MICHAEL JOHN BASIOLI (as Executor of the Will of PETER CARLO BASIOLI)

MEGAN ANGELA BASIOLI (by her next friend KELSEY JACKSON)

SHANE JACKSON BASIOLI (by his next friend KELSEY JACKSON)

Practice and procedure - Application under Inheritance (Family and Dependants Provision) Act 1972 (WA) - Whether discovery available - Relevant principles - Turns on own facts

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 26 r 7(3), O 75

Supreme Court Act 1935 (WA), s 5

Coni v Robertson [1969] 1 WLR 1007

Creswick Resources NL v Mining Warden of Victoria [2000] VSC 134

Harris v Bennett & Anor [2004] VSC 171

In re Borthwick [1948] 1 Ch 645

National Mutual Life Nominees Ltd v Co-Operative Farmers & Graziers Direct Meat Supply Ltd [1976] VicRp 65; [1976] VR 634

Re Australian Mariners (Australasia) Pty Ltd [1975] VicRp 36; [1975] VR 372

Re Pruski (1983) 35 SASR 86

Re Tallebudgera Estates Pty Ltd [1970] Qd R 63

Reed v Reed & Anor [2001] VSC 54

The Commonwealth of Australia v Temwood Holdings Pty Ltd & Ors [2001] WASC 282

Wine Shippers (London) Ltd v Bath House Syndicate Ltd [1960] 1 WLR 989

1 MASTER NEWNES: This is an application by the plaintiff for discovery of particular documents in proceedings under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA).

2 The plaintiff was the de facto partner of the testator, Peter Carlo Basioli, who died in the bombing of the Sari nightclub in Bali on 12 October 2002. The plaintiff says that she had lived with the testator as his de facto partner since January 1999. The plaintiff was with the testator in the Sari nightclub at the time of the blast and suffered injuries as a result of it.

3 The testator, by his Will made on 30 August 2000, left his entire estate to his two children, the second defendant and the third defendant, who reside with their mother, the testator's former wife. The second and third defendants are both minors and appear by their next friend. The first defendant, who is the executor of the estate, is the brother of the testator.

4 At the time of his death, the testator was a director and shareholder of BAS Nominees Pty Ltd ("BAS Nominees"), which is the trustee of the Basioli Family Trust ("the Trust"), but apparently also carries on business in its own right. The testator was the appointor of the Trust.

5 The plaintiff commenced proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (the "Act") on 15 August 2003. The plaintiff seeks a declaration that the dispositions by the Will of the testator did not make adequate provision for her and she seeks an order of the Court that such provision be made.

6 On 18 September 2003, the first defendant was ordered to file and serve an affidavit as to the assets and liabilities of the estate at the time of the deceased's death. That affidavit, sworn on 30 September 2003, sets out various assets of the estate, by far the largest of which is described as "shares in BAS Nominees Pty Ltd" in an amount of $644,317.50. A loan from BAS Nominees to the testator in the sum of $209,043 is shown as a liability of the estate. According to the statement of assets and liabilities, the estate has net assets of $484,891.34.

7 By this application, as amended in the course of the hearing, the plaintiff seeks an order that the first defendant give discovery of:

(1) Full financial accounts, including journal entries, general ledger, cheque books and other primary accounting records of BAS Nominees Pty Ltd and the Trust for each of the financial years ended 30 June 2001, 30 June 2002 and 30 June 2003.

(2) The sale agreement and settlement statement in respect of the sale of "Sixways Liquor" in the financial year ended 30 June 2002.

8 The first defendant has previously served an informal list of discovered documents in which discovery has been given, among other things, of the financial statements of BAS Nominees for the financial years ended 30 June 2001 and 30 June 2002. The first defendant's solicitors later provided the plaintiff's solicitors with the financial statements for BAS Nominees for the financial year ended 30 June 2003 and the personal tax returns of the testator for the financial years ended 30 June 2001, 2002 and 2003.

