Supreme Court New South Wales Medium Neutral Citation: Griffiths v German [2017] NSWSC 1392 Hearing dates: 22 September 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Equity - Family Provision List Before: Parker J Decision: Subpoena to deceased's solicitors allowed and subpoena to deceased's hospital set aside Catchwords: Evidence – family provision – subpoenas seeking documents concerning circumstances of execution of will – setting aside – legitimate forensic purpose – fishing expedition – privilege – claim for privilege not asserted by recipient of subpoena – entitlement to refuse to produce documents Legislation Cited: Evidence Act 1995 (Cth), s 121 Uniform Civil Procedure Rules 2005 (NSW), rr 1.9, 33.4 Cases Cited: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 d'Apice v Gutkovich; Estate of Abraham (No 1) [2010] NSWSC 1336 National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35 Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Urquhart v Lanham [2003] NSWSC 109 Category: Procedural and other rulings Parties: Glenys Griffiths (Plaintiff/Respondent) Rosalyn German (Defendant/Applicant) Representation: Counsel: PA Tierney (Plaintiff/Respondent) D Stretton (Defendant/Applicant) Solicitors: Withstand Lawyers (Plaintiff/Respondent) Colquhoun Murphy Lawyers (Defendant/Applicant) File Number(s): 2017/220494 Publication restriction: Nil Judgment 1. This judgment concerns an application by the defendant to have subpoenas issued at the request of the plaintiff set aside. 2. In the substantive proceedings, the plaintiff makes an application for a family provision order out of the estate of the late Warwick Arthur Harding of Mogo on the south coast of New South Wales, who died in July 2016. I will refer to Mr Harding as the "deceased". 3. By his will, the deceased appointed the defendant as his executrix and trustee. He left his "Locksmith Equipment and associated items" to the Locksmiths Guild of Australia Inc (I assume that the deceased was, or had previously been, a locksmith) and the rest of his estate to the defendant. The deceased apparently had no immediate family and the defendant appears to have been a friend of his. 4. The deceased's will was made while he was in hospital and was executed on the day before he died. The plaintiff claims to have been a long standing friend of the deceased and to have been told by the deceased that she would benefit from his estate. She also claims that the deceased told her of the defendant in 2015, but at the time said that he had known the defendant in about 2007 but had not kept in contact with her for years and spoke disparagingly of her. 5. The first subpoena which is the subject of this application is addressed to a firm of solicitors known as Delves & Wain, who acted for the deceased in the preparation of the will. The second is addressed to the hospital where the deceased died. I deal in more detail below with the terms of the subpoenas. It is sufficient for present purposes to say that the plaintiff is seeking to explore the circumstances in which the will was made and the deceased's medical condition at that time. 6. Neither subpoena has in fact been answered. There is some suggestion that the subpoenas were not validly served but I do not need to go into that for present purposes. The application has been conducted before me on that basis and I will determine as a matter of principle whether compliance with the subpoenas should be required. 7. The application is made under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 33.4 which provides: 33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. 1. No objection has been taken by the recipient of either subpoena, but it is clear that UCPR r 33.4(1) confers power on the Court to set the subpoenas aside on the application of the defendant, as a party, if a proper case is shown for doing so. Subpoena to solicitors 1. The subpoena to the solicitors seeks production of the following: … 2. All documents relating to the creation of and/or dealing with, a will ('the will") for the late Warwick Harding ("the deceased") in 2016, including (without limitation): a. Any record of contact or communication with you and/or any other person in the firm of Delves and Wain solicitors ("the firm") by any person in relation to either the deceased or the will between 1 June 2016 and 31 October 2016; b. Any record of instructions given to the firm, or any member of the firm by the deceased or any other person on his behalf in relation to the will; c. Any record of any advice given to the deceased or anyone on his behalf in relation to either the will or any prior will made by the deceased; d. Copies of all prior wills and draft wills prepared for or held by the firm in relation to the deceased; e. Copies of all safe custody records relating to the will and any prior will; f. Any record of any attendances upon the deceased including any file notes of the same; g. Any record relating to any enquiry as to the will and/or its release; and h. All accounting records (including time sheets and time records, invoices and receipts relating to the preparation of the will. 1. In a family provision application, the Court usually gives considerable weight to the testamentary judgment reflected in the deceased's will, unless there is reason to think that the judgment has somehow miscarried: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127]. For this reason, the defensibility of the deceased's testamentary intentions as reflected in the will is often