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Wray v Wray

Wray v Wray

Case [2007] NSWSC 164 26 February 2007

Proceedings under the Family Provision Act 1982

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CITATION: Wray v Wray [2007] NSWSC 164

HEARING DATE(S): 26/02/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 26 February 2007

DECISION: Defendant ordered to sign authority.

CATCHWORDS: PROCEDURE - Access to Third Party Documents - Proceedings under the Family Provision Act 1982 - Defendant executrix and deceased owed moneys to Centrelink for wrongly claimed age pensions - Plaintiff alleged she discharged the liabilities - No claim as yet on the estate -The Social Security (Administration Act 1999 (Cth), s 207 prevents an officer producing any document in possession because of performance of duty under the social security law - Whether the defendant should be ordered to sign an authority to Centrelink and the Social Security Appeals Tribunal to produce files to the plaintiffs' solicitors - Authorities establish a default is entitled to such an order against a plaintiff - Whether same principle applies to a plaintiff seeking such an order from a defendant

LEGISLATION CITED: Family Provision Act 1982
Social Security (Administration) Act 1999 (Cth)
Civil Procedure Act 2005

CASES CITED: Merkuloff v Yalisheff [2003] NSWSC 1183
Attard v Hore [2002] QSC 437

PARTIES: Katheline May Wray - Plaintiff
Cirila Cabalhug Wray as Executor of the Estate of the late Godfrey Alexander Wray - Defendant

FILE NUMBER(S): SC 3793/06

COUNSEL: Mr M Leeming SC - Plaintiff
J Atkin - Defendant

SOLICITORS: Deutsch Partners Lawyers Pty Ltd
J A Buda & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 26 FEBRUARY 2007

3793/06 KATHLEEN MAY WRAY v CIRILA CABALHUG WRAY

EX TEMPORE JUDGMENT

1 I have before me an application by the plaintiff in substantive proceedings involving a claim under the Family Provision Act 1982 for an order that the defendant executrix sign an authority addressed to Centrelink and the Social Security Appeals Tribunal authorising them to produce files to the solicitors for the plaintiff.

2 The Social Security (Administration) Act 1999 (Cth), s 207 provides:

Farm Household Support Act 1992

3 In correspondence between the solicitors for the parties, the defendant's solicitors were asked for information. In a letter of 30 October 2006 the plaintiff's solicitors said:

“Furthermore, we are instructed that our client and/or Bathox Australia Pty Ltd paid off in full each of the deceased's and your client's debt to Centrelink arising from the Tribunal's order that the deceased's and your client's social security payments be repaid. Would you please confirm…

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 Wray v Wray

Details

AGLC: Wray v Wray [2007] NSWSC 164
Case: [2007] NSWSC 164
Decision Date: 26 February 2007

CaseChat Overview and Summary

In the case of Wray v Wray, the plaintiff sought access to documents held by Centrelink and the Social Security Appeals Tribunal in relation to a debt owed by the deceased and the defendant executrix. The plaintiff alleged that she had discharged these debts but needed access to the documents to substantiate her claim. The court was required to determine whether the defendant should be ordered to sign an authority allowing the production of these documents to the plaintiff's solicitors. The legal issue was whether the authorities allowing a plaintiff to obtain such an order from a defendant were applicable in this situation.

The court considered the principle that a default was entitled to an order compelling a plaintiff to produce documents. It examined whether this principle could be extended to a situation where a plaintiff sought an order from a defendant. The court held that the authorities did not establish a principle that would compel a plaintiff to obtain such an order from a defendant. The court noted that the defendant's obligation to produce documents was not contingent on the plaintiff obtaining an order from the defendant but rather on the plaintiff's ability to satisfy the court that the documents were necessary for the resolution of the proceedings.

The court concluded that the defendant should be ordered to sign an authority to Centrelink and the Social Security Appeals Tribunal to produce files to the plaintiff's solicitors. The court held that the plaintiff had demonstrated a sufficient connection between the documents and the proceedings, and that the defendant's argument based on section 207 of the Social Security (Administration) Act 1999 (Cth) was not sufficient to prevent the order. The court also noted that the defendant's concern about the confidentiality of the documents was not sufficient to outweigh the need for the plaintiff to have access to them.

Orders