categories of documents sought by the applicant are appropriate and necessary to allow the applicant to obtain legal advice and make an informed decision as to the appropriate course of action. There has been no suggestion by the respondents that the material sought does not exist. The material sought clearly falls within the type of material contemplated by Rule 242.2(1)(a) and (b).
Finally, Mr Douglas submitted that it was open to me to use Rule 12.1(2) to dispense with the rules.
The respondent’s submissions
Mr Magarey submitted that there were two reasons for the dismissal of the application. The first relates to the purpose deposed to by the applicant for which she seeks the material. He referred to [54] of FDN 2, where the applicant says:
As a result of the above, it may be necessary for me to defend solemn form proceedings brought by the Respondent in respect of the deceased Estate on the basis that the deceased’s last Will was not valid due to incapacity, undue influence and/or suspicious circumstances.
Mr Magarey submitted that Rule 242 only applies where the applicant is considering whether to bring or formulate a claim, not defend a claim. The only purpose referred to by the applicant in her affidavit material is to defend a proceeding. He argued that while the applicant’s submissions referred to her bringing a cross-claim, she has not deposed to that in her affidavit material. He contended that it is not permissible to enlarge on an affidavit by way of argument. As the only reason given by the applicant for her application is to consider whether she should defend an action, she is unable to have recourse to Rule 242.
The second basis for dismissal of the application relied on by Mr Magarey was that Rule 242 does not apply to proposed actions which are commenced by way of originating application. Mr Magarey argued that, when the various definitions are examined, it becomes clear that Rule 242 cannot be used in contemplation of the probate action, which must be commenced by way of originating application. The UCR, in Rule 2.1, defines “claim”, as:
… a claim as described in rule 51.2 and, unless the context otherwise indicates, indicates a cross claim;
Rule 51.2 provides:
(1)     Subject to subrules (3) to (5), a claim is a proceeding in which the applicant claims—
(a)     a remedy for a common law or equitable cause of action; or
(b)     a statutory remedy of a type available for a common law or equitable cause of action (such as damages, compensation, injunction, restitution, specific performance, rescission, rectification or declaration) for a statutory cause of action analogous to a common law or equitable cause of action.
Examples—
A claim for damages under section 236 or compensation under section 237 or an injunction under section 232 as a result of misleading conduct in breach of section 18 of the Australian Consumer Law is a statutory cause of action.
A claim for recovery of monies under section 588FF on avoidance of an unfair preference under section 588FA of the Corporations Act 2001 (Cth) is a statutory cause of action.
“Cause of action” is defined in Rule 2.1 as:
… a set of facts by reason of which (subject to any defence or the exercise of discretion by a court) a person is entitled to relief in a claim;
Mr Magarey argued that when these definitions are combined, it becomes clear that Rule 242 cannot apply to an action or proceeding commenced by way of originating application. “Claim”, with a lowercase “c”, is specifically defined as a matter whereby the applicant seeks a remedy for a common law or equitable cause of action. It is clear that a probate action does not fall within this category; indeed, the Supreme Court Act 1935 (SA) specifically differentiates between the Court’s common law and equitable jurisdiction on the one hand, and its probate jurisdiction on the other. Further, it is at least arguable that only “claims” have causes of action, by virtue of its definition in Rule 2.1. Mr Magarey submitted that the definitions contained in the UCR are clear and there is no reason to depart from them in the way contended for by the applicant.
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—Object
The 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.
Mr Magarey’s second objection, however, has more weight. The UCR clearly define the words, “claim”, “Claim”, “action”,[7] and “proceeding”.[8] The words, “action” and “proceeding” are defined to include matters commenced both by originating application and claim. It is clear both from these definitions and from the definitions of “claim” and “Claim” that the intention is to make a differentiation between matters commenced by originating application and those commenced by way of claim. Thus, it can only be the case, that where a rule uses the word “claim”, as Rule 242 does, this was used advisedly; if the intention had been to allow the application of the rule to matters commenced by originating application as well as by claim, the rule would have used either the word “action” or the word “proceeding”. As a result, I must reject Mr Douglas’s submission that the word “claim” in Rule 242 should be construed broadly to include actions commenced by way of originating application. I further consider that, given the clear wording of Rule 242, I am unable to dispense with or vary its application.
[7]    Defined in Rule 2.1 as “any one of a claim, cross claim or originating application”.
[8]    Defined in rule 2.1 as:
“a proceeding other than an excluded proceeding, and includes—
(a)     a cross claim as well as a claim;
(b)     an originating application;
(c)     a proceeding seeking review of an administrative decision notwithstanding that it may be
called an “appeal” by a statute; and
(d)     where the context requires—an appellate proceeding”
I must also reject Mr Douglas’s submission that Rule 242.2 (1)(c)(i) applies to actions commenced by way of originating application. Rule 242.2 cannot be divorced from Rule 242.1 to give it a broader application. Rule 242 must be read in its context, which is that the applicant is contemplating bringing a claim. Further, the definition of “cause of action” in Rule 2.1 clearly limits the definition to a claim. I take that to mean that, where the term “cause of action” is used within the UCR it is used in the context of actions commenced by way of claim only.
In the circumstances, and despite the fact that there are clearly matters which it would be incumbent on the applicant to investigate prior to commencing an action for a grant of probate in solemn form in respect of a will other than the December will, or to defending an action for a grant in solemn form in respect of the December will, the applicant’s application must be dismissed. Given the definitions in the UCR, I am unable to find that an application under Rule 242 can be brought with respect to a proposed action to be brought by way of originating application.

[2021] SASC 26

22 March 2021