D'ANGELO v Coleiro - [2020] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of PASITSCHNYK
D'ANGELO & ANOR v COLEIRO & ORS
[2020] SASC 99
Judgment of The Honourable Justice Bampton
16 June 2020
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS - GRANT OF SINGLE PROBATE - PARTICULAR CASES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - EVIDENCE - CIRCUMSTANCES AROUSING SUSPICION
Application for production and examination of a laptop alleged by the applicants to have created testamentary documents – whether directly relevant to matters in issue – where testamentary documents created by laptop are substantially different to earlier purported testamentary documents – production and examination would assist the Court in determining the last testamentary expression of the deceased.
Held: application granted, order for production and examination in accordance with the “Digital Examination Protocol”.
Probate Rules 2015 (SA) r 52, r 64; Supreme Court Civil Rules 2006 (SA) r 147; Wills Act 1936 (SA) s 12, s 8; Family Relationships Act 1975 (SA) s 11B; Public Trustee Act 1995 (SA) s 9, referred to.
Tobin v Ezekiel (2012) 83 NSWLR 757; Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074; Career Step, LLC v TalentMed Pty Ltd [2017] FCA 492, discussed.
Roos v Karpenkow (1998) 71 SASR 497; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Evans Deakin Pty Ltd v Orekinetics Pty Ltd (2002) 2 Qd R 345; Norm Engineering Pty Ltd v Digga Australia Pty Ltd [2005] FCA 1378, considered.

In the Estate of PASITSCHNYK
D'ANGELO & ANOR v COLEIRO & ORS
[2020] SASC 99
Testamentary Causes Jurisdiction: Application

BAMPTON J: Denys Wlademir Pasitschnyk (“Denys”) died on 9 April 2016. He died possessed of property estimated to be worth around $1 million (“the estate”).
I am asked to determine an application (FDN 57) for an order requiring production of electronic devices to be examined by the forensic expert, Jean Pierre Du Plessis, in accordance with a proposed digital examination protocol (“the application”). The application has been made as the applicants in PROMA‑18-20 have deposed that a laptop was used to create the testamentary document they propound (“the laptop”). Before considering the application, I will detail the unwieldy course of this matter.
The first testamentary cause in Denys’ estate was the entering of a caveat on 1 September 2016 by Susan Coleiro (“Ms Coleiro”) to ensure that no grant was sealed without notice to her. Ms Coleiro maintains that Denys died intestate and at the time of his death he was in a domestic relationship with her.
Since the entering of Ms Coleiro’s caveat three other persons have entered caveats, each of whom claim to be good friends…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASC 99
Decision Date: 16 June 2020

CaseChat Overview and Summary

In the matter of D'ANGELO v Coleiro, the applicants, William Harrison and Carmen D'Angelo, sought an order for the production and examination of a laptop. The applicants alleged that the laptop contained testamentary documents created by the deceased, Denys. The respondents, including the World Wide Fund for Nature (WWF) and Ms Coleiro, opposed the application on various grounds. The central dispute revolves around the validity of the 2016 testamentary documents and the potential existence of other testamentary documents. The legal issues the court had to decide included whether the production and examination of the laptop would be directly relevant to the matters in issue, whether the application was premature given the roles of the parties had not yet been determined, and whether the potential breach of legal professional privilege and confidentiality outweighed the utility of the examination.

