Simon DIRK Kenworthy-Groen as administrator of the estate of William Grove v Grove - [2022] WASCA 120

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SIMON DIRK KENWORTHY-GROEN as administrator of the estate of WILLIAM GROVE -v- GROVE [2022] WASCA 120
CORAM:   MURPHY JA
MITCHELL JA
VAUGHAN JA

HEARD:   25 AUGUST 2022
DELIVERED          :   25 AUGUST 2022
PUBLISHED           :   8 SEPTEMBER 2022
FILE NO/S:   CACV 107 of 2021
BETWEEN:   SIMON DIRK KENWORTHY-GROEN as administrator of the estate of WILLIAM GROVE
First Appellant
SIMON DIRK KENWORTHY-GROEN as trustee for THE GROVE FAMILY HOUSE TRUST
Second Appellant
SIMON DIRK KENWORTHY-GROEN as trustee for THE GROVE GRAND FATHER FAMILY TRUST
Third Appellant
AND
JOHN WILLEM GROVE
First Respondent
NICHOLAS WILLIAM GROVE
Second Respondent
ANDREW HENDRIK GROVE as trustee for THE GROVE FAMILY HOUSE TRUST
Third Respondent
CAMERON JACOB GROVE
Fourth Respondent
ROBERT AARON GROVE
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: GROVE -v- SIMON DIRK KENWORTHY-GROEN as administrator of the estate of WILLIAM GROVE [2021] WASC 374
File Number            :   CIV 2348 of 2016

Catchwords:

Practice and procedure - Subpoena - Subpoena set aside by master on application - Whether subpoena served a legitimate forensic purpose

Appeal - Interlocutory appeal - Whether leave to appeal should be granted - Where appellants have not established master's decision was wrong - Where no substantive right adversely affected by decision - Where no substantial injustice in leaving decision unreversed

Legislation:

Family Provision Act 1972 (WA), s 6(1)
Rules of the Supreme Court 1971 (WA), O 36B r 8A(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	L A Tsaknis
Second Appellant	:	L A Tsaknis
Third Appellant	:	L A Tsaknis
First Respondent	:	P D C Robinson
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

Solicitors:

First Appellant	:	Fort Knox Legal
Second Appellant	:	Fort Knox Legal
Third Appellant	:	Fort Knox Legal
First Respondent	:	Williams & Hughes
Second Respondent	:	MDS Legal
Third Respondent	:	Dwyer Durack
Fourth Respondent	:	MDS Legal
Fifth Respondent	:	MDS Legal

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

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Grove v Kenworthy-Groen [2021] WASC 374
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Stanley v Layne Christensen Company & Ors [2004] WASCA 50

REASONS OF THE COURT:

Overview

The appellants, Simon Kenworthy-Groen in his capacities as administrator of the estate of William Grove and trustee of various trusts, applied for leave to appeal to challenge a decision of Sanderson M to set aside a subpoena to produce documents.[1]
[1] Grove v Kenworthy-Groen [2021] WASC 374 (primary reasons).
The subpoena was issued on the application of the appellants in litigation commenced by the first respondent, John Grove, under s 6(1) of the Family Provision Act1972 (WA). The subpoena was issued to Sally Hudson, the first respondent's accountant. The schedule of documents required by the subpoena is reproduced in the Appendix to these reasons.
At the commencement of the appeal hearing, the court informed counsel for the parties that it would proceed to hear submissions on the question of leave to appeal and then consider the further conduct of the appeal. After hearing from counsel the court determined that leave to appeal should be refused for reasons to be provided in due course. It followed that the appeal was to be dismissed. Orders were made accordingly.
These are our reasons for refusing the application for leave to appeal.

