Sherlock v PETA Brooks as administrator of the estate of Suzanne Brooks - [2023] WASC 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SHERLOCK -v- PETA BROOKS as administrator of the estate of SUZANNE BROOKS [2023] WASC 314
CORAM:   REGISTRAR HOSKING
HEARD:   19 MAY 2023
DELIVERED          :   18 AUGUST 2023
PUBLISHED           :   18 AUGUST 2023
FILE NO/S:   CIV 1860 of 2022
BETWEEN:   DONNA ALISON SHERLOCK
First Plaintiff
VICKI LEIGHANN MARCHANT
Second Plaintiff
AND
PETA BROOKS as administrator of the estate of SUZANNE BROOKS
Defendant

Catchwords:

Practice and procedure ‑ Application for examination of witnesses before trial ‑ Rules of the Supreme Court 1971 (WA) O 38 r 1 ‑ Witnesses neither absent from jurisdiction nor in ill health ‑ Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 38 r 1

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr N Siegwart & Mr A T Edwards
Second Plaintiff	:	Mr N Siegwart & Mr A T Edwards
Defendant	:	Mr M Lenhoff & Mr E Cohen

Solicitors:

First Plaintiff	:	Birman & Ride
Second Plaintiff	:	Birman & Ride
Defendant	:	Zafra Legal

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

De Garis Kendenup (WA) Development Co Ltd v Courtis (1925) 28 WALR 54
Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521
Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 838
Leda Holdings Pty Ltd v Water Board 26/4/94, Supreme Court of NSW, unreported
Marsah & Ors v Commonwealth Bank of Australia [2006] WASC 309
Millie Nominees Pty Ltd v Discount Factors Pty Ltd (Supreme Court of Western Australia Full Court, 1987, Lib No 6934, unreported, BC8701720)
Watson v J-Five Enterprises Pty Ltd and Anor [2001] WADC 241

REGISTRAR HOSKING:

Introduction

This is an application by the plaintiffs for orders pursuant to the Rules of theSupreme Court 1971 (WA) (RSC) O 38 r 1 for the examination of two witnesses prior to trial.

On 19 August 2022, the plaintiffs commenced this proceeding by writ of summons indorsed with a statement of claim.
The plaintiffs plead that in about September 1987, their father (Andrew) and his de facto partner (Suzanne) agreed or held an enforceable mutual understanding that:
(a)Suzanne would execute a will to the effect that if Andrew survived her by 28 days, she would leave the whole of her estate to him, but if Andrew did not survive her by 28 days, she would leave the whole of her estate equally between her children and Andrew's children;
(b)Andrew would execute a will in similar terms; and
(c)they would each not revoke their will without notice to the other.[1]
[1] Statement of claim [8].
Further, that on 29 September 1987, pursuant to their agreement or mutual understanding, Suzanne and Andrew executed wills in the terms pleaded.[2] The plaintiffs contend Suzanne subsequently revoked her will in breach of the agreement.[3] The plaintiffs seek a declaration that the defendant, as administrator of Suzanne's estate, holds the assets of the estate on trust for Andrew's children and Suzanne's children in equal shares.
[2] Statement of claim [9].
[3] Statement of claim [10] - [11].
The defendant denies Suzanne executed such a will and that the plaintiffs are entitled to the relief claimed.[4]
[4] Defence [4], [9].
By this application, the plaintiffs seek to take the evidence of Anne Bettine Williams and Bryan Patrick Williams, the witnesses of Andrew's will made in 1987.[5]
[5] Plaintiffs' submissions [13].
On 30 March 2023, the plaintiffs filed a letter applying for orders pursuant to O 38 r 1. The plaintiffs seek orders that:
1.Pursuant to Order 38, rule 1 of the Rules of the Supreme Court 1971 (WA) (RSC), it is ordered that Anne Bettine Williams of [address], Augusta, WA 6290, a witness on behalf of the Plaintiffs, be examined viva voce (on oath or affirmation) before an appropriate officer of the Court at the Supreme Court of Western Australia, David Malcolm Justice Centre, 28 Barrack Street, Perth WA 6000, on a date to be determined by the Court.
2.Pursuant to Order 38, rule 1 of the RSC, it is ordered that Bryan Patrick Williams of [address], Augusta, WA 6290, a witness on behalf of the Plaintiffs, be examined viva voce (on oath or affirmation) before an appropriate officer of the Court at the Supreme Court of Western Australia, David Malcolm Justice Centre, 28 Barrack Street, Perth WA 6000, on a date to be determined by the Court.
3.The parties, Anne Williams and Bryan Williams have liberty to apply in relation to the method and means of their attendance.
4.The depositions taken at the examinations of Anne Bettine Williams and Bryan Patrick Williams be filed, and copies thereof may be read and given in evidence on the trial of this cause upon the Court being satisfied of the requirements contained in RSC Order 36 rule 7.
5.Costs in the cause.
The plaintiffs rely on an affidavit of Angus Thomas Edwards sworn on 30 March 2023 (First Edwards Affidavit), a second affidavit of Mr Edwards sworn on 18 May 2023 (Second Edwards Affidavit) and an outline of submissions filed on 27 April 2023 in support of their application.
The defendant relies on an outline of submissions filed on 9 May 2023 in opposition to the application.
At the hearing of the application, in the course of determining objections to affidavits, I indicated I would make an order that the affidavit of Lachlan Edward Rigg sworn on 19 April 2023 (previously sought to be relied on by the defendant) be removed from the court record.