The court considered the principles established in prior cases such as Cadence Australia Pty Ltd v Chew and Career Step, LLC v TalentMed Pty Ltd, which allow for the inspection of a computer hard drive if there is a prima facie case that the data may be relevant. However, the court found that the application was premature, as the roles of the parties had not yet been determined and there had been no identification of issues, pleadings, or orders for general disclosure. Furthermore, the court was not convinced there was a prima facie case that the data on the laptop would assist in determining the case, as there was no evidence that the laptop contained any relevant information. The court also considered the potential breach of legal professional privilege and confidentiality, and whether the cost of the proposed examination was proportionate to its utility. The court concluded that the application should be refused, as there was insufficient evidence to support the relevance of the laptop's contents to the proceedings and the potential breach of privilege and confidentiality outweighed any utility of the examination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was submitted that, despite having “clear instructions to … all stay together”,[2] the applicants and their solicitor went into Denys’ bedroom alone as Mr Harrison “believed that a testamentary document was on the bedside table”.[3] The 8 April 2016 document was thereafter discovered.[2] Affidavit of Lesia Katerine Iwaniw sworn 6 February 2020, exhibit LKI-11 at p 21-22.[3] Affidavit of Lesia Katerine Iwaniw sworn 6 February 2020, exhibit LKI-11 at p 21-22.Mr Harrison’s evidence The WWF referred to Mr Harrison’s contradictory evidence. It was pointed out that Mr Harrison’s most recent affidavit sworn 13 March 2020 contradicts his previous evidence relating to the telephone call with Denys. Mr Harrison alleged that his telephone call was the genesis of the drafting of the 6 April 2016 and 8 April 2016 documents. In his affidavit sworn 5 April 2018, Mr Harrison stated:The deceased had been diagnosed with cancer and he told me in a phone call on 6 April 2016 that he realised his time was short and he wanted to finalise his will. It was submitted that despite this, and following an application for disclosure of Mr Harrison’s telephone records, Mr Harrison deposed in the affidavit sworn on 13 March 2020 at [1]-[2]:The phone call Denys made talking about his diagnosis and his thoughts was in and around March 2016 …… To be clear, there was not much phone calls between us in the last weeks as Carmen and I William was at the home caring for the deceased. The WWF submitted that the circumstances of the 6 April 2016 and 8 April 2016 documents (“the 2016 documents”) trigger a well-founded suspicion that they are not valid for the following reasons:(1)A beneficiary drafted the 2016 documents;(2)The 2016 documents were in different terms to Denys’ prior purported testamentary documents which appear to follow a similar form;(3)The 2016 documents were not executed by Denys;(4)The 6 April 2016 document is a copy;(5)The 8 April 2016 document was discovered by Mr Harrison – a beneficiary – during a meeting at Denys’ property in August 2018;(6)The method of discovery of the 8 April 2016 document was contrary to the instructions of the Public Trustee despite the solicitor for Mr Harrison being in attendance;(7)The evidence provided by Mr Harrison relating to the purported telephone call with Denys is inconsistent;(8)The 6 April 2016 document and 8 April 2016 document are different; and(9)Mr Harrison’s affidavits are inconsistent, incomplete, and unclear. It was asserted that on 21 August 2018, Ms Coleiro served a notice to produce, amongst other things, the laptop and that the laptop has not been produced. The WWF referred to the order I made on 12 February 2020 that the laptop be produced for inspection and asserted that Mr Harrison’s solicitor refused inspection on 6 March 2020. It was submitted that forensic examination of the laptop may afford the Court and the respondents a chronology of events regarding the creation and custody of the 2016 documents.

Decision

Reasons for decision

The applicants also rely on decisions, referred to in [57] to [59] of their submissions, establishing that courts have held that a prima facie case had been made out that there may be material on the relevant computer. In Cadence Australia Pty Ltd v Chew,[12] the defendant had discovered some documents from the computer but then swore on oath that there were no others. In those circumstances, there was a prima facie basis to inspect the hard drive. In Career Step, LLC v TalentMed Pty Ltd,[13] there was a sufficient basis on the evidence before the Court to say that inspection of the material would assist. Applying principles derived from these decisions, the applicants submitted that the application should be refused because:(1)The application is premature. The roles of the parties have not yet been determined. The WWF, the maker of the application, has not even stated that it is propounding a will. There has been no identification of issues, no pleadings, and no orders for general disclosure.(2)There is no prima facie case or sufficient basis to say that the data stored on this drive will assist the determination of the case. It is not a case like Cadence where the discovery of some information from a particular computer hard drive meant that there was a basis to test whether there was other information. The only evidence before the Court is that this drive was not the drive used in the laptop computer at the time that the 2016 documents were made. For all intents and purposes, the laptop – it was submitted – is a new document, the shell remaining the same. There is no material from any respondent to say that this “new computer” contains any information relevant to the creation of the documents.(3)The Court may not order an examination that would require a breach of legal professional privilege. The proposed examination would expose data, by way of files but possibly also fragments, that contains information that would be the subject of legal professional privilege. Mr D’Angelo and Mr Harrison argued the proposed order has not formulated a method for examination that would allow that privilege to be preserved.(4)Examination must be weighed up against the factors in favour of Mr Harrison. It was contended that, given the nature of the case, the utility can only be to identify that Mr Harrison is lying about the creation of the 2016 documents and the replacement of the drive. This matter is is different from cases – such as Evans Deakin Pty Ltd v Orekinetics Pty Ltd,[14] Norm Engineering Pty Ltd v Digga Australia Pty Ltd,[15] and Cadence – where the utility went to a substantive issue in the proceedings. It was submitted that documents going to the credit of a party are not ordinarily discoverable in that they are not directly relevant and a similar reluctance to make disclosure should apply here. Further, it was submitted that the factors against examination on this basis are:(a) parts of the material are subject to legal professional privilege, and there is no way to conduct an examination without waiving that privilege; and(b) parts of the material are confidential and no proposed orders have put forward regarding preservation of confidentiality.(5)There is no evidence as to how much the proposed examination will cost and whether the cost is proportionate to the utility that the examination would have.[12] [2008] NSWSC 1074.[13] [2017] FCA 492.[14] (2002) 2 Qd R 345.[15] [2005] FCA 1378.Conclusion

