DONALD JAMES WEST (as Executrix and Executor of the Will of IDA ALMA LINTO (DEC))

Practice and procedure - Application to strike out parts of affidavit in support of application - Turns on its own facts

Inheritance (Family and Dependants Provision) Act 1972

Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988

Commissioner for Railways (NSW) v Young [1962] HCA 2; (1961) 106 CLR 535

Hughes v National Trustees Executors and Agency Co [1979] HCA 2; (1978) 143 CLR 134

Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753

1 MASTER SANDERSON: This is the defendants' chamber summons seeking to strike out certain paragraphs of the affidavit of the plaintiff sworn 27 January 2000 and filed in support of his application brought under the Inheritance (Family and Dependants Provisions) Act 1972 ("the Act"). The defendants' complaints about the plaintiff's affidavit are set out in the body of the chamber summons. In submissions filed on behalf of the plaintiff prior to the hearing, concessions were made in relation to a number of the defendants' objections. These concessions did not assuage the plaintiff's concerns. After hearing argument from counsel I indicated I would not strike out any of the paragraphs of the affidavit to which the defendants maintained their objections. Counsel for the defendants asked me to publish reasons for my decision. These are those reasons.

2 Before dealing with this particular application I should make some general comments about the contents of affidavits relied upon in proceedings brought under the Act. There is no doubt that the relief sought by the plaintiff is final relief. Consequently, any affidavits filed in the proceedings must comply with the provisions of O 37 r 6(1). The concession as to hearsay evidence found in r 6(2) does not apply to affidavits in these proceedings. Furthermore, affidavits should not contain material which is irrelevant or argumentative and more in the nature of a submission than evidence. However, in relation to irrelevant or argumentative material in an affidavit, there is no real need in most cases to strike it out. Irrelevant evidence, if led during the course of a trial, wastes time and unnecessarily inflates the cost of litigation. The same is true of argumentative evidence. But when a matter is to be decided on affidavits, irrelevant and argumentative material can be ignored. Along the same lines, admissible material, which is so lacking in supporting evidence as to be nothing more than a bald statement, will obviously be given little weight when it comes to determining the issues in the litigation. But it is not generally necessary to strike out such material.

3 Of course, there are occasions when striking out parts of affidavits is proper. Scandalous material that is irrelevant is one obvious example. Irrelevant evidence which could raise a false issue might be another example. But, generally speaking, in applications under the Act a party is bound to present evidence which attempts to paint a vivid picture of the deceased and the various interrelationships between the plaintiff, the defendants and all related parties. Almost inevitably the evidence will range across many years and deal with many issues. Some of the evidence might well be irrelevant. But given the nature of the proceedings and the case that has to be put by the plaintiff it seems to me that affidavit material should only be struck out in the clearest of cases where it is necessary to do justice between the parties. The result, of course, is affidavits which may contain large amounts of irrelevant or argumentative material. At trial, such material will be ignored and the parties should approach the matter on that basis: see Low v Perpetual Trustees WA Ltd, unreported; SCt of WA (Master Adams); Library No 940552; 28 September 1984.

4 Turning then to the particular objections raised by the defendants in this case, objection was taken to all but the first sentence of par 11. It is said that the paragraph was made up of opinion and hearsay, it offended the best evidence rule and that the final sentence was a statement of law. Paragraph 11 deals with events that happened in 1963. The application relates to the will of Ida Alma Linto who died on 18 May 1999. The evidence in relation to events dating back almost 40 years simply provides the background necessary to put the application in context. Viewed in this light, par 11 is unobjectionable.

5 Objection is taken to par 12 because it is said the paragraph offends the best evidence rule. Paragraph 12 details an income tax debt due and what became of the proceeds of the sale when the plaintiff sold his farm. There is no supporting documentation which shows the amount of the tax debt referred to by the plaintiff. Once again, the paragraph is dealing with events which go back into the mists of time. The material is not central to the resolution of the dispute. The evidence itself only assists insofar as it explains the plaintiff's history. In my view the paragraph can stand.

