Campbell v Campbell

The notices to produce that are the subject of the present applications

1. In John's family provision proceeding and in the 2019 proceeding, John has issued notices for production of documents to the Court. Both notices to produce were amended on 5 November 2020.
2. By notice of motion filed on 5 November 2020 in the 2019 proceeding, the Executors apply for orders setting aside certain paragraphs of the notice to produce issued in that proceeding. That application is now confined to paragraphs 1, 2, 3, 4 and 20 of that notice.
3. By amended notice of motion filed on 13 November 2020 in the 2019 proceeding, Richard applies for an order setting aside paragraph 1 of the notice to produce issued in that proceeding.
4. By notice of motion filed on 5 November 2020 in John's family provision proceeding, the Executors apply to set aside certain paragraphs of the notice issued in that proceeding. That application is now confined to paragraphs 1, 2, 3 and 4 of that notice, which are in the same terms as paragraphs 1, 2, 3 and 4 of the notice issued in the 2019 proceeding.
5. The substance of the disputed paragraphs is set out below, together with the reasons for my decision that each disputed paragraph (as read down, where applicable) has a legitimate forensic purpose.

Applicable principles

1. As noted in the parties' submissions, the principles applicable in determining an application to set aside a notice to produce are the same as those applicable to an application to set aside a subpoena. Those principles have been summarised on many occasions, including by Ward CJ in Eq in Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840 at [42]-[45] and in Rinehart v Rinehart [2018] NSWSC 1102 at [47]. I respectfully adopt her Honour's articulation of the principles without repeating them here.
2. As the party who has issued the notices to produce, John bears the onus of establishing a legitimate forensic purpose. This requires John to demonstrate that the documents sought could "possibly throw light" on the issues in the case, or that there is a reasonable basis for supposing that the documents are likely to materially assist on an identified issue (including, for example, that the documents are capable of providing a legitimate basis for cross-examination).

Paragraph 1 of the notices to produce

1. Paragraph 1 of the notice to produce issued in each proceeding requires production of: "All documents dated or created from 1 October 2016 to date recording or referring to any water access licence owned by the Deceased and/or John Campbell, including (but not limited to) any records of communications between any of the Deceased, Richard, Beth, the Campbell Solicitors, the Campbell Accountants, BCN, Campbell Partnership, Rabobank, Westpac and any other consultants or advisors."
2. John confirmed in written submissions that he does not require parties to produce in response to paragraph 1 any documents that they have already produced in the proceedings.
3. I accept the submissions made on behalf of John that he has a legitimate forensic purpose for seeking production of documents falling within the terms of paragraph 1 as there is a reasonable basis for thinking that those documents are likely to materially assist on the issues pleaded in the 2019 proceeding concerning the beneficial ownership of water licences 13566 and 13567 to which I have referred above. The determination of those issues is, in turn, relevant to the family provision proceedings for the reasons I have already explained.
4. I reject the Executors' submissions that the issue revealed by the pleadings is limited to whether words alleged to have been spoken by the Deceased to John on or about 9 and 18 October 2016 were effective as gift of the Deceased's interests in water licences 13566 and 13567. The pleaded issues are broader than that, as I have explained earlier in these reasons.
5. The terms of paragraph 1 of the notices to produce are not limited to water licences 13566 and 13567. However, there is a reasonable basis for thinking that the manner in which the Deceased dealt with, and any communications that she had with others concerning any water licences, are likely to materially assist on the issue whether she regarded water licences 13566 and 13567 as John's water licences, as pleaded by John in the 2019 proceeding.
6. Communications that the Deceased had with others are likely to be directly relevant to this issue. Indeed, the Executors did not dispute this, if the communications and documents required to be produced were confined to documents recording any representations made by the Deceased during the period from 1 October 2016 until the date of her death concerning the ownership of any water licences at that time, or the Deceased's testamentary intentions concerning water licences.
7. The Executors' submission applies a far narrower test of relevance than that established by the authorities I have referred to in [24]-[25] above. In my opinion, there is a reasonable basis to think that other documents falling within paragraph 1 are likely to support inferences that are relevant to the pleaded issues, particularly the issue whether the Deceased regarded the two water licences as John's licences from October 2016. One way in which this might occur is if the documents reveal that the Deceased dealt with other water licences, and refrained from dealing with water licences 13566 and 13567 at the same time. Depending on the nature of the dealings and the context in which they occurred, this may support an inference that, at the time of the dealings, the Deceased regarded water licences 13566 and 13567 as John's water licences. There are examples of some documents of this kind of which John is already aware, and so I reject the Executors' submission that John is merely fishing for such documents in paragraph 1.
8. Paragraph 1 is appropriately confined to the period of time after October 2016. There is no dispute in the 2019 proceeding concerning the beneficial ownership of water licences 13566 and 13567 prior to October 2016.
9. The Executors submitted that paragraph 1 is too broad in that it requires production of communications and other documents created after the death of the Deceased, and communications prior to her death to which she was not necessarily a party. I accept the submission made on behalf of John that there is a reasonable basis for thinking that communications between any of the persons and entities referred to in paragraph 1, and particularly any communications between the two Executors, are likely to record any instructions given or statements made by the Deceased concerning water licences, which are likely to materially assist in relation to the issue whether she regarded water licences 13566 and 13567 as John's water licences.
10. The Executors submitted that paragraph 1 would require them to make requests of at least eleven other persons or entities. However, the terms of the request would be relatively straightforward and there was no evidence that making this request, or producing any documents received from those entities, would be oppressive. For all of the reasons above, I reject the Executors' submission that the terms of paragraph 1 itself demonstrate that the request is oppressive.
11. The submissions made on behalf of Richard adopted the Executors' submissions which I have already addressed above. Like the Executors, Richard did not adduce any evidence that it would be oppressive to require him to produce any documents in his possession or control within the terms of paragraph 1.
12. Counsel for Richard made the additional submission that paragraph 1 is so broad that it is likely to include privileged communications. I accept the submission made by counsel for John that any privileged communications need not be produced by reason of rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW).

