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…

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 Turner v Tibbits

Details

AGLC: Turner v Tibbits [2020] WASC 55
Case: [2020] WASC 55
Decision Date: 26 FEBRUARY 2020

CaseChat Overview and Summary

Turner v Tibbits is a case before the Supreme Court of Western Australia, which involves a dispute over non-party discovery under the Family Provision Act. The plaintiff, Turner, seeks to compel the defendant, Tibbits, to provide access to documents that are in Tibbits' possession but which pertain to the estate of Turner’s deceased relative. The dispute revolves around whether the documents are protected by legal professional privilege and whether Tibbits, as the executor of the deceased’s estate, has a right to access these documents despite the privilege.

The central legal issue before the court was whether Tibbits, a lawyer who drafted the deceased’s will, could resist an application for non-party discovery by relying on legal professional privilege. The court had to determine if there were any valid grounds for Tibbits to withhold the documents from Turner, particularly considering the executor’s position and the nature of the privilege. The court also had to consider the shifting justifications provided by Tibbits for his resistance and the appropriateness of the costs incurred in the process of the application.

In its reasoning, the court noted that Tibbits' conduct in opposing the discovery had been inconsistent and delayed. Initially, Tibbits argued that the request was premature and lacked evidence, but later raised objections based on abuse of executor’s powers, lack of privity of contract, and legal professional privilege. The court found that Tibbits' reference to privity of contract was incorrect as the executor stands in the shoes of the deceased client, and thus, there is privity. Moreover, the court clarified that legal professional privilege belongs to the client, and in this case, it would be owed to the legal personal representative of the deceased client. Given these considerations, the court determined that Tibbits could not validly assert legal professional privilege to refuse Turner, the beneficiary, access to the documents.

The court concluded that while Tibbits did not ultimately maintain his resistance to the discovery order, his inconsistent and tardy opposition warranted a costs order against him. The court found that Tibbits’ conduct warranted an order for him to bear his own costs and expenses, deviating from the usual rule that the party seeking discovery should bear these costs. The court issued an order for Tibbits to pay the costs of the application, reflecting the inappropriateness of his resistance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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. 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.