Berry & Francis v Francis & Ors [1993] QSC 201

0 ~~~~~ ~~~.. ~~·~· .. . ,.·'-.:. . . >TRANSCWPT OF PROCEEDINGS (Copyright in this transcript fa vested in the Crown~ Copies thereof must not be made or sold .. · without the written authority of tile 'Director, State Reporting Bureau.) .·· · .• · · . -- ,_. ·. ~ .- . I ' -· '· .· .SUPREME COlJ,Rt.o:F QUEE:NSLAND. CIVI~·JURISDiC~ION~ .•·.·· WILLIAMS ·.J: ... ~ :: ~·· : ·l~; \~.;:•)•: :)~ {,; No 57 5 of 1 9 9 2 .,. :;- . - ·- .•. ' , r.'' ._-_-· .. ·-._..-~· .. ·- .-- : -~- -~ -~~-..F·'_::~~\~-~:-~-~-_-;;·:~.:( ~i-~--- ~-:~~~~;;<:. ~-~:( -::.- "IAN MORLEY BERRY arid :> ·.· . . .. ERNEST .· JAMES··~:f:RA~CIS ·:~ .· . -:-·_,_ and_· ,', ... > . •')'·t.··_· . .STANLEY-CHARLES FRANCIS \ .. _and. ·: 'ELSIE PHILLIS BAKIE, ENID WYLIE, ALBERT JOSEPH FRANCIS and GEORGE NOEL·:FRANCIS ,· !··, .. ~ ... BRISBANE . . DATE 22 I 0 6'i 9 3 ORDER 1 :-.- .· . '· _.' ~- . ,.~ . f ' . ; ' Plaintiffs Defendant _ .... .. Interveners 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephotre: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 6 -- 220693 sbd (Williams J) HIS HONOUR: I am concerned with an application ·for- an:.:or:der that the defendant and interveners in a probate action provi~e further and bet:te:r:- answers to interrogatories delivered for their examination by the plaintiffs. It appears that the deceased entered the Esk Hospital on 20 November 1988 and remained a pati~nt there until his ~~ath on 28 March 1991. He executed, so it is alleged, a document on 9 May 1990, and it is that document which the plaintiffs propound is the last will and testament of ~he deceased. 10 20 () r The defendant in the action. is a· son of the deceased and is the.J?erson who is nam~d as ex~cut~r in an earlier will dafed 11 November 1988. The defendant seeks an order that that will be admitted to ··: probate. The four interveners are other children of the deceased. In paragraph 4 of the defence, which is delivered 30 by fhe deien~an~·and the int~rveners, it is, in essence, alleged that throughout the whole period from 20 November 1988 to 28 March 1991 the deceased was suffering from senile dementia and was not of sound mind, memory and understanding; further, it is alleged with particularity in paragraph 5 that 40 C) ~-) as at 9 May 1990, the deceased did not know and approve of the (_) contents of the document bearing that date. Lengthy particulars are supplied in the defence with respect to each of the allegations made in paragraphs 4 and 5. A 50 series of interrogatories were delivered for the examination of the defendant and each of the interveners,and the separate answers of each are in identical form. Some limited answers were given, but, in the ma{n, objection was taken to ~nswering ORDER 2 ··.- 60 -- 2 of 6 -- CJ 220693 sbd (Williams J) the interrogatories. The plaintiffs have accepted the objection in a number of instances, but have applied to the Court for an order that further answers be given to certain of the interrogatories. It is necessary for me to refer to each of the interrogatories in question. In doing so, I have borne in mind certain general principles which are established by the decision 1in The .:Estate of The Earl of Shrewsbu:r:y (deceased) (1922) P~~~'>•"-tr_~;;>. -~ . 112, and the decision of Thomas. ,J ln Strugnel_l v. Orr ( 1985) 2 QdR 233, especially at 237, 238. The first interrogatory is that designated 1(a)(2). It asks: "On approximately how many 10 20 () occasions (if at all) did each of the defendant and 0 0 interveners visit the deceased from his admission on 20 November 1988 up to and including 9 May 1990?'' It is convenient to deal at the same time with interrogatory 1(a)(3) because similar considerations apply to it. It asks: "Did not each or any of the defendant and interveners visit the deceased on 9 May 1990?" 30 40 The presence or absence of persons ~uch a_s the defendant and the ;,.· - ...• .... ~ interv,eners ;.'On ·9 May::-1990 .or ~y ::dthE~r date is 'flQ.t..