The parties' submissions

Plaintiffs' submissions

The plaintiffs submit RSC O 38 r 1 is framed in the widest possible terms to enable that to be done which is necessary for the purposes of justice and there is no reason to cut down its general language.[6]
[6] Plaintiffs' submissions [5], citing De Garis Kendenup (WA) Development Co Ltd v Courtis (1925) 28 WALR 54, 55 ‑ 56; Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 838 [35].
The plaintiffs contend the factors which weigh on the court's discretion include the following.
First, the credibility of the witness. The plaintiffs suggest the court is more likely to order an examination where the witness' credibility is not in issue.[7] The plaintiffs do not understand Mr and Mrs Williams' credibility to be in issue.[8]
[7] Plaintiffs' submissions [6.1], citing Idoport [30] ‑ [32], [37].
[8] Plaintiffs' submissions [19].
Secondly, the materiality of the evidence. The more material the proposed evidence the more likely the court is to order an examination. The plaintiffs submit the proposed evidence is critical to their case.[9] Further, that it is sufficient to establish that material evidence will probably be given, not that material evidence will certainly be given.[10]
[9] Plaintiffs' submissions [19].
[10] Plaintiffs' submissions [6.2] and [9], citing Idoport [38] ‑ [40]; Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, 558; Millie Nominees Pty Ltd v Discount Factors Pty Ltd (Supreme Court of Western Australia Full Court, 1987, Lib No 6934, unreported, BC8701720).
In the First Edwards Affidavit, Mr Edwards states that during a telephone call with Mrs Williams on 22 March 2022, Mrs Williams told him:
(a)she was calling in response to a letter he had sent to Mr and Mrs Williams;
(b)she and Mr Williams were friends with Andrew and Suzanne;
(c)she and Mr Williams witnessed Andrew's will dated 29 September 1987;
(d)at the same time they witnessed Andrew's will, she and Mr Williams also witnessed Suzanne's will;
(e)she was sure Andrew's will and Suzanne's will were in the same terms as each other; and
(f)she remembered that Mr Dennis Beere, a lawyer in Margaret River had prepared the wills for Andrew and Suzanne, because she and Mr Williams went to have wills drawn by Mr Beere shortly thereafter.[11]
[11] First Edwards Affidavit [4].
Based on the telephone call between Mr Edwards and Mrs Williams, the plaintiffs submit Mr and Mrs Williams are likely to give evidence that Suzanne executed a will on or about 29 September 1987.[12]
[12] Plaintiffs' submissions [14].
Thirdly, whether the evidence is corroboratory. If the evidence is necessary and cannot (or is unlikely to be able to) be given by other witnesses, the court is more likely to order an examination.[13]
[13] Plaintiffs' submissions [6.3], citing Idoport [38].
The plaintiffs submit there are no other witnesses known to the parties at this time who may be able to give direct evidence of Suzanne's execution of a will. Suzanne and Andrew are both deceased. Mr Beere (who allegedly drafted Suzanne's will) does not recall whether he drafted such a will.[14] Lane Buck & Higgins, who subsequently took over Mr Beere's law practice, have not found any records of Suzanne's will.[15]
[14] First Edwards Affidavit [9.2], attachment ATE4.
[15] Plaintiffs' submissions [15], First Edwards Affidavit [9.3], attachment ATE5.
Fourthly, whether the proposed witness has refused (or is unable to) preserve their evidence in other ways, such as by affidavit.[16] On 28 March 2023, Mr Edwards spoke with Mrs Williams again. Mr Edwards states during that conversation, Mrs Williams told him that she was not prepared to give a written statement of her recollection of the witnessing of Suzanne's will and Mr Williams was not willing to speak to Mr Edwards.[17] Accordingly, the plaintiffs submit Mr and Mrs Williams have refused to give a written statement or affidavit evidence regarding the witnessing of Suzanne's will.[18]