9 The plaintiff has filed two affidavits in support of this application. The plaintiff's solicitor, Ms Hsu, has sworn an affidavit dated 3 June 2004 to which is annexed a copy of a letter from a firm of accountants, Rapattoni & Associates, addressed to the first defendant's solicitors enclosing a balance sheet for BAS Nominees for 30 June 2002. In the letter, a somewhat oblique reference is made to a sale of "the 'Sixways Liquor' business". Rapattoni & Associates say that the goodwill on the sale of Sixways Liquor was realised and reflected in the balance sheet of BAS Nominees. They say they have not conducted a valuation of the shares in BAS Nominees, but believe the net asset position would closely reflect their value. They then refer to certain assumptions they have made as to goodwill and say "should the relevant stakeholders not consider this to be reasonable, we suggest a valuation be undertaken." The value they ascribe to the testator's shares is $644,31750, which is the amount that appears in the statement of assets and liabilities of the estate. It seems from the letter that Rapattoni & Associates are the accountants for BAS Nominees.

10 The other affidavit was sworn by Ms Stiles, the plaintiff's accountant. Ms Stiles refers to the statement of assets and liabilities of the estate and, in particular, to the reference in it to the BAS Nominees shares and the loan by the Trust to the testator.

11 Ms Stiles says that the 2002 and 2003 accounts for BAS Nominees appear to have been prepared according to usual or conventional accounting procedures, but they do not explain why "certain transactions" occurred or the nature of the transactions. Ms Stiles says that she wishes to obtain the market value of both the "Listed and Unlisted company shares in the 2002 accounts" and, in relation to the 2003 accounts, she notes that the "Unlisted company shares" have disappeared and "shares in the unit trust" have appeared. Ms Stiles says she would therefore need to investigate this further and obtain the accounts and market valuation for the unit trust. She also notes that the 2003 accounts for BAS Nominees do not disclose the market value of the assets held by the company. They only include cost values.

12 Ms Stiles says that, in order to verify the value of assets belonging to the trust or the estate of the deceased, she considers it necessary for the plaintiff to obtain the financial accounts of BAS Nominees and the Trust for the financial years ended 30 June 2001, 2002 and 2003 and she would be interested in reviewing the journal entries, general ledger, minutes, cheque books, deposit books and the like" to determine the true value of the various alleged transactions."

13 A copy of the trust deed of the Trust has been provided to the plaintiffs' solicitors. Neither the trust deed nor any of the financial statements of BAS Nominees were put into evidence on this application.

14 The plaintiff submitted that it was necessary in order to prosecute the plaintiff's claim that the plaintiff has access to documents relating to the course of dealings between the testator and BAS Nominees. The course of dealings between the deceased, BAS Nominees and the Trust is, it was submitted, relevant to the question of the extent of the estate available and the trail of financial documents is relevant to the issues of the respective positions and degrees of dependency on the testator of each of the plaintiff and the second and third defendants. The sale agreement and the settlement statement in relation to the sale of the Sixways Liquor store were said to be relevant to establishing the value of assets belonging to the estate of the deceased.

15 According to an affidavit of the first defendant, sworn 16 June 2004, the Trust is a discretionary trust and the testator did not have any vested interest in it. It is on that basis the first defendant says that the assets of the Trust do not form part of the deceased's estate and there is, therefore, no need for the financial statements of the Trust to be disclosed to the plaintiff. In relation to the primary accounting documents relating to the financial statements of BAS Nominees, it was submitted that the plaintiff simply wanted to embark on an unnecessary and unwarranted auditing of financial statements that the plaintiff's accountant had acknowledged appeared to have been properly prepared.

16 The first defendant argued that the plaintiff was not entitled to further discovery because discovery will only ordered in proceedings of this nature where it relates to an issue in the proceedings and where special circumstances exist justifying discovery. It was submitted that neither of those criteria was satisfied in the present case.

17 It is necessary then to turn to the question of whether, before an order for discovery will be made, the party seeking it must establish the existence of special circumstances.

18 Order 75 of the Rules of the Supreme Court 1971 (WA) provides that proceedings under the Act shall be commenced by originating summons. Order 75 itself makes no provision for discovery. However, O 26 r 1 provides that a party may give written notice to any other party "in a cause or matter" requiring that other party to give discovery of all documents relating to a matter in question. Under s 5 of the Supreme Court Act 1935 (WA), "cause" means "any action, suit or other original proceeding between a plaintiff and a defendant ..." and "matter" includes "every proceeding in the Court not in a cause." Under O 75 the parties to proceedings under the Act are to be referred to as "plaintiff" and "defendant." In any event, it is clear that O 26 r 1 is wide enough to cover proceedings commenced by originating summons: see The Commonwealth of Australia v Temwood Holdings Pty Ltd & Ors [2001] WASC 282.

