Woodley v Woodley [No 4]
[2017] WASC 360
•8 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WOODLEY -v- WOODLEY [No 4] [2017] WASC 360
CORAM: ALLANSON J
HEARD: 24 NOVEMBER 2017
DELIVERED : 24 NOVEMBER 2017
PUBLISHED : 8 DECEMBER 2017
FILE NO/S: CIV 2080 of 2013
BETWEEN: TERRY RAY WOODLEY
Plaintiff
AND
ROSS MAXWELL WOODLEY
First DefendantROSS MAXWELL WOODLEY and RAYMOND THOMAS WOODLEY As Executors of the Estate of the Late Shirley Grace May Woodley
Second Defendants
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 26
Transfer of Land Act 1893 (WA)
Result:
Application dismissed
Order for costs
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Mr P G Donovan
Second Defendants : Mr C R Bailey
Solicitors:
Plaintiff: In person
First Defendant : MDS Legal
Second Defendants : Williams & Hughes
Case(s) referred to in judgment(s):
Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 16 CLR 109
El Sayed v El Hawach [2015] NSWCA 26; (2015) 88 NSWLR 214
Lewis v Condon [2013] NSWCA 204; (2013) 85 NSWLR 99
Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17
Woodley v Woodley [No 2] [2015] WASC 274
Woodley v Woodley [No 2] [2017] WASC 94
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
ALLANSON J: At the hearing on 24 November 2017, I dismissed the application and said I would publish my reasons.
These proceedings were commenced by writ filed in 2013. The plaintiff, Terry Woodley, and the first defendant, Ross Woodley, are brothers. They are the children of Thomas and Shirley Woodley, both now deceased. The second defendants are the executors of the estate of their mother.
To identify the parties and other relevant people - all of whom have a common family name - I will use given names in these reasons. I mean no disrespect by this informality.
In these reasons I will be briefly referring to other proceedings between Terry and Ross (and eight other defendants): CIV 1821 of 2013 (the estate proceedings). In the estate proceedings, each of Terry and Ross sought an order for the grant of probate in respect of the will of their mother. On 4 April 2017, Pritchard J dismissed Terry's claim, ordered that there be a grant of probate to Ross and Raymond Woodley, and ordered that Terry should be passed over as an executor of the will and a trustee of the testamentary trust: Woodley v Woodley [No 2] [2017] WASC 94. Terry has appealed.
The present claim
At the heart of Terry's case is a claim based upon proprietary estoppel. Terry claims that regularly and on numerous occasions, between 1992 and about 2010, his parents told him that a farming property, the Coronation Road property, would be his when they passed away. Terry says that during that period he contributed labour and made financial contributions to maintaining and improving the Coronation Road property.
The registered proprietors of the Coronation Road property were Thomas, Shirley and Ross, as joint tenants.
Thomas died on 9 January 2010. Terry pleads that, notwithstanding his parents' promise, Shirley transferred or purported to transfer 50% of her interest in the property to Ross on or about 13 May 2010. Ross succeeded to the whole of the property as a joint tenant on the death of Shirley on 31 July 2011.
Ross sold the Coronation Road property pursuant to a contract made on 20 April 2013. The proceeds have been held in trust since the sale, pending the resolution of this dispute.
Terry claims:
(1) a declaration that from 1977, Ross held his interest in the property in trust for his parents; and
(2) declarations that each of Thomas and Shirley held their interest in the property on trust for Terry.
The claim originally pleaded is concise. It claims relief on the basis that it would be unconscionable to deny Terry's interest in the Coronation Road property. That original claim has been overlaid by multi-hued amendments. They are far from concise. Ross has not sought to strike out the amendments. The defendants wish to ensure that the matter proceeds to trial rather than meandering in a series of interlocutory skirmishes.
The plea of fraud
Terry alleges that Ross engaged in 'improper, unconscionable dealing and knowingly took advantage of Shirley exerting undue influence to fraudulently effect a 50% transfer' of the title to the Coronation Road property: par 16(f).
Terry alleges that, at the time of the transfer, Shirley was in ill health: par 19.
In par 35, Terry pleads that Ross committed fraud on Shirley 'by creating a false belief as to the true nature of the transfer and surrounding events'. The plea has 25 paragraphs of 'particulars', some of which allege matters after Shirley's death. They include allegations that:
(a)Ross removed 40 cattle from the property on or about 12 March 2010, and sold 36 of them in March and the other four in June 2010: par 35(c), (f);
(b)Ross received the net proceeds from the sale of 28 cattle sold on 8 February 2011, to which he had no entitlement: par 35(h), (j);
(c)on 13 February 2013, Ross transported 14 cattle from the Coronation Road property to the property of his son, Mark; 11 of the cattle were then sold by Mark on 19 February 2013: par 35(m);
(d) Ross declared income of $2,600 from hay crop sales in his 2011 tax return: par 35(p);
(e) neither Shirley nor Terry received any proceeds from the sale of cattle, hay or livestock: par 35(s)
(f)Ross dealt with machinery that was the property of Thomas and Shirley: par 35(t); and
(g) Ross concealed the true extent of his financial situation from Shirley, including by seizing cattle, hay crop and machinery that were on the Coronation Road property and using them to satisfy his creditors: par 35(y)(vii).
