Botany Bay Instrumentation & Control Pty Limited v Stewart

THE NATURE OF THE QUESTION(S) IN DISPUTE 14The third defendant contends that the circumstances in which the disputed will is said by the plaintiff to have come into existence are of such a nature as would excite the suspicion of the Court, with a consequence that the plaintiff bears an onus "to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will": Tyrrell v Painton [1894] P 151 at 157 (and 159), explained and applied in Tobin v Ezekiel (2012) 83 NSWLR 757 at 770 [43]-774 [55]. 15The operation of "the suspicious circumstances rule" (as it is described in Tobin v Ezekiel at [55]) is of significance in the present proceedings because: (a) although the disputed document purports to state the testamentary intentions of the deceased, it was not executed in accordance with the formal requirements of Part 2.1 of the Succession Act 2006 (with the consequence that, as an "informal will", it attracts the operation of s 8 of the Act); and (b) without testing the evidence of the plaintiff, and alleged witnesses to the deceased's execution of the document, the third defendant appears, presently, to be unable affirmatively to establish its principal contention, that the document is a forgery: Clocchiatti v Chadwick [2012] NSWSC 1308 at [9]-[14]. 16The circumstances said by the third defendant to excite suspicion about the validity of the disputed will include the following: (a) the text of the document, apart from the purported signature of the deceased and two witnesses, is in the handwriting of the plaintiff; (b) the plaintiff is named in the document as the deceased's sole executrix and beneficiary; (c) the alleged witnesses to the execution of the document are a daughter and a friend of the plaintiff; (d) their attendance on the deceased, with the plaintiff, is said to have been arranged by the plaintiff personally; (e) the document is said to have been executed at the deceased's home; (f) the deceased was an elderly, unattached person; (g) there is no suggestion of involvement of any lawyer, or the provision of independent legal advice to the deceased, in the process leading to execution of the document; (h) evidence available to the third defendant suggests, on one view, that the plaintiff did not know of the existence of the document when, after the death of the deceased, the 2006 will was first drawn to her attention; (i) there is evidence, the third defendant contends, that the deceased made the 2006 will (through a solicitor) in circumstances calculated to withhold knowledge of it from the plaintiff until after his death; (j) the disputed document may, the third defendant contends, be nothing more than a draft of what became the 2005 will; and (k) given the size of the deceased's estate, and the diminution in the provision made for the plaintiff under the 2006 will, the plaintiff has a motive for her attempt to displace the 2006 will as the deceased's final statement of his testamentary intentions.

THE MOTIONS BEFORE THE COURT 17It is not necessary to dwell upon the third defendant's notice of motion. As events have turned out, it is largely subsumed in the plaintiff's notice of motion and the only live issues concern questions of costs. 18As a matter of form, the plaintiff's motion concerns five subpoenas for the production of documents. In terms of argument, those subpoenas fall into two categories.

Subpoenas Addressed to Witnesses Named in the Disputed Will 19In the first category are two subpoenas, both filed on 6 March 2014, addressed to the alleged witnesses to the disputed will: Veronica Buttarello (the plaintiff's daughter) and Russell Kenneth Shepherd (the friend). As yet, there has been no production of any documentation in answer to the subpoenas. 20These subpoenas are predicated on the fact that the affidavits filed by the witnesses, in the principal proceedings, are directed, in a focussed fashion, only towards the occasion upon which the deceased is said to have executed the disputed document. The third defendant complains that they do not elaborate surrounding circumstances; but, it must be noted, they are not obliged to do so. The affidavit of Ms Buttarello was sworn on 26 August 2012. The affidavit of Mr Shepherd was sworn on 1 June 2012. 21The subpoenas directed to the witnesses are in a substantially similar form. They seek production of documentation (referable to a period between 2005-2014) which, directly or indirectly, refers or relates to the deceased or his will; any driving licence held by the subpoena recipient during any period which included part of October 2011 or June 2012; credit card and other banking records recording purchases, sales or other transactions occurring in October 2011; and telephone records relating to mobile phone usage in that month. 22The driver's licence, banking and telephone records are said by the third defendant to be directed, principally, to testing whether the subpoena recipients were, as they have deposed to being, at or in the vicinity of the deceased's home at the time the disputed document is said to have been executed. 23This line of inquiry has a foundation, in part, in the affidavit of Mr Shepherd. His evidence is that he lives in Bathurst; on the critical day he was driving from Bathurst to his family's home unit in Manly; he decided to pay a quick visit to the plaintiff; and, when he did so, the plaintiff asked him to attend with her and her daughter at the deceased's home. 24The plaintiff contends that these subpoenas constitute an abuse of the processes of the Court because they lack a reasonable forensic purpose and, contrary to the tenor of the Court's Practice Note SC Eq 11 (entitled "Disclosure in the Equity Division"), they are in the nature of a "fishing expedition": The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-575; National Employers' Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 at 381-382.

