Harris v Bennett [2004] VSC 171

Supreme Court of Victoria|2004-04-27|Before: Redlich J

Administration and Probate - Testator's Family Maintenance - Discovery by Beneficiaries - Amendments to A_dministration and Probate Act_ 1958 - Application of law antecedent to amendments - Section 91(4) matters to which Court must have regard - Relevance of each matter - Discovery limited to issues defined by parties.

The Plaintiff, Posey Harris by her litigation guardian, Joanne Harris, commenced proceedings against the executors of the Will of Sir Leo Curtis seeking an order for provision under Part IV ("the ").

By way of appeal from an order of the Master, the Plaintiff seeks discovery of certain categories of documents from one of the executrix in her capacity as a beneficiary.

Sir Leo Curtis died on 20 February 2001. He was survived by his partner Francine Werner and by his four children, James Curtis, Ann Bennett, Elizabeth Webb and Vicki Peters. Sir Leo Curtis left a Will dated 22 September 1999 and an estate of in excess of $12,000,000. By his Will the bulk of his estate was left to his partner and his children. Probate of the Will was granted to Ann Bennett and Helen O'Brien, the named executors, on 19 April 2001.

The infant Plaintiff was born to her litigation guardian Joanne Harris on 31 March 1988. She is the daughter of James Curtis, the son of the deceased, who at no time was married to the infant Plaintiff's mother. The Plaintiff seeks an order that provision be made for her proper maintenance and support from the estate of the deceased.

The infant Plaintiff commenced proceedings by Originating Motion brought pursuant to s.91 of the Act as substituted by s.55 Wills Act 1997 which came into operation on 20 July 1998 (the amendments). The background to these proceedings and part of its history is set out in the judgment of McDonald J in Harris v Bennett and O'Brien.[1]

By his Will the deceased, Sir Leo Curtis, made no provision for the maintenance and support of the Plaintiff. By clause 6(b) of the Will, the deceased had declared that he had made considerable provision for his children during his lifetime, and that he had made no provision for his grandchildren for this reason.

At the time of the his death Sir Leo Curtis' estate was valued in excess of $12,000,000. By his Will the deceased left a substantial specific bequest of cash and shares to his partner Francine Werner, made four modest pecuniary legacies and disposed of specific chattels. He made a specific devise of his share in two freehold properties to his son James Curtis and left the whole of his residuary estate to his three daughters, one of whom is the co-executrix of the Will and a Respondent to the present Application before the Court.

I was informed by Mr Southall Q.C. who appears with Ms Lyle for the Plaintiff that the named executrices have distributed a large portion of the estate retaining only an amount considered sufficient to meet the claim of the Plaintiff. Dr Hardingham Q.C. who appears with Mr Wells for the Respondent informed the Court that he had instructions from the executrices that the full value of the estate would be available to be distributed as the Court saw fit and to this end the residuary ligatees had indemnified the executrices in relation to that part of the estate which they had already received.

By Summons dated 25 November 2003, the Plaintiff sought discovery of two categories of documents pursuant to Rule 29.07(2) Supreme Court (General Civil Procedure) Rules 1996 and in the alternative pursuant to Rule 9.08 namely:

(a) documents relating to the financial resources of the Defendant; and

(b) documents relating to benefits previously given to the Defendant by the deceased during his lifetime.

Following a contested hearing, Master Evans refused the Plaintiff's Application for discovery of these categories of documents and dismissed the Summons. The Plaintiff appeals against the Master's order pursuant to Rule 77.05.

