Morris v Cullen for Cullen Macleod Lawyers
[2024] WASC 136
•19 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MORRIS -v- CULLEN for CULLEN MACLEOD LAWYERS [2024] WASC 136
CORAM: MASTER RUSSELL
HEARD: 17 APRIL 2024
DELIVERED : 17 APRIL 2024
PUBLISHED : 19 APRIL 2024
FILE NO/S: CIV 1126 of 2024
BETWEEN: SARAH LOUISE MORRIS
Plaintiff
AND
RICK CULLEN for CULLEN MACLEOD LAWYERS
Defendant
Catchwords:
Practice and procedure - Application for pre‑action discovery - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26A r 3, r 4, r 5
Supreme Court Act 1935 (WA), s 4
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | S F Popperwell |
Solicitors:
| Plaintiff | : | In Person |
| Defendant | : | Cullen Macleod Lawyers |
Cases referred to in decision:
Agnew v Prisoners Review Board [2012] WASC 47
Beecham Group Ltd v Bristol Myers Co [1979] VR 273
Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASC 123
Lafferty v Waterton [No 2] [2017] WASC 84
Mulley v Manifold (1959) 103 CLR 341
Mulley v Myers Co [1979] VR 273
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
MASTER RUSSELL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression and to include complete references. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)
Introduction
By originating summons filed on 6 February 2024, the plaintiff, Sarah Louise Morris, applies for orders for pre‑action discovery against the defendant, Rick Cullen of Cullen MacLeod Lawyers (Application).
The court may make orders for pre‑action discovery under O 26A r 3, r 4 or r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), which provide relevantly:
3.Discovery etc. to identify a potential party
(1)This rule applies if a person who appears to have a cause of action against a person (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 ascertain a description of the potential party sufficient for the purposes of doing so.
(2)If there are reasonable grounds for believing that another person (the non-party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, 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 non-party.
(4)On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following:
(a)to give discovery to the applicant of all documents that are or have been in the non-party's possession relating to the description of the potential party;
(b)to personally attend the Court to be examined in relation to the description of the potential party.
…
4.Discovery from potential party
(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.
5.Discovery from non-party
(1)If there are reasonable grounds for believing that a person who is not party to an action (the non-party) had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the action, a party to the action may apply for an order under this rule.
(2)The application shall be supported by an affidavit and a copy of both shall be served on the non-party and the other parties to the action.
(3)On the application the Court may order the non-party to give discovery of all documents that are or have been in the non-party's possession and that relate to any matter in question in the action.
As is clear from the text of RSC O 26A, it enables a person to make an application for:
(a)discovery from a non‑party to identify a potential party (under r 3);
(b)discovery from an identified potential party for the purpose of obtaining sufficient information to make a decision as to whether to commence proceedings against the potential party (under r 4); and
(c)discovery from a person who is neither a party nor a potential party to an action who has, had, or is likely to have or to have possessed documents that relate to any matter in question in an action (under r 5).
The Application does not identify under which provision or provisions the pre‑action discovery is sought. However, in her written submissions the plaintiff identifies that the Application is made under RSC O 26A r 5.
The plaintiff seeks discovery under O 26A r 5 of:
(a)an electronic copy of all documents, including file notes, that are or have been in the possession of Cullen Macleod Lawyers that relate to the late Helen Georgina Baty, previously of 59A Reynolds Road, Mount Pleasant, Western Australia; and
(b)the original will of Helen Georgina Baty made on 6 October 2022.
The Application is opposed by the defendant on the basis that the court's jurisdiction to order discovery under RSC O26A r 5 is not enlivened because there is no action to which any documents in its possession may relate to any matter in question.
For completeness, the defendant also states that O 26A r 3 is not engaged in the circumstances where the plaintiff does not seek to identify a party to a potential action. Nor is O 26A r 4 engaged in circumstances where the defendant is not identified as a potential party to a cause of action to be brought by the plaintiff and discovery is sought for the purpose of deciding whether to commence the action.
The evidence and submissions relied upon
In support of the Application, the plaintiff relies on her affidavit affirmed on 5 February 2024, filed on 7 February 2024.
The defendant relies on its outline of written submissions filed in response to the Application on 26 March 2024.
The plaintiff also relies upon a written outline of submissions filed by her on 2 April 2024.
I considered the affidavits and submissions in detail before the hearing. I have also had the benefit of oral submissions from the parties. I will not repeat all of the evidence or submissions in these reasons. My reference to them will be a summary, but I have considered them thoroughly.
Factual background
The following is a summary of the relevant factual background derived from the plaintiff's affidavit filed in support of the Application.
The plaintiff is the sister of the late Helen Georgina Baty. The evidence filed in support of the Application does not identify when Helen Georgina Baty died and does not attach a copy of her death certificate.
