Hesford v Hancock - [2021] WASC 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HESFORD -v- HANCOCK [2021] WASC 294
CORAM:   REGISTRAR WHITBREAD
HEARD:   17 JUNE 2021
DELIVERED          :   26 AUGUST 2021
FILE NO/S:   CIV 1552 of 2020
BETWEEN:   HAYDN HESFORD
Plaintiff
AND
LAURA MARION HANCOCK
First Defendant
LOUISE GEORGIA DOUGLAS
Second Defendant

Catchwords:

Practice and procedure - Application to set aside a subpoena - Whether the documents sought by the subpoena serve a legitimate forensic purpose - Whether subpoena should issue for categories of documents that are privileged and where privilege has been asserted

Legislation:

Rules of the Supreme Court 1971 (WA), O 36B r 8A

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff	:	M Curwood SC & MA Kershaw
First Defendant	:	E Ryan & J Henderson
Second Defendant	:	M Blundell

Solicitors:

Plaintiff	:	Kershaw Legal
First Defendant	:	Butlers Lawyers & Notaries
Second Defendant	:	Solomon Brothers

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

AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366
Alister v The Queen (1984) 154 CLR 404
Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
Attwell v Morgan [2019] WASC 182
Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; (2011) 283 ALR 137
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Bool v Bool [1941] St R Qd 26
Boughton v Knight (1873) LR3P&D 64
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Buswell v Carles [2012] WASC 509
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76
Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Donaldson v Nolan [No 3] [2015] WASC 194
Estate of Janakievska [2011] NSWSC 1275
Hamilton v Oades (1989) 166 CLR 486; 85 ALR 1; 15 ACLR 123
Hearne v Street (2008) 235 CLR 125, [2008] HCA 36
Holloway v State of Victoria (Department of Justice) [2015] VSC 526
In the Will of Wilson [1897] 23 VLR 197
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415
King v Hudson [2009] NSWSC 1013
Lacerenza v Calautti [2005] WASC 46
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385
Nicholson v Knaggs [2009] VSC 64
Oswal v Yara Australia Pty Ltd [No 2] [2011] WASC 146
Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [No 2] [2011] WASC 189
Power v Smart [2018] WASC 168
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66
Saunders v Public Trustee [2015] WASCA 203
Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996)
Stanley v Layne Christensen Co [2004] WASCA 50
The Public Trustee v Nezmeskal [2018] WASC 394
Timbury v Coffee (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 ; 88 ALR 90
Veall v Veall [2004] VSCA 204
Waring v Waring (1848) 6 Mood PC 341
Weeks v Nationwide News Pty Ltd [No 3] [2019] WASC 268
Wookey v Quigley [No 5] [2011] WASC 275
Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

REGISTRAR WHITBREAD:

The application

On 13 May 2021, Laura Marion Hancock (the first defendant), issued a subpoena as of right (the subpoena) to Kylie Jane Everett (Ms Everett) the principal of WL & KJ Everett, Barristers and Solicitors (the law firm).
On 19 May 2021, Haydn Hesford (the plaintiff) applied to the court to have the subpoena set aside (application).
On 28 May 2021, the plaintiff filed written submissions in support of the application to set aside the subpoena; amended submissions were filed on 31 May 2021 (but are still dated 25 May 2021). On 4 June 2021, the first defendant filed responsive submissions (the first defendant's submissions) and, on 11 June 2021, Louise Georgia Douglas (the second defendant) filed submissions in support of the plaintiff's application to set aside the subpoena.
The application proceeded to a hearing on 17 June 2021 at which all parties made oral submissions in support of their written submissions. I have considered all the written and oral submissions of the parties in reaching my decision.