of central importance in such an application. Counsel for the defendant submitted that the subpoenas were of a "fishing" nature. I do not agree. Counsel for the plaintiff pointed to a grammatical mistake in the will: the gift of the residue was made in favour of "such of [sic] ROSLAYN GERMAN", indicating that at some point other beneficiaries may have been included. In any event, in my opinion, the very fact that the will displaced earlier intentions of the deceased (according to the plaintiff's evidence) and was made the day before the deceased's death is enough to invite reasonable inquiry as to how it came to be made. 2. In the course of argument, I raised a question as to whether, in the absence of any challenge to the deceased's testamentary capacity, it was open to a party to require production of documents going to the deceased's mental state at the time the will was executed. On reflection, I do not think this matters. Even if there may ultimately be some argument about the admissibility of some of the documents covered by the subpoena, I do not think that deprives the subpoena of its legitimate forensic purpose. 3. Counsel for the defendant next invited me to conclude that the documents in question would be privileged and that it was accordingly futile to require production. In response, counsel for the plaintiff relied on Evidence Act 1995 (Cth), s 121, which provides: 121 Loss of client legal privilege: generally (1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died. (2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court. (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person. 1. Counsel for the plaintiff also argued that privilege had been (or, perhaps, would inevitably be) lost. Counsel suggested that the defendant would rely on the will in accordance with the Slack v Rogan principle set out above and that this would result in a waiver of any such privilege. 2. The process of obtaining documentary evidence for trial is a three-stage one. The first stage is the production by the subpoena recipient of the documents which are the subject of the subpoena to the Court. The production of the documents to the Court puts the documents under the Court's control but does not necessarily give any party the right to inspect the documents; the question of inspection is the second stage. The third stage is the tender at the trial of any of the documents so produced and inspected. It is important to maintain this distinction: the considerations which apply at each stage are different: National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 381. 3. Traditionally, the question of whether the documents are privileged has been determined at the second stage, namely at the point of inspection of the documents once produced to the Court. Thus, in general, it was no answer to a subpoena to assert the documents were privileged; the proper course was for the documents to be produced to the Court (if there was no other proper ground for refusing to do so), with any claim for privilege to be made at the point of determining whether any of the documents should be made available to the parties for inspection. That traditional approach has been altered to some extent by UCPR r 1.9, which provides: 1.9 Objections to production of documents and answering of questions founded on privilege (1) This rule applies in the following circumstances: (a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, (b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer, (c) if a question is put to a person in the course of an examination before the court or an authorised officer. … (3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information. (4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled. (5) For the purpose of ruling on the objection: (a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and (b) cross-examination may be permitted on any affidavit used, and (c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document. (6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest. 1. Where UCPR r 1.9 applies, a party who receives a subpoena and claims privilege over documents covered by the subpoena is entitled to refuse to produce the documents at all, and the Court is not entitled to require production unless and until it has ruled on any claim for privilege. However, in the present case, the privilege is not being asserted by the solicitors as recipients of the subpoena, but by the defendant as the party allegedly entitled to maintain the privilege. Accordingly, UCPR r 1.9 does not apply: Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 at 532 [28]. 2. Before me, reference was made to previous authorities that have considered the application of s 121. In Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151, Brereton J expressed the view that it applied to the first and third stages, but not the second. Subsequently, s 131A was introduced. Initially, a number of decisions held that this made no difference. But in Singtel Optus, White J held that as a result of s 131A, s 121 was applicable at the second stage as well as the first and third stages. In the absence of any submission to the contrary, I propose to follow what White J said. 3. The Court's power under UCPR r 33.4 is not relevantly limited and I accept that, if satisfied that documents covered by a subpoena would clearly be subject to a valid claim for privilege, the Court might set the subpoena aside rather than require the party asserting the privilege to wait until the point of inspection to make the claim. However, in my opinion, the Court would only do this in a very clear case. It is always difficult to make determinations about the relevance and privileged status of documents in advance of their production and it is not always possible to predict the further course of proceedings which may result in privilege being abandoned or waived. In my opinion, except in a very clear case or as required by UCPR r 1.9, the proper approach is to leave questions of privilege to be addressed in the ordinary way at the second stage, where the documents actually covered by the subpoena are known and evidence and submissions can be put to the Court in that context. 