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Wehbe v Giotopoulos

Wehbe v Giotopoulos

Case [2022] NSWSC 1566 17 November 2022

Standing

Discovery & Disclosure

Limitation Periods

Subpoena

Legitimate Forensic Purpose

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wehbe & Anor v Giotopoulos [2022] NSWSC 1566
Hearing dates: 7 November 2022
Date of orders: 17 November 2022
Decision date: 17 November 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders:
(1) The Plaintiffs’ notice of motion filed on 20 October 2022 be dismissed with costs.
(2) The matter be referred to the Equity Registrar on 28 November 2022 for the purpose of obtaining a hearing date with an estimated duration of 5 days.
(3) The directions hearing listed on 5 December 2022 is vacated.

Catchwords:
PRACTICE AND PROCEDURE – Plaintiffs are currently litigants in person who seek to propound a Will dated 8 July 2020 of the deceased – Defendant disputes validity of the 2020 Will – Allegation of lack of testamentary capacity, lack of knowledge and approval, and undue influence – Application by Plaintiffs for leave to issue subpoenas to produce documents – Where leave opposed – Whether legitimate forensic purpose established – Documents sought irrelevant to issues in proceedings as no dispute that if 2020 Will invalid, the deceased died intestate – Subpoena may lack a legitimate forensic purpose if sought for a spurious reason – Improper purpose where no “conceivable relation” with the proceedings – Leave refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW) s 140
Uniform Civil Procedure Rules 2005 (NSW) rr 3.14, 7.3(1), 7.3(2), 33.2
Succession Act 2006 (NSW) s 60

Cases Cited:
Attorney General v Collier [2022] NSWSC 323
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Boyse v Rossborough (1857) 10 ER 1192
Craig v Lamoureux [1920] AC 349
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896
Liristis v Gadelrabb [2009] NSWSC 441
Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303
Monteiro v State of New South Wales [2022] NSWSC 148
NHB Enterprises v Corry (No 4) [2020] NSWSC 426
Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115
Roberts-Smith v Fairfax Media Publications Pty Limited (No 16) [2021] FCA 584
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Texts Cited:
Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co)

Category: Procedural rulings
Parties: G P Wehbe (first Plaintiff/first Applicant)
S C Wehbe (second Plaintiff/second Applicant)
M Giotopoulos (Defendant/first Respondent)
D Shad (second Respondent)
Representation:
Counsel:
P Muscat (Defendant/first and second Respondents)
Solicitors:
G P Wehbe (in person) (first Plaintiff/first Applicant)
S C Wehbe (in person (second Plaintiff/second Applicant)
Shad Partners (Defendant/first and second Respondents)

File Number(s): 2021/167226
Publication restriction: Nil

Judgment

The substantive proceedings were commenced by George Paul Wehbe and Simon Charbel Wehbe on 27 August 2021. They seek probate in solemn form of a handwritten Will dated 8 July 2020 of their mother, Wadad Wehbe (the deceased). Without…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wehbe v Giotopoulos

Details

AGLC: Wehbe v Giotopoulos [2022] NSWSC 1566
Case: [2022] NSWSC 1566
Decision Date: 17 November 2022

CaseChat Overview and Summary

The matter of Wehbe v Giotopoulos involved a dispute between the plaintiffs, who were the current litigants in person, and the defendant. The plaintiffs sought to propound a Will dated 8 July 2020 of the deceased. The defendant contested the validity of the 2020 Will, asserting that the deceased lacked testamentary capacity, did not know and approve the contents of the Will, and was subject to undue influence. The plaintiffs applied for leave to issue subpoenas to produce documents that they believed would support their case. The defendant opposed the application, arguing that the subpoenas lacked a legitimate forensic purpose.

The central legal issue the court had to decide was whether the plaintiffs had established a legitimate forensic purpose for the subpoenas, as required by the relevant procedural rules. The court examined the relevance of the documents sought to the issues in the proceedings. The plaintiffs argued that the subpoenas were necessary to establish the validity of the 2020 Will, but the defendant contended that if the Will was invalid, the deceased died intestate, and the documents were irrelevant. The court had to determine whether the subpoenas were being sought for a spurious reason or if they had a conceivable relation to the proceedings.

In deciding the application, the court held that the plaintiffs had not demonstrated a legitimate forensic purpose for the subpoenas. The documents sought were irrelevant to the issues in the proceedings since there was no dispute that if the 2020 Will was invalid, the deceased died intestate. The court noted that a subpoena may lack a legitimate forensic purpose if it is sought for an improper reason, such as a spurious or collateral purpose. The court found that the subpoenas were being sought for an improper purpose because there was no conceivable relation between the documents and the issues in the proceedings. Consequently, the court refused the plaintiffs' application for leave to issue the subpoenas.

The final orders of the court were that the plaintiffs' application for leave to issue subpoenas to produce documents was refused. The court did not grant the plaintiffs permission to proceed with the subpoenas, as it found that they did not have a legitimate forensic purpose and were being sought for an improper reason. The plaintiffs were not allowed to compel the production of the documents sought through the subpoenas.

Orders