D'ANGELO v Coleiro
[2020] SASC 99
•16 June 2020
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 99Testamentary 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 of Denys and each of whom dispute the existence of a domestic relationship between Denys and Ms Coleiro. Two of those persons, Carmen D’Angelo and William Harrison (“the applicants”) issued their summons pursuant to s 12(2) of the Wills Act 1936 (SA) (“the Wills Act”) in PROMA‑18-20 originally seeking to propound a copy of Denys’ will instructions alleged to have been given on 6 April 2016. They now seek the admission of will instructions dated 8 April 2016 or in the alternative the 6 April 2016 instructions. They claim that they found the 8 April 2016 document at Denys’ home during an inspection by officers of the Public Trustee. It is the laptop that is said to have created the 6 April and 8 April 2016 documents that is the subject of the application.
In an affidavit sworn 2 August 2019, Mr Brian McIvor, who also claims to have been a friend of Denys, deposed that Denys made wills in 2001, 2004, 5 September 2006, 2008 and 2010. Mr McIvor deposed that he was given the original of both the 5 September 2006 document (“the 2006 document”) and the 2008 document but that he has lost the 2008 document. Mr McIvor has produced to the Court the 2006 document and seeks to propound a reconstruction of the 2008 document. The whereabouts of the 2001, 2004, 2008, and 2010 documents are unknown.
The only documents that have been produced to the Probate Registry are the 2006 document and a copy of the 6 April 2016 document. As set out in the table below, the 2006 document is propounded by Anna Hadaj, a family friend of Denys, and a reconstruction of the 2010 document is propounded by Larissa Gibbs, a tenant in a property owned by Denys. The 2001 and 2004 documents referred to by Mr McIvor are not propounded by any party.
In total, it is alleged that Denys made five wills and gave instructions for a will on 6 and 8 April 2016. None of the documents produced comply with the requirements of s 8 of the Wills Act. On my count, 35 affidavits (three in PROCA‑17-163 and 32 in PROMA-18-20) have been filed in relation to Denys’ estate.
The proceedings in PROMA-18-20 began as a contest between two applicants and one respondent. The following 14 parties are now before the Court. The table below details their role and the document they seek to propound or benefit under:
Party name Document Party Role Carmen D’Angelo Propounding the document dated 8 April 2016 or in the alternative 6 April 2016 Applicant 1 William Harrison Applicant 2 Susan Coleiro Intestacy (obtained declaration that Denys was in a domestic partnership with her as at date of his death) Respondent 1 Brian McIvor Propounding a reconstruction of the 2008 document Respondent 2 Anna Hadaj Propounding the 2006 document Respondent 3 Larissa Gibbs Life tenant of the Pennington property under 2006, 2008, and 2010 documents (propounding a reconstruction of the 2010 document) Respondent 4 World Wide Fund for Nature Australia Benefits under the 2006 document and supports the propounding by Anna Hadaj Respondent 5 Royal Zoological Society of SA Benefit under the 2008 and 2010 documents Respondent 6 Animal Welfare League of SA Inc Respondent 7 Alex Hadaj Benefits under 2006 document only Respondent 8 Marc Zywaczewski Benefits under 2006 document only Respondent 9 Cees Paul Boekel Benefits under 2006 and 2008 documents Respondent 10 Luke Hadaj Benefit under 2006, 2008, and 2010 documents Respondent 11 Lana Hadaj Respondent 12 The following details the procedural history of the matter
PROCA-16-132
The caveat entered by Ms Coleiro on 1 September 2016 expired 1 March 2017.
PROCA-17-48
Ms Coleiro entered a fresh caveat on 4 April 2017 which was renewed on 4 October 2017 and 4 April 2018.
The s 11B of the Family Relationships Act 1975 (SA) declaration
On 28 June 2017, Ms Coleiro obtained a declaration pursuant to s 11B of the Family Relationships Act 1975 (SA) in the Magistrates Court that Denys was in a domestic partnership with her as at the date of his death.
PROCA-17-163
Eustratios Makris (“Mr Makris”) entered a caveat on 20 October 2017 which was warned by Ms Coleiro on 8 December 2017 and subducted on 1 March 2018.
PROBA-17-55
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.
