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Supreme Court 17 June 2003

Good v Neubacher

[2003] NSWSC 518

Other
PRODCEDURE MISCELLANEOUS PROCEDURAL MATTERS PLEADINGS PARTICULARS PARTICULARS REFUSED BY REGISTRAR REVIEW UNDER PT61 R3

Citation: Good v Neubacher [2003] NSWSC 518
Court: Supreme Court of New South Wales, Equity Division
Date: 17 June 2003
Judge(s): Gzell J

Background

The plaintiff was the executrix of the estate of a woman (the wife) who was alleged to have been shot and killed by her husband before he turned the gun on himself. The defendant was the executrix of the husband's estate. The two had held a property at Rouse Hill as joint tenants, meaning that on the wife's death her interest passed automatically to the husband by survivorship.

The plaintiff's statement of claim alleged that this enlargement of the husband's estate was the product of unconscionable conduct and unjust enrichment, on the basis that he had murdered his wife and should not profit from that act. The particulars in the pleading confined the unconscionable conduct to the alleged murder itself.

The defendant sought to challenge those pleadings and, through a retained forensic psychiatrist, to obtain information about the mental health treatment the wife had received. The matter was listed for trial on 18 July 2003.

  • Whether the Registrar's refusal to order particulars identifying the wife's treating psychiatrists, psychologists, and medical practitioners should be set aside on review.
  • Whether the defendant should instead be granted discovery of documents identifying those practitioners and any treatment the wife received for alcoholism, mental conditions, or substance dependency in the years 1997 to 2002.
  • Whether the discovery sought amounted to an impermissible "fishing expedition."

Decision

Gzell J upheld the Registrar's refusal to order particulars. The court found that the particulars already provided in the statement of claim adequately defined the plaintiff's case: the unconscionable conduct and unjust enrichment were expressly limited to the husband's alleged murder of his wife, and no further particularity was required. That conclusion was accepted by both parties.

On the discovery question, the court allowed an amendment to the notice of motion so that the defendant could seek discovery in the alternative. The defendant's forensic psychiatrist, Dr Michael Diamond, explained that access to the wife's psychiatric notes was necessary to assess the husband's state of mind, because those notes were likely to contain third-party observations about the couple's relationship and interactions.

Gzell J rejected the submission that this amounted to a fishing expedition. Applying the principle from Alister v R that it is sufficient if it appears "on the cards" that the documents will materially assist the defence, the court found a sufficient forensic purpose had been demonstrated. Discovery was ordered even in the absence of a cross-claim under the Forfeiture Act 1995, which the defendant had foreshadowed but not yet filed.

Orders Made

  • Order for particulars: refused.
  • Order for discovery: granted, covering documents identifying the wife's treating clinics, medical practitioners, psychologists, psychiatrists, and counsellors for the period 1997 to 2002.
  • Defendant ordered to file and serve any cross-claim by 20 June 2003.
  • Matter stood over for further directions on 25 June 2003.
  • Application to vacate the trial date stood over as premature.

Key Takeaways

  • A review under Pt 61 r 3 of the Supreme Court Rules 1970 is not an appeal, and the applicant is not required to demonstrate error by the Registrar.
  • Where particulars already provided in a pleading sufficiently define the nature of the case to be met, a court will not order further particulars on the same subject matter.
  • The "fishing expedition" doctrine does not bar discovery where the nature of the documents sought is identified with reasonable precision and it appears "on the cards" that the material will assist the applicant's case, even in a civil context.
  • Sufficient forensic purpose for a discovery order can exist before a cross-claim has been filed, provided the relevance of the sought documents to the live issues is adequately explained.
  • In dismissing the particulars application while granting discovery, the court drew a clear distinction between the function of particulars (defining the case to be met) and the function of discovery (locating material that may assist in meeting it).

Legislation and Cases Referenced

Legislation
- Supreme Court Rules 1970 (NSW), Pt 61 r 3
- Forfeiture Act 1995 (NSW)

Cases
- In the Will of Sheppard [1972] 2 NSWLR 714
- Builders' Licensing Board v Inglis [1985] 1 NSWLR 592
- Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
- Alister v R (1983-1984) 154 CLR 404