Wray v Wray

[2007] NSWSC 164

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:

“An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992 , be required:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992 , to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions."

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 by return that your client accepts this as a matter of fact.

If so, could you please confirm that the liability to our client is correctly noted as a liability/creditor of the estate. If not, why not? If so, could you please provide to us by return with a copy of your client's sworn affidavit as to the assets and liabilities of the estate as filed in Court so that we may be satisfied as to same.

In addition, would you please confirm that your client accepts that she is personally indebted to our client and/or Bathox Pty Ltd to the extent of the repayments made by one or other of those parties to Centrelink on account of your client's social security debt for social security benefits improperly (or possibly fraudulently) obtained by your client. If your client denies liability in that respect, please advise on what basis such liability is denied."

4 The response did not confirm that the defendant accepted the allegation that Bathox or the plaintiff had discharged in full the indebtedness of the defendant and the deceased.

5 In light of the restriction contained in the provision of the Social Security (Administration) Act 1999 (Cth) set out above, it is unlikely that any third party approach to Centrelink will elicit a response.

6 The plaintiff referred to two decisions in which this problem has been considered. In Merkuloff v Yalisheff [2003] NSWSC 1183, Young CJ in Eq, in an application by a defendant for Centrelink information, adverted to the provision to which I have referred, observed that there must be some doubt as to whether the power of the Commonwealth was sufficiently wide to prohibit the matters in that section, but formed the view that the defendant could obtain the information by an order in personam against the plaintiff that the plaintiff's proceedings be stayed until the plaintiff forwarded to the defendant the required information.

7 The other decision to which reference was made was Attard v Hore [2002] QSC 437 in which Dutney J, again on an application by a defendant, made an order that the plaintiff execute an authority addressed to Centrelink provided to her by the solicitors for the defendants.

8 The authority that is sought in this case recites that the defendant was appointed the executrix of the estate of her deceased husband and probate of his will was granted to her. It authorises each of Centrelink and the Social Security Appeals Tribunal to produce to the solicitors for the plaintiff all files, records and documents relating to the deceased and to the defendant.

9 The application is opposed on a number of grounds. First, it is submitted that the information sought is irrelevant because it was Bathox Pty Ltd, a company in which the plaintiff and her husband, Gary Shewan, had interests, that paid the money.

10 In my view that objection should be rejected. The recent affidavit material now establishes that while the moneys were paid by Bathox, they were charged to a loan account for which the plaintiff and her husband were jointly responsible.

11 The second objection is that no claims have been made upon the estate and such a claim might well be accepted and the Centrelink files lack relevance. I reject that submission. The correspondence clearly raised the issue that the plaintiff had discharged the indebtedness of the defendant and the deceased to Centrelink for acceptance, and that acceptance was not forthcoming. It should also be noted that notwithstanding that no claim may yet have been made, the Family Provision Act 1982 application will require a determination of the value of the estate and that will necessitate an analysis of any liabilities. Furthermore, an element in those proceedings will be the question whether the plaintiff made a significant financial contribution to the deceased shortly before his death.

12 The width of the authority is challenged. It is said that there is no reason why the defendant's file should be made available and to do so is merely to embark upon a fishing expedition. But the response to the letter referred to above by the solicitors for the defendant of 1 November 2006 indicated that not only the deceased, but also the defendant was in receipt of the age pension in question and it was the defendant who volunteered and wrote to Centrelink to cancel both pensions whereupon Centrelink investigated the matter. It seems to me that access to the file of the defendant is not beyond the scope of a proper investigation for a legitimate forensic purpose.

13 The next objection is that the above authorities were cases in which defendants sought access to plaintiffs’ files and in each case the judge had said that when one comes to court one is under an obligation to assist the court in coming to a fair conclusion.

14 While that is a point of distinction from the instant circumstances, it does not seem to me that the principle underlying the in personam orders in those cases should be different in the case of a plaintiff seeking information from Centrelink with respect to a defendant. A defendant is also obliged to act with candour and assist the Court. The Civil Procedure Act 2005, s 56(3) places a duty on all parties, plaintiffs and defendants, to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings.

15 In the circumstances it appears to me that a foundation has been made for an order that the defendant sign an authority addressed to Centrelink and the Social Security Appeals Tribunal.

16 In Attard, Dutney J said he was concerned by the question whether the Centrelink file was directly relevant as its contents were unknown. I share that concern. If the contents of the files were known, the court might modify its order. But here it is clear that a debt was owed by the defendant and the deceased to Centrelink and, on balance, I am of the view that the contents of the files are relevant and the notice of motion should succeed.

17 I make an order in terms of paragraph 1 of the notice of motion. Costs are reserved. I order that there be liberty to apply with respect to the balance of the notice of motion.

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