Sala Tenna v Di Lena

[2020] WASC 426

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SALA TENNA -v- DI LENA [2020] WASC 426

CORAM:   REGISTRAR WHITBY

HEARD:   ON THE PAPERS

DELIVERED          :   25 NOVEMBER 2020

PUBLISHED           :   25 NOVEMBER 2020

FILE NO/S:   CIV 2721 of 2019

BETWEEN:   LINDA SALA TENNA

Plaintiff

AND

BUALOY KAWITA DI LENA

Defendant

BUALOY KAWITA DI LENA

Plaintiff by counterclaim

LINDA SALA TENNA

Defendant by counterclaim

Catchwords:

Wills - Probate - Subpoena of documents from testator's solicitor - Subpoena objected to by the solicitor on the basis of relevance - Test of relevance - Doctrine of suspicious circumstances - Inspection of documents objected to by solicitor on basis of legal professional privilege - Court order required for inspection where no legal personal representative of testator determined

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Subpoenaed documents relevant to matters in issue
Solicitor ordered to produce subpoenaed documents
Inspection of subpoenaed documents at first instance by solicitors and counsel only

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance
Plaintiff by counterclaim	:	No appearance
Defendant by counterclaim	:	No appearance

Solicitors:

Plaintiff	:	Taylor Smart
Defendant	:	Graeme A Ryan & Associates
Plaintiff by counterclaim	:	Graeme A Ryan & Associates
Defendant by counterclaim	:	Taylor Smart

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

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

Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498

Boyce v Bunce [2015] NSWSC 1924

Dunesky v Elder (1992) 107 ALR 573

Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415

Power v Smart [2018] WASC 168

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Smart v Power [2019] WASCA 106

Wookey v Quigley [No 5] [2011] WASC 275

REGISTRAR WHITBY:

1. On 20 April 2020, Bualoy Di Lena, the defendant in this action, issued a subpoena (subpoena) to Fortuna Legal Pty Ltd (Fortuna Legal).

1. Fortuna Legal, by letter to the court dated 20 May 2020 (application), objected to producing a number of documents listed in the subpoena on the grounds that the documents are the subject of legal professional privilege.

2. In its submissions in support of objection to the subpoena dated 2 October 2020, Fortuna Legal broadened its objection to producing certain documents referred to in the subpoena on the grounds that they are not relevant to the matters in issue in this action. 

3. I will refer to the parties by their first names in my reasons. I intend no disrespect in doing so.

Background

1. Carlo Di Lena had two daughters from his first marriage, Linda Sala Tenna and Annita Clayton.[1]

   [1] Defence and counterclaim filed 21 February 2020 [1].

2. Carlo married his second wife, Bualoy Di Lena, on 10 April 1989. Carlo and Bualoy remained married until Carlo's death.[2]

   [2] Defence and counterclaim filed 21 February 2020 [2].

3. Carlo executed a will on 15 October 1999 which left his estate to Bualoy (1999 will).[3]

   [3] Defence and counterclaim filed 21 February 2020 [3].

4. On 7 February 2019, Carlo executed a power of attorney appointing Linda as his enduring power of attorney (power of attorney).[4]

   [4] Defence and counterclaim filed 21 February 2020 [9(b)].

5. On 10 April 2019, Carlo executed a subsequent will which appointed Linda as executor and left his entire estate to Linda and Annita (2019 will).[5]

   [5] Amended statement of claim filed 4 December 2019 [2].

6. On 13 May 2019, documents (collectively referred to as the Landgate documents) were lodged at Landgate in relation to Carlo's three investment properties to give effect to the following:

   (a)transfer of one undivided (1/100) share from Carlo and Bualoy as joint tenants to Charles Clayton (Linda's brother‑in‑law) (these transfers were signed by Carlo);

   (b)re‑transfer of one undivided (1/200) share from Charles to Carlo (these transfers were signed by Linda as attorney for Carlo); and

   (c)the result being that three investment properties were held by Carlo and Bualoy as tenants in common rather than as joint tenants.[6]

   [6] Defence and counterclaim filed 21 February 2020 [10(c) – (g)].

7. On 23 June 2019, Carlo died.[7]

   [7] Amended statement of claim filed 4 December 2019 [1].