Background

Patricia Marion Anita Douglas (the deceased) was born on 9 April 1932 and died on 15 June 2018 leaving property with a value of approximately $675,000.
In this proceeding, the plaintiff contends that the deceased made a valid will on 19 February 2015 (the will).
The plaintiff contends that the will:
(a)revokes all previous wills made by the deceased;
(b)appoints Peter Douglas (Peter), the deceased's husband, as institute executor;
(c)gifts the whole of her real and personal estate to Peter, provided that he survives her;
(d)appoints her accountant, Paul Hesford, as first substitute executor;
(e)appoints the plaintiff as the second substitute executor;
(f)in the event that Peter fails to survive her:
(i)gives the sum of $40,000 to the first defendant;
(ii)gives the balance of her estate to the first defendant and the second defendant in equal shares.
The plaintiff submits that the will is rational on its face and was duly executed; the deceased having been of sound mind, memory and understanding at the time of execution. The plaintiff says that the will was never revoked or destroyed by the deceased or by any other person in her presence.
Peter predeceased the deceased and therefore the first defendant and the second defendant are the beneficiaries of the will. The second defendant contends for the validity of the will.
The first defendant contends that the will is invalid and contends that the deceased and Peter executed mutual wills in or about December 2014 (mutual wills) whereby she received the first $200,000 of the estate with the residue split equally between the first and second defendants. The first defendant asserts that she sighted the mutual wills but no copy/copies of either of the mutual wills are before the court and none of the other parties to the action have sighted the mutual wills or are aware of their existence. One of the remedies sought by the first defendant, in a related proceeding, is that she be appointed administrator of the estate so she can conduct inquiries to locate a copy/copies of the mutual wills.
The deceased's earlier 2004 will, produced by all parties in their affidavit of scripts, splits the estate equally between the daughters.
Accordingly, the dispute between the beneficiaries in this matter is over $160,000 and requires the location of the deceased's (or, at the very least, Peter's) mutual will. If the will was found to be invalid and no copy of the mutual will was located, then the 2004 will would be proven and the first defendant would be worse off (in terms of beneficial entitlement) than under the will.
The additional payment under the will (whatever the quantum) to the first defendant arises out of a wish by the parents to compensate the first defendant for monies paid by the deceased and Peter to the second defendant for improvements/renovations to her home after they moved there.
After the deceased died, Paul Hesford renounced probate. The plaintiff, as second substitute executor, made an application for a grant of probate of the will in common form which was granted by the court on 27 December 2018.
The solicitor who took instructions for the drafting of the will, and drafted the will, was Ms Everett.
The first defendant submits that the will is not rational on its face and does not admit that it was duly executed because:
(a)Peter was expected to die within a matter of hours, or at most within a matter of days, of the preparation of the will which left him the entire estate of the deceased should he survive her;
(b)the deceased died of dementia and the deceased's dementia likely predated the will:
(c)the deceased was demonstrating early behavioural change from 2009:
(i)from around 2010 the deceased showed a tendency to falls;
(ii)from around 2012 the deceased engaged in uncharacteristic and hurtful conduct towards relatives and friends;
(iii)from around 2012 the deceased displayed uncharacteristic and aggressive conduct towards other road users;
(iv)the original death certificate indicated that the deceased's cause of death was 'advanced dementia (3 months), dementia (3 years). The will was prepared 3 years and 4 months prior to the deceased's death.
(d)the deceased completed the will in extremis:
(i)the deceased was taken to the premises of the law firm on 19 February 2015 by the second defendant where she (not defined in the pleadings) gave instructions to Ms Everett to prepare the will;
(ii)at the time, Peter was at the second defendant's home and was expected to die imminently. He did, in fact, die the following day;
(iii)the deceased gave instructions for her new will, waited whilst it was prepared, and signed it during the same appointment;
(iv)no steps were taken to alter Peter's will, notwithstanding that the deceased and Peter had previously held mirror wills.
Further, the first defendant submits that the deceased did not clearly and/or accurately recall her own circumstances during her appointment with Ms Everett on 19 February 2015:
(a)the will appointed Peter as the sole beneficiary and the executor, notwithstanding that he was expected to die within hours or days;
(b)the deceased did not inform Ms Everett that her husband was in imminent expectation of death;
(c)the deceased told Ms Everett that her husband was still in hospital when he had, in fact, been discharged;
(d)the home address in the will had an incorrect street number for the deceased.
(e)on the same day, 19 February 2015, the deceased gave instructions for an Enduring Power of Attorney (EPA) appointing the second defendant as her attorney, but did not instruct Ms Everett to:
(i)revoke the previous enduring power of attorney appointing both the defendants jointly, which had been registered with Landgate;
(ii)register the new EPA at Landgate;
(iii)notify the first defendant that the enduring power of attorney naming her as an attorney had been revoked or replaced.
The first defendant submits that the deceased either did not recall, or uncharacteristically disregarded, that she had agreed to a mirror will with Peter and that:
(a)the will represented a significant departure from the terms of the mutual wills that the first defendant was shown by Peter in 2014;
(b)the deceased did not explain to Ms Everett why she was departing from the mutual wills that she and Peter had previously prepared;
(c)Peter was not given any notice of the change, nor the opportunity to change, his own will in light of the change.
Further, the first defendant states that the deceased was not asked to prove capacity immediately before she executed the will, or otherwise on that date, and that no proof of capacity (on the date the deceased executed the will) was recorded contemporaneously by Ms Everett on the deceased's file.
The first defendant submits that the effect of the above facts is that the presumption of capacity is displaced and the plaintiff is put to proof of the deceased's capacity at the time of execution of the will.
The first defendant does not positively plead that the will was made in circumstances giving rise to a suspicion that the deceased may not have known and approved the contents of the will because other parties conspired, or were complicit in, the execution of a will which any of those parties knew to be invalid in that the deceased did not have capacity; for example, there is no pleading that a beneficiary was too involved in the preparation of the will or that the solicitor acted contrary to her duties to her client, the deceased, or as an officer of the court.
The plaintiff filed an affidavit sworn by Ms Everett on 12 April 2021 which affidavit annexes various documents relating to the instructions taken by her from the deceased and Peter in relation to the preparation of their respective wills. The plaintiff intends to rely on Ms Everett's evidence at trial.

The Subpoena

The subpoena requires the production of:
1.All documents recording or evidencing:
(a)Legal advice provided to Patricia Marion Anita Douglas and/or Peter Douglas for any purpose;
(b)Instructions given by Patricia Marion Anita Douglas or her agents and/or Peter Douglas or his agents, to legal advisers,
In respect of Wills and Estate Planning, Enduring Powers of Attorney, Enduring Powers of Guardianship, Deed of Family Arrangement, or related to either of their daughters.
2.All documents recording or evidencing:
(a)Legal advice provided to Louise Georgia Douglas;
(b)Instructions given by Louise Georgia Douglas or her agents, to legal advisers,
In respect of the Enduring Power of Attorney and Enduring Power of Guardianship made by Patricia Marion Anita Douglas on 19 February 2015, under which Louise Georgia Douglas was appointed as the Attorney and the Guardian for Patricia Marion Anita Douglas.
3.All documents recording or evidencing:
(a)Legal advice provided to Paul Hesford and/or Haydn Hesford;
(b)Instructions given by Paul Hesford or his agents and/or Haydn Hesford or his agents, to legal advisers;
(c)Communications to and from third parties, including beneficiaries and potential executors (whether in their capacity as executor or otherwise), of the Estate,
In respect of an Application for a Grant of Probate of the Estate of Patricia Marion Anita Douglas, and the administration of the Estate of Patricia Marion Anita Douglas.
4.All documents recording or evidencing:
(a)Legal advice provided to Haydn Hesford;
(b)Instructions given by Haydn Hesford or his agents, to legal advisers;
(c)Communications to and from third parties and/or beneficiaries of the Estate,
In respect of proceedings CIV/1445/2020, including but not limited to all pre-action conferral notes and correspondence with parties.
5.Itemised invoices billed to and/or paid by the Estate of Patricia Marion Anita Douglas and/or the Estate of Peter Douglas.