Background facts

The first respondent is a son of the late William Grove. So too are Mr Kenworthy-Groen and Andrew Grove (the latter, in his capacity as trustee of a trust, being the third respondent).
Mr Kenworthy-Groen is the administrator of the estate of William Grove. William Grove died on 30 October 2015 leaving a will dated 11 September 2015. The estate is large. The master recorded that as at the date of William Grove's death his net estate was some $28.5 million. As at 21 February 2020 the value of the estate was approximately $24.6 million.[2]
[2] Primary reasons [1.2].
The first respondent is not a beneficiary under William Grove's will.
On 8 August 2016 the first respondent commenced proceedings for provision from the estate pursuant to s 6(1) of the Family Provision Act. The first respondent has sworn two affidavits in support of that application. In the first affidavit, contrary to the requirements of the Consolidated Practice Directions, the first respondent did not provide a statement of his assets and liabilities.[3] There was, however, mention of some of the first respondent's assets. The first respondent also referred to certain corporate entities with which he and his wife were associated.[4] The second affidavit referred to the first respondent's financial situation.[5] It annexed a statement identifying the assets and liabilities of the first respondent, his wife and a company named Talmalmo Holdings Pty Ltd.[6] The first respondent annexed his income tax notice of assessment for the year ended 30 June 2011[7] and his income tax return for the year ended 30 June 2015[8] and referred to his wife's income tax returns for 2010, 2012, 2013, 2014 and 2015 (which were not annexed to the affidavit).[9]
[3] Compare Consolidated Practice Directions PD 9.2.2 par 14.
[4] Primary reasons [1.4].
[5] Affidavit of J W Grove sworn 9 November 2017 pars 221 - 227 GAB 95 - 96.
[6] Affidavit of J W Grove sworn 9 November 2017 attachment 'JWG-76' GAB 330 - 333.
[7] Affidavit of J W Grove sworn 9 November 2017 attachment 'JWG-77' GAB 334.
[8] Affidavit of J W Grove sworn 9 November 2017 attachment 'JWG-77' GAB 335 - 340.
[9] Affidavit of J W Grove sworn 9 November 2017 par 226 GAB 96.
The first respondent deposed, in substance, to his wife and he holding net assets of $596,807 and 'minimal superannuation' of $72,000.[10]
[10] Affidavit of J W Grove sworn 9 November 2017 pars 223, 227 GAB 95 - 96.
On 19 April 2021 the master ordered that the parties have leave to issue subpoenas to produce documents.[11] Leave was required under O 36B r 2(2B)(c) of the Rules of the Supreme Court 1971 (WA) (RSC). The form of the subpoenas that the appellants intended to issue was not before the master at the time that the order for leave was obtained.
[11] BAB 1.
The subpoena to produce documents addressed to Ms Hudson was issued by the court on 5 July 2021. As previously mentioned, the schedule of documents required by the subpoena is reproduced in the Appendix to these reasons. Three things should be noted. First, the subpoena was concerned with the first respondent, his wife, five named companies (being companies in which either the respondent or his wife had a suggested interest or involvement) and as a catch-all any other company, trust or partnership in which one or both of the first respondent and his wife had a relevant interest as described in the subpoena. Second, the subpoena required Ms Hudson to produce all documents held 'pertaining' to those entities including correspondence, advice, file notes, faxes, emails, financial statements, reports, accounts, loan applications, loan approvals, valuations and agreements. Third, the documents to be produced were all documents bearing a date or created during the period 29 June 2013 to 31 December 2020 (some 7 and a half years).
Ms Hudson sought and obtained an extension of time to comply with the subpoena.
On 19 July 2021, by letter of that date, the first respondent applied to set aside the subpoena.[12] The first respondent relied on O 36B r 8A(2) RSC and the inherent jurisdiction of the court. Five matters were raised in support of the application to set aside the subpoena. First, that the subpoena was oppressive. Second, that the subpoena was being used for the purpose of obtaining discovery from a non-party. Third, that the subpoena was vague and uncertain. Fourth, that the court's process was being used for an illegitimate purpose. Fifth, that the subpoena did not serve a legitimate forensic purpose.[13]
[12] Affidavit of A Van Der Vyver sworn 7 September 2021 attachment 'AVV-6' GAB 25.
[13] ts 41.

