Schreuder v Murray

[2009] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCHREUDER -v- MURRAY [2009] WASCA 75

CORAM:   BUSS JA

HEARD:   1 & 8 APRIL 2009

DELIVERED          :   8 APRIL 2009

FILE NO/S:   CACV 28 of 2009

BETWEEN:   DERYCK MARSHALL SCHREUDER as Executor of the Will of JOHN CLAUSCEN MURRAY

Appellant

AND

FREDERICA JESSEME MURRAY
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :NEWNES J

Citation  :MURRAY -v- SCHREUDER [2009] WASC 51

File No  :CIV 1805 of 2008

Catchwords:

Practice and procedure - Application for stay of judgment pending appeal - Interaction of the requirement that the applicant have reasonable prospects of success with the balance of convenience - Application granted - Turns on own facts

Legislation:

Nil

Result:

Application for stay of judgment granted

Category:    B

Representation:

Counsel:

Appellant:     Mr J D MacLaurin

Respondent:     Mr S M Davies

Solicitors:

Appellant:     Marks & Sands

Respondent:     Jonathan Eastoe

Case(s) referred to in judgment(s):

Avanes v Marshall [2007] NSWSC 191; (2007) 68 NSWLR 595

Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65

McDonald v Ellis [2007] NSWSC 1068

Murray v Schreuder [2009] WASC 51

OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Schaverien v Jones [2007] NSWSC 1429

Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709

Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216

1BUSS JA:   On 20 November 2008, Justice Newnes heard an application by the respondent who is the plaintiff in Supreme Court action CIV 1805 of 2008.  The appellant is the defendant in that action.  The respondent is a beneficiary under the will of her late husband.  The appellant is the executor and trustee.  In the action, relevantly, the respondent seeks the removal of the appellant as executor and trustee.  In the application heard by the learned primary judge, the respondent sought, in effect, an order that the appellant produce for inspection all written legal advice received by him, and copies of all accounts for professional legal services rendered to him, in connection with the administration of the estate.

2On 10 March 2009, the learned primary judge made orders in relation to the application.  On 3 April 2009, his Honour varied the orders.  The orders as varied read, relevantly:

(1)The Appellant do by not later than 14 April 2009 produce for inspection by the Respondent and her legal advisors at the offices of Marks & Sands a copy of exhibits DRB 10 and DRB 11 to the affidavit of Mr David Baldry sworn 25 July 2008 and a copy of exhibit DRB 13 to the affidavit of Mr David Baldry sworn 26 August 2008.

(2)By not later than 14 April 2009 the Appellant file and serve an affidavit containing a list of all the legal advice he has received, and the invoices he has received from his legal advisors in respect of the administration of the estate of the late John Clauscen Murray and by not later than 18 April 2009, the Appellant produce the documents referred to in the list for inspection by the Respondent and her legal advisors at the office of Marks & Sands.

(3)The Appellant pay the Respondent's costs of the application, including reserved costs, to be taxed.

(4) … 

(5)By not later than 27 March 2009, the Respondent file and serve short submissions concerning any special costs order which the Respondent seeks and by not later than 3 April 2009, the Appellant file and serve short submissions in response.

(6)The entitlement of the Respondent to any special costs order be determined on the papers.

3The orders as varied gave effect to the reasons for decision on the application, which were published by the learned primary judge on 10 March 2009.  See Murray v Schreuder [2009] WASC 51.

4On 20 March 2009, the appellant filed an appeal notice against the learned primary judge's decision.  The appeal notice asserted, erroneously, that leave to appeal is not needed.  This error was corrected in an amended appeal notice filed on 25 March 2009.

5On 23 March 2009, the appellant filed an application in the appeal for, relevantly, a stay of the learned primary judge's orders.  The application is supported by an affidavit of David Richard Baldry sworn 19 March 2009.  Although the respondent initially opposed the stay entirely, she gave notice this morning that she did not oppose the stay, to the extent that it related to inspection of the documents referred to in order (2) of the orders made by his Honour on 3 April 2009.  The respondent maintains her opposition to a stay in relation to the documents referred to in order (1) on the ground that the appeal in relation to order (1) has no reasonable prospect of success.  The respondent also opposes a stay of the order as to costs in order 3.

6The nature of the criteria which are ordinarily relevant to the exercise of this court's discretion to grant a stay, pending an appeal, are well‑established.  I referred to them in Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 [24] and Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [21] ‑ [22]. It is unnecessary to reproduce those criteria in these reasons.

7Although it is ordinarily necessary for an applicant for a stay pending an appeal to establish that he or she has reasonable prospects of success on the appeal, the applicant's prospects of success are, to some extent, interdependent with the balance of convenience where any right of appeal (with or without leave) would be rendered nugatory if a stay was not granted.  Compare, in the context of an application for interlocutory injunctive relief, OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270, 272 ‑ 273.