[16] Plaintiffs' submissions [6.4], citing Idoport [32]; Leda Holdings Pty Ltd v Water Board 26/4/94, Supreme Court of NSW, unreported.
[17] First Edwards Affidavit [10].
[18] Plaintiffs' submissions [16].
Fifthly, whether (and why) the proposed witness is unlikely to be able to give evidence at trial. The plaintiffs submit all the circumstances of the case must be considered. Further, that the court should be careful to balance any prejudice to a party, with the need for parties to be able to adduce all material evidence.[19] They contend the effort involved in obtaining the evidence is likely to be modest and the proposed evidence is on a discrete issue. If Mr and Mrs Williams become unable to give evidence at trial, the examination evidence would be available.[20]
[19] Plaintiffs' submissions [6.5], citing Idoport [35] ‑ [36].
[20] Plaintiffs' submissions [20].
The plaintiffs have filed evidence which indicates Mr Williams is aged 73 and Mrs Williams is aged 72.[21] The plaintiffs submit that inevitably, there are delays in the progress of any court proceedings. They suggest the time for a matter to reach trial introduces substantial risk that Mr and Mrs Williams will be unable to give evidence at trial due to their age, the possibility of age‑related illnesses and general mental decline. Further, that risk is made more obvious by the fact that two of their contemporaries have passed away (Andrew, aged 42 and Suzanne, aged 74).[22]
[21] First Edwards Affidavit [5] ‑ [8], attachments ATE2 and ATE3, Second Edwards Affidavit [5] ‑ [7], attachments ATE6 and ATE7.
[22] Plaintiffs' submissions [18].
While the plaintiffs acknowledge they are unable to comment on the specific circumstances (including any specific medical conditions) of Mr and Mrs Williams, they submit that in weighing up the materiality of the proposed evidence, the size of the estate in dispute and the risk the evidence will become unavailable if not preserved, orders should be made as sought.[23]
[23] Plaintiffs' submissions [21], ts 18.
The plaintiffs submit that broader case management principles also support this application, as the evidence given may assist the parties to have a better understanding of the strength of their respective cases and assist in resolving the matter without the need for a trial.[24]
[24] Plaintiffs' submissions [22].
They contend there is no prejudice to the defendant in allowing the proposed evidence to be taken by examination prior to trial, as the examination will only be tendered if a witness cannot give evidence at trial, or if the defendant consents. The plaintiffs suggest the lack of prejudice to the defendant can be contrasted to the potential prejudice to the plaintiffs if the proposed evidence is not obtained and the witnesses become unable to give the evidence at trial.[25]
[25] Plaintiffs' submissions [23].
The plaintiffs submit that, if in the context of case management principles there are benefits to taking an examination in advance, the power should be exercised more broadly.[26]
[26] Plaintiffs' submissions [7], citing Idoport [83] ‑ [88].
The plaintiffs contend the fact that the procedure of taking evidence by deposition is unusual or uncommon does not make it inappropriate and regard must be had to the circumstances of the case.[27]

Defendant's submissions

[27] Plaintiffs' submissions [10], citing Idoport [86], [97].

