Wehbe & Anor v Giotopoulos

The substantive proceedings

1. In order to provide the context in which the notice of motion was filed and served, it is necessary to refer, in more detail, to the relief sought in the Statement of Claim and in the nature of the amended Defence. (It is unnecessary to refer to the Cross Claim which seeks the grant of administration, on intestacy, to the independent administrator.)
2. In the Statement of Claim, the Plaintiffs seek a grant of Probate, in solemn form, to them, and an order that the caveat filed on 8 July 2021 by the Defendant cease to be in force. (The caveat has expired through effluxion of time, but the matter has proceeded on the pleadings.)
3. In the amended Defence, the Defendant asserts: "b. Suspicious circumstances attend the preparation and execution of the July Will and The Deceased did not know and approve the purported July Will. Particulars i. The July Will was not prepared by a Legal Practitioner. ii. The July Will was written by the Deceased's son George Wehbe, a person that takes a benefit under the July Will or alternatively by someone other than the Deceased. iii. The July Will template was obtained purchased by the Deceased's son George Wehbe. iv. The July Will template was purchased by George Wehbe on his own accord and not at the direction or request of the Deceased. v. The purported witnesses to the July Will are close friends and/or acquaintances of the persons that take the entire a benefit under the July Will, namely George Wehbe, Simon Wehbe and/or Bashir Wehbe. vi. The Deceased was unable to read or write the English language; vii. The July Will was not translated to the Deceased in the Arabic language; viii. In all the circumstances, there is doubt or suspicion that the Deceased knew and approved the July Will and as such the onus rests on the Plaintiffs to prove that the July Will represents the Deceased's testamentary intentions. ix. The named beneficiaries (the Plaintiffs and Bashir Wehbe) were present when the July Will was prepared and executed. x. The Deceased was frail and vulnerable at the time of the execution of the July Will. xi. The Deceased for some years suffered extreme poor heath [sic] with many instances of being rushed to hospital in an ambulance and remaining as an inpatient in Intensive Care. xii. The Deceased was heavily medicated in July 2020. xiii. The Deceased suffered from iron deficiency anemia [sic] and other physical health ailments in July 2020. xiv. The Deceased suffered from confusion, anxiety, depression, and schizophrenia. xv. The Deceased had impaired vision. xvi. The Deceased had been in the care of the Plaintiffs and Bashir Wehbe, and was wholly dependent on, and deferent to, the Plaintiffs and Bashir Wehbe, who acted as her carers. xvii. The Deceased was easily manipulated and susceptible to the influence of others. xviii. The letter dated 3 July 2020 from Dr Ragy indicates the Deceased believed she was making a Power of Attorney as distinct from a Will in July 2020. xix. The July Will excludes the Deceased's daughters Marcha and Mary who were not estranged from the Deceased, visited the Deceased regularly, and were natural objects of the Deceased's testamentary bounty. xx. George Wehbe retained the original will. c. The execution of the July Will was procured by the undue influence of the Plaintiffs, Bashir Wehbe, and/or others, acting with them/him. Particulars i. The Defendant repeats the particulars to sub-paragraph (b) above. ii. The Plaintiffs took advantage of the extreme poor health of the Deceased, her frailty and susceptibility to influence, and her dependency on, and deference to, them. iii. The Plaintiffs were violent and domineering towards the Deceased. iv. The influence of the Plaintiffs over the Deceased was such that that [sic] the Deceased was not a free agent, and her execution of the July Will was not of her own volition."
4. There is a dispute about most of the facts asserted by the particulars, but as would be obvious, the allegations made have not yet been tested.
