State Trustees Ltd v Edwards
[2009] VSC 57
•27 February 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 96 of 2007
| IN THE MATTER OF THE WILL AND ESTATE OF BRYAN WATSON EDWARDS (Deceased) STATE TRUSTEES LIMITED | Appellant |
| V | |
| BERNADETTE MARY EDWARDS | Respondent |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2008 | |
DATE OF JUDGMENT: | 27 February 2009 | |
CASE MAY BE CITED AS: | State Trustees v Edwards | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 57 | |
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PRACTICE – Nature of subpoena power - Immunity of State Trustees from subpoena - Appeal from Associate Justice - s.17 State Trustees (State Owned Company) Act 1994 - s 58D and 58 E Guardianship and Administration Act - s 34 - s 36 of the Victorian Civil and Administrative Tribunal Act 1998 – Held: no immunity to validly issued subpoena.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S.E. Marantelli | State Trustees Limited Legal Branch |
| For the Respondent | Mr P.N. Wikramanayake SC with Mr D. Carlisle | Simon Parsons & Co |
HIS HONOUR:
Introduction
This is an appeal from a decision of an Associate Justice of this Court on 26 August 2008 in which she dismissed an objection by State Trustees Limited (“STL”) to a subpoena issued to it on behalf of Bernadette Edwards (“Bernadette”), the daughter of the late Mr Bryan Edwards (“Bryan”) who died on 29 July 2007. That subpoena sought production of documents held by STL relevant to the dispute between Mrs Cornelia Edwards (“Cornelia”) and Bernadette over Bryan’s estate.
On 8 January 2007, STL was appointed administrator of Bryan’s legal and financial affairs.
The contest between Bernadette and Cornelia relates to the validity of a Will executed on 10 January 2007 in favour of Cornelia excluding Bernadette and her sisters.
Although STL originally relied upon some four grounds upon which to set aside the subpoena, the contest before me related to the application of a series of statutory provisions which STL argues renders it immune to compliance with the subpoena.
Factual background
On 26 April 2006, Bryan executed a Will in which Bernadette and her sisters were the beneficiaries. By November 2006, he had commenced to suffer from the effects of a brain tumour. He saw a solicitor, a Mr Gary Singer, and executed a further Will on 1 December 2007 again in respect of which Bernadette and her sisters were the beneficiaries.
On 5 December 2006, a temporary guardianship order was made by a member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) in relation to Bryan pursuant to s 22 of the Guardianship and Administration Act (“the GAA Act”).
On 12 December 2006, Bryan married Cornelia. Coincidentally, on that day the Tribunal extended the temporary guardianship order.
On 10 January 2007, Bryan executed his Will, leaving his estate exclusively to Cornelia.
STL remained Bryan’s guardian until his death on 29 July 2007.
Cornelia then sought to propound the Will as the sole executor, trustee and beneficiary of the 10 January Will.
Bernadette lodged a caveat against the grant of probate, specifying four grounds:
(a) non-compliance with s 7 of the Wills Act 1997;
(b) lack of testamentary capacity during the period shortly before and at the time of execution of the 2007 Will;
(c) the undue influence of the propounder;
(d) that the deceased did not know and approve the contents of the 2007 Will.
On 9 July 2008, Bernadette issued a subpoena requiring STL to produce:
“… all files, notes, documents, correspondence and emails in relation to the involvement of the State Trustees with Bryan Watson Edwards (date of birth 27 May 1938, now deceased, date of death 29 July 2007) during his lifetime, and in relation to his estate”.
On 12 August 2008, STL sent the Prothonotary a letter of objection.
Proceedings in this Court
On 26 August 2008, the Associate Justice dismissed the objection and ordered that the documents be produced, save for those over which STL claimed legal professional privilege.
STL’s submissions on the appeal from the Associate Justice relied upon three separate pieces of legislation to contend that it is not obliged to produce the documents pursuant to the subpoena.
(a) Section 17 of the State Trustees (State Owned Company) Act 1994 (“the STSOC Act”);
(b) Sections 58D and 58E of the GAA Act;
(c) Sections 34 to 36 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”).
