In a recent decision by White J in the Applications Jurisdiction, Her Honour had occasion to consider some important points of practice in relation to Part 2 of Chapter 7 of the Uniform Civil Procedure Rules.1 Curry v Byrne concerned an application for probate in solemn form of an alleged codicil (made on about 9 February 2007) to a Will executed on 31 October 2007. Under the Will, the Deceased’s wife (the Defendant in the action) was the sole executrix and beneficiary. The codicil, made shortly prior to the Deceased’s death, conferred substantial specific bequests on the Plaintiff with whom the deceased had struck up a friendship. The Deceased and the Defendant had been experiencing matrimonial difficulties.
The Statement of Claim alleged that the codicil was intended to have testamentary effect, despite the fact that it had been only signed by the Deceased and not witnessed. Dispensation was sought under the new Section 18 of the Succession Act 1981. The Defence put in issue that assertion, as well as pleading that the Deceased lacked testamentary capacity as at 9 February 2007.
The litigation had reached the stage where a Statement of Claim and Defence had been filed, but no Reply had been filed (although the period referred to in UCPR169(d) had expired) and disclosure had not taken place. Some 22 Notices of Non-Party Disclosure were at that point issued and served on behalf of the Plaintiff. They were primarily directed to companies with whom the Deceased had had dealings in the period leading up to his death, but also including various companies in which the Deceased was interested.
None of the persons on whom the Notices were served objected to them. However, the Defendant brought an application to strike out the Notices on various grounds including that they were premature, that the notices did not state the issue to which the documents were said to be directly relevant, and that the Notices had not been served on the Defendant, which was alleged to be a breach of UCPR 244.
Directions were also sought by the Defendant that any future Notices served by the Plaintiff be served on the Defendant and that the Defendant have leave to object to such Notices under UCPR 245(2).
It was argued on behalf of the Plaintiff that there was no obligation to serve the Notices on the Defendant, and that the Defendant lacked standing to object to the Notices.
Her Honour Justice White did not specifically deal with the allegation that there had been a breach of the Rules by failure to serve the Notices on the Defendant. However, she implicity accepted that there was no such breach, because Her Honour was not minded to make any direction in limine obliging the Plaintiff to serve any future Notices of Non-Party Disclosure on the Defendant. Anyway, it is obvious from the terms of UCPR244 (1)(a) that there is no general duty to serve Notices of Non-Party Disclosure upon the opposing litigant.2 That rule provides that:
“the Applicant must, within 3 months after the issue of a notice of non-party disclosure, serve a copy of the notice on … (a) a person other than a party, about whom information is sought by the notice”3
The whole point of Non-Party Disclosure is that it enables a litigant, as part of the process of trial preparation, to obtain copy documents without informing the opposing litigant in advance.4 The only route available to an opposing litigant to object to Notices would be if that person obtained the leave of the Court by demonstrating that they were “another person who would be affected by the notice and who has not been served” within the meaning of UCPR 245 (2).
On that, the Plaintiff’s submission was that merely because a person is an opposing litigant is not enough for them to be “affected by the notice”; the person had to have some interest in the subject matter of the information, for example a claim of privilege or confidentiality which would be adversely affected if the copy documents were produced. The Defendant had not assumed an onus of demonstrating that there was any claim of privilege or confidence which she could properly assert.5
The authorities on the point were conflicting. Some New South Wales authority suggests that, for standing to exist, the person seeking to object must show some interest in the subject matter of the information.6
On the contrary, it has been held more recently in New South Wales that an opposing litigant has standing to object to subpoenas issued by another party. In Street v Luna Park Pty Ltd,7 Brereton J observed:
“Although it might be said that the balance of that authority weighs in favour of the view that a party does not automatically have standing to apply to set aside a subpoena addressed to a third party in the absence of an interest in the subject documents, at least two judges of this Court, Powell and Hunter JJ, have expressed the view that being a party to proceedings is of itself sufficient to confer standing. With great respect to what was said by McLelland J, which faithfully follows the words of the then rule, that view gives insufficient weight to the considerations referred to by Powell J in Botany Bay, that setting aside a subpoena is an aspect of the Court’s inherent power to stay abuses of its process in which — for reasons expressed by Hunter J in Brand — a party has an interest quite apart from any interest in the documents. In my view a party to proceedings has a sufficient interest in the regular conduct of those proceedings to invoke the Court’s power to set aside a subpoena for production of documents whether or not it has an interest in the subject documents.”
