Rivers v Rivers

Case [2004] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules)

RIVERS v RIVERS

Judgment of The Honourable Justice White

18 September 2004

PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER REASONS FOR SECURITY

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - EVIDENCE

SUBPOENA TO PRODUCE DOCUMENTS - APPLICATION TO SET ASIDE

First defendant sought an order that the plaintiff provide security for costs and sought grant of leave to issue subpoenas - Subpoenas seeking production of communications between plaintiff and third parties in relation to the funding of the plaintiff's action were served on the plaintiff and third parties - Plaintiff agreed to accede to an order for security for costs - Plaintiff sought to have subpoenas set aside - First defendant opposed setting aside of subpoenas as security for costs on an indemnity basis and for an extended period was sought - Production of documents not necessary for fair disposition of the claim for security - Discussion of plaintiff's standing to have subpoenas directed to non-parties set aside - Plaintiff had legitimate interest in setting aside subpoenas - Subpoenas set aside.

Administration and Probate Act 1919 (SA) s 72G, referred to.
Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180; Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 134 ALR 187; Hunt v Judge Russell (1995) 63 SASR 402, applied.
Rivers v Rivers (2002) 84 SASR 426; Rivers v Rivers (2002) 220 LSJS 74; ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2001) 214 LSJS 421; Commissioner for Railways v Small (1938) SR (NSW) 564; Alister v The Queen (1984) 154 CLR 404; Santos v Pipelines Authority of South Australia (1996) 66 SASR 38; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250; Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160; R v Baines [1909] 1 KB 258; Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; R v Saleam (1989) 16 NSWLR 14; Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; Crothers v Simpson Sears Ltd; Attorney-General (Alberta) (1988) 51 DLR (4th) 529; Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance Ltd (in liq) [2003] FCA 803; Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98; Fried v National Australia Bank Ltd (2000) 175 ALR 194; Trade Practices Commission v Kimberley Homes Pty Ltd (No 1) (Hill J, Federal Court, 19 July 1989, unreported); New Ashwick Pty Ltd v Iama Ltd (No 1) [2000] SASC 416, considered.

RIVERS v RIVERS
[2004] SASC 295

WHITE J

Introduction

  1. On 9 July 2003, the first defendant filed an application seeking…

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Rivers v Rivers [2004] SASC 295
Case
[2004] SASC 295
Decision Date

CaseChat Overview and Summary

Rivers v Rivers involves a dispute between the plaintiff, a child of the deceased, and the first defendant, the widow of the deceased, over the deceased's estate. The plaintiff seeks to exclude the first defendant from the estate distribution based on allegations of intentional or reckless actions leading to the deceased's death. The first defendant has applied for security for costs and for leave to issue subpoenas seeking documents related to the plaintiff's funding of the case. The plaintiff has agreed to provide security for costs but opposes the subpoenas on the grounds that they are unnecessary and could harm third parties. The primary legal issue is whether the subpoenas should be set aside as they are not necessary for the fair disposition of the claim for security, and whether the plaintiff has the standing to challenge subpoenas directed at non-parties.

The court examined whether the subpoenas were necessary for the fair disposition of the claim for security and whether the plaintiff had standing to challenge subpoenas directed to non-parties. The court found that the documents sought by the subpoenas were not necessary for the fair disposition of the claim for security, and that the plaintiff had a legitimate interest in setting aside the subpoenas to protect third parties from potential harm. The court also noted the plaintiff's financial position and concerns regarding his ability to pay costs if he were to lose the case. The court concluded that the subpoenas should be set aside, and granted the plaintiff's application to that effect.

In summary, the court set aside the subpoenas issued by the first defendant as they were not necessary for the fair disposition of the claim for security. The court also found that the plaintiff had standing to challenge the subpoenas directed to non-parties, and that setting them aside was in the interest of protecting third parties from potential harm. The court did not address the first defendant's application for security for costs, as that was not referred to the court. The final orders of the court were to set aside the subpoenas issued by the first defendant.

Orders

Orders of the court

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Background

Background to the litigation

The first defendant’s application for security for costs was not referred to me. The issue before me is more narrow, viz., whether by one means or another, the subpoenas which had been issued by the first defendant in connection with her application for security for costs should be set aside. What follows are my reasons for decision on those applications.Background History This litigation has its origins in the death by a bullet wound of Donald Graeme Rivers (“the deceased”) on 4 July 1997. The deceased was the husband of the first defendant, and the father (by an earlier marriage) of the plaintiff. The grandparents are the parents of the deceased. The bullet which killed the deceased was fired from a rifle held by the first defendant, his wife. The first defendant was acquitted by a jury of both the murder and manslaughter of her husband. The deceased died intestate. He left an estate worth a little under $1m. By virtue of s 72G of the Administration and Probate Act 1919 (SA), where the value of an intestate estate exceeds $10,000 and where the deceased dies leaving both a spouse and children, the deceased’s spouse is entitled to the sum of $10,000 and to one-half of the balance of the estate. The other half of the balance is to be divided equally between the deceased’s children. In the present case, the plaintiff seeks to invoke the so-called forfeiture rule. He seeks orders which would exclude the first defendant from participating altogether in the distribution of the estate. The plaintiff alleges that the first defendant intentionally or recklessly caused the death of the deceased, or in the alternative, committed an unlawful and dangerous act which resulted in his death. This background is set out more fully in the judgment of the Full Court in earlier proceedings involving the same parties (Rivers v Rivers (2002) 84 SASR 426 and at first instance in those proceedings (2002) 220 LSJS 74).Affidavit Material In the determination of the four applications referred to me, I have had regard to the following affidavits:1. Affidavit of the plaintiff sworn 31 May 1999.2. Affidavit of Wendy Ann Bidstrup sworn 29 August 2003.3. Affidavit of Sara Leah Rivers sworn 21 September 2003.4. Affidavit of Natasha Jane Haslam sworn 13 October 2003.5. Affidavit of Matthew Selley sworn 5 November 2003.The Plaintiff’s Financial Position The first defendant is concerned that the plaintiff is impecunious. There is material in the affidavits indicating grounds for that concern. The first defendant is concerned further that in the event that the plaintiff is unsuccessful in his claim, he will not have the means to satisfy the order for costs that is likely then to be made against him, as well as those orders for costs already made against him. This is a matter of contention between the parties. The plaintiff asserts that in the event that he is unsuccessful, his own share of the estate will be available to meet his liability for costs. However, the plaintiff (but not the first defendant) has already had an interim distribution from the estate of $100,000. It is unclear what the plaintiff has done with that sum. The first defendant submits that it may be inferred that that sum has been applied by the plaintiff to meeting legal costs already incurred by him in these proceedings and would no longer be available to her in the event that she successfully defends the action. Furthermore, the first defendant submits that the remaining entitlement of the plaintiff in the estate (of the order of $60,000) would be insufficient to meet the plaintiff’s liability to her for costs in the event that he is unsuccessful.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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