Although it was originally contended on the appeal that the subpoena was oppressive, this argument was not persisted with, nor was an argument about inadequate non-particularisation of the grounds relied upon by Bernadette. The claim for legal professional privilege was resolved by the Associate Justice and was not an issue on the hearing of the appeal.
Guardianship arrangements generally
The GAA Act entitles any person to apply to the Tribunal for an order appointing either a preliminary guardian or a limited guardian in relation to a person with a disability. “Disability” is defined by the Act as meaning “intellectual impairment, mental disorder, brain injury, physical disability or dementia”.[1]
[1]Section 3.
Section 22(1) empowers the Tribunal to make an order appointing a guardian if it is satisfied that such a person “(a) is a person with a disability; and (b) is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and (c) is in need of a guardian”.
Section 32 enables any person to obtain a temporary order, which can only remain in effect for 21 days.[2]
[2]Section 33(2).
Once appointed the appointee becomes the guardian of the person suffering from the disability and is described as a “represented person”. The powers and duties of the guardian are set out under Division 3 of the Act.
The power to subpoena documents
Before turning to the provisions of the VCAT Act relied upon by STL, it may be helpful to recite a few propositions. A subpoena must have a legitimate forensic purpose which will facilitate the conduct of the proceeding; it cannot be used as part of a fishing exercise nor can it be used for the purpose of oppression. Its use (or misuse) is supervised by the Court. The power to either to secure the attendance of witnesses to testify or to enable the production of documents is an integral part of the administration of justice and facilitates a fair trial. A Court should be seized of all relevant and admissible evidence, including the production of documentary material. Documents obtained on the return of a subpoena also enable a party to pursue lines of inquiry which may lead to the adducing of other relevant evidence at the trial. The power to issue a subpoena to produce documents is not a mere matter of practice. In Commonwealth v Hospital Contribution Fund,[3] Brennan J said:
“The obligation to produce a document is antecedent to any order that might be made on the return of the subpoena. The obligation flows from the power of the Court to secure the attendance of witnesses either to testify or to produce documents, a power which has long been recognised as an essential adjunct to adjudication.”
[3](1982) 150 CLR 49, 82.
It follows, I think, that where it is said that a particular statutory provision limits the power of a party to have produced to the Court, by subpoena, documents which may be relevant to the determination of the proceeding then a Court will interpret such a provision as precluding that power only where the language used by the legislature clearly (either expressly or implicitly) ousts the right of a party to utilise that process.
It is with these principles in mind I approach the construction of the various pieces of legislation upon which STL relies.
Immunity from subpoena by reason of the VCAT Act
The relevant provisions of the VCAT Act are set out below:
“34. Secrecy
(1) This section applies to any person who is or has been-
(a) a member of the Tribunal;
(b) a registrar or other member of staff of the Tribunal;
(c) a person acting under the authority of the Tribunal.
(2) Except as permitted by this section, a person to whom this section applies must not directly or indirectly make a record of, or disclose to any person, any information about the affairs of a person acquired in the performance of functions under or in connection with this Act or an enabling enactment.
Penalty: 60 penalty units.
(3) A person to whom this section applies may record or disclose information referred to in subsection (2)-
(a) with the written consent of the person to whom the information relates; or
(b) in connection with the performance of functions under this Act or an enabling enactment.
…
…
(6) Nothing in this section applies to the recording or disclosure of-
(a) anything said or done at a hearing of the Tribunal (other than at a hearing that the Tribunal has directed to be held in private); or
(b) any decision or order of the Tribunal or the reasons for any such decision or order.
35. Prohibition on secondary disclosures
(1) A person to whom information referred to in section 34(2) is disclosed, and any employee of that person, is subject to the same obligations and liabilities with respect to the recording or disclosure of the information as they would be if they were a person referred to in section 34(1) who had acquired the information in the performance of functions under this Act or an enabling enactment.
(2) Subsection (1) does not apply to a member of the police force to whom information is disclosed under section 34(4).
