BALL & ORS v SAINT & ORS [2021] NZHC 3368

BALL & ORS v SAINT & ORS [2021] NZHC 3368 [9 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-001876[2021] NZHC 3368IN THE MATTER of an application for probate in solemn formunder Part 18 of the High Court Rules 2016IN THE MATTER of JOHN ELLIOTT LAWFORD, ofAuckland, Retired, DeceasedBETWEEN DENISE JOY BALL, TIMOTHY JOHNLEWIS and ROBERT McDOUGALLFERRIERPlaintiffsAND BELINDA BEVERLEY GWENDOLENSAINTFirst DefendantHearing: 1 December 2021Appearances: S A Grant for the PlaintiffsA E McDonald for the First DefendantD A Chambers QC and I J Beverwijk for the Third DefendantNo appearance for the Second DefendantJudgment: 9 December 2021JUDGMENT OF ROBINSON JThis judgment was delivered by me on 9 December 2021 at 3:30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:MacDonald Lewis Law, AucklandPaladin Chambers, AucklandHesketh Henry, AucklandAkarana Chambers, AucklandGlaister Ennor, AucklandAND JACK LEE PORUS and DAVID LUNNYSecond DefendantAND MYLES CURLING LAWFORDThird DefendantIntroduction and background[1] On 27 October 2021 the plaintiffs applied for orders granting them probate insolemn form in respect of a will dated 18 April 2017 that was, on its face, properlyexecuted by John Elliot Lawford (Mr Lawford) (2017 Will). Mr Lawford died on 12June 2020.[2] The first defendant (Ms Saint) and Mr Lawford married on 23 January 2010.They remained legally married at the time of Mr Lawford's death; although by thenthe third-named plaintiff, Mr Ferrier, in his capacity as Mr Lawford's attorney, hadarranged for an application to be made to dissolve the marriage. That application wason foot but had not been determined when Mr Lawford died.[3] The first defendant has lodged a caveat against the grant of probate to theplaintiffs in respect of the 2017 Will. She is defending the plaintiff's claim and hasfiled a counterclaim. Her most recent pleading is a third amended statement of defenceand counterclaim dated 14 October 2021 (3ASOD). The 3ASOD is 315 paragraphslong, but it contains only two affirmative defences and a one-sentence counterclaim.In summary, Ms Saint alleges that:(a) Mr Lawford lacked testamentary capacity when he executed the 2017Will;(b) Mr Ferrier unduly influenced Mr Lawford to make the 2017 Will; and(c) a will dated 6 November 2013 (2013 Will) is Mr Lawford's last validwill.[4] Under the 2013 will the first defendant (together with her adult sonMr Caughey) were to receive Mr Lawford's valuable property in Mission Bay,Auckland (Mission Bay Property). The first defendant is not a beneficiary under the2017 Will. Conversely, the 2017 Will provides for Mr Ferrier to receive a valuablepainting, but he was not a beneficiary under the 2013 Will.[5] These matters are set down for a seven-day trial in May 2022.Other parties[6] The second defendants are the named executors under the 2013 Will.[7] The third defendant is Mr Lawford's nephew (Myles). He is the residualbeneficiary under each of the 2013 Will and the 2017 Will. The residual estate ismaterially larger under the 2017 Will because it includes the Mission Bay property.Myles does not oppose the plaintiff's claim for probate in respect of the 2017 Will.Current applicationsDiscovery[8] On 18 February 2021 Whata J ordered the plaintiffs to provide discovery of thefollowing categories of documents:(a) Medical records from 2013 to say mid 2017;(b) Carer's records from 2015, or when they commenced being kept,whichever is later, until mid-2017;(c) All wills and testamentary documents or file notes that can berecovered;(d) Documents that relate to John Lawford's capacity from 2015 to mid-2017;(e) Any documents that relate to any involvement by Mr Ferrier in theappointment of Mr Timothy Lewis as Mr Lawford's solicitor or in themaking of the 2017 Will;(f) Any documents that relate to Mr Lawford's decision to bequeath thepainting "Memories" to Mr Ferrier;(g) Any documents that relate to the attorneys' decision to terminate thelicence of Mr Caughey and his wife to occupy part of Mr Lawford'shouse;(h) Any documents that are relevant to the decisions to initiate the 3proceedings referred to in paragraphs 62 to 64 of the AmendedStatement of Defence and Counterclaim including any review of thosedecisions;(i) Any records in relation to the 2013 Will that bear upon its validity orotherwise.(Original Categories, or OC).[9] The second named plaintiff, Mr Lewis, filed and served an affidavit ofdocuments dated 25 June 2021.1[10] The plaintiffs subsequently provided further informal discovery, and agreed toexpand the categories of formal discovery. On 30 November 2021 the parties filed ajoint memorandum seeking orders by consent that the Original Categories beexpanded as follows:Category (a) is to be expanded to include:1) Medical records for Mr Lawford from mid-2017 to June 2020;Category (b) is to be expanded to include:1) Carers' records relating to Mr Lawford, including notebooks andmedication books from 2017 to 2020;2) Records relating to Mr Lawford held by Kate McLean Homecare andMiranda Smith Homecare to which the plaintiffs are lawfully entitled;3) Carer engagement agreements and records held by or for the plaintiffs;1 Mr Lewis was Mr Lawford's solicitor in relation to the 2017 Will, and various other matters.4) Invoices issued by carers and carer agencies in respect ofMr Lawford's care.Category (c) is expanded to include:1) Communications between Mr Lewis, Mr Ferrier and Ms Ball or any ofthem about any of Mr Lawford's Wills, EPOAs and the decisions madeby his attorneys to sell Rakino and College Hill;2) Communications between Mr Ferrier, Ms Ball and Ann Guilford, andany other carer, or any of them, that refer to Ms Saint, or Edward andCharlotte Caughey;3) Communications between Mr Ferrier and Mark Vickerman that relateto Mr Lawford;4) Communications between Mr Ferrier and Myles Lawford that relate toMr Lawford's Will, EPOAs, and occupation of the Flat;5) Mr Ferrier's records held by Immigration New Zealand for the period1 January 2015 to June 2020;6) Communications about the issue of a trespass notice by JacksonRussell against Mr Maurangi;7) Bank records for Mr Lawford from 1 January 2015 to 12 June 2020;8) Time records for MacDonald Lewis Law that relate to attendances inrelation to Mr Lawford's Wills;9) Notes from the seminar referred to in Mr Lewis' file notes of 17 May2021 and the seminar itself;10) Communications between Mr Lewis and medical professionals aboutMr Lawford.(Expanded Categories, or EC).