Turner v Tibbits - [2020] WASC 55

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TURNER -v- TIBBITS [2020] WASC 55
CORAM:   REGISTRAR C BOYLE
HEARD:   3 JULY 2019 AND ON THE PAPERS
DELIVERED          :   26 FEBRUARY 2020
FILE NO/S:   CIV 1985 of 2019
BETWEEN:   VICKI BARBARA TURNER
Plaintiff
AND
PETER ANGUS TIBBITS
Defendant

Catchwords:

Costs - Non-party discovery - Proper procedure for application - Utility in actions under Family Provision Act - Turns on own facts

Legislation:

Family Provision Act 1972, s 6, s 21A
Legal Profession Conduct Rules 2010, r 9
Rules of the Supreme Court, O 26A

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J Eastoe
Defendant	:	Mr A Metaxas

Solicitors:

Plaintiff	:	Jonathan Eastoe
Defendant	:	Metaxas Legal

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

Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29
Singer v Berghouse (1994) 181 CLR 201
Swancross Corporation Pty Ltd & Anor v The Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259
Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250
Vigolo v Bostin [2005] HCA 11
Waller v Waller [2008] WASC 51

REGISTRAR C BOYLE:

The question to hand is what is the appropriate order for costs on an application for non‑party discovery that was ultimately unopposed. The circumstances are a little unusual.
The plaintiff was a party to an application under the Family Provision Act. She was originally named a defendant to the action in her respective capacities as executor of the will of the deceased and as a beneficiary. For reasons more complex than need to be explained here, she subsequently became a claimant as well. The proceedings concern the will of Roberta McLaren, the mother of the present plaintiff. The defendant is the solicitor who drew the will of Roberta McLaren.
The plaintiff asserts that the defendant should pay the costs of the application. The defendant retorts that there is no reason to depart from the usual practice in applications for non‑party discovery that the party seeking discovery should pay the costs and expenses of the party giving it.
The family provision proceedings had been commenced on 7 February 2019 and the present plaintiff had entered an appearance. This application was commenced by originating summons filed 6 June 2019. That was mistaken and wasteful. The application under Rules of the Supreme Court O 26A r 5 should have been made as an application in the substantive Family Provision Act proceeding. That is no mere procedural quibble, for two reasons.
First, issuing a separate originating process incurred a filing fee of $1,318. The family provision action was case managed by a registrar. Order 26A is within the jurisdiction of a case management registrar. The application should have been made by letter pursuant to O 4A r 5A by letter, incurring no fee.
Even if the plaintiff were otherwise entitled to an order for costs, the needless costs incurred by reason of issuing a separate application should not be allowed.
Secondly, the application been made within the substantive proceeding, it would also been much easier to determine whether the documents sought did indeed 'relate to any matter in question in the action' as required.
There was no affidavit by the plaintiff in support of the application. The only affidavit in support was that of the plaintiff's solicitor Mr Eastoe, sworn 6 June.
No objection was taken to the absence of any evidence by the plaintiff herself. For that reason, I make no further observation than that it should not be assumed that an affidavit by a solicitor for a party is necessarily a sufficient foundation for an order for discovery against a non‑party.
The affidavit of Mr Eastoe sets out a chain of correspondence between him and the defendant that extends over the period from 6 March 2019 to 31 March. It is not a model of constructive professional conferral. The following summary suffices.
By his initial letter of 6 March, the solicitor for the plaintiff, having introduced his client and her role in the family provision action, referred to a particular disability trust created by the will. He went on:
To enable me to have a more complete understanding of the matter I would like to meet and discuss the matter with you and to take copies of any file notes which you may have taken at the time.
It is clear from this that the solicitor for the plaintiff was doing more than just seeking copies of documents: he was seeking in effect to interview the defendant, presumably with a view to considering whether he might be called as a witness to the circumstances surrounding the creation of the deceased's will.
The response of the same date by the defendant included the observation:
I doubt that there is any 'evidence' that I can provide that will go to the substance of the son's [Family] Provision Act claim.
The plaintiff's solicitor responded two days later expressing that he was 'surprised' by this. He went on:
I simply cannot understand the basis of your assertion that contact with you is premature. As the solicitor for the Executor and others I have an obligation to prepare the case in a diligent and timely fashion having regard to the upcoming case management conference which will be inevitably followed by a mediation conference.
