Elizabeth Sciacca (as Administrator of the Estate of Giuseppe Sciacca (Dec)) & Anor v Renna [2000] WASC 140 (30 May 2000)

Last Updated: 4 August 2000

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ELIZABETH SCIACCA (as Administrator of the Estate of GIUSEPPE SCIACCA (DEC)) & ANOR -v- RENNA [2000] WASC 140

CORAM : MASTER SANDERSON

HEARD : 22 MAY 2000

DELIVERED : 30 MAY 2000

FILE NO/S : CIV 1072 of 1998

BETWEEN : ELIZABETH SCIACCA (as Administrator of the Estate of GIUSEPPE SCIACCA (DEC))

First Plaintiff

ELIZABETH SCIACCA

Second Plaintiff

AND

ANGELA RENNA

Defendant

Catchwords:

Practice and procedure - Application by defendant for an order plaintiffs' solicitors cease to act - Principles - Relevance of stage proceedings have reached - Alternatives available in regional areas

Further and better discovery - Turns on it own facts

Legislation:

Nil

Result:

Application for restraint refused

Order made for further and better discovery

Representation:

Counsel:

First Plaintiff : Mr M P Thackaberry

Second Plaintiff : Mr M P Thackaberry

Defendant : Mr B W Ashdown

Solicitors:

First Plaintiff : George Giudice Law Chambers

Second Plaintiff : George Guidice Law Chambers

Defendant : Ilbery Barblett

Case(s) referred to in judgment(s):

Case(s) also cited:

Ashpital v Bryan [1864] EngR 575; (1864) 5 B & S 723; 122 ER 999

Benjamin v Pulfer, unreported; SCt of WA; Library No 6618; 4 March 1987

Bushtown Holdings Pty Ltd v Conlan [1999] WASC 123

Caboche v Ramsay (1993) 119 ALR 215

Carpenter v Buller [1841] EngR 552; (1841) 151 ER 1013

Commissioner for Corporate Affairs v Harvey [1980] VicRp 64; [1980] VR 669

Dabbs v Seaman [1925] HCA 26; (1925) 36 CLR 538

Dalleagles Pty Ltd v ASC (1991) 4 WAR 325

Discount & Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR(NSW) 598

Esso Australia v Commissioner of Taxation [1999] HCA 67

Greer v Kettle [1937] 4 All ER 396

Grey v Alexander [1999] WADC 13

Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446

Kooky Garments Ltd v Charlton [1994] 1 NZLR 587

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341

Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VicRp 17; [1989] VR 184

Newman v Phillips Fox [1999] WASC 171

Offshore Oil NL v Southern Cross Exploration NL [1985] 3 NSW WR 337

Orr v Mitchell [1893] AC 238

Re Patrick Corp Ltd [1981] 2 NSWLR 328

Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178

Stroughill v Buck [1850] EngR 295; (1850) 117 ER 301

Young v Raincock [1849] EngR 314; (1849) 137 ER 124

1 MASTER SANDERSON: This is the return of two chamber summonses, both issued by the defendant. The first in time is an application by the defendant for orders that the plaintiffs' solicitors cease to act. The second summons seeks further and better discovery of documents. At the request of the parties, both summonses were heard together.

2 At the commencement of the hearing I pointed out to counsel for the defendant that, in relation to his application for an order that the plaintiffs' solicitors cease to act, he was in effect seeking an injunction against the plaintiffs' present solicitors. As such, the application fell outside the Master's jurisdiction: see O 60 r 1(1)(a)(ii). Both counsel then indicated that they consented to my dealing with the matter under the provisions of O 60 r 1(1)(1B)(a). The application proceeded on that basis.

3 Essentially, it was the submission of counsel for the defendant that the plaintiffs' present solicitor was likely to be called to give evidence during the trial of the action. That being the case, counsel submitted the plaintiffs' solicitors had an "interest" in the proceedings and it was inappropriate for the plaintiffs' solicitors to continue to act. To understand the basis of that submission it is necessary to go into some detail as to the nature of the proceedings between the parties.

4 Elizabeth Sciacca is the widow of, and the administrator of the estate of, the late Giuseppe Sciacca. Giuseppe Sciacca died intestate on 10 September 1995. The defendant is the former wife of the deceased. The defendant and the deceased married in January 1951 and separated in or about 1979. The second plaintiff and the deceased co-habited together from about 1980 and were married in October 1990.

