Fazio v Fazio - [2024] WASC 114

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FAZIO -v- FAZIO [2024] WASC 114
CORAM:   REGISTRAR FATHARLY
HEARD:   ON THE PAPERS
DELIVERED          :   12 APRIL 2024
PUBLISHED           :   12 APRIL 2024
FILE NO/S:   CIV 2226 of 2015
BETWEEN:   RIDOLFO FAZIO
SARINA KOLESZKO
Plaintiffs
AND
GIACOMINO FAZIO
Defendant

Catchwords:

Harman undertaking - Application for leave to be released from undertaking to use documents discovered in prior proceeding at trial of current proceedings - Application to use will instruction documents provided for 2006 will for proceedings to prove 2014 will

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiffs	:	Tottle Partners
Defendant	:	Rosie Cornell

Case(s) referred to in decision(s):

Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148
Arvind Pty Ltd v Lamers [2020] WASCA 47
Ashby v Slipper (No 2) [2016] FCA 550
Compagnie du Pacifique Guano Co (1882) 11 QBD 55
Fazio v Fazio [2010] WASC 263
Fazio v Fazio [2012] HCASL 176
Fazio v Fazio [2012] WASCA 72
Frigger v Kitay (In his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In Liq) (No 17) [2020] WASC 366
Griffith & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321; [1998] Library 980273
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Liberty Funding Pty Ltd v Pheonix Capital Ltd [2005] FCAFC 3 [31]; (2005) 218 ALR 283
Lock v Phillips [2014] WASC 92
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Mulley v Manifold (1959) 103 CLR 341
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67

REGISTRAR FATHARLY:

The application

The parties to these proceedings have been involved in a litigation over many years involving multiple proceedings.
The question arising in this application is whether leave should be granted to the defendant to use 16 documents (Documents) in these proceedings which came into his possession through discovery in separate legal proceedings in the Supreme Court of Western Australia.[1]
[1] CIV 1245 of 2008, in which the first plaintiff in the current proceedings was first defendant and the defendant in the current proceedings was the plaintiff.
The defendant's solicitor has sworn to the Documents, copies of which were attached to her affidavit, being relevant in this proceeding.[2] Many of those Documents have previously been filed attached to an affidavit of the defendant without leave.
[2] Affidavit of Rosie Cornell sworn 25 May 2023.
The defendant wishes to tender the Documents at trial.[3]
[3] Defendant's submission [1].
At present the proceedings comprise two wholly independent suits for convenience combined in one action[4] and each of which is to be tried separately. The current suit is for proof in solemn form of a 27 July 2014 will (Purported Will) contended for by Jack.
[4] O 18 r 2 RSC; Frigger v Kitay (In his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In Liq) (No 17) [2020] WASC 366 [10].
I am not persuaded that leave should be given to the defendant to use the Documents in these proceedings with respect to the defendant's claim for proof of the Purported Will, which is to be heard at trial first.
The defendant's application should be dismissed.

Background

In the proceedings in which the Documents were discovered, Chief Justice Martin delivered an extensive decision in Fazio v Fazio [2010] WASC 263 (Fazio 2010) on 1 October 2010 dismissing the claim by Giacomo Fazio (referred to as Jack) and his wife Maria Rita Fazio against Ridolfo Rosario Fazio (referred to as Rudy) and 12 other defendants including Giuseppina Fazio (Partnership Dispute) but not Sarina Koleszko.
The appeal from the learned Chief Justice's decision was dismissed in Fazio v Fazio [2012] WASCA 72 (Fazio 2012), and a special leave application to the High Court against that decision was subsequently dismissed.[5]
[5] Fazio v Fazio [2012] HCASL 176.
The three parties to the current dispute are siblings.[6]
[6] Fazio 2010 [1], in relation to CIV 1245 of 2008.
Without intending disrespect, the references to the family members by first name as stated in the reasons of the learned Chief Justice in the Partnership Dispute proceedings are adopted in these reasons.

