New South Wales Supreme Court CITATION : Good v Neubacher [2003] NSWSC 518 HEARING DATE(S) : 13/06/03 JUDGMENT DATE : 17 June 2003 JUDGMENT OF : Gzell J DECISION : Order for particulars refused. Order for discovery granted. CATCHWORDS : PRODCEDURE - Miscellaneous Procedural Matters - Pleadings - Particulars - Joint tenancy of property of husband and wife - Husband alleged to have killed his wife and then killed himself - Murder alleged to have augmented estate of husband to the extent of a half interest in the property - Pleading alleged augmentation due to unconscionable conduct and unjust enrichment - Psychiatrist retained by defence sought access to psychiatric notes with respect to the victim - Particulars refused by Registrar - Review under Pt61 r3 - Whether particulars of the identity of psychiatrists and psychologists the victim consulted should be ordered - notice of motion amended to seek discovery of documents indicating psychiatrists and pschologists consulted by victim - Whether a fishing expedition. LEGISLATION CITED : Supreme Court Rules 1970 Forfeiture Act 1995 In the Will of Sheppard [1972] 2 NSWLR 714 CASES CITED : Builders' Licensing Board v Inglis [1985] 1 NSWLR 592 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 Alister v R (1983-1984) 154 CLR 404 PARTIES : Kim Lenore Good in her capacity as representative of the Estate of Eleanor Frances Taylor (deceased) - Plaintiff Diana Neubacher in her capacity as representative of the Estate of John Dawson Taylor (deceased) - Defendant FILE NUMBER(S) : SC 3359/02 COUNSEL : Mr R Horsley - Applicant/Defendant Mr A G Todd - Respondent/Plaintiff SOLICITORS : Swaab Attorneys L C Muriniti & Associates IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J TUESDAY 17 JUNE 2003 3359/02 KIM LENORE GOOD in her capacity as representative of the ESTATE OF ELEANOR FRANCES TAYLOR (deceased) v DIANA NEUBACHER in her capacity oas representative of the ESTATE OF JOHN DAWSON TAYLOR (deceased) JUDGMENT 1 The defendant sought review, under the Supreme Court Rules 1970, Pt 61 r 3, of Registrar Howe's dismissal of a notice of motion seeking particulars of the plaintiff's statement of claim. This procedure is not an appeal and it is not incumbent upon the applicant to demonstrate error on the part of the Registrar (In the Will of Sheppard [1972] 2 NSWLR 714). 2 I allowed an amendment to the notice of motion by which the defendant sought, in the alternative, discovery of documents relating to the matters the subject of the request for particulars. 3 The matter has been set down for trial before me on 18 July 2003. The notice of motion also sought vacation of that hearing. 4 The plaintiff is the executrix of the estate of the late Eleanor Frances Taylor. The defendant is the executrix of the estate of the late John Dawson Taylor. In her statement of claim, the plaintiff alleges that Mr Taylor shot and killed Mrs Taylor and then shot and killed himself. Mr and Mrs Taylor were joint tenants of a property at Rouse Hill. The statement of claim alleges that the estate of Mr Taylor was enlarged by the inclusion of the Rouse Hill property. Paragraph 10 of the statement of claim is as follows: "That the enlargement of: (a) John Taylor's property during his lifetime, and (b) the estate of John Taylor following his death, to the extent of a half interest in the Rouse Hill property previously held by Eleanor Taylor prior to her death occurred solely by reason of the unconscionable conduct and unjust enrichment of John Taylor and, following his death, his estate by reason of the actions of John Taylor particularised in paragraph 4 above. Particulars (a) John Taylor's property was enlarged by half interest in the Rouse Hill property solely by reason of his murder or unlawful killing of Eleanor Taylor. (b) John Taylor profited from his actions in slaying Eleanor Taylor and not otherwise." 5 The particulars sought were the names and addresses of the following: "1. Any clinic or similar institution where the late Eleanor Francis Taylor may have received treatment for alcoholism or any mental condition or for any dependency on any addictive substance. 2. Any medical practitioners consulted by the late Eleanor Frances Taylor within the last seven years prior to her death. 3. Any psychologists, psychiatrists or counsellors consulted by the late Eleanor Frances Taylor." 