Supreme Court New South Wales Medium Neutral Citation: Katsikas v Katsikas [2016] NSWSC 1490 Hearing dates: 7 October 2016 Decision date: 25 November 2016 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Orders (including consequential relief) for dismissal of an application for review of a decision by a Registrar, not to set aside a subpoena for production of a computer to the Court, but to adopt, by orders of the Court, a protocol agreed between counsel, for forensic examination of the computer, as bearing upon the authenticity of a controversial email central to a determination of the principal proceedings, in which the applicant (although not a party) has an interest of a proprietary nature and as a critical witness. Catchwords: PROCEDURE - Subpoenas and notice to produce at hearing – Setting aside or other relief – Application to set aside dismissed by registrar – Application for review dismissed PROCEDURE – Inspection of property - Nature and scope of examination of computer – Forensic testing of authenticity of disputed email - Whether inspection order exceeds what is reasonable Legislation Cited: Succession Act 2006 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 In the will of Sheppard [1972] 2 NSWLR 714 Tobin v Ezekiel (2012) 83 NSWLR 757 Tomko v Plasty (No. 2) (2008) 71 NSWLR 61 Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247 Texts Cited: - Category: Procedural and other rulings Parties: Plaintiff: George Katsikas Defendant/Respondent: Suzanne Katsikas Applicant: Christopher Katsikas Representation: Counsel: Applicant: M Bradford Defendant/Respondent: JEF Brown Solicitors: Applicant: Bell Partners Legal Defendant/Respondent: Marsdens Law Group File Number(s): 2015/00173484 Judgment INTRODUCTION 1. Before the Court is an application for review of orders made by Senior Deputy Registrar Brown ("the Registrar") giving effect to an agreement, made between the respective counsel then appearing for the applicant (not formally a party to the principal proceedings) and the defendant, for expert examination of a computer (the subject of a subpoena for production to the Court issued at the request of the defendant) for the purpose of addressing whether a controversial email, relied upon by the plaintiff (in the same interest as the applicant), may have been sent from that computer, a computer owned by the applicant's company and routinely used by him. 2. The applicant's essential contention is that the scope of the proposed examination both goes beyond what is reasonably necessary for a proper determination of the principal proceedings, and infringes the privacy of himself and persons with whom he has over a lengthy period engaged in email correspondence. He says that, by agreeing to the orders made by the Registrar, his counsel exceeded his authority. 3. The Registrar's orders followed a two-stage process of decision making upon her determination of a notice of motion filed by the applicant seeking an order that the material part of the defendant's subpoena be set aside. 4. As a first step, on 13 July 2016 the Registrar determined that the controversial paragraph of the subpoena should not be set aside, and that the parties should engage in discussions about a protocol for examination of the computer. She has since reduced to writing her reasons for that determination. 5. As a second step, on 25 July 2016 the Registrar made orders giving effect to a protocol (agreed between counsel) for examination of the computer by the defendant's expert subject to a confidentiality undertaking given by the expert. 6. By a notice of motion filed on 11 August 2016 (pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 NSW), the applicant sought "an order varying the form of the direction given by the Registrar on 25 July 2016 to the parties for the implementation of a subpoena protocol". 7. On the hearing of the motion the applicant sought leave to amend it to conform to the terms of an "amended notice of motion" dated 30 August 2016. Having earlier opposed a grant of leave, the defendant withdrew her opposition during the course of the hearing. Accordingly, I propose to grant the requisite leave. In what follows, I respond to the amended motion. 8. In essence the applicant, by the amended motion, seeks to challenge expressly both the Registrar's initial decision (on 13 July 2016) and the dispositive orders subsequently made by the Registrar (on 25 July 2016). 9. Relying upon a liberal characterisation of a UCPR rule 49.19 "review" as a hearing de novo, the applicant seeks, not only an order that the orders of the Registrar be set aside, but, also, orders directed towards recasting the defendant's proposal for examination of the subject computer into the framework of UCPR rule 23.8, a rule apparently not specifically or expressly canvassed before the Registrar. 