5. It is necessary, also, to refer to part of the Reply filed by the Plaintiffs on 15 August 2022. It states: "1 There are no suspicious circumstances surrounding Mary Naim. 2 There are no suspicious circumstances surrounding Jihan Wehbe. 3 There are no suspicious circumstance surrounding Anthony Sarkis. 4 There are no suspicious circumstances surrounding Mohammed Derbas. 5 At all times, the defendant had knowledge of the purported will. 6 At all times, Mary Naim had knowledge of the purported will. 7 The defendant had no relationship with the testator. 8 Mary Naim had no relationship with the testator. 9 Jihan Wehbe had a relationship with the testator. … 18 One year to the date of the purported will, the defendant placed a caveat on the probate at 11:08AM, two days after the probate was summoned. 19 The Defendant then drove to the Plaintiff's [sic] premises at 11:30AM mala fide during strict COVID lock down restrictions numerous times. 20 The defendant started an argument with the first plaintiff. 21 The defendant then called the police to force entry into the premises and take belongings. 22 The police arrived then left the premises. 23 After the defendant's numerous failed attempts, she then called the police and falsified and embellished allegations of serious nature about the first plaintiff under instructions from David Shad to try and simplify the process and narrative. 24 At 8:00PM, strike force raptor entered the premises and detained the first plaintiff and conducted a target search based on the defendant's false accusation. 25 The first plaintiff was arrested and charged mala fide with numerous charges. 26 The family provision claim was failed to be summoned by David Shad to protect and preserve the defendant and her husband's properties to which he has carried out conveyancing for. 27 The pleading of forgery was plead [sic] mala fide. 28 The pleading of doubt and suspicion was plead [sic] mala fide. 29 On 2 May 2022, counsel for the defendant was asked by Justice Hallen for reasoning to amend the defence and cross-claim to plead undue influence to which counsel replied "Your Honour, I cant [sic] give a good answer to that" to which Justice Hallen refused leave. 30 The notice of motion was filed mala fide. 31 The defendant's name was nowhere to be found on 8000 pages of subpoenaed material. 32 After the defendant requested an expert report from the pleading of forgery, undue influence was brought forward, then the pleading of forgery was withdrawn after the expert report failed to return a result in favour of the defendant. 33 The plaintiff's [sic] deny paragraph 2 of the amended defence and repeat this to the particulars. 34 The plaintiff's [sic] admit paragraph 1 of the amended cross-claim."
6. It is likely that many of the matters asserted, whilst of significance to the Plaintiffs, will not be relevant to the determination of the questions which the Court will be required to determine in the substantive proceedings.

The notice of motion

1. On 5 September 2022, the Plaintiffs informed the Court of a desire to issue subpoenas to produce documents to three different third parties. Because Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.3(1) provides that a subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings, the Court ordered the Plaintiffs to provide a draft of the subpoenas sought to be issued (including the contents of the documents sought) to the Defendant's legal representative by 4:00 p.m. on 19 September 2022 and for the legal representative to inform the Plaintiffs whether they would oppose the grant of leave to issue the subpoenas by 26 September 2022.
2. On 4 October 2022, the Court was informed that the Defendant opposed the grant of leave to issue all of the subpoenas sought to be issued by the Plaintiffs. The Court, therefore, directed the Plaintiffs to serve any notice of motion and affidavits in support thereof by 4:00 p.m. on 25 October 2022 and the matter was adjourned until 7 November 2022.
3. The Plaintiffs complied with this direction, by filing the notice of motion and an affidavit from George Wehbe, on 20 October 2022. No objection was taken to any part of either affidavit, and neither deponent was cross-examined at the hearing of the notice of motion.
4. In the notice of motion, the Plaintiffs sought the following relief: "1 An order that the Plaintiff [sic] be granted leave to file and issue subpoenas sought in these proceedings. Annexed to the affidavit of George Paul Wehbe. Attached and filed in support of this Notice of motion. 2 An order that the defendant pay the Plaintiffs [sic] costs of this Notice of motion. 3 Such further or other orders as the court sees fit at the conclusion of these proceedings that David Shad be referred to the Law Society of NSW for investigation of professional misconduct."
5. In the affidavit in support sworn by the first Plaintiff, George, he states (at [5]): "The purpose of these subpoenas is to complete, lay evidence in chief in these proceedings to prove to the court the suspicious circumstances and influence of the defendant and the defendant's solicitor as I have carried out all my duties as an executor to the letter of the law and will continue to do so."
