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d'Apice v Gutkovich

d'Apice v Gutkovich

Case [2010] NSWSC 1336 27 October 2010

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CITATION: d’Apice v Gutkovich - Estate of Abraham (No. 1) [2010] NSWSC 1336

HEARING DATE(S): 25, 26, 27 & 28 October 2010

JUDGMENT DATE :
27 October 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 27 October 2010

DECISION: Claim for privilege upheld.

CATCHWORDS: PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased’s lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995, s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act, s 121 precludes privilege claim – whether deceased is “a client” for s 121 – whether privilege waived under Evidence Act, ss 122 or 126

LEGISLATION CITED: Evidence Act 1995 (NSW)
Civil Procedure Act 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Waugh Asset Management Pty Ltd v Merrill Lynch [2010] NSWSC 197
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
New Cap Reinsurance (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577

TEXTS CITED: Australian Law Reform Commission, Evidence, Report No. 26 (Interim) (1985)
Australian Law Reform Commission, Evidence, Report No. 38 (Final)

PARTIES:
Plaintiff: William Reginald d’Apice
Defendant: Galina Gutkovich

FILE NUMBER(S): SC 2009/300599

COUNSEL: Plaintiff: P Blackburn-Hart SC with D C Price
Defendant: T J Morahan

SOLICITORS: Plaintiff: Makinson & d'Apice Lawyers
Defendant: Bryden's Law Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 27 October 2010

2009/300599 William Reginald d’Apice v Galina Gutkovich
Estate of Irene Rachel Abraham (No. 1)

JUDGMENT

1 HIS HONOUR: A claim for privilege is made by the plaintiff, Mr William d'Apice, and arises in response to a subpoena for the production of documents addressed to his partner, Mr Richard d'Apice. The subpoena calls for production of all documents referring to communications between any person from Makinson & d'Apice Lawyers and Dr Mark Wallace in relation to the retainer of Dr Wallace as an expert in these proceedings, and in relation to obtaining an opinion and a sworn affidavit from Dr Wallace.

2 The proceedings concern claims for the grant of probate in respect of a number of instruments said to be testamentary instruments signed by the deceased between September 2003 and December 2004. Questions are raised as to testamentary capacity of the deceased at the time she signed each of the instruments.

3 From at least 2004 the deceased was a client of the firm, Makinson & d'Apice Lawyers. Mr Richard d'Apice acted as her solicitor. Dr Wallace attended the deceased on at least three occasions in 2004, namely on 16 June, 7 July and 17 November 2004, and provided written reports on 17 and 30 June 2004 and 22 December 2004. The former two reports…

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.

Continue reading d'Apice v Gutkovich

Details

AGLC: d'Apice v Gutkovich [2010] NSWSC 1336
Case: [2010] NSWSC 1336
Decision Date: 27 October 2010

CaseChat Overview and Summary

In the case of d'Apice v Gutkovich, the dispute involved the testamentary capacity of a deceased individual. The proceedings were before the court, which had to determine the admissibility of certain documents sought through a subpoena. The documents were addressed to the deceased's lawyer, who was also the lawyer for the plaintiff seeking probate. The documents in question appeared to be privileged under the Evidence Act 1995, section 119, or under the common law. The legal issues before the court included the application of the Uniform Civil Procedure Rules, rule 1.9, and the Evidence Act to the inspection of the documents, and whether the Evidence Act, section 121, precluded the privilege claim. Additionally, the court had to determine if the deceased could be considered a "client" for the purposes of section 121, and whether the privilege had been waived under sections 122 or 126 of the Evidence Act.

The court found that the deceased's status as a client under section 121 of the Evidence Act was not a dispositive factor in determining the scope of legal professional privilege. The court emphasised that the privilege belonged to the client and could not be waived by the client alone. In this case, the deceased's testamentary capacity was at issue, and the privilege could only be waived by the client if they were competent to do so. The court concluded that the deceased's incapacity precluded them from waiving the privilege, and therefore, the privilege remained intact. The court also found that the Evidence Act, section 121, did not override the protection afforded by legal professional privilege, and the documents sought through the subpoena remained protected from disclosure.

The court ultimately ruled that the privilege applied to the documents sought through the subpoena and that they could not be disclosed. The court held that the deceased's incapacity did not automatically waive the privilege, and the privilege remained with the deceased until they were competent to waive it. The court's decision highlights the importance of protecting legal professional privilege, even in cases where the client's capacity is in question. The court's decision also underscores the need for careful consideration of the Evidence Act and the Uniform Civil Procedure Rules when determining the admissibility of privileged documents in testamentary capacity proceedings. The final orders of the court were that the documents sought through the subpoena were protected by legal professional privilege and could not be disclosed.

Orders