36. Further restriction on disclosure
(1) Subject to this section-
(a) a person referred to in section 34(1) is not, except for the purposes of this Act or an enabling enactment, required-
(i) to produce in a court any document that has come into his or her possession; or
(ii) to disclose to a court any information that has come to his or her notice- in the performance of functions under or in connection with this Act or an enabling enactment; and
(b) a person referred to in section 35 is not, except for the purposes of this Act or an enabling enactment, required-
(i) to produce in a court any document that has come into his or her possession; or
(ii) to disclose to a court any information that has come to his or her notice- as a result of a disclosure to that person under section 34.”
STL argues that s 34(1)(c) applies because it is a person acting under the authority of the Tribunal; therefore it is immune from disclosure by reason of the provisions of s 36(1)(a)(i) or s 36(1)(b)(i), which prohibit the production to a Court of any documents in its possession. It contends that the granting of a guardianship order in its favour by the Tribunal means that it was acting under the authority of the Tribunal and is therefore not required to produce documents to the Court.
A court must endeavour to provide a construction that would promote the purpose of object underlying ss 34 and 36 of the VCAT Act.[4] The language of the provision must be construed in the context of the division as a whole and with regard to its scope and purpose.[5] The division of the VCAT Act in which the particular section is found is “Division 4 – Administration”. Section 34 falls within a raft of provisions relevant to the Tribunal’s functions, for instance, s 32 relates to the employment of Registrars and other staff. Significantly, s 33 empowers the president and the vice-president to delegate any of their functions. Division 9, on the other hand, deals with orders made by the Tribunal and their enforcement.
[4]Interpretation of Legislation Act (Vic) s 35(a).
[5]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381.
The argument of STL should be rejected on two counts.
An order appointing a person or an organisation as a guardian of a represented person does not mean that person is acting under the authority of the Tribunal as set out in s 34(1)(c). That expression is to be construed narrowly, in the context of s. 34 as a whole. The obligation under s 34(1) is cast upon limited classes of persons, namely, a member or a Registrar or member of staff of the Tribunal. It is intended to oblige Tribunal members and staff to keep secret material obtained by them. Sub‑section (c) is not intended to extend that obligation to those persons or organisations who may be empowered or enabled by orders of the Tribunal to carry out prescribed actions as provided for by the wide range of Acts administered by the Tribunal. The persons with the relevant authority spoken of under s 34(1)(c) are those whose functions relate to Tribunal hearings and administration. It would, for instance, apply to a person who was in receipt of a delegated power as provided for by s 33.
I do not think it likely that the legislature intended to impose an obligation of secrecy with an accompanying statutory immunity to subpoena upon beneficiaries of orders enabling those persons to carry out particular actions pursuant to the Tribunal’s orders. The Tribunal administers a raft of legislative provisions and makes thousands of monetary and non‑monetary orders each year in cases as diverse as guardianships, residential tenancy disputes, planning matters and transport accident claims, to name but a few. It is inconceivable that persons implementing an order of a tribunal (of whatever form) would in respect of those orders have an immunity to subpoena. This construction is supported by the terms of s 34(6). It excludes from the operation of sub-s.(1) events at a Tribunal hearing or the disclosure of a decision or order of the Tribunal. This is consistent with s 34 having an application limited to preventing disclosure by the Tribunal members, officers or staff of information acquired in the course of an application and which is not disclosed in open Court. Division 9 of the Act deals with orders and their enforcement; it is silent on the question of secrecy or immunity to subpoena powers.
If I am wrong in my construction of s 34(1)(c), such a provision must, in any event, yield, as was argued on behalf of Bernadette, to the specific provisions of the STSOC Act. As will be seen in a moment, that Act sets up its own regime in relation to secrecy.[6] It prohibits officers et al of State Trustees from divulging information in the performance of their duties by s 17. Section 17(3), however, exempts the operation of the secrecy provisions where a person is required to produce a document to a Court in the course of any proceedings.
[6][35] of these reasons.