As a consequence of the substitution of the new s.91 of the Act, the Court may now make an order for proper maintenance and support of any person for whom the deceased had responsibility to make provision. To attract the operation of Part IV of the Act the Plaintiff must establish that the deceased had responsibility to make provision for her and that the deceased had not made adequate provision for her proper maintenance and support.[2]

Discovery and Part IV applications

In the Plaintiff's written outline of submissions recognition is correctly given to the fact that in Part IV proceedings an order for discovery will not be made unless the discovery relates to an issue in the proceedings and some kind of "special circumstance" is demonstrated. Reed v Reed[3] It is well settled that in a proceeding commenced by Originating Motion, such as a Part IV Application, discovery will not be ordered unless the party seeking the order establishes the existence of special circumstances to justify the making of the order. In Re Borthwick; Borthwick v Beauvias,[4] the Master of the Rolls described the jurisdiction as a peculiar one in which it is known

"that if the procedure were to be abused and not kept under proper control, it might lead to litigation of the greatest acrimony and the thrashing out of a lot of irrelevant material which would not be in the public interest".[5]

In Reed v Reed, Beach J found the circumstances of the case were so unusual as to justify the making of an order for discovery.

The Plaintiff's counsel in their written submissions argue that the general discretion to permit discovery under Rule 29.07 or 29.08, in the case of a proceeding commenced by Originating Motion, should not to be confined to cases in which special circumstances would warrant the making of an order so that the discretion conferred by the rules is artificially circumscribed. Reliance was placed on McKenna v McKenna.[6] This proposition was not developed in oral argument. No sufficient reason has been advanced for me to depart from the approach generally adopted in such applications as illustrated in Reed v Reed.

The Plaintiff's contention is that the two categories of documents in question are necessarily discoverable as a consequence of the fact that s.91(4) of the Act stipulates that the Court must have regard to the matters set out in sub-paragraphs (e) to (o). Coombes v Ward.[7] Amongst other things, sub-paragraph (h) is concerned with the financial resources and needs of a beneficiary and sub-paragraph (e) inter alia with any benefits previously given by the testator to a beneficiary.

The fact that the categories of documents for which discovery is sought relate to one or more of the specific matters enumerated in sub-paragraphs (e) to (o) of s.91(4) of the Act neither demonstrates that the discovery relates to an issue in the proceeding or that "special circumstance" has been demonstrated. The answers to such questions are to be determined by reference to any pleadings and the material filed by the parties in the proceedings.

It was submitted on behalf of the Plaintiff that the plain and unambiguous meaning of s.91 of the Act is that the Court must have regard to each of the matters specified in sub-section (4) to determine the jurisdictional questions as to whether the deceased had responsibility to make provision for the Plaintiff and whether the Will had made adequate provision for the Plaintiff and also to determine the amount of any such provision which the Court may order.[8] The Plaintiff's principal contention was that to promote the mandatory purpose of s.91(4) of the Act and to achieve justice in the present case it was essential that the relevant financial circumstances (s.91(4)(h)) of the Defendant and the other beneficiaries who were not presently parties to the proceedings and any benefits given to them in the testator's lifetime (s.91(4)(e)) should be placed before the trial Judge to enable the proper exercise of the discretion in accordance with the statutory criteria.

The Plaintiff has submitted that no substantive Affidavits have been filed on behalf of the Defendant or the other beneficiaries and no formal statement or concession on the record has been made by any of them which limit the ambit of the issues at the trial. During the course of submissions it became apparent that the nature of the family relationship and the history of this proceeding has generated a level of distrust between the parties and their legal representatives. Whether that distrust is justified or not, the Plaintiff viewed the absence of any reference to the financial resources or needs of the Defendant or the other beneficiaries in the material produced by the Defendant, as a matter of suspicion.

The Plaintiff submits that the beneficiaries including the first Defendant, have deliberately remained silent as to their financial circumstances and will continue to do so unless required otherwise by order of the Court. Consequently the Plaintiff submits that there was no factual basis for the Master's finding that the Defendant and other beneficiaries did not maintain that:

"(i) The estate of the deceased is not large enough to make adequate provision for the proper maintenance and support of the plaintiff if it is shown the deceased did have that responsibility; (ii) Any beneficiary had a competing claim on the bounty of the deceased which would prevent the Court from ordering that such provision be made out of the estate in whole or in part; (iii) Any such provision should be made out of the share of any particular beneficiary of the estate."

