Waters v Frank; Frank v Waters

Exhibit A in these proceedings is the Court Book. It contains affidavits and exhibits which were attached to the affidavits. A number of the deponents of the affidavits were required for, and have been, cross-examined.

Included in the court book is an affidavit of Ms Jacqueline Grainger dated 27 February 2023. Ms Grainger was required for cross-examination in a timely fashion but has not appeared to be cross-examined.

A subpoena to Ms Grainger to attend to give evidence was filed on 19 October 2025. There is an affidavit of service by Mr Roderick Duncombe, a licensed commercial agent, dated 24 October 2025.

According to Mr Duncombe he attended Ms Grainger’s address on 21 October 2025 at 6:15pm. The address is that stated in her affidavit. On his attendance he found a property which seemed to be securely enclosed by fences, gates, and CCTV cameras. He “banged on the gate but received no response”.

He had actually been to the address on 16 October 2025 and put a letter in the letterbox. It was still present on 21 October when he attended to serve the subpoena. Mr Duncombe spoke to a neighbour who confirmed Ms Grainger lived next door but had apparently not been “seen here for a little while”. The neighbour apparently spoke to Ms Grainger by telephone, and I infer that she did not wish the neighbour to accept service on her behalf.

Mr Duncombe tried to telephone Ms Grainger but was unsuccessful.

The following day, 22 October 2025, Mr Duncombe returned to Ms Grainger’s address and placed a sealed envelope containing the subpoena in the letterbox and also attached a second envelope containing the subpoena to the main entry gate.

Rule 33.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires personal service of a subpoena. Barrett J, in Nash v Stewart [2010] NSWSC 513 emphasised the particular need for personal service where the subpoena requires a person to attend to give evidence.

In my view personal service was not effected by the method adopted by Mr Duncombe. The third defendant referred me to r 10.26 of the UCPR which allows for personal service on a person who “keeps house”. In such a case service may be accomplished in the manner carried out by Mr Duncombe.

According to the rule a person keeps house if that person “remains in premises to which a person attempting service cannot lawfully or practicably obtain access”. I do not think the evidence of Mr Duncombe establishes that Ms Grainger remained in the premises. To the contrary the neighbour said she had not been seen for some time. In addition, the letter that Mr Duncombe had put in the letterbox on 16 October 2025 remained in the letterbox, suggesting that ‘no one was home’. I do not think r 10.26 assists the third defendant.

I also note that the subpoena was filed on the day before the matter commenced. I would have thought that a much earlier attempt to serve the subpoena would have been appropriate, noting that there is no evidence of any contact with Ms Grainger between the date of her affidavit in February 2023 and the attempt to serve the subpoena.

The contents of the affidavit are fairly extensive and might otherwise be seen as assisting the defendants in their submissions on the cognitive capacity of the deceased. On the other hand, if Ms Grainger’s evidence is significant, earlier attempts to serve her, and perhaps even seek an order for substituted service, should have been made.

I note that no application was made, nor notice given, to admit the evidence under the hearsay provisions of the Evidence Act 1995 (NSW).

Senior counsel for the second defendant added as a factor, that the finding of a will in solemn form involved an obligation to the public at large and, in the same spirit, refusal to allow the affidavit to be read might be seen as contrary to the wishes of the deceased.

I have taken senior counsel’s views into account but do not see that I can overcome the failure to properly serve Ms Grainger with the subpoena and to otherwise allow the admission of the affidavit. It is true that I could perhaps address the matter through an assessment of the weight of the evidence, but I would be compelled, because Ms Grainger had not been cross-examined, to give it so little weight that it would effectively be irrelevant.

Accordingly, I do not allow the third defendant to read the affidavit of Ms Grainger dated 27 February 2023. It will be removed from Exhibit A.