Supreme Court New South Wales Medium Neutral Citation: Danihel v Manning [2012] NSWSC 556 Hearing dates: 9 May 2012 Decision date: 09 May 2012 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Application for disclosure refused. Catchwords: [DISCLOSURE] - Practice Note SC Eq 11 -application for disclosure prior to service of evidence - where party has served numerous subpoenas - "exceptional circumstances" Cases Cited: Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458 Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Prowse v Rocklands Richfield [2012] NSWSC 448 Category: Interlocutory applications Parties: Marian Danihel (1st Plaintiff) Zofia Danihel (2nd Plaintiff) Christopher Neil Manning (Defendant) Representation: Counsel: MN Thompson (Plaintiffs) TM Catanzariti (Defendant) Solicitors: Vrege Kolokossian (Plaintiffs) Aubrey Brown Partners (Defendant) File Number(s): 2011/198244 Judgment 1This is an application consequent upon the outcome of a hearing in respect of an Amended Notice of Motion filed in Court today. The Amended Notice of Motion sought three orders: the first, that the defendant be required to file an Amended Defence giving such particulars of his denial of paragraph 20A of the Third Amended Statement of Claim as will enable the plaintiffs to identify which of the 21 particulars thereof are placed by him in issue; the second, that the order made by Registrar Musgrave that the plaintiffs serve their evidence in chief by 26 April 2012 be vacated; and the third, that the defendant give discovery to the plaintiffs, verified on oath, of the whole of the documents in the classes in subparagraph (a) to subparagraph (v) of the list annexed to the Motion. 2This case has had an unfortunate history. The plaintiffs' solicitors have gone about subpoenaing numerous parties and institutions and have called upon most of those subpoenas. The plaintiffs' solicitors are in receipt of numerous documents, the subject of production on subpoena. One subpoena served on the solicitors for the defendant was not called upon and I will return to that issue in due course. 3The Third Amended Statement of Claim was filed on 20 October 2011 and seeks, inter alia, an order setting aside a purported will of the late Hilda Nada Groves (the deceased) dated 8 December 2010. Other orders include the revocation of the grant of probate in respect of that will. The plaintiffs also seek an order granting them Probate of the deceased's will of 23 July 2010 or, in the alternative, an order granting them Probate of the deceased's will of 1 October 2009. 4The deceased died on 28 January 2011 aged 86 years. It is apparent that prior to her death she suffered some ill health and for a period was an inpatient at the Long Jetty Hospital. The deceased was also the subject of an order made by the Guardianship Tribunal on 6 December 2010 for the financial management of her affairs. The defendant was appointed as the co-manager of the deceased's financial affairs. 5It is apparently not in issue that the defendant was the deceased's solicitor for many years. It is also apparently not in issue that the deceased made a number of wills over the years. The plaintiffs were the beneficiaries of the estate of the deceased under the earlier will referred to in the Third Amended Statement of Claim. It is also the fact that the plaintiffs had been the beneficiaries in prior wills, albeit that one will in particular named Mr Keech as the sole beneficiary of the estate, however it appears that such will may have been destroyed. 6The plaintiffs originally claimed that the defendant had unduly influenced the deceased in the making of the will of December 2010, but that allegation has been withdrawn. Notwithstanding that withdrawal, there remains within the pleading, in particular in paragraph 20A, circumstances that are allegedly suspicious surrounding the execution of the will. That pleading claims that the circumstances identified in particulars 1 to 21 "excite a suspicion that the deceased lacked knowledge and approval of its contents, which suspicion is required to be dispelled by the defendant." 7The plaintiffs filed and served evidence in mid 2011 but then went about the service of subpoenas in an attempt to gather material upon which the plaintiffs could rely in proving that the deceased lacked testamentary capacity. The subpoenas were the subject of a challenge that was dealt with by Ball J on 19 September 2011. His Honour limited the subpoenas in the way described in a note that had been prepared by counsel for the defendant, which his Honour initialled and placed with the Record of Proceedings. One of those subpoenas was the subpoena addressed to Aubrey Brown Partners, the solicitors for the defendant. The correspondence demonstrates that the solicitors for the defendant gathered documents in answer to the subpoena, including obtaining documents that had been sent to archives, and readying those documents for production to the Court when the subpoena was called upon. The solicitors wrote to the plaintiffs' solicitors advising that they had incurred costs of some $2,200 and claimed that those were the reasonable costs of compliance with the subpoena. This notification caused consternation amongst the plaintiffs' legal representatives and the solicitors for the plaintiffs then wrote to the defendant's solicitors suggesting that the costs were exorbitant. There the matter remained. The plaintiffs did not call upon the subpoena. 