Submissions

The plaintiff's submissions in support of the application

The plaintiff seeks to have the subpoena set aside as an abuse of process because it seeks documents that are irrelevant to the issues in this matter, which relate to the validity of the will and the deceased's state of mind at the time she made the will.[1]
[1] Donaldson v Nolan [No 3][2015] WASC 194 [65] (Beech J).
The plaintiff gave discovery of all documents relevant on the pleadings by affidavit sworn 10 November 2020.
Ms Everett, the recipient of the subpoena, has sworn an affidavit which sets out the circumstances in which she took instructions from the deceased in relation to the will and the execution of the will on 19 February 2015.
The plaintiff submits that the documents sought in the subpoena are not relevant to these proceedings, having no legitimate forensic purpose:
(a)The first category seeks documents relating to legal advice to the deceased and her husband in respect of wills, estate planning, enduring powers of attorney, enduring powers of guardianship, deed of family arrangement or legal advice related to their daughters.
(b)Other than documents relating to the preparation of the will of the deceased, which have been discovered by the plaintiff, the documents sought are not relevant to these proceedings; evidence that the deceased had capacity at the date of giving instructions and signing the will; and evidence that the deceased knew and approved of the terms of the will.
The plaintiff submits that second category seeks documents which relate to legal advice provided to the second defendant:
(a)The third category seeks documents which relate to legal advice provided to the person named as executor in the will (Paul Hesford) and the plaintiff in relation to the application for the grant of probate and advice in relation to the administration of the estate.
(b)The fourth category seeks documents relating to legal advice provided to the plaintiff in relation to other proceedings (CIV 1445/2020) in this Honourable Court; a breach of the implied Harman principle.
(c)The fifth category has no legitimate forensic purpose.

The second defendant's submissions in support of the application

The second defendant joins the plaintiff in his submission that the subpoena is an abuse of process.
In addition to the arguments put forward by the plaintiff, the second defendant contends that, by the subpoena, the first defendant seeks almost every piece of paper, and every communication (electronic or otherwise), existing in the law firm's files, governing: these proceedings; the administration of the estate; past client matters; other court proceedings; conferral between solicitors; and the lawyer's invoices. Almost every such document will be subject to legal professional privilege. In particular, the second defendant would assert legal professional privilege in relation to any documents containing legal advice to her in relation to the EPA and Enduring Power of Guardianship (EPG).
The second defendant submits that the abuse of process is exacerbated by the first defendant's impermissible attempt to adduce evidence in her submissions unsupported by any affidavit or other proper source of evidence. These include:
(a)the historical conduct of the executor's solicitor (Ms Everett) – the first defendant's submissions at [11];
(b)historical advice given by the solicitor, and a deed – at [18];
(c)copious quotation from a letter (unrelated to the will) – at [22], [23];
(d)alleged 'prior inconsistent statements' made by the solicitor – at [36].
Therefore, it appears that every category of documents identified in the subpoena is targeted at attacking the credibility of Ms Everett. Such an attack on Ms Everett's credibility is not a legitimate forensic purpose.
The second defendant also refers to the fact that the court rules in relation to subpoenas should be construed and applied so as to best ensure the attainment of the case management objects referred to in O 1 r 4B(1) Rules of the Supreme Court 1971 (WA), and therefore avoid unnecessary added costs, including those arising from:
[F]orays into fields of documentary irrelevance … [through] compulsive pre-trial documentary processes, lest they become abused or unduly oppressive in their ramifications for parties to litigation.[2]
[2] Wookey v Quigley [No 5] [2011] WASC 275 [35], [37].
In this regard, the second defendant contends that the costs of these, and the other two related proceedings brought by the first defendant, are out of control; consequently, the progress to trial of the straightforward issues of these proceedings continues to be unnecessarily and unjustly delayed.

The first defendant's submissions in opposition to the application

The first defendant submits that:
(a)the concept of abuse of process overlaps with the obligation of a court to provide a fair trial. The power to control and supervise the court's process is directed to preventing injustice;
(b)the content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience;[3]
(c)it is established, however, that in this context, injustice is a question of both the true purpose for which the issue of the subpoena was procured, and also the effect or impact of the subpoena on the person to whom it was issued.[4]
[3] Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66.
[4] Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 ; 88 ALR 90, 102 (Arnotts); Hamilton v Oades (1989) 166 CLR 486, 502 ; 85 ALR 1, 10 ‑ 11 ; 15 ACLR 123, 131 ‑ 132.