Issues in the current proceedings

In the current proceedings, by way of summary:
(a)the plaintiffs Rudy and Sarina claim that their mother Giuseppina Fazio (Mrs Fazio) died 12 September 2014, having contracted with her husband Vince (Mr Fazio) on 18 September 2006 to make mutual wills and having made mutual wills that day, and that following the death of Mr Fazio with a grant of probate in solemn form having been made of his 2006 will in 2008, a solemn form grant should be made of the 2006 will made by Mrs Fazio to them as executors appointed under her 2006 will[7] (Counterclaim);
[7] Amended writ of summons 2 December 2021.
(b)the defendant Jack admits that their parents executed documents purporting to be mutual wills but denies Mrs Fazio understood the effect of the document or intended to agree to the terms and conditions set out in the executed document, or that the will she signed in 2006 was her last valid will. Jack contends for the validity of the Purported Will;
(c)Rudy and Sarina deny Mrs Fazio made her last will in 2014 as alleged or at all, and claim:[8]
[8] Further amended substituted defence and counterclaim 14 April 2023.
(i)Mrs Fazio did not make any will at her home on 27 July 2014;
(ii)Mrs Fazio did not make the Purported Will;
(iii)Mrs Fazio did not execute the Purported Will either as alleged or at all;
(iv)it is not Mrs Fazio's signature on the document, expert evidence of which will be led at trial;
(v)in the 29 years or so leading up to her death, Mrs Fazio had no real contact with Jack;
(vi)in the years leading up to her death there were multiple acrimonious proceedings between Jack against his mother and others[9] and by their mother against Jack;[10]
[9] In the Supreme Court in 2008, Court of Appeal in 2010, the High Court in 2012.
[10] Magistrates Court in 2012, Federal Magistrates Court in 2012, Supreme Court in 2013 under the Civil Judgments Enforcement Act 2004, Supreme Court in 2013 seeking to recover costs in CIV 1245 of 2008 and in CACV 111 of 2010, Supreme Court in 2013 for removal of a caveat registered over land.
(vii)the terms of the Purported Will were inconsistent with sworn evidence of the deceased given in court in 2010, the history of acrimonious proceedings and deceased's views expressed to family members prior to her death;
(viii)the defendant was bound by terms of a court order restraining him from having contact or going near his mother until 31 December 2014;
(ix)from June 2010 until Mrs Fazio's death on 12 September 2014, Rudy and his family lived with Mrs Fazio and the terms of the restraining order prohibited Jack from being within 100 metres of the home on the date of the Purported Will;
(x)the alleged witnesses to the Purported will were not present at Mrs Fazio's home on the day of the Purported Will;
(xi)as a consequence of a sequestration order made 6 May 2014, the defendant was an undischarged bankrupt as at the date of the Purported Will, a fact and the effect of which was known Mrs Fazio, including that as a consequence Jack would not be able to satisfy the costs orders in CIV 1245 of 2008;
(xii)upon their mother's death Jack acknowledged in his eulogy the restraining order and the 2006 will but did not mention the Purported Will;
(d)Rudy and Sarina maintain that the court should pronounce for the force and validity of the 2006 will, however, if the court were to pronounce for the force and validity of the 2014 will in solemn form, then a declaration should be made that Jack as executor and trustee of that will, holds all of their mother's property at the time of her death on constructive trust for the beneficiaries of the 2006 will.
(e)while Jack admits some of the facts alleged by the plaintiffs he denies many of the above allegations and effect of them.[11] Specifically Jack:
[11] Amended reply to plaintiff's amended substituted defence and counterclaim 21 April 2023.
(i)denies that Mrs Fazio did not make and execute the Purported Will at her home on 27 July 2014 applying her signature;
(ii)denies having had no real contact with his mother for 29 years;
(iii)admits that Mrs Fazio and he were parties to proceedings as a consequence of or accompanied by acrimony towards him, Mrs Fazio was not a participant due to acrimony on her part towards him but rather by others motivating or infecting the proceedings;
(iv)as to the statement and evidence Mrs Fazio gave in proceedings CIV 1245 of 2008, she did not have a sufficient understanding of the nature and effect of the evidence she gave, intentionally or otherwise, which was inconsistent with the Purported Will;
(v)denies the appeal CACV 111 of 2010 were acrimonious between himself and Mrs Fazio or inconsistent with the Purported Will;
(vi)denies Mrs Fazio expressed views about him to family members inconsistent with the Purported Will;
(vii)admits the existence of the restraining order but denies that it was justified by any threat of violence towards Mrs Fazio;
(viii)asserts that the witnesses named in the Purported Will attended Mrs Fazio's home on 27 July 2014;
(ix)admits the existence of the sequestration order and being an undischarged bankrupt at the date of the Purported Will but does not admit Mrs Fazio knew of those facts or that he would be unable to satisfy costs ordered in CIV 1245 of 2008 and denies those facts are inconsistent with the terms of the Purported Will;
(x)admits that his eulogy referred to the restraining order and its effect and the 2006 will, and did not refer to the Purported Will, but denies that is an inconsistency with the terms of the Purported Will.
On 22 March 2016 the court ordered, by consent, that Jack's claim for a solemn form grant of the Purported Will should be tried separately from and before the plaintiffs' defence and counterclaim to the Purported Will claim for the solemn form grant of the 2006 will arising from mutual will contract and pleaded circumstances, with programming orders made since accordingly.
Accordingly, relevance of the documents must be considered in the context of hearing a trial of solemn form proceedings regarding the Purported Will only. If necessary a separate trial of regarding the mutual will contract and 2006 will will follow.
Consequently, the issues for determination at trial in relation to the Purported Will are, as submitted by senior counsel for the plaintiff respondents to this application:
(a)whether, on 27 July 2014 at her home at 35 Barrett Street, Spearwood, Mrs Fazio made the Purported Will;
(b)whether the signature on the Purported Will is that of Mrs Fazio;
(c)whether Mrs Fazio executed the Purported Will in conformity with the Wills Act 1970 in the presence of Joe Vitanza and Vincenza Nobile; and
(d)a series of sub‑issues relating to subpar (a) to subpar (c) above.