19 Order 26 r 7(3) provides that "in any proceedings", on application by a party by whom or to whom a request under O 26 r 1 has been made, or on its own motion, the Court, having regard to O 1 r 4B, may order that any or all of the parties give discovery in accordance with r 7. Order 26 r 7 enables the Court to order, among other things, that discovery be limited to specified documents or classes of documents, or to documents directly relevant to any specified matter in question, or to order that discovery not be given at that stage, or at all. I should mention that O 26 r 7(3)(a) and (d) refer to "the action", but having regard to r 7(1), which relates back to a request under r 1, and to the reference to "any proceedings" in r 7(3), it is clear in my view that "action" in this context does not bear the limited meaning in O 4 of a proceeding commenced by writ.

20 The first defendant submitted that it was well established that in proceedings of this nature discovery is not available as of right and an order for discovery can only be obtained where special circumstances existed. Counsel relied, in particular, on the decision of the Court of Appeal in Re Borthwick [1948] 1 Ch 645 and referred to Reed v Reed & Anor [2001] VSC 54 and Harris v Bennett & Anor [2004] VSC 171.

21 In Re Borthwick, proceedings had been brought under the then English equivalent to the Act. The plaintiffs applied for discovery of documents aimed at ascertaining whether the value of the testator's estate, and, in particular, whether a large holding of shares in a private company, had been correctly determined. At that time, O 54F of the English Rules contained rules dealing with applications under the Act in similar terms to the current O 75 of the rules of this Court. By O 54F r 14, for which there is no corresponding provision in O 75, the ordinary practice and rules in the Chancery Division were made available so far as they were not inconsistent with the statute and O 54F.

22 Discovery of documents was sought by the plaintiffs, relying on a provision under the general discovery provisions of the rules relating to actions. The application was refused. Lord Greene MR (at 649) agreed with Roxburgh J, at first instance, that r 14 referred to the ordinary practice and rules of the Chancery Division in relation to proceedings by originating summons. Lord Greene said that in proceedings by originating summons, where the issues were not defined in the way in which they were defined in pleadings and where there were general affidavits in which the relevant evidence appeared, affidavits which could if necessary be cross-examined on, there was no room for the application of the ordinary rules relating to discovery in ordinary actions. His Lordship considered that in proceedings by originating summons in the Chancery Division there was no right to discovery such as was conferred by the Rules of Court in relation to cases or matters conducted by pleadings. Discovery in proceedings in the Chancery Division by originating summons ought only to be ordered in very special cases where the facts were such as to justify such an order being made.

"The plaintiffs, however, have not put forward a single shred of fact or a single suggestion casting doubt on the fairness or accuracy of the executors' evidence on the subject of value. Indeed, their complaint is this: 'We cannot do that without some materials and the reason why we want discovery is to enable us to test what the executors have said and to see whether or not we can find something on which to attack the rest of it'. In ordinary litigation, of course, the ordinary rules of discovery enable litigants to conduct such an examination but this is a very special jurisdiction under a very special Act governed by very special rules. The judge has ample power, if he is not satisfied or if he thinks there is reasonable ground for doubting the accuracy of such an estimate as this, to require further evidence on the point, to summon the executors before him, to put questions to them and to subject them to cross-examination. If he thought that was the proper course and if the matter was a matter of doubt or if a suspicion was aroused, that no doubt would be the course he would take. But here we have what on the face of it is sworn testimony by reputable people, the accuracy of which has been subjected to the not too easy test of an investigation by a government department ... [A] judge who is asked to exercise his discretion in a case of that kind has to weigh up in his mind these considerations. Here are plaintiffs who cannot suggest any doubt about this prima facie reliable method of arriving at the valuation, who merely ask for the instrument of discovery to be put into their hands to enable them to see if they can find something on which they should attack it. If there was ever a case where a judge should decline to exercise a discretionary jurisdiction to grant an order for discovery, I think this is such a case. If any reasonable suggestion of doubt could be raised, I have no doubt the judge in his discretion under the power given to him by the specific rules would require further information."