The first defendant submits that it is relevant in the context of the latter that the objection to the subpoena is raised by the plaintiff but that neither of the subjects of the subpoena, Ms Everett and the law firm, have raised any objection. The effect or impact of the subpoena on the person to whom it was issued is not a matter raised in the plaintiff's submissions. At this stage, the only interests involved are those of the first defendant and Ms Everett and the law firm. The plaintiff contends that interests of the plaintiff and the second defendant are not involved.[5]
[5] Wood Challenging Subpoenas Duces Tecum: Is There a Third Party View? (1984) 10 Sydney Law Review 379 at 382.
The first defendant contends that it appears from the body of the plaintiff's submissions that the complaint of the plaintiff is not, in fact, abuse of process but rather a mere assertion that the 'documents sought in the subpoena are not relevant to these proceedings'.[6] They are said to 'have no legitimate forensic purpose' and to be 'not relevant to the issues for trial'. The first defendant submits that neither suggestion comprises an abuse of process per se, although they may comprise an element of abuse of process in the context of a broader argument. Such broader argument is pressed in the first defendant's submissions.
[6] Amended Outline of Submissions filed by the Plaintiff on 31 May 2021, par 7.
The first defendant submits that it would be unusual for a subpoena to be set aside as an abuse of process on the ground the documents by description are irrelevant to the subject proceedings or are incapable of bearing upon matters of credit pertinent to the proceedings, before the documents have been produced.[7]
[7] Stanley v Layne Christensen Co [2004] WASCA 50 [9] (Miller & EM Heenan JJ quoting with approval Master Sanderson in the court below).
The first defendant contends that the subpoena meets the low threshold test of apparent relevance because the subpoena is directed to Ms Everett and the first defendant has provided notice that Ms Everett is required for cross‑examination at trial. The first defendant argues that a significant purpose of the subpoena is to obtain the material relevant to challenge Ms Everett's credibility and conclusions; Ms Everett's role in the factual matrix that gives rise to the proceedings has been centrally at issue between the parties since before these proceedings were commenced.
The first defendant submits that in assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial.[8] The relevance of a document may not be apparent unless or until it is used in cross‑examination to refute (potentially unforeseen) evidence‑in‑chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen to be admissible in evidence.[9]
[8] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [13] (Beech J).
[9] Stanley v Layne Christensen Co [2004] WASCA 50 [9] (Miller & EM Heenan JJ quoting with approval Master Sanderson in the court below).
The first defendant submits that the evidence of an experienced solicitor who took instructions for a will is ordinarily (and rightly) a matter to which the court attaches significant weight where capacity is at issue at the date of the instructions. The credibility of Ms Everett is not an ancillary issue; it is central to the dispute between the parties. The first defendant presses the position that the presumption of capacity is displaced. If the court agrees, then Ms Everett's credibility, or lack thereof, will be critical to the court making a finding of capacity at the relevant point in time.
The first defendant submits that the role of subpoenas in the administration of justice is crucial.[10] The purpose of a subpoena is to facilitate the administration of justice between parties.[11] The power to subpoena documents advances the public interest by facilitating determinations based on the true facts.[12]
[10] Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 [110] (Hallen AsJ).
[11] Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 570 (lines 15 – 25) per Smithers J (with whom Bowen CJ & Nimmo J agreed).
[12] AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366 [28] (Muir JA) (with whom Holmes JA & White AJA agreed).
The first defendant submits that:
(a)material sought in the subpoena serves a legitimate forensic purpose and is relevant to the issues in dispute in the proceedings, either directly or by challenge to the credibility of a key witness;
(b)ultimately the relevance of the documents produced will be a question for trial. It is not appropriate for the court to embark on a detailed enquiry involving evidence from the party seeking to issue the subpoena and the recipient of the subpoena.[13]
(c)the onus of satisfying the court that there is an abuse of process lies on the person asserting the existence of the abuse.[14]
(d)the plaintiff has not met the onus of satisfying the court that there is an abuse of process and has not made out any other basis for setting the subpoena aside.
[13] Boase v Axis International Management Pty Ltd [No 3] [14] (Beech J).
[14] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 [38] (Yates J).
I have addressed the first defendant's specific objections to each category of documents which form the subject of the application in my decision below.

The court's jurisdiction

The court has jurisdiction to set aside a subpoena pursuant to O 36B r 8A(2) of the Rules of the Supreme Court 1971 (WA) (RSC) which provides:
On a request by the addressee, a party or any other person with a sufficient interest, the Court may, by order -
(a)set aside a subpoena or part of it; or
(b)make or vary directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or
(c)grant other relief in respect of it.
The court can also exercise its inherent jurisdiction to set aside a subpoena. It may do so where the subpoena does not serve a legitimate forensic purpose, where it is oppressive or where it amounts to an abuse of process.[15]
[15] Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [26].
The threshold question to be answered is 'are the subpoenaed documents relevant to matters in issue?'.
In Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] ‑ [14] and [16] ‑ [17], Beech J summarised the principles as follows:
The first question is whether the documents, or passages to which objection is taken, have apparent relevant to the litigation.
Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374; Stanley v Layne Christensen Co [2004] WASCA 50 [9]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18].
In advance of trial, the determination of whether a document is relevant is a difficult one: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385; Apache Northwest Pty Ltd (373).
In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account. The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial: Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
Ultimately the relevance of the documents produced will be a question for determination at the trial. It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the party seeking to issue the subpoenas and the recipient of the subpoenas: Apache Northwest Pty Ltd (379).
…
One object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage in proceedings. Accordingly, a narrow view should not be taken as to the legitimate purposes of a subpoena of apparent relevance: Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
The determination of whether inspection should be permitted of documents produced on subpoena is separate from the question of whether to grant leave to issue the subpoena: Waind (381); Apache Northwest Pty Ltd (371); Stanley v Layne Christensen Co [11] - [13].
In order to determine whether subpoenaed documents are relevant to matters in issue, the court must look to the pleadings.[16]
[16] Wookey v Quigley [No 5] [2011] WASC 275 [8] ‑ [9]
A prayer for relief is not part of a pleading. A prayer for relief is more appropriately classified as a submission by a party as to the orders that ought be made if that party is successful in establishing a cause of action against the other party.[17]

Principles applicable to consideration of whether the subpoena is an abuse of process because it serves no legitimate forensic purpose

[17] Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280.