8. On 16 July 2019, Linda applied for a grant of probate of the 2019 will.  Probate was granted over the 2019 will on 23 July 2019.[8]

   [8] Bualoy also applied for a grant of probate over 1999 will – that application was made on 12 July 2019.  Due to a slight difference in the spelling of Carlo's last name, the court was not aware that two applications had been made in respect of Carlo's estate.  The court issued a requisition in relation to Bualoy's application and granted Linda's application.

9. Fortuna Legal:

   (a)prepared the 2019 will;

   (b)prepared the Landgate documents; and

   (c)made the application for probate over the 2019 will on behalf of Linda.

10. On 17 September 2019, the court revoked the grant of probate to Linda over the 2019 will and ordered that Linda commence any action for a grant of probate over the 2019 will in solemn form by 8 October 2019.[9]

    [9] Order of Registrar C Boyle dated 17 September 2019 in PRO 4025/2019.

11. On 28 September 2019, Linda commenced this action seeking an order pronouncing the force and validity of the 2019 will in solemn form.

12. In defence to the action, Bualoy alleges that Carlo lacked testamentary capacity to make the 2019 will,[10] and by way of counterclaim seeks an order pronouncing the force and validity of the 1999 will in solemn form.

    [10] Defence and counterclaim filed 21 February 2020 [5], [9].

Subpoena

1. The subpoena seeks production of the following documents from Fortuna Legal:

   1.All client files and other files (files) held by Fortuna Legal Pty Ltd in relation to:

   (a) the preparation and execution of a power of attorney (category 1(a) documents) pursuant to which the late Carlo Di Lena (also known as Carlo Dilena) (deceased) appointed Linda Sala Tenna the deceased's attorney prior to the deceased's death (power of attorney);

   (b) the preparation and execution of the 2019 will (category 1(b) documents) deceased dated 10 April 2019 (will);

   (c) any application for a grant of probate of the 2019 will and documents relied upon in support (category 1(c) documents);

   (d) the preparation and lodgement of any documents with Landgate in relation to any land in which the deceased held any interest during his lifetime (category 1(d) documents); and

   (e) the administration of the estate of the deceased (category 1(e) documents);

   including, without limitation, all documents in hard copy, all documents in electronic form, file notes, correspondence, emails, time sheets, drafts of any documents, metadata recording the creation and amendment of any documents listed in paragraphs 1(a) to (e) inclusive.

Fortuna Legal's objections to the subpoena

1. By letter to the court dated 20 May 2020, Fortuna Legal objected to producing certain subpoenaed documents on the grounds that they are the subject of legal professional privilege.

2. In its subsequent outline of submissions dated 2 October 2020, Fortuna Legal broadened its objections to include objecting to producing specific categories of documents on the grounds that they are not relevant to the matters in issue in the proceedings.  Fortuna Legal maintained its global objections to producing certain subpoenaed documents on the basis of legal professional privilege.

3. Each of the specific objections on the basis of relevance is summarised below.[11]

A.     Category 1 (a) documents in relation to the power of attorney

[11] Fortuna Legal does not object to producing the category 1(b) documents on the grounds of relevance.

1. Fortuna Legal objects to producing any documents that it holds which relate to the preparation and execution of the power of attorney on the ground that these documents are not relevant to the issue of Carlo's capacity to understand and to execute the 2019 will.[12]

   [12] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [11].

2. Fortuna Legal submits that:

   (a)other than pleading that Carlo made the power of attorney and that Linda executed the Landgate documents pursuant to the power of attorney, the defence and counterclaim does not otherwise refer to the power of attorney;[13]

   (b)Linda would be entitled to strike out the paragraphs of the defence that refer to the power of attorney on the basis that they are irrelevant to the matters in issue;[14]

   (c)the only matter properly in issue in this action is Carlo's capacity at the time he made the 2019 will; and

   (d)Fortuna Legal should not be put to the significant inconvenience in having to locate, copy and lodge in court documents in response to the subpoena where those documents are irrelevant to the matters in issue.[15]

B.     Category 1(c) documents relating to the application for the grant of probate of the 2019 will

[13] Defence and counterclaim filed 21 February 2020 [12] – [13].

[14] Defence and counterclaim filed 21 February 2020 [14] – [15].

[15] Defence and counterclaim filed 21 February 2020 [17].

1. Fortuna Legal submits that these documents are only pleaded by Linda in the context of an allegation that such documents were concealed from Bualoy.[16] These documents are not relevant to the issue of Carlo's capacity at the time he made the 2019 will.[17]

   [16] Defence and counterclaim filed 21 February 2020 [10(n)].