The nature of the obligation

Where one party to litigation is compelled, by reason of a rule or specific order of the court or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use the documents or information for any purpose other than that for which they are given, unless they are received into evidence. This principle applies to a range of material, including discovered documents, answers to interrogatories and documents produced on subpoena.[12] It is commonly referred to as the Harman[13] obligation.
[12] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67[69]-[70]; Hearne v Street [2008] HCA 36 [96].
[13] Harman v Secretary of State for Home Department [1983] 1 AC 280.
Traditionally, the obligation not to disclose was described as an implied undertaking. However, properly understood it is an obligation of substantive law.[14]
[14] Hearne v Street [106] - [108]; Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 [25].
The obligation is owed both to the party and to the court, and as a result it cannot be waived by the parties alone.[15]
[15] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321; [1998] Library 980273.
The documents and information will be subject to the implied obligation unless the documents were tendered in evidence or the court ordered otherwise.[16]
[16] Arvind Pty Ltd v Lamers [2020] WASCA 47 [19]; Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 [49].

On what basis may the undertaking be released?

The legal principles governing the release from the Harman obligation were set out by the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd[17] which I respectfully adopt without detailed repetition in consideration of whether there are special circumstances justifying the exercise of discretion to grant leave.
[17] From [69]; Liberty Funding Pty Ltd v Pheonix Capital Ltd [2005] FCAFC 3 [31]; (2005) 218 ALR 283 [31].
Among the considerations that may be relevant to the exercise of the discretion are:
(a)the nature of the document;
(b)the circumstances under which the document came into existence;
(c)the attitude of the author of the document and any prejudice the author may sustain;
(d)whether the document existed before the litigation, or was created for that purpose and therefore expected to enter the public domain;
(e)the nature of the information in the document, in particular whether it contains personal data or commercially sensitive information;
(f)the circumstances in which the document came into the hands of the applicant; and
(g)the likely contribution of the document to achieving justice in another proceeding, recognised as being the most important consideration[18] to ensure that all relevant material is before the court to enable it to discharge its function for the purpose of doing justice between the parties to the proceedings.
[18] Murray Riverside at [75].
Each of the considerations are examined below.