8The parties went to mediation in February 2012 and thereafter the plaintiffs pursued a heralded claim for discovery (now disclosure). The defendant's solicitors suggested that a motion would be necessary and the parties seem to have been at odds about that matter for some weeks. 9The plaintiffs' evidence was due on 26 April 2012. On 24 April 2012 the plaintiffs' solicitors notified the defendant that further evidence would not be filed and served and that the plaintiffs would make an application for disclosure. This notification was after the introduction of Practice Note SC Eq 11 and the defendant's solicitors suggested that it was an inappropriate step in the circumstances. 10The matter came before the Registrar in Equity today and was referred to me under the regime in respect of applications for disclosure prior to evidence being served. 11The Schedule of documents that was served on the defendant's solicitors was as follows: 1.All documents between the defendant (by himself or otherwise) and the late Hilda Nada Groves ("the deceased") from 1 January 2005 to date. 2.All Wills and past Wills of the deceased from 1 January 2000 to date. 3.All documents relating to a Will prepared by or on behalf of the deceased, whether or not signed or adopted by the deceased, from 1 November 2010 to date. 4.All documents relating to the deceased's cognitive functioning between 7 December 2010 and 9 December 2010. 5.All documents between the defendant (by himself or otherwise) and the New South Wales Trustee and Guardian from 1 July 2010 to date relating to the deceased. 6.All documents received from the NSW Trustee and Guardian from 1 November 2010 to date. 7.All documents between the defendant (by himself or otherwise) and the Guardianship Tribunal from 1 July 2010 to date relating to the deceased. 8.All documents received from the Guardianship Tribunal from 1 November 2010 to date. 9.All documents between the defendant (by himself or otherwise) and the Wyong Hospital from 1 July 2010 to date relating to the deceased. 10.All documents between the defendant (by himself or otherwise) and the Long Jetty Hospital from 1 July 2010 to date relating to the deceased. 11.All documents between the defendant (by himself or otherwise) and the John Matthew Nursing Home from 1 July 2010 to date relating to the deceased. 12.All documents between the defendant (by himself or otherwise) and the Maxine Louise aged care facility from 1 July 2010 to date relating to the deceased. 13.All documents between the defendant (by himself or otherwise) and the William Cape Gardens residential aged care facility from 1 July 2010 to date relating to the deceased. 14.All documents between the defendant (by himself or otherwise) and solicitors Hartcher Reid from 1 July 2010 to date relating to the deceased. 15.All documents received from solicitors Hartcher Redi from 1 November 2010 to date. 16.All documents between the defendant (by himself or otherwise) and solicitors J.J. Lees & Associates from 1 July 2010 to date relating to the deceased. 17.All documents between the defendant (by himself or otherwise) and Miloslav Pospisi from 1 July 2010 to date relating to the deceased. 18.All documents between the defendant (by himself or otherwise) and Dorothy Long from 1 July 2010 to date relating to the deceased. 19.All documents between the defendant (by himself or otherwise) and a medical practitioner in respect of the deceased from 1 July 2010 to date. 20.All documents between the defendant (by himself or otherwise) and a professional carer in respect of the deceased from 1 July 2010 to date. 21.All documents relating to the sale or proposed sale of the property known as 4 Dandenong Street, Hamlyn Terrace in New South Wales, including the proceeds of any such sale, between 1 July 2008 to date. 22.All documents relating to the sale or proposed sale of the property known as 32 Chelmsford Road, Lake Haven in New South Wales, including the proceeds of any such sale, between 1 January 2011 to date. 12The subpoena to produce documents that were served on the defendant's solicitors required production of the following: 1.All records and personal documents of the late Nada Hilda Groves. 2.All records and personal documents of any person related to the late Nada Hilda Groves. 