10. UCPR rule 23.8(1) provides that, for the purpose of enabling the proper determination of any matter in question in any proceedings, the Court may make orders for any of the following: 1. the inspection of any "property" (a concept defined, by rule 23.8(6), to include "any document or other chattel, whether in the ownership or possession of a party or not"); 2. the taking of samples of any property; 3. the making of any observation of any property; 4. the trying of any experiment on or with any property; 5. the observation of any process. 1. Viewing the substance of what occurred before the Registrar, unconstrained by procedural forms, I doubt that the absence of any express reference to UCPR rule 23.8 by the Registrar, or in the proceedings before her, alters the nature or scope of the business at hand. 2. The crux of the parties' controversy is that, although the subpoena protocol agreed between counsel allows the defendant's expert a relatively free hand in examination of the applicant's computer, the applicant's suggested mode of examination would constrain the examination within comparatively narrow limits. The applicant does not oppose the computer being examined but, by proposing procedures more restrictive than those agreed to by his counsel, he seeks to confine the scope of the examination and to control the process. 3. Counsel now appearing on behalf of the applicant expressly disclaimed any challenge to the qualifications or bona fides of the defendant's expert. He also disclaimed any suggestion that the applicant's expert is more qualified than that of the defendant. 4. In the course of argument on the application for review counsel for the applicant complained that a confidentiality undertaking (dated 29 July 2016) given by the defendant's expert to the Court and the plaintiff was defective because it was not also given to the applicant and his company. That complaint was overcome by an express notation (based upon instructions obtained by counsel for the defendant from the defendant's expert) that the defendant's expert's undertaking is an undertaking to the Court, the plaintiff, the applicant, and the applicant's company jointly and severally. 5. The narrow focus of the application for review, in practical reality, is on the nature and scope of the examination of the computer that is to be undertaken. Although the applicant's amended notice of motion is expressed to have a broader ambit, its breadth is directed towards a root and branch challenge to the terms of the subpoena protocol agreed between counsel rather than to the idea that an examination take place. The applicant does not oppose an examination, simply an examination more intrusive than that which he and his expert propose. THE NATURE OF THE PRINCIPAL PROCEEDINGS 1. The context in which debate upon the application for review has taken place requires exposition in order to demonstrate the critical relevance to an outcome of the principal proceedings of an examination of the authenticity of the controversial email alleged by the plaintiff, and deposed to by the applicant, to have been received by the applicant. 2. Demetrios Katsikas ("the deceased"), aged 55 years, died without issue on 24 February 2015, ostensibly intestate. 3. On 18 September 2015 the Court granted letters of administration of the estate to the defendant, the widow of the deceased. 4. The inventory of property annexed to the grant discloses an estate with an estimated gross value of about $1.945 million including, as the deceased's principal asset, a residence at South Maroota. The deceased apparently died with few debts, with the consequence that his net estate can be assumed to have an approximate value of the same order. 5. By operation of section 111 of the Succession Act 2006 NSW, if it be correct to say that the deceased died intestate, the whole of his estate passes to the defendant as his widow. 6. The deceased and the defendant were married on 17 July 2007. 7. By operation of section 12 of the Succession Act 2006, that marriage revoked a will dated 7 May 1985 ("the 1985 will") earlier made by the deceased. 8. According to the terms of the will: 1. the deceased's father, George Katsikas (the plaintiff) was appointed executor, with a substitutional appointment in favour of the applicant, the deceased's brother Christopher Katsikas. 2. the deceased's estate was to be divided between: 1. the deceased's parents (the plaintiff and Chrysanthe Katsikas), as joint tenants, as to a one half share; and 2. the applicant, as to the remaining half share. 1. By a statement of claim filed on 19 October 2015, the plaintiff contends that the deceased did not die intestate because, although the 1985 will was revoked by marriage, it was revived (by operation of section 15 of the Succession Act) by an email dated 25 February 2011 (the controversial email) ostensibly sent by the deceased to the applicant. 