[11] On 1 November 2021 the first defendant applied pursuant to r 8.19 of the HighCourt Rules for particular discovery of 37 categories of documents (some of whichinclude various sub-categories). These 37 categories were set out in a schedule to thefirst defendant's application. The first defendant also seeks orders that the plaintiffs:(a) make all reasonable inquiries and efforts to obtain and discover anydocumentation to which the plaintiffs claim not to be lawfully entitled;(b) conduct a "thorough and detailed investigation including with ITsupport assistance if necessary, to retrieve [texts, WhatsApp or otherApp communications] from iCloud [sic] with third-party applicationsif necessary or other back-up iCloud or other systems or physicallyfrom prior cellphones; and(c) that the plaintiffs provide an affidavit setting out what steps have beentaken to locate documents including what sources of documents havebeen searched, how relevance has been determined, how the searcheshave been undertaken, and explaining why documents may beirretrievable.[12] The plaintiffs oppose the application. They say that:(a) they have sworn an affidavit of document that discovers all documentsrequired to be discovered pursuant to the discovery order made byWhata J on 18 February 2021;(b) they have already agreed to expand the categories of documents ofwhich discovery is required in order to include some of the categoriesof documents of which the defendant seeks particular discovery; and(c) The other categories of documents sought by the plaintiff are overlybroad, irrelevant, and discovery orders would be disproportionate.Pleading[13] The plaintiffs have not yet replied to the 3ASOD. They apply for directions asto whether they should, noting that the costs of doing so will ultimately be borne bythe estate. The plaintiffs say the 3ASOD does not comply with the High Court Rulesand general rules of pleading. They say it is prolix;2 scandalous;3 and has extensivereferences to evidence and quotations from discovered documents to which theyshould not have to plead.[14] In their application the plaintiffs rely on r 15.1(1)(b) and the principles set outin Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited.4 In asupporting memorandum Ms Grant, counsel for the plaintiffs, advises that inconsidering whether to plead to the 3ASOD the plaintiffs have "taken into account"that r 15.1(1)(b) provides that the Court may strike out all or part of a pleading if it islikely to cause prejudice or delay.[15] Counsel for Myles, Ms Chambers QC, was more forthright. She submitted thatthe Court should strike out the 3ASOD because it will cause prejudice and delay. Shesays the 3ASOD contains an irrelevant and prejudicial narrative that is excessivelydetailed and unnecessary. She complains that the 3ASOD not only strays into mattersof evidence, but expressly and repeatedly pleads it.5 Ms Chambers points out thatalthough there is no cause of action for fraud, the 3ASOD contains allegations that atleast one of the plaintiffs and other third parties have falsified evidence and committedperjury.[16] There is merit in these criticisms. The 3ASOD is prolix. It is 315 paragraphslong but asserts the same two affirmative defences as the second amended statementof defence that was 109 paragraphs. Most of the additional 206 paragraphs pleadevidence, often at great length. The discursive narrative is distracting, unnecessary andunhelpful.2 The 3ASOD is 57 pages long and has 315 paragraphs.3 The 3ASOD contains allegations against Mr Ferrier and third parties of falsifying documents andperjury.4 Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited [2013] NZLR 679, [2013]NZCA 53 at [89]-[91] and [94].5 Contrary to Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited at [84].[17] Ms McDonald acknowledges there are deficiencies in 3ASOD. But she saysthere is no formal application to strike it out, and that the first defendant could fileanother amended pleading within 14 days.[18] I agree that is the best course. The plaintiffs sought directions but there is nostrike out application on foot. In any event, the 3ASOD is deficient but capable ofamendment. Ms McDonald should ensure that the fourth amended statement ofdefence and counterclaim complies with the High Court Rules. Neither the plaintiffsnor any other parties should have to plead to hundreds of paragraphs of evidence.These matters should be saved for the first defendant's briefs of evidence andMs McDonald's cross-examination. I also point out that it is unnecessary to establishdishonesty in order prove undue influence. Ms McDonald says the first defendantdoes not resile from that allegation. That is a matter for her, but she should be awareof the significance and potential consequences of it.Discovery application - general background[19] The first defendant's affidavit in support of the discovery application is 116paragraphs and has 750 pages of exhibits. Mr Caughey's affidavit is 304 paragraphsand has 192 pages of exhibits. The first defendant also relies on an affidavit from oneof Mr Lawford's carers, Ms Belcher. She relies further on the affidavits thatMr Ferrier, Mr Lewis and another of Mr Lawford's carers, Ms Guilford, filedvoluntarily as to Mr Lawford's capacity as at April 2017.[20] Most of this evidence goes to the substantive issues that will need to beresolved at trial. It is not necessary to summarise it all in order to deal with thediscovery application. Relevant background facts and the first defendant's essentialallegations can be shortly stated.[21] Ms McDonald says the essence of the first defendant's undue influence claimis that Mr Ferrier held such animosity towards her and Mr Caughey that he would stopat nothing to prevent them from receiving anything from Mr Lawford's estate and torid them from Mr Lawford's life. She says that the "sheer scale" of Mr Ferrier'sattacks upon her and Mr Caughey after Mr Lawford executed the 2017 Will makethose matters relevant to determining the intentions of Mr Ferrier and Mr Lewis whenMr Lawford executed the 2017 Will.[22] As examples of Mr Ferrier's animosity towards her and Mr Caughey the firstdefendant points to three separate proceedings that Mr Ferrier, as Mr Lawford'sattorney, initiated against them after Mr Lawford had executed the 2017 Will. Namely:proceedings to have Mr Caughey and his wife removed from the Mission Bay propertywhere they had been residing (property proceedings); proceedings under theProtection of Personal and Property Rights Act 1988 to prevent the first defendantfrom visiting Mr Lawford (PPPR proceedings); and proceedings to dissolve themarriage between Mr Lawford and the first defendant (Dissolution proceedings)(together the Prior Proceedings).