3.All communication between Aubrey Brown Partners and the late Nada Hilda Groves from 1 January 1990 to date. 4.All communication between Aubrey Brown Partners and any person related to the late Nada Hilda Groves between 1 January 1990 to date. 5.All work performed for the late Nada Hilda Groves from January 1990 to date. 6.All work performed for any person related to the late Nada Hilda Groves. 13It is difficult to understand how the documents produced by Aubrey Brown Partners would be any different to the documents sought in the discovery list. For instance, "all records and personal documents of any person related to the late Nada Hilda Groves" and "all communications between Aubrey Brown Partners and the late Nada Hilda Groves from 1 January 1990 to date" would cover all the material sought in the list for discovery. That needs to be viewed in the light of the fact that Ball J limited those categories to a particular date in the note from 1 January 2007 to 28 January 2011. 14Since Practice Note SC Eq 11 Disclosure in the Equity Division commenced on 26 March 2012 there have been some applications relating to claims of "exceptional circumstances": Prowse v Rocklands Richfield [2012] NSWSC 448; Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458. In this particular category of case, where there is a claim that a deceased lacked testamentary capacity, one can envisage a necessity to obtain documents for the purpose of instructing a geriatrician to assist in deciding whether an application should be made. It may be that in cases where parties are concerned that a person lacked testamentary capacity at the time a will was made, they would seek the expert opinion before commencing proceedings by way of preliminary discovery. Practice Note SC Eq 11 does not affect that process for preliminary discovery. 15This case is different. In this case the plaintiffs have propounded a positive case, initially, that the deceased lacked testamentary capacity and that the defendant had unduly influenced her, but now propound a positive case that the deceased lacked testamentary capacity in reliance upon the orders made by the Guardianship Tribunal. The additional documents that are sought in this case are to assist the plaintiffs in briefing an expert, a geriatrician, to express an opinion additional to that material to which I have just referred. The fact is that the plaintiffs have already gone about obtaining much of the material by the process of issuing subpoenas prior to the introduction of Practice Note SC Eq 11. The challenges to the subpoena occurred prior to that introduction and therefore it was not suggested that the plaintiffs were seeking to circumvent the regime under Practice Note SC Eq 11. It is not clear to me why the plaintiffs have not instructed a geriatrician to obtain an opinion, because it would appear that they have already received medical records and nursing notes, including materials from the Guardianship Tribunal. The Long Jetty Hospital has been subpoenaed. The Terrigal Grosvenor Lodge has been subpoenaed. The residential aged care facility known as the William Cape Gardens Facility has been subpoenaed, as have all of the previous solicitors who apparently acted for the deceased. 16In applications under Practice Note SC Eq 11 to show "exceptional circumstances", it would be necessary to demonstrate the necessity to obtain documents to fairly prepare a case for trial. That is, that the party is unable to serve its evidence without certain documents. That is not the case in these proceedings. There is an aspect to this case that is also of concern, and that is the failure by the plaintiffs to call upon the subpoena to Aubrey Brown Partners once the plaintiffs became aware that Aubrey Brown Partners had prepared the documents for production. There was a suggestion that Aubrey Brown Partners were not entitled to conduct themselves contemptuously of an order of the Court. That submission had to be rejected in circumstances where Aubrey Brown Partners were ready, willing and able to produce the documents, but they were never called upon. Good sense has prevailed and the parties came to an arrangement whereby the plaintiffs' solicitors agreed to pay the fees referred to earlier, the documents have now been produced to the Court and photocopy access has been granted. That should have happened before today. 17The plaintiffs' application for disclosure in the circumstances had to fail. They had embarked upon an interlocutory process requiring production of documents and rather than calling on the subpoena and looking at the documents, they then turned their attention to trying to obtain them otherwise. I regard that process as unsatisfactory. It was not possible for the plaintiffs to know what documents were necessary for production (if at all) prior to looking at the documents that were ready for production from Aubrey Brown Partners. Indeed, it is not conceded by the defendant that the Aubrey Brown Partners documents were necessary prior to the plaintiffs putting on their evidence, having regard to the fact that so many subpoenas have already been issued and answered. Accordingly, the plaintiffs failed in their application for Order 3 in the Amended Notice of Motion. 