These reasons deal with the plaintiff's application, made by notice of motion filed on 30 June 2022, for leave to re-open to adduce further evidence (a letter) in his case. In support of his application, the plaintiff relies on his affidavit sworn 29 June 2022 and written submissions.
The application is made in proceedings which concern the estate of the late Raymond McClure (deceased), who died on 21 November 2017.
The plaintiff, Dr Peter Alexakis, seeks a grant of letters of administration in respect of a will made by the deceased on 10 July 2017 or, alternatively, a will made on 8 June 2017. The plaintiff was the deceased's treating general practitioner and is the principal beneficiary under the 2017 wills.
The first defendant is the financial secretary of the Salvation Army (NSW) Property Trust. The financial director of the Salvation Army was appointed as executor under a will made by the deceased on 27 May 2016 which provided for the Salvation Army to be the major beneficiary of the deceased's estate. The three other defendants (Frank Camilleri, Hildegard Schwanke and Irmgard Schwanke, respectively) are beneficiaries under the deceased's 2017 and 2016 wills.
In these proceedings, the defendants challenge the plaintiff's claim on various grounds, including that the 2017 wills were procured by undue influence, fraud and/or unconscionable conduct on the part of the plaintiff, and have filed cross-claims that seek a range of declaratory, injunctive and other relief in relation to the 2017 and 2016 wills.
The hearing took place over nine days between 6 and 17 December 2021. There was extensive cross-examination of the plaintiff. Evidence was also given by other doctors and hospital staff who had treated the deceased and had dealings with him during the period 2015 to 2017. The parties made detailed oral and written submissions and a clarifying written submission by the plaintiff was received on 10 March 2022. Judgment is reserved.
Alexakis v Masters [2022] NSWSC 1256 | Case summary | Zoe
The parties agreed that the plaintiff's application should be dealt with on the papers and directions were made for the filing of written submissions. The first, third and fourth defendants oppose the application and rely on their written submissions filed in accordance with an agreed timetable. The second defendant neither consents nor opposes the application.
The plaintiff's application is made under rr 2.1 and 29.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which relevantly provide that the Court may give directions as to the conduct of proceedings and order of evidence as appear convenient for the just, quick and cheap disposal of proceedings.
The applicable principles are not in dispute. The parties referred the Court to the principles I set out in Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706 at [39] - [48]. In summary, the key issue to be determined is whether the interests of justice are better served by allowing or rejecting the plaintiff's application. Relevant factors to consider include:
1. the degree of importance, relevance and probative value of the proposed new evidence to the issues in the case;
2. the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs;
3. the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing;
4. the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense;
5. whether the occasion for calling the further evidence ought reasonably to have been foreseen; and
6. any delay in making the application.
While these factors provide useful guidance, ultimately the Court's discretion to permit a party to re-open must be exercised having regard to all the circumstances of the case, which includes the public interest in a just, quick and cheap resolution of the real issues in the proceedings and the finality of litigation, as reflected in the Civil Procedure Act 2005 (NSW), s 56(1); Taouk v Louis (No 1) [2014] NSWSC 656 at [11]; Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 at [43].
The evidence which the plaintiff seeks leave to adduce is a letter dated 20 October 2015 from the deceased (handwritten) to the plaintiff that refers to the plaintiff as the deceased's general practitioner since January 2014 and the deceased regarding the plaintiff as "knowledgeable, experienced, serving patients at all levels of society, and the one doctor who has my best health interests in mind". It also refers to:
1. a recent visit by the deceased to Concord Hospital on 16 October 2015 as an outpatient where he was informed that the plaintiff was to be sent a letter advising against a treatment to reduce the deceased's glucose levels;
2. the deceased's concern about the advice he had received concerning his glucose levels and the manner in which it was given. The deceased asserts that the advice was presented as "a fait accompli", he was not consulted and that it had left him "stunned and alarmed"; and
3. the deceased cherishing his freedom and his contention that he was experiencing pressure from Concord Hospital to recruit him "to the ranks of their permanent resident patients" and an attempt to alienate his GP.
Although the letter does not identify the doctor that the deceased consulted with by name, it is apparent from other evidence that it was one of the first defendant's witnesses, Dr Natasha Spalding, a geriatrician employed by the Sydney Local Health District based at Concord Hospital who saw the deceased on 16 October 2015, as well as on other occasions between 19 June 2015 and 9 November 2017. There is correspondence in evidence from Dr Spalding to the plaintiff dated 29 September and 16 October 2015 about the deceased in which Dr Spalding opines that priority should be given to symptom management relating to the deceased's bowel malignancy rather than being too aggressive with diabetic management (Exhibit NJS-1, pages 46-47 and 50-51). Dr Spalding gave evidence at the hearing and was cross-examined about her dealings with the deceased in 2016 and 2017 and her dealings with the plaintiff in his capacity as the deceased's GP in 2017.
