Page v Rankine

1. [1]

   HER HONOUR: This is an application by notice of motion filed on 23 June 2020 by the executor, James Michael Page, of the estate of the deceased, the late John Rankine, seeking two kinds of relief: first, that a notice to produce to Court issued by the defendant to the plaintiff and dated 12 June 2020 be set aside; second, orders pursuant to ss 61 and/or 63 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) that the notice of motion filed by the defendant on 15 June 2020 be set aside with liberty to the defendant to file an amended notice of motion limited in two respects (as set out in prayer 1 of the orders sought in the notice of motion).

2. [2]

   I interpose here to note that there was no appearance by or on behalf of the defendant in the virtual courtroom on the hearing of the application. However, I was satisfied that the defendant was aware of the application, and that it was listed for hearing before me today, and I proceeded to hear it pursuant to r 18.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I considered it appropriate to proceed to hear the application in the absence of the defendant, in circumstances where the defendant was on notice of the application and it was difficult to imagine, having regard to the text of the notice to produce and the 15 June 2020 notice of motion, any argument that the defendant could sensibly or credibly maintain to sustain either the notice to produce or the (respective) notice(s) of motion (which should be set aside for the reasons set out below).

3. [3]

   On the application, the executor has read two affidavits sworn by him (those being affidavits of 17 December 2019 and 23 June 2020); and an affidavit of service of John Larue sworn 16 June 2018 (as to service of notice by the executor calling on the defendant to take procedures within three months of service to prosecute claims related to the estate). Reference is also made to the summons dated 20 December 2019 and the notice to produce issued by the defendant has been tendered as an exhibit. I have also had regard to the affidavits filed by the defendant in the proceedings.

Notice to produce

1. [4]

   Turning first to the notice to produce, the application to set aside the notice to produce is on the basis that, amongst other things, it impermissibly seeks discovery, which is not permitted by r 34.1 of the UCPR. It is noted that the paragraphs of the defendant’s notice to produce do not identify specific documents and do not seek documents in a manner that is distinct and free from confusion.

2. [5]

   In that regard, reference is made to the authorities in relation to notices to produce, including Douglas Corporation Pty Ltd v Currico Nominees Pty Ltd [2007] NSWSC 113 (see at [29] per Harrison AsJ); Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 (see at [8] per Young CJ in Eq, as his Honour then was); and Norris v Kandiah [2007] NSWSC 1296 (per Brereton J, as his Honour then was).

3. [6]

   The objections raised to the notice to produce have real force. Broadly speaking, the documents sought in the 15 paragraphs of the notice to produce are expressed to relate to allegations of identity theft, subversion of the operation of the intestacy laws of North Carolina, tax evasion, money laundering and terrorism financing involving the deceased or his (unidentified) agents, none of which appears to have any relevance to claims against the estate in the present proceedings in this jurisdiction.

4. [7]

   There is no objective justification for requiring production of those documents in circumstances where the Court has already made orders barring the claims by the defendant. The sole remaining issue in the proceedings, to the extent that the defendant properly makes an application to that effect (and I interpose to note that the defendant has not yet done so at this stage), is whether the Court should vary or extend the time for compliance with the orders made on 30 March 2020 for the defendant to commence separate proceedings.

5. [8]

   For those reasons, the notice to produce should be set aside.

Notice of motion

1. [9]

   As to the 15 June 2020 notice of motion, it is useful to set out the background to the proceedings which is as follows.

2. [10]

   The deceased died on 13 July 2016. Probate of the Will of the deceased, dated 18 October 2007, and a codicil of the deceased, dated 24 May 2010, was granted to Mr Page, who is a solicitor, on 23 December 2016.

3. [11]

   A notice of intended distribution of the estate was published in January 2017.

4. [12]

   In July 2017, the defendant communicated with the executor as to certain assets of the estate that he claimed. Those assets fall within four categories.

5. [13]

   The first comprised certain rings belonging to the defendant’s late mother, who died in 1989. A copy of the probate of her Will is annexed to Mr Page’s affidavit. There are, I am told, two surviving executors of that Will, one of whom is one of the beneficiaries of the deceased’s Will. In relation to that matter, the executor has deposed to the enquiries that he has made as to the whereabouts of the rings: the whereabouts of two of the rings is unknown; meanwhile, one ring, I am told, has been provided to the defendant.

6. [14]

   The second category relates to an ING bank account, or some ING bank accounts, in the defendant’s name. The executor has made enquiries in relation to that account, or those accounts, with ING Direct, but has been informed that the bank will not provide any information as these are not accounts in the name of the deceased.

7. [15]

   The third category relates to certain transactions claimed to have been made by one of the beneficiaries of the deceased, Melissa Rankine. The executor has deposed that he has made enquiries in relation to that matter and that an agreement has been reached with Ms Rankine (without admissions) for there to be an adjustment to her interests under the Will to take into account certain of those transactions.

8. [16]

   The fourth category is a “forfeiture” claim in relation to matters raised in respect of the medical treatment of the deceased before his death. I understand that that claim has not been pursued by the defendant in the proceedings that the defendant had issued in the United States of America.

9. [17]

   On 30 March 2020, Hallen J made orders effectively requiring the defendant to file any notice of motion in relation to his claim on the estate within a specified time. His Honour noted that the defendant had indicated that proceedings previously commenced in the United States in the General Court of Justice of North Carolina, Superior Court Division, Catawba County were to be commenced in the United States District Court, Western Division of North Carolina, Statesville Division, within 14 days.