Subpoenas Addressed to the Plaintiff's Solicitor 25The second category of subpoenas comprises three subpoenas for the production of documents (the first filed on 6 March 2014, the other two on 13 March 2014), each of which is, in substance, addressed to the plaintiff's solicitor, generally known as Mr Rick Mitry. 26Although expressed in more general terms, each subpoena is essentially directed to obtaining primary materials (including witness statements, affidavits, drafts of such documents, records of interview, file notes and correspondence) relating to accounts given, jointly or severally, by the witnesses to the disputed will about the factual circumstances in which they say they witnessed its execution. 27Documents have been produced to the Court, subject to a claim of privilege made by or on behalf of the plaintiff, in response to each of these subpoenas. 28The essential questions for determination in relation to the subpoenas are: (a) whether the documents that have been produced are the subject of an entitlement in the plaintiff to client legal privilege (referable to s 119 of the Evidence Act 1995 NSW, rendered applicable by operation of the Uniform Civil Procedure Rules 2005 NSW, r 1.9); and (b) if not, whether the third defendant should nevertheless be denied access to the documents. 29Both parties contend that these questions can be determined without any inspection of the documents by the Court (as permitted by s 133 of the Evidence Act) because their determination turns on a question of principle. However, each party has recorded an absence of any objection to the Court inspecting the documents. 30The question of principle is whether the reasoning in In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General intervening) [1965] P 405 at 409F-411B applies in the conduct of probate litigation, in this state, in the context of the Evidence Act 1995 and the Uniform Civil Procedure Rules 2005.

THE PLAINTIFF'S STANDING TO CHALLENGE SUBPOENAS 31Although none of the subpoenas under consideration is addressed to the plaintiff personally, there is no challenge to her standing to apply for the relief sought in her notice of motion. 32The Uniform Civil Procedure Rules provide, by r 33.4, that the Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it. A party is entitled to apply to the Court for an order that a subpoena addressed to a stranger to the proceedings be set aside as an abuse of process: Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98.

SUBPOENAS ADDRESSED TO ALLEGED WITNESSES OF EXECUTION OF THE DISPUTED WILL 33There is but a faint contention on the part of the plaintiff that the subpoenas addressed to the alleged witnesses to the deceased's execution of the disputed will are couched in terms so wide as to be oppressive. That contention can be put aside. The subpoenas are not oppressively wide. 34The plaintiff's essential submission is that the subpoenas lack a proper forensic purpose. 35That submission draws, but is not ultimately dependent, upon the terms of, and policy underlying, Practice Note SC Eq 11. 36The material provisions of the Practice Note are found in paragraphs 3-6: "Purpose 3. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the equity division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings. Disclosure 4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure. 5. There will be no order for disclosure in any proceedings in the equity division unless it is necessary for the resolution of the real issues in dispute in the proceedings. 6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out: (a) the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings; (b) the classes of documents in respect of which disclosure is sought; and (c) the likely cost of such disclosure." 37The practice note has an important role to play in the management of equity litigation. 38However, it has no material, direct operation in the present proceedings because its requirements have been substantially met. The parties have served their evidence. The real questions in dispute have been articulated in submissions that lend colour to the formal pleadings. The third defendant's reasons for seeking disclosure of documentation by subpoena have been articulated in submissions. The classes of documents in respect of which disclosure is sought have been defined with precision by the contentious subpoenas and, in relation to documents produced by the plaintiff's solicitors, by production to the Court. 39The real question is whether the third defendant has a proper forensic purpose in seeking the production of documents sought from the witnesses. 40In addressing that question it is not necessary for the Court, at this stage of the proceedings, to make a determination about whether "the suspicious circumstances rule" can, should or must be applied at the final hearing. 41As no documentation has yet been produced in answer to either subpoena, the focus for attention is limited to the first of the three steps identified in Waind and Hill [1987] 1 NSWLR 372 at 381E-382. That involves a consideration of whether the subpoenas are oppressive in the tasks imposed upon a recipient, reasonably related to the object of the proceedings and not otherwise an abuse of the processes of the Court. It is not necessary, now, to deal with the second step (relating to access to documents within the control of the Court) or the third step (relating to the tender of subpoenaed documents as evidence). 42In my judgement, in the circumstances of this case, there is no basis upon which the subpoenas addressed to the witnesses should be set aside. Although, perhaps, unusual in the nature and scope of the documentation sought, they have been drafted in a deliberate, considered way in support of a case theory that has been openly articulated. They cannot fairly, in that context, be described as an attempt to obtain "discovery" in the nature of a speculative, fishing expedition. 43I propose, accordingly, to dismiss the plaintiff's notice of motion insofar as it seeks orders that the subpoenas addressed to the witnesses be set aside.