Terry also alleges that Ross has caused him loss and damage. Particulars of the allegation include the claim that the Coronation Road property was sold at below its value (par 41(d)); and that Ross acted dishonestly to remove and sell assets, including cattle, hay crop and machinery, from the Coronation Road property and retain the proceeds (par 41(e)).
In the prayer for relief, Terry seeks orders including compensation for the sale of 'the plaintiff's cattle' not accounted for; compensation for the sale of hay crop not accounted for; and compensation 'for the sale or dealing with machinery, plant and equipment, fixtures and fittings removed from the Coronation Road property': par (i) to (k).
Terry also seeks orders for the payment of compensation to the executor of Shirley's estate, and the trustee of the Shirley Woodley Testamentary Trust for the proceeds or market value of cattle, hay crop, machinery, plant and equipment, fixtures and fittings removed or dealt with, as well as compensation to the estate for the sale of the Coronation Road property below value.
It is not pleaded in these proceedings, but I assume it is uncontroversial that Terry, Ross and their siblings are beneficiaries of the Shirley Woodley Testamentary Trust, a family discretionary trust for the benefit of the siblings, and their spouses or partners, and their children.
A beneficiary may bring a derivative proceeding against a third party in special circumstances: see Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [55] ‑ [56]. This principle might extend to the objects of a discretionary trust: Lewis v Condon [2013] NSWCA 204; (2013) 85 NSWLR 99; El Sayed v El Hawach [2015] NSWCA 26; (2015) 88 NSWLR 214 [45] ‑ [54]. Terry has not, however, pleaded any basis on which he has standing to claim compensation on behalf of the estate.
Timetable
This action has been before the court since 2013. Part of the delay is attributable to a period awaiting the delivery of reasons in a related matter. But the time has been reached when, subject to what is needed to properly achieve the just determination of the litigation, there must be some finality in the interlocutory processes.
On 30 August 2017, the court made orders intended to complete all pre‑trial steps, with a view to a trial in the first half of 2018. Terry was to have filed his non‑expert witness statements by 3 November 2017 and the defendants by 17 November 2017.
Terry was unable to meet the timetable for filing witness statements, due to his commitments in another trial. The defendants may file further expert (valuation) evidence. The timetable was revised, but still provides for the completion of interlocutory steps by February 2018, with a view to a trial in May 2018.
In an affidavit filed on behalf of Ross, the court was advised that he is retired, shortly to turn 69, and has suffered from Parkinson's disease since 2001. He remains on medication for Parkinson's disease and depression. The defendants expressed concern, in the context of Ross's health and the conduct of the proceedings to date, that further interlocutory process may lead to delay. I have taken that into account, but believe that the further discovery could have been managed to ensure it did not interfere with the progress to trial. That is, I have dismissed the application for other reasons than delay.
Rules relating to discovery
A party does not have a strict entitlement to an order for discovery: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [6]. The power to order discovery is discretionary. The discretion is to be exercised so as best to ensure the attainment of the objects set out in O 1 r 4B of the Rules of the Supreme Court 1971 (WA), including the timely and efficient disposal of the business of the court.
In an application for further discovery, the court must have reasonable grounds for believing that there are other relevant documents which have not been discovered. The court must be able to infer from the nature of the documents that they are relevant and will not speculate as to relevance: Youlden Enterprises [3].
Relevance is not the only factor the court must consider in the exercise of the discretion to order further discovery. The court should also have regard to the likely importance of the documents sought in relation to the issues in the proceeding, and the likely time, cost and inconvenience of searching for and disclosing them: Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17 [13]; Woodley v Woodley [No 2] [2015] WASC 274 [17] .
But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered. To determine whether the documents requested may be relevant, the court should consider the pleadings, together with the conduct and admissions of the parties and the nature of the action: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [5].
Discovery already given
Discovery has already been given. Discovery orders were made in 2013. Discovery was by categories, and included any document a party intended to rely upon in presentation of their case at trial.
In 2015, Terry applied for further and better discovery of documents, 'in respect of, but not limited to', 15 categories of documents. The application was dismissed by Beech J and an appeal from his decision was also dismissed: see Woodley v Woodley [No 2]. There is some small overlap between the application heard by Beech J and the current application.
In 2015, the solicitors for Ross advised Terry that he could treat documents discovered on oath, informally, or by subpoena in the estate proceedings as discovered in this action.