6. He also made allegations of "pre-meditated collusion" and "corruption" between the Defendant and her solicitor. He then went on to state (at [15]): "We kindly asked this honourable court to take into account the nature of these proceedings, our defendant, pleadings and particulars and the compromise made to the defendant and David Shads [sic] integrity and professional independence as follows: A. A probate caveat was placed by David Shad on 8th July 2021 @ 11:08am. B. An amended defence and cross claim was settled by David Shad with consent of myself one year later C. The defendant started calling the police on the first plaintiff shortly after the caveat was placed by David Shad, under instructions to try and simplify the process and narrative which landed me in custody the same night facing serious charges and the possibility of imprisonment. D. The defendant is a first-born child by title only of the law Wadad Wehbe therefore, failing to summon a family provision claim under instructions from David Shad to try to limit the perjury as the defendant has yet to show any hard, virtuous, or proactive evidence which we find bizarre and without probable cause. E. The delay and tactical prejudice caused by David Shad and his client has left us questioning whether this is a will contest, a will protest, or a subliminal family provision claim. F. The subpoenas sought by the defendant and David Shad across medical, financial, and criminal institutions have left them circumnavigating the law at great exhaustion, bias, prejudice, and financial loss to me with lack of procedural fairness. G. A knife on a chopping board for tabouli being put into contest in a will contest seriously leaves a lot to be desired and to say the least is not impressive and basically is unconscionable conduct. H. We have only seen character assassination in the highest level of opportunistic organised crime, with lack of consideration for our evidence. I. THE SUBTANTIAL CONFLICT OF INTEREST FOR DETERMINATION OF THE COURT IN THE OVERSIGHT THAT THIS WILL IS BEING CHALLENGED."
7. Finally, the first Plaintiff stated that (at [18]): "These subpoenas are fair and just and go right to the nature of these proceedings for the following reasons: A. The nature and importance of the amendments B. The defendants tactical and deliberate case framing to leave out undue influence and plead suspicion with knowledge and approval in the first instance after forgery was withdrawn. C. The extent of the delay and prejudice caused to myself. D. The defendant's lack of evidence. E. The point litigation has reached when the amendments were sought. F. The failure of the defendant's legal team to explain the amendments and their nature. G. An order for costs overcome the prejudice H. There is no law against writing out a will under candid and lucid instructions from a testator. I. The need to prima-facie this contested will against a dithering defendant and her woeful solicitor."
8. There was no affidavit evidence of the second Plaintiff, Simon Wehbe, read on the notice of motion (although he was present at the hearing and did make some submissions).
9. The Defendant relied on the affidavit of David Shad sworn 25 October 2022. That affidavit stated: "3 Since the commencement of these proceedings, myself, Mr Ahmad Karnib a Solicitor employed by Shad partners, and the Defendant have been subjected to offensive correspondence sent by Mr George Wehbe. A copy of the correspondence is annexed and marked "A" ("the Correspondence"). 4 In addition to the Correspondence, myself and Mr Karnib have been the subject of complaints to the Office of the Legal Services Commissioner. The Legal services Commissioner summarily dismissed both complaints. A copy of the letters received from the Legal services commissioner are annexed and marked "B" ("the OLSC Complaints"). … 12 On 19 September 2022, Mr Wehbe sent an email to Shad partners attaching a copy of the draft subpoenas. A copy of the email is annexed and marked "D". 13 On 20 September 2022, I sent a letter to Mr Wehbe informing him that our client opposes leave being granted and identifying the basis for that resistance. A copy of the letter is annexed and marked "E". 14 The documents sought in each of the draft subpoenas self-evidently have no relevance to the real issues in the proceedings that the Court will be called upon to decide, are oppressive and are an abuse of process."