[23] As noted above, in the 3ASOD the first defendant alleges that Mr Ferrier andothers concocted evidence and deliberately swore false and affidavits in the PriorProceedings. The first defendant also says that Mr Ferrier made defamatory commentsabout her to various people including Mr Lawford's professional carers and hospitalstaff.[24] During the hearing Ms McDonald emphasised that the first defendant does notmake these allegations lightly and (as noted above) does not resile from them. Forpresent purposes she says these allegations of dishonesty "automatically raises thestakes in respect of discovery [the first defendant] seeks to find incriminatingcommunications and to the extent that such communications exist Mr Ferrier isincentivised to strenuously oppose and such discovery".[25] Ms McDonald also explains that the first defendant's case is that Mr Lewis was"captured" and influenced by Mr Ferrier to such an extent that he did not objectivelyassess Mr Lawford's testamentary capacity. She alleges that as a result Mr Lewisfailed to independently advise Mr Lawford as to the contents of his Will, including theremoval of any provision for the first defendant and Mr Caughey.[26] Ms McDonald bolsters these submissions by pointing out that circumstantialevidence is sufficient to prove undue influence, and that direct evidence is notrequired.6 She says the essential issue is whether undue influence can be inferred fromall the surrounding circumstances, with particular emphasis upon the result of the Willand the circumstances in which it was executed.7[27] In short, the first defendant relies on her very serious allegations and thecircumstantial nature of her case to support her very broad application for particulardiscovery. However, the primary issues in the case are; whether Mr Lawford hadtestamentary capacity in April 2017 when he executed the 2017 Will, and whether hewas unduly influenced when he did so. Bearing those issues in mind the firstdefendant's discovery application needs to be determined in accordance with the well-established principles of discovery.Principles of discovery[28] The concept of relevance is at the heart of discovery.8 Parties are only requiredto discover documents which are relevant to issues in dispute in the proceeding.9Importantly, discovery must also be proportionate to the subject matter of theproceeding.10 If documents are of little or marginal relevance to an issue, then an orderfor discovery is likely to be disproportionate.11[29] "Fishing" for documents is impermissible where the categories of documentssought do not relate to an issue in the proceeding.12 And, as Associate Judge Bellobserved in West Harbour Holdings Ltd (in liq) v Tamihere "the court will not orderdiscovery of documents if the only purpose is to impeach the credit of those who mightgive evidence for the other side."13[30] In cases where a non-party holds relevant documents, but they have arelationship with one of the parties such that the party is able to extract documentsfrom the non-party, then that party should take all reasonable steps to obtain those6 Green v Green [2015] NZHC 1218, at [101].7 Estate of Keast, Re [2015] NZHC 1027, at [7](c).8 Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 1054, at [15].9 At [17].10 High Court Rules 2016, r 8.2(1)(a).11 Dotcom v Attorney-General [2014] NZHC 1343, at [35].12 Intercity, above n 8, at [34].13 West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716, at [18] citing Thorpe v ChiefConstable of Greater Manchester Police [1989] 1WLR 665 (CA) at 673.documents.14 What steps are reasonable will depend on the facts and circumstancesof each case.Particular Discovery or Varied Discovery?[31] The present application is brought under r 8.19 of the High Court Rules 2016which provides that:8.19 Order for particular discovery against party after proceedingcommencedIf at any stage of the proceeding it appears to a Judge, from evidence or fromthe nature or circumstances of the case or from any document filed in theproceeding, that there are grounds for believing that a party has not discovered1 or more documents or a group of documents that should have beendiscovered, the Judge may order that party—(a) to file an affidavit stating—(i) whether the documents are or have been in the party's control;and(ii) if they have been but are no longer in the party's control, theparty's best knowledge and belief as to when the documentsceased to be in the party's control and who now has control ofthem; and(b) to serve the affidavit on the other party or parties; and(c) if the documents are in the person's control, to make those documentsavailable for inspection, in accordance with rule 8.27, to the otherparty or parties.[32] This rule allows an order for particular discovery to be made if there aregrounds for believing that a party has not discovered one or more documents or agroup of documents that should have been discovered.15 The applicant must firstestablish that the existing affidavit of documents is incomplete.16 The Court haspreviously followed a four stage approach for determining applications under thisrule:1714 West Harbour Holdings Ltd (in liq) v Tamihere, at [14]; and Inverness Medical Switzerland GMBHv MDS Diagnostics Ltd HC Auckland CIV-2007-404-748, 21 December 2007 at [37.9].15 Lighter Quay Residentsʼ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818, at [17].16 McCullagh v Robt. Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].17 Lighter Quay Residentsʼ Society Inc v Waterfront Properties (2009) Ltd, above n 15, at [17](d);citing Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, at [14].See further McGechan on Procedure (online ed) at HR8.19.03.(i) Are the documents relevant, and if so how important will they be?(ii) What are the grounds, and what is the probative value of thosegrounds, for the belief that the documents sought exist?(iii) Is discovery proportionate?(iv) Weighing and balancing these matters, is an order appropriate?[33] Apposite to the present application is Asher J's comments in Assa Abloy NewZealand Ltd v Allegion (New Zealand) Ltd where he stated:18A party cannot reasonably be required under the rules to embark on a searchthat is likely to be hopeless and a waste of time and money. While an applicantdoes not need to prove that the documents actually exist, there must under r8.19 be "grounds for believing" that the documents exist and are in the party'scontrol.