Whether beneficiaries need to disclose financial position

Ormiston J in Anderson v Teboneras[9] referred to the practice as to the disclosure by a beneficiary of financial matters in these terms:

"Here the estate is one of significant but moderate value so that it is relevant to inquire what are the competing claims of the beneficiaries, without ignoring the need to leave untouched the testator's distribution so far as may be fairly practicable. Moreover, after making due allowance for the testator's desire to benefit his widow and children, it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the Court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live. In the present case the other beneficiaries have said something of their dealings with a testator but little as to their financial resources as I have already pointed out. Therefore it is appropriate to consider the comparative moral claims of the widow and other children of the testator upon the assumption that each in their own way has a sufficient income and sufficient resources to meet his or her needs."[10]

The Plaintiff has submitted that the dicta of Ormiston J can have no application to the new statutory regime which enumerates the criteria upon which the Court's discretion is to be exercised. The Plaintiff contended that the Court's mandatory regard to the criteria set out in s.91(4) of the Act removes the possibility of the Court having to draw inferences or make assumptions of the kind to which his Honour had referred under the pre-amendment law as discovery must now be made of all documents relating to each matter enumerated.

Application of the antecedent law to the amended provisions

Section 91(4) of the Act is to be viewed as codifying established principles relevant to a Part IV Application. Richard v AXA Trustees Ltd[11]; Allan v Allan[12]; Lee v Hearn[13]; Blair v Blair[14] and Valbe v Irlicht[15] As the relevant principles have been codified the Plaintiff submits that there is no warrant to have resort to the antecedent common law position. Counsel for the Plaintiff relies upon Bank of England v Vagliamo Bros[16]; Brennan v R[17]; Pearce & Geddes[18]; c/f Vallance v R[19]; Mamote-Kulang of Tamagot v R[20]; Kaporonovski v R[21] and Sungravure Pty Ltd v Middle East Airlines Airliban SAL.[22]

This code states the common law principles in familiar terms using words and phrases that have well established meanings. Gillard J in Valbe v Irlicht[23] considered that the well accepted principles derived from case law applying to an Application under Part IV have not been altered by the introduction of the new section. All of the matters enumerated in s.91(4) of the Act were matters which in his Honour's view would have been taken into account under the old provision.

The preponderance of authority is to the clear effect that the operation of the amended provisions must be considered in the light of the previous law. In MacEwan Shaw v Shaw[24] Dodds-Streeton J after a most helpful review of the pre-amendment law concluded that the amendments to Part IV do not require or justify a different approach.[25] Byrne J in Marshall v Spillane[26], Warren J in Lee v Hearn[27], Balmford J in Suffern v Suffern-Noble[28] and Harper J in Schmidt v Watkins[29] All formed a similar view. These views received apparent endorsement by President Winneke in Coombes v Ward.[30] The Plaintiff's submission to the contrary must be rejected.

The approach to s.91 of the Act as amended

In considering this application I am mindful of the approach which the Court must take to such claims. McKenzie v Topp[31]; Bosch v Perpetual Trustee Co Ltd[32]; Grey v Harrison[33]; Collicoat v McMillan[34]; Coates v National Trustees Executors & Agency Co Ltd[35] and Hokin, Re[36] The characterisation of the deceased's obligation to make adequate provision for the proper support and maintenance of a Plaintiff under s.91 of the Act as discussed in Grey v Harrison[37] applies to the new provisions. Coombes v Ward[38]

The scope and purpose of the amended legislation was explained by Dodds-Streeton J in MacEwan Shaw v Shaw in the following terms:

"The amended legislation while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not licence the Court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off. Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the Court has no jurisdiction to make an order, no matter how large the testator's estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept. Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and a just testator would have applied. There must be an abuse of the freedom of testation." [39]

The approach generally adopted to such applications by the Courts prior to the 1997 amendments continues to be appropriate. As in the past a claimant would need to establish a failure to make adequate provision by reference to his or her own circumstances, financial position and right to call upon the testator's bounty but it has always been recognised that it is an over simplification to say that the claim rests solely upon an evaluation of the merits of the claimant's position. As Ormiston J observed in Anderson's case:

"More often than not one cannot decide whether the testator has made adequate provision for a particular claimant without also looking at the size of the estate and to 'the means and deserts of the several claimants and, to the relative urgency of the various moral claims upon his bounty', to repeat the oft cited words of Salmond J in Re Allan (deceased); Allan v Manchester [1922] NZLR 218, at p 221; Cf; for example, Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at pp 128-9 per Dixon CJ and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd. [1979] HCA 2; (1979) 143 CLR 134 at p 147, per Gibbs J. As Dixon CJ himself said in Pontifical Society for the Propagation of the Faith v Scales[1962] HCA 19; (1962) 107 CLR 9 at p 19 (in whose reasons McTiernan J concurred): "it has often been pointed out that very important words in a statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions."[40]

Notions of what is adequate or proper are relative and where demands other than the plaintiff's are made upon the estate they must be taken into account. Pontifical Society for the Propagation of the Faith v Scales[41]; Anderson v Teboneras[42] and MacEwan Shaw v Shaw[43]

The Plaintiff submits that the mandatory nature of the statutory scheme obliges the Defendant to make discovery of such documents whether or not they relate to matters put in issue by the parties. Counsel for the Plaintiff submits that the absence of such material will preclude the Court from being able to properly exercise its statutory discretion. The Plaintiff relies upon the decision of Balmford J in Szental v Szental.[44] Her Honour was there concerned with a similar question as to whether discovery should be made of documents which related to matters set out in sub-section (4)(g) and (h) of s.91 of the Act. Her Honour said:

"Mr Scerri, for the defendant, submitted that the additional material described in the revised schedule of documents submitted by the plaintiff had no relevance to any issue in the Part IV proceeding. This was because it was not the defendant's case in that proceeding that were the plaintiff to succeed the defendant would be placed in any financial difficulty. That being so, discovery of material relating to the defendant's personal financial affairs was not relevant and should not be authorised. In support of that contention Mr Scerri relied on Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 and Grey and Harrison [1997] 2 VR 359. However those cases were decided before the introduction of s 91 of the Act in its present form by s 55 of the Wills Act 1997 and in particular of s 91(4)(f) (g) and (h). The effect of those provisions is to require the Court in the Part IV proceeding to have regard to the financial resources and financial needs of the plaintiff and the defendant. Accordingly, it cannot be said that documents relating to those matters are irrelevant to the Part IV proceeding."[45]

The sub-paragraphs of sub-section (4) to which Balmford J referred related to the size and nature of the deceased's estate and the obligations or responsibilities of the deceased to an applicant and beneficiaries as well as the financial resources and needs of the Plaintiff and the Defendant.

I do not regard the decision reached by her Honour that the categories of documents encompassed by sub-section (4)(f), (g) and (h) were relevant to the Part IV proceedings as meaning that such documents would be relevant to a Part IV proceeding where it was clear that the parties had not put those matters in issue.

It was submitted on behalf of the Plaintiff that effect must be given to the plain meaning of the statute. That the words of s.91 of the Act are to be read in context and according to the apparent purpose of the section does not require any recitation of authority. That said, it is entirely consistent with modern cannons of statutory construction that a limitation should be implied into a statutory provision where it is apparent on its face that there is good reason for doing so. The mandatory requirement that the Court have regard to matters set out in sub-section (4)(e) to (p) must be read as subject to the necessary qualification that such regard is only necessary to the extent that the matter is relevant to the Court's determination in the particular case.

Statutory provisions which require a Court to "have regard" to matters are not uncommon. The Victorian Bail Act 1977 in dealing with whether circumstances constitute an unacceptable risk provides in s.4(3) that:

"The Court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant."

Although the qualification of relevance does not appear in s.91(4) of the Act it is to be implied. Such a conclusion is reinforced by sub-paragraph (4)(p) which expressly provides that the Court must have regard to "any other matter the Court considers relevant". It will be inevitable that not all of the matters specified in sub-paragraphs (e) to (p) will be relevant in each case.