2. The plaintiff contends that that email and the 1985 will instrument should, together, be admitted to probate (pursuant to section 8 of the Succession Act) as an "informal will". 3. The statement of claim alleges (by paragraph 9) that the deceased manifested his intention to revive the 1985 will, not only via the 2011 email, but also by statements made orally in discussions with the applicant. 4. The plaintiff claims an order that the 1985 will and the email, together, be admitted to probate via a grant to him in solemn form. 5. By an amended defence filed on 18 March 2016, the defendant contends that the deceased was aware that his marriage revoked the 1985 will, and that he deliberately died intestate in the knowledge that the effect of his doing so would be to pass the whole of his estate to her. 6. By paragraphs 9, 9A and 9B of the amended defence, the defendant: 1. denies that the deceased sent the 2011 email, propounded by the plaintiff; 2. disputes that the email, if sent, was intended to operate as a testamentary instrument; and 3. alleges: (i) that the email is attended by "suspicious circumstances" (implicitly invoking Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 and Tobin v Ezekiel (2012) 83 NSWLR 757); and (ii) that the deceased did not "know and approve" of the contents of the email. 1. The plaintiff bears the onus of proving the documents he propounds as a will: Bailey v Bailey (1924) 34 CLR 558 at 570-572. The defendant has put him to proof. 2. The applicant is not, in formal terms, a party to the principal proceedings but (upon an application of the principle enunciated in Osborne v Smith (1960) 105 CLR 153 at 158-159) he will be bound by the Court's determination of the proceedings. Plainly, he has had notice of the proceedings and an opportunity to seek to intervene in them by way of joinder as a party. In fact, the case for which the plaintiff contends depends heavily upon his evidence, and he has a greater personal interest in the outcome of the proceedings than has the plaintiff. On the case for which the plaintiff contends, the applicant is the deceased's major beneficiary. 3. This is not a case of a subpoena (or an order for the inspection of property) directed to a person who is, in every sense, a stranger to the proceedings. The applicant is closely and actively aligned with the plaintiff and in the same interest as him. 4. The authenticity of the disputed email is a central issue on the face of the parties' pleadings as filed. So, too, inferentially is the credit of the applicant, whose evidence is relied upon by the plaintiff as the alleged recipient of the email and as the alleged confidant of the deceased. 5. A forensic examination of the deceased's computers reveals no evidence of the critical, disputed email having been sent by him; but does reveal evidence of a shorter, apparently unrelated email of the same date and time addressed to the applicant. The possibility that the shorter email was the subject of manipulation on a computer other than that of the deceased cannot be excluded without further forensic examination. 6. By a subpoena filed on 8 April 2016, the defendant called upon the applicant to produce to the Court, inter alia: 1. the "original electronic version" of the disputed email (paragraph 1); 2. the "original electronic device" which received the disputed email (paragraph 2) ; and 3. "all desktop, laptop, tablet, hard drive or other electronic devices capable of sending or receiving an email held by you [ie, the applicant] or in your possession which were in existence for the period 1 January 2010 until 7 April 2016" (paragraph 4). 1. By a notice of motion filed on 28 April 2016, the applicant applied to the Court for an order that the subpoena be set aside. 2. Although the motion was expressed in general terms, both before the Registrar and myself the applicant confined his challenge to the subpoena to an application that paragraph 4 be set aside. 3. The applicant says (and, for present purposes, the defendant accepts) that there is only one available "computer" (an expression of convenience used in this judgment to include each associated device) that falls within the description of paragraph 4 of the subpoena: that is, his work computer, the property of his corporate vehicle, the operator of an electrical engineering business. The applicant is, by profession, an electrical engineer. 