~~Ul~aterial, f.act socfat":;"aS the action is concerned. In my view, the interrogatories are primarily designed to exclude from the range of possible witnesses to evidentiary facts some or all of the defendant and interveners. It seems to me to be clear from the two cases to which I have referred that interrogatories seeking the names of persons merely present at the time a will was exeQuted are not material. In the light of that, I am of the view that it is not appropriate to order further and better ORDER 3 .. _ ..... 50 60 -- 3 of 6 -- 220693 sbd (Williams J) answers be given to either of thqse interrogatories. A further and better answer.was also sought to interrogatory 1 (a)(4),·but it is dependeiJ;t upon a positive an~wer to interrogatory 1(a)(3). In the.circumstances, it is no longer relevant. The ne.xt relevant. interrogatory is .~(a)(S). It '1 10 sought the date of the last vtsit of the defendant and the interveners to the deceased prior to 9 May 19~0. Again, bearing in mind th~ matters to which I have already referred, I cannot see that the date of that last visit, if any, is a material matter so far as the action is concerned. Again, it seems. to ... me, .. here p,e;r-haps even more clearly, that this is an attempt to exclude certain persons as possible witnesses to facts which are material for purposes of the litigation. 20 0 The next is interrogatory l(a) (8) ·and it. is assOciated with interrogatory 1.(a)(9). The latter need only be answered if an affirmative answer is given to the former. The former is in these terms: "During the period of 3 months. immediately prior to 9 May 1990, did not each or any of the defendant and interveners visit the deceased?'' It is clear from the. reasons which I have already given .that.that interrogatory is also objectionable .. · · The nextinterrogatory.in question is 2(a). It asks: "Was not each of and/or the defendant q.nd interveners present when 30 40 50 the deceased executed the will dated 9 May 1990?" This is merely seeking the names of persons present when the will:was allegedly executed. It is not attempting to·ascertain the· names of attesting witnesses as 60ORDER 4 ·.-- 0 0 0 -- 4 of 6 -- Z20693 sbd (Williams J) was the case in Strugnell v. Orr. The two authorities to which I have already referred establish to my satisfaction that an interrogatory cannot be asked which is, in essence, seeking to exclude possible witnesses to evidentiary facts. 10 In my view, interrogatory 2(a) is objectionable. The other interrogatories in question on the application positive answer to 2(a). It follows that I am of the view 0 that the plaintiffs are not entitled to further and better answers to any of~the:interrogatories .. ~·Howevt:tc':," i.:f ·does seem to me 20 that in the light of the reasoping in Tl}e Earl of Shrewsbury, Q interrogatories could properly be directed to the parb.cuia~s · supplied in paragraphs 4 and 5 of the defence. () (j 30 Counsel for the plaintiffs asked that leave be given to deliver a further set of interrogatories if I should be against him on ~is primary submission. In the circumstances, the ... 'granting of suchl~ave .:is riot,_ oppose~-.RT:~~~trn~-~t:'f.or,:J.l:ledefendant and interveners and I am prepared to grant leave. Counsel for the defendant sought further directions as to the future conduct of the action, and those directions were not opposed by counsel for the pla~ntiffs. Those directions, with an addition relating to the further set of interrogatories that I have given leave to the plaintiffs to administer, have been reduced to writing and have been initialled by me. ORDER 5 40 50 60 -- 5 of 6 -- I l 220693 sbd (Williams J) • 1 HIS HONOUR: I give directions in accordance with the document marked A and initialled by me. The application is dismissed with costs. 10 I reserve to the trial Judge the question of the :··-.. ·: ,.. . - plaintiffs' /executor'S COStS Of the applieci"ti6n "i.nciuding -'COStS ordered to be· paid to the defe·ndatit .. "ifnd interveners. 20 0 0 30 :' ... () 40 0 50 60 ORDER 6 .._._ -- 6 of 6 --