10. The contents of the subpoenas, which, at the hearing of the notice of motion, I identified as the first, second and third subpoena, respectively, during the hearing of the notice of motion, were: 1. Subpoena to Elders NSW State Head Office (the first subpoena), which relevantly sought: "The document or things you must produce are as follows: 1. Copies of the following documents under the Property Stock and Business Agents Acts 2002, all relevant Property management records for Marcha Giotopoulos (also known as Marsha Wehbe) previously employed by Elders Greenacre 2190 as a property manager. A. Owner manager agreements B. All property files C. Details of management fees and vendor files relating to residential, commercial, industrial, and special purpose property/properties under the names of the following: 2. David Charles Shad A. George Shad B. Matthew Shad C. Catherine Shad D. Shad Family Trust E. Mansha Enterprises PTY LTD as trustee F. Shad Legal Services G. Westleigh Village" 1. Subpoena to Shad Legal Services - Trading as Shad Partners/Solicitors and Conveyancers (the second subpoena), which relevantly sought: "The documents or things you must produce are as follows: 1. Copies of the following documents under the Conveyancing Act 1919 No. 6, all relevant records relating to Marcha Giotopoulos also known as Marsha Wehbe) A. Conveyancing records B. Costs disclosure agreements C. NCAT and other court related documents" 1. Subpoena to NSW Commissioner of Police (the third subpoena), which relevantly sought: "The documents or things you must produce are as follows: Copies of the following documents for Marcha Giotopoulos (also known as Marsha Wehbe) born on the 27th February 1982 [sic]. 1. Dates and records of incident reports A. Records of contact made on the 8 July 2021 [sic] B. Video footage of search warrant number 7538/202 C. Criminal records D. Court attendance notices"
11. There was no evidence about how many documents would be required to be produced, but it seems likely that there could be hundreds of documents that would be required to be produced.

The Submissions

1. Without intending any disrespect to either of the Plaintiffs, the oral submissions of each of them were difficult to follow. To the extent that those submissions can be understood, or interpreted, they appeared to reflect no more than a significant criticism of the conduct of the Defendant and her solicitors, particularly, after the commencement of the proceedings.
2. When one reads the Reply, one can see that the Plaintiffs appear to be fixated on what occurred after the death of the deceased rather than upon the circumstances surrounding the making and execution of the 2020 Will.
3. That this is not too harsh an assessment of their submissions, can be observed with reference to the third paragraph of the notice of motion referred to above. Furthermore, none of the submissions identified how the documents, if produced, would assist them, or the Court, in determining whether the 2020 Will is a valid Will.
4. At the hearing, the first Plaintiff's primary submission with respect to the first subpoena appears to be that the documents, if produced, would demonstrate a conflict of interest between the Defendant and her solicitor. Even if such an allegation could be established, how that allegation is relevant to the proceedings was not made clear.
5. In relation to the second subpoena, the first Plaintiff, again, submitted it would demonstrate a conflict of interest between the Defendant and her solicitor. He also submitted that it "goes to the reason why, your Honour, a family provision claim hasn't been filed. I find that unusual for a firstborn child": Tcpt, 7 November 2022, p 15(1-9).
6. In relation to the third subpoena, the first Plaintiff submitted that it would show the malicious intent of the Defendant and the police, drawing "parallels and timing between the caveat and the first phone call to police": Tcpt, 2 November 2022, p 17(5-7). He also submitted that the third subpoena would go to the credibility, conduct and character of the Defendant and her legal team, who he alleges "have made an abundance of assassinations against us": Tcpt, 2 November 2022, p 18(3-10).
7. The second Plaintiff's submissions were brief. He submitted that the first subpoena was necessary to "further propound our evidence to show the suspicious circumstances to which the caveat was placed on the probate". He further submitted that "the caveat was placed one year to the date on which the will was signed. We believe just on the dates alone that is suspicious": Tcpt, 7 November 2022, p 11(45)-12(12).
8. He submitted that the fact the Defendant has amended her pleadings more than once, and that, alone, has caused the Plaintiffs' suspicions to be aroused: Tcpt, 7 November 2022, p 13(41-46).