The nature of the Documents

The amended writ of summons pleads that Mrs Fazio's 2006 will was executed in conformity with the Wills Act 1970 in the presence of Emma Marcelle Chinnery and Sergio Cooper, the subscribing witnesses thereto.
In the Partnership Proceedings decision, Chief Justice Martin stated:[19]
Vince and Giuseppina made mutual wills, each dated 18 September 2006 (TB 35A/18101 and TB 34/16476). They are complex documents.
[19] Fazio 2010 [343].
With the exception of document 11 which is an email, the Documents the subject of the application are all memoranda or attendance notes of Emma Chinnery dated between 12 May 2006 and 18 September 2006, the last date being the date of the execution of the 2006 wills:
(a)document 1: memo 12 May 2006;
(b)document 2: memo 27 June 2006;
(c)document 3: attendance note 3 July 2006;
(d)document 4: attendance note 3 July 2006;
(e)document 5: memo of 3 July 2006;
(f)document 6: attendance note 5 July 2006;
(g)document 7: attendance note 24 July 2006;
(h)document 8: memo 25 July 2006;
(i)document 9: attendance note 9 August 2006;
(j)document 10: memo 14 August 2006;
(k)document 11: email from Emma Chinnery to Ray Levin 22 August 2006
(l)document 12: attendance note 30 August 2006;
(m)document 13: attendance note 11 September 2006;
(n)document 14: memo 15 September 2006;
(o)document 15: attendance note 18 September 2006;
(p)document 16: memo 18 September 2006.
The applicant submits that the author was a lawyer employed by solicitors Jackson McDonald who kept records of the meetings between her firm and Mr and Mrs Fazio.
Many of the Documents attached to the affidavit in support of the application are of poor image quality or are barely legible. They are difficult to read and understand. Either they have deteriorated with time or the scanning of them is poor quality. Some typed documents have been overwritten in part by hand where faint, although it is not apparent by whom. The result is that some would be of limited evidentiary value even if the defendant was released from the implied undertaking and those were the copies relied upon. Better copies may be available.

Circumstances in which the Documents came into existence

The Documents all relate to estate planning for Mr Fazio and Mrs Fazio and corporate restructure of their business, company and associated trusts in the lead up to executing the 2006 wills and record circumstances of execution of those wills. They came into existence for that purpose.
They are records of instructions and advice including meetings or telephone discussions, or as senior counsel for the applicant submits, purported instructions Mrs Fazio wished to make in relation to dispositions in relation to her estate.[20] It is difficult to understand what force the Documents would have as to speaking to the state of mind of Mrs Fazio in 2006 if they are relied upon by Jack on the one hand and claimed merely to be purported instructions on the other.
[20] Defendant's submission [15 a.].

The attitude of the author and any prejudice the author may sustain

The applicant has not provided evidence of the attitude of the author and as to any prejudice the author may sustain. Rather, senior counsel for the applicant has submitted that there is no conceivable prejudice to the author, an employed solicitor making notes on the instructions of a client, by disclosure of those notes in the current proceedings.
It is not apparent whether the applicant would call the author to give evidence at trial.

