Woods v Alan John Anderson as executor of the estate of Beverley Dawn Chamberlain

[2023] WASC 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WOODS -v- ALAN JOHN ANDERSON as executor of the estate of BEVERLEY DAWN CHAMBERLAIN [2023] WASC 136

CORAM:   REGISTRAR HOSKING

HEARD:   ON THE PAPERS

DELIVERED          :   1 MAY 2023

PUBLISHED           :   1 MAY 2023

FILE NO/S:   CIV 1414 of 2021

BETWEEN:   TREVOR ANTHONY WOODS

Plaintiff

AND

ALAN JOHN ANDERSON as executor of the estate of BEVERLEY DAWN CHAMBERLAIN

TRACEY-LEE CHAMBERLAIN as executor of the estate of BEVERLEY DAWN CHAMBERLAIN

First Defendants

TRACEY-LEE CHAMBERLAIN as executor of the estate of ALAN JOHN ANDERSON

Second Defendant

Catchwords:

Practice and procedure ‑ Application by non‑party for access to all documents on court file in proceedings commenced after 1 March 2018 ‑  Rules of the Supreme Court 1971 (WA) O 67B r 9(3) and r 9(4) ‑ Documents considered by the court ‑ Documents not considered by the court ‑ Must be a good reason to grant access

Legislation:

Rules of the Supreme Court 1971 (WA), O 67B r 9(3), O 67B r 9(4)

Result:

Non‑party access application allowed in part

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendants	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Integra Legal
First Defendants	:	In person
Second Defendant	:	Gomes Legal

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

Nil

REGISTRAR HOSKING:

1. This is an application by a non-party, Mr Gregory Mark Chamberlain, brought pursuant to O 67B r 11 of the Rules of the Supreme Court 1971 (WA) (RSC) for access to copies of all documents filed in the proceeding (Requested Documents). In these reasons, I will refer to the parties by their first names for convenience and intend no disrespect in doing so.

2. Gregory relies on a letter addressed to the Principal Registrar dated 3 February 2023 and submissions filed on 20 February 2023 in support of his application.

3. The second defendant, Tracey, relies on submissions filed on 27 February 2023 in opposition to the application.

4. The plaintiff, Trevor, abides by the decision of the court on the application.

5. The first named first defendant, Alan, has not filed any submissions in relation to this application. However, on 13 February 2023 Alan sent an email to my associate stating he considers Gregory's application to be without merit and he objects to Gregory being granted access to the Requested Documents. In determining the application, I have had regard to Alan's email.

6. For these reasons, Gregory will be granted leave to obtain copies of the Requested Documents, other than the affidavits filed in the proceeding.

Background

1. This proceeding involves a claim under s 6(1) of the Family Provision Act 1972 (WA) in relation to the estate of Beverley Dawn Chamberlain (deceased) by her de facto, Trevor.

2. The first defendants, Alan and Tracey, are the executors of the deceased's estate. Tracey is also the second defendant in her capacity as a beneficiary of the deceased's estate. Tracey is the daughter of the deceased.

3. The applicant, Gregory, is the son of the deceased. Gregory holds a 1/100 share as a tenant in common in the property situated at 20 Shelbred Way, Westminster, Western Australia (Property). The deceased held a 99/100 share in the Property, which forms part of her estate.

Application

1. Gregory contends the Property was the subject of an agreement between him and the deceased, to the effect that Gregory would become the sole owner of the Property on the deceased's death. Gregory considers he may have a claim for the transfer of the deceased's interest in the Property based on principles relating to proprietary estoppel.[1]

   [1] Applicant's submissions [10].

2. Gregory seeks access to the Requested Documents to understand the nature of this proceeding and determine whether he should take any action in relation to it. For example, to determine whether to apply to be joined to the proceeding.[2]

   [2] Applicant's submissions [14]-[15].

3. Any application Gregory makes to be joined to the proceeding, or otherwise take action in relation to the proceeding, will be determined separately to this access application. Similarly, any action Gregory may take in relation to the Property and the alleged agreement between him and the deceased will also be determined separately.

Legal principles

1. RSC O 67B sets out the regime regarding access to information and things held by the court. In the context of this access application, there are three relevant categories of documents. First, documents which non‑parties are entitled to access as of right. Secondly, in relation to documents which non‑parties are not entitled to access as of right, documents which have been 'considered by the court'. Thirdly, documents which have not been 'considered by the court'.