The master's decision

The master held that the subpoena was not oppressive: Ms Hudson had informed the court, in correspondence, that given time she could comply with the subpoena.[14] The master also held that the subpoena was not vague and uncertain.[15] In so doing the master observed, in our view correctly, that the subpoena was wide - it was difficult to see what documents might be in Ms Hudson's possession that related to the first respondent or his wife that would not be the subject of the subpoena. Ms Hudson would have to produce virtually every document in her possession that related to one or both of the first respondent or his wife.[16]
[14] Primary reasons [7].
[15] Primary reasons [8].
[16] Primary reasons [8].
The master said, however, that there were two grounds on which the subpoena should be set aside. First, that the subpoena was being used for the purpose of obtaining discovery from a non-party.[17] As to this the master stated:
In my view, this is a clear case where the subpoena does nothing more or less than require a non-party to give discovery. The categories of documents are so wide they would clearly fall into the rubric of documents related to a matter in issue - in order words, the subpoena effectively picks up the requirements of discovery. The focus is not on documents which are directly relevant or relevant to a particular transaction. They are broad in their scope and they cover a wide period of time. That being the case, the use of the subpoena is effectively a means of obtaining discovery from a non-party and for that reason, the subpoena ought be set aside.[18]
[17] Primary reasons [9].
[18] Primary reasons [10].
The master also stated that the subpoena was an attempt to circumvent the restriction on discovery that applied to claims under the Family Provision Act.[19]
[19] Primary reasons [12].
These findings are challenged by grounds 1 and 3.
The master then referred to another, closely related, reason why the subpoena could not stand. The master mentioned that in Family Provision Act litigation it was generally not the case that discovery between the parties will be ordered.[20] In this respect PD 9.2.2 of the Consolidated Practice Directions provides:
Discovery
35.The Court does not usually order discovery in applications under the [Family Provision Act].
36.Exceptional circumstances would need to be demonstrated before an order for discovery would be made prior to mediation.
37.If a particular need arises for discovery, then the application is to be supported by affidavit and a memorandum of conferral pursuant to O 59 r 9 of the Rules.
[20] Primary reasons [11].
Accordingly, as the master observed, discovery may be ordered, but it is unusual.[21] The master then explained why that was so. He stated:
The reason why discovery is not generally ordered in Family Provision Act claims has to do with the nature of the claim itself. What the Act requires is for a claimant to establish at the date of death of the deceased, the will did not provide adequately for the claimant's proper maintenance, support, education or advancement in life. It is up to the claimant to provide evidence to support his or her claim. It is perfectly proper for an executor or a beneficiary under the will whose interests might be affected by the claim, to test the veracity of the claimant's contentions. At the hearing of an action, an executor or beneficiary may point to a failure on the part of a claimant to make full disclosure of his or her financial position. But it is not for a defendant to mount a positive case. If the claimant fails to satisfy the court a full and frank disclosure has been made or some financial interest has not been revealed, then the claim may well fail. But the litigation envisaged by the Act does not anticipate the same extensive pre-trial procedures as a conventional civil action.[22]
[21] Primary reasons [11].
[22] Primary reasons [11].
This explanation - and in particular the suggestion that it was not for the defendants to mount a positive case - was the subject of ground 2.
The master then concluded that the subpoena was an attempt to circumvent the restriction on discovery.[23] He reasoned as follows:
If there was an obligation on [the first respondent] to give discovery, what further documents could be provided above and beyond those subpoenaed by [the appellants]? The answer must be very few, if any. After all, what is at issue is the financial position of [the first respondent] as at the date of death of the deceased and then his financial position as at the date of trial. If anything, the scope of the documents to be discovered would be less than the scope of the documents sought in the subpoena. Any documents which came into existence after the date of death of the deceased - except perhaps for those documents which were records of the financial year in which the deceased died - would not be related to a matter in issue. That being the case, it is simply not open to [the appellants] to argue this subpoena is not discovery by alternate means.[24] (emphasis added)
[23] Primary reasons [12].
[24] Primary reasons [12].
By ground 4 the appellants challenged the italicised passage of the master's reasons as reproduced at [21] above.