4. On 16 May 2016 I made orders, designed to identify real questions in dispute, referable to the application to have paragraph 4 of the subpoena set aside. Those orders were to the effect that: 1. the defendant file and serve an affidavit or affidavits sworn by her computer expert deposing to facts, and opinions, in support of paragraph 4 of the subpoena; 2. the applicant file and serve an affidavit: 1. verifying a statement made by his solicitor, in inter partes correspondence, to the effect that the applicant cannot comply with paragraph 2 on the subpoena because he "is no longer in possession of the 'original electronic device' which received the [disputed] email…"; and 2. stating when he ceased to be in possession of that device, describing the circumstances in which he ceased to be in possession of it and (to the best of his knowledge, information and belief) the present whereabouts of the device; and 3. the applicant's motion be referred to the Registrar for hearing. 1. By pressing paragraph 4 of her subpoena, the defendant seeks, by forensic examination of the applicant's work computer, inter alia, to test whether the applicant sent the disputed email to himself. 2. The Registrar heard the motion on 13 July 2016 and, incidentally, on 25 July 2016 as earlier explained. THE APPLICATION FOR REVIEW 1. Presently before the Court, in addition to the evidentiary material relied upon by the applicant and the defendant respectively, is a transcript of the proceedings before the Registrar on 13 and 25 July 2016, together with a revised transcript of the Registrar's reasons for judgment published on 13 July 2016. 2. On the hearing of an application for review from a decision of a registrar, it is not incumbent upon the applicant to identify (or for the judge undertaking the review to find) error in the reasoning or decision-making processes of the registrar as a precondition for interference with the decision. The judge is able to review all aspects of the findings of the registrar, and is not required to restrict himself or herself to interfering with the registrar's decision only if the registrar has acted upon some mistaken principle or has otherwise erred: In the will of Sheppard [1972] 2 NSWLR 714 at 716G-717B. 3. That said, although a judge does not need to find error on the part of the registrar in order to intervene on the conduct of a review, he or she may, upon an independent exercise of discretion, decline to intervene if no error can be identified in the registrar's making of a discretionary determination, particularly if it is an interlocutory decision: Tomko v Plasty (No. 2) (2008) 71 NSWLR 61 at 64[4]-65[11]; Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247 at [100]-[108]. 4. An examination of the Registrar's reasons for judgment demonstrates that she was alive to concerns about the forensic importance of the disputed email; the nature, width and purpose of any examination of the computer; the burden upon the applicant of depriving him of use of his computer for a time necessary to facilitate an examination; the interests of the applicant and his company in maintaining privacy of information unrelated to the composition and dispatch of the disputed email; and the need for the parties to cooperate in the preparation of a "protocol" to govern the process, and reporting of results, of any examination. 5. I discern no error in the reasoning of the Registrar or in her decision-making processes. She concluded by expressing her satisfaction "that the defendant should be given the opportunity of investigating the validity of the email but the interests of [the applicant] should be protected". She invited the parties to confer about a "protocol" to govern an examination, and adjourned the proceedings to permit that to occur. 6. On the adjourned date (25 July 2016) the applicant and the defendant both appeared by counsel, the applicant's counsel with his instructing solicitor and the applicant's expert in tow. After argument, and a further opportunity allowed to the parties to continue their discussions, counsel for the applicant invited the Registrar to make notations and orders by consent, which she did. 7. As appears in the transcript of 25 July 2016 (at pages 13-14), the Registrar concluded the proceedings before her with what she described as "an overview just for the record". It was in the following terms: "On 13 July 2016, I heard an application by the plaintiff [sic] to set aside paragraph 4 of the defendant's subpoena. I decided that paragraph 4 of the subpoena was relevant to the proceedings and was allowed pending an access regime which would protect the privacy and interests of the subpoena recipient as well as an unquantified number of third parties. I also advised the parties that I propose to order that each party pay their own costs as in my view, even though the plaintiff was unsuccessful in having paragraph 4 of the subpoena set aside, it was necessary to engage the Court's process to ensure that the privacy and confidentiality issues were properly addressed. I invited the parties to approach the Court if they wished to be heard on costs and I stood the matter over to 25 July 2016 to confirm the access regime that the parties had prepared. I have received oral submissions from both parties in relation to the protocol and written