24 Re Borthwick was followed in Wine Shippers (London) Ltd v Bath House Syndicate Ltd [1960] 1 WLR 989. In the latter case Harman LJ, while agreeing that no special circumstances for discovery had been made out, said:

"I agree, but with reluctance. It seems to me that in cases involving questions of fact of this sort discovery should go as a matter of ordinary discretion."

Re Borthwick has been followed in Australia: see Re Tallebudgera Estates Pty Ltd [1970] Qd R 63 at 73; National Mutual Life Nominees Ltd v Co-Operative Farmers & Graziers Direct Meat Supply Ltd [1976] VicRp 65; [1976] VR 634; Reed v Reed & Anor (supra); Harris v Bennett & Anor (supra).

25 A different approach, however, was taken in Coni v Robertson [1969] 1 WLR 1007. In that case, proceedings had been commenced by originating summons claiming payment of an amount alleged to be due to the plaintiff under a legal charge and for enforcement of the security. An application for discovery was made. Cross J referred to Re Borthwick (supra) and Wine Shippers (supra) and noted that since the latter case new rules had substantially altered the position with regard to discovery in actions commenced by originating summons. The rule to which his Honour specifically referred, O 24, contained provisions in substance to a similar effect to O 26 rr 6 and 7 of the rules of this Court. In particular, his Honour referred to O 24 rr 3 and 8 (which are in substance to the same effect as WA O 26 r 7) and concluded that, "although one has to apply for an order, [r 8] shows that discovery will be ordered unless there is some good reason why it should not be ordered".

26 In Re Pruski (1983) 35 SASR 86, which involved a claim under the South Australian equivalent of the Act, Leggoe J [at 89 - 90] referred to Re Borthwick and Wine Shippers, but noted that the English rules had subsequently been changed and adopted the approach of Cross J in Coni v Robertson, that is, that discovery should be allowed unless some good reason was shown why it should not be ordered. In that case, Leggoe J permitted interrogatories to be administered by the plaintiff directed to ascertaining the relevant financial circumstances of the primary beneficiary under the Will.

27 In Reed v Reed (supra), Beech J followed Re Borthwick, but concluded there were special circumstances justifying an order for discovery. There, the estate of the deceased, a well-known Melbourne architect, was apparently bankrupt. There were, however, a number of apparent discrepancies and transactions that called for explanation in connection with the deceased's estate. In those circumstances, his Honour allowed limited discovery.

28 Harris v Bennett (supra) concerned an application under the Victorian equivalent of the Act by a grand-daughter of the deceased. The estate of the testator was a very substantial one. The plaintiff sought discovery of documents relating to the financial resources of one of the executrices in her capacity as a beneficiary and documents relating to benefits given to her during the deceased's lifetime. Redlich J, following Re Borthwick and Reed v Reed, considered that no reason had been advanced to depart from the approach that an order for discovery would not be made unless it related to an issue in the proceedings and some kind of "special circumstance" had been shown. His Honour considered that the issues in the proceedings were to be determined by reference to the materials filed by the parties in the proceedings. Redlich J concluded that the financial circumstances of the defendant were not in issue, no contention having been advanced by her of financial need in the event that the plaintiff was successful in obtaining an order for provision from the estate.

29 The decision in Re Borthwick, in my view, depended on Rules of Court that do not have counterparts in this Court. Order 26 does not draw the same distinction between proceedings commenced by writ and proceedings commenced by originating summons. Nor is there a provision equivalent to O 54F r 3 of the then English Rules, the effect of which was to apply the practice and rules of the Chancery Division regarding originating summons proceedings rather than the general practice and rules of the Court. There is, of course, with respect, still great force in the point made by Lord Greene (at 648) that if the procedure of discovery were not kept under proper control it might lead to the unnecessary production of a lot of material, which would not be in the public interest. I might observe, however, that that is not a problem peculiar to proceedings of this nature. In any event, the position under O 26 r 7 is that the Court now has considerable scope to tailor orders for discovery to fit the circumstances of the particular case.

30 It is also important, in my view, to have regard to the diverse nature of proceedings which may be commenced by originating summons. In some cases commenced by originating summons, such as a construction summons, there is no need for discovery. But in proceedings such as the present there may well be substantial disputed issues of fact and questions of credibility may arise. Save for the fact that there are no pleadings and the evidence-in-chief of the witnesses is by affidavit rather than witness statement, such proceedings may, in practical terms, be little different from proceedings commenced by writ. In those circumstances, the approach to the availability of discovery must be different.