9. He made no submissions in respect of the second subpoena: Tcpt, 7 November 2022, p 15(48-50).
10. In respect of the third subpoena, the second Plaintiff submitted that it would show "the timing of the Defendant and the malicious circumstances under which her and her representatives have acted": Tcpt, 2 November 2022, p 18(42-45).
11. Counsel for the Defendant submitted that the subpoenas sought by the Plaintiffs would not materially assist in identifying any issues identified in the proceedings, the principal issue relating to the preparation and execution of the Will propounded by the Plaintiffs, and whether it can be demonstrated that it is the Will of a free and capable testator: Tcpt, 2 November 2022, p 19(18-26).
12. With respect to the third subpoena, counsel for the Defendant agreed that its relevance might be limited to the criminal record relating to the Defendant, but submitted that the onus in the proceedings rests with the Plaintiffs to prove the validity of the Will that is being propounded and that it was not in dispute that the Defendant had nothing to do with the preparation or execution of the deceased's Will: Tcpt, 2 November 2022, p 20(1-26).
13. It was submitted that "if the test for relevance and forensic purpose is a likelihood to materially assist on an identified issue which is the validity of the 2020 Will, my submission is that I don't think criminal records, even narrowed in that way would assist the Court on that issue": Tcpt, 2 November 2022, p 20(47)-21(2).
14. Regarding the subpoenas generally, whilst it was not submitted, in my view, correctly, that they could not be issued because the pleadings had not closed, it was submitted that the documents appeared to be wholly irrelevant to the issues for determination between the parties and that they were not a bona fide attempt to obtain relevant evidence that could rationally bear on the questions for determination: Tcpt, 2 November 2022, p 21(25-32).
15. With respect to Paragraph 3 of the notice of motion, which sought an order that Mr Shad to be referred to the Law Society of NSW for investigation of professional misconduct, it was submitted that there was no disclosed jurisdictional, or other, basis for that order. It was submitted that any such order would be an abuse of process, and in any event, was premature, since there has been no ultimate finding in relation to the issues in dispute. (I should mention, in relation to the third order sought, that the Plaintiffs accepted that the order could not be made at this time: Tcpt, 7 November 2022, p 22(13-29).)

The legal principles

1. It seems clear that the only power available to the Court, at the behest of a party, to compel the production of documents held by a third party is by the issue of a subpoena duces tecum.
2. UCPR r 33.2 provides that the court may, in any proceeding, by subpoena, order the addressee (a) to attend to give evidence as directed by the subpoena, or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or (c) to do both of those things.
3. UCPR r 3.14(2) provides that a request to issue a subpoena using the online registry can only be made on behalf of a party who is represented by a solicitor.
4. I have referred to UCPR r 7.3 earlier in these reasons.
5. One of the purposes of UCPR r 7.3 is to protect against subpoenas being issued at the request of a litigant who may not understand the usual rules of practice and do not have ethical obligations of legal practitioners. UCPR r 7.3(2) provides that leave under sub-rule (1) may be given either generally or in relation to a particular subpoena or subpoenas. Thus, whether leave to issue a subpoena ought to be granted to self-represented litigants, is a matter of discretion.
6. In Monteiro v State of New South Wales [2022] NSWSC 148, Campbell J wrote at [14]-[15]: "The requirement for leave in the case of a self-represented litigant is to provide a filter excluding an abuse of the Court's power to issue subpoenas, especially to third parties to the litigation. In short, the requirement for leave is to protect the Court's processes by requiring the self-represented party who seeks leave to demonstrate that each subpoena sought to be issued has a legitimate forensic purpose. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P said ([at [65]): 'It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, ... it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.' In the same matter Brereton JA said (at [85]): 'The present application for leave to appeal raises the question whether, at least in the context of civil proceedings, for there to be a legitimate forensic purpose for the issue of a subpoena, it is necessary that the documents the subject of the subpoena will likely materially assist the case of the issuing party, or whether it suffices that the material called for will likely add, in the end, in some way or other, to the relevant evidence in the case. That is a question about which there has been some controversy, the resolution of which will provide clarity on an issue of general principle.' The decision answers Brereton JA's question by acceptance of his second alternative."