Paragraph 2 of the notices to produce

1. Paragraph 2 of the notice to produce issued in each proceeding requires production of: "All documents dated or created from 19 June 2017 to 30 June 2018 recording or referring to any communications with WaterNSW in relation to or referring to any water access licence owned by John Campbell or registered in the name of John Campbell."
2. It was submitted on behalf of John that paragraph 2 calls for documents relevant to the pleaded issues concerning unauthorised orders placed on water licences 13566 and 13567. In his defence to the cross-claim in the 2019 proceeding, Richard admits placing some orders with WaterNSW on water licence 13566 but says that he does not have a record of the orders and does not know how much (if any) water he received. The evidence before the Court on the hearing of the motions included that one of the Executors has sworn an affidavit in which she deposes to having had conversations with Richard in early 2018 in which she agreed to order water from water licences in John's name.
3. Having regard to Richard's pleading that he no longer has a record of the orders placed and does not know how much (if any) water was received, I consider that there is a legitimate forensic purpose in John seeking production of documents recording or referring to communications with WaterNSW in relation to or referring to water access licences registered in John's name during the relevant period, as there is a reasonable basis for thinking that any there were communications and that any documents in the possession of the recipients of the notice to produce recording or referring to such communications are likely to materially assist in determining what orders were placed and how much water was ordered. Those issues are directly relevant to John's damages claim in relation to unauthorised water use.
4. I note that the Executors do not contend that the time period specified in paragraph 2 is too broad.
5. However, the Executors submit that paragraph 2 is too broad because it does not specify the other party to the communication with WaterNSW. I accept the submission made on behalf of John that this is a theoretical rather than a real problem, because the parties required to respond to the notices to produce can only produce such communications as are in their possession or control and that is to be expected to be limited to communications to which they are a party.
6. The Executors also submit that paragraph 2 is drafted so broadly that it is likely to capture privileged documents. To the extent that any privileged documents fall within the terms of paragraph 2, they are not required to be produced by reason of UCPR, r 1.9, as I have already noted above in relation to paragraph 1 of the notices to produce.