The Defendant submits that the discovery sought is irrelevant, the issues having been defined by the Affidavit material filed by the parties. The Defendant does not profess to make any claim based upon her present needs or future financial circumstances in the event that the Plaintiff was successful in obtaining an order from the Court. The estate is large enough to accommodate any order that is likely to be made in the Plaintiff's favour.

In these proceedings McDonald J[46] has already ruled that the absence of pleadings did not preclude the procedure for seeking summary dismissal under Rule 23 Supreme Court Rules. Based upon the obligation of a Plaintiff to comply with Rule 16.03(2) of Chapter 2 of the Rules, the Court can ascertain on the basis of the Affidavit material filed on behalf of the Plaintiff what it is the Plaintiff relies upon to establish that the deceased had responsibility to make provision for the maintenance and support of such Plaintiff out of his or her estate. The Affidavits filed by the parties will in most cases result in the issues being sufficiently defined.

The Plaintiff argues that s.91(4) of the Act does not permit parties to elect to limit the issues upon which the Application is to be determined. The Plaintiff invites me to treat the amendments as a new statutory regime which does not permit beneficiaries to elect not to be joined in the proceedings and to remain silent as to their circumstances. The Plaintiff submits that such an option is not open to them nor to the Defendant as a consequence of the statutory mandate. Thus the Plaintiff takes issue with the Master's conclusion that a charity named as a beneficiary would not be required under this legislation to reveal its financial resources or needs.

The amendments have not in my opinion, altered the adversarial nature of a claim for provision under Part IV Administration and Probate Act 1958. It remains a matter for the parties to determine the issues and the scope of the Court's inquiry.

Criteria in s.91(4)(e) - (o) of the Act and relevance

The Plaintiff's submission that the proper construction and effect of the mandatory provisions require the Applicant and all beneficiaries to provide discovery in relation to the matters enumerated in (h) and (l) of sub-section 91(4) of the Act cannot be sustained.

No authority need be cited for the proposition that the determination of an Application under s.91 of the Act must be based upon relevant considerations. Whether a matter enumerated in s.91(4)(e) to (o) will bear upon the Court's determination of the Application must depend upon its relevance to the issues as defined by the material relied upon by the parties to the proceedings. Where the issues as so defined reveals that a matter enumerated in sub-paragraphs (e) to (o) is irrelevant, the curial process should not be employed to compel a party to make discovery. While a Court must have regard to such matters, each is to be considered only to the extent that it is found to be relevant.

Relevance of the financial resources of the Defendant at the time of the hearing and for the foreseeable future s.91(4)(h) of the Act.

It is not disputed in the present case that there is a very large estate and that the Affidavit material thus far filed makes no suggestion that the Plaintiff's claim is resisted by the Defendant or any other beneficiary on the basis of competing need.

During the course of argument I was referred to a previous hearing at which the Plaintiff had stated to the Court by her counsel that she sought provision from the estate to the extent of one tenth of the estate. That matter is referred to in the order pronounced by Master Evans on 31 May 2002.

The solicitors for the Defendant are, I was informed, the solicitors acting for the other beneficiaries to the estate, and it was foreshadowed that further material in an appropriate form would be filed on their behalf disavowing any intention to make a claim based upon financial need in the event that the Plaintiff was successful in obtaining an order that adequate provision be made from the estate for her maintenance and support.

It is on the basis that there is an absence of any claim of competing need by the Defendant or the other beneficiaries and that an express disclaimer to that effect will be provided by the Defendant and each of the beneficiaries that I have considered the present appeal.

If a beneficiary is not intending to make a claim against the estate based upon financial need it is desirable that such a position should be adumbrated, either in the Affidavits filed or in a pleading. Given the amended form of the statute and matters to which a Court must have regard it is undesirable that a Court should be left to make assumptions or draw inferences from the absence of material filed. I indicated to counsel for the Defendant during the course of submissions that an Affidavit should be filed by the Defendant stipulating that she does not intend to make any claim based upon her financial needs. Dr Hardingham confirmed that an Affidavit would be filed stating that to be the Defendant's position.