   [17] Defence and counterclaim filed 21 February 2020 [21].

2. Fortuna Legal accepts that documents which it prepared or obtained in or for the purposes of the application for the grant of probate over the 2019 will which are instructions, a report or other document on, into or about whether the deceased had testamentary capacity at the time he made the 2019 will, are relevant and ought be produced pursuant to the subpoena.  Any other documents which fall into this category, it says, are irrelevant to the issue of Carlos' testamentary capacity at the time he made the 2019 will.[18]

C.     Category 1(d) documents relating to the Landgate documents

[18] Defence and counterclaim filed 21 February 2020 [23] – [24].

1. Given that the Defence only refers to the Landgate documents in the context of those documents being executed for the purposes of severing a joint tenancy of Carlo and Bualoy in three investment properties,[19] Fortuna Legal say that any documents relating to the Landgate documents are not relevant to Carlo's capacity to make the 2019 will.

   [19] Defence and counterclaim filed 21 February 2020 [10(e), (f), (g) and (k)].

2. Fortuna Legal submits that documents falling within this category are only relevant to the extent that Fortuna Legal obtained or commissioned instructions, a report or other document on, into or about whether the deceased had capacity to execute the Landgate documents where the assessment of capacity was made at or around the time Carlo executed the 2019 will.[20]

   [20] Defence and counterclaim filed 21 February 2020 [28].

3. Fortuna Legal contends that, even if the deceased lost capacity between the date of the 2019 will and the date of executing the Landgate documents, lack of capacity at a later date is not evidence of lack of capacity at an earlier date unless the dates are very close together.  Further, given that Carlo did not execute all of the Landgate documents himself (rather Linda executed some of them as his attorney), those Landgate documents executed by Linda and documents relating to the execution thereof have no relevance to the issue of whether Carlo had capacity to make the 2019 will.[21]

   [21] Defence and counterclaim filed 21 February 2020 [29].

4. Fortuna Legal submit that paragraph 1(d) of the subpoena should be limited to requiring the production of any document in its possession or power made or obtained in or for the purposes of the application for the grant of probate which are instructions, a report or other document on, into or about whether Carlo had capacity to execute the Landgate documents where the capacity assessment relates to Carlo's capacity at or about the date he made the 2019 will.[22]

D      Category 1(e) documents relating to the administration of Carlo's estate

[22] Defence and counterclaim filed 21 February 2020 [31].

1. Fortuna Legal say that these documents are not relevant on any basis to Carlos' capacity to make the 2019 will.[23]

   [23] Defence and counterclaim filed 21 February 2020 [33].

Bualoy's Submissions in support of the subpoena

Documents relevant to matters in issue

1. Counsel for Bualoy submits that the matters in issue in this action are:

   (a)whether Carlo had capacity to make the power of attorney;

   (b)whether Carlo had testamentary capacity at the time he made the 2019 will;

   (c)whether Carlo knew and approved the contents of the 2019 will;

   (d)whether Carlo had the capacity to understand the nature and effect of, and to approve the Landgate documents;

   (e)whether those of the Landgate documents signed by Linda as attorney for Carlo are valid; and

   (f)whether Linda has accounted for all of the monies in Carlo's bank accounts at the date of his death.[24]

   [24] Defendant's submissions in relation to objections to subpoena filed 31 July 2020 [3].

2. Counsel for Bualoy also submits that each of the categories of documents sought in the subpoena are relevant to the matters in issue in this action because:

   (a)Category 1(a) documents relating to the power of attorney –

   a.Bualoy alleges that Carlo made the 2019 will in circumstances that give rise to the suspicion that he did not know and approve the contents of the 2019 will.[25]  Bualoy submits that this plea invokes the equitable doctrine of suspicious circumstances; and

   [25] Defence and counterclaim filed 21 February 2020 [10].

   b.documents that relate to the power of attorney are relevant to the particulars of the suspicious circumstances.

   (b)Category 1(c) documents relating to the grant of probate of the 2019 will –

   a.Bualoy alleges that the suspicious circumstances include the fact that Linda's application for the grant of probate of the 2019 will and the actual grant of probate of the 2019 will were concealed by Linda from Bualoy;[26] and

   [26] Defence and counterclaim filed 21 February 2020 [10(n)].

   b.documents relating to the circumstances in which instructions for the application for the grant of probate were given are relevant to those suspicious circumstances.