The grounds of appeal

The proposed grounds of appeal are unnecessarily prolix. We will not repeat them in full. It will aid understanding if we summarise the effect of the grounds.
In substance grounds 1 and 3 addressed the master's finding that the subpoena was being used for the purpose of obtaining discovery:
1.By ground 1 the appellants contended that the master erred in fact and law in determining that, in effect, the subpoena was a means of obtaining discovery from a non-party and circumventing the restriction on discovery that applies to cases of this kind.
2.By ground 3 the appellants contended, in the alternative, that even if in effect the subpoena was seeking discovery, the master erred in fact and law in holding that was a sufficient reason to set aside the subpoena; and, in circumstances where the subpoena was issued for a legitimate forensic purpose and with leave, the master ought not to have set aside the subpoena.
Ground 2 focussed on the master's observation reproduced at [19] above that it was not for a defendant to mount a positive case. That was said to be an error in fact and law. The appellants contended that:
1.The master ought to have held that the subpoena was issued for a legitimate forensic purpose and it was necessary for the appellants to have access to material relevant to the financial position of the first respondent and his wife to secure a fair trial.
2.The master ought to, but did not, have regard to the circumstance that he made an order giving the appellants leave to issue the subpoena.
The second aspect of ground 2 was entirely without merit. The master's order of 19 April 2021 was in general terms granting leave. It did no more than grant permission to the issue of subpoenas generally. The form of the proposed subpoenas was not before the master. There can be no suggestion that, by the order for leave, the master approved of or otherwise gave his imprimatur to the form of this subpoena. This allegation of error was specious and should never have been made.
Finally, by ground 4, the appellants contended that the master erred in law in holding that documents pertaining to the first respondent's financial position would not be related to a matter in issue and that therefore the subpoena sought documents which did not give rise to a legitimate forensic purpose.
It is apparent from the terms of ground 4 that the appellants accept that the master made an implicit finding that the subpoena did not give rise to a legitimate forensic purpose. The first respondent also contended that the master made an implicit finding that the subpoena did not serve a legitimate forensic purpose.[25] We accept that this is how the master's reasons should be understood. The master directed himself, correctly, that a subpoena may be set aside where it does not have a legitimate forensic purpose.[26] The master went on to consider what a legitimate forensic purpose entailed.[27] The master found that the subpoena sought documents which went beyond the scope of that permissible in discovery - ie documents that were not related to a matter in issue.[28] In so finding the master implicitly accepted the first respondent's contention that the width of the subpoena meant that it did not serve a legitimate forensic purpose.
[25] First respondent's submissions pars 4, 32 - 33 WAB 27 - 28, 35 - 36.
[26] Primary reasons [3]. See also [4].
[27] Primary reasons [4].
[28] Primary reasons [12].
The appellants had to set aside that implicit finding if they were to succeed in the appeal. That is why ground 4 challenged the master's implicit finding and sought in its place a finding that there was a legitimate forensic purpose in seeking the documents the subject of the subpoena.