The plaintiff deposes that she brings the Application as a nominated executor under her late sister's '2022 Will' and as a beneficiary under her '2017 Will'. She states she was nominated as an executor under both the '2022 Will' and the '2017 Will' and that her nomination under the '2022 Will' was joint with Christopher Paterson.
The '2022 Will' and the '2017 Will' were not identified with any further particularity. Neither the '2022 Will' or '2017 Will' are attached to the affidavit. I note discovery of the original '2022 Will' is one of the documents the subject of the Application.
During the hearing of the Application, the plaintiff produced a copy of the '2022 Will', which she tendered without objection and I received into evidence and marked as Exhibit 1. It is titled 'Last Will and Testament of Helen Georgina Baty' and is stated to have been signed by Helen Georgina Baty on 6 October 2022. It states in cl 3 that Ms Baty appoints her sister, Sarah Louise Morris, and her friend, Christopher John Paterson, jointly as executors of the will and trustees of the trusts arising under the will.
In her affidavit filed with and in support of the Application, the plaintiff deposes that she seeks pre‑action discovery against Cullen Macleod to determine whether to make an Application in this court to propound the '2017 Will' or the '2022 Will' and to provide the respective beneficiaries with information 'crucial for determining the validity' of the '2022 Will'.
She deposes that Cullen Macleod prepared the '2022 Will' and that she seeks discovery of its client file for her late sister, Helen Baty, as it 'should show' whether and, if so, to what extent Helen Baty's testamentary capacity was assessed, by whom and how, whether the will was made of Ms Baty's own volition and prepared on her direction, or at the direction of Christopher Paterson for his personal enrichment, and whether Helen Baty was unduly influenced by Christopher Paterson in making the '2022 Will'. The plaintiff deposes to concerns she holds in relation to those matters.
The plaintiff deposes to Christopher Paterson being nominated with the plaintiff as joint executors under the '2022 Will', to him being joint enduring attorney for Helen Baty and a beneficiary under the wills. There is no evidence before me about an enduring power of attorney. There is now evidence in the form of a copy of the '2022 Will', which provides for the joint appointment of the plaintiff and the late Ms Batey's friend, Mr Paterson, who is also named as a beneficiary.
Otherwise, it is not clear on the evidence who Christopher Paterson is. In her oral submissions, Ms Morris elaborated, saying that Mr Paterson was not a child, husband, partner or close friend of her late sister, though there is no evidence before me about that.
The plaintiff deposes to her late sister suffering motor neurone disease and frontal lobe dementia and to why, in her view, at the time of making the '2022 Will', Ms Baty lacked capacity, and also to other concerns regarding her '2022 Will' and the circumstances in which it came to be prepared. I do not repeat all of those details. They are set out in the plaintiff's affidavit.
The plaintiff deposes that she seeks discovery of Cullen Macleod's file to ascertain whether and to what extent Cullen Macleod satisfied themselves that Ms Baty's instructions reflected her wishes, whether and how they satisfied themselves she had capacity to give instructions and to make the will, and that she was not manipulated into doing so.
The plaintiff deposes to her communications with Cullen Macleod seeking to obtain information and documents from Cullen Macleod relating to the '2022 Will'. Copies of those communications are attached to the plaintiff's affidavit.
On the material before the court, Rick Cullen, though named as the defendant, was not himself involved in the preparation of the '2022 Will', the subject of the Application. Rather, the Application is directed at obtaining discovery of documents from the firm, Cullen MacLeod, of which he is a partner.
Though the plaintiff made submissions criticising the defendant for not providing her with copies of the documents sought and that Cullen MacLeod should not be permitted to 'pervert the course of justice' or be enabled to 'escape responsibility for negligent provision of legal services', the Application has not been brought on the basis of seeking discovery to decide whether to commence an action against the defendant. Nor is there evidence before the court to establish that the plaintiff may have a cause of action against the defendant and seeks discovery to decide whether to bring a proceeding against it.
Rather, the plaintiff seeks the discovery to decide whether to bring a proceeding to propound the '2017 Will' or the '2022 Will' and to ascertain the validity of the '2022 Will'.
It is evident from the communications attached to the plaintiff's affidavit and the affidavit itself, that no action has yet been commenced in relation to the '2017 Will' or the '2022 Will', or any action.
The defendant's opposition to the Application
The defendant opposes the Application, primarily on the basis that the jurisdiction conferred on the court by RSC O 26A r 5 is not engaged. It submits it is only engaged, or enlivened, when a party to an extant action seeks an order for discovery against a non‑party on the basis there are reasonable grounds for believing the non‑party had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the extant action. Put simply, the defendant's position is that, as there is no extant action, the court's discretionary power to compel the defendant to give discovery is not engaged.