   (c)Category 1(d) documents relating to the Landgate documents -

   a.Bualoy says the Landgate documents were also concealed by Linda from Bualoy[27] and therefore, form part of the suspicious circumstances surrounding Carlo's execution of the 2019 will; and

   b.in addition, given Bualoy seeks relief in relation to the Landgate documents,[28] all documents relating to the preparation and making of the Landgate documents are relevant.

   (d)Category 1(e) documents relating to the administration of Carlo's estate -

   a.Bualoy alleges that these documents are relevant for the because they form part of the suspicious circumstances surrounding the execution of the will and the concealment from Bualoy of the grant of probate to Linda over the 2019 will; and

   b.further, given Bualoy seeks relief in the form of repayment of an amount taken from Carlo's bank account,[29] these documents are directly relevant to the  matters in issue.

   [27] Defence and counterclaim filed 21 February 2020 [10(n)].

   [28] Prayer for Relief [C].

   [29] Prayer for Relief [D].

Legal Principles

The Court's jurisdiction

1. The court has jurisdiction to set aside a subpoena pursuant to O 36B r 8A(2) of the Rules of the Supreme Court1971 (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.

2. 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.[30]

   [30] Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [26].

3. Fortuna Legal has objected to 'producing' certain subpoenaed documents on the grounds that they are not relevant to the matters in issue.  It is not clear from Fortuna Legal's submissions whether the objection is:

   (a)a request to set aside the subpoena pursuant to O 36B r 8A(2)(a) RSC on the basis that certain subpoenaed documents do not serve a legitimate forensic purpose; and/or

   (b)an objection to inspection of those subpoenaed documents on the basis that they are not relevant to a matter in issue.

4. Irrespective of which of the above categories the objection falls into, the threshold question to be answered is 'are the subpoenaed documents relevant to matters in issue?'

5. In respect of Fortuna Legal's objection to producing documents on the grounds of legal professional privilege, this objection is properly classified as an objection to inspection of those documents pursuant to O 36B r 8A(2)(b) RSC, rather than an objection to actual production thereof.

Relevance

1. In Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] ‑ [14], Beech J summarised the principles governing inspection of subpoenaed documents:

   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).

2. In order to determine whether subpoenaed documents are relevant to matters in issue, the court must look to the pleadings: Wookey v Quigley[No 5] [2011] WASC 275 [8] ‑ [9].

3. It is also worth noting that 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.[31]

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

1. I do not accept Fortuna Legal's submission that, if a strike out application would be successful in relation to a pleading, or in relation to paragraphs thereof, then the court ought disregard those pleaded facts in determining relevance on what is, essentially, an application to set aside a subpoena.  It is not the court's role to opine upon a hypothetical strike out application in order to arrive at a determination of relevance.

2. Fortuna Legal, as a non-party to the action, is bound by the pleadings as they stand as determinative of the relevance or lack thereof of the subpoenaed documents. 

Doctrine of Suspicious Circumstances

1. Counsel for Bualoy submits that the plea that the 2019 will was made in circumstances which give rise to the suspicion that Carlo did not know and approve the contents of the 2019 will[32] establishes that the subpoenaed documents are relevant to matters in issue.

   [32] Defence and counterclaim filed 21 February 2020 [10].

2. In Power vSmart [2018] WASC 168 [663],[33] Derrick J summarised the principles in relation to the doctrine of suspicious circumstances:

   When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved the contents of the will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [2015] VSCA 60 [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135].

   [33] Upheld on appeal in Smart v Power [2019] WASCA 106.

Are the subpoenaed documents relevant?

1. 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 Fortuna Legal:

   (a)Category 1(a) documents relating to power of attorney:

   These documents were executed on 7 February 2019 – approximately two months prior to the date of Carlo executing the 2019 will.  This is a factor that is relevant to the extent of any physical and mental impairment of Carlo on a date I consider to be close enough in time to the execution of the 2019 will. Therefore, the circumstances surrounding the entering into of the power of attorney may give rise to a suspicion that Carlo did not know and approve the contents of the 2019 will.

   For these reasons, I am satisfied that documents relating to the power of attorney are relevant to the matters in issue.