10. [18]

    His Honour ordered that, in the event that any proceedings were not filed and served within 21 days, the claims of the defendant be barred pursuant to s 93 of the Probate and Administration Act 1898 (NSW).

11. [19]

    His Honour noted that, in the event that the defendant commenced the proceedings, the summons would be dismissed. His Honour also ordered that, in the event that the defendant commenced the proceedings, the plaintiff’s costs of the proceedings calculated on the indemnity basis be paid out of the estate of the deceased; but, in the event that he did not commence the proceedings, the plaintiff’s costs be paid by the defendant.

12. [20]

    The defendant did not commence the foreshadowed proceedings within the time specified. The effect of Hallen J’s orders therefore is that claims of the defendant in relation to the estate are presently barred.

13. [21]

    The notice of motion that has been filed on 15 June 2020 by the defendant seeks various orders. The orders sought are in the following terms:

14. [22]

    Criticism is understandably here made by the executor of the relief that is sought in the notice of motion (and the lack of concision and clarity with which the notice of motion is expressed). It is submitted, and I accept, that the notice of motion does not comply with the orders that were made by Hallen J nor does the notice of motion clearly identify the relief that is sought arising out of the proceedings. (On its face, the notice of motion would be liable to be struck out as being in the nature of an embarrassing document, as that expression is understood in relation to pleadings generally.)

15. [23]

    It is noted, for example, that O 4 of the notice of motion seeks orders removing the plaintiff as executor of the estate. Relief of that kind is not interlocutory relief which arises in these proceedings and, furthermore, such an application would ordinarily need to be pleaded (see Pt 78 r 48 of the Supreme Court Rules 1970 (NSW)). It is further noted by the executor that such an application appears to be incongruous with the barring order that was made by Hallen J on 30 March 2020.

16. [24]

    As to O 3 of the notice of motion, this seeks orders compelling production of documents via a discovery request and should be set aside for the reasons given in relation to the notice to produce that I have dealt with above.

17. [25]

    As to O 2, which seeks orders compelling the plaintiff to answer the complaint in the North Carolina proceedings, for the reasons that have been put forward in the submissions for the executor, that relief is also misconceived and does not arise in these proceedings.

18. [26]

    As to O 1 of the notice of motion, to the extent that it gives rise to any claim for relief that would, or may, arise in these proceedings, it seems to suggest that the defendant is seeking a finding that he has satisfied the requirements of Hallen J’s earlier order and/or seeks a variation of that order in the interests of justice (see at line 20 of the order sought). However, it goes well beyond any such relief (and seems to include material in the nature of submissions).

19. [27]

    In my opinion, the notice of motion is not in a proper form and does not clearly identify the relief that is sought. It is, in my view, apt to confuse and will not facilitate the speedy determination of the real issues in the proceedings.

20. [28]

    I note the overriding statutory mandate pursuant to s 56 of the Civil Procedure Act for the just, quick and cheap resolution of the real issues in dispute. This notice of motion does not facilitate that purpose (nor, I note, does the notice of motion that has been e-filed by the defendant on 23 June 2020 do so and, therefore, of the Court’s own motion I will also set that second notice of motion aside – as to which, see below).

21. [29]

    Therefore, the 15 June 2020 notice of motion should be set aside (but with, as the executor accepts would be appropriate, liberty to bring an amended motion limited to the sole issue of relevance at this stage of the proceeding).

Subsequent notice of motion of 23 June 2020

1. [30]

   On 23 June 2020, the defendant e-filed a further notice of motion, seeking the following relief:

2. [31]

   Although not the subject of the executor’s notice of motion (being filed after that notice of motion), this second notice of motion filed by the defendant suffers from the same problems as (and is even more misconceived than) the first, as should be apparent from the relief sought.

3. [32]

   It is not appropriate that the time and resources of the Court be wasted on applications of such a nature, nor should the estate be put to the expense of moving to have it set aside.

4. [33]

   Therefore, of my own motion, pursuant to s 63 of the Civil Procedure Act and the inherent jurisdiction of the Court to control its own processes, and having regard to the overriding statutory mandate under s 56 of the Civil Procedure Act, I will set aside the 23 June 2020 notice of motion. There can be no prejudice to the defendant in so doing, since there will be liberty granted for the defendant to file an amended notice of motion limited to the relief that may appropriately be sought.

Costs

1. [34]

   On the basis that costs would ordinarily follow the event, I will order that the defendant pay the plaintiff’s costs of the notice of motion filed by the plaintiff on 23 June 2020.

Orders

1. [35]

   For those reasons, I make the following orders:

   1. (1)

      Order that the notice to produce to Court issued by the defendant to the plaintiff, dated 12 June 2020, is set aside.

   2. (2)

      Order pursuant to ss 61 and 63 of the Civil Procedure Act 2005 (NSW), and the inherent jurisdiction of the Court, that the notices of motion filed by the defendant on 15 June 2020 and 23 June 2020 be set aside, with liberty to the defendant to file within seven days an amended notice of motion limited only to:

   3. (3)

      Order that the defendant pay the plaintiff’s costs of the notice of motion filed by the plaintiff on 23 June 2020.

   4. (4)

      Order that any notice of motion filed by the defendant in exercise of the liberty granted by me will be returnable for directions before me at 8.30am on 28 July 2020.