Whether the Documents existed before the litigation, or were created for that purpose and therefore expected to enter the public domain

The Documents were created prior to the 2008 Partnership Dispute litigation. They were created prior to and at the time of the 2006 wills.
Senior counsel for the applicant submits[21] that the Partnership Dispute came about because Jack was essentially disinherited in his father's 2006 will and was not eligible to apply for relief under the Family Provision Act 1972 as at that time he was independently wealthy.
[21] Defendant's submission [3].
Respectfully, I do not accept that submission for two reasons:
(a)Firstly, the issues for the 2008 Partnership Dispute litigation were identified in those proceedings as relating essentially to the existence and extent, if any, Jack had in the partnership and its assets.[22] The claims in those proceedings were for interests in the partnership or Mr Fazio's estate based upon promises or representations or inducement, with claims for estoppel from denying his interest, which claims were dismissed.[23] Jack's appeal to the Court of Appeal and for special leave to appeal to the High Court were also dismissed.
(b)Secondly, as the learned Chief Justice stated in Fazio 2010[24] with reference to the mutual 2006 wills, a number of testamentary trusts were created including for Jack and his three sons, Jack was provided $1,000,000 and the wills contain recitals to the effect that assets were given to Jack during his lifetime including the South Terrace property, the block of land in Barrett Street, Spearwood, and approximately $50,000 for the purchase of imported light fittings to be sold in Jack's business. Substantial provision was separately made for each of Jack's three sons. He was not disinherited even if he considered he was in all the circumstances.
[22] Fazio 2010 [46].
[23] Fazio 2010 [9].
[24] [343] ‑ [345].

The nature of the information in the Documents

The Documents contain what were privileged records of instructions and advice given by legal practitioners, not documents expected to be in the public domain. They expressly set out information about personal and business or trust assets and corporate structures, instructions provided to and advice given by the solicitors who drafted the 2006 wills, comments on draft documents and records of meetings, including of the execution of the wills and related documents on 18 September 2006. The information is personal and sensitive, not expected to be made public.
Senior counsel for the applicant submits that the Documents contain instructions given by Mrs Fazio in relation to the family company restructure and dispositions she wished to make in 2006, and are relevant in exploring her reasons for wanting to make a new will in 2014.
I respectfully disagree with the second part of that proposition.
The Documents and information in them are relevant to making the 2006 wills. However they cannot explain or enable the exploration of Mrs Fazio's reasons for making a new will or wanting to make a new will in 2014, eight years later.
It is not disputed by Jack that there are documents dated 18 September 2006 which purport to be a contract between Mr and Mrs Fazio to make mutual wills[25] or that there are documents executed the same day by Mr and Mrs Fazio described as wills.[26] Those documents speak for themselves without the need for the detailed instructions provided for their preparation. The former learned Chief Justice stated in his reasons that Mr and Mrs Fazio made mutual wills, each dated 18 September 2006.[27]
[25] Although denying that Mrs Fazio understood or intended to agree to the terms and conditions stated as executed.
[26] Although denying the will signed by Mrs Fazio was signed, executed or made pursuant to the contract, or it was her last will, or she knew and understood that by executing it she was covenanting and bound to make no other will.
[27] Fazio 2010 [343].
There is no pleading relating to Mrs Fazio or anyone having considered at Mrs Fazio's request or otherwise, any prior will instructions regarding the 2006 will or even the 2006 will itself in making the Purported Will in 2014.
It is not apparent from the submissions or pleadings how the Documents would be relevant and admissible in the circumstances or how the Documents would be tendered into evidence.

Circumstances in which the Documents came into the hands of the applicant

It is not in dispute that Jack came into possession of the Documents by way of discovery in the Partnership Dispute and his solicitors inspecting and obtaining a copy in or about December 2009 shortly before the start of the trial.