[34] However, the first defendant's application is more like an application pursuantto r 8.17 to vary the terms of the discovery order made by Whata J on 18 February2021. In substance the first defendant's application seeks to add an additional 37categories to the Original Categories of documents Whata J ordered the plaintiffs todiscover.[35] Rule 8.17 provides that:8.17 Variation of discovery order(1) Subject to rule 7.7, a party may apply for an order varying the termsof a discovery order.(2) The variation may be granted by a Judge on the ground that—(a) compliance or attempted compliance with the terms of theorder has revealed a need for a variation; or(b) there has been a change of circumstances that justifiesreconsideration.[36] In any event, the essential issue for me is whether the categories of documentssought are sufficiently relevant to justify the orders sought. I take into account theproportionality of the orders sought, and the expansion of Whata J's OriginalCategories to which the plaintiffs have already agreed.18 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, at [10].Discussion and analysis[37] Before dealing with each of the 37 categories, I make some comments inrelation to the arguments Ms McDonald made in respect of many of those categories.[38] I agree that circumstantial evidence may prove undue influence. I also accept,in principle, that evidence of matters taking place after Mr Lawford executed the 2017Will may be relevant to determining Mr Lawford's testamentary capacity at that timeand whether he was unduly influenced. However, this application still needs to bedetermined in accordance with well-established principles governing discovery,especially relevance and proportionality.[39] In this regard it is significant that the plaintiffs have already provided formaland informal discovery of over 4000 pages of documents.19 They have providedformal discovery in respect of the Original Categories. The first defendant makes nocomplaint about that discovery per se. The plaintiffs have also provided additionalinformal discovery and agreed to orders requiring them to provide formal discoveryof the Expanded Categories of documents. Given the nature of this case, they havealso voluntarily provided extensive affidavits as to Mr Lawford's testamentarycapacity.[40] It is also clear from the 3ASOD and the lengthy supporting affidavits that thefirst defendant has found this discovery helpful. In some respects Ms McDonalddescribed the plaintiffs' discovery as a "game-changer". Aside from anything else, thefirst defendant considers it provides grounds for her to allege that Mr Ferrier and thirdparties concocted evidence and deliberately made false affidavits.[41] Finally, Ms McDonald argued that many of the categories of documents soughtwere relevant to show the discord between Mr Ferrier and the first defendant after MrLawford executed the 2017 Will. However, the fact of the Prior Proceedings go a longway towards establishing that. Amongst other things Mr Ferrier as Mr Lawford'sattorney took steps to dissolve his marriage to the first defendant. This is relevant to19 The first defendant relies on much of this in the 3ASOD, and in the lengthy affidavits filed by thefirst defendant and Mr Caughey in support of the application.my assessment of the proportionality of requiring the plaintiffs to discovery furtherdocuments which the first defendant says will show that Mr Ferrier would "stop atnothing" to ensure that she received nothing under Mr Lawford's will.[42] With that brief overview in mind I turn now to deal briefly with each of the 37categories of documents, discovery of which has been sought by the first defendant:Communications between executorsCategory 1 – communications between the plaintiffs or any of them from 1 January2015 through to Mr Lawford's death on 12 June 2020 in relation to Mr Lawford'spersonal matters including being20 Wills, EPOAs, care and welfare, relationshipproperty being the Dissolution Proceedings, Occupation of 46 Selwyn Avenueincluding the Possession Order Proceeding, the PPPR Act Proceeding and personalproperty including the sale and purchase of paintings and other works of art.[43] Ms McDonald submits these documents are relevant to the "relationshipdynamics" between the three plaintiffs.[44] I accept that communications between the plaintiffs will be relevant to the twoaffirmative defences of undue influence and testamentary capacity. But I do notconsider that this justifies the broad order for particular discovery that has been sought.Nor am I persuaded that the order is sufficiently narrowed by replacing the word"including" with "being", as Ms McDonald subsequently suggested.[45] To the extent that documents falling within that broad category are relevant Iagree with Ms Grant that they are already captured by OC(c)(d)(e)(f)(g) and (h), andthat further documents will be captured by EC(c)(1) and EC(c)(2). In particular, I agreewith Ms Grant that documents recording communications between any of the plaintiffsin relation to the 9 February 2018 meeting will be covered by EC(c)(1).20 The deletions and emboldened additions in these headings reflect those that were made by the firstdefendant either shortly before or at the hearing on 1 December 2021.Tim Lewis communications and documentsCategory 1.1 – Communications between Mr Lewis and Claire Barker(Lawford) in relation to Mr Lawford's Wills, EPOAs, Property, Care and Welfare,Ms Saint, Mr Caughey, Mr Ferrier.[46] I agree with Ms Grant that relevant documents falling within this categorywould include documents that also fall into categories OC(c), OC(d) and OC(i). I alsonote that Mr Lewis has discovered his file in relation the preparation of the 2017 Will,which includes his file note of his discussion with Ms Barker.[47] Mr McDonald says it is a "reasonable inference" that other communicationsbetween Mr Lewis and Mr Lawford exist. I do not see why. I am not persuaded thereis any reason to go behind Mr Lewis's sworn affidavit of documents.Category 1.2 – Communications between Mr Lewis, carers and carer agencies[48] Ms McDonald acknowledged that it is "a matter of reasonable inference thatMr Lewis is unlikely to have communicated at any length with carers or careragencies". But she said that whatever communications might exist would likely beimportant. She does not suggest that other discovered documents reveal any particulargaps in the plaintiffs' discovery.