Ratio Decidendi

Legal Principle Established

The Public Trustee applied pursuant to s 9(1)(e) of the Public Trustee Act 1995 (SA) for a grant of administration in the estate on 24 May 2017 on the basis Denys died intestate and no person had obtained a grant of administration within three months of his death.Ms Coleiro’s application for letters of administration Ms Coleiro lodged an application for letters of administration in the estate on 8 November 2017. It would appear the filing fee has not been accepted and a file number has not been allocated.The Public Trustee By letter dated 29 November 2017, the Crown Solicitor’s Office (“the CSO”), acting for the Public Trustee, wrote to the Registrar of Probates stating that:·Denys died intestate and was not known to have any issue or any surviving family members in Australia.·The Public Trustee intermeddled in the estate through securing the estate assets.·The Public Trustee had instructed genealogists to attempt to locate potential beneficiaries of the estate, with those investigations anticipated to begin in the Ukraine.·The Public Trustee took no position in the proceedings brought by Ms Coleiro for a declaration of domestic partnership.·The Public Trustee was contacted by Mr Makris, who asserted that he was an acquaintance of Denys and that false information had been provided to the Magistrates’ Court in support of Ms Coleiro’s application for a declaration of domestic partnership.·Both the Public Trustee and Ms Coleiro had applied for a grant of letters of administration.PROCA-17-180 William Harrison entered a caveat on 29 November 2017 which was renewed on 22 July 2018.PROCA-18-14 Carmen D’Angelo entered a caveat on 12 January 2018 which was renewed on 10 July 2018.The Makris summons Mr Makris issued a summons on 4 January 2018, pursuant to r 52(9) of the Probate Rules 2015 (SA) (“the Probate Rules”) in PROCA-17-163 naming Ms Coleiro as defendant and seeking an order that “the document containing the testamentary intentions of” Denys dated 6 April 2016 be admitted to probate. In his affidavit filed in support sworn on 21 December 2017, Mr Makris deposed that he was a close friend of Denys and that Ms Coleiro and Denys were not in a domestic partnership as at the date of Denys’ death. Mr Makris also asserted that Denys did not die intestate, that Denys told him he had written a will in about 2010 and that Denys told him in 2015 that he wanted to rewrite his will to provide for his friends Mr D’Angelo and Mr Harrison to express his great appreciation to them. Mr Makris also deposed in his affidavit that he was aware that Denys dictated his wishes to Mr Harrison and that Mr Harrison typed them up for Denys to sign. The summons was also supported by an affidavit of Mr Harrison sworn on 15 January 2018, wherein Mr Harrison deposed that he strongly objected to the sealing of a grant to Ms Coleiro on the basis that he rejected her claim that she was Denys’ domestic partner at the date of his death. He alleged that he and Mr D’Angelo were caring for all of Denys’ needs “in the way of all domestic and business duties until our friend passed”. Mr Harrison asserted that Denys did not die intestate and at [7] he deposed:Has i understand there was a will done in 2010 but has not been found and the deceased was planning to make a new one on the 8th of April 2016, which I drafted for him on the 6th April 2016 .which i give to home, a hard copy and on a flash drive, so as to take to the lawyers on the 8th April 2016., He ask me to add his address to the draft, which i did the 8th and dated, i give this to him that day which i believe he put in his bedroom,. I have a copy of the first draft which is the same less his address.