For completeness, the defendant states that neither RSC O 26A r 3, nor O 26A r 4 are engaged in the circumstances where the plaintiff does not seek to identify a party to a potential action. Nor is the defendant identified as a potential party to a cause of action in respect of which the plaintiff has been unable to obtain sufficient information to enable her to make a decision as to whether to commence proceedings, and the documents sought may assist her in making that decision.
The defendant says it has not refused to provide the documents sought by the plaintiff for any of the reasons she has submitted. It is not doing so to frustrate the plaintiff or obstruct the administration of justice, as the plaintiff submits.
It submits that the client file, the '2022 Will' and the documents sought are confidential client information and subject to legal professional privilege. Though the plaintiff is nominated as a joint executor in the '2022 Will', she has not been appointed as executor. No executor or administrator has been appointed to the late Ms Baty's estate.
The defendant submits it has no evidence, and there is no evidence before the court that the plaintiff has any entitlement to the documents, which are property of the late Ms Baty's estate. In the circumstances, it is submitted the plaintiff has no present entitlement to the documents sought and the defendant is not able to provide them unless compelled to do so.
The defendant submits it cannot be so compelled under RSC O26A for the reasons it has submitted. The jurisdiction is not enlivened.
The defendant submits that the proper course is for the plaintiff to commence an action to propound the '2022 Will' and if there is a contest, to seek to issue a subpoena to the defendant to compel production of the documents sought.
The plaintiff's submissions in response
In her detailed submissions filed in response to those made on behalf of the defendant, the plaintiff submits that RSC O 26A r 5 should be interpreted to include not only an existing action, and may be interpreted to include pre‑action discovery before legal proceedings are instituted against another party.
The plaintiff also makes a number of other submissions, including suggestions that by refusing to provide the information sought, the defendant has some ulterior purpose contrary to their obligation as solicitors. I do not repeat those submissions and do not accept them. They are not supported by evidence and are contrary to the basis upon which it is said the discovery is sought.
The plaintiff also submits that the court may order the discovery sought under its inherent jurisdiction. In support of those submissions, the plaintiff relies upon a number of overseas authorities, including decisions of the English and Singaporean courts. I do not repeat the details of those submissions or the authorities in these reasons. They are set out in the plaintiff's written submissions.
The plaintiff also submits that she seeks discovery to avoid any liability for costs in any action to propound the will.
I do not repeat all of the plaintiff's submissions. I have given due consideration to them.
Disposition
It is well settled and clear on the authorities that RSC O 26A r 5 is directed to the court's discretion to make orders requiring a non‑party to an existing action to give discovery of documents the non-party had, has or is likely to have had, or to have, possession of that relate to any matter in question in the existing action.
What constitutes the matters in question in the action is to be determined by reference to the pleadings in the action, or if a document would lead to a chain of inquiry which would either advance a party's case or damage the other party's case in the action.[1]
[1] Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc (Fairfax Media) [2008] WASC 123 [30], [32] and [37] citing Mulley v Manifold (1959) 103 CLR 341, 345; Beecham Group Ltd v Bristol Myers Co [1979] VR 273, 278; Agnew v Prisoners Review Board [2012] WASC 47 [26] citing Fairfax Media [2008] WASC 123 [30].
Whether a document is relevant to a matter in question in the action can only be ascertained by the court by considering the pleadings together with the conduct and admissions of the parties and the nature of the action, as stated in Lafferty v Waterton,[2] referring to Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd.[3]
[2] Lafferty v Waterton [No 2] [2017] WASC 84 [25].
[3] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [5].
It is clear enough that such consideration of pleadings can only be undertaken where there is already an action on foot in which pleadings have been filed.
Further, as was submitted on behalf of the defendant, 'action' is defined in s 4 of the Supreme Court Act 1935 (WA) as relevantly, 'a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of the court …'.
The inherent jurisdiction of the court cannot supplant the rules of the court. RSC O 26A specifically provides the circumstances in which the court has jurisdiction to make orders for pre-action discovery. The arguments put forward by the plaintiff in relation to the inherent jurisdiction and the power of the court to make under RSC O 26A are not supported by the authorities or made out.
Conclusion
The Application and the evidence filed in support of it do not support the making of an order of the kind sought by the plaintiff in the circumstances where there is no action on foot such that RSC O 26A r 5 applies. Additionally, RSC O 26A r 3 and r 4 do not apply.
The plaintiff's Application for pre‑action discovery under RSC O 26A is therefore refused and the Application dismissed.
The parties have each made submissions in the written submissions filed in relation to costs. However, having now made my decision and given the reasons for it, I will hear from the parties in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
19 APRIL 2024
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