Leave to appeal

The order setting aside the subpoena was an interlocutory order. Accordingly, the appellants required leave to appeal.[29] The appellants acknowledged the necessity for leave to appeal.[30] However, apart from a perfunctory paragraph referring to the test for leave to appeal,[31] the appellant's case did not address the question of leave. In particular, the appellants did not address why there should be leave to appeal in this case.
[29] Supreme Court Act 1935 (WA) s 60(1)(f).
[30] WAB 2, 25 (par 1).
[31] Appellants' submissions par 1 WAB 12.
At the appeal hearing, counsel for the appellants submitted that there would be substantial injustice if the decision below was left unreversed as:[32]
1.This was a substantial estate - the documentary request was proportionate to the subject matter of the dispute.
2.There had been non-disclosure or at least inadequate disclosure of the first respondent's assets and liabilities. (For the purposes of what follows and the application for leave to appeal, but not otherwise, this contention may be accepted. We have already referred to the first respondent's failure to comply with the Consolidated Practice Directions in relation to his first affidavit. The disclosure in the second affidavit was haphazard at best and did not address numerous entities in which the first respondent or his wife had a suggested interest or involvement.)
3.Without access to documentary financial information of the kind sought by the subpoena the appellants and the other defendants to the primary proceedings would be irreparably prejudiced in their defence of the claim.
4.The documents had to be obtained by subpoena as discovery was unavailable (or at least not usually available) given the nature of the proceedings. In any event injustice would ensue if the appellants were required to obtain the documents sought by discovery. In this respect it was suggested that the first respondent's non-disclosure justified proceeding by way of subpoena so as to obtain the documents from an independent third party thereby avoiding any issue of non-compliance.
[32] Appeal ts 2 - 7.
Those submissions were tempered somewhat in the ensuing discussion between counsel for the appellants and the court. Counsel accepted, in substance, that the scope of the subpoena went beyond what was required for the purpose of the primary proceedings. It would, for example, capture the accountant's annual Christmas card list if that list mentioned the first respondent or his wife by name.[33] What was required - and what counsel for the appellants informed the court was effectively sought - were financial statements of the first respondent, his wife and their relevant entities at or around the time of William Grove's death and as at the present day.[34] Counsel for the appellants also accepted that the court's usual practice in relation to proceedings under the Family Provision Act did not preclude an application for specific discovery[35] of such documents.[36] To the contrary, counsel for the appellants acknowledged that in Family Provision Act proceedings specific discovery of a plaintiff's income tax returns and bank statements is routinely ordered without demur.[37]
[33] Appeal ts 5.
[34] Appeal ts 4 - 5.
[35] The terminology of 'specific discovery' being used in contradistinction to 'general discovery' or 'further and better discovery', ie it is used here and throughout these reasons as referring to an application for specified documents or specified classes of documents.
[36] Appeal ts 3.
[37] Appellants' submissions par 17 WAB 20.