Documents non‑parties may access as of right

1. For proceedings commenced after 1 March 2018, RSC O 67B div 3 sets out which documents non‑parties are entitled to access as of right. Unless the person's access to the document is restricted, any person is entitled to have access to an originating summons that commenced a proceeding under the Family Provision Act 1972 (WA).[3]

   [3] RSC O 67B r 6(3) Part A(2)(b) of the Table.

2. Additionally, unless the person's access to the document is restricted, any person is entitled to have access to, relevantly, a memorandum of appearance, a notice of change of solicitor and an order of the court, in such a proceeding.[4]

Documents non‑parties may not access as of right

[4] RSC O 67B r 6(4)(a), Part A(1), (2) and (9) of the Table.

1. Non‑parties may not access other documents on the court file, such as affidavits, letters and memoranda of proposed orders, as of right. Non‑parties may only access those documents with the permission of the court given under O 67B r 9, on an application made under O 67B r 11.[5] I am satisfied the letter addressed to the Principal Registrar dated 3 February 2023 is an application for the purpose of O 67B r 11.

   [5] RSC O 67B r 8(a).

2. If the court is satisfied that the applicant needs permission to have the access wanted, it must determine the application in accordance with O 67B r 9.[6]

   [6] RSC O 67B r 13(4).

3. RSC O 67B r 9(3) and (4) relevantly provide (emphasis added):

   (3) The Court must give permission if satisfied ‑

   (a)the application ‑

   (i)relates to information or a record or other thing that was considered by the Court in the proceeding to which the application relates; or

   (ii)relates to the transcript of the whole or a part of a hearing in that proceeding that the applicant was entitled to attend; and

   (b)the application does not relate to an audio or audio‑visual recording of a hearing in that proceeding; and

   (c)if the application relates to information or a record or other thing that was considered by the Court in that proceeding but was not admitted into evidence or was struck out ‑ that giving permission would not prejudice or adversely affect any person; and

   (d)that giving permission would not breach ‑

   (i)any legislation; or

   (ii)an order made by a court in Australia; and

   (e)the arrangements necessary to give the applicant access would not ‑

   (i)be unreasonably expensive or time consuming for the Court or a party; or

   (ii)unduly impede the efficient conduct of the proceeding; and

   (f)there is no other good reason to refuse the application.

   (4) If the application does not relate to information or a record or other thing referred to in subrule (3)(a) or to a recording referred to in subrule (3)(b), the Court may give permission if satisfied ‑

   (a) as to the matters in subrule (3)(d) to (f); and

   (b) there is a good reason to do so.

Disposition

Documents Gregory may access as of right

1. Gregory may access the originating summons, orders of the court, memoranda of appearance and notice of change of solicitor filed in this proceeding as of right, on payment of any relevant fee.[7]

Documents Gregory may not access as of right

[7] RSC O 67B r 6(3) Part A(2)(b) of the Table and r 6(4)(a), Part A(1), (2) and (9) of the Table.

1. The remaining documents filed in this proceeding as at the date of Gregory's application comprise an amended originating summons, affidavits of service, other affidavits, letters, and minutes or memoranda of proposed orders.

2. There have been four case management conferences and three mediation conferences in this proceeding. There have been no previous interlocutory applications or decisions .

3. In my view, the letters on the court file relating to mediation conferences have been 'considered by the court' in the context of the mediation conferences which have been listed and held. Additionally, minutes or memoranda of proposed orders filed for the purpose of case management conferences, have been 'considered by the court' in the context of those case management conferences. Accordingly, the application to access those documents is to be determined pursuant to RSC O 67B r 9(3).

4. However, the remaining documents on the court file (the amended originating summons and affidavits) have not been 'considered by the court'. Therefore, the application to access those documents is to be determined in accordance with RSC O 67B r 9(4).

Documents which have been 'considered by the court'

1. The following documents on the court file have been considered by the court in the context of case management conferences or mediation conferences in this proceeding:

   (a)minute of proposed orders filed on 2 October 2021;

   (b)letter filed on 5 November 2021;

   (c)minute of proposed consent orders filed on 26 May 2022;

   (d)memorandum of proposed consent orders filed on 8 September 2022;

   (e)letter filed on 10 November 2022; and

   (f)minute of proposed consent orders filed on 2 December 2022.