There is no real dispute that the letter is potentially relevant to an issue in the proceedings, namely, the nature of the deceased's relationship with the plaintiff and the degree of trust and dependence by the deceased on the plaintiff. However, the plaintiff and the opposing (first, third and fourth) defendants disagree about the relative importance and probative value of the letter to the plaintiff's case, the extent of the prejudice that would be suffered if leave to re-open were granted and the explanation given for the circumstances which led to the application being made.
The plaintiff submits that the letter is very important to his case because it objectively demonstrates the deceased's trust and respect in the plaintiff's clinical judgment from an early time in the doctor/patient relationship and how the deceased saw the plaintiff as having an important role in his management by specialists. He submits that it shows that the deceased was an independent thinker about his treatment and who would be involved in it, his experiences at Concord Hospital were not favourable, the deceased wanted the plaintiff to be involved in his care in hospital and out of hospital and there was no personal friendship with the plaintiff, contending that the letter was written in terms of the deceased's clinical treatment, together with a note in Greek saying "Greetings to all".
The plaintiff also emphasises that care needs to be taken to distinguish between what needs to be considered at the stage that the Court determines whether leave to re-open should be granted and what needs to be considered in determining, if leave is granted, the use that is to be made of the letter and the inferences to be drawn from it. While accepting there is some overlap, the plaintiff submits that, for the most part, the question of the letter's weight is to be determined after the document is admitted into evidence. He contends that the opposing defendants' submissions about the weight to be given to the document are not reasons to reject the plaintiff's application.
The plaintiff submits that there should be little prejudice to the other parties if the application is allowed, arguing that the tender relates to a single letter from which any party may ask the Court to draw inferences and it is unlikely that any party would need to call further evidence but to the extent any prejudice is suffered, it can be remedied by allowing them to do so. He submits that the evidence adduced on the application demonstrates that the letter was overlooked by the plaintiff and the Court should be satisfied that if it had been available to the plaintiff and his lawyers before the hearing, it would have been tendered. He submits that the application to re-open was made promptly after the plaintiff identified the letter, the letter was not withheld as a consequence of a deliberate nor tactical decision, the proposed tender should not unnecessarily disrupt the Court's deliberations and that, taking account of all the relevant considerations, it is in the public interest and the interest of the parties that the consideration that the proceedings be conducted with minimal delay and expense does not outweigh the other relevant considerations as to why leave should be granted.
Dealing first with the circumstances in which the need for the application arose, the plaintiff's evidence on this application is that he found the letter in a bundle of papers on his office desk at home on 1 June 2022 while working through paperwork in preparation for his upcoming hearing in the New South Wales Civil & Administrative Tribunal (NCAT). He gives evidence that he takes mail home to be opened and read, he received the letter at the end of October 2015 and he placed it in a bundle of documents that he had at home as it was not clinically relevant and that he did not produce it in response to subpoenas directed to his practice as it was located at home rather than at his practice. Based on that evidence, I am satisfied that the plaintiff did not make a deliberate or tactical decision to withhold the letter at the time of the hearing and that he made his application to re-open relatively promptly.
It is, however, surprising that the plaintiff seems to have proceeded on the basis that it was unnecessary to carefully review documents that had been stored in his home office for over six years for the purposes of preparing his evidence and responding to subpoenas in these proceedings. To my mind, his apparent failure to do so and the resultant need to make the application reflects some dilatory conduct on the part of the plaintiff, particularly given that the letter is now asserted to be a very important part of his case. It is difficult not to conclude that he ought to have foreseen the need to review the documents in his home office, as the third and fourth defendants submit. That said, I do not consider this factor to be decisive in assessing the merits of the plaintiff's application.
In my view, the more significant factors are the relative importance, relevance and probative value of the letter to the issues in the case, the potential prejudice if the application is granted and the public's and parties' interest in the finality of litigation.
As to the first of these, I accept that the letter is of relevance to the issues in the case in the sense described at [13] above. However, to the extent that the letter is objective evidence as to the deceased's view of the plaintiff (including his trust and respect for him), it merely evidences his views in October 2015, nearly two years prior to the making of the deceased's 2017 wills and before he made his 2016 will, which relevantly did not include the plaintiff as a beneficiary.
Further, as the first defendant submits, the fact that the deceased trusted the plaintiff and looked to him for advice about the deceased's medical care at the time he made the disputed wills in June and July 2017 is not in dispute. To the contrary, it is an important part of the first defendant's case. Nor is it in dispute that the plaintiff had been treating the deceased for some years and had been dealing with the deceased's specialists. In that context, I do not consider the letter to be very important, highly probative or significant to the issue of the deceased's trust and respect in the plaintiff's clinical judgement and role in his management by specialists.