There was no immediate response. On 28 March, the defendant sent a further email. That begins:
I place on record that at 5.01 pm yesterday you informed me by telephone that unless I provide you with access to the file I hold in respect of the work I did as the deceased's solicitor, your client will report me to the Legal Practice Board.
The threat is intimidatory and amounts to an attempt at coercion on your part. If nothing else it is inappropriate and professional discourteous.
The defendant's email went on the outline three matters that he thought were of concern:
·you seek to use your client's appointment as executor to gamer material that may be used to advance her position as a beneficiary;
·there is no privity of contract between your client and myself in relation to the work that I did for the deceased; and
·solicitors files are the subject of legal professional privilege.
The email continued with a further expression of the defendant's view that it was unlikely that his files contained anything 'of substance'.
There is no evidence of a response to that communication until a further letter from the plaintiff's solicitor dated 21 May. This makes assertions that mostly have become the subject of submissions and need not be recapitulated. However, the letter also comments that:
Your refusal to comply with a perfectly normal request is inadequately explained and is of serious concern.
The present application was then issued. I advised the parties that I would hear the substantive application on 3 July.
The defendant filed an affidavit on 2 July that made clear that there was no continuing substantive opposition to the application. The attitude of the defendant was that he was concerned that, absent the protection of an order of the court that he comply with the request for access to documents, he would have been vulnerable to criticism. The affidavit referred to an offer made that day to the plaintiff's solicitor proposing that the application would not be opposed and each party should pay its own costs. That offer was not accepted.
Informed of that position, on 3 July I made an order pursuant to O 26A r 5 and reserved the question of costs to be determined on existing papers and further written submissions. Those submissions have now been provided.
The plaintiff's submissions begin with five paragraphs derived from general principles about costs. Essentially, the proposition is put that the general rule is that the successful party is entitled to costs. That is, it is put that because the plaintiff obtained an order for non‑party discovery as sought, she was 'successful' and thus entitled to her costs.
That is not correct in relation to applications for pre‑action discovery or non‑party discovery.[1]
[1] Swancross Corporation Pty Ltd & Anor v The Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259 [5] and to Waller v Waller [2008] WASC 51 [210].
On an application for pre‑action or non‑party discovery, the usual rule is that the party seeking discovery should at least in the first instance pay the discovering party's legal costs and its expenses of complying with the order: Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250.
The question is whether there is reason to depart from that usual rule, by not making an order for the defendant to have his costs.
The plaintiff submits that there are reasons to do so. The plaintiff submits that the basis of the defendant's opposition to discovery has shifted over time: the initial response of 6 March referred to the request being premature, and that there was no evidence. The response of 28 March set out the three objections already listed: abuse of the executor's powers; the absence of privity of contract; and legal professional privilege.
On 28 May, the defendant said that he had referred the matter to the Legal Practice Board for its advice as to his professional obligations in the circumstances. That was presumably because of the threat of a complaint.
The plaintiff criticises this conduct as tardy, pointing out that the defendant is a lawyer whose practice includes the preparation of wills: if he needed legal advice on such a matter, he should have obtained it promptly. The referral to the Legal Practice Board—whatever its utility—came too late.
There is force in the suggestion that the defendant's reluctance to accede immediately to access by the plaintiff to documents on the will file was confused and shifting.
However, in the end, the defendant did not maintain his resistance to an order for discovery, on any of the bases foreshadowed. For that reason, it is not necessary for me to deal with them in detail. Notwithstanding that, some observations about the likely force of the objections may inform the question of costs.

Privity

The reference to there being no privity of contract between the plaintiff and the defendant in relation to the work the latter did for the deceased is immaterial to an application for non-party discovery but also wrong: the executor stands in the shoes of the deceased client. In the sense the objection was raised, there is privity.

