Pilpel v Rinat [2000] WASC 129

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Kelly v Commonwealth (1980) 39 FLR 372

Prus-Grzybowski v Everingham [1986] NTSC 57; (1987) 44 NTR 7

1 MASTER BREDMEYER: This is a dispute over legal professional privilege. The defendant has obtained an affidavit of discovery from a non-party, Mr Steven Pynt, who was the solicitor for the late Mrs Rose Pilpel. Mr Pynt prepared her last will which she signed on 27 January 1995. In his affidavit of discovery dated 23 February 2000 he has claimed legal professional privilege for two documents:

"1. File copy letter Pynt & Associates to plaintiff 02.02.1995.

2 The plaintiff is one of the two executors of the last will. The other is Mr Pynt. They applied jointly by way of motion for probate of the will mentioned. The defendant, who is the daughter of the deceased, lodged a caveat against probate of the will being granted and that has led to this contested probate action in which Mr Pilpel, one of the two executors, is the plaintiff and Mrs Rinat is the defendant.

3 I query why Mr Pynt is a non-party. He and Mr Pilpel both applied for probate and, in this present action, although Mr Pynt is not named as an executor in the title to the action, he is, in fact, suing as one of the joint executors of the will of Mrs Pilpel dated 27 January 1995. That is stated in the statement of claim. I query whether Mr Pynt is a non-party as an aside, because the question I have to decide is that of legal professional privilege and I consider that is the same whether he is a party or non-party.

4 The defendant contends in this action that Mrs Pilpel was not of sound mind, memory and understanding at the time she signed the will and that she was also under the undue influence of her son, Richard Pilpel (the plaintiff) at the time. The two documents for which privilege is claimed are clearly relevant to the issues in this case. For example, the handwritten notes of attendance, if they reveal that Mr Pynt took an excessively long time to get instructions from Mrs Pilpel because of her poor mental condition or, if in the course of getting those instructions, he made some note about her mental condition or the difficulty of getting instructions from her, that would be relevant to the issue of her soundness of mind. If they should reveal that her son the plaintiff gave instructions for the will that might suggest she was not capable of doing so. If they should reveal, for example, that her son was present when her instructions for the will were given, that may be relevant to the issue of undue influence.

5 Legal professional privilege attaches to confidential communications passing between a solicitor and client for the purpose of obtaining legal advice or assistance or for use in legal proceedings: see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 and Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67, 74 ALJR 339. The privilege is that of the client, not of the solicitor, and confidential communications between a client and a solicitor made through an agent for the client, are also privileged: Reid v Langlois [1849] EngR 1223; (1849) 41 ER 1408, Simpson & Ors, Discovery and Interrogatories, 2nd ed, 176. That may be relevant in this case as it may be that Mrs Pilpel gave her instructions through her son, Richard Pilpel, who held a power of attorney on her behalf.

6 Legal professional privilege attached to documents continues after the death of the client. The privilege is not waived or destroyed by the death of the client, see Simpson, op cit 190, Bullivant v Attorney General for Victoria [1901] AC 196 and Prus Grzybowski v Everingham [1986] NTSC 57; (1987) 44 NTR 7.

7 However, legal professional privilege may impliedly be waived where the matters protected by the privilege are relevant to the suit and where the disclosure of those matters is required to enable justice to be done: Telstra Corp v B T Australasia Pty Ltd (1998) 156 ALR 634 at 647 and Lillicrap v Nalder & Son (A firm) [1993] 1 All ER 724 at 731. Unsound mind and undue influence are examples. That is, I consider, the position here. The defendant in her defence and counterclaim has alleged, inter alia, that the deceased was not of sound mind, memory and understanding and has given detailed particulars of that. She was 90 years of age, she was deficient in her cognitive functioning. She suffered disorientation in time and place and her memory was so defective and untrustworthy that she had difficulty in remembering her age, the period of time that she had spent in the nursing home where she was living, and on 5 January 1995, was not able to recall her first name. The defendant has also pleaded that the will was obtained by the undue influence of the plaintiff and has given particulars of that. The plaintiff, in propounding the will as the valid will of the deceased, is thus contesting those allegations. Those allegations are therefore squarely in issue in this case and I consider the public interest in getting to the truth of those allegations outweighs the executor's normal right to legal professional privilege. It is a balancing act between those two competing interests and I consider the balance in this case comes down firmly on the side of rejecting the claim for privilege.

8 I have inspected the two documents as I am entitled to do under O 26 r 12(2). I am unable to ascertain from them who gave the instructions. If the plaintiff gave them, that would not indicate anything about the deceased's state of mind. It may be relevant, however, to the issue of undue influence, although I note that the plaintiff did hold a power of attorney which may have covered the right to give instructions for a will. On balance I consider the documents may be relevant, probably indirectly, to the issues of this case. They may lead to interrogatories or to a few questions on cross-examination. I will allow inspection.

1. That the non-party make available to the defendant for inspection the two documents for which privilege is claimed, namely

(i) file copy letter Pynt & Associates to plaintiff 02.02.1995

2. The plaintiff to pay the defendant's costs of this application in any event.