Paragraph 3 of the notices to produce

1. Paragraph 3 of the notices to produce initially required production of documents dated or created from 18 June 1975 recording or referring to the capacity in which BCN held land at "Mundooie" and any dealing with that land, including communications between the Deceased, the parties to the proceedings and various other entities, including Westpac Banking Corporation and Rabobank Australia Limited.
2. Prior to the hearing of the motions, John offered that paragraph 3 of the notice to produce issued in each proceeding should be read down as requiring production of: "All documents recording any transactions entered into between BCN, expressly as trustee for a family or discretionary trust: (a) with Cardenu Pty Ltd or Westpac Banking Corporation from 18 April 1979 to 30 June 1994; or (b) with the Campbell Partnership, Westpac Banking Corporation or Rabobank Australia Limited from 1 July 1994 to 19 June 2017."
3. The Court was informed that Cardenu Pty Ltd is the entity that operated the Campbell Partnership during the period referred to in paragraph 3(a).
4. At the hearing of the motions, the Executors did not seek to set aside this revised paragraph 3, provided that their obligation to produce documents under this paragraph was confined to documents in the possession of the Executors or documents maintained by the Deceased at "Mundooie". It was common ground that, unless an order is made confining the Executors' obligation in this manner, they will be required to produce documents falling within paragraph 3 that are in the Executors' control, which will extend to documents in the possession of third parties which they have the ability to request or require those third parties to provide to them in their capacity as Executors.
5. As counsel for John submitted, there is no evidence that it would be oppressive for the Executors to request from third parties documents falling within paragraph 3, as read down. Those documents are limited to transactional documents entered into by BCN expressly as trustee for a family or discretionary trust with four entities. The Executors submitted, and I did not understand this to be disputed by John, that they would be required to request eleven or twelve entities to produce any documents in their possession falling within the revised paragraph 3 to the Executors, in order for the Executors to comply with paragraph 3. The Executors submitted that, if they are required to make those inquiries, the Court should make an order that John pay the Executors' costs of doing so under UCPR, r 34.3. I decline to make that order in the absence of any evidence as to why it would be costly for the Executors to make the inquiries necessary to comply with paragraph 3 as read down. The Executors merely asserted that this would be costly because they would have to contact eleven or twelve entities or persons.
6. For those reasons, there will be an order that paragraph 3 of the notices of motion be set aside except insofar as they require production of the narrower category of documents formulated by John.

Paragraph 4 of the notices to produce

1. Prior to the hearing of the motions, John and the Executors agreed that paragraph 4 of the notice to produce issued in both proceedings would be read down as requiring production of: "All documents recording any response to the email from David Turnbull of Bryson Turnbull Lawyers dated 17 March 2000 to Joan Richardson of Booth Brown Samuels & Olney and any other documents held by Bryson Turnbull Lawyers on behalf of the Deceased."
2. The Executors did not seek to set aside paragraph 4 if read down in this manner. Accordingly, there will be an order that paragraph 4 be set aside except insofar as it requires production of documents other than those falling within the terms set out immediately above.

Paragraph 20 of the notice to produce in the family provision proceeding

1. Richard's financial circumstances are in issue in his family provision proceeding. Richard's financial circumstances and needs is one of many factors that will have a bearing on what provision (if any) should be ordered to be made for each of John and Richard (assuming that they both establish that the Deceased did not make adequate provision for them in her last will).
2. In an affidavit filed and served in his family provision proceeding, Richard has given evidence of certain expenses that are paid by the Campbell Partnership on his behalf.
3. Paragraph 20 of the notice to produce issued in the John's family provision proceeding requires production of: "All documents recording or referring to the value of each of the expenses paid by the Campbell Partnership referred to in paragraph 295 of the Affidavit of Richard Birrell Campbell sworn 20 September 2018 for the last 10 years or any documents that provide a total of each category of expense for each year."
4. In written submissions filed prior to the hearing of the motions, counsel for John stated that he would accept production of the cash book ledger for the Campbell Partnership for the last 10 years as discharging the Executors' obligation to produce documents in response to paragraph 20, if the Executors confirmed that all expenses referred to in Richard's affidavit of 20 September 2018 were recorded and identifiable in that ledger.
5. At the hearing, counsel for the Executors informed the Court that his clients were unable to confirm that all expenses referred to in Richard's affidavit of 20 September 2018 were recorded and identifiable the cash book ledger for the Campbell Partnership.
6. Counsel for John then made a further offer to confine the scope of production in response to paragraph 20 of the notice by reducing the 10 year period in paragraph 20 to 5 years.
7. Counsel for the Executors did not submit that these documents are not relevant to Richard's family provision claim. Rather, he submitted that paragraph 20 went beyond "the appropriate limit of the call for production in family provision case where the question of costs is always carefully considered" by calling for production of primary documents recording or referring to the expenses rather than calling only for a ledger summarising the expenses paid.
8. The suggestion that production should be limited to a ledger, notwithstanding the concession that the ledger may not record or adequately identify Richard's expenses paid by the partnership is, with respect, disingenuous.
9. In my opinion, John is entitled to test Richard's evidence concerning the financial benefits he has received by having his expenses paid by the Campbell Partnership. He is entitled to do so in respect of the whole of the period for which Richard's expenses have been paid by the partnership. He is nevertheless content to limit paragraph 20 of the notice to produce to the past five years.
10. The concern that costs should be carefully managed in family provision cases does not warrant parties being shut out of testing matters that may be material to the outcome of the claims. Where the investigation of such matters is costly, it should not be assumed that those costs will always be borne by the deceased estate. If the claimant is unsuccessful, he or she may be ordered to be pay the costs of the executors in addition to his or her own costs, depending on all the circumstances: Haertsch v Whiteway (No 2) [2020] NSWCA 287.
11. Accordingly, paragraph 20 of the notice to produce will be set aside except to the extent that it requires production of the documents specified for the past five years.

