Urquhart v Lanham

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

2648/01 ALISON MARY URQUHART & ANOR v HEATHER MARGARET LANHAM & ORS JUDGMENT - (On application for inspection of document) 1 HIS HONOUR: Mr Angliss is a gentleman aged 92. The present case is one brought by two of his grandchildren, to both of whom he had previously granted powers of attorney, and one of whom he had appointed as his guardian. They contest the validity of Mr Angliss' purported revocation of those powers of attorney, and that guardianship. They allege that at the dates of four different purported revocations which Mr Angliss executed in March and April 2001 and March and November 2002, Mr Angliss lacked capacity to make the revocations. 2 The grandchildren had served on Mr Angliss a notice to produce a Will he made in June 2001. A notice to produce a document for the purpose of evidence, served by one party to proceedings on another party, creates an obligation to produce that document in a similar way to that in which a subpoena operates: Supreme Court Rules Part 36, rule 16. I have just ruled that the Will should be produced to the Court. A copy of it has been handed to me. The grandchildren seek an order allowing them to inspect the copy Will. Counsel for Mr Angliss opposes that order. Whether the order should be made depends on the same principles as govern whether access should be granted to documents produced on subpoena. 3 It is common ground that since March 2001 Mr Angliss has been in closer contact with three of his children than he had previously been. There is evidence that prior Wills to the one now in dispute had benefited, in ways differing between various Wills, certain of those children. The submission put by the plaintiffs is that the Will which is now sought to be inspected is one which would be relevant to the Court deciding whether Mr Angliss lacked capacity to revoke the powers of attorney and the guardianship. The variability of his testamentary intentions helps show, they submit, his lack of capacity. 4 The first question is whether the Will is subject to legal professional privilege. The Will is clearly one drafted by a lawyer. As the question of privilege arises in connection with pre-trial processes, not in connection with the adducing of evidence, the test for privilege is provided by the common law, not by the sections of the Evidence Act 1995 which deal with client legal privilege: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. If the Will is subject to legal professional privilege, and that privilege has not been waived, the Court has no discretion to permit it to be inspected. 5 In Tickell v Trifleska (1990) 24 NSWLR 548, Rogers CJ of Comm D decided that a letter of instructions given to a solicitor for the preparation of a will, and a will itself, were not subject of privilege at common law. That case was decided at a time when the common law was thought to embody a "sole purpose" test for the existence of legal professional privilege. The basis on which his Honour decided the case was that he was not satisfied that the letter of instructions for the will, or the will itself, in truth embodied any request for legal advice, or giving of legal advice. As well, one of the purposes of bringing the document into existence was to create a document which could ultimately be admitted to probate and be the means by which the testator disposed of his property after death, so the "sole purpose" test was not satisfied. 6 Since that time, Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67, (1999) 201 CLR 49 has held that legal professional privilege arises at common law if there is a dominant purpose of seeking legal advice, rather than a sole purpose. Counsel for Mr Angliss submits that I should not follow the decision in Tickell v Trifleska. 7 It is not possible to simply follow the decision in Tickell v Trifleska, because the test for legal professional privilege which it applied is no longer the law. However, in my view, the result which Tickell v Trifleska came to remains sound in law. So far as the Will now before me is concerned, it is necessary for anyone who asserts the Will is privileged to demonstrate the basis of that privilege to the Court. The only attempted demonstration in the present case arose from the existence of the Will itself and its inherent nature. I am not persuaded that the inherent nature of the Will, or its contents, was such as to show that there had been any dominant purpose of requesting legal advice, or giving of legal advice in the production and execution of the Will. Its existence is equally consistent with Mr Angliss having a dominant purpose of calling into existence a document which would dispose of his property after death. Hence, the Will is not the subject of legal professional privilege. 8 The next question is whether, in exercise of discretion, I should permit inspection of the Will. When a document is produced to the Court under subpoena, the approach that the Court should adopt is that laid down by the Court of Appeal in National Employers' Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372. 9 There, at 385 Moffitt P said, concerning the discretion of the Court to permit inspection: "The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether the documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination." 10 Mr Rares, Senior Counsel for Mr Angliss, submits that the exercise of the discretion to permit inspection of subpoenaed documents prior to a trial is influenced, now, by the enactment of s126B of the Evidence Act 1995. That provides: "(1) The Court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence; or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence of any other evidence concerning the matters to which the protected confidence of protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person. (5) The court must state its reasons for giving or refusing to give a direction under this section." 11 Section 126A defines "protected confidence" as meaning: "a communication made by a person in confidence to another person (in this Division called the 'confidant'): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant." 12 It is submitted that a communication of testamentary wishes to a solicitor so that the solicitor can draft a will, even if that communication is not made for the purpose of seeking legal advice, is nonetheless made when the solicitor is acting in a professional capacity and when the solicitor was under an express or implied obligation not to disclose the contents of the communication. I accept that submission. Thus, the adducing in evidence of this Will at the trial would disclose a protected confidence. This means that, at a trial, it would be possible for this Will to get into evidence only if the Court decided that taking into account all the matters referred to in s126B(3) and (4), it ought not give a direction under s126B(1) preventing the Will from being adduced in evidence. 