Terracall v Terracall - [2019] VSC 247

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 01199

MIKAILA HILL TERRACALL (in her capacity as Administrator of the Estate of the late PETER FLEMING TERRACALL)	Plaintiff
v
ROBERT WILLIAMS TERRACALL AND OTHERS (according to the attached schedule)	Defendant

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2019
DATE OF JUDGMENT:	16 April 2019
CASE MAY BE CITED AS:	Terracall v Terracall
MEDIUM NEUTRAL CITATION:	[2019] VSC 247

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DISCOVERY – Specific discovery – Discovery before the close of pleadings – Discovery of documents to assist in particularising plaintiff’s case – Whether a fishing expedition – Whether there exists a strong and unrebutted suspicion as to the existence of a good cause of action – Civil Procedure Act 2010 (Vic) ss 7, 8, 9, 55; Supreme Court (General Civil Procedure Rules) 2015 r 29.07 considered – WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175; 30 ALR 559; Trade Practices Commission v CC (NSW) Pty Ltd & Ors (No 4) (1995) 58 FCR 426; Computershare Ltd v Perpetual Registrars Ltd & ors (2001) VR 626; Liesfield v SPI Electricity Pty Ltd (Ruling No 1) [2013] VSC 634; Asahi Beverages Pty Ltd v RFGA Management Pty Ltd [2018] VSC 606 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M.J. Latham	Destra Law
For the First and Fourth Defendants	A.M. Meagher	Duffy & Simon
For the Second and Third Defendants	C.R. Brown	McKean Park

HER HONOUR:

What is this case about?

Before me is an application for discovery in proceedings which form part of a complex family dispute. The plaintiff seeks discovery so that she might fully plead her case, which has been commenced by generally endorsed writ. The defendants oppose this application on the basis that the discovery sought is in the nature of a fishing expedition.

Background

The plaintiff, Ms Mikaila Terracall (‘Mikaila’), is administrator and sole beneficiary of the estate of the late Peter Fleming Terracall (the ‘Deceased’), who died intestate on 10 September 2012. Mikaila is the only child of the Deceased. The first defendant, Mr Robert Terracall (‘Robert’) is the uncle of the plaintiff and brother of the Deceased. The second and third defendants, John and Mark Terracall, are the Deceased’s other brothers. The fourth defendant, Carret Nominees Pty Limited (‘Carret Nominees’), is a corporate trustee which acts as trustee of the R.B. Terracall Family Trust. Robert is a director of Carret Nominees.

On 7 September 2018 Mikaila filed a generally indorsed writ, in her capacity as administrator of the estate of Peter Terracall, against the defendants. The indorsement to that writ alleges that Robert intermeddled, without authorisation, with the Deceased’s estate by:

(a) dealing a boat named ‘Current Affair’ to Carret Nominees or to the R.B. Terracall Family Trust pursuant to an agreement between the defendants;

(b) taking jewellery and monies from the Deceased’s superannuation and bank accounts into his own possession;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Terracall v Terracall

Details

AGLC: Terracall v Terracall [2019] VSC 247
Case: [2019] VSC 247
Decision Date: 16 April 2019

CaseChat Overview and Summary

Terracall v Terracall was a case in the Supreme Court of Victoria that involved a dispute over the scope of discovery in civil proceedings. The plaintiff sought an order for specific discovery of certain documents from the defendant, which they believed would assist in particularising their case before the close of pleadings. The defendant argued that the request amounted to a fishing expedition and that there was no strong suspicion of a good cause of action. The court had to determine whether the plaintiff’s application for discovery was appropriate and whether it was justified to allow such discovery before the close of pleadings.

The central legal issue before the court was whether the plaintiff's application for specific discovery was warranted under the Civil Procedure Act 2010 (Vic). Specifically, the court needed to assess if there was a strong and unrebutted suspicion of the existence of a good cause of action, as required by the statute. The court also needed to consider whether the plaintiff's request for discovery was a fishing expedition and whether it was an abuse of the court process. Previous cases such as WA Pines Pty Ltd v Bannerman, Trade Practices Commission v CC (NSW) Pty Ltd & Ors, Computershare Ltd v Perpetual Registrars Ltd, Liesfield v SPI Electricity Pty Ltd, and Asahi Beverages Pty Ltd v RFGA Management Pty Ltd were cited to provide guidance on the principles of discovery and the discretion of the court in such matters.

The court ruled that the plaintiff's application for specific discovery was not justified. It found that there was no strong and unrebutted suspicion of the existence of a good cause of action, and the request appeared to be a fishing expedition. The court held that such discovery before the close of pleadings was inappropriate unless there were exceptional circumstances. The court emphasised the importance of avoiding unnecessary costs and delays in litigation and highlighted the need for parties to particularise their cases adequately at the appropriate time. The plaintiff’s application for specific discovery was dismissed.

The court did not make any further orders in relation to the specific discovery request. It left the parties to continue with the litigation, emphasising the importance of proceeding with particularised claims and the proper use of discovery in civil proceedings.

Orders