7. (Although Secretary of the Department of Planning, Industry and Environment v Blacktown City Council was a case involving an application for leave to appeal from a decision in relation to the issue of a subpoena by Blacktown City Council to the Secretary of the Department of Planning, Industry and Environment in relation to proceedings in the Land and Environment Court, for production on the basis that it lacked any legitimate forensic purpose, the principles to be applied are not dissimilar.)
8. In Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]-[6], Bellew J wrote: "Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition: Samootin v Shea [2004] NSWCA 115 at [20] per Giles JA; Markisic v Commonwealth [2009] NSWSC 284 at [17]-[18] per Hislop J. An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at [52]; Wong v Sklavos [2014] FCAFC 120 at [12]."
9. His Honour's statements were cited, with approval in NHB Enterprises v Corry (No 4) [2020] NSWSC 426 at [11] (Williams J); Attorney General v Collier [2022] NSWSC 323 at [5]-[7] (Hamill J).
10. It can be seen from the authorities, that the Plaintiffs, as the party seeking leave, bear the onus of demonstrating that the subpoenas, leave for the issue of which is sought, have a legitimate forensic purpose. That purpose, of course, includes that "the documents sought to be produced by way of subpoena will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist". Leave should not be granted unless that purpose is established.
11. In dealing with the Defendant's submission on the question of "relevance", I have remembered what Brereton J wrote in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [25]: "It is sufficient that they could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings."
12. In In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 at [22]-[24], Gleeson JA explained that "apparent relevance" means something could "reasonably be expected" to "throw light" on some of the issues in the proceedings. As Bell P wrote in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council at [57], so long as the subpoena can plausibly be seen to relate to an issue in the proceedings (or to "cast light" on such an issue), and the proposed subpoena is not, in other respects, too vague or oppressive, it should not be set aside. His Honour cited, with approval, at [25], the above passage in Portal Software International Pty Ltd v Bodsworth.
13. It follows that determining whether there is a legitimate forensic purpose requires reference to the facts of the particular case, or the identified issues, upon which the documentation sought by the proposed subpoena is reasonably expected to throw light.
14. I do not have to consider, on this application, whether the documents, the production of which is sought in the proposed subpoenas, will definitely advance the case of the Plaintiffs, or whether they will be admissible in evidence at the trial.
15. In relation to the part of the third subpoena, which relates to criminal records, I have considered whether the documents could be relevant on the issue of the Defendant's credit.
16. The question whether a subpoena which seeks documents relating only to credit may be issued, was answered, affirmatively, by Brereton J in Liristis v Gadelrabb [2009] NSWSC 441. In that case the Defendant sought to issue a subpoena to produce to the Police Commissioner, requiring production of "complete copy of criminal records specifically those regarding any convictions for dishonesty and in particular perjury, and convictions under the Oaths Act 1900 NSW in relation to [the Plaintiff and his father]". Importantly, there was evidence before the Court that the Plaintiff had been prosecuted on a charge of perjury and convicted in the District Court. He subsequently appealed to the Court of Criminal Appeal, where the conviction was quashed, and a new trial was ordered. The party's credit was a real issue in the proceedings.
17. His Honour stated (at [4]-[5]): "It cannot be contended that the existence of a conviction of dishonesty would not be relevant to the question of credit. Moreover, even documents which, though not evidencing a conviction for dishonesty, enabled a party to establish or tend to establish that the other had made false statements when under an obligation to tell the truth, could legitimately provide the basis for cross-examination as to credit (under (NSW) Evidence Act 1995, s 103(2)). I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of 'trawling' in this context is the same as that of 'fishing'. It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is 'on the cards' that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena."