[49] I note that one of the carers, Ms Belcher, has provided an affidavit in supportof the first defendant's application in which she mentions, that she was recruited inNovember 2017 following a series of interviews, including with Mr Lawford's lawyer.Apart from this, she makes no mention of Mr Lewis, nor does she refer to anycorrespondence with him.[50] OC(d) is "documents that relate to John Lawford's capacity from 2015 to mid-2017". In my view that this would include any correspondence on that topic thatMr Lewis may have had with any of Mr Lawford's carers. I am not otherwisepersuaded that further orders are necessary.Category 2 – File log records (including name, subject matter and date file openedand closed) in respect of all files held by MLL in which the firm acted for Mr Lawfordand/or Selwyn Estates Ltd and/or the Selwyn Trust and/or CE Lawford Ltd or anyother entity in which Mr Lawford had an interest.[51] I am not persuaded that the plaintiffs should be required to discover all theirfile log records held by Mr Lewis' firm in relation to all matters in which it acted forMr Lawford and/or the various interests in which he an interest. I do not considerthese log records are sufficiently relevant to Mr Lawford's testamentary capacity as atApril 2017, or any alleged undue influence by Mr Ferrier. Mr Lewis has alreadyprovided discovery of the file relating to the 2017 Will, and sets out details of hispersonal and professional relationship with Mr Lawford in his capacity affidavit.Category 3 - Time records held by MLL in respect of all files opened prior toMr Lawford's death in relation to Mr Lawford's personal matters includingWills, EPOA's, care and welfare, relationship property including being theDissolution Proceeding, occupation of 46 Selwyn Avenue including thePossession Order Proceeding, the PPPR Act Proceeding and personalproperty including the sale and purchase of paintings and other works of art.[52] Pursuant to EC(c)(10) the plaintiffs are to provide discovery of McDonaldLewis Law's (MLL) time records of attendances in relation to Mr Lawford's Wills.Ms McDonald says that MLL's time records in relation to all other matters referred toin this category are also relevant given the "pivotal role played by Mr Lewis" beforeand after the 2017 Will. She says these time records are also relevant to the seven sub-issues which she outlines in Schedule A, including: the extent to which Mr Lewis hadcontact with Mr Lawford; understanding whether Mr Lewis was taking his instructionsfrom Mr Lawford directly; understanding documents already discovered by MLLwhere there is no file note; and the instructions received by Mr Lewis to write toMr Caughey and his wife asking them leave Mr Lawford's house.[53] However, I agree with Ms Grant that documents relevant to these issues arewill be including in Original Categories (c)-(h) and EC(c)(1), (2) and (6).[54] In the circumstances I am not persuaded that it is necessary or that it would beproportionate to require the plaintiffs also to discover the broad category of MLL'stime records that the first defendant seeks. They are of marginal relevance, if any, atall.Category 4 - Communications between Mr Lewis and Dr Sarah Don[55] The first defendant accepts that no order is necessary because this category ofdocuments is encapsulated in EC(c)(10).Category 5 - Communications between Mr Lewis and any other medical careprofessional other than Dr Sarah Don[56] The first defendant accepts that no order is necessary because this category ofdocuments is encapsulated in EC(c)(10).Category 6 - The paper and notes from the seminar which Mr Lewis attendedreferenced in his file note of 17 May 2017[57] The plaintiff accepts that no order is necessary because these documents are tobe included within EC(c)(9).Category 7 – Meeting minutes referred to in JEL.00907 which is Tim Lewis'deeds memorandum of 9 July 2018.[58] The plaintiff accepts that this document has already been discovered.Category 8 – Communications between Tim Lewis and/or counsel and KateMcLean Homecare having anything to do with the PPPR Act Proceedingincluding the affidavits of Aimee McLean and Linda Hatcher filed in thatproceeding.[59] During the course of argument Ms McDonald accepted that there is unlikely tobe material falling within this category. I agree. In any event, it is not clear thatcommunications between Mr Lewis and/or counsel with Kate McLean Homecare in2019 would be relevant to Mr Lawford's testamentary capacity April 2017 or whetherMr Ferrier unduly influenced Mr Lawford in the making of his 2017 Will.2121 As discussed further below, the first defendant's case is that evidence given in the PPPR Actproceeding was constructed and false. I do not understand those allegations to be levelled againstMr Lewis. In any event, I have not seen any evidence that could support any such allegation.Medical recordsCategory 9 – Medical records from 2013 to June 2020[60] The first defendant accepts that no further orders are required because much ofthe discovery has already been provided or will be pursuant to EC(a)(1).Category 10 – JEL.01032 listed as a 2009 recording but which is not included in theplaintiffs' Dropbox folder.[61] The first defendant has agreed that no order is required.Carer recordsCategory 11 - Carer records including notebooks and medication books fromwhence they began to June 2020 including the missing carer diaries for theperiod 27 November 2017 - 27 May 2018.[62] The first defendant accepts that no order is required. The discovery of thesedocuments has already been provided or will be provided pursuant to EC(b)(1).Category 12 – Carer records contained in spiral-bound notebook[63] The first defendant accepts that no order is required. The discovery of thesedocuments has already been provided or will be provided pursuant to EC(b)(1).Category 13 – Carer records JEL.01033 pages 009 - 011, 013, 016, 018 - obscuredpage provided. Please provide unobscured[64] The plaintiff accepts that no further orders are required.Category 14 – Carer records JEL.01034 page 151- obscured page provided. Pleaseprovide unobscured.[65] The plaintiff accepts that no further orders are required.Category 15 – 8 July 2017 - 3 December 2017 missing medication books.[66] The plaintiff accepts that no further orders are required. These categories areincluded in the Expanded Categories.Category 16 – Carer engagement agreements/records.