2. In relation to RSC O 67B r 9(3)(b)‑(d), I am satisfied that:

   (a)the application does not relate to an audio or audio‑visual recording of a hearing in this proceeding;

   (b)the application does not relate to information or a record or other thing that was considered by the court in this proceeding but was not admitted into evidence or was struck out; and

   (c)giving permission would not breach any legislation or an order made by a court in Australia.

3. With reference to RSC O 67B r 9(3)(e)(i), in circumstances where Gregory seeks digital copies of the Requested Documents,[8] I am satisfied that the arrangements necessary to give Gregory access would not be unreasonably expensive or time consuming for the court or a party.

   [8] Applicant's submissions [16].

4. In opposition to the application, Tracey submits Gregory's 'claim' (which I understand to be a reference to the claim Gregory considers he may have in relation to the Property) would unduly impede the efficient conduct of the proceeding.[9]

   [9] Second defendant's submissions [37].

5. Pursuant to RSC O 67B r 9(3)(e)(ii), the relevant consideration is whether the arrangements necessary to give the applicant access would not unduly impede the efficient conduct of the proceeding. In my view, that consideration does not extend to whether actions a non‑party may take after being granted access to documents would unduly impede the efficient conduct of the proceeding.

6. Again, particularly given that Gregory seeks digital copies of the requested documents, I am satisfied the arrangements necessary to give Gregory access to the documents referred to in par 24 would not unduly impede the efficient conduct of the proceeding.

7. The final consideration is whether there is no other good reason to refuse the application.[10] Tracey submits Gregory's claim (which again, I understand to be a reference to a claim associated with the Property) discloses no reasonable cause of action, would unduly impede the efficient conduct of the proceeding and should be denied by this court.[11] RSC O 20 r 19 is referred to in Tracey's submissions, in relation to the court's power to strike out a pleading, including where it discloses no reasonable cause of action.[12] RSC O 20 r 19 has no application to the determination of this access application. There are presently no pleadings before the court to which that provision could apply.

   [10] RSC O 67B r 9(3)(f).

   [11] Second defendant's submissions [38].

   [12] Second defendant's submissions [23].

8. Tracey submits the deceased's will does not recognise Gregory's alleged claim to full ownership of the Property,[13] and in circumstances where Gregory has not provided any evidence to support his claim,[14] Tracey contends his claim is without foundation.[15]

   [13] Second defendant's submissions [29].

   [14] Second defendant's submissions [32].

   [15] Second defendant's submissions [34].

9. Again, any application Gregory makes to be joined to this proceeding, or any action he takes in relation to the Property, will be determined separately to this application. In determining Gregory's access application, it is not appropriate for me to consider the merits of any action Gregory may have in relation to the Property or the alleged agreement.

10. I am satisfied there is no other good reason to refuse access to the documents listed in par 24. Gregory will be granted leave to obtain copies of those documents, on payment of any relevant fee.

Documents which have not been 'considered by the court'

1. The documents which have not been considered by the court in this proceeding (and are not available as of right) comprise:

   (a)two affidavits of service filed on 6 July 2021;

   (b)amended originating summons filed on 18 October 2021;

   (c)affidavit of Trevor Anthony Woods filed on 19 October 2021; and

   (d)affidavit of Alan John Anderson filed on 24 March 2022.

2. In order to access documents which have not been considered by the court, Gregory has a positive obligation to satisfy the court that there is a good reason to permit access.[16]

   [16] RSC O 67B r 9(4)(b).

3. As set out above, Gregory contends the Property was the subject of an alleged agreement between him and the deceased to the effect that Gregory would become the sole owner of the Property on the deceased's death. Gregory considers he may have a claim for the transfer of the deceased's interest in the Property based on principles relating to proprietary estoppel.[17]

   [17] Applicant's submissions [10].

4. Gregory submits the proceeding may affect his interest in, and his rights in relation to, the Property and associated mortgage.[18] Further, that Gregory's interest in and entitlement to the Property, and exposure to the mortgage, may make it difficult to resolve this proceeding without his involvement. Alternatively, Gregory contends that the parties to the proceeding may seek to settle their dispute on terms that would adversely affect his rights and interests.[19]

   [18] Applicant's submissions [12].

   [19] Applicant's submissions [13].