   (b)Category 1(c) documents relating to the grant of probate of the 2019 will:

   There is no dispute between Fortuna Legal and Bualoy that any documents which Fortuna Legal prepared or obtained for the purposes of applying for a grant over the 2019 will which relate to whether Carlo had testamentary capacity at the time of making the 2019 will are relevant to matters in issue.  However, Fortuna Legal says the documents in this category should go no further than that.

   Bualoy pleads that Linda concealed the making of the application for a grant of probate over the 2019 will from her – a factor giving rise to a suspicion that the testator might not have known and approved of the contents of the 2019 will.[34]

   [34] Defence and counterclaim dated 21 February 2020 [10(n)].

   Concealment of an application for a grant over a will where a deceased's testamentary capacity to make the will is in issue was not a factor specifically identified as suspicious in Power v Smart.  However, the factors listed in Power v Smart were not intended to be exhaustive.   There may be a number of other factors that give rise to a suspicion that a deceased did not know and approve of the contents of a will.  In my view, concealment of an application for a grant of probate by the executor and substantial beneficiary of the will in issue is a factor which may give rise to such a suspicion.

   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 the grant of probate over the 2019 will may lead to a line of enquiry relevant to whether Carlo knew or approved of the 2019 will and ought be produced upon the subpoena.

   (c)Category 1(d) documents relating to the Landgate documents:

   Bualoy seeks specific relief in relation to the rectification of titles of three investment properties.[35]  Bualoy also pleads that the entering into of the Landgate documents is a factor amounting to suspicious circumstances.[36] 

   The fact that relief is pleaded in the form of rectification of the Landgate documents is not enough to make the Landgate documents relevant to a matter in issue – the relief sought will only follow if a cause of action giving rise to rectification of the Landgate documents is successful.

   The Landgate documents had the effect of altering Carlo's asset position on a date proximate to his death.  These documents are relevant to the circumstances surrounding the preparation of the 2019 will and the extent of any mental impairment of Carlo on a date proximate to the date Carlo executed the 2019 will.  Therefore, these documents may give rise to a suspicion that Carlo did not know and approve of the contents of the 2019 will.

   I am satisfied that these documents are relevant to matters in issue and must be produced upon subpoena.

   (d)Category 1(e) documents relating to the administration of Carlo's estate:

   On 17 September 2019, the court ordered that the amount removed by Linda from Carlo's bank account on 1 August 2019 be deposited in the bank account of the solicitors for Linda.[37]  Bualoy pleads that the total amount has not been deposited and seeks relief requiring Linda to repay the shortfall.[38]

   Bualoy also pleads that the withdrawal of funds was concealed from Bualoy constitutes suspicious circumstances[39].

   Although these documents are not relevant merely because relief is pleaded in relation to them, for the same reasons that documents relating to the grant of probate may be relevant to a suspicion that Carlo did not know and approve of the contents of the 2019 will, these documents are relevant.

   I am satisfied that these documents are relevant to matters in issue and ought be produced upon subpoena.

   [35] Defence and counterclaim filed 21 February 2020 Prayer for Relief [C].

   [36] Defence and counterclaim dated 21 February 2020 [10(e), (f)].

   [37] Order of Registrar C Boyle dated 17 September 2019 in PRO 4025/2019.

   [38] Defence and counterclaim dated 21 February 2020 [10(m)]; Prayer for Relief [D].

   [39] Defence and counterclaim dated 21 February 2020 10(n)].

2. In summary I am satisfied, on the basis of the pleadings, that the subpoenaed documents give rise to a line of enquiry relevant to the circumstances in which Carlo made the 2019 will and whether he knew and approved the contents thereof.

3. I find that the subpoenaed documents are relevant to the matters in issue and ought be produced by Fortuna Legal pursuant to the subpoena. 

4. This finding does not entirely deal with Fortuna Legal's objections.  Fortuna Legal also object to Bualoy inspecting the subpoenaed documents on the basis of legal professional privilege.

Legal Professional Privilege

1. Fortuna Legal contend that most of the documents listed in the subpoena are subject to legal professional privilege because they are confidential written communications or written records of confidential verbal discussions between Mr Gethin, a director of Fortuna Legal, and Carlo or Linda, as the attorney for Carlo, made for the dominant purpose of Mr Gethin providing legal advice or professional legal services to Carlo.[40]

   [40] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [34].