5 At the date of his death the deceased had an interest in two properties. One was a house at 9 Zeewyck Court, Geraldton. That property is now registered in the name of the first plaintiff, presumably pursuant to a survivorship application. The Zeewyck Court property is currently occupied by the defendant and has been at least since 1979. The plaintiff is now attempting, by this action, to recover possession of the Zeewyck Court property. This is one aspect of the claim. It is only of marginal relevance so far as this application is concerned.

6 The other property in which the deceased had an interest is located at 30 and 32 Forrest Street, Geraldton. Prior to 1986 the deceased and the second plaintiff resided in a house on the Forrest Street property and conducted a business from a shop on the premises. In or about 1986 the deceased and the second plaintiff vacated the Forrest Street property, demolished the house and extended the shop so that it became solely a commercial site. The Forrest Street property now comprises three shops which, according to the amended statement of claim (par 18), have a monthly rental income of $2,000 and a market value of somewhere between $200,000 and $270,000. The Forrest Street property was held prior to the death of the deceased by the deceased and the defendant as joint tenants. Upon the death of the deceased the Forrest Street property passed to the defendant. It is now registered solely in her name.

7 The plaintiffs claim an interest in the Forrest Street property. The second plaintiff claims that she contributed to the development and the upkeep of the property and she therefore has an unspecified interest in it and that the defendant holds this interest for her as a constructive trustee. This is a claim based on the principles set out in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137. The first plaintiff claims an interest in the Forrest Street property because, she says, the joint tenancy was severed prior to the death of the deceased. No particulars are given as to what events led to the severing of the joint tenancy. Although a request for further and better particulars of the amended statement of claim has been made, particulars were not requested of this aspect of the first plaintiff's claim.

8 The amended defence and counterclaim does not specifically deny that the joint tenancy of the deceased and the defendant with respect to the Forrest Street property was severed. But the tenor of the pleading, and in particular par 10(b) makes it plain that the defendant is now the sole registered proprietor consequent upon the joint tenancy and her rights of survivorship upon the death of the deceased. The defendant also pleads, as follows (par 34):

"34. Further or in the alternative to the matters pleaded herein with respect to the Forrest Street Property, if the Second Plaintiff has made any contributions and or payments (whether financial or non-financial) and or has or has had any interest or estate in the Forrest Street Property (which are all denied in any event):

(a) ...

(b) the Second Plaintiff is estopped from asserting such contributions or payments (whether financial and non-financial) and or any such interest or estate and further any such claim by the Second Plaintiff has been satisfied and extinguished by virtue of the provisions of a Deed dated 11 April 1994 between the deceased and the Second Plaintiff whereby it was provided inter alia in relation to the Forrest Street Property that the deceased and the Defendant were the registered proprietors as joint tenants and the same was purchased by the deceased 'prior to the marriage and that the wife has made no contributions towards the said real property and has no claim in respect of the same'.

... "

9 The pleading goes on to say that the defendant will refer to the Deed at trial for its full terms and effect. The Deed was drafted by Glynn & Gray, barristers and solicitors of Forrest Street, Geraldton. It is what is termed a "Section 86 Agreement" and was drawn up pursuant to the provisions of the Family Law Act. It was not drawn by the plaintiffs' present solicitors. Nor is there any other reference in the defence to any document which is likely to lead to the plaintiffs' solicitors being called to give evidence. If that were the end of the matter there would be no basis upon which the order sought could be made and the application would be dismissed. But during the course of discovery a document has come to light which the defendant says alters the position.

10 The document in question is an "Agreement of Partnership" ("the Partnership Agreement"), itself undated but stamped 12 August 1988 (see Annexure "A" to affidavit of Brendan Warren Ashdown sworn 24 March 2000). The agreement records a partnership between the deceased and the second plaintiff. Recital B of the Partnership Agreement is in the following terms:

"B. The first Partner is the joint owner with his ex-wife of the property from which the business operates."

11 The defendant submits that this written agreement amounts to an admission by the second plaintiff that the Forrest Street property was held by the deceased and the defendant as joint tenants. Based upon this document, it is said that the second plaintiff is "estopped" from denying the fact of the joint tenancy. The Partnership Agreement was drawn by the plaintiffs' present solicitors. The defendant says she intends to further amend her defence and counterclaim to make reference to the Partnership Agreement and to raise against the second plaintiff this issue of estoppel. As a consequence, it is submitted, the Partnership Agreement itself and the circumstances in which it was created will be put in issue. It is said that the second plaintiff will be compelled to call her solicitors who drafted the Partnership Agreement to give evidence in relation to it. On that basis the defendant says the plaintiffs' present solicitors should be restrained from acting.