4. I do not think that the present case is a clear one which calls for a summary approach. I think there are at least three reasons why this is so. 5. In the first place, not all of the documents which are the subject of the subpoena are necessarily privileged. Previous wills of the deceased are not necessarily privileged (Urquhart v Lanham [2003] NSWSC 109 at [5], [7]) nor are the solicitors' own time records: R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. 6. Secondly, s 121 may indeed be applicable. In d'Apice v Gutkovich; Estate of Abraham (No 1) [2010] NSWSC 1336, White J held that s 121 does not affect the entitlement of an executor or putative executor to claim privilege in his or her own right where the privileged documents or communications are relevant to the intentions or competence of the deceased: at [17]. At present, there is no evidence before me about the circumstances in which the solicitor visited the hospital and took instructions. I do not know whether or not that involved the defendant, or indeed anybody else. It is enough to say at this stage that it is by no means certain that all of the communications between the deceased and his solicitor would necessarily be privileged. 7. Thirdly, I accept that it is possible that the waiver may arise if privilege does exist. I do not necessarily accept that mere reliance by the defendant on the will would necessarily amount to a waiver, but it all depends upon the forensic circumstances at the point of trial. It is possible that the defendant will ultimately seek to place weight on a specific aspect of the will or the circumstances in which it was executed, and that that will give rise to a waiver of such privilege as might otherwise exist. 8. For these reasons, I will decline to set aside the subpoena to the solicitors. Subpoena to hospital 1. The subpoena to the hospital seeks the following documents in relation to the deceased's treatment: all documents regarding the above mentioned patient including but not limited to medical records, medical notes, logbooks, statements, telephone records and/or transcript of calls regarding the above mentioned patient. 1. As I have mentioned, in a general sense the forensic purpose behind the subpoena to the hospital is the same as the forensic purpose behind the subpoena to the solicitors. However, there is, in my opinion, a significant difference. The central issue is the deceased's testamentary intentions at the time the will was executed. The very task of the solicitor was to prepare the deceased's will and it would be expected that the solicitor would have made and retained documents bearing directly on this issue. The same cannot be said of the hospital. Of course, the hospital could have recorded statements made by the deceased which might bear on the question, but if so, that would be entirely incidental to the hospital's function which was to provide medical care to the deceased. 2. In my opinion, it is not sufficiently "on the cards" that the hospital would have records of the deceased's testamentary intentions to justify the issue of the subpoena. My conclusions are supported by the form of the subpoena. It does not seek to limit the communications concerning the deceased's testamentary intentions. If the subpoena were permitted, it would require production of all of the deceased's medical records whether or not such records have any bearing on the deceased's testamentary intentions. Counsel for the plaintiff hypothesised certain circumstances in which the deceased might have said or done something in the hospital which could be relevant to the question of his testamentary intentions, or to his capacity more generally. But there is no evidence that any such events actually occurred and to my mind this underlines that the subpoena to the hospital is a fishing expedition. Conclusion and orders 1. For these reasons, I conclude that: (1) the application to set aside the subpoena to the solicitors should be refused; (2) the application to set aside the subpoena to the hospital should be allowed. 1. The parties have enjoyed mixed success and it seems to me that the appropriate order is that there be no order as to the costs of the application. I will, however, grant liberty to either party to apply for some different order. 2. The orders of the Court are: 1. Order that the subpoena to produce addressed to Bateman's Bay Hospital and dated 8 September 2017 be set aside. 2. Order that the defendant's notice of motion filed 11 September 2017 be otherwise dismissed. 3. No order as to costs, with the intent that each party bear its own costs of the motion. 4. Grant liberty to apply with respect to costs, such liberty to be exercised within 28 days of today's date. ********** 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: 13 October 2017