2. It is Fortuna Legal's position that the only documents which are not protected by legal professional privilege are documents over which confidentiality was lost, being the Landgate documents, the 2019 will, the application for the grant of probate over the 2019 will and the grant of probate over the 2019 will (non‑privilege documents).[41]

   [41] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [35].

3. Fortuna Legal submits that, during Carlo's lifetime, legal professional privilege in all documents other than the non‑privilege documents (privilege documents) existed for Carlo's benefit, and he was the sole person with the ability to waive that privilege.  After his death, the benefit of privilege in the privilege documents, and the sole right to waive privilege in them, passes to his legal personal representative.[42]

   [42] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [36].

4. Fortuna Legal submits that, in circumstances where there is a dispute as to whether Linda or Bualoy is the legal personal representative of Carlo, it cannot produce the privilege documents without an order from this court requiring it do so.  To do so without an order of the court would mean, Fortuna Legal says, that it may be in breach of its professional duty to Linda as Carlo's legal personal representative (in the event that Linda is successful in this action).[43]

Inspection of privileged documents

[43] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [38] – [41].

1. Fortuna Legal proposes that, in order to ensure that Linda is not prejudiced by the production of privilege documents to Bualoy, the court order the following procedure be adopted:

   (a)Fortuna Legal produce any privilege documents to the court;

   (b)Bualoy does not have a right to access the privilege documents unless the Court first determines that the document may assist Bualoy's case and makes an order that Bualoy may access it;

   (c)to enable the Court to determine whether Bualoy should have access to the privilege documents, the Court should appoint an independent counsel, at the expense of Bualoy, to assist the Court in making that determination;

   (d)if Bualoy is granted access to any privilege documents:

   a.Bualoy and any person other than Bualoy's solicitor or counsel should not be permitted to inspect or make a copy of the document; and

   b.before inspecting or being given a copy of the document Bualoy's solicitor or counsel should be required to give a written undertaking to the court binding on himself or herself and Bualoy that the document or any copy of it or any information in or derived from it will not be:

   i.used for any purpose other than the purpose of advancing Bualoy's defence and counterclaim; or

   ii.given or disclosed, even in summary form, to Bualoy or any other person (other than another lawyer for Bualoy who makes the same undertaking as referred to above), unless and until this action is determined on the basis that probate of the 1999 will is pronounced in solemn form as claimed in the Counterclaim.[44]

   [44] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [44] – [46].

2. The solicitors for Bualoy submit that any concerns on the part of Fortuna Legal and/or Linda in relation to the inspection of privilege documents can be addressed by the court making orders that, unless and until probate of the 2019 will is pronounced in solemn form:

   (a)only Bualoy's solicitors and counsel be permitted to inspect and copy any documents produced by Fortuna Legal;

   (b)any documents produced by Fortuna Legal only be used for the purpose of advancing Bualoy's defence and counterclaim;

   (c)Bualoy only be entitled to access copies of any documents produced by Fortuna Legal and copied by her solicitors and counsel to advance her defence and counterclaim and subject to the terms of the order; and

   (d)none of the documents produced by Fortuna Legal, or any part of them be given, or disclosure of any of the contents be made by Bualoy or her legal representatives to any person except in accordance with the terms of the orders.[45]

   [45] Defendant's submissions in reply filed 12 October 2020 [9].

3. The substantial difference between the procedure for inspection proposed by each of Bualoy and Fortuna Legal is that, if Bualoy's proposed procedure is adopted, Bualoy would be entitled to inspect the subpoenaed documents in order to provide instructions to her solicitors in order to advance her defence and counterclaim.

4. In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, Lindsay J considered the principles informing the practice of the New South Wales Supreme Court in relation to the subpoena of documents in contentious probate proceedings. On the issue of production of a solicitor's file to the court, Lindsay J said, at pars 93 to 96:

   Investigation of the circumstances in which a testamentary instrument was prepared and executed often leads to inquiries of a solicitor who attended to that process.  Sometimes, but not always, that solicitor acts for a party to contested probate proceedings.

   In the absence of a grant of probate or administration, no party generally has an entitlement to inspection of the client file, or other records, of the solicitor evidencing the process of preparation and execution of a will.  In those circumstances, in the absence of agreement of all parties interested in the estate of the deceased, an order of the Court authorising disclosure of information which might otherwise be confidential to the estate may be required: (a) in aid of due administration of the estate; and (b) for protection of the solicitor from exposure to disciplinary consequences of an authorised disclosure.