The defendant submits the court's discretion under O 38 r 1 is rarely exercised, as demonstrated by the limited authorities that have considered the rule.[28] Further, the general rule is the examination of a witness before trial will only be used in circumstances where the witness is unable to attend a trial.[29]
[28] Defendant's submissions [6].
[29] Defendant's submissions [18.1], citing Watson v J-Five Enterprises Pty Ltd and Anor [2001] WADC 241[7] and De Garis[55] ‑ [56].
The defendant contends the rationale for the infrequent use of the rule can be explained by considering the usual practice and case management procedure in civil litigation.[30] In that regard, the court's usual practice is for evidence in chief to be given orally at trial, with the exchange of witness outlines prior to trial. Orders for the exchange of witness statements and for witness statements to stand as evidence in chief will only be made where a party satisfies the case manager that this course will better achieve the objects of efficiency, just determination of litigation and proportionality than if evidence were to be given orally in the usual way. Ordinarily, the use of a witness statement will not be appropriate where contentious evidence is to be given of facts dependent on the recollection of the witness.[31]
[30] Defendant's submissions [7].
[31] Defendant's submissions [8], referring to the Supreme Court of Western Australia Consolidated Practice Directions, 4.1.2.2, 4.5.3 and 4.5.4.
The defendant submits the examination of a witness prior to trial is in direct contrast with the court's usual practice and the burden is on the plaintiffs to establish why it is necessary for the purposes of justice for the court to depart from its usual practice.[32]
[32] Defendant's submissions [9].
The defendant refers to the decision Watson v J-Five Enterprises Pty Ltd and Anor [2001] WADC 241 as the principal decision on O 38 r 1, where Nisbet DCJ considered the rule, together with corresponding provisions of English and other Australian jurisdictions:
5… Under the former Rules of the Supreme Court of England (Rules of the Supreme Court 1965) O 39 r 1 was in almost precisely the same form as O 38 r 1 of the Supreme Court Rules of Western Australia. As the commentary in the White Book discloses, the circumstances in which this rule of court was used to enable the examination of witnesses before trial were somewhat restricted:
The exercise of the power is discretionary (see Warner v Mosses (1880) 16 Ch D 100 CA p 102) but the usual grounds on which the order is made for examination in this country are (and always have been) that the witness is too old and decrepit to attend a trial or might die before the trial, or so ill that there is no prospect of his being able to attend the trial, or, if a female, is pregnant and likely to be delivered about the time of the trial, or if the witness intends to leave the country before trial; and orders are often made in such cases by consent." (The Supreme Court Practice 1985 Vol 1 39/1/3.) (My emphasis.)
6The English Rules have since been considerably revised to meet the exigencies of what are popularly called 'caseflow management' principles. They are now called the Civil Procedure Rules 1998. The new rule in England is 34.8 which is in wider terms than the rule it replaced but nevertheless, as the commentary in the White Book notes, it is still a procedure to be used:
'If a witness cannot attend trial … ' [Civil Procedure Vol 1 Autumn 2000 at 34.8.1].
7An examination of other jurisdictions with similar rules (ie Victoria) discloses too that the rule permitting the examination of a witness before trial has only ever been used in circumstances where it is thought that the witness may not be able to attend a trial by reason of ill health or infirmity of some description. The rule as far as I can tell has never been used in the way in which it is used in some States and Federal jurisdictions of the United States of America where pre-trial depositions are commonplace.
Nisbet DCJ noted it was not the case that the witness was going overseas and unlikely to be present at the trial and his Honour had 'very real difficulty with the appropriateness of this procedure being used in the manner sought'.[33]
[33] Defendant's submissions [12], citing Watson [5].
The defendant contends the following factors are relevant to whether to exercise the court's discretion to allow pre‑trial examination of a witness:
(a)whether a proposed witness lives outside of the jurisdiction or will be overseas and unlikely to be present at the trial;[34]
(b)whether there is evidence to suggest that a proposed witness is infirm or unable to attend a trial by reason of ill health;[35]
(c)whether there is evidence of any significant burden, cost or inconvenience to a proposed witness attending trial;[36]
(d)whether it will save court time;[37]
(e)for it to be necessary for the purposes of justice for a witness to be examined before trial, the witness must be unable to attend the trial, and there must be evidence of that fact;[38]
(f)it is undesirable to order that a witness be examined prior to trial if the circumstances are not pressing, and where all interlocutory matters have not been completed.[39]
[34] Defendant's submissions [13.1], citing Marsah & Ors v Commonwealth Bank of Australia[2006] WASC 309[15] and Watson [5].
[35] Defendant's submissions [13.2], citing Marsah [15], Watson [7] and Millie Nominees Pty Ltd v Discount Factors Pty Ltd [1].
[36] Defendant's submissions [13.3], citing Marsah [15].
[37] Defendant's submissions [13.4], citing Idoport [28].
[38] Defendant's submissions [13.5], citing De Garis [55]-[56].
[39] Defendant's submissions [13.6], citing Millie [3].
The defendant contends there are material differences between the Commonwealth and New South Wales provisions considered in some of the authorities relied on by the plaintiffs, and O 38 r 1. For example, in relation to Part 27 r 1A of the Supreme Court Rules 1970 (NSW) (Repealed), the defendant contends it differed from O 38 r 1 in that the rule did not require a party to demonstrate that it was necessary for the purposes of justice that a witness be examined before trial as required under O 38 r 1.[40]
[40] Defendant's submissions [17].
The defendant submits the facts in Idoport are highly unusual, distinguishable from this case, and the decision cannot be relied on to support general propositions in the manner advanced by the plaintiffs. Idoport concerned three sets of proceedings being heard together with claims for damages in excess of $50 billion. The proceedings were protracted and highly contentious, with more than 50 judgments being delivered in the five years the proceedings were on foot.[41]
[41] Defendant's submissions [19], [22], Idoport [1], [3].
In Idoport, when faced with the possibility of a final hearing taking up to three and a half years, Einstein J observed the need for the court to take 'a major new step by way of being proactive in relation to the ongoing case management of the final hearing in the current litigation which has now developed into no less than an extraordinary saga'.[42]
[42] Defendant's submissions [20], citing Idoport [8].