Mr D’Angelo also swore an affidavit dated 17 January 2018 in support of Mr Makris’ summons. Mr D’Angelo deposed that Ms Coleiro was not the domestic partner of Denys at the time of his death and that he and Mr Harrison were caring for all Denys’ needs “in the way of all domestic and financial duties until our friend sadly passed away”. Mr D’Angelo also asserted that Denys did not die intestate.
The D’Angelo and Harrison summons (PROMA-18-20)
This action was commenced by way of summons by the applicants on 9 February 2018 seeking an order pursuant to r 64(1) of the Probate Rules 2015 (SA) and s 12(2) of the Wills Act:
That the document containing the testamentary intentions of Denys Wlademir Pasitschnyk deceased dated 6 April 2016 being exhibit “A” to the affidavit of and William Jeffrey Harrison sworn 9 February 2018 be admitted to probate as the will of the deceased.
The summons in PROMA-18-20 is supported by affidavits of Mr D’Angelo and Mr Harrison sworn on 9 February 2018. Mr Harrison deposed in his affidavit that the copy of the 6 April 2016 document in his possession was “printed as soon as I arrived home after typing the document for [Denys]”. It was submitted that the second Harrison affidavit exhibits the actual copy printed by Mr Harrison.
On 19 January 2018, Mr Parker for Ms Coleiro, Ms Yule for Mr Makris, Mr Spencer for the Public Trustee and the applicants in person appeared before the Acting Registrar of Probates at which time the following directions were made:
1.Any person who is to propound a document as containing the testamentary intentions of the deceased makes such application within 21 days of today.
2.Any such application should be notified to the other parties to these proceedings namely Treloar & Treloar, Public Trustee, Mr Makris, Mr Harrison, Mr D’Angelo.
3.Public Trustee is to notify any persons who have expressed an interest in the estate of the directions for whom Public Trustee holds details.
4.The several summonses be adjourned for further directions to 23 February 2018.
Ms Yule filed a notice of acting for Mr Makris on 23 February 2018 and forwarded a letter to the Acting Registrar of Probates stating that Mr Makris wished to withdraw the caveat he had entered.
At a further hearing before the Acting Registrar of Probates on 23 February 2018, it was ordered inter alia that:
(1)Each of the affidavits filed by the several parties in each of the applications and proceedings in relation to the estate of the deceased may be referred to and relied upon for the hearing and determination of the issues concerning the grant of administration of the estate of the deceased.
(2)At the request of the parties the several proceedings are referred to a Justice of the Supreme Court for hearing and determination.
The caveat entered by Mr Makris in PROCA-17-163 was subducted on 1 March 2018.
The matter was referred to Stanley J who convened a directions hearing on 15 March 2018. Mr Makris and the applicants were represented by Ms Yule. Ms Coleiro was represented by Mr Parker. Ms Yule informed the Court that she was instructed to act for Mr Makris to the extent of having the caveat withdrawn and the proceedings commenced by him (PROCA-17-163) dismissed. Orders were made dismissing the proceedings commenced by Mr Makris, and for the filing of further affidavits by Mr D’Angelo, Mr Harrison and Ms Coleiro.
On 5 April 2018, Mr Harrison swore an affidavit deposing that:
The deceased then told me what he wanted the will to say and I typed it on my laptop computer. I then printed the document and also put a copy on a flash drive and took both to him at his house on that same day to review.
The deceased read the document in my presence and told me he was happy with the terms of the document but wanted me to add his address. He told me that on this occasion that he was intending to go to a lawyer on 8 April 2016 to get the document made up into a will.
On 8 April 2016, I added the deceased’s address to the document I had stored on my computer and took it to him to take to the lawyer to have it prepared as a will.
Mr Harrison has subsequently clarified that the computer referred to in his 5 April 2018 affidavit is the laptop.
On 3 May 2018, Stanley J listed the matter for trial to commence on 28 August 2018. No orders were made for disclosure.
On 8 August 2018, the 8 April 2016 document which incorporated Denys’ address was claimed to have been found at Denys’ home during an inspection by the Public Trustee.
On 21 August 2018, Ms Coleiro served a notice to produce on the applicants. That notice sought that Mr Harrison produce at trial, inter alia, the laptop.