Counsel for the appellants conceded that in theory (or as a matter of logic) this meant there could be no substantial injustice if the order setting aside the subpoena was left undisturbed.[38] However, counsel contended that the appellants would suffer substantial injustice in practical terms - advancing the unduly pessimistic and highly speculative submission that the parties would be back before this court following an application for specific discovery.[39] Counsel for the appellants contended that there was substantial injustice in having to go through such a process.[40]
[38] Appeal ts 4.
[39] Appeal ts 10.
[40] Appeal ts 5 - 7.
Counsel for the respondents submitted that the appellants had not made out a case for leave to appeal. Counsel argued that nothing raised by the appellants amounted to anything more than procedural inconvenience. That could not, in counsel's submission, satisfy the requirement of substantial injustice.[41] Counsel for the respondents said there were two reasons why the suggested prejudice was illusory. First, in accordance with the Consolidated Practice Directions, pre-trial directions would be made for the adducing of financial records before trial.[42] Second, in any event, it was open to the appellants to make an application for specific discovery of the first respondent's, his wife's and the relevant entities' financial statements at or around the time of William Grove's death and as at the present day.[43]
[41] Appeal ts 8.
[42] Appeal ts 8 - 9. See also Consolidated Practice Directions PD 9.2.2 par 21.
[43] Appeal ts 8 - 9.
In the latter respect, counsel for the first respondent accepted on behalf of the first respondent that:
·such documents (ie financial statements for the first respondent, his wife and their relevant entities at or around the time of William Grove's death and as at the present day) were clearly relevant to the issues in the primary proceedings;[44]
·to the extent such documents were held by the first respondent's accountant rather than the first respondent, the documents were nevertheless in the first respondent's possession, custody or power;[45]
·there was no issue estoppel or other such preclusion which would prevent the appellants seeking and obtaining an order for specific discovery of such documents.[46]
[44] Appeal ts 8, 9.
[45] Appeal ts 9.
[46] Appeal ts 9.
The principles that apply to an application for leave to appeal in respect of an interlocutory order are well established. For present purposes it is sufficient to repeat what was said in this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd:
Where leave to appeal is necessary, leave may be granted whenever the interests of justice require it. The principles on which this court considers whether to grant leave to appeal are well-established:
1.The requirement for leave is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary interlocutory appeals.
2.Appellate courts exercise particular caution (sometime referred to a 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure.
3.There is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the Commercial and Managed Cases List.
4.Ordinarily, while not being rigid or exhaustive criteria, the considerations to be taken into account by this court upon an exercise of the discretion to grant or refuse leave to appeal are:
(a)first, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; and
(b)second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. However, the requirement to show substantial injustice is no more than a guideline for the exercise of what is a broad discretion.
The two considerations bear on each other. The degree of doubt that is sufficient in one case may be different from that required in another. It will be affected by the extent of the risk of substantial injustice if leave were refused, supposing the decision to be wrong.
5.The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected.
6.Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
These considerations provide general guidance only. Thus, while the question of leave is normally considered within the rubric of these organising principles, there will be cases raising special considerations. The touchstone remains the interests of justice. The nature and risk of the injustice said to result from the order appealed from will generally be a material consideration. There is a far greater risk of injustice where an interlocutory decision determines a substantive right. In such a case leave will be granted more readily. By contrast, as is mentioned in the authorities establishing the principles set out at [the paragraph above] above, a 'tight rein' must be kept on appeals involving interlocutory decisions on matters of practice and procedure.[47] (original emphasis) (citations omitted)
[47] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].
The interests of justice did not warrant leave to appeal in the present case. Leave to appeal was refused for the following four reasons.
First, for the reasons we develop at [47] - [56] below, the appellants have not established that the master's decision to set aside the subpoena is wrong. Nor is the master's decision attended by sufficient doubt to warrant reconsideration.
Second, and most importantly, this is not a case where substantial injustice will result if the master's decision is left unreversed even assuming that the master was wrong to set aside the subpoena. The appellants' substantive rights are not adversely affected by the setting aside of the subpoena. There is no relevant 'right' that has been infringed.
The appellants did not identify any substantive right that would be adversely affected if the decision under appeal remained unreversed. The appellants instead contended that the due administration of justice necessitated that they and the other defendants to the primary proceedings have access to the subpoenaed documents to secure a fair trial.
It may be accepted that the appellants had a legitimate forensic purpose in seeking some of the documents sought by the subpoena. A claimant's financial position will be relevant to a claim for provision under s 6(1) of the Family Provision Act. Consistent with the two-stage process under the Act, the claimant's financial position is a relevant consideration as at the date of death of the deceased and the date of any order for provision (in practical terms the latter may be equated with the date of the trial). The master appreciated that this was the case. The master observed, correctly, that the matters in question in the proceedings included the financial position of the first respondent as at the date of William Grove's death and the first respondent's financial position as at the date of trial.[48]
[48] Primary reasons [12].
The mere fact that the appellants had a legitimate forensic purpose in seeking some of the subpoenaed documents does not establish that there will be substantial injustice if the order challenged by the appeal remains undisturbed. That would only be the case if there was no other readily available means to obtain documents going to the first respondent's financial position at the relevant times. However, as counsel for the appellants accepted, that is not the case. The appellants may obtain documents of this kind by making application for specific discovery. Nothing in the Consolidated Practice Directions or the RSC precludes such an application. To the contrary par 37 of PD 9.2.2 contemplates that such an application may be brought.
It follows that no substantial injustice can result if the master's decision is left unreversed.
The appellants' remaining arguments as to substantial injustice were misconceived. There is no substantial injustice to the appellants in having to proceed by way of an application for specific discovery. As counsel for the first respondent submitted, procedural inconvenience is not substantial injustice. There is, in any case, no real burden in such an application - all the more so given the concessions proffered on behalf of the first respondent as recorded at [35] above. An application for specific discovery is a relatively routine and everyday occurrence in the course of litigation. The in terrorem submission that the parties will be back to this court after an application for specific discovery is without merit. The first respondent's acceptance of the relevance of financial statements at the key times might well avert the necessity for any application at all. In any event, if counsel for the appellants' prognostication proves correct, any substantial injustice that arises will be assessed on the basis of leaving the refusal of an order for specific discovery unreversed rather than leaving the order to set aside the subpoena unreversed.
Third, the setting aside of the subpoena concerned a matter of practice or procedure.
Fourth, Sanderson M is the de facto case manager of the primary proceedings together with various related matters. That is evident in as much as the orders granting leave to issue subpoenas were made at a strategic conference where the master was seized of the primary proceedings and various related matters to the primary proceedings that are being litigated in the General Division. In that respect the orders setting aside the subpoena were made by the master in the context of the master exercising ongoing case management oversight of the proceedings. There is a particular need for this court to refrain from appellate interference in relation to such orders - a restraint that applies all the more so where the relevant orders cannot cause any substantial injustice and do not adversely affect any substantive rights.