   Considerations of fairness in the conduct of contested proceedings, if not a need to preserve evidence, may justify a subpoena for production of the solicitor's 'file' designed to bring it under the control of the Court and, on an application of case management principles, made available to all parties as soon as may be practical.

   It may be in the interests of all persons interested in due administration of a deceased's estate that a solicitor's file, or other records, evidencing the preparation and execution of a will be produced to the Court so that they can be available to the Court and, in management of contested proceedings, the parties.

5. I accept that any subsisting entitlement to legal professional privilege may survive Carlo's death and, by transmission, vest in his legal personal representative.[46]  Given that these proceedings were commenced in order to determine the identity of Carlo's legal personal representative, it is not yet possible for legal professional privilege to be claimed by any legal personal representative in order to prevent inspection of the subpoenaed documents.

   [46] Dunesky v Elder (1992) 107 ALR 573 575 ‑ 576; Boyce v Bunce [2015] NSWSC 1924 164.

6. In these circumstances, it is appropriate for Fortuna Legal to have objected to the inspection of the subpoenaed documents on the basis of legal professional privilege and to seek the protection of a court order to govern the inspection thereof – the necessity of such an order is identified in Re Estates Brooker‑Pain.

7. Fortuna Legal submits that, if inspection of the subpoenaed documents is to be ordered by the court, then the inspection should only be by Bualoy's solicitors and counsel.[47]  The solicitors for Bualoy submit that Bualoy must also be entitled to inspect the subpoenaed documents in order to allow her to provide instructions to advance her defence and counterclaim.[48]

   [47] Submissions by Fortuna Legal in support of objection filed 2 October 2020 [46(a)].

   [48] Defendant's submissions in reply filed 12 October 2020 [9(c)].

8. I am mindful of the difficulties that Bualoy's solicitors may encounter in the event that Bualoy cannot inspect documents which advance her defence or counterclaim. Such result should be avoided if possible.

9. Accordingly, in order to balance the potential for either party to be prejudiced by the inspection of privilege documents with the need for each party to be able to provide full instructions to their solicitors, I propose to allow inspection of the subpoenaed documents at first instance by the solicitors and counsel for both Linda and Bualoy. 

10. If either party to this action wishes to maintain a claim for legal professional privilege, then such application can be made and determined by the court. 

11. Inspection by the parties themselves will not be permitted until either 28 days after the date of inspection by the solicitors and counsel or, in the event that an application for legal professional privilege is made by either or both parties, the determination of that application.

Summary

1. Fortuna Legal is required to comply with the subpoena by producing all documents referred to therein to the court.

2. The solicitors and counsel for each of Bualoy and Linda may inspect the documents produced by Fortuna Legal.

3. Each party has 28 days from the date of production to make an application for legal professional privilege.

4. In the absence of any application, Linda and Bualoy be permitted to inspect the documents produced by Fortuna legal in order to advance or defend their respective cases.

Costs

1. Bualoy has successfully opposed the application to the extent that Fortuna Legal's objections were made on the grounds that the documents were not relevant to matters in issue.  On this basis, Bualoy submits that Fortuna Legal should pay her costs of the application.

2. Fortuna Legal submits that Bualoy should pay its costs of the application regardless of the court's determination, on the basis that it was required to make the application in order to protect it from any allegation of professional misconduct by producing privilege documents.

3. I have made a finding that it was appropriate for Fortuna Legal to have objected to the inspection of the subpoenaed documents on the basis of legal professional privilege and seek a court order to protect it from exposure to disciplinary consequences of an unauthorised disclosure.

4. Accordingly, it is not appropriate that Fortuna Legal pay Bualoy's costs of the application. 

5. However, Fortuna Legal was unsuccessful on the application to the extent that it related to the relevance of the subpoenaed documents.  This put Bualoy to the unnecessary expense of responding to those objections in the application. 

6. In the circumstances, where both parties have been successful to some extent, the appropriate order is that each party bear their own costs of the application.

7. The parties are required to confer in relation to proposed orders.  In the even that consent as to the form of orders cannot be reached, each party is required to file a minute of proposed orders, such orders are to be filed within seven (7) days of the date of publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TG
Court Officer

25 NOVEMBER 2020