On 27 August 2018, the applicants and Ms Coleiro made an application to adjourn the trial.
On 26 September 2018, the matter came on for directions before me. I made orders by consent for the progress of the matter to trial, including points of claim, disclosure, and expert reports. The matter was set for trial in March 2019.
On 11 October 2018, a mediation took place between the applicants and Ms Coleiro. The dispute between them resolved and, by agreement, the timetable for trial preparation was not complied with.
Mr McIvor and the 2006 will
Then, on 23 October 2018, Mr McIvor produced to the Public Trustee the 2006 document which appoints Mr McIvor and Anna Hadaj joint executors. The 2006 document names Lana Hadaj, Luke Hadaj, Alex Hadaj, Mark Zywacewsky, and Cassie Boekel as beneficiaries of monetary sums and gives Larissa Gibbs:
… the use in perpetuity the premises at 12 George St Pennington subject to maintaining all expenses associated with the premises. Further that in lieu of rent, $5000 be donated to the Port Adelaide Dolphins annually.
That upon surrender of the house by Larissa Gibbs that the premises as with all other assets be sold, the proceeds to be given to the World Wildlife Fund …
On 18 September 2019, I listed the matter for hearing on 1 November 2019.
On 30 October 2019, on the application of Ms Hadaj, the hearing listed on 1 November 2019 was vacated.
All interested parties under the 2006, 2008 and 2010 documents are now respondents to the action.
On 12 February 2020, I ordered that Mr Harrison’s laptop computer, referred to in [5] of his affidavit sworn on 5 April 2018, be produced within seven days for inspection by the other parties. By interlocutory application (FDN 54), the applicants asked that this order be rescinded. I dismissed that application on 4 March 2020.
By interlocutory application (FDN 56), the applicants sought separate determination of five cascading issues regarding all testamentary documents sought to be propounded other than the document they sought to propound. In the alternative, they sought summary judgment in respect of the claims that the 2006 document and the reconstruction of the 2010 document be admitted to probate. I dismissed FDN 56 on 4 March 2020 and intimated that it was my view that “there should be a trial with respect to all documents sought to be propounded, commencing with the 8 April 2016 will instructions”. I ordered that the matter proceed to mediation involving all parties. I also adjourned FDN 57 – this application for production, examination, and disclosure – to argument. On 10 March 2020, the order for production of the laptop made on 12 February 2020 was stayed until further order. On 23 March 2020, it was agreed that the application be determined on the papers.
The second summons (13 February 2020)
On 13 February 2020, the applicants filed a second summons seeking an order pursuant to s 12(2) of the Wills Act admitting to probate Denys’ 8 April 2016 document or in the alternative the 6 April 2016 document.
The application for production, examination, and disclosure (FDN 57)
WWF for Nature Australia (“the WWF”), supported by the Royal Zoological Society of SA (“the Zoo”) and Animal Welfare League of SA Inc (“the AWL”), makes the application seeking production and examination in accordance with a proposed digital examination protocol of:
(a)the laptop computer referred to in Mr Harrison’s affidavits;
(b)any removable hard disk drive and/or any USB drive referred to in Mr Harrison affidavits;
(c)any other computer, electronic device, hard disk drive, removable hard disk drive, or USB drive that contains or contained the documents dated 6 April 2016 or 8 April 2016 referred to in Mr Harrison affidavits, or copies or versions thereof (“the files”); and/or
(d)a copy of any back up of the files (whether by physical media, in the cloud, or otherwise).
The devices (a) to (d) above are referred to as “the devices”. Orders for disclosure of documents relevant to the devices, including any repair and removal of the hard disk in June 2017, in addition to Mr Harrison’s telephone records for the period 6 to 8 April 2016, are also sought.
The WWF stated in its written submissions that on 20 March 2020 a meeting was held with the suggested forensic expert, Mr Du Plessis. The meeting was attended by Ms Yule and Mr Ower QC for the applicants, Mr Taylor for the WWF, and Mr White for the Zoo and the AWL. During the meeting, Mr Du Plessis explained that he is not willing to perform the forensic searches on a live computer and that a clone or a copy of the drive is required because:
(1)Data is volatile. Each time a computer is turned on, data changes;
(2)Solid state hard disks (as is in Mr Harrison’s laptop computer) are particularly vulnerable due to the way in which they operate. Mr Du Plessis stated that “there is no way I want to turn on that machine” due to the solid state hard disks.