Counsel for the Plaintiff did not advance any specific argument as to how the financial resources and needs of any beneficiary would be relevant to the jurisdictional questions in the present case. I am satisfied in the circumstances that such matters are not relevant. A knowledge of the Defendant's financial resources and needs will not assist the Plaintiff in discharging her burden of proof with respect to those jurisdictional hurdles.

As to the amount of any provision which the Court may order, the Defendant further submitted that the details sought by the Plaintiff were irrelevant as she did not profess to make any claim based upon her present circumstances or future circumstances in the event that the Plaintiff was successful in obtaining an order from the Court.

As the Defendant has made clear that she makes no special claim on the deceased other than her relationship and that she has adequate resources on which to live and will continue to have such adequate resources irrespective of any order that may be pronounced by the Court in favour of the Plaintiff, the Court will not be required to have regard to her financial resources or needs.

Relevance of documents relating to benefits previous given to the Defendant by the deceased s.91(4)(l) of the Act.

No specific ground of relevance as to the value of any inter vivos benefits received by the Defendant was suggested by Plaintiff's counsel. The Defendant does not make a competing claim against the estate based upon need. The size of the estate can readily accommodate any amount of provision which a Court may order for the Plaintiff.

Rule 16.07 of Chapter 2 Supreme Court Rules requires the Court on an application for directions to ascertain -

"(a) (i) the nature of the relief which the plaintiff seeks and (ii) the personal classes of persons who would be affected by the grant of that relief - and for this purpose may require the plaintiff and defendant to supply such information as the Court thinks necessary ... (f) give such other directions as the Court thinks fit."

The duty and power of the Court to make inquiry and to give directions under this rule will amply support directions which will enable the Court to ascertain with certainty whether any beneficiary intends to claim to be affected by the granting of the relief sought to the Plaintiff.

To disregard the Affidavit of the Defendant and to ignore the disavowal by her of any intention to make any claim against the estate based on financial need would result in the making of pointless directions for discovery. The legislation imposes no obligation upon the Court to require the Defendant to disclose matters relating to their personal circumstances, unless it is shown to be in some other way relevant to the determination of the Application.

The need to avoid unnecessary interlocutory steps was the subject of forceful comment by Harper J in Blair v Blair with which I entirely agree:

"It cannot follow however that in every case the Court must examine to the last minute detail the financial resources of every beneficiary of every estate upon which a claim is made under Part IV of the Act. On the contrary, the Court should in my opinion make it clear to both the parties and their legal representatives that the mere commencement of proceedings under the Part does not carry with it a general and unrestricted licence (including the use of discovery and the power to subpoena documents) to delve into the affairs of actual or potential claimants or beneficiaries. Unless this is made clear, a potential danger may become real. It is that, given the relatively recent amendments to the provisions of Part IV, courts will be swamped with evidence merely because that evidence concerned matters to which (following those amendments) the courts must have regard. But 'having regard' to a matter does not necessarily mean examining it under a microscope. It is vitally important that a sense of proportion be retained. Otherwise, cases under Part IV will become a travesty of wasted time, money and other resources. Justice cannot be administered by such means." [47]

His Honour having noted that the Defendant who was not a claimant against the estate and who the Plaintiff knew could not make a claim based upon financial need stated:

"......With a moment's further thought, he would also have realised that this litigation was, therefore, never likely to reach a point at which the defendant could properly argue that any provision, or further provision, for the plaintiff would leave the defendant without adequate means for his (the defendant's) proper maintenance and support. But unless that point were reached, with the result that there would be a real contest about the share each brother would receive from a limited fund, a close examination of the defendant's financial resources was not merely unwarranted but quite inappropriate......."[48]

Although Harper J was concerned with a subpoena directed to third parties his Honour was satisfied that the documents could never assume any relevance. In my view the concerns expressed by his Honour are apposite to the present circumstances.