In this case, if STL’s argument about the breadth of s 34(1)(c) be correct, then the obligations of STL pursuant to the VCAT Act – maintaining secrecy notwithstanding a subpoena – and the provisions of the STSOC Act cannot be reconciled.
The STSOC Act, passed subsequent to the VCAT Act, deals “specially with a particular matter”,[7] namely, STL’s administration of the estate of a represented person[8] such as Bryan and governs its secrecy obligations and therefore, insofar as it is inconsistent with the VCAT Act, it prevails.
[7]Maybury v Plowman (1913) 16 CLR 468, 473 – 474.
[8]Section 17(1).
I turn now to the argument based on the provisions of the STSOC Act and the GAA Act.
Immunity from subpoena by reason of the provisions of the State Trustees (State Owned Company) Act 1994 and the Guardianship and Administration Act 1986
A “represented person” is defined in s 3 of the STSOC Act as a represented person within the meaning of the GAA Act in respect of whose estate STL is administrator. Bryan was such a person.
Section 17 of the STSOC Act provides:
“(1) This section applies only in relation to State Trustees' administration of the estate of a represented person or a protected person.
(2) Unless subsection (3) applies, a person who is or has been a director, member, officer or employee of State Trustees, must not, except to the extent necessary to perform any official duties, or to perform or exercise any function or power, in relation to its administration of the estate of a represented person or a protected person, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by the person by reason of being or having been so appointed, or make use of information, for any purpose other than the performance of official duties or the performance or exercise of that function or power.
Penalty: 10 penalty units.
(3) Subsection (2) does not preclude a person from-
(a) producing a document to a court in the course of any proceedings; or
(b) divulging or communicating to a court in the course of any proceedings any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or the exercise of a power referred to in that subsection; or
(c) producing a document or divulging or communicating information that is required or permitted by any Act to be produced, divulged or communicated, as the case may be if, where the document or information relates to the personal affairs of another person, that other person has given consent in writing.” (Emphasis added)
Section 48 of the GAA Act reads:
“(1) An administrator has the powers and duties conferred by this Division and such of the powers and duties referred to in Division 3A as the Tribunal may specify in the order.
(3) Where a decision is made, action taken, consent given or thing done by an administrator under an order made by the Tribunal the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(4) Upon the death of a represented person any order appointing an administrator of that person's estate under this Act lapses and the law relating to the administration of a deceased person's estate applies accordingly.” (Emphasis added.)
Section 58D of the GAA Act reads:
“(1) If an administrator has received notice from the Tribunal that a represented person has ceased to be a represented person or has died, the administrator must-
(a) pay or cause to be paid to that person or to that person's personal representative (as the case requires) all money standing to his or her credit with the administrator; and
(b) deliver to that person or to that person's personal representative (as the case requires) all property forming part of his or her estate and any documents relating to the estate.
(2) Any payment made under subsection (1) is subject to the satisfaction of any amount due to the administrator and all costs, expenses and liabilities incurred by the administrator in respect of the administration of that person's estate.
(3) The receipt of a person who has ceased to be a represented person or of that person's personal representative is an absolute discharge to an administrator despite any informality in the discharge or certification.”
Section 58E reads:
“Any person who has ceased to be a represented person or the personal representative of any represented person is entitled, before or after obtaining the restoration of all or any part of the estate from an administrator-
(a) to examine and inspect or cause to be examined and inspected by a legal practitioner or other authorised agent all books, accounts, notices and other documents in the custody of the administrator relating to the estate and to make or cause to be made copies or extracts; and
(b) to have supplied to him or her or his or her legal practitioner or other authorised agent copies of or extracts from any book, account, notice or document; and
(c) to have given to him or her or his or her legal practitioner or other authorised agent information respecting the estate as is reasonably requested and can be given by the administrator.”
STL’s argument is that s 17 secrecy provisions are of no effect as once a represented person dies, then by dint of s 48(4) of the GAA Act the order appointing it as administrator lapses. So it contends in the present case that once Bryan died, STL ceased to be the administrator then its obligation to comply with the subpoena – pursuant to s 17(3) - ended. STL then assert that ss 58D and 58E of the GAA Act, set out a scheme by which documents held by STL or, for that matter, any other guardian, are to be maintained and delivered.