It was submitted on behalf of the Plaintiff that Street’s case was a case where the only objection made was one on the grounds of relevance, whereas here the objections also included objections about prematurity and failure to state the issue to which the documents were directly relevant, that those requirements were inserted in the Rules to protect non-parties and that it would be impossible to weigh the consequences of the breach of those requirements in the absence of some evidence of the impact of the Notices on such persons.8
Her Honour however seemed to be impressed with the above passage from Street’s case, which she cited with approval, also placing importance on the fact that the Defendant was the executrix of the estate named in the Will, and residuary beneficiary, and as such was concerned to see that the costs of the estate were not diminished by the costs of unnecessary and improper notices. Her Honour, in that respect, was not deterred by the submission that the present proceedings were unconventional, in that the Defendant as executrix ought to have sought probate in solemn form of the Will, and as part of that should have sought a declaration against the validity of the codicil.9 It made no difference to Her Honour’s decision that, had conventional procedure been followed, the Plaintiff would not have been placed in the situation where issue of these Notices to the same extent was necessary.
Ultimately, however, Her Honour did not decide the question of standing because she considered she had jurisdiction to entertain the application under UCPR 371 (power to make directions) or the inherent jurisdiction of the Court.
Her Honour then went on to hold that the Notices should be set aside.
The first basis upon which she so held, was that the Notices were premature, given that disclosure had not taken place and a foreshadowed Reply had not been filed. She had regard to UCPR 242 (2), which provides that:
“the applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document”.
It had been certified in the Notices that there was no other reasonably simple and inexpensive way of proving the matters sought to be proved by the documents. Many of the documents, although not all, were only in the possession of non-parties. It was submitted that, especially because of the attitude of the Defendant to the relevance of the documents, the disclosure process would be unlikely to lead to production of many of the documents, and/or it would be fraught with disputes about relevance which would only increase the costs of the litigation. Her Honour was unimpressed by that submission and held that such is not the way litigation is to be conducted in the Supreme Court, and that the Notices should be set aside without any detailed consideration of the particular objections to each particular Notice.
Her Honour also considered that the Notices were defective in that, contrary to UCPR 243(1)(b), they did not “state the allegation in issue in the pleadings about which the document sought is directly relevant”. In this case, although the Notices did not in terms specify the issue to which the documents were directly relevant, they each attached copies of the Statement of Claim and the Defence. This seems to reflect a practice which has been followed in some quarters from time to time. However, Her Honour held that this approach was not adequate and observed that the Notices ought to have set out the issues to which the documents are said to be directly relevant, even if only succinctly and in a propositional form.
Accordingly, on those grounds, the Notices were set aside. Her Honour ordered that the Plaintiff pay the Defendant’s costs of the application on the indemnity basis, also having regard to some technical defects which were capable of being cured by amendment.
The case is a sober reminder that when issuing notices of non-party disclosure, one can never be overcautious in complying with the letter of Part 2 of Chapter 7 of the UCPRs, especially by ensuring that the pleadings have closed, disclosure has taken place (or at least a genuine attempt at disclosure has occurred), and that the Notices state the issue or issues to which the documents sought are said to be directly relevant, rather than attaching the pleadings. That does not mean, however, that the Notices have to be served on the opposing litigant, which ordinarily is not required.
Although the case leaves unresolved the question of standing, Her Honour’s decision demonstrates that standing may be of little practical significance in many cases, in view of the Court’s powers to supervise proceedings in the Court.
Stephen Lee
Footnotes
- Curry & Byrne, unreported, QSC White J, 9 November 2007, No. 7354/07.
- There could though be cases where UCPR 244(1)(b) requires service, where the opposing litigant is the owner of the document, though presumably in that case the disclosure process would be adequate.
- Emphasis added.
- See e.g. Lebon v Lake Placid Resort Pty Ltd [1995] 1 QdR 24, 29; Brophy v Dawson [2003] QSC 346; Rossi v Ballymore Towers Pty Ltd [1984] 2 QdR 161, 171.
- Cf Grant v Downs (1976) 135 CLR 674, 689; Waterford v The Commonwealth (1987) 163 CLR 54, 86-7; ACCC v Lux [2003] FCA 89[42].
- See eg Compsyd Pty Ltd v Streamline Travel Services Pty Ltd (1987) 10 NSWLR 648.
- [2006] NSWSC 95 (9 February 2006), at [6].
- See eg Adelaide Steamship v Spalvins (1997) 24 ACSR 536, 546.
- Williams on Executors 18th ed [32-04].