There may be circumstances in which a beneficiary's resources or needs or the benefits given to the beneficiary during the testator's lifetime may be relevant though the beneficiary makes no claim based upon need. In the present case there is nothing about the Defendant's personal circumstances which can attenuate the Plaintiff's claim. On the basis of the evidence and the provision of the further documentation which expressly disavows any intention by the defendant to make any claim against the estate based upon her financial needs, no proper purpose would be served by requiring the Defendant to make discovery.

I then heard submissions from both parties as to the appropriate order for costs.

The argument as to costs has reinforced my view that there is a need for directions in such proceedings at an early stage to ensure the issues are clarified. Unnecessary interlocutory orders can then be avoided.

It was submitted by Dr Hardingham Q.C. that the Summons taken out by the Plaintiff seeking categories of documents was extraordinarily wide. Mr Southall Q.C. in response provided me with copies of orders made in other cases. He submitted that the categories of documents sought in the present case were part of the standard orders for discovery made in such proceedings. If that be so, the time has arrived for the court to ensure that discovery is confined to those issues which have been made relevant by the parties as a result of their pleadings or the material that they have filed.

Dr Hardingham Q.C. drew my attention to an Affidavit filed on behalf of the Defendant by Mr David Williams in which an offer was made to provide the Plaintiff with some of the documents sought in the Summons including documents which would have to be discovered in compliance with sub-paragraphs (h) and (1) of s.91(4) of the Act.

As I observed in discussion with counsel, it may well be that in the climate of distrust which exists in these proceedings, the offer of such documentation reinforced the Plaintiff's suspicion that such issues were relevant to the proceedings. The Defendant had not, until the hearing before me, stipulated in unequivocal terms that she would make no claim on the estate no matter what orders were made in the Plaintiff's favour thereby making her financial resources or needs or any benefits which she had received during the testator's lifetime irrelevant to the Plaintiff's claim.

No order as to costs should be made. Though the Defendant was successful on the appeal it was not until submissions were advanced before me that the matters which the Defendant does not intend to ventilate on the trial of this action were unequivocally stated.

These observations are not intended as a criticism of the manner in which the Defendants' case has been conducted but to highlight the need for clarification of the issues at an early stage of the proceedings before directions for discovery are made.

Mr Southall Q.C. also submitted that I should vacate the order for costs made by Master Evans against the Plaintiff. The appeal having been dismissed, it is not appropriate to revisit the orders made by Master Evans, his orders on the merits having been upheld.

As all other interlocutory steps have been completed I will, as the parties request, order that the matter be listed before the Listing Master to obtain a trial date.

[3] [2001] VSC 54 per Beach J.

[5] Supra Footnote 4 at 648 per Lloyd Greene MR. See also Blair v Blair [2002] VSC 131 at paragraph 2 per Harper J.

[7] [2004] VSCA 51 at paragraph 2 per Winneke P.

[11] [2000] VSC 341 at paragraph 7 per Eames J.

[12] [2001] VSC 242 at paragraphs 60-69 per McDonald J.

[13] [2002] VSC 208 at paragraph 42 per Warren J.

[14] Supra Footnote 5 at paragraph 21 per Harper J.

[15] [2001] VSC 53 at paragraphs 81-81 per Gillard J.

[18] Pearce, D.C. & Geddes, R.S. (1996) Statutory Interpretation in Australia (4th ed.) Sydney, Butterworths at paragraph 8.7-8.8.

[23] Supra Footnote 15 at paragraphs 77-82.

[25] Supra Footnote 24 at paragraph 38.

[27] Supra Footnote 13 at paragraph 42.

[31] [2004] VSC 90 at paragraph 46.

[39] Supra Footnote 24 at paragraphs 213-215.

[46] Supra Footnote 1 Harris v Bennett

[47] Supra Footnote 5 at paragraphs 2-3.

At a glance

Court

Decision date

Before

Source

Judgment (123 paragraphs)

Parties

Cases Cited (11)