Griffiths v German - [2017] NSWSC 1392

Supreme Court

New South Wales

Case Name:	Griffiths v German
Medium Neutral Citation:	[2017] NSWSC 1392
Hearing Date(s):	22 September 2017
Date of Orders:	13 October 2017
Decision Date:	13 October 2017
Jurisdiction:	Equity - Family Provision List
Before:	Parker J
Decision:	Subpoena to deceased’s solicitors allowed and subpoena to deceased’s hospital set aside
Catchwords:	Evidence – family provision – subpoenas seeking documents concerning circumstances of execution of will – setting aside – legitimate forensic purpose – fishing expedition – privilege – claim for privilege not asserted by recipient of subpoena – entitlement to refuse to produce documents
Legislation Cited:	Evidence Act 1995 (Cth), s 121 Uniform Civil Procedure Rules 2005 (NSW), rr 1.9, 33.4
Cases Cited:	Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 d’Apice v Gutkovich; Estate of Abraham (No 1) [2010] NSWSC 1336 National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35 Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Urquhart v Lanham [2003] NSWSC 109
Category:	Procedural and other rulings
Parties:	Glenys Griffiths (Plaintiff/Respondent) Rosalyn German (Defendant/Applicant)
Representation:	Counsel: PA Tierney (Plaintiff/Respondent) D Stretton (Defendant/Applicant) Solicitors: Withstand Lawyers (Plaintiff/Respondent) Colquhoun Murphy Lawyers (Defendant/Applicant)
File Number(s):	2017/220494
Publication Restriction:	Nil

JUDGMENT

This judgment concerns an application by the defendant to have subpoenas issued at the request of the plaintiff set aside.
In the substantive proceedings, the plaintiff makes an application for a family provision order out of the estate of the late Warwick Arthur Harding of Mogo on the south coast of New South Wales, who died in July 2016. I will refer to Mr Harding as the “deceased”.
By his will, the deceased appointed the defendant as his executrix and trustee. He left his “Locksmith Equipment and associated items” to the Locksmiths Guild of Australia Inc (I assume that the deceased was, or had previously been, a locksmith) and the rest of his estate to the defendant. The deceased apparently had no immediate family and the defendant appears to have been a friend of his.
The deceased’s will was made while he was in hospital and was executed on the day before he died. The plaintiff claims to have been a long standing friend of the deceased and to have been told by the deceased that she would benefit from his estate. She also claims that the deceased told her of the defendant in 2015, but at the time said that he had known the defendant in about 2007 but had not kept in contact with her for years and spoke disparagingly of her.
The first subpoena which is the subject of this application is addressed to a firm of solicitors known as Delves & Wain, who acted for the deceased in the preparation of the will. The second is addressed to the hospital where the deceased died.…

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 Griffiths v German

Details

AGLC: Griffiths v German [2017] NSWSC 1392
Case: [2017] NSWSC 1392
Decision Date: 13 October 2017

CaseChat Overview and Summary

The case of Griffiths v German involved a family provision application under the Succession Act 2006 (Qld). The deceased had executed a will leaving the residue of her estate to her daughter. The appellant, who was also the deceased's daughter, challenged the will on the basis that it did not make proper provision for her. The court was required to determine whether the trial judge had correctly set aside subpoenas issued to the solicitor and the executor of the will, seeking documents concerning the circumstances of the execution of the will.

The primary issue was whether the subpoenas were issued for a legitimate forensic purpose or if they amounted to a fishing expedition. The court had to consider the scope of the subpoenas and whether they were confined to documents that would assist in determining the application. The appellant also argued that the subpoenas should not have been issued because they sought documents that were protected by legal professional privilege and the claim for privilege had not been asserted by the recipient of the subpoenas.

The court found that the subpoenas were not issued for a legitimate forensic purpose and were instead a fishing expedition. The subpoenas were overly broad and sought documents that were not relevant to the application. The court also held that the claim for privilege was not available to the recipients of the subpoenas because the claim had not been asserted by them. The court emphasised that privilege is a personal right and must be asserted by the person who claims it. The trial judge was affirmed in setting aside the subpoenas.

The court made no orders regarding costs.

Orders