8There is no doubt that the appeal in the present case would be rendered nugatory if a stay was not granted.  In particular, the appellant would be obliged to permit the respondent to inspect the relevant documents before the appeal was determined.  The present case is, therefore, distinguishable from a case where the fruits of a judgment at first instance (for example, payment of a monetary sum or transfer of real property) may readily be restored to the applicant for a stay, without any relevant disadvantage or prejudice which cannot be compensated by an order of the appellate court, if he or she is successful on the appeal.

9The learned primary judge held that there was no affidavit stating the facts relied upon by the appellant for his claim of legal professional privilege and, on that basis alone, the claim must fail [38]. His Honour also held that there was no basis upon which the appellant was entitled to maintain, as against the respondent, a claim of legal professional privilege in respect of legal advice obtained by him concerning the administration of the trust. The respondent was entitled, as a beneficiary, to inspect such advice and it followed, in his Honour's view, that the claim by the appellant to legal professional privilege must fail [60] ‑ [61]. His Honour added that it was unnecessary for him to consider the respondent's application, so far as it was based on O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA), but he would nevertheless say something about it [62]. In particular, his Honour said he was not satisfied that the appellant had shown any reason why an order for production in respect of the annexures referred to as DRB 10, DRB 11 and DRB 13 of Mr Baldry's affidavits of 25 July 2008 and 26 August 2008 should not be made [68].

10The findings and conclusions of the learned primary judge, to which I have referred, are challenged in the appellant's grounds of appeal and the appellant's case generally, which was filed on 7 April 2009.

11The documents referred to in order (1) of the orders made by the learned primary judge on 3 April 2009 comprise exhibits DRB 10 and DRB 11 to Mr Baldry's affidavit sworn 25 July 2008 and exhibit DRB 13 to his affidavit sworn 26 August 2008.  These documents were filed at the court but were not annexed to the copies of the affidavits served on the respondent.  The appellant asserts that the documents in question are privileged from production for inspection on the ground of legal professional privilege and, in any event, the respondent in her capacity as a beneficiary has no right to inspect the documents.  His Honour's determination of these issues, adverse to the appellant, is, on my reading of the grounds of appeal and the appellant's case generally, challenged in the appeal.

1. There is some division in recent authorities, at least in New South Wales, as to the nature and extent of the right (if any) of a beneficiary of a trust estate to information from trustees.  It appears that before the decision of the Privy Council in Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709, the law was reasonably clear. A beneficiary with a vested interest in the trust estate was entitled to information from the trustee. In Schmidt, the Privy Council appears to have held that the right was merely a procedural right for the court to make an order in its discretion as part of its supervisory jurisdiction in relation to trusts.  The decision in Schmidt was followed by Gzell J in Avanes v Marshall [2007] NSWSC 191; (2007) 68 NSWLR 595. However, in McDonald v Ellis [2007] NSWSC 1068 and Schaverien v Jones [2007] NSWSC 1429, Bryson AJ declined to follow Schmidt and Avanes.  The current state of the law on this issue is attended by some doubt. 

   13Evidence is led by affidavit, not by merely filing the affidavit, but by reading it to the court.  An affidavit which has been placed on the court file does not become part of the evidence in proceedings until it is put before the court either by reading it to the court or by counsel informing the judge at the hearing that the affidavit is relied on.  See Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65, 67. Accordingly, exhibits DRB 10, DRB 11 and DRB 13 to Mr Baldry's affidavits will not become part of the evidence in the trial of action unless they are read or counsel intimates to the trial judge that they will be relied on.

   14I am satisfied that, in the present case, a stay of the learned primary judge's order for inspection in relation to the documents described in orders (1) and (2) of the orders made on 3 April 2009 should be granted, but otherwise there should be no stay.  My reasons are as follows. 

   15First, I consider that, in the context of this stay application, the appellant has reasonable prospects of success on the appeal or, at least, sufficient prospects of success to justify the grant of a stay in relation to the documents described in orders (1) and (2).  In particular, I have read the appellant's case including his grounds of appeal.  I consider that each of the grounds has sufficient prospects of success for the purposes of a stay application.  Secondly, if a stay of the order for inspection is not granted, the appeal will be rendered nugatory, because it will not be possible for the appeal to be heard and determined before the expiry of the time limit imposed by the learned primary judge for compliance with that part of the order.  Thirdly, the grant of a stay will not, in my view, occasion particular hardship to the respondent.  On 1 April 2009, I ordered that the appeal be listed for hearing on 2 June 2009, and I made programming orders to ensure that the appeal will be ready for hearing on that date. The interests of the respondent are adequately protected by the allocation of an early hearing date for the appeal and by the programming orders I made.  Fourthly, the balance of convenience is, in my view, against a more extensive stay, in particular against a stay of the costs order in order 3. 

   16I will make orders, relevantly, as follows:

   (1)That part of orders (1) and (2) of the orders made by Justice Newnes on 3 April 2009 in CIV 1805 of 2008 in relation to inspection be stayed until the determination of this appeal or further order.

   (2)The application for a stay otherwise be dismissed.

   (3)The costs of the stay application be in the cause of the appeal.