submissions on one discrete issue of costs. In relation to the protocol, there were certain discussions which took place between the parties in relation to that protocol. The parties have now handed up a confidentiality or a subpoena protocol including an amendment to an undertaking by [the defendant's expert] that they are happy with, that has been read onto the record and that becomes an order of the Court as a result. [The Registrar then dealt with costs issues not bearing upon the application for review.] So my orders are that the notice of motion filed by the plaintiff [sic] is dismissed. Paragraph 4 of the subpoena may be relied upon by the defendants [sic] subject to the agreed protocol and proposed undertaking handed up today and read out in court. Both parties to pay their own costs of the notice of motion, except for one hour plus GST of [the defendant's expert's time]." 1. Again, it is plain that the Registrar was alive to the questions of inconvenience, privacy and confidentiality that are the subject of continuing agitation by the applicant on the hearing of his application for review. 2. Leaving aside the Registrar's description of the motion before her as a motion of the plaintiff (technically incorrect, but substantially correct), I discern no error of substance in the reasoning or decision making processes of the Registrar. She was entitled to accept the form of orders handed up by counsel. 3. In effect, the applicant 's obligation to produce the subject computer pursuant to paragraph 4 of the defendant's subpoena was confirmed and (in terms of an agreed protocol) the defendant's expert was granted access to the computer (in consultation with the applicant's expert), on terms, for the purpose of conducting a forensic examination directed to establishing the authenticity or otherwise of the disputed email, for the purpose (to paraphrase UCPR rule 23.8) of "enabling the proper determination of [a central] matter in question in [the principal] proceedings." 4. On my reading of the transcript of proceedings before the Registrar, and the parties' evidence and submissions, and having regard to the nature and scope of the principal proceedings, the interests of justice do not require any interference with the determination made by the Registrar save for: (a) clarification of the terms of the defendant's expert's confidentiality undertaking, as has occurred, to meet a complaint of the applicant; (b) acknowledgement of a variation in the terms of the confidentiality provisions of the protocol agreed between the parties shortly after the Registrar's orders were made; and (c) such, if any, supplementary orders required (under UCPR rule 23.8 or otherwise) to enforce the applicant's obligation to produce his computer for the purpose of the forensic examination contemplated by the agreed "subpoena protocol" 5. By agreement between the parties (initiated by counsel then retained by the applicant on 26 July 2016), the confidentiality regime contemplated by the protocol agreed between counsel (and adopted by the Registrar) the day before was varied so as to clarify privacy protection available to the applicant and others with whom he might have corresponded. 6. In my opinion, it is not in anybody's interest, or in the public interest in due administration of a deceased estate, for the defendant's expert's examination to be constrained as the applicant would have it. That the applicant's expert opines that a more limited form of examination of the computer should be sufficient does not outweigh the defendant's expert's opinion that there is practical utility in the examination he seeks to undertake. On one view, bearing in mind that the plaintiff (in practical terms, the applicant) bears the onus of proving the authenticity of the email, it is not in the interests of the plaintiff or the applicant themselves to leave the evidence as to the email's authenticity in the limbo in which it might be by the defendant with a complaint, based on an expert opinion, that, because of a restricted forensic examination, doubts about the authenticity of the email remain. 7. In summary terms, the agreed protocol envisages that, within 7 days' notice from the defendant's solicitor, the applicant (accompanied by his own expert) must deliver the computer to the offices of the defendant's expert for the defendant's expert to take a copy of the external hard drive of the computer; that the computer must be returned immediately if the defendant so requires; that, within a specified time, the defendant's expert must prepare a report, to be filed and served in the proceedings; and that, within a week of completion of the final hearing of the proceedings, on notice to the plaintiff and the applicant, the defendant's expert must destroy the copy. All this is to be done under cover of the expert's confidentiality undertaking. 