As the plaintiff's own submissions noted, the letter is not relevant to the circumstances by which the disputed wills were made in 2017 (Plaintiff's Submissions In Reply at [11]). It does not really assist the plaintiff in defending the claims that those wills were procured by conduct engaged in by the plaintiff in 2017 which is alleged to have unduly influenced the deceased, involved fraud of the nature alleged by the first defendant (which concerns the will of another patient) and was unconscionable. Further, it does not assist in understanding the deceased's knowledge and approval of those wills.
In response to the other matters raised by the plaintiff, I am not persuaded by the plaintiff's contention that the letter is very important to the plaintiff's case because it demonstrates that the deceased's experiences at Concord Hospital were not favourable or that he wanted the plaintiff to be involved in his care in hospital. As the first defendant noted, the deceased was an outpatient at Concord Hospital at the time and the letter does not refer to him wanting the plaintiff to be involved in his hospital care. The deceased's experiences at Concord Hospital are also not in issue in these proceedings. Nor is disputed that the plaintiff attended to the deceased during his hospital admissions in 2017.
As to whether the letter is important because it shows that the deceased was an independent thinker about his medical treatments and who should be involved in his medical care, in my view, the views expressed in this letter are of marginal relevance given they were made in October 2015 and could be construed as reflecting a misunderstanding about the medical advice he received and a concern about his diabetes when his bowel malignancy was the more significant issue at the time. In any event, there is objective evidence already before the Court from which it may be inferred that the deceased had strong views about hospitals and doctors, made decisions about his medical care and wanted to and did involve the plaintiff in that care (by way of example only, there is already evidence that the deceased discharged himself from Concord Hospital against medical advice in 2015, there are references in the deceased's letter to the second defendant about speaking to his "Greek GP" in 2016 and there is evidence of a call made by the deceased to the plaintiff after the deceased left Royal Prince Alfred Hospital on 16 May 2017 without notifying the hospital he had left and having not taken any discharge notes or medications with him).
The plaintiff's evidence that he took the letter home as it was not clinically relevant and did not recall having received it until he found it on 1 June 2022 is also somewhat at odds with the plaintiff's submission on this application that the letter is very important to his case as it provides objective evidence that there was no personal friendship with the plaintiff and the letter "was solely in terms of his clinical treatment".
It follows that I am not persuaded by the plaintiff's submission that letter is very important to the issues in the case. The fact that the letter is of some relevance is also not decisive of the application. The Court must assess the importance and probative value of the evidence to the issues and have regard to all the circumstances of the case, including the impact on the other parties if leave to re-open to adduce the letter is granted.
The first defendant's submissions accepted that if the letter is admitted into evidence, he would not seek to cross-examine the plaintiff and did not otherwise address the issue of prejudice.
The third and fourth defendants take issue with the plaintiff's submission that the prejudice would be limited. They submit that granting the application would delay the completion of the proceedings and cause consequential costs to be incurred because they would need to cross-examine the plaintiff and may need to recall Dr Spalding to ask questions about discussions with the deceased concerning the deceased' blood pressure levels and whether there was a "bold agenda" to isolate the plaintiff as the deceased's GP or to otherwise keep the deceased as a permanent in-patient. They refer to the requirement for further submissions and an additional hearing and emphasised the public and private interest in the finality of litigation.
I am inclined to the view that it should not be necessary to recall Dr Spalding and many of the matters raised by the plaintiff should be able to be dealt with by written submissions. However, I would not refuse the third and fourth defendants' application to cross-examine the plaintiff if leave to re-open to adduce the letter into evidence is granted. While I accept the plaintiff's submission (in reply) that the third and fourth defendants' estimate of the need for an additional one to two days of hearing time is not reasonable and their estimate of a delay to July 2023 is speculative, it is inevitable that granting leave to re-open would result in further hearing time, the need to file further submissions as to the effect of the further evidence, some further expense and some delay to the finalisation of the matter.
The authorities recognise that the power to grant leave should be exercised with caution and it has been said that exceptional circumstances must be shown where, as here, the case is closed and judgment is reserved: Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46] referring to Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 at [185].
As noted above, the overriding and guiding principles are whether, in the circumstances of this case, it would be consistent with the just, quick and cheap resolution of the real issues in the proceedings and in the interests of justice to grant leave to the plaintiff to re-open to adduce the letter into evidence. While finely balanced, having considered the circumstances of this case overall, I am not persuaded that it is. The letter is of some relevance but I am not satisfied that it is of such importance or probative value to the issues that leave to re-open should be granted at this late stage, considering the consequential delay and expense and the interest in the finality of litigation.
Accordingly, I order that the plaintiff's notice of motion filed on 30 June 2022 be dismissed with the plaintiff to pay the defendants' costs on an ordinary basis as agreed or assessed.
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Decision last updated: 19 September 2022