6 The discovery sought by the amendment to the notice of motion was as follows: "(a) All documents indicating whether the late Eleanor Francis Taylor was at any time in the years 1997 to 2002 receiving any treatment for alcoholism, or any mental condition, or for any dependency or ( sic ) any addictive substance; (b) all documents identifying the name of any clinic or similar institution where the late Eleanor Frances Taylor may have received treatment for alcoholism, or in any mental condition, or for any dependency or ( sic ) any addictive substance; (c) all documents identifying the names of any medical practitioners consulted by the late Eleanor Frances Taylor in the years 1997 to 2002; and (d) all documents identifying the names of any psychologists, psychiatrists or counsellors consulted by the late Eleanor Frances Taylor in the years 1997 to 2002." 7 In the proceedings before Registrar Howe, mention was made of the Forfeiture Act 1995. That legislation has not been raised in the defence and Mr Horsley, who appeared for the defendant applicant, conceded that it was premature to base his request for particulars or discovery on that legislation. He foreshadowed, however, an application to seek leave to file a cross-claim to raise that legislation. 8 The purpose of particulars is well understood. It is to inform the other side of the nature of the case the other side is called upon to meet (Builders' Licensing Board v Inglis [1985] 1 NSWLR 592 at 596). Mr Horsley submitted that he was entitled to particulars of the unconscionable conduct and unjust enrichment relied upon. 9 In my view, however, the particulars already given in par 10 of the statement of claim, limit the unconscionable conduct and unjust enrichment relied upon to Mr Taylor's murder of his wife. Mr Todd, who appeared for the plaintiff respondent, accepts that this is so. 10 In my view, Registrar Howe was correct in his approach and when the matter was heard before me on 13 June 2003 I dismissed those portions of the notice of motion seeking to set aside Registrar Howe's decision and seeking orders for the provision of particulars. 11 Dr Michael Diamond, a forensic psychiatrist, has been retained by the defence to provide a psychiatric opinion about Mr Taylor. He says that in order to perform this task it is necessary for him to have access to information: "It is important to have access to independent third party views concerning those involved. Amongst this material, as I understand it, are psychiatric notes which pertain to the deceased's late wife. As part of ordinary psychiatric assessment and note-taking, there is likely to be information concerning their relationship, his involvement in the problems she may have been having, and aspects of the interactions that occurred between them. For these reasons, access to those clinical notes would form an important part of coming to a view concerning the state of mind of the late John Taylor." 12 Mr Horsley submitted there was a forensic purpose in the discovery of this material because the defence has put in issue the allegation of unconscionable conduct and unjust enrichment. 13 Mr Todd submitted that Dr Diamond's statement is very broad and is akin to a fishing expedition and there was no forensic purpose for the discovery at this stage. Different considerations might apply if and when the defendant filed a cross-claim. 14 Fishing was described in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 as follows: "A "fishing expedition", in the sense in which the phrase has being used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not." 15 In my view the application for discovery is not a fishing expedition. The nature of the material is identified by Dr Diamond. As Gibbs CJ said in Alister v R (1983-1984) 154 CLR 404 at 414-415, albeit in the context of criminal proceedings, mere fishing is not allowed but it may be enough if it appears to be "on the cards" that the documents will materially assist the defence. 16 In my view a sufficient forensic purpose was made out for the discovery before the putting on of any cross-claim and I made orders in terms of the amendment to the notice of motion. 17 Both sides agreed that it was premature for me to deal with the application to vacate the trial of the matter. I proposed to direct the defendant to file and serve any cross-claim within a week. Mr Todd raised no objection to this course. I therefore ordered the defendant to file and serve any cross-claim by 20 June 2003 and I stood the matter over for further directions on 25 June 2003, indicating that I would publish my reasons in due course. I now do so. ********** Last Modified: 06/18/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.