8. The applicant's preferred protocol (MFI A3), advanced under cover of correspondence dated 28 July 2016, would still require the applicant to deliver the computer to the offices of the defendant's expert, and to allow the expert to scan the hard drive; but it would require him to save and retain only information at that time identified (without an opportunity for a less rushed, more complete examination of the whole hard drive) as "relating to the [disputed email], its authenticity and any material related thereto". 9. In the absence of any challenge to the qualifications or bona fides of the defendant's expert, the applicant's concerns about privacy and confidentiality lose much of the force they might otherwise have. The evidence of the defendant's expert, and the protocol agreed between counsel, demonstrate that the focus of the expert's examination (not constrained as the applicant would have it) is a thorough testing of the authenticity of the disputed email: not more, or less, than that. In the performance of his professional function, under the control of the Court and for the purpose only of the proceedings before the Court, he should be trusted to remain within the bounds set by the Court. The applicant disavows any suggestion that he cannot be trusted. 10. The applicant cannot avoid a comprehensive technical examination of his computer by an expert (working under the control of, and liable to sanction by, the Court) by blanket expressions of concern about privacy and privilege. The Court can, and should, allow a reasonable opportunity for claims of privilege or abuse of process to be identified and duly determined; but, against that, care needs to be taken to ensure that technical information bearing upon a controversial email (proffered by the applicant as evidence in his own cause) is not unfairly buried in broad claims of confidentiality. 11. The expert's report is not expected to disclose to the parties any confidential information, or information other than technical data. If there is any apprehension that it might disclose confidential information, I will entertain any reasonable proposal for the report to be disclosed first to the applicant's lawyers, with an opportunity to apply for a non-publication order or other relief (as the nature of the case may then require), before disclosure to the parties. 12. The centrality of the disputed email to a proper determination of the principal proceedings weighs heavily in favour of allowing the defendant, by her suitably qualified expert, a reasonable opportunity to undertake the forensic examination which that expert recommends be taken to examine the computer. 13. Although I apprehend that it was well within the ostensible, if not actual, authority of counsel to agree to the protocol presently under challenge, I do not determine the application for review on any formalistic ground of that nature, or upon any notion of the sanctity of orders made by consent. My independent assessment of the case (including a review of the parties' pleadings, their expert evidence and the questions of privacy and procedure exposed for consideration) leads me to conclude, on my own authority, that the interests of justice require that the application for review be dismissed, with consequential orders confirmatory of the protocol accepted by the Registrar, and endorsed by me, as an appropriate means of permitting the computer to be forensically examined. 14. In these circumstances, I propose to make orders to the following effect, subject to allowing counsel an opportunity to consider whether other or supplementary orders are more expedient: 1. ORDER that the applicant be granted leave to amend the notice of motion filed by him on 11 August 2016 in terms of the document dated 30 August 2016 entitled "amended notice of motion". 2. ORDER that the applicant be granted leave to file the amended notice of motion dated 30 August 2016 in court. 3. ORDER that any requirement for further service of the amended notice of motion be dispensed with. 4. ORDER that the amended notice of motion be dismissed. 5. ORDER that the applicant's computer [that is, all devices falling within the description of paragraph 4 of the subpoena filed on 8 April 2016 addressed to the applicant] be produced to the Court no later than [a specified date] or earlier (on the terms set forth in the protocol agreed between counsel on 25 July 2016 as subsequently agreed between the parties, reproduced in paragraphs 1-7 inclusive of Exhibit "C1") to the defendant's expert. 6. ORDER that, if the computer is produced to the Court, the defendant's expert have access to it for the purpose of conducting a forensic examination on the terms set forth in the protocol. 7. ORDER that the applicant pay the costs of the amended notice of motion 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: 25 November 2016