One ground on which a subpoena may be set aside as an abuse of process is that it is not being used for a legitimate forensic purpose.[18]
[18] Areva [17] and [20]; Commonwealth of Australia v Albany Port Authority and Stanley v Layne Christensen Company.
Four points of principle for determining whether the subpoena serves a legitimate forensic purpose are set out in Stanley v Layne Christensen Company [9], where the Court of Appeal approved of and adopted the following assessment of case law conducted at first instance by Master Sanderson:
(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 at 613 - 614.
(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforeseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.
(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.
(4) There is no requirement that to avoid the stigma of fishing, a party must already by in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136 at 143 - 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.
Thus the court must consider whether the documents give rise to a line of inquiry, whether the documents are required for a fair disposal of the action, whether the documents allow the parties to appraise the strengths and weaknesses of their and their opponent's case, and whether all relevant documents should be made available to the parties. A document may materially assist the defence even if it is not admissible in the proceeding. A legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact.
The party issuing the subpoena must identify expressly and with precision the legitimate forensic purpose for which access to the documents is sought.
It has often been said that the issuing party must satisfy the court that it is 'on the cards' or that there is a 'reasonable possibility' that the documents would materially assist the issuing party's case. The expression 'on the cards' is derived from the judgment of Gibbs CJ in Alister v The Queen (1984) 154 CLR 404, 414. Some cases have criticised the expression 'on the cards' and prefer the classic formulation of whether there is a reasonable possibility that the document will materially assist the party's case. In Holloway v State of Victoria (Department of Justice) [2015] VSC 526 [52] ‑ [59] Cavanough J reviewed the history of decisions in this area, whether there is any difference in the two tests and suggested that judges follow the 'reasonable possibility' test.

Principles applicable to consideration of whether the subpoena a 'fishing' exercise

It is 'fishing' if the subpoena is served not for the purpose of requiring production of documents which the person subpoenaed is reasonably expected to hold, and which are likely to advance the issuing party's case, but with the purpose of seeing what documents the party subpoenaed may have, and whether they may give the issuing party a case or defence.
As stated in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, 254 (Owen J):
A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition'.
It is not necessary that the issuing party know of the contents or existence of the documents sought. A party is not necessarily 'fishing' for documents in this sense if that party requires those documents solely for use in cross–examination. The prohibition against 'fishing' does not require that the issuing party already has relevant evidence in its possession, only that there exists a pleading which raises issues to which the evidence sought by the subpoena would be relevant.[19]
[19] Weeks v Nationwide News Pty Ltd [No 3] [2019] WASC 268 [16] (Le Miere J).

Principles applicable to the determination of testamentary capacity

The first defendant submits that the plaintiff is put to proof of the deceased's testamentary capacity at the time of execution of the will. Testamentary capacity is determined by the application of the test stated by Cockburn LCJ in Banks v Goodfellow:[20]
It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[20] Banks v Goodfellow (1870) LR 5 QB 549 at 565; Saunders v Public Trustee [2015] WASCA 203 [154] – [171]; The Public Trustee v Nezmeskal [2018] WASC 394; Attwell v Morgan [2019] WASC 182 [67]; Power v Smart [2018] WASC 168.
The Banks v Goodfellow approach does not require perfect mental acuity and memory. Even if a person's mental faculties are impaired, testamentary capacity will exist, provided the person retains 'sufficient intelligence to understand and appreciate the testamentary act in its different bearings'.[21]
[21] Banks v Goodfellow (566); Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275.
Conformably with the proposition set out in the preceding paragraph the courts do not overlook the fact that many wills are made by people of advanced years in whom slowness, illness, feebleness and eccentricity may sometimes be apparent. These features are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.[22]
[22] Re Griffith; Easter v Griffith (1995) 217 ALR 284 [295]; Petrovski v Nasev [247].
When determining testamentary capacity the court needs to be satisfied that the deceased had the capacity: to remember, so that she can call to mind the property at her disposal and those who may have claims upon her; to reflect, so that she can consult within herself on the relative weight of their claims; and to reason, so that she can judge, having regard to her assets, how far, if at all, she should give effect to them.[23]
[23] King v Hudson [2009] NSWSC 1013 [51]; In the Will of Wilson [1897] 23 VLR 197, 199; Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ); Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996) 17 – 18.
It must be remembered, however, that the question is whether the deceased had the capacity of sound judgment, not whether she, in fact, made the judgment about her disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.[24]
[24] Petrovski v Nasev [252].
It is not necessary to establish that the deceased was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. What must be established is that the deceased understood that she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.[25]
[25] Petrovski v Nasev; Nicholson v Knaggs [2009] VSC 64 [97].

In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non‑exclusion of beneficiaries.[26] An unexplained and significant departure from testamentary intentions recorded in earlier wills may raise doubts about testamentary capacity.[27]
[26] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571.
[27] Bool v Bool [1941] St R Qd 26, 39.
If the will is rational on its face and is proved to have been duly executed, there is a presumption that the deceased was mentally competent.[28]
[28] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757; Veall v Veall [2004] VSCA 204 [167].
Once the propounder has proved that the deceased had testamentary capacity and that the will was duly executed, a further presumption arises that the deceased knew and approved the contents of the will.[29]
[29] Veall v Veall [169].
The presumptions of testamentary capacity and knowledge and approval may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity (sometimes expressed in terms of a 'well‑grounded suspicion that the instrument might not express the will of the testator')[30] or a doubt the testator might not have appreciated the contents of the will and approved them. Circumstances that raise such doubts shift the evidential burden to the party propounding the will to show that the testator was of 'sound disposing mind' and knew and approved the contents of the will.[31] Those doubts, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity and knowledge and approval of the contents of the will.[32] Thus, where it appears that the deceased suffered from any medical condition which affected testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will.[33] A residual doubt is, however, not enough to defeat a claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the last will of a free and capable testator.[34]
[30] Veall v Veall [171].
[31] Veall v Veall [169]; Waring v Waring (1848) 6 Mood PC 341; Lacerenza v Calautti [2005] WASC 46 [113].
[32] Veall v Veall [166] – [171].
[33] Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295; Veall v Veall [169].
[34] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 452 – 453.
Decisions about 'testamentary capacity' and 'knowledge and approval' are necessarily fact sensitive. Ultimately, whether the deceased possessed the requisite capacity and knew and approved the terms of her will are questions to be determined upon all of the facts established in the case and not solely by reference to the medical evidence.[35]
[35] Boughton v Knight (1873) LR3P&D 64, 67; King v Hudson [2009] NSWSC 1013.

