Parts of particulars struck out - Order for further discovery refused

Boreham v Prince Henry Hospital (1955) 29 ALJ 179

Re McCaffrey [1938] SASR 403

Re Munn [1943] SASR 309

Re Stott [1980] 1 All ER 259

1 MASTER SANDERSON: This is the return of two chamber summonses. One by the plaintiff and one by the second defendant. The second defendant's summons is the first in time. It seeks to strike out certain parts of answers to particulars of the statement of claim filed 8 March 1999 and seeks directions for trial of the action. The plaintiff's chamber summons seeks an order for further and better discovery. I will deal with the chamber summons in the order in which they were filed.

2 Before doing so, however, I should say something about the nature of this action and its progress to date. This is a probate action. It was commenced by writ of summons which was filed 10 December 1996. It concerns the will of Mr Alfred Clay (described in the statement of claim as "Alf", the nomenclature that I will, for the sake of convenience, adopt) who died on 24 January 1995. On 16 March 1995 probate of a will dated 25 July 1987, together with a codicil dated 30 November 1988, was granted to the two defendants as executors named in the will. The second defendant is the residuary beneficiary. The plaintiff is a legatee under the will and the codicil and is the nephew of Alf.

3 In the original will the plaintiff was left a specific bequest which was subsequently reduced by the codicil. It is the plaintiff's claim that Alf was not of sound mind, memory and understanding when he signed the codicil. This is the issue between the parties. It is not alleged that the second defendant exerted undue influence on Alf when he signed the codicil, nor is there any allegation of fraud or the like. The issue is relatively straightforward and, one would have assumed, capable of resolution after hearing from a limited number of witnesses and by reference to a limited number of documents.

4 In fact this is the fourth reserved decision on an interlocutory matter. The action has become bogged down in interlocutory disputes of dubious significance. It is clearly in everyone's interests that this matter be resolved promptly. Apart from anything else, the relevant evidence relates to the circumstances in which Alf signed the codicil to his will on 30 November 1988. As matters stand at present, that will mean that it will be more than 11 years since the relevant events occurred by the time this action reaches trial. The delay must inevitably affect the memory of those involved in the events in question. In an action such as this it is of paramount importance to get the matter to trial as soon as possible, but in this case that has not occurred. That is unfortunate and it is a situation which ought not be allowed to continue.

5 As it turns out, the matters raised by both chamber summonses can be disposed of quite simply. Paragraph 7 of the further amended statement of claim dated 14 May 1997 alleges that as at the date of the execution of the codicil Alf was not of sound mind, memory and understanding. As I have said, this is the prime allegation made by the plaintiff. Paragraph 7.1(c) claims, by way of particulars, that at the date of the signing of the codicil Alf relied on the second defendant to care for him and manage all his financial and personal affairs. The second defendant made a request for further and better particulars of this allegation in the following form:

"as to 7.1(c) the manner and extent to which Mr Alf Clay relied upon the Second Defendant to care for him and to manage all his financial and personal affairs, and the manner and extent to which the Second Defendant so managed his affairs;"

6 As part of the answer to this question there appears subpar (b) which claims that, in relation to the financial and personal affairs of Alf, the second defendant authorised payments of money from Alf's bank accounts to herself "without any written authorisation". The second defendant objects to this further phrase. Counsel submitted that it suggests improper conduct on the part of the second defendant and is not therefore a proper particular of an allegation that Alf was of unsound mind, memory and understanding. That is clearly correct. A reference to written authorisations can have nothing to do with Alf's state of mind at the time he entered into the codicil. I would therefore strike out the words complained of by the second defendant in answer 3.

7 The further complaint relates to subpar (c) of the answer provided by the plaintiff. There is an allegation by the plaintiff of improper conduct on the part of the second defendant in relation to certain of Alf's property. To raise such an allegation in particulars is bad pleading. The allegation is also completely irrelevant. It has nothing whatever to do with Alf's state of mind when he signed the codicil. I would therefore strike out all those words appearing after the word "daughter" in subpar (c) of the answer to question 3 to the particulars.

8 In relation to question 4, this relates to par 7.1(d) of the statement of claim. This pleads that Alf, at the date of the signing of the codicil, was reliant on the second defendant for knowledge of his financial position and interests. The request made by the second defendant for further and better particulars is in the following terms:

"as to 7.1(d), the financial position and interests of Mr Alf Clay upon which he was reliant on the Second Defendant and the nature and extent of the said reliance."

The answer to that request is in the following terms:

"By late 1988, because of Alf's deteriorating health and physical condition, his avoidance of outside contact and his reliance on the Second Defendant to manage his affairs, Alf was reliant on the Second Defendant for knowledge of his financial position and interests, including knowledge of his assets, his liabilities, his income and expenses and knowledge of benefits he had transferred to the Second Defendant before that date and the circumstances of the transfers."