Einstein J noted the rule under Part 27 r 1A was 'clearly intended to apply to situations where, for some reason, the witness is unable to attend the hearing'. However, in circumstances where cross examination of 45 expert witnesses was estimated to take a year of court hearing time, Einstein J concluded the application of the rule was appropriate in the circumstances and he was willing to take the unusual step to appoint an examiner to examine the 45 experts.[43]
[43] Defendant's submissions [21], citing Idoport [28], [70].
The defendant contends the plaintiffs have not adduced evidence which demonstrates any risk that Mr and Mrs Williams will be unable to give evidence at trial. There is no evidence they are suffering any medical conditions or infirmity to create a risk that they will die before the trial or be unable to give evidence at trial. The defendant submits the plaintiffs have not established why it is necessary for the purposes of justice for the court to depart from its usual practice.[44]
[44] Defendant's submissions [25].
Secondly, an unsubstantiated 'possibility' of age‑related illnesses and general mental decline is not a valid reason for the court to find that Mr and Mrs Williams will be unable to give evidence at trial. Such a hypothetical possibility is evident in all court proceedings in relation to any witness. The defendant contends there is no authority that supports the use of O 38 r 1 in the manner proposed by the plaintiffs.[45]
[45] Defendant's submissions [26].
Thirdly, the defendant submits that if Mr and Mrs Williams are aged 73 and 72 as contended by the plaintiffs, the current life expectancy in Australia is 81.3 years for males and 85.4 years for females and there is no reason to believe the witnesses are in a high risk category.[46]
[46] Defendant's submissions [27], citing Australian Bureau of Statistics. “Life tables”. ABS, 2019-2021, <>
Fourthly, based on the plaintiffs' allegation that both Mr and Mrs Williams witnessed Suzanne's will, the discretion in O 38 r 1 would only be exercised in the event both witnesses were unable to attend the trial. The defendant contends the plaintiffs have adduced no evidence that supports this unlikely possibility eventuating.[47]
[47] Defendant's submissions [28].
Fifthly, in the event Mr and Mrs Williams are unable to attend the trial in person, given the advancing technologies now used by the courts, it will be possible for the evidence to be given by video link (if appropriate). The use of such technology alleviates any possibility that the witnesses will both be unable to attend the trial in person to give evidence.[48]
[48] Defendant's submissions [29].
Finally, the defendant contends the alleged 'proposed evidence' is inconsistent with Mr Beere's evidence that he does not recall preparing a will for Suzanne.[49] As such, the probative weight of the proposed evidence is doubtful in the circumstances.
[49] Defendant's submissions [30], First Edwards Affidavit, attachment ATE4.
The defendant submits the application should be dismissed with costs.[50]
[50] Defendant's submissions [32].