31 In Re Australian Mariners (Australasia) Pty Ltd [1975] VicRp 36; [1975] VR 372 Adam J said (at 376):

"The rules of court recognise the value of discovery of documents as an aid to litigation. In the absence of some special ground for refusing to order discovery of relevant and material documents, the making of such an order in the exercise of the court's discretion should, I consider, be the general rule rather than the exception."

32 His Honour, in that case, was dealing with an application for discovery in aid of a petition under s 186 of the Companies Act alleging oppression but the comments are, in my respectful view, of more general application.

33 Moreover, O 1 r 4B requires the Court to apply the rules of Court, and the processes and procedure of the Court, so as best to ensure, among other things, the just determination of litigation and the timely disposal of it at a cost affordable by the parties. The extent to which discovery is available must be tailored to meet those objectives.

34 It seems to me, having regard to those matters, that to require that "special circumstances" be shown is to inhibit to too great an extent the exercise of the Court's powers in relation to discovery. It is plain that general discovery in proceedings commenced by originating summons, including proceedings under the Act, will rarely be ordered, given the potential difficulties of ascertaining the matters in issue and the time and cost involved in giving general discovery. The matters in issue must be determined by reference to the originating summons and the affidavits filed in the proceedings. That determination will often be more difficult and possibly less precise than in cases where there are pleadings. It is therefore appropriate that discovery should generally be confined to identified issues so that the Court keeps discovery within reasonable bounds: see Creswick Resources NL v Mining Warden of Victoria [2000] VSC 134 per Gillard J at 39 - 40.

35 Where, however, a party seeks discovery of documents relevant to identified issues, the question, in my view, is not whether there are "special circumstances" which justify an order being made, but rather whether in respect of the proceedings in question it is in the interests of justice that such an order be made.

36 It is against that background that I turn to the specific documents sought on this application.

37 The first category of documents sought by the plaintiff relates to the primary records upon which the financial statements of BAS Nominees Pty Ltd for the financial years ended 30 June 2001, 2002 and 2003 are based.

38 One of the difficulties with this application was that none of those financial statements was put into evidence. Accordingly, although Ms Stiles refers to "Listed" and "Unlisted" company shares in BAS Nominees in the 2002 accounts, it is not apparent to what she is referring. Similarly, Ms Stiles says, in relation to the 2003 accounts, that the Unlisted shares have "disappeared" and shares in the "unit trust have appeared". It is not apparent to what unit trust Ms Stiles is referring. The Trust is apparently a discretionary trust. Similarly, Ms Stiles says that the 2003 BAS Nominees accounts only include cost values, but do not disclose the market value of the assets held by the company. It is not clear to what it is that Ms Stiles is referring. Overall, in the absence of the financial statements, it is difficult to understand Ms Stiles' evidence.

39 It seems that Ms Stiles' primary concern is to value the shares in BAS Nominees held by the testator so as to verify the value of the asset shown in the statement of assets and liabilities of the testator and similarly to verify the amount of the loan which the testator is said to have obtained from BAS Nominees.

40 On behalf of the first defendant, it was submitted that, as Ms Stiles had acknowledged that the accounts had been prepared according to conventional accounting procedures, that was the end of the matter. The plaintiff was not entitled to conduct an audit of the accounts to verify figures appearing in those accounts. Counsel for the first defendant submitted that what was said by Lord Greene in Re Borthwick, in the passage I have set out at some length above, was on point.

41 In my view, the position is different in this case in relation from the value of the shares in BAS Nominees. It appears from the letter from Rapattoni & Associates of 24 March 2003 that they have not conducted a valuation of the shares, although they believe the net asset position would closely reflect the value. On that basis, the value of the deceased's interest in the company has been assessed at $644,317.50, or $8317 per share. Rapattoni & Associates say that one reason there has not been a valuation of the shares is that the Sixways Liquor business was sold and the goodwill on sale was realised and reflected in the balance sheet. They also believe that other investments are new ventures where no internally-generated goodwill would have been created. But, as I have mentioned, they go on to say "should the relevant stakeholders not consider this to be reasonable, we suggest a valuation to be undertaken".

42 That is quite different from the position in Re Borthwick where not only had the shares been valued, and no doubt cast upon that valuation, but Inland Revenue officials had checked the value for death duty purposes. It is clear that the latter was an important factor because of the assiduousness with which such investigations were conducted.