9 The second defendant complains that the reference to the benefits transferred to the second defendant raise an irrelevant issue. That is clearly right. The conduct of the second defendant prior to the date of execution of the codicil is, if relevant at all, incidental to the central question at issue in the case. To allow the answer to stand in its present form would provide the plaintiff with the opportunity to raise irrelevant issues and delay the fair trial of the action. The second defendant could not be expected to allow an allegation such as is found in answer 4 to stand unanswered. She would be in a position where she was required to lead evidence on the issue simply to protect her position. That would unnecessarily lengthen the trial. I would strike out all words in answer 4 after the word "expenses" appearing in the fifth line of the answer.

10 In opposition to this application, the plaintiff raised two matters which require direct comment. First, he suggested that the answers provided were proper because, in relation to question 3, he was asked to particularise "the manner and extent" to which the second defendant managed Alf's affairs and in relation to question 4 "the nature and extent" of the reliance. It was submitted that the use of these two phrases opened up the issue of the conduct of the second defendant. I cannot accept that submission. It is important to bear in mind the nature of the allegation made by the plaintiff. The allegation relates to the soundness of mind of the testator when he signed the codicil. The only proper particulars to be provided of that allegation must relate directly to it. Any improper conduct of the second defendant in relation to the handling of Alf's affairs are a separate matter. Any answer which raises such conduct cannot be allowed to stand.

11 The second submission made by the plaintiff was that, to strike out parts of the particulars would be to leave the particulars in a form which did not represent his case. With respect, that is clearly wrong. Parts of the particulars stand alone and can be severed from the rest without in any way altering their meaning. I am satisfied that by striking out the parts that are unacceptable the rest of the particulars can properly remain and the integrity of the answers is not adversely affected.

12 Turning then to the plaintiff's application, the further discovery sought is extensive. The schedule to the application runs to nine pages. The plaintiff, in his submissions, maintained that although the discovery sought appeared extensive it was in fact relatively modest and would be easily provided. Having considered again the documents sought and the affidavit material filed by all parties, I am satisfied that the further discovery requested is extensive and oppressive. But more than that, the documents sought are in my view irrelevant.

13 As I have said on a number of occasions in these reasons, the prime allegation made by the plaintiff is that, at the date of signing of the codicil, Alf was not of sound mind and understanding. That surely requires evidence from those who attended Alf at the date of the signing of the codicil as to his state of mind from their observations. It may also involve evidence of Alf's condition sometime prior to the date of execution of the codicil and perhaps some medical evidence as to Alf's condition overall.

14 What the plaintiff seeks by way of this application for further discovery is extensive documentation dealing with Alf's financial position both prior to and subsequent to the signing of the codicil. For instance, documents sought under par 1.1 of the schedule are as follows:

"Documents relating to the payment to M Kurelic of $300,000 on 28 December 1990 by R & I cheque number 246920 including statements of account and other bank records of the Second Defendant's bank account into which the cheque was deposited."

15 The codicil was signed in 1988. I cannot see the relevance of documents dealing with transactions in late December 1990.

16 It was the plaintiff's submission that one important aspect of his case was the question of Alf's understanding of his financial position as at the date he signed the codicil. The plaintiff says that unless Alf had a clear understanding of his assets and liabilities and the way in which his financial affairs had been conducted for some time prior to his signing the codicil, he could not have a clear understanding of what he was doing when he actually signed the codicil. To the extent that this may be a relevant factor, it seems to me to be peripheral to the central question. It is apparent from the affidavit material filed that the plaintiff has been able to substantially recreate Alf's financial affairs from material which has been discovered. It may be that to obtain a complete and full picture he requires further discovery. But no purpose would be served by this discovery. What he has at present is clearly sufficient for the purposes of cross-examination of various witnesses. This is apart from the question of relevance of most of the post 1988 material. In the circumstances, there would be no purpose served at all in ordering the discovery as sought by the plaintiff.

17 The appropriate order then is that I dismiss the plaintiff's summons. It is also appropriate that, in relation to both summonses, the plaintiff should pay the second defendant's costs of the summons, including any reserved costs.

18 That leaves the further question of how this matter should proceed from this point. The plaintiff says that he wants both third party discovery and leave to administer interrogatories. No applications have been made in relation to either matter. The second defendant wants to have the matter entered for trial. In my view, that is the appropriate course. If any further interlocutory matters are to be undertaken it should be under the supervision of the trial Judge. It is appropriate then that I order that the matter be entered for trial, perhaps within the next 14 days. I will hear the parties as to the precise form of the orders.