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:

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

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

Background

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].
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].
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].
On 7 February 2019, Carlo…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASC 426
Decision Date: 25 NOVEMBER 2020

CaseChat Overview and Summary

In the matter of Sala Tenna, the deceased, the dispute between the interested parties centred on the probate of the will and the subpoena of documents from the solicitor of the deceased. The case was heard in the Supreme Court of Victoria. The issue at hand was whether the subpoena duces tecum issued to the solicitor was relevant to the proceedings, and if the documents could be inspected without a court order, given that no legal personal representative of the deceased had been determined.

The court examined the test of relevance, which required the documents to be pertinent to the matters in issue. It was determined that the documents in question were indeed relevant, as they pertained to the will and the estate of the deceased. The court further considered the doctrine of suspicious circumstances, which allowed for the subpoena of documents even in the absence of a legal personal representative. The court found that the documents were not protected by legal professional privilege as they related to the deceased's estate and the administration of the will.

Given the absence of a legal personal representative, the court ruled that an order was necessary for the inspection of the documents. The court found that the documents were relevant to the probate of the will and the administration of the deceased's estate, and thus, the subpoena duces tecum should be enforced. The court granted an order for the inspection of the documents, ensuring that the interested parties could access the necessary information for the proceedings.

The final order of the court was that the subpoena duces tecum issued to the solicitor of the deceased be enforced, and the documents be inspected. This decision allowed the interested parties to access the relevant documents for the probate of the will and the administration of the deceased's estate, thereby facilitating the resolution of the dispute.

Orders