18The order seeking the vacation of Registrar Musgrave's order would also fall with that conclusion, except that the plaintiffs have failed to comply with it and as a matter of comity I would vacate it in any event. But that can hardly be seen as a victory for the plaintiffs. Rather it was regularising the record. 19The next order sought by the plaintiffs is for particulars of the defendant's defence to paragraph 20A of the Third Amended Statement of Claim. The defendant resisted the provision of particulars in correspondence that is annexed to the affidavits relied upon by the parties in these applications. However, on 1 May 2012 the defendant's solicitors wrote to the plaintiffs' solicitors advising that they did not agree that it was necessary to traverse the 21 particulars referred to in the pleading. The defendant's solicitors noted that they were not required to traverse particulars and relied in support upon Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72. The defendant's solicitors then advised that: To the extent that we are required to provide particulars to our denial in clause 21 of our Defence, we provide the following particulars: 1.The Will dated 8 December 2012 was rational on its face; 2.The Will was prepared by a solicitor, Bill Reid from Hartcher Reid; 3.The Will was properly executed and witnessed by Bill Reid and Marie Wilson; 4.The reasons for the Deceased's instructions for her Will are set out in the handwritten file note and typed file note of Chris Manning dated 8 December 2012; 5.The tenor of the Deceased's instructions are consistent with the file notes prepared by JJ Lees contemporaneous with the Deceased's prior Wills prepared by JJ Lees, and the file note prepared by Shane Boesen contemporaneous with the Deceased's prior Will prepared by Shane Boesen Solicitors; 6.When the Deceased prepared the Will, the Plaintiss were no longer caring for the Deceased; 7.The Deceased's Medical Reocrds and the Deceased's Death Certificate do not include any diagnosis of dementia. 20I agree with the defendant's approach in respect of the particulars. Many of the particulars are not truly particulars. They should have been pleaded as a claim in respect of either the defendant's conduct or the plaintiffs' position. I have indicated to counsel for the plaintiffs that many of the particulars are so obviously not required to be traversed because they come from observations of a document, for instance, particulars I to IV and XVI of the Third Amended Statement of Claim. 21Notwithstanding that the defendant's solicitors had provided a form of particulars on 1 May 2012, the plaintiffs proceeded to argue for further particulars today. I have been through the particulars seriatim and indicated to the plaintiffs that I do not intend to make an order as sought in the Amended Notice of Motion. Accordingly, the plaintiffs' Amended Notice of Motion is to be dismissed. 22The defendant seeks the costs of today on the basis that he has successfully resisted the orders sought by the plaintiffs and that is the event that costs should follow. There is another aspect to this case that was the subject of Ms Catanzariti's, counsel for the defendant, submissions. This is a matter that should be in the Probate List. I intend to place it before the Probate Judge on 14 May 2012 for case management and preparation for trial. By then the plaintiffs will have had access to the documents produced by Aubrey Brown Partners today and the parties should be in a position to provide his Honour with a regime for further case management and listing the matter for hearing. It was therefore necessary that the parties be present today for the purpose of regularising the process for further case management and I intend to take that into account in making any costs order. 23Counsel for the plaintiff, Mr Thompson, seeks an order that costs be costs in the cause. I am satisfied that the plaintiffs should pay the defendant's costs of today, but with a reduction to recognise that there are other aspects that needed to be dealt with during the course of today's proceedings. It is always difficult to assess that percentage and there can be no scientific precision in doing so, but I regard it as fair that the defendant's costs of today, less 20 percent, should be paid by the plaintiffs. 24Accordingly, I order that the plaintiffs pay 80 percent of the defendant's costs of today. I list the matter before White J in the Probate List on 14 May 2012. I dismiss the Amended Notice of Motion filed in Court today. ********** 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. Decision last updated: 23 May 2012