Legal framework and principles

Order 38 r 1 of the Rules of the Supreme Court 1971 (WA) provides:
Power to order depositions to be taken
(1)The Court may in any cause or matter, if it appears necessary for the purposes of justice, make an order in Form No. 25 for the examination of any witness or person upon oath before a judge, or an officer of the Court, or any other person, at any place in the State.
(2)An order under subrule (1) may be made on such terms as the Court thinks fit.
(3)The Court may give directions as to the procedure to be followed in and in relation to the examination.
Accordingly, the question is whether it is necessary for the purposes of justice, that an order should be made for the examination of Mr and Mrs Williams.
It is apparent from the authorities that the discretion under O 38 r 1 is exercised sparingly and confined to cases in which it appears 'necessary for the purposes of justice'. When the discretion has been exercised, it has primarily been in circumstances where the witness in question is likely to be unable to attend the trial.
In Millie Nominees Pty Ltd v Discount Factors Pty Ltd (Supreme Court of Western Australia Full Court, 1987, Lib No 6934, unreported, BC8701720), in circumstances where a plaintiffs' witness was about to undergo major surgery, the Full Court of the Supreme Court of Western Australia made an order that the witness be examined prior to trial. The Full Court accepted there would be some prejudice to the defendant in doing so and stated:
It is obviously undesirable to make an order such as this if not need be, if the circumstances are not pressing – where all interlocutory matters have not been completed.
I accept the defendant's submissions in relation to Idoport. Namely, the facts in that case, involving three sets of proceedings being heard concurrently, damages claims in excess of $50 billion and an estimated final hearing of three and a half years' duration involving the cross-examination of expert witnesses over the course of a year, are highly unusual and distinguishable from this case.
In his decision, Einstein J observed Part 27 r 1A was 'clearly intended to apply to situations where, for some reason, the witness is unable to attend the hearing'. However, his Honour justified the application of the rule in the specific circumstances of that case for the sole purpose of saving court time.[51]
[51] Idoport [28]-[29].
In Watson, Nisbet DCJ was determining an appeal from a Registrar's decision to refuse an application for orders relating to the examination of a witness before trial. His Honour stated:
7An examination of other jurisdictions with similar rules (ie Victoria) discloses too that the rule permitting the examination of a witness before trial has only ever been used in circumstances where it is thought that the witness may not be able to attend a trial by reason of ill health or infirmity of some description. The rule as far as I can tell has never been used in the way in which it is used in some States and Federal jurisdictions of the United States of America where pre-trial depositions are commonplace.
8 In the absence of a specific power conferred by the Rules and of any higher authority suggesting O 38 r 1 may be used in the manner proposed by the plaintiff in that case, I do not propose to be the first to permit its use in this fashion as this would involve a radical departure from the way in which evidence may be gathered before trial such that parties unable to obtain sufficient evidence could fish for evidence that might support a case without the limits imposed by the natural fetter on litigation, namely the risk of being ordered to pay the costs of the action.
In the circumstances of that case, there did not appear to be any evidence before Nisbet DCJ that the witness in question would be unable to attend the trial.
In Marsah, Master Sanderson identified a number of factors to be taken into account in an application made pursuant to O 38 r 1. He concluded there were no grounds for making the order sought, the application should never had been made and it was doomed to fail.[52]
[52] Marsah [16].
The Master found:
(a)none of the proposed witnesses to be examined lived outside the jurisdiction;
(b)there was no evidence of any significant burden, cost or inconvenience to any of the proposed witnesses in attending trial;
(c)there were significant interlocutory matters still to be resolved and the plaintiffs had not yet provided (and had not yet been ordered to provide) witness statements;
(d)all of the proposed witnesses, save for one, were under the age of 65 years;
(e)there was no evidence to suggest any of the proposed witnesses were infirm; and
(f)additionally, the defendant would be prejudiced by such an order being made.[53]
[53] Marsah [15].