Privilege

Legal professional privilege could not have been an answer to the plaintiff's claim.
This is not the place for a comprehensive exegesis of the law of legal professional privilege. It is trite that the privilege belongs not to the lawyer but to the client by whom or to whom the privileged communication was made. A lawyer does not have a right to assert legal professional privilege on his or her own behalf, but rather has an obligation to assert it on behalf of the client or former client to whom it belongs. The defendant's client was the will maker. Assuming for present purposes (but not deciding) that the obligation on a lawyer to maintain the confidentiality of privileged communications survives the death of the client, to whom is that obligation owed? The answer can only be that it is owed to the legal personal representative of the deceased client. On that analysis, the defendant could have no reason grounded in legal professional privilege to refuse the executor of a deceased client access to material to which that client would have been entitled during her lifetime.
The defendant's submissions do add a slightly different point, that some documents on a solicitor's file, for example the lawyer's interview notes, are the property of the lawyer and not of the client. That is correct: the executor had no right founded in property to any such documents. But that is a minor point.

Confidentiality

The defendant treated as interchangeable objections on the ground of privilege and on the ground of confidentiality. The two are different and should be dealt with distinctly, although the result is the same in each case.
The obligation of confidentiality now given statutory force by r 9 of the Legal Profession Conduct Rules 2010 is broader than, and different from, the obligation arising from the rule of law recognising legal professional privilege. The obligation of confidentiality is not confined to privileged communications. In that sense it is wider than the obligation to maintain the client's legal professional privilege, but on the other hand it is a veil more easily penetrated. But again, if a lawyer's obligation to a client to maintain confidentiality survives the death of the client, it can surely be owed only to the deceased client's legal personal representative. An obligation cannot exist at large: there must be some correlative right to enforce it. For the purposes of LPCR r 9, 'client' must surely include legal personal representative of a deceased client. A disclosure to the legal personal representative is not a disclosure 'to a person other than the client' contrary to the rule. It was not suggested that the deceased had imposed on the defendant an obligation to keep her instructions confidential as against her executor after her death.
While the defendant asserted that he had received advice from the Legal Practitioners Complaints Committee that he was obliged by the Conduct Rules to maintain confidentiality against the executor, he did not put that advice before me. Without the benefit of seeing that advice I cannot comment on its correctness but under the cover of that disclaimer I must say that the advice seems surprising.
In the end, it is worth repeating, the defendant did not maintain opposition to orders at the hearing, but rather took the position that he felt himself bound not to give discovery except under order. He felt bound because of the advice he had received from the Legal Practitioners Complaints Committee. He had sought that advice because he had been threatened with a complaint if he did not give access to the documents.

Exercise of the discretion

The submissions of both parties recognised that an award of costs is to be made in the exercise of judicial discretion, and reference to a 'usual rule' on a particular outcome does not replace the considered exercise of that discretion.
This was a case where the defendant raised objections to the order for discovery that, while eventually abandoned and thus not fully argued, appear to have little merit. Is that reason to depart from the 'usual rule' in discovery matters? In my view it is not, for the following reasons.
First, there is the question of the legitimacy of the plaintiff's demands.

What was the point?

In his correspondence, the plaintiff's solicitor asserted that his request was 'perfectly normal'. In my experience, not only was it not normal, it was inappropriate.
The solicitor for the plaintiff did not identify in his correspondence, or at the hearing of the application, or in his submissions, any material that could be on the defendant's file that could possibly be relevant to the Family Provision Act claim against the estate. I can think of nothing that could be.
Family Provision Act proceedings begin once a grant of representation has been made. The grant and any will are presumed to be regular for the purpose of the proceedings.
The proper approach to Family Provision Act claims is settled.[2] The statutory test[3] is whether the will makes 'adequate provision … for the proper maintenance, support, education or advancement in life' of the claimant in question. The threshold question is to be determined as at the date of death of the deceased and, if answered affirmatively, the measure of relief is considered by reference to the estate and the claimant's circumstances at the date of trial.
[2] Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin [2005] HCA 11.
[3] Family Provision Act s 6.
Why the deceased made her will in the terms she did is irrelevant. What the deceased might have told her solicitor in giving instructions for the will is irrelevant. The plaintiff's solicitor's pursuit of why the provision for a disability trust was inserted in the will was pointless. The defendant was right to object more than once in the correspondence that he could think of nothing in his files that could be relevant to the proceedings.
Pressed on this question at the hearing, Mr Eastoe referred to s 21A of the Family Provision Act to support his contention that there could be on the defendant's file material admissible in the substantive action. That is a red herring. Provisions such as s 21A only remove the objection that evidence is inadmissible because it is hearsay: they do not render admissible evidence that is inadmissible because it is irrelevant to any matter in issue.
My reasons for ordering the defendant to make an affidavit of discovery have already been noted: he took the view on advice—whether correct or not—that he could be subject to professional criticism if he made the documents available without being ordered to do so.
Had the application been opposed, I would not have been satisfied that the plaintiff had established that the defendant had, or was likely to have, 'possession of documents that relate to any matter in question in the action' as required by O 26A r 5(1).
It is perhaps a useful test of that proposition to ask what might have happened if the claimant in the related Family Provision Act proceeding had demanded of the defendant executor that she give discovery, including of the deceased's solicitor's will file. The inevitable and proper answer to that would have been that there could be nothing there that could possibly be relevant to the proceedings.