Mr Du Plessis stated that there would be no utility in forensically examining the laptop computer without creating a clone of the hard disk. Once a clone has been created he could perform an index search and a live search. The WWF submitted that Mr Du Plessis would employ various protocols and mechanisms to protect the privilege Mr Harrison claims over information stored on his laptop computer. The protocol to be adopted is detailed in WWF’s proposed digital examination protocol.
The WWF submitted that, despite prolonged litigation, the state of the applicants’ pleadings is dire and that the second summons filed on 13 February 2020 simply attaches a document to propound without a supporting affidavit. It was pointed out that in the usual course, a detailed affidavit explaining the provenance of the document would be filed. It was submitted that the evidence provided by Mr Harrison as to the creation and custody of the 6 April 2016 and 8 April 2016 documents is insufficient, incomplete, and unclear.
The WWF referred to Mr Harrison deposing in his affidavit sworn 6 March 2020 to drafting the documents on his laptop computer. It was submitted that he now deposes that the hard disk for his laptop computer was destroyed on or about 3 August 2017, and that he “did not copy any data, information, or files that was on the existing hard drive onto the new hard drive”.
It was submitted that if the 6 April 2016 document, or a copy of that document, is located on the laptop, it will assist the Court in its inquiry as to Denys’ last valid testamentary document.
The attendance at Denys’ home and discovery of the 8 April 2016 document
The WWF referred to the applicants’ attendance at Denys’ property with the Public Trustee on 8 August 2018 as deposed to in Ms Hadaj’s solicitor’s second affidavit.[1] It was submitted that the applicants have not explained their reasons for their attendance at Denys’ property during contested litigation. Further, it was submitted that the applicants and their solicitor, who was also in attendance, are silent as to what transpired during the attendance.
[1] Affidavit of Lesia Katerine Iwaniw sworn 6 February 2020, exhibit LKI-11 at p 21-22.
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.
The WWF, the Zoo and the AWL seek the production and examination orders having regard to the lacuna in evidence, the state of the pleadings, and “the suspicious circumstances” of the 2016 documents.
It was submitted that the laptop, the information and documents on it relating to the 2016 documents are directly relevant to the applicants’ case. When Mr Harrison typed the 2016 documents is a matter in issue. Further, the 6 April 2016 document is a copy and it was asserted that the original is, or was, on the laptop.
The WWF contended that there are three scenarios that may arise as a result of the forensic examination:
(1)No relevant documents are located on the laptop;
(2)Fragments of relevant documents are located on the laptop;
(3)Copies, or versions, of the 2016 documents are located and the metadata of those documents can be analysed.
The WWF submitted that all three scenarios could assist the Court in its inquiry by creating a timeline of documents located.
It was submitted that in relation to scenario (1), if no documents are located, Mr Harrison’s position may be strengthened. Further evidence to establish a timeline will, in any event, assist the Court in its inquiry. Forensic examination would inform the Court and the parties as to when the laptop was formatted and establish an evidential basis to Mr Harrison’s affidavits.
In relation to scenario (2), if fragments of relevant documents are located it was submitted that the metadata, or elements of metadata, can be examined. If fragments are located, Mr Du Plessis can “find out if such a document existed at one time or another”.[4] Mr Du Plessis may also be able to report upon items discussed below in relation to scenario (3).
[4] Affidavit of Richard Jackson sworn on 3 March 2020 at [9(c)].
In relation to scenario (3), if entire copies of the 2016 documents are located, then Mr Du Plessis will analyse the metadata of those documents. Mr Du Plessis can report upon who authored and modified a document; when a document was printed or modified; whether the document derived from another document; whether a document was opened in, or copied from, an external hard disk or USB device; and whether, and when, an external device was plugged into the laptop.[5]
[5] Affidavit of Richard Jackson sworn on 3 March 2020.
The metadata may reveal that either, or both, of the 2016 documents were created after 8 April 2016; and whether the documents were modified or printed after 8 April 2016; and, if so, who modified the documents and how they were modified.
