HER HONOUR: Before the Court this afternoon is a notice of motion that was filed on 12 September 2019 on behalf of each of the three defendants in these proceedings. As I will explain shortly, the substantive issue to be dealt with in that notice of motion has been resolved by agreement between the plaintiff and the third defendant, but what remained to be dealt with this afternoon is the application by the third defendant for the costs of the notice of motion and the submission put for the plaintiff that there should be some limitations placed on the disclosure of the documents which were the subject of the application.
Very briefly by way of background, these are proceedings in the Family Provision List. They were commenced by summons filed on 25 March 2019 by the plaintiff, seeking provision out of the estate of the deceased and claiming to be an eligible person on the basis of a de facto relationship with the deceased. The three defendants to the proceedings are the co-executors of the deceased. The first two defendants are the children of the deceased and the third of the defendants is a grandchild of the deceased. When the matter commenced, all three defendants were represented by the same solicitor.
The matter first came before the Court for directions before the Family Provision List Judge on 3 May 2019. On that occasion, Hallen J made various directions, including a direction for the defendants to serve by 4pm on 24 May 2019 the affidavits referred to in paragraph 9 of the Practice Note SC Eq 7, excepting the affidavit in reply.
The matter was stood over for further directions before the Family Provision List Judge on 31 May 2019. On that day, the Family Provision List Judge referred the matter to private mediation, appointed 8 July 2019 before Mr JJ Loofs of Senior Counsel as mediator, and made various other orders. One of those other orders was to stand the matter over for further directions before the Family Provision List Judge on 19 July 2019.
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On 19 July 2019, when the matter came back before the Family Provision List Judge, directions were made for each party to serve any further evidence-in-chief, or in reply to affidavits served prior to 19 July 2019 by 4pm on 13 August 2019. The defendants did not comply with that direction.
On 13 September 2019, the matter came before Kunc J sitting in the Family Provision List. His Honour was informed on that occasion, as I understand it, that the first and second defendants were seeking advice as to whether to bring a separate claim against the estate and to be separately represented. On that occasion, Kunc J ordered the third defendant to file and serve her evidence-in-chief by 4pm on 27 September 2019 and stood the matter over for further directions on 18 October 2019, directing the first and second defendants to be in a position to inform the Court on that day whether or not they intended to bring separate proceedings in their respective interests.
The matter came before me sitting in the Family Provision List on 18 October 2019. By that time, the notice of motion now before me had been filed (on 12 September 2019). I made directions on 18 October 2019 for the motion to be listed for hearing today at 2pm, and directions for evidence to be filed in relation to the notice of motion.
What is apparent from the correspondence put before me on the present application is that the first and second defendants are now no longer represented by the solicitor acting for the third defendant. A notice of ceasing to act for the first and second defendants has been filed on 1 November 2019 by the solicitors formerly acting for them. By letter dated 16 October 2019 to the third defendant's solicitor, another firm of solicitors (Grieve Watson Kelly Lawyers) has advised that it acts for the first and second defendants. No notice of appearance on behalf of the first and second defendants appears to have been filed by Grieve Watson Kelly Lawyers to date. Nor has that firm indicated, as I understand it, what the position is as to the first and second defendants' intention to lodge a separate family provision claim.
Counsel for the third defendant has foreshadowed that there may be a need for an application to be made under r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) for the third defendant to represent the estate in the proceedings. That would be a necessary and obvious step if there are to be separate family provision claims brought by the first and second defendants against the estate in these proceedings.
That procedural background is of some relevance to the current application, because the plaintiff's solicitor has been agitating in correspondence for some time to ascertain the position in relation to the legal representation of the first and second defendants and to ascertain on whose behalf the notice of motion currently before the Court is being pursued.
The notice of motion that was filed sought orders staying the proceedings and sought orders that, in the event that the plaintiff failed to provide an executed Freedom of Information application attached to the defendant's request dated 16 May 2019 within 28 days, then the proceedings be dismissed. It also sought costs.
The significance of the Freedom of Information application that the third defendant presses (and that initially all defendants were pressing) the plaintiff to make arises because there is a dispute as to the plaintiff's contention as to a de facto relationship with the deceased. What is sought are the plaintiff's Centrelink records, on the basis that they will indicate whether the plaintiff was claiming a single pension (in which case it is said that this will cast doubt on the contention that she and the deceased were in a de facto relationship at the time of the deceased's death) (see the affidavit sworn in support of the notice of motion by the third defendant's solicitor, that being an affidavit sworn 12 September 2019).