The current application
On 3 November 2017, Terry filed an application seeking further and better discovery on oath 'in respect of, but not limited to, the following documents';
(a)Any Income Tax Return and/or Financial Statement including any Livestock Trading Schedules disclosing Cattle sales, Cattle Purchases, Natural Increase and Closing Stock, Depreciation Schedule, Income Received and Expenses incurred schedule, invoice, deposit book, cheque butt, bank statement, receipt, NVD/Waybill, NLIS Reports for the years ended the June 2010, 30 June 2011, 30 June 2012, 30 June 2013, 30 June 2014 30 June 2015 for any entity having dealings relating to cattle, hay or machinery between [Ross] and Mark Woodley and/or Roslyn Woodley and/or Shirley Woodley or any entity which Mark Woodley and/or Roslyn Woodley and/or Shirley Woodley has an interest in, in respect of any transaction involving 1462 (Lot 495) Coronation Road Waroona since 9 January 2010.
(b)any invoice, document, bank deposit, cheque butt, bank statement or receipt for the purchase and/or sale of 8 cattle given to Thomas Ross Woodley for his 80th birthday.
Paragraphs (c) and (d) seek orders that Ross provide schedules of cattle and hay roll movements and numbers on the Coronation Road property, showing a running balance from 9 January 2010 to 30 June 2014. Paragraph (e) seeks an order that Ross disclose the current whereabouts and arrangements for all the equipment that was on the property as at 9 January 2010.
It is unnecessary to consider whether the court has power to made the orders requested in pars (c) to (e) because, for the reasons I give in relation to further discovery, I would not exercise that power if I have it.
Terry supported the application by two affidavits sworn 31 October 2017 and 22 November 2017, and provided a written outline of submissions. His affidavits in support and outline of submissions referred repeatedly to matters raised in other proceedings between the same parties. Specifically, in his written submissions, he says:
It is in the timely and cost effective interests of the matter now before this Honourable Court for the Defendant to discover the documents to support his assertive statements before Her Honour Justice Pritchard in the estate trial …[31].
For example, with regard to the request for the documents in par (b) of the application, Terry says that, in his evidence in the estate proceedings, Ross said that he had given his father eight cattle for his 80th birthday: submissions [22]. In his affidavit of 31 October 2017, Terry deposes:
11.If Ross gifted 8 cattle to dad on 19 December 2007 then there must be a National Vendors Declaration (NVD) and/or Waybill to the movement of those cattle and a NLIS report to match.
12.There must be an audit trail of those 8 cattle.
13.I have not been given discovery of any documents relating to the claims made by Ross at the estate trial other than the first initial sale of cattle following Dad's death.
Assuming Ross has the documents described, I am not satisfied that documents providing an 'audit trail' of eight cattle purchased nearly 10 years ago are relevant to the present proceedings.
More generally, with regard to par (a), the plaintiff cannot justify the ambit of the order he seeks.
First, the request is for discovery of documents 'in respect of but not limited to' the categories of documents then described. Second, there is the breadth of the time period (2010 to 2015), particularly when the allegations of fraud on Shirley relate to a transaction in 2010. Shirley died in July 2011. Third, the pleaded cases do not warrant discovery of documents 'for any entity having dealings relating to cattle, hay or machinery between [Ross] and Mark Woodley and/or Roslyn Woodley and/or Shirley Woodley or any entity which Mark Woodley and/or Roslyn Woodley and/or Shirley Woodley has an interest in'. And, fourth, the request is clearly not confined to transactions or dealings which are alleged in the statement of claim, or relevant to those transactions or dealings, in seeking discovery 'in respect of any transaction involving 1462 (Lot 495) Coronation Road Waroona since 9 January 2010'.
In summary, I am not satisfied that further discovery is necessary or appropriate for the proper disposition of the action now before the court.
Finally, I should refer to oral submissions made before me in which Terry said, in effect, that he did not expect there to be any documents, but he just wanted to 'shake the tree' and see what fell out. I take into account that Terry is self-represented, but I have no reason to doubt that he meant what he said. An application for further discovery is not for the purpose of shaking the tree.
Conclusion
The application will be dismissed.
The first defendant asked for an order that the plaintiff pay the costs of the application to be taxed and payable forthwith. Terry opposed the costs order and submitted that his application was brought for a valid reason and for the purpose of saving the court time at the trial and to avoid the court being bogged down in peripheral issues that could be dealt with efficiently before trial.
Costs are in the discretion of the court. I am satisfied that this is an occasion when the costs of the application should go to the successful party.
The issues of relevance that I have dealt with in these reasons were raised clearly in letters to Terry from Ross's solicitors on 26 October 2017 and 8 November 2017. Ross also offered, despite the reservations clearly expressed in the letters, to reconsider discovering documents if Terry identified appropriate categories and could show that they were relevant.
I am also satisfied that the costs should be payable forthwith.
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