Ronald Brian Morrison v Hanby Pty Ltd & Ors No. Scgrg-97-1533

[2000] SASC 135

[2000] SASC 135

MORRISON V HANBY P/L & ORS

1. LANDER J:      The first to the fourth defendants have made two applications by application dated 12 May 2000.   The first application is effectively for further and better discovery.  The second application is for an order that the plaintiff submit himself for examination by a legally qualified medical practitioner provided and paid by the first to fourth defendants. 

2. Both applications are brought out of time: Supreme Court Rules r 67.01(6) provides:

   “No further interlocutory orders should be made under this rule after the making of the order to proceed to trial unless special circumstances shall be shown to exist which require such order to be made in the interest of justice.”

3. I am satisfied that these applications, although made out of time, should be heard because the defendants have made out special circumstances; those special circumstances being facts lately brought to the attention of the defendants, which could not have been known to the defendants at the time of the order for setting down. 

4. The defendants seek the discovery of any will made by the plaintiff at any time.  Defendants' counsel, Ms S Maharaj, relied upon issues raised in the statement of claim and, in particular, the plaintiff's plea that he signed a document entitled 'Acceptance of Offer' as raising issues relating to any will made by the plaintiff.  She relied upon an exhibit to the affidavit of Mr Cullimore, being the 'Acceptance of Offer' itself.  That document provides, without going into any detail, that if the defendants complied with their side of what is said to be the bargain, the plaintiff would draw up a will whereby he would leave all his personal effects and furniture to some of the first to fourth defendants. 

5. I am satisfied, as she submits, that the question of a will made by the plaintiff is raised on the pleadings and would be discoverable within the rule in The Compangnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55. However, in my opinion, the issue raised on the pleadings is limited to any will which might have been drawn up after the execution of the acceptance of offer; 1 May 1996. However, that would mean that the plaintiff would need, in my opinion, to have complied with his obligations under r 58, to discover any will which has been made subsequent to 1 May 1996.

6. During argument Mr H Abbott, who appeared for the plaintiff, acknowledged and accepted that if there was a will which had been drawn after 1 May 1996, that will would need to be discovered.  He told me, however, that his client has made full discovery. 

7. Later, during further argument, he frankly told me that his client had given instructions to his instructing solicitors relating to the drawing of a will and that he would have to consider, in those circumstances, whether those instructions ought to be discovered and privilege claimed in respect of them. 

8. In my opinion the plaintiff's legal advisers are alive to the plaintiff's responsibility to make discovery of all documents which are or have been in the possession, custody or power of the plaintiff, and in those circumstances I do not intend to make the order sought.  In doing so I expect that the plaintiff will, of course, comply with whatever obligations the plaintiff has in relation to any documents in his possession, custody or power which must, of course, include any documents in the possession, custody or power of his agent; namely his legal practitioners.  I decline to make any order for further and better discovery. 

9. Next the defendants sought an order that the plaintiff submit himself for medical examination.  During argument I raised with Ms Maharaj whether or not such an order ought to be made as the plaintiff's medical condition or health was not an issue on the pleadings.  She submitted to me that there was cogent evidence to support her submission that the plaintiff was physically unwell, in that he is presently suffering from prostrate cancer, and there was evidence that he was suffering from mild dementia.  She said in those circumstances the defendants were entitled to have the plaintiff examined for the further purpose of determining whether the plaintiff was able to give his legal practitioners proper instructions and for the purpose of determining whether or not the plaintiff will be able to give evidence in the trial which is due to start in a week and a half. 

10. She pointed out this matter had been previously listed and had been adjourned over the protestations of her clients.   I am not satisfied, on the present state of the pleadings, that the plaintiff's medical condition is in issue and further I am not satisfied that I have jurisdiction to make an order under r 61. 

11. She put to me, in the alternative, that I had power under the inherent jurisdiction of the court, to require the plaintiff to be examined, but, again, I think if there is such a jurisdiction - and I assume there is for the purpose of these reasons - in my opinion it would have to be for the purpose of determining a fact in issue; namely, the plaintiff's medical condition. 

12. Ms Downey, counsel for the fifth and sixth defendants, supported Ms Marajahs’ submissions, submitting that the plaintiff's medical condition was a live issue in this trial, having regard to the matters before the court. 

13. Mr Abbott, in answer to the application, conceded that his client would be seeking to amend the statement of claim, claiming damages for the life tenancy which the plaintiff did or did not obtain, and depending upon the resolution of that issue, to plead that the life tenancy was worthless to the plaintiff because of the plaintiff's present illness.  In other words, he will be amending the pleading to allege that his client's reduced life expectancy means that his client received a life interest of lesser value and, therefore, that the damages claimed against all defendants should be increased. 

14. Mr Abbott conceded that if that amendment was to be allowed, the plaintiff will need to adduce evidence to establish that reduced life expectancy and, further, actuarial and other valuation evidence relating to the valuation of that life tenancy. 

15. It was put to me that the plaintiff's legal practitioners only became aware of the plaintiff's medical condition in the last few weeks.  The plaintiff's medical condition is not an issue presently raised on the pleadings, but clearly if the amendment is allowed, it will be.  I think I have to assume, for the purpose of the management of this trial, so as to ensure that this trial proceeds in a week and a half's time, that an amendment will be sought by the plaintiff and that it will be allowed and sometime between now and the commencement of the trial the plaintiff will obtain expert evidence of the kind I have mentioned, which the plaintiff will seek to adduce at the trial. 

16. In those circumstances the plaintiff's medical condition will become an issue in the trial and the defendants would thereby be entitled, when and if the amendment is made, to require the plaintiff to submit himself for examination by a legally qualified medical practitioner.  If I was to wait upon the amendment being allowed and the expert evidence being delivered by the plaintiff it would mean the adjournment of this trial, therefore, it seems to me I ought to assume the defendants’ present entitlement to the orders sought.  Indeed, I do not think, in the end result that Mr Abbott argued otherwise. 

17. I am therefore prepared to make an order that the plaintiff submit himself for examination by a legally qualified medical practitioner, provided and paid by the first to fourth defendants, for the purpose of determining his medical condition or health and, in particular, his present life expectancy. 

18. I should say that the defendants were not able to identify the medical practitioner they wish to provide for the purpose of the examination.  That, I think, in the circumstances, is not unreasonable.  If there is any dispute between the parties, as to whether or not any legally qualified medical practitioner provided by the defendants is appropriate, then I will hear the parties on short notice, but I will assume that the defendants will separately advise the plaintiff, by letter, of the legally qualified medical practitioner who they will provide and the time and place at which the examination will take place. 

19. Accordingly, there will be an order in the terms which I have mentioned.