The request for authorisation for the release of Centrelink documents was first made, as adverted to above, by letter dated 16 May 2019 from Marsdens to Cara Marasco & Co, the solicitors acting for the plaintiff. That letter referred to the decisions of El-Helou v Smith [2009] NSWSC 741(El-Helou v Smith) and Merkuloff v Yalisheff [2003] NSWSC 1183. The application form attached did not indicate the period for which, or a description of the documents sought to be obtained. There was subsequent correspondence, by letters dated 6 June 2019, 4 July 2019, 12 July 2019 and 24 July 2019, pressing for the requested Centrelink Freedom of Information form. The need for such a form to be executed by the plaintiff is because of the statutory privacy provisions which would preclude the defendants obtaining copies of the Centrelink records by the ordinary compulsory processes of the Court.
The only response by the plaintiff to the request for execution of the Freedom of Information forms, to which I have been taken, appears to be a letter dated 4 July 2019 from the plaintiff's solicitors providing information about receipt of benefits by the plaintiff from Centrelink and enclosing certain documents; but that letter did not address the request for a release form to be signed.
I have also been taken to a bundle of correspondence handed up by the solicitor for the plaintiff, from 14 October 2019 through until 5 November 2019, in relation to the present motion. In particular, the 14 October 2019 letter sought advice as to whether the third defendant's solicitors would still be continuing to act for the first and second defendants.
It would appear that, by letter dated 17 October 2019, the third defendant's solicitors enclosed a copy of the letter from Grieve Watson Kelly Lawyers of 16 October 2019, which would have made apparent that the first and second defendants were to be separately represented. By letter dated 30 October 2019, the plaintiff's solicitors proposed the resolution of the current notice of motion on the basis of orders that it be dismissed and that costs be reserved. With that letter was enclosed a letter to the Department of Health Services enclosing a signed Freedom of Information request with identification documents in relation to the requested Centrelink records.
The response by letter dated 4 November 2019 from the third defendant's solicitors was to request that that application be amended to produce records for the period 1 January 2010 until 24 November 2018, on the basis that the plaintiff asserted she was in a relationship with the deceased from 2010 to his death on 24 November 2018, and an undertaking that all records provided in answer to the Freedom of Information application would be released to the third defendant's office was requested.
The response, by letter dated 4 October 2019, sought confirmation as to who was prosecuting the notice of motion and which legal representative was appearing in the notice of motion for which defendant. Subject to that response, what was sought was information as to whether the third defendant's solicitors were giving an undertaking to pay the fees (and on behalf of which defendant or defendants) in order to enable the production of the Centrelink records and a further undertaking by whichever legal representative was acting on behalf of whichever defendant or defendants that the third defendant's solicitors appeared for, that "[y]ou will not release our client's Centrelink records to your clients or anyone else, other than any counsel briefed by you or a justice of the Supreme Court of New South Wales".
The response to that, by letter dated 5 November 2019 from the third defendant's solicitor, was to enclose by way of service a notice ceasing to act for the first and second defendants. There was then a letter dated 5 November 2019 from the third defendant's solicitors to the plaintiff's solicitors offering to settle the motion on the basis that the motion be dismissed, the undertaking of the solicitor for the plaintiff to provide all documents received from Centrelink, to be provided to the first defendant's solicitor to be noted and for an order that the plaintiff pay the defendant's costs of the motion.
In support of the application for costs on this motion, the third defendant has read an affidavit sworn by Ms Krystle Wolthers on 12 September 2019. The plaintiff has read an affidavit sworn 24 October 2019 from the plaintiff's solicitor Joseph Frank La Cava on this application.
The current state of play, so to speak, is that the plaintiff has agreed to and/or has already submitted a Freedom of Information application for the requested Centrelink records in respect of the requested period of time and is prepared to undertake to provide all documents released by, in response to the Freedom of Information application to the solicitors for the third defendant; and the third defendant is prepared, through the third defendant's Counsel, to undertaking to treat the documents received by the third defendant's legal representatives as if the recipients of those documents were bound by what is commonly referred to as the Harman undertaking.