12 The first point to note is that the pleadings have not yet been amended by the defendant to refer to the Partnership Agreement. No application for leave to amend has been made, although such an application has been foreshadowed. Leave to amend may or may not be granted. This was not an issue developed by either counsel. For the purposes of this application I think it is proper to assume that leave will be given and the effect of the Partnership Agreement will be an issue between the parties.

13 It is very difficult at this stage to ascertain to what extent the Partnership Agreement will be in issue. The Partnership Agreement itself dates from mid 1988. The deceased died in 1995. The statement of claim does not specify the date upon which or the circumstances in which it is said the joint tenancy was severed. It may well be that the second plaintiff admits that as at 1988 the joint tenancy existed. The Partnership Agreement says the partnership is for a fixed term of three years. It may even be that the second plaintiff admits that the joint tenancy continued to exist when the partnership terminated by the flux of time in mid 1991. If that were the case, the Partnership Agreement and the events surrounding its creation would have peripheral relevance at best. From this distance, and given the present state of the pleadings, it is simply impossible to ascertain what, if any, relevance the Partnership Agreement might have.

14 There is no doubt that the Court in the exercise of its jurisdiction over the conduct of legal practitioners has the power to order a practitioner to cease to act for a party: see Esanda Finance Corporation Ltd v Alvaro & Anor, unreported; SCt of WA; Library No 980313; 3 June 1998; Clay v Karlson (1996) 17 WAR 493. The second of these two cases, Clay v Karlson, is a good illustration where circumstances may justify an order that solicitors cease to act. The facts of the case, as taken from the headnote, were as follows:

"The action was brought by the plaintiff against two defendants who were the executors of a will.

The statement of claim contained, in summary, allegations to the following effect. The will was prepared by G as solicitors acting for and on the instructions of the second defendant and without contact with the testator prior to its execution. G were not the testator's usual solicitors and had not acted for him previously. The second defendant was the residuary beneficiary and the person who benefited by the amendments to the will made by the codicil. It was alleged that when he executed the codicil the testator was not of sound mind and understanding; and he received no independent legal or financial advice in relation to the codicil."

15 During the course of his reasons, Templeman J pointed out that the solicitors in question had a personal interest in the outcome of the proceedings. It was not alleged that the solicitors or any member of the firm, would benefit personally from the disposition of the estate. Rather, it was suggested that their actions in preparing the codicil as they did were inappropriate. Negligence was not an issue because the plaintiff was not in a position to assert the solicitors owed him any duty of care. But the firm was interested to the extent that they contended the codicil had been properly drawn and was a valid testamentary instrument. Were the contrary to be found, then beneficiaries who might otherwise have taken under the provisions of the codicil might have an action against the solicitors. To that extent the firm had an "interest" in the litigation. His Honour indicated that he would, if necessary, issue an injunction against the firm continuing to act.

16 The position here is somewhat different. There is no evidence at all to suggest that, as at the date the Partnership Agreement was drawn, the deceased and the defendant did not hold the Forrest Street property as joint tenants. If it were somehow to emerge that the Partnership Agreement did not accurately reflect the instructions given to the plaintiffs' solicitors, the position might be different. But on the evidence as it stands at present I can see nothing to suggest that the plaintiffs' solicitors have an "interest" in the litigation, as that term was used in Clay v Karlson. That is not to say that the draftsman of the Partnership Agreement will not be called to give evidence at the trial. Although the possibility strikes me as highly unlikely, it is nonetheless a possibility. In the circumstances of this case I am not satisfied that the mere prospect of a solicitor being called to give evidence is sufficient to warrant the firm being restrained from acting.

17 There are two further factors which are of significance in this case. There was some dispute between counsel as to how close this matter might be to trial. Counsel for the plaintiffs suggested that, subject to orders in relation to further and better discovery, the matter might be ready to enter for hearing. Counsel for the defendant suggested that the matter was some way off being ready for hearing. Apparently leave has been given to administer interrogatories and, of course, there is the foreshadowed amendment to the defence. Whatever may be the true position, it does seem clear that the matter will go through to trial. Mediation has taken place without success. The estimated length of trial is put at one to two weeks. The plaintiffs' solicitors now have great familiarity with the case and have undoubtedly done much of the work necessary to prepare the case for trial. It seems to be generally accepted that, in cases of great complexity where a solicitor has intimate knowledge of the case, the court would be reluctant to make an order that the solicitors cease to act: see Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542; Clay v Karlson (supra) at 497 - 498. This is not a case of great commercial complexity. However, it is a case involving evidence going back 10 or so years and the relationship between the second plaintiff, the defendant and the deceased are of central importance. Moreover, the action is well advanced. That very much mitigates against the plaintiffs' solicitors being restrained from acting.

