ZEEMAN J The applicant seeks an order requiring the respondent to produce for inspection certain documents disclosed in the respondent's supplementary list of documents. The respondent objects to producing those documents. Although not stated in the list in those terms, I was told that the basis of the objection is that the relevant documents are the joint property of the respondent and her husband, the latter not being a party to the proceedings. The parties are agreed that I determine whether a party is entitled to resist the production of a discovered document which is the joint property of that party and a person who is not a party to the proceedings and that, if I conclude that a party has no such entitlement, an order for production ought to be made.

2. The application is made in proceedings in which the applicant seeks an order pursuant to the provisions of the Testator's Family Maintenance Act 1912 that provision be made for him out of the estate of Henry Hobart Langford, deceased. The applicant and the respondent respectively are the son and daughter of the deceased. By his last will and testament the deceased appointed the respondent the sole executrix thereof and devised and bequeathed the whole of his estate to her.

3. I have previously held that a party to proceedings under the Testator's Family Maintenance Act is not obliged to make discovery unless an order is made requiring discovery (Clark v Pickrell B4/1992). It appears that although in the first instance no order was made in the terms authorised by O33, r14(1), the parties agreed that there be discovery by way of lists of documents, as is evidenced by the fact that each party filed and served a list of documents. Subsequent to that, on 9 June 1992, the Master made an order requiring the respondent to file a further list of documents, verified by affidavit, particularising documents of specified categories. The documents the subject of the present application fall into one or other of those categories. The making of the Master's order was authorised by r14(1)(3).

4. Counsel for the respondent submits that as the documents are the joint property of the respondent and her husband, it is not open to me to order that she produce those documents for inspection by the applicant. The documents are relevant because the present financial position of the respondent may be disclosed thereby. Her financial position at the time of the hearing of the principal proceedings may become relevant (see Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 509).

5. The primary obligation to permit inspection is imposed by O33, r21. In its terms that rule applies to any party who has served a list of documents on any other party whether in compliance with r13 (which only applies to actions) or with an order under r14 (which applies to proceedings other than actions).

6. As I have said, there has been an order under r14 and the relevant documents are disclosed by the list made pursuant to that order. Once the list of documents was served, r21(a) imposed on the respondent an obligation to allow the applicant to inspect the documents referred to in the list, other than those documents which she objects to producing. Where a party objects to producing a document, the party seeking inspection is entitled to make application under r23(1) for an order for production of the documents in question. The application before me is made pursuant to that provision. In my view r23(2) has no application. That subrule is relevant where a document has not been disclosed in a list of documents and the party upon whom the list has been served asserts that it exists and ought to be discovered and produced for inspection That that is the purpose of r23(2) is confirmed by r23(3) which requires the application to be supported by affidavit deposing to the matters referred to in that subrule.

7. There is a line of English cases in which it has been held that a party is not entitled to inspect a document which is in the joint possession of another party and a person not a party to the action. Those authorities are conveniently collected in the judgment of Master White in Biala Pty Ltd v Mallina Holdings Ltd (1990) WAR 174. Those cases were based on the former English rules which enabled a party to seek an order requiring that another party make discovery on oath "of the documents which are or have been in his possession or power, relating to any matter in question" in the action and which authorised the Court to order production of documents "in his possession or power, relating to any matter in question". In substance, similar rules appeared in the former rules of this Court as they were enacted by the Supreme Court Civil Procedure Act 1932.

8. In 1964 the English rules were changed so that the duty to make discovery and permit inspection was expressed to relate not only to documents in the "possession or power" of a party but also to documents in the "custody" of that party. In Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405 at 429, Lord Cross of Chelsea expressed the view that the change in the rules had the result that a party making discovery could be ordered to produce documents in his custody even though those documents belonged wholly or partly to a third party.

9. That dictum was followed in Turner v Davies (1981) 2 NSWLR 324. In that case Maxwell J explained why the obligation of a party to produce documents in his custody ought to be construed as including an obligation to produce documents in his custody which are the property of another person when he said, at 325-6:

"(Counsel for the applicants) submits that prior to 1964 in

England a document had to be in a party's sole legal

possession for an order to be made for its production. The

reason for this was that the power of the court or judge was

to order the production by any party of such of the

documents 'in his possession or power', relating to any

matter in question in the cause or action. It has been held

in relation to the old practice that possession or power for

the purpose of justifying an order for production had a

narrower meaning than for the purpose of inclusion in an

affidavit of documents. 'Possession or power' for the

purpose of an order for production means sole legal

possession, a right and power to deal with them: see

Kearsley v Philips (1882) 10 QBD 36; 465; Murray v Walter

(1839) Cr and Ph 114; [1839] EngR 983; 41 ER 433; Coomes and Son v Hayward

(1913) 1 KB 150. Thus, whilst it was necessary to include

in an affidavit of documents all documents in which the

party had any possession or property jointly with others or

even in which he had no property at all if they were in his

corporeal possession, the court would not order such

documents to be produced. It was sufficient for the party

concerned to state that a document was not in his sole legal

possession and it was not necessary for him to allege or

show the refusal of the co-owners to produce: Kearsley v

Philips (1882) 10 QBD 36; 465; but he was required to state

their names and the nature of their ownership: Bovill v

Cowan (1870) 5 Ch App 495. Under the old practice that was

the end of the matter as the court had no discretion in the

face of the assertion that the party concerned did not have

sole legal possession It is, I think preferable to say that

documents falling within this category were protected rather

than privileged from production.

However, the introduction of Supreme Court Rules, O 24

widened the scope of the court's power to order production

for inspection and thus, the obligation of a party to

produce: see Supreme Court Rules, O 24, r 7. This rule

together with O 24, r 12 extended by the inclusion of the

word 'custody' the previous power of the court to order

inspection as these documents were no longer automatically

protected from production for inspection .....

Prior to the introduction of the Supreme Court Act, 1970 and

the rules made thereunder - see Pt 23, rr 7, 8 and 10 - the

Supreme Court in this State followed the pre 1964 English

Practice in relation to discovery and inspection. However,

whilst s 102(1)(b) of the New South Wales Common Law

Procedure Act 1899 required a party to state on affidavit

what documents he had in his possession or power, it was not

encumbent upon him to state what documents he also had in

his custody. However, Pt 23, rr 7 and 10 of the present

rules include the word 'custody' and thus, a party is

obligated now to produce for inspection documents of which

he is part owner or of which he has custody as a servant or

agent for a third party who owns the document. ...

The position is that once again the New South Wales Practice

is in accord with the English Practice. I say this despite

note 23.6.5 (c) and (d) to Pt 23, r 6 of the New South Wales

Supreme Court Rules that documents thought relevant and

thus, disclosed in the list of documents are 'privileged'

from production if they're not in the sole possession of the

party giving discovery or are in the possession of a party

only as agent for or on behalf of another."

10. With respect, I adopt the reasoning of Maxwell J. On the basis of that reasoning, if the Rules of the Supreme Court, O33 are to be construed as permitting inspection to be ordered of documents in the custody, as distinct from the possession or power, of a party, then the order sought by the applicant ought to be made. Although it seems that the relevant Western Australian rule required that there be discovery of the documents in the possession custody or power of a party, in Biala Pty Ltd v Mallina Holdings Ltd (supra) production of documents the joint property of a party and another was refused on the basis of the older English authorities. However neither Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) (supra) nor Turner v Davies (supra) is referred to in the judgment nor is the significance of the word "custody" adverted to therein. In those circumstances I decline to follow it.

11. In my view, r23(1) authorises the making of an order requiring a party to produce a document in the custody of that party. The obligation to make discovery in an action is imposed by r12(1). It is expressed in terms of being a duty to make discovery of the documents that are or have been in the "possession, custody or power" of that party. Similarly where the matter is not an action, r14(1) authorises the making of an order requiring a list of documents which are or which have been in the "possession, custody or power" of the relevant party. Whilst the Master's order does not employ those words, his order is to be construed as requiring the respondent to make a list of all the documents in her possession, custody or power which fall into the categories specified in the order. The order ought to be so construed because it required the making of a list. The form of a list of documents is prescribed by the rules. The form requires the disclosure of documents in the possession custody or power of the party making the list.

12. Rule 23(1) ought to be construed as relating to all documents disclosed in a list of documents including documents merely in the custody of the party making the list. That documents merely in the custody of a party may be required to be produced for inspection is made quite clear by r23(2). If I were to accept the respondent's submission that such documents may be required to be produced by an order under r23(2) but not by an order under r23(1), the result would be that if a party failed to disclose in his list a document merely in his custody, production could be ordered; but that if the party disclosed such a document in his list, as plainly he would be required to do even on the older English authorities, production could not be ordered. That would be a nonsense and the rules ought not to be so construed unless that is the only construction reasonably open. That is not the position.

13. I conclude that the respondent is not entitled to resist production of the relevant documents. I have the power to order the production of those documents and it is appropriate that I exercise that power. There will be an order that the respondent produce the relevant documents for inspection. I will hear the parties as to the precise form of the order.