The only issue, therefore, in relation to the regime for the production of the documents, is whether there should be a limitation on access to the documents at this stage, restricting access to the documents to the legal representatives for the third defendant. The concern in relation to that, on the part of the plaintiff, is a concern raised by reference to the uncertainty to date as to legal representation for the first and second defendants and the private nature of the documents. It is submitted that, in the event that the documents are provided to the third defendant (and particularly as the third defendant is a co-executor of the first and second defendants), it would follow "as night follows day" that the documents would be provided to the first and second defendants.
The position of the third defendant is that there is no special reason why there should be any limitation placed on the third defendant's ability to have access to the documents, in circumstances where ordinarily a party to proceedings would have access to the documents and where the third defendant has offered to be bound by the Harman undertaking.
I am of the opinion that the documents to be provided to the third defendant's legal representatives in accordance with the undertaking of the plaintiff, should be able to be made available to the third defendant, so that instructions can be obtained in relation to the proceedings and, in particular, in relation to the evidence that the third defendant is required to file and serve in these proceedings. I am, however, conscious of the fact that there is a potential difficulty, in that the third defendant will have duties as co-executor in relation to the consultation or the like with the first and second defendants, until such time as the third defendant is entitled to represent the estate in the third defendant's sole capacity; and I would infer from the concerns expressed by the plaintiff that there may be difficult family issues as between the respective parties.
At this stage what I propose to do is not to place any limitation on the provision of the documents to the third defendant, but to direct that the third defendant not disclose those documents to the first and second defendants without further order of the Court, or until the first and second defendants have proffered a written undertaking to be bound by the Harman undertaking in relation to those documents. That, it seems to me, will address both sides' concerns in relation to the access to the documents.
The only question that then leaves is a question in relation to costs. The third defendant submits that, by analogy with the position in the El-Helou v Smith, there should be an order for costs of the notice of motion in the third defendant's favour, in circumstances where parties bringing proceedings in this Court, as the plaintiff does, have an obligation to assist the Court in coming to a fair conclusion and it is not in the interests of the just, quick and cheap resolution of the real issues in dispute for there to have been a refusal to provide the requested Freedom of Information application access form.
The plaintiff submits that the position is not as was the case in apparently the El-Helou v Smith, where there had been an outright refusal to acknowledge any Centrelink benefits or the like and the plaintiff points to the unsatisfactory state of the delay in compliance with directions of the Court in relation to the filing of evidence and the like on the part of the third defendant and to the position in relation to the first and the second defendants that I have referred to already.
It should be noted that the exercise of the costs discretion in relation to an interlocutory application of this kind is informed in part by the overriding mandate in respect of the conduct of the civil litigation in this Court; see s 56 of the Civil Procedure Act 2005 (NSW) and there is some force to the submission that costs judgments should be made having regard to what will encourage litigants in this Court to comply with the obligations of litigants in this Court.
It is also the case, however, that ordinarily where there has been a resolution of an interlocutory application in the proceedings, without a contested hearing in relation to that application, then the Court will not entertain a hypothetical trial in order to determine the costs application. There are numerous authorities that deal with that proposition, and usually they refer to Re The Minister for Immigration and Ethnic Affairs, Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6. I do not propose to recite the various authorities. I simply refer to Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067 where I had cause to consider such an application this year.
In the present case, I consider that there is a basis on which one could be critical of both sides in relation to the conduct of the matter that has led to this afternoon's application and, not least, there can be criticism of the first and second defendants who do not appear to have indicated an intention not to pursue the notice of motion, but have not chosen to appear in relation to the present application. I consider that the appropriate course is simply to reserve the question of costs.
For the above reasons, I make the following orders:
1. Dismiss the defendants' notice of motion filed 12 September 2019.
2. Reserve the question of costs.
3. Note the undertaking of the plaintiff's solicitor that all documents released under the Freedom of Information application by way of Centrelink records in relation to the plaintiff will be provided to the third defendant's legal representatives.
4. Note the undertaking of the third defendant through her legal representatives to be bound as if the Harman undertaking were to apply in relation to documents so provided.
5. Direct that the third defendant not disclose those Centrelink documents without further order of the Court to the first and second defendants, unless the first and second defendants provide a written undertaking themselves to be bound as if the provision of documents was covered by the Harman undertaking.
6. Direct the first and second defendants to file a notice of appearance within seven days.
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Decision last updated: 22 November 2019