Should the subpoena, or any part thereof, be set aside?

Accepting that the test of relevance has a low threshold and that it is not for the court, upon this application, to engage in a detailed preliminary enquiry to determine the relevance of documents, I make the following findings in relation to each category of subpoenaed documents objected to by the plaintiff and the second defendant.
The first defendant's submissions assert that she has a basis to believe that the second defendant, the plaintiff, Ms Everett and Paul Hersford have all acted in some way that will mean that they were complicit in conduct, or acted independently, so as to 'cover up' the fact that the deceased lacked capacity to execute a valid will. No evidence is produced as to such allegations and no proof of any such actions can be established on the affidavits filed in the proceeding. The first defendant has not pleaded even a bare outline of any such asserted facts in the defence and counterclaim.
In particular, given that the subpoena is directed to Ms Everett and the law firm, there was no evidence before me, on the application, of any prior inconsistent statements by Ms Everett and no evidence to show that she had acted improperly in her dealings with the deceased, Peter, the deceased's family, the estate, the plaintiff or Paul Hesford. Whilst the first defendant asserts that Ms Everett's credibility will be in issue at trial as to her evidence directly relating to the validity of the will and the deceased's state, and capacity, of mind amongst other issues, no proper basis for such a line of cross‑examination other than the first defendant's subjective belief that Ms Everett has not been truthful, or accurate, in her affidavit has been advanced. Absent any evidentiary foundation at all for such belief, seeking documents to see if there is evidence to support that belief would constitute a 'fishing expedition' within the analysis set out by Owen J in Associated Dominions at 254 unless the documents sought give rise to a line of enquiry relevant to a fact in issue.

Category 1

1.All documents recording or evidencing:
(a)Legal advice provided to Patricia Marion Anita Douglas and/or Peter Douglas for any purpose;
(b)Instructions given by Patricia Marion Anita Douglas or her agents and/or Peter Douglas or his agents, to legal advisers,

In respect of Wills and Estate Planning, Enduring Powers of Attorney, Enduring Powers of Guardianship, Deed of Family Arrangement, or related to either of their daughters.

The first defendant contends that, in her affidavit, Ms Everett has deposed that:
(a)The deceased and Peter engaged Ms Everett and the firm to provide legal services;[36]
(b)Other than on 19 February 2015, being the date the will in question was signed, all attendances by Ms Everett on the deceased were also attended by Peter;[37]
(c)The deceased's daughters were discussed on various occasions by Ms Everett with the deceased and Peter.[38]
[36] Affidavit of Kylie Jane Everett sworn on 12 April 2021, par 3.
[37] Affidavit of Kylie Jane Everett sworn on 12 April 2021, pars 5 - 7, 20.
[38] Affidavit of Kylie Jane Everett sworn on 12 April 2021, pars 6 - 8, 10, 20, 23, annexures KJE1, KJE2, KJE4, KJE11.
The first defendant refers to a file note of a meeting held on 19 February 2015 annexed to Ms Everett's affidavit which states that 'Louise will see Michaela at Culshaw Miller… Mel Alcock has edited the deed of family arrangement to be signed by Pat + Louise + Rob… Michaela Spearing – lawyer at Culshaw Miller'.[39] Presumably, the reference is to another unrelated matter (given the different names of the solicitors and parties and the fact that no deed of family arrangement was relevant to the deceased or Peter's estate at this date). The first defendant relies on this notation to state that the second defendant was present at the meeting which those notes record. The clear implication is that Ms Everett has sought to hide the presence of the second defendant at the 19 February 2015 meeting and has been 'caught out' by this reference. The file note of 19 February 2015 is clear on its face; the third page of that file note states that Louise came into the room at 11.00 am and the matters discussed thereafter are clearly recorded.
[39] Affidavit of Kylie Jane Everett sworn on 12 April 2021, annexure KJE11.
The first defendant also submits that Ms Everett's credibility in respect of any or all matters deposed to by her is at issue in the proceedings. The contention is that the history of Ms Everett's dealings with the parties is relevant in that context. That history includes advice provided to the deceased (following the death of her late husband) in relation to a deed of family arrangement (which cannot be the deed of family arrangement referred to in the 19 February 2015 file note as Peter was still alive at that time). The other parties to that deed of family arrangement were the second defendant and her husband, and Paul Hesford (the father of the plaintiff) in his stated capacity as the executor of the late Peter Douglas. The first defendant submits that issues relating to the deed of family arrangement are likely to be traversed in cross‑examination of Ms Everett. No evidence was filed on which a finding of bias or unethical behaviour could be made and I find that the 15 February 2015 file note merely records what occurred at the meeting on that date and does not provide any evidence to found a finding that Ms Everett's evidence lacks credibility.
The first defendant lastly submits that the extent to which the deceased's instructions represented a departure from her previous instructions is relevant to the determination of actual capacity when she gave instructions for and signed her will, as is any behaviour that might be perceived as irregular, unusual, or a departure from habit.
The issues in the proceeding relate to the validity of the will and the deceased's state of mind at the time she made the will. However, I find that the scope of documents sought in category 1 is too broad as it traverses all dealings the law firm had, at any time, with the deceased and Peter. Given that it is enough that a document may lead to a line of enquiry relevant to the matters in issue, I am satisfied that documents relating to a fact in issue are those documents on the law firm's file relating to the preparation and execution of the will and the EPA (which was executed on the same day as the will). Those documents inform as to the matters in issue between the parties, namely validity of the will and the mental capacity of the deceased at the relevant time. Accordingly, whether they constitute legal advice or not, all documents on the law firm's file, or files, pertaining to the preparation and execution of the will and the preparation and execution of the EPA and the EPG are relevant to a fact in issue in the proceeding and are returnable on subpoena. On the evidence and pleadings before me, documents relating to other issues, including matters after the date of execution of the will, are irrelevant to testamentary capacity and the validity of the will as at the time it was executed.