18 Secondly, there is the practical question of what alternatives would be open to the plaintiffs should the present solicitors be restrained from acting. The plaintiff resides in Geraldton, all the properties the subject of the action are in Geraldton, all of the relevant events took place in Geraldton and it may even be the trial will be held in Geraldton. I was advised from the bar table that there are four firms of solicitors in Geraldton who could conceivably handle litigation of this sort. If the plaintiffs' present solicitors were restrained that would leave three firms. One firm has been instructed as the defendant's agent. That leaves two. Messrs Glynn & Gray, one of the two alternatives, prepared the s 86 Deed to which I have referred. If the plaintiffs' present solicitors were to be restrained from acting it would almost certainly follow that Messrs Glynn & Gray would be restrained from acting. That would leave the plaintiff with the alternative of instructing the one remaining firm in Geraldton or instructing Perth solicitors. In my view, it is important to recognise the difficulties faced by litigants in regional Western Australia and to make allowances accordingly. Of course, in a clear case these practical difficulties could not override the interests of justice. But in a case such as this which involves the exercise of a discretion it is proper to take into account the hardship any order might cause to a litigant and I have done so.

19 In all the circumstances, I am satisfied that this is not a case where the plaintiffs' solicitors should be restrained from acting. Accordingly, I would dismiss the defendant's chamber summons.

20 That then leaves the defendant's application for further and better discovery. The documents which the defendant seeks to have the plaintiffs discover are set out in the schedule to the chamber summons. The documents, or categories of documents, sought are nine in number. At the commencement of his submissions, counsel for the defendant indicated he did not intend to persist with documents covered in point 8. Counsel for the plaintiffs, for his part, conceded during submissions that the documents referred to in point 7, being "Leases and rental property management statements with respect to the leasing of the premises at 30 - 32 Forrest Street, Geraldton" were properly discoverable. That left argument concerning seven categories of documents. The first two categories relate to income tax returns and the like for Elizabeth Sciacca and the deceased, Giuseppe Sciacca. Given that an issue in the proceedings is the contribution made by the parties and the deceased to both the Zeewyck Court property and the Forrest Street property, I am satisfied that both of these classes of documents ought be discovered. That is also true of the partnership tax returns and related documents flowing from the Partnership Agreement evidenced by the agreement dated 1988. These are detailed in point 4. These documents are clearly related to a matter in issue between the parties and ought be discovered.

21 Points 5, 6 and 10 relate to documents either held by solicitors for the plaintiffs or solicitors acting for the deceased. It is difficult to imagine that the documents in these three categories would not attract legal professional privilege. Be that as it may, all documents would appear, prima facie, to be related to a matter in issue between the parties and therefore discoverable. If a claim to privilege is to be made, the documents ought be properly described and dated in a way which does not disclose the contents of the documents. The defendants can then, if they wish, challenge the claim to privilege. In reaching this conclusion, I am not in any way suggesting that all of the documents which fall into the three categories are discoverable. For instance, point 5 refers to the files of solicitors Glynn & Gray who acted in relation to the deceased's matrimonial affairs. No doubt much of what is contained in these files would not be related to any matter in issue in the present proceedings. Those documents need not be discovered. But any document which is related to a matter in issue between the parties, even if privilege is to be claimed with respect to that document ought be discovered.

22 Point 9 relates to Social Security and Centrelink files held by these agencies in relation to the second plaintiff and the deceased. There is no evidence to suggest that these documents are within the custody, control or power of the second plaintiff. They may be, and if that is the case they should be discovered. For instance, it may be the policy of the agencies concerned to release copies of the files to the individual making the request. The first plaintiff, as administrator of the estate of the deceased, may be able to obtain a copy of the deceased's file. If that is so the files are within the power of the first and/or second plaintiff and should be discovered. Once again, privilege may be claimed although it is a little difficult to see on what basis the claim might be founded. However, if copies of the files could only be obtained by a freedom of information application then it would not be incumbent upon the plaintiffs to make that application to satisfy the requirements of discovery. In the circumstances, I think it is appropriate that the plaintiffs put on affidavit what efforts have been made to access the files of the agencies and the result of those efforts.

23 In short, I am satisfied that, to the extent I have indicated, there should be an order for further and better discovery. I direct the parties to confer as to the appropriate form of order and, if possible, to bring in an agreed minute. Given the extent of the discovery sought, I think it would be appropriate to allow the plaintiffs 28 days to comply with this order. If the parties are not able to agree the form of the order I will hear further argument.

24 I will hear the parties in relation to costs on both applications.