18. Copies of the Plaintiff's criminal records were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered.
19. In Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303, the majority of the Court of Appeal (Basten and Emmett JJA, Adamson J dissenting) held that a subpoena may legitimately seek material relevant to the investigation of a reasonable suspicion about facts pleaded or particularised, including matters of credit, but that a subpoena will not serve a legitimate forensic purpose where it seeks material beyond what would reasonably be required to investigate the matters pleaded or particularised, or where it trawls speculatively for documents that may possibly impugn a witness's credit. In those circumstances the subpoena would constitute a "fishing expedition".
20. In that case, the Court of Appeal allowed an appeal against the dismissal of an application to set aside subpoenas issued by an insurer. In the first instance, the primary judge allowed access to material which fell within the category of "all criminal records" but excised the remaining words "all complaints, reports and any documentation relation to any incidents involving [the named person]", instead leaving it to the trial judge to determine that aspect of the subpoena.
21. Basten JA held that there was no foreseeable case presented by counsel for the respondent in which the kind of material not forming part of a criminal record and not relating to the incident in issue, could be used. Regarding the reference to "all criminal records", it would be necessary for there to be offences of dishonesty and that the request for "all criminal records" was not so limited. Yet, if it had been more limited, an objection might have been made on a different basis, namely that it would have required an independent third party to form a judgment as to what was, and what was not, covered by the subpoena.
22. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 16) [2021] FCA 584, Besanko J, at [31] wrote: "A subpoena to produce documents intended solely to impeach credit is not liable to be set aside on that ground alone. However, when a subpoena is sought on that basis, the Court will be careful to examine whether the subpoena has, in fact, a legitimate forensic purpose. After referring to three important authorities (Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194; Liristis v Gadelrabb [2009] NSWSC 441; Jack Brabham Engines Limited v Beare [2010] FCA 35), Pembroke J in Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870 provided the following helpful summary of the principles (at [19]): (a) As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried (supra) at [24]. It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit: Liristis (supra) at [5]; R v Saleam (1989) 16 NSWLR 14 at 19 (Hunt J). On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness; (b) In all cases, there must be some actual identifiable basis - reasonably precise and tolerably clear - that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined; (c) If the subpoena is legitimate, two features of its intended forensic purpose will usually demonstrate its legitimacy. First, the particular credit issue will be capable of reasonable articulation, making due allowance for the necessity for some generalisation depending on the stage that the hearing has reached. Second, the probable connection between the documents sought to be produced and that credit issue, will be apparent; (d) A credit issue of doubtful plausibility is unlikely to be sufficient to justify the subpoena. The same result will follow if the supposed connection between the credit issue and the documents sought, is strained, opaque or speculative; (e) The court will exercise particular caution when a subpoena is sought to be justified solely on the credit basis: Fried (supra) at [27]. The judge must be satisfied about the utility of the production of the documents, and the fairness to the witness, having regard to the potential for abuse and the need to control and confine cross examination within manageable limits; (f) A subpoena that does little more than speculatively trawl for documents that may possibly be used to impugn a witness's credit has never been justifiable: Fried (supra) at [29]."

Determination

1. Turning then to the question whether leave to issue the subpoenas should be granted, the Plaintiffs do not appear to understand that, in order to obtain a grant of probate in solemn form, they, as the propounders of the 2020 Will, must establish that the deceased had testamentary capacity at the relevant time to make a will, that she had the intention, by the handwritten instrument, to make a will, and that she knew and approved of the contents of the Will being propounded: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [301]; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21. They must establish that she had sufficient mental capacity to comprehend the nature of what she was doing, and its effects; that she was able to realize the extent and character of the property with which she was dealing, and to weigh the claims that naturally ought to press upon her. To rightly understand these various matters, it is essential that the deceased's mind was free to act in a natural, regular, and ordinary manner.
2. However, in relation to the allegation of undue influence, the onus is on the Defendant to establish influence which can justly be described by the court to have caused the execution of the 2020 Will pretending to express the deceased's mind, but which really does not express her mind, but something else which she did not really mean: Boyse v Rossborough (1857) 10 ER 1192 at 1205; Craig v Lamoureux [1920] AC 349 at 357. In this regard, "persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will". (See: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [311].) She must prove the allegation on the balance of probabilities.