The merits of the appeal

The absence of any substantial injustice as a result of the decision to set aside the subpoena is manifest. That alone, in the circumstances of this matter, would have been sufficient to refuse leave to appeal. However, the appeal also lacked merit. It is appropriate to explain why this is so in relatively brief terms given that leave to appeal should be refused in any event - it not being in the interests of justice to grant leave due to the appellants' failure to establish any substantial injustice.
Broadly speaking, the grounds of appeal raised two issues. First, did the master err in finding that the subpoena was tantamount to discovery (ground 1); and, if not, did the master err in any event in holding that was sufficient reason to set aside the subpoena (ground 3)? Second, did the subpoena serve a legitimate forensic purpose (grounds 2 and 4)? It will be appreciated that the second issue fed into the alternate aspect of the first issue. The appellants contended that even if the subpoena was tantamount to discovery it should not have been set aside as the subpoena was issued for a legitimate forensic purpose.
It is convenient to first address whether the subpoena served a legitimate forensic purpose.
The appellants submitted that the subpoena sought 'specified financial information' in respect of the first respondent, his wife and their relevant entities as at the date of William Grove's death and subsequently.[49] It is true that the documents sought by the subpoena would include documents meeting the general description of financial information - in particular as it may be inferred that the first respondent's accountant would hold many documents meeting such a description. But the subpoena was not confined to documents relating to the first respondent's financial position. It extended to all documents - including correspondence, advice, file notes, faxes, emails, reports, loan applications, loan approvals and agreements - pertaining to one or more of the first respondent, his wife or their relevant entities. Any document held by Ms Hudson referring to one or more of the 'John Grove Entities' or the 'Kerry Grove Entities' (as defined in the subpoena) was within the subject matter delimited by the subpoena. Accordingly, the scope is very wide and materially exceeds documents relating to the first respondent's financial position. Nor is the subpoena limited to the first respondent's financial position as at the date of William Grove's death or currently. The subpoena seeks documents from 29 June 2013 to 31 December 2020. William Grove died on 30 October 2015 - more than two years after the commencement of the period for which documents were sought.
[49] Appellants' submissions par 11 WAB 18.
In Stanley v Layne Christensen Company & Ors the predecessor to this court noted the necessity that there be a 'legitimate forensic purpose' for issuing a subpoena.[50] The Full Court approved the following propositions in connection with whether there was a legitimate forensic purpose:[51]
1.A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact.
2.In assessing whether a legitimate forensic purpose exists it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. Thus, whether a document is necessary to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has apparent relevance even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence.
3.No narrow view ought to be taken as to the legitimate purposes of a subpoena.
4.In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.
[50] Stanley v Layne Christensen Company & Ors [2004] WASCA 50 [9].
[51] Stanley v Layne Christensen Company & Ors [9].
In relation to the third proposition, legitimate forensic purposes may include purposes relevant to the management of cases prior to trial including preparation for mediation and the encouragement of settlement.[52]
[52] Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 [22] - [23].
Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.[53]
[53] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [11].
The subpoena issued on the application of the appellants exceeded a legitimate forensic purpose. It would have been one thing had the documents sought by the subpoena been limited to documents directed to establishing the first respondent's financial position either as at the time of William Grove's death or currently. It will be appreciated that in both cases this does not limit the permissible documentary demand to a single date. Logically there is a time period before and (in the case of William Grove's date of death) a time period after the relevant dates where financial information may bear on the first respondent's financial position as at the date of William Grove's date of death and currently. In accordance with the authorities, documents concerning such periods would be apparently relevant to a factual matter in question where the documents were directed to establishing the first respondent's financial position as at the relevant dates. But in two respects the documents sought by the subpoena exceeded a legitimate forensic purpose. First, the documents required by the subpoena were not confined to documents directed to establishing the first respondent's financial position. Second, the temporal limitation provided for by the subpoena was, on any view, too wide.
Grounds 2 and 4 both failed. So too did ground 3 insofar as it was premised on it being established that the subpoena was issued for a legitimate forensic purpose. The documents sought by the subpoena exceeded a legitimate forensic purpose. It is not the case that the master ought to have held to the contrary.
Having concluded that the subpoena did not serve a legitimate forensic purpose it is not necessary to consider whether the master was in error in finding that the subpoena was being used for the purpose of obtaining discovery. To succeed in the proposed appeal the appellants had to set aside the master's implicit finding that the subpoena did not serve a legitimate purpose and establish that there was a legitimate purpose in seeking the documents the subject of the subpoena. Having failed in that contention the appeal could not succeed even if ground 1 had merit.