Likely contribution of the Documents to achieving justice in this proceeding

It is useful at this stage to acknowledge and consider in more detail the helpful submissions of senior counsel for each party.
There are five stated bases upon which senior counsel for the applicant relies as to the contribution of the Documents:
(a)the Documents in toto can be viewed as the genesis of Mrs Fazio's 2014 will, providing contemporaneous evidence of her understanding of the property she held in 2006 and the court can glean insights into the instructions Mrs Fazio gave as to her wishes in relation to the division of her property following her death;
(b)without access to those foundational documents, created in 2006 during the period Mrs Fazio is purported to have instructed her lawyers in relation to her will, the court cannot fully grasp the evolution of subsequent controversies and the impact this had on Mrs Fazio with the final realisation that her oldest son, the defendant, was bankrupt and had not inherited any of the family's vast fortune;
(c)the defendant played an important part in the creation of the family's vast fortune;
(d)it would be an injustice if the defendant is denied the right to ventilate to the court the idea that his mother, a Sicilian migrant who required the services of a translator to converse with the outside world, did not understand the contents of her 2006 will and could not have understood the binding nature of the contract to make mutual wills now relied on by the plaintiffs; and
(e)without reference to the Documents the court is incapable of rendering a just and equitable decision in relation to the validity of the 2014 will.
Senior counsel for the applicant also submitted that rather than protecting her privacy by hiding the instructions she gave in the making of the 2006 will, what is required is an exposure of the process which saw the production of the 2006 will.
By way of response, senior counsel for the respondents submitted that:
(a)the applicant's submissions are permeated by an undue focus on circumstances which are not the subject of evidence before the court surrounding the 2006 will when the trial concerns the Purported Will made on 27 July 2014;
(b)the Documents being viewed as the genesis of the Purported Will in 2014 must be rejected given that the Purported Will was made eight years after the Documents, without any apparent legal advice from Ms Chinnery or the firm involved in the provision of the advice and preparation of the 2006 will, and with no conceivable reference to what appears in the Documents;
(c)the applicant's assertion that the Documents evidence Mrs Fazio's understanding of the property she held in 2006, even if it could be evidenced by the Documents, is not relevant to the Purported Will made eight years later or the disputed matters relevant to trial of the defendant's claim for proof of the Purported Will in 2014 will in solemn form;
(d)the implication arising from the defendant's suggestion that the Documents were created in 2006 during the period Mrs Fazio is purported to have instructed her lawyers[28] (emphasis added) undercuts the Documents speak for Giuseppina Fazio.[29] If the proposition sought to be advanced is that the 2006 will does not represent Mrs Fazio's instructions, then there is no basis at all for the Documents to be tendered at trial with respect to the Purported Will;
[28] Defendant's submission [15.f.ii.].
[29] Defendant's submission [12].
(e)the contention that the court cannot fully grasp the evolution of subsequent controversies is misconceived. Whether the Documents are relevant to the claim is determined by the proceedings in respect of the claim,[30] not by reference to the vague descriptor subsequent controversies;
[30] For the proof of the Purported Will.
(f)the Documents have no relevance at all to Mrs Fazio's final realisation that her eldest son, the defendant, was bankrupt and had not inherited any of the family's vast fortune,[31] which allegation is not relevant to the claim[32] in any event;
[31] Defendant's submission [15.f.ii.].
[32] For the proof of the Purported Will.
(g)the Documents have no bearing on the submission, unsupported by evidence and irrelevant to the pleaded case, that the defendant played an important part in the creation of the family's vast fortune;[33]
[33] Defendant's submission [15.f.iii.].
(h)it is not correct that without leave to use the Documents, the defendant will be denied the right to ventilate to the court the idea that his mother … did not understand the contents of her 2006 will.[34] The trial is for proof of the 2014 Purported Will, not the 2006 will;
(i)in light of the above matters the applicant's submission that without reference to the Documents the court is incapable of rendering a just and equitable decision in relation to the validity of the 2014 will,[35] is without foundation;
(j)The applicant has not established any contribution of the Documents to achieving justice in the trial of the claim in these proceedings for proof in solemn form of the Purported Will.
(k)other factors militate against the grant of leave:
(i)the Documents on their face are sensitive, private, and prior to discovery in the Partnership Dispute proceedings, confidential documents protected by legal professional privilege;
(ii)the Documents existed prior to the Partnership Dispute proceedings, not created for the purpose of those proceedings and were never expected to enter the public domain;
(iii)the applicant has not adduced evidence of the author of the Documents and whether she would suffer any prejudice if the application were granted;
(iv)the respondent submits that there is a public interest in preserving the confidentiality of the Documents given their nature; and
(v)the Defendant has not established the existence of special circumstances to justify releasing him from the undertaking and to permit him to use the Documents at the trial of the claim.