Why an originating summons?

Secondly, as already noted, the pursuit of non-party discovery by issuing a separate originating summons where an action was on foot was wasteful and inappropriate.

The proper conduct of Family Provision Act Proceedings

Thirdly, the way in which proceedings are conducted may be grounds for making an order to reflect disapprobation of conduct that merits it.
In the course of the pre-action communications, the defendant objected to the plaintiff's solicitor's threat to report him to the Legal Practice Board if he did not immediately accede to the demands for access to the documents. He was right to object. He may have been mistaken as a matter of law as to his obligations, but that does not mean his conduct was unprofessional. It is objectionable for a practitioner, faced with another practitioner's different views as to his obligations, to characterise his opponent's conduct as unprofessional and threaten a disciplinary complaint. If the plaintiff thought the defendant was obliged to give discovery and the defendant did not, then that is what courts are for.
This Court has for more than a decade had practice directions concerning Family Provision Act proceedings. Any sensible reader of the current Practice Direction 9.2.2 can have no doubt that the court has a serious concern about the costs too often incurred in these proceedings. That is why the scope of the plaintiff's first affidavit is limited, and why the court does not require answering affidavits before mediation. It is one reason orders for discovery are made only in exceptional circumstances.
The material facts in almost all Family Provision Act claims can be set out on one sheet of paper.[4] Overwhelmingly, these actions are settled at or shortly after mediation: it is only a very small percentage that goes to trial.
[4]If not in 14-point Times double-spaced.
The plaintiff's solicitor couched his demands for access to the will file on the basis that it was an ordinary step in such proceedings. It is not. It was a pointless exercise that could only have had the effect of needlessly inflating costs. The notion that it should be a 'normal' step to seek to examine a solicitor's will file is contrary to the way the court tries to manage these actions. These actions do not need far-reaching evidentiary investigations, or discovery, or subpoenas of hospital or medical records or bank records, certainly not before a trial seems inevitable. What they need is for solicitors to confine their enquiries to those matters that are relevant and counsel their clients what is legally relevant and what is not. That is vital to enabling litigants to make reasoned and informed decisions.

My experience as a mediator of such actions is that apart from family pathology, another frequent cause of difficulty in settling them is extravagant over-investment by lawyers in procedures that will either never be necessary, or are plainly irrelevant, or are premature even if they might possibly have some future need. There is every reason strongly to discourage such waste: there is a fixed cake to be divided, and the bigger the slice taken by costs the less there is for the parties.

Outcome

The history of this application, far from justifying a departure from the usual rule, provides even more reason to find that the party seeking discovery should pay the discovering party's actual expenses of complying with the order, and his legal expenses incurred as a result of the application. I will hear the parties (if necessary, and it should not be) as to the precise form of the costs order, but I add two notes.
The first is that since this application was heard, the High Court has delivered its judgment in Bell Lawyers v Pentelow.[5] That would appear to mean that the defendant would have no claim to recover professional fees for his response to the plaintiff's claim. Late in the process, the defendant engaged Mr Metaxas, whose assistance was appreciated and whose costs would be recoverable.
[5] Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29.
The other is that, were I passing the accounts of the estate, it would take a great deal to persuade me that the plaintiff's solicitor's costs in relation to this application were a proper expense of administration. Whether those costs should be borne by the plaintiff in her personal capacity as a claimant against the estate is a matter that should be the subject of discussion between her and her solicitor.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Court Officer
26 FEBRUARY 2020