43 In the present case, there is no evidence that the shares have been properly valued. Indeed, it appears from the letter from Rapattoni & Associates that they have not been valued. The shares comprise the vast bulk of the assets of the estate.

44 In the circumstances, I consider that the plaintiff is entitled to discovery of such documents in the possession, custody or power of the first defendant as are relevant and necessary for a determination to be made of the value of the shares in BAS Nominees held by the testator.

45 In her affidavit of 10 August 2004, Ms Stiles says that she considers it necessary in order to verify the value of the assets of the testator to obtain "the financial accounts" of BAS Nominees and the Trust for the financial years ended 30 June 2001, 2002 and 2003. It is not entirely clear what is intended to be encompassed by the expression "financial accounts". It seems Ms Stiles has the financial statements of BAS Nominees for those years, so apparently something more than that is intended.

46 The original application sought discovery of "the financial accounts", but at the hearing the plaintiff's counsel sought and obtained leave to amend the application to refer to "full financial accounts including discovery of journal entries, general ledger, cheque books and any other primary financial records" of BAS Nominees and the Trust for those periods.

47 It is not clear, however, that Ms Stiles' affidavit goes that far. As I have said, Ms Stiles says she considers it necessary for the plaintiff to obtain "the financial accounts" of BAS Nominees and the Trust for the financial years ended 30 June 2001, 2002 and 2003 and she says she "would be interested in reviewing the journal entries, general ledger, minutes, cheque books, deposit books and the like to determine the true value of the various alleged transactions." It is not clear what "alleged transactions" are referred to, but if by that passage Ms Stiles is intending to say that all of the documents she mentions are necessary in order to value the shares there is no explanation of why such extensive documentation would be necessary.

48 I am not persuaded, on the basis of the affidavit evidence, that it has been shown that discovery of all of the financial records of BAS Nominees and the Trust (including cheque books and so forth) is necessary to determine the true value of the deceased's shares. In the absence of more cogent evidence as to the specific documents that are necessary for the purpose of valuing the shares, I would not be prepared to make an order for discovery of the documents sought in the amended application.

49 I do not consider that at this stage the plaintiff is entitled to further documentation in order to explain transactions in the accounts or the loan to the testator by BAS Nominees. The loan is not in the same category as the valuation of shares. In the absence of reason to believe that the amount of the loan referred to in the statement of assets and liabilities is attended by some doubt, I do not consider there that a proper basis has been established for an order for discovery in relation to it. Similarly, I do not consider that a case has been made out for discovery for the purpose of ascertaining why certain transactions (none of which are specifically identified) occurred and the nature of them. If those transactions, when properly identified, are shown to be relevant to a proper valuation of the shares of the testator, or relevant to some other issue in the proceedings, the matter would need to be reconsidered. I do not consider that on the material before me it has been shown that they are relevant.

50 I do not consider that, at this stage, the plaintiff has established a basis for discovery in relation to the financial affairs of the Trust. The trust deed was not put in evidence, but it was not in dispute that the Trust was a discretionary trust in which the testator had no vested interest. It may be the case that the financial affairs of the Trust bear upon the financial need or otherwise of the second and third defendants. At the moment, there is nothing to suggest that that is an issue in the proceedings and, moreover, the financial need or otherwise of the second and third defendants is not a matter that relates to the first defendant in his capacity as executor of the estate. It is also not clear on the evidence that the first defendant has any connection with the Trust.

51 I also do not consider that sufficient has been shown at this stage to warrant discovery of documents relating to the sale of the Sixways Liquor business. It is simply the subject of the somewhat oblique reference in the letter from Rapattoni & Associates of 24 March 2003. Once again, it may be a matter which it turns out bears upon the value of the deceased's interest in BAS Nominees, or some other relevant issue, or is a transaction that calls for explanation in relation to some relevant issue, but at present there is nothing to indicate that that transaction relates to the value of the assets or liabilities of the testator at the time of his death, or may otherwise be relevant, so as to warrant discovery of documents.

52 I therefore consider that on the material before me the plaintiff has not made out a case for discovery of the documents sought in this application. I would accordingly refuse the orders sought but with liberty to the plaintiff to renew the application if grounds can be shown.

53 I will hear the parties on the form of orders and costs.