[34] Defendant's submission [15.f.iv.].
[35] Defendant's submission [15.f.v.].
With respect to the above submissions, I do not accept the applicant's submissions for the reasons submitted for the respondents.
By way of reply, senior counsel for the applicant further submitted that the arguments raised by the respondents, that Jack's arguments fail to demonstrate how the Documents could support his case in proving the authenticity of the Purported Will, are properly matters for examination at trial as to issues of relevance, admissibility and probative value of the Documents. Reliance was placed upon the decision in Griffith & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230.
That submission requires some consideration.
Within that decision, Pagone J made reference to having heard the proceedings over 33 days and having decided all issues between the parties save as to costs. Those proceedings were not finalised. Within those proceedings, an affidavit of a Mr Lin filed in compliance with an order for filing witness statements was provided to the plaintiffs. Separate proceedings between Mr Lin and his company and Griffith & Beerens had commenced, with leave being sought by the plaintiffs claiming that the affidavit sought by Mr Lin in the original proceeding before Pagone J contained statements relevant to their case in the other proceedings. His Honour's views with respect to relevance, admissibility and probative value were set out at [10] – [11].
The case relied upon by the applicant raises important considerations but distinctions must be drawn from the circumstances here:
(a)The application within Griffith & Beerens Pty Ltd v Duggan (No 2) was to the judge in the original, unfinalised, proceeding to be released from the undertaking in that proceeding so as to use the documents in the later proceeding before a different judicial officer. However, in the present case, the original proceeding was finalised by the decision of the Chief Justice in 2010 and subsequent taxation of costs, with successive appeals to the Court of Appeal and a special leave application to the High Court dismissed. The application for release from the undertaking here is within subsequent proceedings for leave to have use of the Documents in the same subsequent proceedings.
(b)Justice Pagone referred[36] to determination of relevance, admissibility and probative value being determined by the judicial officer charged with those [subsequent] proceedings. While I will not have the conduct of trial, for present purposes I am, as case manager of the proceedings, the judicial officer charged with the proceedings and having,[37] for the purposes of O 4A of the Rules of the Supreme Court, the same jurisdiction that a judge sitting in chambers would have under the Supreme Court Act 1935 or the rules if the judge were the case manager.[38] The application is before me for release of the obligation as an interlocutory application, with a consideration of the likelihood of the contribution of the Documents to achieving justice, yet the same applicant seeking leave from me essentially submits the issues as to relevance, admissibility and probative value of the Documents should be left to the trial judge.
(c)I have had the benefit of detailed submissions and the affidavit attaching the Documents to consider within the context of the proceeding in which they are sought to be used and pleadings filed, the relevance, admissibility or probative value of material that may be sought to be tendered in evidence in the proceedings, not outside of the proceedings or for proceedings to be pursued later.
[36] At [10].
[37] With some exceptions.
[38] O 60A r 2(1) RSC.
The court is concerned, at present, due to the separation of the suits with whether a solemn form grant should issue with respect to the 2014 Purported Will, not the 2006 will.
Senior counsel for the applicant further submitted that when applying the test of the likely contribution of the documents to achieving justice, an analogy can be drawn with the test applicable to the duty to disclose documents described by Brett LJ in Compagnie du Pacifique Guano Co (1882) 11 QBD 55 at 63:[39]
It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which it is reasonable to suppose contains information which may ‑ not which must – either directly or indirectly enable the party requiring the affidavit to either advance his case or damage the case of his adversary … [A] document can properly be said to contain information which may enable a party requiring the affidavit either to advance his case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of those two consequences.
[39]and Menzies J in Mulley v Manifold (1959) 103 CLR 341 at 345.
There was therefore submitted on Jack's behalf to be a very clear connection between the Purported Will coming into existence and Mrs Fazio's evolving understanding between 2006 and 2014 of the effect of the 2006 will and her motivation to create the 2014 will, the notes comprising evidence of her state of mind in 2006, and no conceivable prejudice to the author of the disclosure.
There is no pleading to the effect of, and I am not satisfied by the applicant, that Mrs Fazio had an evolving understanding between 2006 and 2014 of the effect of the 2006 will and her motivation to create the 2014 will which would in any way make the Documents relevant to the validity of the Purported Will in 2014. If they were notes or instructions as to the making of the 2014 Purported Will, or considered in the process of making the Purported Will, the position may well be different.
As a basic principle, evidence that is not relevant is inadmissible. The Documents do not relate to issues arising on the face of the pleadings and being notes as to the state of mind eight years earlier could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings relating to the 2014 will.