Costs

1. John has succeeded on the issues raised by the notices of motion that remained to be determined by the Court by the time of the hearing of the motions. However, the scope of the documents required by John has been the subject of an ongoing process of refinement since the notices to produce were first issued, and further refinement since the amended notices to produce were issued. The most recent iterations of that process were concessions made or compromises proposed by John in his written submissions served immediately before the hearing and again during the hearing of the notices of motion. In all the circumstances, I consider that the appropriate costs order is that the parties' costs of the notices of motion be their costs in the cause.

Orders

1. For the reasons above, I make the following orders:
2. Proceeding 2019/374756 1. Order that paragraph 3 of the First Defendant's amended notice to produce dated 5 November 2020 is set aside except insofar as it requires production of documents other than the following documents: "All documents recording any transactions entered into between BCN, expressly as trustee for a family or discretionary trust: (a) with Cardenu Pty Ltd or Westpac Banking Corporation from 18 April 1979 to 30 June 1994; or (b) with the Campbell Partnership, Westpac Banking Corporation or Rabobank Australia Limited from 1 July 1994 to 19 June 2017." 1. Order that paragraph 4 of the First Defendant's amended notice to produce dated 5 November 2020 is set aside except insofar as it requires production of documents other than the following documents: "All documents recording any response to the email from David Turnbull of Bryson Turnbull Lawyers dated 17 March 2000 to Joan Richardson of Booth Brown Samuels & Olney and any other documents held by Bryson Turnbull Lawyers on behalf of the Deceased." 1. The First and Second Plaintiffs' notice of motion filed on 5 November 2020 and the Third Defendant's amended notice of motion filed on 13 November 2020 are otherwise dismissed. 2. The costs of those notices of motion are to be the parties' costs in the cause.
3. Proceeding 2018/188534 1. Order that paragraph 3 of the Plaintiff's amended notice to produce dated 5 November 2020 is set aside except insofar as it requires production of documents other than the following documents: "All documents recording any transactions entered into between BCN, expressly as trustee for a family or discretionary trust: (a) with Cardenu Pty Ltd or Westpac Banking Corporation from 18 April 1979 to 30 June 1994; or (b) with the Campbell Partnership, Westpac Banking Corporation or Rabobank Australia Limited from 1 July 1994 to 19 June 2017." 1. Order that paragraph 4 of the Plaintiff's amended notice to produce dated 5 November 2020 is set aside except insofar as it requires production of documents other than the following documents: "All documents recording any response to the email from David Turnbull of Bryson Turnbull Lawyers dated 17 March 2000 to Joan Richardson of Booth Brown Samuels & Olney and any other documents held by Bryson Turnbull Lawyers on behalf of the Deceased." 1. Order that paragraph 20 of the Plaintiff's amended notice to produce dated 5 November 2020 is set aside except insofar as it requires production of documents other than the following documents: "All documents recording or referring to the value of each of the expenses paid by the Campbell Partnership referred to in paragraph 295 of the Affidavit of Richard Birrell Campbell sworn 20 September 2018 for the last 5 years or any documents that provide a total of each category of expense for each year." 1. The First and Second Defendants' notice of motion filed on 5 November 2020 is otherwise dismissed. 2. The costs of that notice of motion are to be the parties' costs in the cause.

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: 11 December 2020