Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Robinson v Robinson [2019] NSWCA 180 Hearing dates: 17 July 2019 Decision date: 17 July 2019 Before: Basten JA Decision: (1) Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019. (2) Costs in the appellant's notice of motion of 3 July 2019 to be costs in the cause. (3) Order that the subpoenas to produce issued on behalf of the appellant directed to: (a) Bailey Dunleavy of Penmans Solicitors, filed 18 June 2019; and (b) Department of Human Services – Medicare, filed 18 June 2019, be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). (4) The costs of the first respondent's notice of motion of 10 July 2019 will be costs in the proceedings in this Court. Catchwords: CIVIL PROCEDURE – appeal – subpoenas – application to set aside – subpoena seeking evidence of capacity to enter deed – material not put before the primary judge – Court of Appeal unlikely to undertake a trial of evidence not previously considered Legislation Cited: Succession Act 2006 (NSW), ss 95, 96 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 33.4 Category: Procedural and other rulings Parties: Sarah Jane Robinson (Appellant) Leigh Henry Robinson (First Respondent) Timothy John Robinson (Second Respondent) Representation: Counsel: Mr J E F Brown / Mr N Condylis (Appellant) Mr A F Stevens (First Respondent) Solicitors: Elizabeth Fleming & Associates (Appellant) Penmans Solicitors (First Respondent) Teece Hodgson and Ward (Second Respondent) File Number(s): 2018/223271 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Date of Decision: 17 April 2018 Before: Pembroke J File Number(s): 2017/120274 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: There are before the Court two notices of motion in an appeal by leave from a judgment by consent in the Equity Division approving a settlement of a family provision claim under s 95 of the Succession Act 2006 (NSW). The first motion sought leave to file an amended notice of appeal; that has been agreed to and orders have been made. The amendments reflected the limited basis of the grant of leave. There is now no challenge in relation to any absence of reasons given by the trial judge for making the orders the subject of the appeal. That is understandable in circumstances where the parties before the trial judge sought the orders by consent and neither side sought reasons. 2. Secondly, the first respondent seeks, by notice of motion filed 10 July 2019, to set aside two subpoenas issued by the appellant on 18 June 2019 addressed to (i) the employed solicitor at Penmans Solicitors handling the matter for the first respondent, and (ii) an officer of the Department of Human Services, Medicare. 3. The appellant brought a claim for provision under the Succession Act with respect to her father's estate. The principal asset in the estate was the father's half share in a property jointly owned by him and the appellant's mother, Dr Portia Robinson. Dr Robinson obtained her husband's half share by survivorship on his death. Shortly thereafter, she transferred the whole property by deed into the joint names of herself and the first respondent, her son Leigh Robinson, with a 50 year lease being granted to her by the joint owners. The appellant challenged the validity of the deed disposing of the property, including the half share which passed on the death of her father. 4. The primary, if not sole, purpose of the subpoena to Medicare, counsel for the appellant explained, was to identify the source of medical treatment which might have been received by the appellant's mother when she transferred the property. 5. There is a second issue in determining whether a deed executed by the appellant releasing her right to apply for a family provision order in relation to her father's and mother's estates was fair and reasonable, in the terms approved by the Court, having regard to the possibility that the mother may change her testamentary disposition in the future. A relevant consideration is that a change of circumstances does not provide a basis under s 96 of the Succession Act for revocation of the approval of a release given under s 95 in relation to an existing or a prospective family provision claim. 6. Several categories of document covered by the second subpoena were partly a response to an affidavit filed by the solicitor for the first respondent, Ms Bailey Dunleavy, explaining the basis upon which the first respondent seeks to pursue a summons for leave to cross-appeal. The affidavit set out the steps taken in considering the issue of the cross-summons and in identifying the basis upon which the first respondent (and possibly the mother) may have agreed to the impugned deed and the consent orders. 7. Ms Dunleavy annexed documents from the file maintained by the solicitors. It appeared from her affidavit that part only of the solicitor's file had been annexed to the affidavit. The purpose of subpoenaing the solicitor's file was to obtain the material which had not been annexed, in order to consider what response should be made to the evidential material contained in the affidavit. This material could be relevant if this Court were to determine the question raised under s 95(4) of the Succession Act, namely whether this was a fair and reasonable agreement that should properly have been approved. 8. The appellant's complaint is that the judge proceeded without having before him relevant material and without giving consideration to factors directly relevant to approving the release of family provision entitlements. If that challenge were upheld it is not likely that this Court would exercise the power for the first time. The very fact that there are outstanding evidential issues suggests that this is not a case in which the Court would be minded to embark on a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW). 9. In other words, once satisfied that there had been a miscarriage of justice, absent the material now sought to be put before the Court, it seems to me almost inevitable that there would need to be a remittal to the Equity Division to determine the application to approve the releases under s 95 at a hearing where appropriate evidence could be called and submissions made. 10. The reason why that is expedient as well as necessary is that if the subpoena with respect to the solicitor's documents were not set aside, there would likely be disputes as to the relevance of some material, as foreshadowed by counsel, and possibly, indeed I would think likely, disputes as to whether legal professional privilege has been waived with respect to all documents which are not annexed to Ms Dunleavy's affidavit. 11. In those circumstances, the issue of the subpoena seeking access to the solicitor's files and documents relating to assets owned by the mother or under her control would result in this Court being invited to undertake for the first time a trial of the very issue which is said not to have been addressed below. The subpoena to Medicare is a preliminary step in a similar investigation. 12. In those circumstances, it is appropriate that the two subpoenas be set aside as not addressing issues which would arise on the appeal in this Court. 13. That may have consequences for the first respondent in seeking to rely upon the affidavit of Ms Dunleavy to support the cross-summons seeking leave to cross-appeal. In the absence of the subpoenaed material which would allow the content of Ms Dunleavy's affidavit to be explored at a hearing, it may well be that leave would not be granted to rely upon that affidavit. I note that the primary purpose of that summons is to ensure that, if the appellant be successful in setting aside the approval granted by consent orders 10 and 12 (releasing the appellant's family provision entitlements), then all of the consent orders made by the primary judge would be set aside, with possible consequences for the deed which have not yet been explored. There is, further, a real issue as to whether the material contained in Ms Dunleavy's affidavit would be relevant in determining the contractual intentions of the parties in entering into the deed and the consent orders. 14. In those circumstances, I propose to make the orders sought in the first respondent's notice of motion of 10 July, setting aside the subpoenas to the first respondent's solicitors and to Medicare filed on 18 June 2019. Costs in both motions should be costs in the proceedings in this Court. 15. I make the following orders: 1. Grant the appellant leave to file in court an amended notice of appeal dated 17 July 2019. 2. Costs in the appellant's notice of motion of 3 July 2019 to be costs in the cause. 3. Order that the subpoenas to produce issued on behalf of the appellant directed to: 1. Bailey Dunleavy of Penmans Solicitors, filed 18 June 2019; and 2. Department of Human Services – Medicare, filed 18 June 2019, be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). 1. The costs of the first respondent's notice of motion of 10 July 2019 will be costs in the proceedings in this Court. 2. Put the matter in the Registrar's list on Monday, 22 July 2019 for the purposes of varying the date of the hearing of the appeal. ********** 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: 29 July 2019