Conclusion and orders

For these reasons the court ordered that:
1.The appellants' application for leave to appeal dated 11 November 2021 is refused.
2.The appeal is dismissed.
3.The appellants pay the first respondent's costs of the appeal to be assessed if not agreed.
The costs order followed the event. In that respect counsel for the appellants accepted, correctly, that the appellants could not resist an order for costs given their failure on the application for leave to appeal.[54]

[54] Appeal ts 11.

Appendix

The documents to be produced under the subpoena as described in the 'Schedule of documents' to the subpoena were as follows:
The documents and things you must produce are as follows:
In relation to:
(a)John Willem Grove ("John Grove") …
(b)any company of which John Grove is a director or office holder or shareholder including the companies in paragraphs (f) to (h) below; and
(c)any trust in which John Grove is an appointor, guardian, trustee or beneficiary; and
(d)any partnership in which John Grove is a partner; and
(e)any property, including without limitation shares and intellectual property in which John Grove has an interest; and
(f)Talmalmo Holdings Pty Ltd (ACN 066 048 968); and
(g)Loric Pty ltd (ACN 009 022 842); and
(h)Qube Hammond South Development Pty Ltd (ACN 152 250 747).
(together "The John Grove Entities")

and in relation to
(i)Kerry Anne Grove ("Kerry Grove") …
(j)any company of which Kerry Grove is a director or office holder or shareholder including the companies in paragraphs (n) to (r) below; and
(k)any trust in which Kerry Grove is an appointor, guardian, trustee or beneficiary; and
(l)any partnership in which Kerry Grove is a partner; and
(m)any property, including without limitation shares and intellectual property in which Kerry Grove has an interest; and
(n)Bovee Pty Ltd (ACN 009 032 884); and
(o)Talmalmo Holdings Pty Ltd (ACN 066 048 968); and
(p)Loric Pty ltd (ACN 009 022 842); and
(q)Qube Hammond South Development Pty Ltd (ACN 152 250 747); and
(r)Splash World Pty Ltd (ACN 87 611 200 134)
(together "The Kerry Grove Entities")

All documents held by Sally Hudson pertaining to the John Grove Entities and Kerry Grove Entities, including but not limited to correspondence, advice, file notes, faxes, emails, financial statements, reports, accounts, loan applications, loan approvals, valuations and agreements

for the period 29 June 2013 to 31 December 2020.

For the purposes of this subpoena: "documents" include but is not limited to any material, records stored in electronic form which are capable of being printed onto paper or viewed by means of a computer, phone or other electronic device.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Vaughan
8 SEPTEMBER 2022