Category 2

2.All documents recording or evidencing:
(a)Legal advice provided to Louise Georgia Douglas;
(b)Instructions given by Louise Georgia Douglas or her agents, to legal advisers,

In respect of the Enduring Power of Attorney and Enduring Power of Guardianship made by Patricia Marion Anita Douglas on 19 February 2015, under which Louise Georgia Douglas was appointed as the Attorney and the Guardian for Patricia Marion Anita Douglas.

The first defendant submits that the objection to this category, being that it seeks documents relating to legal advice provided to the second defendant, is not strictly correct. The first defendant contends that the second defendant is a party to proceedings as a beneficiary of the deceased's will. The subpoena seeks legal advice provided to the second defendant in her capacity as the person named in the EPA and EPG and refers to the fact that on 30 May 2018, Ms Everett wrote to the first defendant, and stated:
We act for your sister Louise Douglas in providing advice to her in relation to her role as your mother's enduring attorney and guardian.
We understand that your mother's capacity unexpectedly deteriorated rapidly and became noticeable in about late April 2018. Louise has since been advised that the onset of dementia can often be ascribed to a fall, and as you are aware, your mother fractured her fibia on 15 December 2017. Your mother's GP has now diagnosed her as having dementia and we enclose a copy of a letter from him dated 22 May 2018 in this respect. As a result of this diagnosis, our client must now take on her role as attorney for your mother and make financial decisions on her behalf acting in her best interests and to protect her property and financial interests.
The letter also states that:
As the cost of seeking legal advice in relation to any legal issues that arise as attorney are expenses that the donor's estate will bear…
The first defendant contends that any legal advice caught in the documents requested is expected to be related, not to the second defendant, but to the EPA and the EPG of the deceased, the latter being the party paying for said advice.
The first defendant asserts that she is entitled to explore the subpoenaed communications for evidence of loss of capacity from the date of the EPA and the EPG by the deceased; and for the purpose of cross‑examining Ms Everett and the second defendant.
On the evidence and pleadings before me, legal advice provided to, and instructions given by, the second defendant relating to events three years after the execution of the will are subject to a proper claim of legal privilege by the second defendant.
Secondly, I find that such documents cannot be said to give rise to a reasonable line of enquiry as to whether the will is valid and whether the deceased had testamentary capacity. If the second defendant was present with the deceased at any meetings, or gave any instructions to the law firm, in respect of the deceased's will (or the EPA or the EPG) then such documents would be produced on the law firm's file pursuant to my decision in relation to category 1 of the subpoena which requires production of the law firm's file, or files, in relation to the preparation of, and execution of, the will, the EPA and the EPG. The 30 May 2018 letter, and events referred to therein, all post‑date the execution of the will by some three years, at which time the deceased's mental capacity had diminished such that the need for consideration of the second defendant acting as guardian and attorney had arisen. This category (given my decision in relation to category 1) constitutes a fishing expedition.
I am not satisfied that these documents are relevant to matters in issue, or will give rise to a line of enquiry relevant to a fact in issue, and therefore category 2 of the subpoena is set aside.

Category 3

3.All documents recording or evidencing:
(a)Legal advice provided to Paul Hesford and/or Haydn Hesford;
(b)Instructions given by Paul Hesford or his agents and/or Haydn Hesford or his agents, to legal advisers;
(c)Communications to and from third parties, including beneficiaries and potential executors (whether in their capacity as executor or otherwise), of the Estate,

In respect of an Application for a Grant of Probate of the Estate of Patricia Marion Anita Douglas, and the administration of the Estate of Patricia Marion Anita Douglas.

The plaintiff submits that the third category seeks documents relating to legal advice provided to the person named as first substitute executor in the will (Paul Hesford) and the plaintiff. The first defendant contends that issues relating to the death certificate and the associated delays in filing the motion for a grant of probate are said to be likely to be traversed in cross‑examination of Ms Everett. It is important to note that there is no pleading of, or evidence of, concealment of the probate application. There is an allegation that Ms Everett (whether on instructions or not) delayed seeking probate until a death certificate had been reissued to remove reference to long-standing dementia. During the period of the delay, the first defendant contends that Ms Everett wrote various communications to the first defendant indicating a number of reasons for delay none of which traversed the reissue of a death certificate. These letters were not produced in evidence on the application; so the assertion against Ms Everett was unsupported by evidence and the issue of any delay in the probate application is not a fact pleaded by the first defendant as being supportive of suspicious circumstances.
The first defendant submits that she is entitled to test the veracity of Ms Everett's various communications, as well as examine any motivations that arise from her dealings with the named executor. She states that she is also entitled to examine whether there has been active or incidental concealment of other indicia of dementia in the deceased.
On the evidence and pleadings before me none of the documents referred to in category 3 are relevant to a fact in issue in the proceeding. The category is simply too broad (as it covers any matters arising out of the plaintiff's duties as executor) to give rise to a proper line of enquiry relevant to a fact in issue. There is no pleading as to the concealment of the probate application, of delay in the probate or the fact of the alteration in the death certificate as being supportive of suspicious circumstances, such that a proper basis is established for an argument that these documents found a proper line of enquiry relevant to a fact in issue.
Category 3 is stated too broadly and, as drafted, and on the basis of the submissions made, I cannot be satisfied that the documents are relevant to matters in issue , or will give rise to a line of enquiry relevant to a fact in issue, and therefore category 3 of the subpoena is set aside.