Subsequent proceedings between identical parties

The applicant acknowledges that the parties to the Partnership Dispute proceedings are similar, but not identical.

Were any of the Documents tendered in evidence in the Partnership Dispute proceedings or did the court order otherwise?

While apparently discovered in the Partnership Dispute proceedings, it is not clear from the application which of the Documents was used in evidence in those proceedings. The applicant submits simply that one of the Documents was used for cross‑examination of a witness during the trial, without identifying which one and whether it was even tendered into evidence in those proceedings.

Broader public interest

The applicant relies on the decision of Ashby v Slipper (No 2) [2016] FCA 550 [10] for the proposition that there is a legitimate public interest in permitting the defendant to use the Documents in this matter as they will contribute to achieving justice in this proceeding. The submission is not expanded upon other than to refer to the authority.
As a starting point, Flick J in Ashby referred to undertakings that attached to evidence or other materials stating that there is nothing voluntary about it; the constraint upon the use of the evidence or other materials is a substantive obligation.[40] At [10] His Honour stated, relevantly:
Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. In the present case, these considerations include the enforcement or administration of the criminal law.
[40] At [5].
With the exception of the broad notion of the administration of justice, the applicant in this case does not advance the proposition further. Certainly the claim in this case is not one involving enforcement or administration of the criminal law and not of broad public interest generally. It is of a confined nature of civil law as to the validity of the Purported Will and to be determined according to law.
Justice can be achieved upon the court receiving properly admissible evidence relevant to the issues for consideration by the court of the type referred to by Justice E M Heenan in Lock v Phillips [2014] WASC 92 at [32]:
An applicant for a grant of probate whether in common form or solemn form will always need to prove, to the satisfaction of the court, that the deceased made the will being propounded of his own volition; without duress and with a fully comprehending mind; understanding the nature and effect of the will; its consequences, with a general knowledge of his property and the persons to whom consideration should be given when determining his testamentary intentions.[41]
[41] Referring to Banks v Goodfellow (1870) LR 5QB 549; Timbury v Coffee (1941) 66 CLR 277; Bailey v Bailey (1924) 34 CLR 558; Worth v Clasohm (1952) 86 CLR 439. See also observations in Wheatley v Edgar [2003] WASC 118 [24] and His Honour's review of these and other leading authorities in The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [167] ‑ [190].
That is the nature of relevant material required by the applicant in support of the Purported Will before the court to enable it to discharge its function for the purpose of doing justice between the parties to the proceedings.

Disposition

For these reasons I am not satisfied that the applicant has established that there are special circumstances justifying the exercise of discretion to grant leave to be released from the undertaking with respect to the Documents discovered in the Partnership Dispute proceedings for use in the suit for the proof of the 2014 Purported Will.
In addition to hearing from the parties as to appropriate orders as to the dismissal of the application and costs, it is also appropriate to hear from the parties as to whether the affidavit attaching some or all of the Documents filed by the defendant on 24 June 2019, and any other copies of those Documents attached to any other filed documents in these proceedings, should be removed from the court record.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Associate to Registrar Fatharly
12 APRIL 2024