[67] The plaintiff accepts that no further orders are required. These categories areincluded in the Expanded Categories.Category 17 – Communications between carer agencies including KateMcLean Homecare and carers[68] In opposing this aspect of the application, the plaintiffs point out thatcommunications between carer agencies and carers are private communicationsbetween employer and employee (or contractor). The plaintiffs can only request thesedocuments, but they have no control over them. Moreover, the carer's consent maybe required even if the agency is prepared to provide documents.[69] The plaintiffs say they have requested these documents relating toMr Lawford's care from the two carer agencies that were involved, and that they haveprovided and will continue to provide what they receive. They say that no order isnecessary as these records are covered by EC(b)(2)[70] I do not consider that an order for discovery of this category is appropriate. Itwould likely involve a lot of irrelevant material. It would be unnecessary anddisproportionate.[71] I asked Ms McDonald how these documents are relevant. She advised that itis part of the first defendant's case that there was a concerted plan between MsGuilford and Mr Ferrier in which they arranged for false affidavits to be filed in someor all of the Prior Proceedings. Ms McDonald says there is already evidence to showthat some of the affidavits filed in the Prior Proceedings were false. These are veryserious allegations. They should not be made without strong supporting evidence. Asmatters stand, I do not consider the order sought is necessary or appropriate.[72] The first defendant would need very clear evidence to support such allegations.In the meantime, it is sufficient for me to observe that EC(c)(2) would includedocuments of the sort alluded to by Ms McDonald during the course of hersubmissions.Category 18 – Invoices issued by carer agencies in respect of the care of thedeceased[73] The first defendant accepts that no order is required because the documentswill be including in EC(b)(4).Category 19 – Visitor's book used to record visits to 46 Selwyn Avenue[74] The first defendant seeks discovery of a visitor's book used to record visits to46 Selwyn Avenue.[75] In his supporting affidavit Mr Caughey says that he signed a visitor's book atMs Guilford's insistence. He exhibits email correspondence he had with Ms Ballconcerning the visitor's book. On the other hand, counsel for the plaintiffs says shehas been instructed that there was no visitor's book, but that some visits were recordedin the carer's diary.[76] Mr Caughey's affidavit exhibits an email from Ms Ball to him dated 28 July2017. In that email Ms Ball refers to text message exchanges she has had withMs Guildford in which Ms Guildford complained that the visitor's book had not beensigned. Ms Ball says she told Ms Guilford that she would not be signing the visitor'sbook. In that email Ms Ball advises Mr Caughey that Ms Guilford has no right todemand "Mr Lawford's friends and family to sign books" and suggests thatMr Caughey and his wife simply ignore it.[77] If Ms Grant's instructions are correct and that visitors were only ever asked tosign the carer's diaries then these will be included in EC(b)(1). However, ifMs Guildford did keep a separate Visitor's book then that should be discovered. If itis not discovered the plaintiffs' should clarify the matter in the affidavit of documents.Category 20 – Communications and documents held by Kate McLeanHomecare and/or Miranda Smith Homecare relating to Mr Lawford includingcarer rosters and records relating to:a. Aimee McLean's email to Ms Guilford of 23 October 2019 which wasexhibited to Ms Guilford's affidavit of 23 October 2019 filed in thePPPR Act Proceeding raising concerns about the alleged detrimentaleffect of Ms Saint's visits on Mr Lawford;b. the statements in the affidavit of Ms McLean dated 10 December2019 filed in the PPPR Act Proceeding that carers for Mr Lawford,"frequently advise me of issues they have had with Mr Lawford afterBelinda Saint has visited him" and that on 3 November 2019 Ms Saintwas "extremely confrontational" towards Linda Hatcher who related toher how upsetting this interaction was for her;c. Linda Hatcher's affidavit of 10 December 2019 filed in the PPPRAct Proceeding.[78] EC(b)(2) provides for discovery of records relating to Mr Lawford held byKate McLean Homecare and Miranda Smith Homecare to which the plaintiffs arelawfully entitled. The first defendant says this is insufficient and pursues herapplication for an order for discovery of documents falling into this category to whichthe plaintiffs are not lawfully entitled.[79] I consider any such order would be disproportionate and inappropriate. Thefirst defendant appears to be "fishing" for documents to bolster her allegations thatsome carers constructed incidents and gave false evidence in 2019.Communications between Mr Ferrier and othersCategory 23.1. Communications between Mr Ferrier and Ms Guilford from when MrFerrier first contacted Ms Guilford in relation to Mr Lawford's carethrough to the date of Mr Lawford's death.[80] I do not consider it is necessary or would be proportionate to order the plaintiffsto provide discovery of all communications between Mr Ferrier and Ms Guilford fromthe time Mr Ferrier first contacted Ms Guilford until Mr Lawford's death in 2020.That is a five-year period. I consider that EC(c)(2) is sufficiently broad. It will includeany communications in which Mr Ferrier and Ms Guilford communicated inderogatory terms about the first defendant, her son or his wife, or otherwise arrangedto take steps adverse to their interests.2. Communications Mr Ferrier, Kate McLean Homecare, MirandaSmith Homecare, Ms Guilford, Aimee McLean, Linda Hatcher,Mr Lawford's other carers or any of them as to:a. any concerns expressed by Ms McLean having anything to do withMr Lawford's care;[81] I agree with Ms Grant that to the extent there are relevant the documents fallingwithin this broad category of they will already be discovered pursuant to OC(a)(b)(c)and (d) together with EC(c)(1) and (2). Also EC(b)(2). I do not consider that furtherdiscovery orders are necessary or are proportionate.b. any concerns expressed by any of the carers having to do withMr Lawford's care;c. communications or records relating to Aimee McLean's email toMs Guilford of 23 October 2019 which was exhibited toMs Guilford's affidavit of 23 October 2019 filed in the PPPR ActProceeding raising concerns about the detrimental effect ofMs Saint's visits on Mr Lawford;[82] Ms McDonald explains that the first defendant's case is that Ms McLean'semail to Ms Guilford dated 23 October 2019 "did not just magically appear. It wascontrived for the purposes of being exhibited to Ms Guildford's affidavit".