Disposition

In effect, the plaintiffs seek to preserve the evidence of Mr and Mrs Williams to guard against the risk that they may be unable to give evidence at trial. The plaintiffs rely on evidence which indicates (albeit, not definitively) that Mr and Mrs Williams are in their early 70s. However, the plaintiffs have not identified nor adduced evidence to demonstrate any specific risk regarding Mr or Mrs Williams' inability to give evidence at trial. The plaintiffs refer to general risks such as the possibility of age related illnesses and general mental decline, but no circumstances or risks particular to Mr and Mrs Williams.
In the specific circumstances of this proceeding, I am not persuaded it is necessary for the purposes of justice to make orders pursuant to RSC O 38 r 1 as sought by the plaintiff. The matters that led me to form this conclusion are as follows.
First, based on the material before the court, it appears Mr and Mrs Williams live in Augusta, Western Australia. There is no evidence to suggest they live outside the jurisdiction or will be outside the jurisdiction at the time of trial.
Secondly, there is no evidence to suggest there would be any significant burden, cost or inconvenience to Mr or Mrs Williams in attending trial.
Thirdly, there is no evidence to suggest Mr or Mrs Williams are in ill health or infirm.
Fourthly, it is not suggested that there would be any saving of court time in Mr or Mrs Williams being examined prior to trial (rather than giving evidence at trial).
I accept the proposed evidence is on a discrete issue and the plaintiffs consider it crucial to their case. Further, that Mr and Mrs Williams currently appear to be the only witnesses who may give direct evidence of Suzanne's execution of a will.
However, no evidence has been adduced to demonstrate that Mr or Mrs Williams will be unlikely or unable to give evidence at trial. There does not appear to be any pressing circumstances. Further, all interlocutory steps have not yet been completed and witness outlines have not yet been ordered.
In considering all of the above matters, I am not satisfied it is necessary for the purposes of justice to exercise my discretion to make orders for the examination of Mr and Mrs Williams pursuant to RSC O 38 r 1. The application will be dismissed.
Costs should follow the event. The plaintiffs should pay the defendant's costs of the application, to be taxed if not agreed.

Conclusion and orders

For these reasons, I propose to make orders in the following terms:
1.The affidavit of Lachlan Edward Rigg sworn on 19 April 2023 be removed from the court record.
2.The plaintiffs' application by letter filed 30 March 2023 for orders pursuant to the Rules of the Supreme Court 1971 (WA) O 38 r 1 is dismissed.
3.The plaintiffs pay the defendant's costs of the application, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to Registrar Hosking
18 AUGUST 2023