SUBPOENAS ADDRESSED TO THE PLAINTIFF'S SOLICITORS SEEKING PRODUCTION OF STATEMENTS OF WITNESSES RE EXECUTION OF THE DISPUTED WILL 44Re Estate of Fuld, Deceased [1965] P 405 at 409F-411B is authority for the proposition that where, on an exercise by the Court of its probate jurisdiction, a question arises as to whether a will was or was not duly executed, a witness to execution of the will is regarded as a witness of the Court, with the consequences that: (a)any party properly before the Court, including the party calling the witness to give evidence in the proceedings, is entitled to cross examine the witness insofar as his or her evidence deals with execution or attestation of the will; (b)the Court, if it thinks fit, is entitled to see, and to require the witness to produce, earlier statements that he or she may have made dealing with the question of execution; and (c)under the general law, an entitlement to legal professional privilege which might otherwise attach to such documentation does not preclude the Court from making an order that (to the extent that it deals with the subject of attestation and execution of the will) the documentation be produced to the Court for the purpose of assisting the Court in its search for the truth pertaining to due execution, or otherwise, of the will. 45In Re Fuld, at [1965] P 409-410, the proposition that a witness to execution of a will is a witness of the Court is grounded upon In Re Brock; Jones v Jones (1908) 24 TLR 839 at 840. Similar references can be found in Oakes v Uzzell [1932]P 19; Re McMahon [1955] VLR 173 at 174; In re Levy, deceased (No 2) [1957] VR 662 at 665; and In re Webster [1974] 1 WLR 1641. 46However, in applying what he described as "the rule in Re Fuld", Young J (as he then was) grounded the rule, more broadly, in the ecclesiastical jurisdiction that, historically, lies at the foundation of the Court's present probate jurisdiction: Graham v Kahler; Estate Delfendahl (NSWSC, 17 July 1991, unrep) BC 9101779 at [2]-[6]; Gordon v Hilton (NSWSC, 13 October 1995, unrep) BC 9501693. 47In the second of these cases his Honour recorded the following observations: "[Upon a proper application of the rule in Re Fuld], the only statements from the attesting witnesses which are exempt from [legal professional] privilege are the statements of the witnesses made with respect to attestation or execution. Any other statements including, for instance, a general history of the family or a set of observations as to the health or possible eccentricities of the [testator or] testatrix would be outside the scope of the Fuld exception." 48Standard texts reflect the law as stated by Re Fuld: Mason and Handler, Succession Law and Practice NSW (Lexis Nexis Butterworths), para [6085]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administraiton Law in NSW (LBC, Sydney, 1996), para [40.65], p 295; GL Certoma, The Law of Succession in NSW (Thomson Reuters, Sydney, 4th ed, 2010) para [6.60], p. 95. 49If "the rule in Fuld" survives in the present legislative context governing claims of legal professional privilege ("client legal privilege" as it is called in the Evidence Act) it would, in my assessment, extend to any record of a statement made by a witness dealing with the question of execution or attestation of a testamentary instrument (whether a will, codicil or informal testamentary instrument) under review, and not be limited merely to a written statement signed or adopted by the witness personally. 50The focus is upon substance rather than form. The fact that a record of a material statement made by a witness takes a particular form does not govern its availability for production to the Court. Given the purpose served by "the rule", and its foundation in characterisation of a witness as a witness of the Court, attention focuses on the availability of information about statements made by the witness dealing with the question of due execution of the testamentary instrument said to have been executed. 51In the present proceedings the plaintiff claims privilege in the subpoenaed documents by reference to the Evidence Act 1995 s 119 and the Uniform Civil Procedure Rules 2005, r 1.9. 52The documents produced on subpoena comprise, in the main, drafts of affidavits subsequently sworn by the witnesses to the disputed will, preliminary witness statements and related correspondence. Prima facie, all the documentation bears the character of privileged material, but for the rule in Re Fuld and the realities it reflects. 53 UCPR R 1.9 picks up s 119 of the Evidence Act for the purpose of dealing with the production of documents on subpoena. 54UCPR r 1.9(3) provides that "[a] person may object to producing a document on the ground that the document is a privileged document ...". 55To understand what is a "privileged document" resort must be had to the Dictionary adopted by UCPR r 1.2. 56In the Dictionary, the expression "privileged document" means "a document that contains privileged information". 57By the Dictionary, so far as is presently material, the expression "privileged information" is defined to mean "[any] information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person, ... but does not include information that the Court declares not to be privileged information for the purposes of those proceedings." 58Division 1 of Part 3.10 of the Evidence Act is entitled "Client Legal Privilege". It includes s 118 relating to "legal advice" privilege, and s 119 relating to "litigation" privilege. 59Section 119 is in the following terms: "119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party." 60Section 117 of the Evidence Act defines the terms "client", "confidential communication", "confidential document", "lawyer" and "party". 