[83] Once again, this is a very serious allegation the first defendant makes againstvarious non-parties. I have not seen any evidence to support this allegation. I do notthink it is necessary to make the orders sought. Aside from anything else, documentsrecording any concerns that any of the carers may have had about effect the firstdefendant's visits to Mr Lawford were having on his behaviour would fall withinEC(c)(2).d. all communications between Mr Ferrier and Ms McLean havinganything to do with Ms McLean's affidavit of 10 December 2019or any other affidavits filed in the PPPR Act proceeding includingthe affidavit of Linda Hatcher of 13 December 2019.[84] These documents would fall within EC(b)(2). There will be no issues as towhether or not the plaintiffs are lawfully entitled to them because Mr Ferrier will beparty to them. I do not consider any further orders are necessary.Category 23.1 –Mr Ferrier's telephone records from 1 January 2015 to the dateof Mr Lawford's death[85] The first defendant seeks discovery of all Mr Ferrier's telephone records from1 January 2015 until Mr Lawford's death in July 2020. Once again, it is difficult tosee how these would be relevant to Mr Lawford's testamentary capacity in April 2017or whether Mr Ferrier unduly influenced Mr Lawford. Ms McDonald submits that thetelephone records are "a 'stand-in' for the alleged absence of text messages". She saysthe request cannot be narrowed because a lot happened after Mr Ferrier entered intoMr Lawford's life in 2015 that is relevant to the first defendant's affirmative defences(i.e. testamentary capacity and undue influence). She says the telephone records arerelevant to; whether Mr Ferrier's account of his communications with Mr Lewis isaccurate; and filling in the gaps which Ms McDonald submits are created by theabsence of file notes from Mr Lewis.[86] In my view it would be disproportionate to require Mr Ferrier to discovery fiveand a half years' worth of telephone records. They are of marginal relevance at best.Ms McDonald largely suggests that those records could be used to impeachMr Ferrier's and Mr Lewis' credibility. As noted above, discovery will not be orderedfor that purpose.22Category 24 – Communications between Mr Ferrier and Mark Vickerman[87] These are included in EC(c)(3).Category 25 – Communications between Mr Ferrier and Myles Lawford, whois the residuary beneficiary of Mr Lawford's estate in the cousin ofMr Ferrier, between 1 January 2015 and having anything to do withMr Lawford or the shareholding in Elliott Lawford Ltd or CE Lawford Ltd[88] EC(c)(4) will require the plaintiffs to discover communications betweenMr Ferrier and Myles Lawford that relate to Mr Lawford's Will, EPOAs and the flatat 46 Selwyn Terrace. I do not see a need for an order for discovery ofcommunications between Mr Ferrier and Myles Lawford going beyond that.Ms McDonald submits that "communications between Mr Ferrier and Myles Lawford22 West Harbour Holdings Ltd v Tamihere, above n 13, at [18].having anything to do with the shareholding in Elliot Lawford Limited or C E LawfordLimited would be relevant to motive". I am not persuaded by that submission. Thefirst defendant is fishing. EC(c)(4) is sufficient.Category 26 – Mr Ferrier's Immigration New Zealand travel records between1 January 2015 - 31 December 2017.[89] The plaintiffs have now provided discovery of these documents.Communications between Ms Guilford and othersCategory 27 – Communications between Ms Guilford and carers[90] I agree with Ms Grant that the scope of this request is too broad. Relevantcommunications between Ms Guilford and other carers will be included inOC(b)(d)(e), CB(1)(2) and EC(c)(2).Category 28 – Communications between Ms Guilford and carer agencies. Thisrequest includes: a. any communications relating to entries made byMs Guilford and any other carers in the carer diaries; b. any concernsexpressed by Ms McLean having anything to do with the care of thedeceased; c. Aimee McLean's email to Ms Guilford of 23 October whichwas exhibited to Ms Guilford's affidavit of 23 October 2019 filed in thePPPR Act Proceeding raising concerns about the detrimental effect ofMs Saint's visits on Mr Lawford; d. all communications between Ms Guilfordand Ms McLean having anything to do with the making of Ms McLean'saffidavit of 10 December 2019 or any other affidavits filed in the PPPR Actproceeding.[91] In submissions Ms McDonald said these documents are relevant becauseMs Saint's case is that Ms Guilford:(a) made false entries in the carer diaries regarding the negative effect ofMs Saint's visit on Mr Lawford;(b) gave false evidence in the PPPR Act proceeding regarding the extentand effect of Ms Saint's visits on Mr Lawford;(c) gave instructions to the carers to limited Ms Saint's visits toMr Lawford to between five and fifteen minutes; and(d) arranged for certain individuals within carer agencies to raise falseconcerns and give false evidence concerning the detrimental effect ofMs Saint's visits on Mr Lawford.(b) I am not prepared to grant the orders sought. It is unnecessary anddisproportionate. Any emails between Ms Guilford and any other carers concerningthe effect of the first defendant's visits to Mr Lawford would fall within EC(c)(2).Beyond that the first defendant is embarking on a "fishing expedition" in the hope offinding evidence to support her very serious allegations against Ms Guilford.Category 28.1 – Communications between Ms Guilford and Mr Lewis[92] In support of this part of the application Ms McDonald submits that it isreasonable to infer that communications between Ms Guildford and Mr Lewis wouldonly have been about significant matters.[93] I am not prepared to grant the order sought. It is too broad and would bedisproportionate. Any communications between Ms Guilford and Mr Lewisconcerning Mr Lawford's testamentary capacity as at April 2017 would fall withincategories OC(b) and OC(d).Category 28.2 – Communications between Ms Guilford and Dr Van Roekel[94] The first defendant has withdrawn this request. Dr van Roekel's files havealready been discovered under OC(a) and EC(1)(a).Communications between Ms Ball and othersCategory 29 – Communications between Ms Guilford and Ms Ball.