In relation to the complaint about legal professional privilege, the WWF submitted that this has been discussed with Mr Du Plessis and is addressed in the proposed digital examination protocol at [7]. It is on this basis that the WWF applies for the orders sought and otherwise adopts the submissions of the Zoo and AWL.
Similarly, the Zoo and AWL adopts the submissions of the WWF and further submitted that none of the purported testamentary documents put forward or propounded in this matter meet the requirements of s 8 of the Wills Act and any written document will require dispensation pursuant to s 12(2) of the Wills Act. The lost testamentary documents will need to meet the five tests as detailed in Chapter 12 of Haines Succession Law in South Australia, and may require dispensation under s 12(2).
It was pointed out that Mr D’Angelo and Mr Harrison had access to Denys’ home on 9 April 2016.[6]
[6] Affidavit of William Harrison sworn 15 January 2018.
The Zoo and AWL referred to Ms Hadaj’s affidavit sworn 6 February 2020 wherein she deposes that Mr D’Angelo was present in Denys’ home on 9 April 2016 before Denys died and was asking about a will. Ms Hadaj also deposed that Mr D’Angelo was the first person present at Denys’ house after Denys’ death and that Mr Harrison was asking about the will at Denys’ funeral.
Ms Hadaj deposed in her affidavit sworn 5 June 2019 that on inspection with the Public Trustee at Denys’ home following Denys’ death, an empty open envelope was found in the place where Ms Hadaj believed Denys to have his will.
The Zoo and AWL argued that the 2016 documents rely solely on the testimony of Mr Harrison and have radically different effect to the known or believed former testamentary attempts by Denys in that:
(1)they disinherit all prior beneficiaries;
(2)they make no provision for Ms Gibbs;
(3)they make no provision for charities, and
(4)they suddenly provide solely for Mr D’Angelo and Mr Harrison.
It was submitted that the 6 April 2016 and 8 April 2016 documents are not duly executed wills and there is therefore no presumption of testamentary intent. The Zoo and the AWL asked the Court to look at the circumstances in the light of the law concerning suspicious circumstances. It was submitted that there are a number of “established” suspicious circumstances, including:
(1)“The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator’s appreciation and approval of the contents of the will”;[7] and
(2)“A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicion that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills”.[8]
[7] Roos v Karpenkow (1998) 71 SASR 497 at 504-505 (Doyle CJ).
[8] Williams, Mortimer & Sunnucks Executors, Administrators and Probate (21st ed, 2018) at p 207.
It was submitted that the whole circumstances including the belated discovery of the 8 April 2016 document are such as to “excite the Court’s suspicion”.[9] As stated by the Court in Tobin v Ezekiel:[10]
… the suspicious circumstances rule … operates to displace presumptions of fact in favour of those propounding the will. For that reason it was necessary to identify the presumption or presumptions to which particular circumstances are said to be relevant. With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing. …
[9] Dal Pont & Mackie Law of Succession (2nd ed, 2017) at [2.29].
[10] Tobin v Ezekiel (2012) 83 NSWLR 757 at [55].
The applicants’ submissions opposing orders for production and forensic examination
The applicants pointed out that, at present, no orders have been made as to the conduct of the trial, including orders for disclosure, and that an order has been made that the matter proceed to mediation.
The applicants submitted that the order for disclosure should not be made until the issues are defined and there has been an order for general disclosure. It was submitted that it may be that once that occurs, a basis will exist for the orders sought. No basis has been shown, it was submitted, for requiring disclosure on a piecemeal basis.
The applicants submitted that there was no affidavit filed in support of the application seeking production of the laptop and orders for examination. It was submitted that on 12 February 2020 when I made the orders for production of the laptop without “the apparent opposition of the second applicant”, that Mr Harrison did, in fact, oppose the order and his solicitor made a mistake in stating to the Court that there was no opposition. It was submitted that there was no consideration of whether the laptop contained privileged material, that it does contain privileged material and that at no time has privilege been waived.
It was submitted that the respondents should have consented to the application for the revocation of the discovery order in light of the affidavit evidence of Ms Yule sworn 2 March 2020. In this regard, the applicants rely on the decision of the High Court regarding privileged material which was inadvertently disclosed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.[11] They submitted that the comments of the High Court regarding inadvertent disclosure of privileged material should apply where disclosure is not opposed by mistake and that the respondents should have agreed that the application for disclosure and examination of the laptop be argued on the merits.
