ByLawyers News and Updates

101 Succession Answers – NSW

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Following an author review new cases have been added and other enhancements made to the By Lawyers Reference Manual 101 Succession Answers (NSW).

Nobarani v Mariconte [2018] HCA 36

This case supports the requirement of an ‘interested’ party wishing to challenge the validity of a will to show that they have rights which will be affected by the disputed grant of probate or administration.

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

Considerations regarding disclosure of documents and information in contested probate proceedings were extensively discussed. This case analysed the applicable law, practice and procedure in the context of applications to set aside subpoenas and notices to produce which called for documents relating to the making of the disputed wills. This included solicitors’ notes and files. The interplay between subpoenas, the court’s Practice Note SC Eq 11 and case management orders was examined in detail.

The court addressed the determination of ‘legitimate forensic purpose’ in such cases, especially where pleadings had not closed and the issues in dispute were uncertain. This decision has therefore been added to the By Lawyers Reference Manual 101 Subpoena Answers too.

The court also commented on the practice of sending ‘Larke v Nugus’ letters to ‘…a person involved in the preparation or execution of a will…[seeking] disclosures about the circumstances in which a will was prepared or executed’.

Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 and In the Estate of Hansie Hart [2019] ACTSC 317

These two recent cases each dealt with issues relating to the presumption of death.

Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

This case is instructive as to the considerations the court applies when giving judicial advice and determining construction issues on testamentary trusts.

Finnegan & Anor v Garner & Ors [2019] QSC 100

Here the estate faced claims which, if they were resolved by litigation would result in the estate being consumed by legal costs. The court noted, at [10], that:

It is the duty of trustees of the estate not to embark upon expensive litigation which will have the effect of depleting the estate. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand Gummow ACJ, Kirby, Hayne and Heydon JJ said that: “a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings.”

Koellner v Spicer [2019] NSWSC 1571

On a family provision claim, an adult child with a medical condition and meagre financial resources was awarded a 35% legacy from the reasonably small estate even though the deceased had expressly excluded him on the basis they had no relationship.

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

The court emphasised, including by reference to the ‘overriding principles’ of the Civil Procedure Act, the duty on parties to contain costs in family provision litigation. The court heavily criticised disproportionate costs being incurred.

 

Like all By Lawyers Reference Materials, 101 Succession Answers (NSW) is updated regularly to cover developments in case law and procedure.

Interpreters – NSW

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The rules concerning the engagement or appointment of interpreters for civil litigation in NSW courts have been amended.

The Uniform Civil Procedure (Amendment No 92) Rule 2019 provides for new rules. These are based on the Model Rules in Recommended National Standards for Working with Interpreters in Courts and Tribunals prepared by the Judicial Council on Cultural Diversity.

The amendments that commenced on 8 November add Division 3 of Part 31 and Schedule 7A to the Uniform Civil Procedure Rules 2005 (NSW). The new division sets out rules which cover:

  • When an interpreter may be engaged;
  • Who may act as an interpreter; and
  • Functions of interpreters.

Importantly, an interpreter must now adhere to the Court Interpreters’ Code of Conduct, which is set out in Schedule 7A of the UCPR. A copy needs to be given to the interpreter as soon as possible after they have been engaged or appointed.

The By Lawyers Litigation publications for Local, District and Supreme Courts have been updated accordingly. A link to the Code of Conduct is included.

Magistrates’ Court – Review

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The By Lawyers Magistrates’ Court Civil (VIC) Publication has been reviewed and updated to ensure that the content is in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers Magistrates’ Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Calderbank offers.
  • Terms of settlement.
  • Civil Procedure Act obligations.
  • Pre-hearing conference.

New commentary on –

  • Electronic filing.
  • Small claims procedure.
  • Case management.
  • Use of audio-visual evidence.
  • Bringing and defending counterclaims.
  • Appeals to the Supreme Court.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers lawyers appearing for clients in civil matters in the Magistrates’ Court.

County Court – VIC

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The By Lawyers County Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure in the County Court, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers County Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Alternative dispute resolution and settlement.
  • Civil Procedure Act obligations.
  • Preparing and filing a defence.

New commentary on –

  • Electronic filing.
  • Calculating time limits.
  • Effectively communicating with the court.
  • Case management procedure including practice notes and directions.
  • Practical tips when briefing counsel.

New precedent

A new precedent Example content – Consent orders – Discontinuance of proceedings has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the County Court.

Supreme Court – VIC

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The By Lawyers Supreme Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a practical approach to practice and procedure in the Supreme Court, drawing on her considerable experience to focus on information that will help lawyers confidently represent their clients and successfully run their matters.

Some of the enhancements to the By Lawyers Supreme Court Civil (VIC) Publication as a result of this review include:

  • Expanded commentary on costs disclosure and ensuring costs are fair and reasonable.
  • Rationalised commentary on case management procedure including practice notes and directions.
  • Expanded commentary on Alternative Dispute Resolution and settlement.
  • Practical tips when briefing counsel added.
  • Expansion of commentary on Civil Procedure Act obligations.
  • New commentary on effectively communicating with the court.
  • New commentary on urgent applications.
  • Expanded commentary on service, including service overseas.
  • Expanded commentary on preparing and filing a defence.

New precedent

A new precedent ‘Example content – Consent orders – Discontinuance of proceedings’ has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the Supreme Court.