Category 4

4.All documents recording or evidencing:
(a)Legal advice provided to Haydn Hesford;
(b)Instructions given by Haydn Hesford or his agents, to legal advisers;
(c)Communications to and from third parties and/or beneficiaries of the Estate,

In respect of proceedings CIV/1445/2020, including but not limited to all pre-action conferral notes and correspondence with parties.

The plaintiff contends that the fourth category seeks documents relating to legal advice provided to the plaintiff in relation to other proceedings and is both subject to legal professional privilege and the Harman undertaking.
The first defendant submits that on 27 March 2020, the first defendant commenced the proceedings CIV 1445/2020. In those proceedings, the first defendant sought, inter alia:
(a)a revocation of the Grant of Probate that had previously been issued to the Plaintiff; and
(b)injunctions restraining Ms Everett and/or any lawyers employed by the Firm from acting for the Plaintiff or any other party to the proceedings.
The first defendant submits that neither the plaintiff nor the second defendant have filed a defence in CIV 1445/2020 and that, on 8 May 2020, the first defendant commenced the current proceedings, without any conferral with the first defendant as to why fresh proceedings were said to be preferable to continuing those already on foot. On 13 May 2020, the plaintiff in these proceedings sought an order in CIV 1445/2020 staying those proceedings, pending the determination of the current proceedings. Orders were ultimately made by consent adjourning CIV 1445/2020 for a period of almost 12 months.
The first defendant submits that the cross‑examination of Ms Everett in these proceedings may well traverse prior inconsistent statements made by Ms Everett, including those made in the context of CIV 1445/2020.[40] It is not for the court to determine at this stage whether that will appropriately arise, and indeed it is not a forensic decision that can be made by counsel for the first defendant at this stage in the proceedings.
[40] Ms Everett was put on notice ahead of the commencement of proceedings that she would be called as a witness in CIV/1445/2020.
The first defendant submits that any documents obtained under the subpoena in the current proceedings would give rise to the Harman undertaking,[41] and therefore could not be used by the first defendant (or any other party) in the other proceedings, without the leave of the court, unless the content of those documents are received into evidence.[42] The Harman undertaking applies to documents obtained on subpoena. A party and her solicitor have a legal obligation to use any documents obtained through subpoena only for the purposes of the litigation in which the subpoena is issued.[43]
[41] Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [No 2] [2011] WASC 189 [12] (Beech J); Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; (2011) 283 ALR 137 [77] (Lander J).
[42] Hearne v Street (2008) 235 CLR 125, [2008] HCA 36 [96] (Hayne, Heydon & Crennan JJ).
[43] Buswell v Carles [2012] WASC 509 [33] (McKechnie J); Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281 [14], [17] (Beech J); Oswal v Yara Australia Pty Ltd [No 2] [2011] WASC 146 [6] (Kenneth Martin J).

On the evidence and pleadings before me no proper explanation has been given by the first defendant as to how any of the documents referred to in category 4 could possibly be relevant to a fact in issue in this proceeding or could be said to give rise to a line of enquiry relevant to the matters in issue. Not only are the categories too broad (as they cover any advice ever given to Paul Hesford or the plaintiff in relation to another court action) but, as the first substitute executor and executor, such documents cannot, absent further explanation or evidence, be said to be relevant to whether the will was validly executed or the deceased had a testamentary capacity as, in so far as the documents are particularised, they relate to a time after the deceased had died. The application for the documents sought under category 4 of the subpoena constitutes a fishing expedition. Further, the documents sought relate to another proceeding which is currently on foot where the first defendant is the plaintiff. Not only are such documents subject to legal professional privilege but also, even if that were not the case, they are subject to the implied Harman undertaking.

Category 5

5.Itemised invoices billed to and/or paid by the Estate of Patricia Marion Anita Douglas and/or the Estate of Peter Douglas.

The first defendant submits that some of the invoices rendered by the law firm have already been provided by the law firm, presumably on the instruction of the plaintiff, to the defendants. One such invoice is annexed to the affidavit of the second defendant sworn on 19 February 2021. The first defendant contends that issues relating to entries on invoices issued by the law firm are likely to be traversed in cross-examination of Ms Everett. Once again the submission is broad without any proper explanation as to how such documents are relevant to a fact in issue or could lead to a line of enquiry relevant to a fact in issue. This category, as presently framed, constitutes a fishing expedition.

Conclusion

The subpoena is set side save as to the law firm's file, or files, in relation to all instructions given in relation to the drafting of the will; the circumstances of the execution of the will; and all the instructions given in relation to both the drafting of, and the execution of the EPA and the EPG. A subpoena in respect of all of such documents satisfies the low threshold test of relevance to a fact in issue in this proceeding and such documents may give rise to a line of enquiry relevant to the matters in issue. The first defendant should redraw the subpoena in accordance with the findings in this decision.

Costs

I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Acting Associate to Registrar Whitbread
26 AUGUST 2021