3. The allegation of undue influence is a serious one, and it is necessary to remember s 140 of the Evidence Act 1995 (NSW) which says that a Court may take account of the gravity of the matters alleged when deciding if a case has been proved.
4. It has not been asserted by the Plaintiffs that the Defendant, or, as importantly, any of her legal representatives, had anything to do with the creation, or execution, of the 2020 Will.
5. The focus of the documents sought in the subpoenas does not appear to relate, directly indirectly to any of the issues. The Plaintiffs have not identified, let alone established, that the documents in each of the proposed subpoenas will materially assist in the determination of an identified issue in the proceedings.
6. It is clear that the pleadings have now closed and the issues in the case are able to be ascertained. As the Defendant, in the Cross Claim, does not seek a family provision order out of the estate, or notional estate, of the deceased, the matters in s 60(2) of the Succession Act 2006 (NSW), to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order, are not relevant. Importantly, the character and conduct of the Defendant, before and after the date of the death of the deceased person (s 60(2)(m)), is not a matter to which the Court may have regard.
7. In dealing with the notice of motion, I have remembered that, in assessing whether a legitimate forensic purpose exists, the necessity for having a document to fairly dispose of the issues at the hearing might not become apparent before the trial. I have also remembered that, in the interests of a fair trial, litigation should be conducted on the basis that all relevant documentary evidence is available. However, in this case, I do not consider that the documents sought to be produced have even an apparent connection to justify their production or inspection.
8. As stated, it is the testamentary capacity of the deceased and her knowledge and approval, taken with the conduct of one, or both, of the Plaintiffs, going to undue influence, that are the subject of the amended Defence to the Statement of Claim. In that regard, however, as stated, there is no suggestion that the Defendant and her legal advisers had anything to do with the creation of the 2020 Will, and there is no dispute that if the validity of that Will is not established by the Plaintiffs, the deceased died intestate. I am unable to discern any connection between any alleged conflict of interest that would be relevant to the issues to be determined.
9. There is also nothing that identifies how, in circumstances where the Defendant is seeking to impugn the conduct of one, or both, of the Plaintiffs, in relation to the creation of the 2020 Will, in the assertion of undue influence, the Defendant's criminal record, is likely to be relevant. Any question of the Defendant's credit is so tenuous that it would not justify investigation at the trial.
10. Whilst the documents the subject of each proposed subpoena might be of interest to them, the Plaintiffs have not demonstrated how any of the documents could give rise to a line of enquiry relevant to the issues, including for the purpose of meeting the Defendant's case, by dint of cross-examination.
11. In the circumstances, the Plaintiffs have not established that leave to issue the subpoenas should be granted. There is nothing that identifies, or explains, the relevance of any of the material sought to be produced on the issues that are required to be determined in the substantive proceedings.
12. I am also of the view that granting leave to the Plaintiffs to issue the subpoenas would be inconsistent with the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The focus of the Plaintiffs should be on what they need to establish to successfully propound the 2020 Will and to defend the allegation of undue influence. The validity, or otherwise, of the 2020 Will cannot be determined by the conduct of the Defendant, or the conduct of her solicitors, in relation to the proceedings commenced after the death of the deceased.
13. In the circumstances, and in the exercise of my discretion, the Court orders that the Plaintiffs' notice of motion filed on 20 October 2022 be dismissed with costs. The matter will be referred to the Equity Registrar on 28 November 2022 for the purpose of obtaining a hearing date with an estimated duration of 5 days. The directions hearing listed on 5 December 2022 is vacated.
14. By way of postscript, I reiterate my concern that the Plaintiffs, in ignorance of the legal, and other, problems that could arise, will continue without retaining legal practitioners to appear for them in what are complex Probate proceedings in which serious allegations are made. They have been afforded sufficient opportunity to do so and should be aware, in the event they do not retain legal assistance until a time closer to the date the matter is listed to be heard, that any hearing will not be delayed for that reason.

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: 22 November 2022