6 Objection is taken to the last two sentences of par 14. In par 14 the plaintiff alleges that he made payments on his mother's house until 15 April 1970 "because I have records of payments made until that time". He goes on to say that he believes he continued to make payments until 1972. It is said the plaintiff should have annexed records to support his claim and, in the absence of the provision of such records, the best evidence rule is offended and the two sentences ought be struck out. I repeat again the comments I made about this evidence only being important to put the plaintiff's present position in context. However, it would have been preferable if supporting documentation had been annexed to the affidavit to support the plaintiff's evidence. The way the paragraph is worded strongly suggests that such documentary evidence exists. Any complaints can be cured by an order for discovery of these particular documents and, subject to hearing argument on the point from the plaintiff, I would be prepared to make the necessary discovery order.

7 It is said that par 15 offends the best evidence rule. In my view, the evidence contained in par 15 is admissible and the paragraph should stand. The last part of the final sentence of the affidavit was clearly inadmissible. Once this concession was made the rest of the paragraph is evidence which the plaintiff can give from his own knowledge.

8 A variety of objections were taken to par 16, some of which were conceded by the plaintiff. In relation to the rest of the paragraph, I am satisfied it should stand. What the paragraph does is outline matters which the plaintiff says made his life difficult. It is his assessment of the way certain events affected his life. There can be no objection to him giving such evidence.

9 Counsel for the defendants took strong exception to par 24 and par 25. It would not be overstating the position to say these two paragraphs were the prime focus of the application. One small concession was made by the plaintiff but it did not satisfy the defendants' concerns. In relation to par 24, the main objection was that reference was made to a deed, but no copy of the deed was annexed. The plaintiff says, in par 24, he did not have a copy. What he does do is annexe a copy of the letter from a solicitor indicating a deed was signed. Whether it is the same deed to which the plaintiff is referring in par 24 is open to conjecture, but that is the plaintiff's position and an examination of the letter indicates he might be right. In any event, par 24 is unobjectionable. It should stand.

10 In relation to par 24, counsel for the plaintiff pointed out that there was no admissible evidence that a proper search had been made to attempt to find the original of the deed. On that basis it was said that the mere allegation that the deed could not be found was not enough to ameliorate the effect of the best evidence rule. Reference was made to Brewster v Sewell (1820) 106 ER 672 and to what was said by Miller J in Godfrey v Woolworths (WA) Pty Ltd, unreported; SCt of WA; Library No 980485; 25 August 1998. I am satisfied in the circumstances of this case, and given the time that has passed since the deed was signed, the evidence which is given in par 24 is sufficient. If the contents of the deed become an issue between the parties which is central to the resolution of the dispute then the plaintiff may need to provide further evidence as to what efforts have been made to locate the deed. But as matters stand at present I am satisfied that what is in par 24 is sufficient.

11 Paragraph 25 adds little to what is contained in par 24. Most of the material is irrelevant, however, it is not so offensive that it should be struck out. Insofar as it assists the plaintiff's case, it could only be by way of background.

12 Objection is taken to par 36 and par 44 on the basis that both contain the plaintiff's opinion of the value of certain property. It is doubtful whether the plaintiff's opinion as to the value of these properties is of much weight. In both cases the plaintiff is attempting to establish his financial position, a relevant consideration in the application. If the value of these properties is to be put in issue then further evidence may be required. Moreover, the lack of probity of the evidence may damage the plaintiff's case. But I do not see either paragraph as being so offensive as to warrant striking out.

13 Objection is taken to a sentence in par 37 beginning in line 8 and ending in line 9. It offers an opinion as to why the deceased did not enjoy a good relationship with either of the plaintiff's wives. While it is a statement of opinion, it is no doubt based upon observations made by the plaintiff over many years. It may or may not be a correct assessment of the position but if it is read, as I think it should be, as evidence of the plaintiff's assessment of the relationship then it is unobjectionable. The paragraph can stand in its present form.

14 Objection was taken to the first and last sentences of par 38. As I said in relation to par 37, I think the observations made in these two sentences are nothing more than the plaintiff's view based upon his observations. Viewed that way, both sentences are admissible. Paragraph 38 can stand in its present form.

15 A series of objections was taken to par 43, some of which were conceded. I doubt that the contents of par 43 are relevant to these proceedings. The paragraph deals with the deceased's health and state of mind at the time she signed the will, probate of which has been granted. Proceedings under the Act are not an attack on the will and this appears to be the thrust of par 43. Otherwise the will speaks for itself and the plaintiff's assessment of the effect of the will is nothing more than argument. While objection can be taken to par 43, I am not satisfied that the paragraph should be struck out.