13 It is put that the existence of that limitation on the Will getting into evidence at the trial affects the exercise of the Court's discretion about whether to permit inspection, prior to the commencement of the trial. 14 Waind and Hill held, in the passage I quoted earlier, that inspection of a document produced pursuant to a subpoena can be permitted, even if the document is not admissible as it stands. Part 36 rule 16 of the Supreme Court Rules requires a party served with a notice to produce to produce the document only if the notice requires production "for the purpose of evidence". Part 37, rule 2 imposes no such requirement in express terms on the issuing of subpoena. However the power to issue a subpoena is implicitly confined by reference to its issue being for a proper litigious purpose, and it seems to me that a notice to produce can require documents to be produced "for the purpose of evidence" if the documents have a legitimate connection with the adducing of evidence, even if not admissible themselves. Hence it seems to me that inspection of a document produced pursuant to a notice to produce can be permitted, even if the document is not admissible as it stands. 15 That being so, it is not in a direct way that the existence of s126B affects the way in which the Court should approach inspection of documents prior to a trial. However, in an indirect and more general way, it seems to me that it is a relevant matter. There is a policy concerning the protection of confidences which underlies s126B, which requires matters favouring the protection of professional confidences, of the type defined in s126A, to be taken into account in the exercise of discretions about what evidence should be admitted in a hearing. It seems to me that it is appropriate that that policy should also be taken into account in deciding the way in which inspection of confidential documents should occur before a hearing. If that did not happen, Parliament's evident intent in enacting s126B could be undermined. Indeed, when a notice to produce can require production of documents only "for the purpose of evidence", it is hard to see how the Court, in deciding whether to permit inspection of documents produced under a notice to produce, could avoid considering, in at least general terms, how those documents might be used in connection with evidence. And considering how the documents might be used in connection with evidence requires s126B to be taken into account. 16 However, it certainly does not follow that, merely because a document produced to the Court on subpoena or notice to produce contains, or would reveal, a protected confidence, the Court should always decline to permit it to be inspected in advance of the trial. If the Court were to adopt that approach, the efficient preparation and conduct of litigation would be seriously hampered. Subpoenas and notices to produce frequently require the production of confidential documents, and efficient conduct of litigation often requires that confidential information be considered prior to the trial by lawyers, experts, and sometimes other people. It is for the Court to decide, on a case by case basis, whether to allow inspection of such documents and if so on what terms. In many cases the result of the Court taking into account s126B in deciding what course to adopt concerning inspection, before the trial, of documents produced under compulsion and containing professional confidences may well be to permit inspection by limited categories of people, subject to confidentiality undertakings. 17 Further, when the Court is deciding how to exercise the discretion under s126B at a trial, it would consider the possibility of admitting the document unconditionally, not admitting the document at all, or admitting it under a regime of limited access and confidentiality orders or undertakings. When I take into account, as a matter relevant to whether inspection of this Will should be allowed, the need for the trial judge to exercise a s126B discretion, I should also take into account the fact that the trial judge will have this range of possible decisions open to him or her. 18 In the present case, it is not clear to me that the relevance of the Will in question is such that inspection of it should be permitted at this stage. This document falls into the category considered by Moffitt P, of one where "there is particular objection from the witness, or questions of privacy are involved", concerning which the Court, even before the enactment of s126B, did not adopt the procedure of allowing all documents which are of apparent relevance to be inspected. I would not be prepared to decide, on the strength of the evidence before me, that the Will was, on its own, a document relevant to the issues in this case. It does not deal with the direct questions involved in the case, namely whether Mr Angliss had capacity to execute the revocation documents, on the four days when he executed them. There is nothing on its face which is so extraordinary as in itself to call into question the capacity of the maker. Deciding how, if at all, it bore on the capacity of Mr Angliss to revoke the powers of attorney, and the appointment of guardian, would involve a complicated inquiry into the circumstances in which the Will was produced, which is collateral to the central inquiry in this case concerning Mr Angliss' capacity on the days the four revocation documents were executed. Particularly is this so when the test for capacity to make a Will is different to the test for capacity to revoke a power of attorney, or an appointment of guardian. The suggested basis of relevance, that variability of Mr Angliss' testamentary intentions shows his lack of capacity, would need supplementing by other evidence about Mr Angliss' mental state before it could be made good - the experience of the Court is that many elderly people change their testamentary intentions, sometimes frequently, but do not lack testamentary capacity. As well, the evidence before me does not let me form a view about the various factors listed in s126B(3) and (4), and hence does not let me form a view about the prospects of the Will being admitted in evidence at the trial, even if its relevance could be established. I find this last mentioned factor of little weight in comparison to the other matters I have mentioned. In these circumstances, I decline to permit inspection of the document at this stage. 19 This ruling is made without prejudice to the right of the plaintiffs to make later application, if there is some more detailed basis upon which they seek inspection of the document. 20 I direct that the document produced to the court be placed in an envelope, identified as being "copy Will of William Arthur Angliss made on 26 June 2001", sealed, and marked that it is not to be opened without further order of a judge. **********

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