[95] Ms McDonald points to an email between Ms Guilford and Ms Ball todemonstrate that they communicated. Ms McDonald then submits that it is reasonableto infer that communications between Ms Guilford and Ms Ball would only have beenabout significant matters.[96] I am not prepared to grant the order sought. Relevant communications betweenMs Guilford and Ms Ball will be discovered pursuant to OC(b)(d), EC(b)(1) andEC(c)(2).Category 30 - Communications between Ms Ball and the managing directorand/or David Lunny of CE Lawford Limited regarding Mr Ferrier and/orMr Lawford's care and welfare from 13 December 2017 until 30 May 2018.[97] During the hearing Ms McDonald sought to narrow this request by suggestingthat the time period be limited to communications between 30 December 2017 and30 May 2018.[98] However, the more fundamental problem is that these documents areirrelevant. In support of the application Ms McDonald refers to an email from Ms Ballto Mr Caughey in which Ms Ball says her managing director has reminded her that herjob is to look after C E Lawford Limited and Mr Lawford's financial affairs whileMr Ferrier looked after "the care side". With respect, this does not persuade me thatthe documents falling within this category are relevant and need to be discovered.Category 30.1 – Communications between Ms Ball and carers[99] This is unnecessary. Relevant documents will already be discovered pursuantto EC(c)(2).Brian Groshinski artworks relatedCategory 31 – All documents and communications having to do with the sale byMr Groshinski of the print of Omaito the deceased in about 2018.[100] The first defendant withdrew her request for discovery of this category ofdocuments.Category 32 – All documents and communications having to do with the sale byMr Groshinski to the deceased of any other artworks.[101] The first defendant withdrew her request for discovery of this category ofdocuments.70 College Hill Road saleCategory 33 – The file held by MLL in respect of the sale of 70 College Hill Road.[102] The first defendant withdrew her request for discovery of this category ofdocuments.Category 34 – To the extent that it is not included in the solicitors' file held in respectof the sale of 70 College Hill Road, all communications between Mr Ferrier andothers, including the real estate agent who acted on the sale, to do with the saleof that property.[103] The first defendant withdrew her request for discovery of this category ofdocuments.Sale of Rakino Island property / Mr Maurangi relatedCategory 35 – The file held by MLL (or if another firm, that firm) in respectof:(i) the sale of the Rakino Island property; (ii) the issue of the trespass notice onMr Maurangi.[104] Relevant documents will be discovered pursuant to EC(c)(6).Category 36 – File notes in relation to the contact "several years ago" by thedeceased to Mr Lewis to discuss the property as referenced in Mr Lewis' letter of22 June 2018 to Mr Herbert at paragraph 2.[105] Ms Grant advises that a check is being made for any documents relating to thisissue and they will provided as part of EC(c)(6).Bank recordsCategory 37 – Bank records in relation to the Mr Lawford's bank indebtedness orcredit from 1 January 2015 to the date of the Mr Lawford's death.[106] This category of documents will be provided pursuant to EC(c)(7).Ancillary Orders[107] The first defendant sought ancillary orders as set out at paragraph [11] above.I do not consider those orders are necessary or would be proportionate in all thecircumstances. Mr Lewis' first affidavit of documents shows that he is well aware ofhis obligations under r 8.15 of the High Court Rules and that he intends to complywith them. In my view it is sufficient to direct that any supplementary affidavit ofdocuments should be in Form G 37 and specify the steps taken to locate documents.If the plaintiffs conclude that they are unable to discover documents because they arenot lawfully entitled to them, the plaintiffs should specify what steps they have takento obtain those documents and explain why they are not lawfully entitled to them.Mr Maurangi[108] Mr Maurangi is a beneficiary under both Wills. On 16 February 2021 he filedan appearance reserving rights pursuant to r 5.50 and r 5.51. During the hearing hiscounsel filed a memorandum advising that Mr Maurangi supported the firstdefendant's application for particular discovery.[109] It is unclear to me whether Mr Maurangi is aware of the plaintiffs' agreementto provide discovery of documents in EC(c)6.23 In any event, I record his position forcompleteness.Result[110] The first defendant is to file and serve an amended Statement of Defence andCounter-claim by Wednesday, 22 December 2021.[111] By consent I order that:(a) the categories of discovery referred to at paragraph [3] of Whata J'sminute of 18 February 2021 (which references paragraph 5 of theMemorandum of Counsel for the Plaintiffs dated 2021) should beexpanded to include the categories described at paragraph [10] above;and23 Communications about the issue of a trespass notice by Jackson Russell against Mr Maurangi.(b) The plaintiffs are to provide discovery of documents falling withinthese expanded categories.[112] The plaintiffs are to provide discovery of any Visitor's book used to recordvisits to 46 Selwyn Avenue, Mission Bay. If no such Visitor's book exists the plaintiffsare to set out in their supplementary affidavit how they have satisfied themselves thatis the case, with reference to Ms Ball's email correspondence with Mr Caugheyexhibited to his affidavit.[113] Any supplementary affidavit of documents should be in Form G 37 and specifythe steps taken to locate documents. If the plaintiffs conclude that they are unable todiscover documents because they are not lawfully entitled to those documents, theplaintiffs should specify what steps they have taken to obtain those documents andexplain why they are not lawfully entitled to them.[114] Otherwise the first defendant's application for particular discovery isdismissed.[115] The first defendant is to pay the plaintiffs' costs in respect of both applications,calculated on a 2B basis.[116] Ms Chambers appeared and made submissions in support of the plaintiffs'position in respect of both applications. However, Myles was not party to either ofthose applications so I decline to make an award of costs in his favour.__________________Robinson J