Section 58D, it was contended, covered the situation where a guardian held documents of a deceased represented person. It provides that “any documents relating to the estate” must be delivered to that person’s personal representative. It was also argued that s 58E, which has effect before or after obtaining the restoration of any part of an estate from an administrator, provides the personal representative with the right to inspect and copy documents held by the administrator. In effect, the argument of STL is that ss 58D and 58E sets up an exclusive scheme and provide the only means by which documents can be obtained from an administrator after the death of the represented person. As this case demonstrates, this argument means that until a personal representative is appointed, then the documents held by STL cannot be released and are immune to subpoena.
The Catch 22 is obvious. The subpoenaed documents may well be relevant to the decision in this proceeding as to the validity of the January will which will in turn determine the identity of the personal representative of Bryan’s estate. But if STL’s argument is correct, the documents cannot be produced until after the personal representative is appointed.
STL’s argument should be rejected.
Absent specific statutory language either providing for secrecy attaching to the documents, such as s 34(1) and (2) of the VCAT Act, or, more relevantly such as s 17(3) of the STSOC Act which deals directly with the question of production by subpoena there is no reason, in my view, to read s 58D and s 58E of the GAA Act as ousting the operation of the subpoena powers of a party. Section 58D and s 58E are found within Division 3A of the GAA Act, which is headed “Additional Powers and Duties of Administrators”. S 58D obliges the administrator to pay any moneys held by him to the personal representative after satisfaction of all costs, expenses and liabilities incurred in the administration of the represented person’s estate. Rather than provide a code by which documents would, in part, be precluded from production to a court, I think that the provisions endeavour to set up a scheme by which the represented person’s estate can be wound up after death (or where the person had ceased to be a represented person). So, for example, documents can be transmitted by the administrator to the executor of the estate of the represented person or may be the subject of an inspection by that executor. Funds can be paid out after certain liabilities are met. Nowhere can I glean, in the terms of s 58D or s 58E, any intention to shut out the subpoena process.
I do not accept STL’s submission that the use of a subpoena in such a situation undermines the purpose of s58D and s58E. Why, one would ask rhetorically, should the administrator of Bryan’s estate be insulated from a subpoena issued by a party involved in litigation relevant to Bryan, particularly as it would not have been immune whilst Bryan was alive. The purpose of s 58D and s 58E is to provide for the orderly dissemination of funds, documents and other records held by an administrator – not to render it immune to a validly issued subpoena. Nor does such a requirement, in my view, ignore the fiduciary nature of the relationship between the administrator and the represented person as contended. The existence of a fiduciary relationship between a subpoenaed party and another is not, as far as I am aware, a reason to preclude the production of relevant documents in the course of a proceeding. I am also not persuaded that an analysis of the history of the STSOC Act assists in the construction of s 58D and s 58E.
STL’s argument leads to an absurd result as I have already pointed out. It is accepted that STL may well hold relevant documents relating to Bryan’s capacity at or about the time he executed the January Will. A personal representative cannot be appointed until the court determines which Will is operative. If STL’s argument is accepted, documents which may well be germane to the question of who is the proper personal representative will be withheld and only provided after the trial has concluded and that determination made.
My conclusion as to the effect of s58D and s58E of the GAA Act means that it is not necessary to resolve the more difficult question as to whether the s 17 secrecy provisions of the STSOC Act terminate at the death of the represented person. There seems, I accept, to be a tension between the application of the terms of s.17(2) of the STSOC Act and those of s 58D and s 58E of the GAA Act consequent upon the death of the represented person. However this issue does not need to be resolved. If s 17(1) of the STSOC Act operates after death then s 17(3) permits a subpoena to be responded to. If it does not there is no statutory inhibition to the subpoena process as the GAA Act does not address this issue.
Conclusion
The appeal should be dismissed.
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