[11] (2013) 250 CLR 303.
It was contended that there is no evidence that there is, or ever has been, a “removable hard disk drive or USB if such drive is available” used in respect of the laptop. It was submitted that flash drive deposed to by Mr Harrison that was given to Denys is no longer in Mr Harrison’s possession.
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
The parties have indicated either a desire or a preparedness to participate in a mediation. Certain respondents have asserted that examination of the laptop needs to occur prior to their participation in mediation.
This Court is concerned to admit the last will of Denys to probate. Once the last will is determined, all prior wills are revoked. The Court, in its quasi‑inquisitorial probate jurisdiction, conducts an inquiry as to which document represents the testamentary intention of Denys.
In Barry v Butlin,[16] Parke B said:
… if a party writes or prepares a Will, under which he takes benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument …
[16] (1838) 12 ER 1089 at 1090.
Mr Harrison prepared the 6 April 2016 and 8 April 2016 documents which are substantially different or “a radical departure” from Denys’ purported earlier testamentary documents. Mr Harrison takes a 50 per cent benefit under each of the 6 April 2016 and 8 April 2016 documents. These are matters which require examination, especially as Mr Harrison, in whose favour the change or departure from Denys’ purported earlier testamentary documents is made, conducted “the whole transaction”. As the authors of Law of Succession state, such circumstances “call for the vigilant and anxious examination by the court of the evidence as to the testator’s appreciation and approval of the contents of the will”.[17] Furthermore:[18]
… such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills.
(Footnotes omitted)
[17] Dal Pont & Mackie Law of Succession (2nd ed, 2017) at [2.30].
[18] Williams, Mortimer & Sunnucks Executors, Administrators and Probate (21st ed, 2018) at p 207.
As the applicants’ counsel informed the Court on 10 March 2020, the applicants want to allay the suspicions articulated by the respondents.
I agree with the submission that the production and examination of the electronic devices may assist in establishing a chronology of events which is critical to:
(1)the Court’s inquiry into establishing which document was the last will of Denys;
(2)allowing the respondents to advise their clients upon the merits of the applicants’ claim; and
(3)resolving the dispute.
The parties are under a duty to disclose documents that are directly relevant to material issues in pleadings or affidavits. This matter has proceeded by way of affidavit. The provenance of the 6 April and 8 April 2016 documents is directly relevant to the matters in dispute between the parties and the determination of Denys’ last testamentary intention.
Noting Mr Harrison’s explanations, it is necessary for the applicants to satisfy the Court that despite the unusual circumstances surrounding the 2016 documents, they are Denys’ final testamentary expression. It is also desirable at a practical level to understand whether the laptop can throw any light on these documents.
The application is confined to and seeks production, examination, and disclosure only of documents bearing on the 2016 documents.
I am satisfied Mr Du Plessis is an appropriately qualified forensic expert. It must be remembered that an expert is bound by his or her duties to the Court, and is tasked to assist the Court in its role. In the circumstances of this matter Mr Du Plessis is tasked with assisting the Court in determining which document represents the last testamentary intention of Denys.
I am satisfied that the proposed orders address the concerns raised regarding privilege and confidentiality.
I vary the order for production of the laptop computer made on 12 February 2020 as follows:
(1)Pursuant to r 147 of the Supreme Court Civil Rules 2006 (SA):
(a) Mr Harrison is to deliver the devices in accordance with the “Digital Examination Protocol” annexed to the World Wide Fund for Nature Australia’s draft minutes of order dated 25 March 2020 and marked “A”.
(b) Upon delivery of any devices delivered in accordance with Digital Examination Protocol, Mr Harrison’s solicitors are to provide access passwords to Mr Du Plessis for those devices.
(c) Mr Harrison is to do all things necessary to assist in the examination.
(2)Within seven days of the date of this order, Mr Harrison is to disclose:
(a) documents in his possession or control relevant to the devices, including, but not limited to, receipts and other documents relating to any repair and removal of the hard disk drive in or around June 2017; and
(b) his telephone records for the period 6 April 2016 to 8 April 2016.
I will hear further submissions on the question of costs.
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