61Of these definitions, it is sufficient to set out the following: ""confidential communication" means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "confidential document" means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. [Emphasis added]" 62In my judgement, the plaintiff's claim of privilege in the current proceedings fails for want of the requisite character of "confidentiality" vis-á-vis the Court. A witness to the execution or attestation of a testamentary instrument, being a witness of the Court in the sense described in Re Fuld, it cannot be said that confidentiality, in favour of the plaintiff, attaches to communications or documents that would, under the general law, attract the operation of the reasoning in Re Fuld. 63As a witness of the Court, in the Fuld sense, a witness to the execution or attestation of a testamentary instrument is under an obligation, within the ambit of the operation of the rule in Re Fuld, to tell the Court the truth unconstrained by legal professional privilege. 64Vis-á-vis the Court, there can be no secrets about what a witness to execution or attestation of a will says, or has said, about that topic. 65There is nothing in the legislation under consideration, or in the underlying rationale of legal professional privilege as identified by the High Court of Australia (in several cases, including Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-65 [35]), that requires, or compels, a different conclusion. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. 66The purpose, nature and practical operational imperatives of an exercise of the Court's probate jurisdiction point to a need for candour, backed by full access to available information, in a factual inquiry about what was said, and done, in the process of execution and attestation of a will. 67In any event, the express exception to the definition of "privileged information" in the UCPR Dictionary would, if need be, justify a declaration by the Court that the information contained in the subpoenaed documents is not "privileged information" for the purpose of the subject proceedings. 68In light of this analysis it is not necessary to consider whether (and, if so, in what circumstances) it is open to the Court to make an order under the Civil Procedure Act 2005 NSW, s 14, that the requirements of UCPR r 1.9 be dispensed with. If such an order were made it would not, of itself, displace such, if any, entitlement to legal professional privilege as might subsist under the general law. 69One way or the other, however, the reasoning in Re Fuld can, and should, be given effect. 70There are sound policy reasons - functional, not merely historical - for this. There is a public interest in the due determination of a probate case which (as Young J said in Graham v Kahler) results "in a judgment in rem which ... [operates] to bind the public generally" and relates to the affairs of a person who, by reason of death, is unable to protect his or her interests otherwise than through reliance upon the integrity of the Court's processes. 71As was said by Scarman J in Re Fuld [1965] P at 410: "... there can be in a probate case an apparent clash or conflict between the right of the Court to know everything that its witness knows or has said about execution, and the right of a party to claim privilege for communications passing between that witness and himself or his solicitor for the purpose of collecting evidence for the hearing. If there be such a conflict, I have no doubt that it must be resolved in favour of the Court. Strictly, however, there is no conflict because the Court in its inquisitorial capacity is seeking the truth as to execution. The parties upon the issue of execution are assisting the Court in its search for the truth. It seems to me, therefore, that if the Court comes to the conclusion that the truth can only be discovered by asking a witness to produce earlier statements that he may have made in writing concerning execution, then the Court is entitled to insist on seeing those statements, and I so rule." 72I propose, accordingly, to dismiss the claim of privilege asserted by the plaintiff over the documents produced to the Court by the plaintiff's solicitor in response to the three subpoenas addressed to his firm. 73Separate consideration needs to be given to the question whether an order for access to the subpoenaed documents should be made in favour of the third defendant. Approaching that question according to the principles discussed in Waind and Hill [1978] 1 NSWLR 372 at 382-385, I determine that an access order should be made. The interests of justice, in addition to the rationale of Re Fuld, point in that direction. The third defendant should have access to the documents in the lead up to the final hearing at which they might be deployed, either as aids to cross examination of witnesses or as evidence. 74There is no utility, apparent to me, in deferring the question of access until the commencement of the final hearing. On the contrary, if the documents are to be accessed, the conduct of the hearing would be facilitated by that process being undertaken earlier than commencement of the hearing.

ORDERS 75I make the following orders and notations: (1)ORDER that the plaintiff's notice of motion filed 25 March 2014 be dismissed. (2)NOTE that the subpoenas identified in paragraphs 2 and 3 of the third defendant's notice of motion filed 25 March 2014 are not to be called upon and, accordingly, order that they be set aside. (3)ORDER that the third defendant be given access (including photocopy access) to documents produced in answer to the subpoena filed 6 March 2014 addressed to Richard Louis (Rick) Mitry, the subpoena filed 13 March 2014 addressed to Rick Mitry or the subpoena filed 13 March 2014 addressed to Mitry Lawyers Pty Limited. (4)ORDER that the plaintiff pay the costs of the third defendant relating to both the plaintiff's notice of motion filed 25 March 2014 and the third defendant's notice of motion of the same date, such costs to be assessed on the ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2014