5. In those circumstances, Gregory submits it is in the interests of all parties for him to be able to understand the nature of this proceeding and determine whether he needs to become involved in it.[20] For example, whether to apply to be joined to the proceeding pursuant to RSC O 18.[21]

Amended originating summons

[20] Applicant's submissions [14].

[21] Applicant's submissions [15].

1. I am satisfied there are good reasons for Gregory to be granted access to the amended originating summons. First, Gregory is entitled to access the originating summons filed in this proceeding as of right.[22] On accessing that document, Gregory will understand the nature of this proceeding, but not the current relief sought as set out in the amended originating summons. In circumstances where Gregory is entitled to access the originating summons, I consider that to be a good reason for Gregory to access the amended originating summons.

   [22] RSC O 67B r 6(3) Part A(2)(b) of the Table.

2. Secondly, another good reason for Gregory to access the amended originating summons, is so he may consider and seek advice on whether to take any action in relation to this proceeding. In order to receive advice on whether his rights may be impacted by, and whether to take any action in relation to this proceeding, I consider it necessary for Gregory to be aware of the current relief sought in this proceeding, as set out in the amended originating summons.

3. Thirdly and relatedly, in my view, granting Gregory access to the amended originating summons is consistent with the objects of case flow management. It appears efficient and just for Gregory and the parties to this proceeding to consider any interplay between any claim Gregory may have in relation to the Property, and this proceeding, sooner rather than later. For example, prior to any settlement being reached or judgment being delivered in this proceeding.

4. Having determined there is a good reason to grant Gregory access to the amended originating summons, I will turn to the remaining considerations.

5. I am satisfied that giving Gregory permission to access the amended originating summons would not breach any legislation or an order made by a court in Australia.[23] 

   [23] RSC O 67B r 9(3)(d) and r 9(4)(a).

6. Given Gregory seeks digital copies of the Requested Documents, I am also satisfied the arrangements necessary to give Gregory access to the amended originating summons would not be unreasonably expensive or time consuming for the court or a party, or unduly impede the efficient conduct of the proceeding.[24] 

   [24] RSC O 67B r 9(3)(e) and r 9(4)(a).

7. The final consideration is whether there is an overriding good reason to refuse Gregory access to the amended originating summons. With reference to the matters set out in par 30 to par 33, in my view there is no good reason to refuse Gregory access to the amended originating summons. Gregory will be granted leave to obtain a copy of the amended originating summons, on payment of any relevant fee.

Affidavits

1. I am not satisfied there is a good reason to grant Gregory access to the affidavits of service filed on 6 July 2021. The affidavits of service are unrelated to the reasons why Gregory seeks access to documents filed in this proceeding. Further, all parties to the proceeding have now entered an appearance.

2. The affidavit of Trevor Anthony Woods filed on 19 October 2021 is the plaintiff's 'First Affidavit' within the meaning of Supreme Court Consolidated Practice Directions 9.2.2. The affidavit of Alan John Anderson filed on 24 March 2022 was filed in Alan's capacity as an executor of the deceased's estate.

3. Gregory will be aware of the nature of Trevor's claim, and the relief sought, from the originating summons and amended originating summons to which access will be granted. Gregory has not identified any good reason to grant him access to affidavits, nor provided any reasons why being granted access to affidavits would further his objectives of understanding the nature of the proceeding and determining whether he should take any action in relation to it. I am not satisfied that there is a good reason to permit Gregory to access Trevor or Alan's affidavits.

4. In the absence of a good reason to permit Gregory to access the affidavits filed in the proceeding, the requirement of O 67B r 9(4)(b) has not been met. Therefore, it is unnecessary to consider the matters in O 67B r 9(3)(d) to (f) in relation to the affidavits filed in this proceeding.[25]

   [25] RSC O 67B r 9(4)(a).

Conclusion

1. Gregory will be granted leave to obtain copies of the following documents, on payment of any relevant fees:

   (a)originating summons;

   (b)amended originating summons filed on 18 October 2021;

   (c)orders of the court;

   (d)memoranda of appearance;

   (e)notice of change of solicitor;

   (f)minute of proposed orders filed on 2 October 2021;

   (g)letter filed on 5 November 2021;

   (h)minute of proposed consent orders filed on 26 May 2022;

   (i)memorandum of proposed consent orders filed on 8 September 2022;

   (j)letter filed on 10 November 2022; and

   (k)minute of proposed consent orders filed on 2 December 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LM

Associate

1 MAY 2023