Legal professional privilege – FED

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Legal professional privilege can be a complex area. But it can also be a very important area for practitioners and their clients. Fast, accurate answers to difficult questions about legal professional privilege can be extremely valuable. By Lawyers provides substantial commentary, cases and legislation on legal professional privilege in both Practice Management and 101 Subpoena Answers publications.

Evidence Act or common law?

A critical consideration when dealing with legal professional privilege is whether the uniform evidence law or the common law applies. Generally, in state courts the applicable state Evidence Act applies in all situations. However in federal jurisdictions, the Commonwealth Evidence Act applies at trial, but the common law applies in interlocutory proceedings.

The recent case of Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 dealt with legal professional privilege in a federal jurisdiction. The matter involved an objection taken to the production of documents under subpoena. The objection was on the basis of legal professional privilege, and specifically litigation privilege.

Being an interlocutory application Griffiths J applied (at [12]) the common law test where ‘litigation privilege attaches to confidential communications between a legal advisor or client and a third party if made for the dominant purpose of use in, or in relation to, litigation which is then on foot or is reasonably anticipated’.

Evidence

The court held that whomever claims privilege bears the onus of establishing the basis for the claim. That party is required to adduce admissible direct evidence to demonstrate that the claim is properly made. This means revealing the relevant characteristics of each document that will allow the court to uphold a claim for privilege. Simply tendering the relevant document and asking the court to test for privilege will not be sufficient. This affirms Brereton J’s decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 that the court’s power to inspect a document is not to facilitate the requisite proof, but to scrutinise and test the claim.

This is an important point for practitioners instructed to make such a claim. Detailed evidence must be filed as to the reason for and circumstances of the creation of the documents, including how confidentiality was maintained. The deponent of the affidavit may be cross-examined. For this reason the solicitor with carriage of the matter should think very hard before being the one to swear such an affidavit.

‘Reasonably anticipated’

Griffiths J also affirmed that, for the privilege to apply, the litigation must be reasonably anticipated, not simply a mere possibility. This does not mean more likely than not. It is to be determined objectively.

More information

See the By Lawyers Practice Management guide, or the 101 Subpoena Answers publication in the Reference materials folder of every By Lawyers litigation guide, for more detail about this case and more information on legal professional privilege generally.

Subpoena objections – FED and All states

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A new case on subpoena objections has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

In Weeks v Nationwide News Pty Ltd [2019] WASC 268, the court considered whether a subpoena in a defamation case should be set aside for lack of  a legitimate forensic purpose (LFP).

The court succinctly stated the law on LFP, to the effect that The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is ‘on the cards’ that the documents would materially assist the issuing party in their defence‘.

In this regard the Court followed the leading LFP cases of R v Saleam (1989) 16 NSWLR 14 and Alister v R (1984) 154 CLR 404, 414. The Court also followed the earlier Western Australian full court decision of Stanley v Layne Christensen Co [2004] WASCA 50 regarding legitimate forensic purpose. The subpoena in this case was set aside.

This Western Australian decision has been added to 101 Subpoena Answers under the section on Legitimate forensic purpose in civil cases. This publication is an excellent resource for practitioners conducting litigation and dealing with subpoenas in all courts, whether issuing or responding, and including subpoena objections.

101 Subpoena Answers is available in all By Lawyers state court Litigation publications, as well as our Family Law, Family Provision, Injuries, Employment Law and Defamation guides.

 

Litigation guardian – solicitor’s certificate – VIC

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A new precedent ‘Solicitor’s certificate – Appointment of litigation guardian’ – has been added to By Lawyers Victorian civil litigation publications.

This precedent meets the requirement of reg 15.03(6)(a) of the Supreme Court (General Civil Procedure) Rules 2015. This regulation requires that, when seeking appointment of a litigation guardian in civil proceedings in the Supreme Court and the County Court, a certificate is to be completed by the solicitor for the person under disability certifying that the solicitor knows or believes that—

  1. the person to whom the certificate relates is a person under disability, including the grounds of the solicitor’s knowledge or belief; and
  2. the litigation guardian of the person under disability has signed the written consent and has no interest in the proceeding adverse to that person.

This certificate must be filed in the office of the Prothonotary before a person can be named as a litigation guardian in proceedings.

This helpful new precedent has been added to the By Lawyers Supreme Court, County Court and Family Provision claims publications. The precedent was created by our author as a result of feedback from a subscriber.

Improving written submissions – All states

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A new article ‘Improving Written Submissions’ by Judge Alan Troy of the District Court of Western Australia has been added to the Reference Materials folder on the matter plan in all By Lawyers Litigation guides.

His Honour’s article, first published in Brief, the Journal of the Law Society of Western Australia, is full of valuable tips for improving written submissions. It will greatly assist practitioners when they are preparing submissions for all types of matters, in all courts.

The article emphasises the need to use clear and plain English, to be brief and succinct, to persuade the court via credible legal argument and to logically structure the submissions. His Honour recommends stating the main point of the argument at the outset and introducing each topic with a brief summary of the real substance of the issue to which it relates.

Drawing on his substantial experience both as an advocate and on the bench, Judge Troy gives specific and very practical guidance on how practitioners can best construct written submissions with these tenets in mind. His Honour’s tips include the use of a chronology, ways to structure both the text and the arguments and the importance of ruthless final editing.

By Lawyers are very pleased to make this helpful article available to our subscribers across Australia.

Subpoenas – Legitimate forensic purpose – VIC

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Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party.

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

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