Antov v Bokan

Judgment

1. BATHURST CJ: I agree with the orders proposed by Bell P and with his Honour's reasons.
2. BELL P: The decision of Ward CJ in Eq (the primary judge) from which this appeal is brought sets out in comprehensive and meticulous detail the at times dramatic course of events in Australia, Macedonia and Croatia which underpinned the litigation between the appellant, Mr Vase Antov (Vase), the grandson of the late Ljubica Dimitrovska (the deceased) and his aunt, the first respondent, Lidija Bokan (Lidija) who was the deceased's daughter. The deceased's other daughter and Lidija's step-sister, Ms Radmila Antova (Radmila) is the mother of Vase and is the second respondent in the appeal. For ease of reference, and with no disrespect, I will follow the convention of the primary judge in referring to the parties as Vase, Lidija and Radmila respectively.
3. The deceased died on 17 November 2014 and on 12 March 2015, Lidija obtained a grant of probate in respect of the deceased's will which had been executed on 11 February 2009.
4. At issue in the proceedings below was Vase's claim to be entitled to an unencumbered interest in property in Granville (the Granville property) which had been owned by the deceased and which was occupied by Vase (together with the deceased and Radmila) from approximately May 2010.
5. By amended statement of claim (ASOC), Vase sought a declaration that, in the events which had happened, Lidija (as executor of the deceased's estate) held the Granville property upon constructive trust for him. He also sought an order that Lidija do all things and sign all documents necessary to transfer the unencumbered title of the Granville property to him. He further sought a declaration that, as executor of the estate, Lidija held the balance of the estate upon constructive trust for him.
6. Vase's case was built upon the existence of two documents, a power of attorney (the Power of Attorney), referred to by the primary judge as the Macedonian Power of Attorney to distinguish it from an earlier Australian power of attorney that apparently had been revoked, and a document described as a Contract for a Gift, which was said to have been prepared on the deceased's instructions by a lawyer, a Mr Zarko Dabeski (Mr Dabeski), in Macedonia in 2009.
7. The documents or, more correctly, the purported copies of these documents (for there was a major issue as to their authenticity) are dated 13 and 14 October 2009 respectively. The different dating of the purported copies of the documents assumed significance in the primary judge's finding that the purported Contract for a Gift document was not authentic.
8. The primary judge described these two documents and the circumstances of their purported execution in [5] of her reasons as follows: "The two documents on which Vase's claim rests (the authenticity of both of which was challenged by Lidija) are both in the Macedonian language: a document translated as being headed 'Power of Attorney' dated 13 October 2009 … and a document translated as being headed 'Agreement for a gift' dated 14 October 2009 […Contract for a Gift]…. Each of those documents is said to have been executed by Ljubica in Macedonia (by the imprint of her thumb on the document), on the respective dates the documents bear, in the presence of a public notary and two witnesses (Mr Mirče Danilov and Ms Letka Kostovska)."
9. As will be explained below, the first time that Vase obtained a copy of the Contract for a Gift was July 2016. Lidija only learnt of the existence of the document shortly thereafter.
10. The two documents were both alleged in the ASOC to have given rise to representations in relation to the Granville property upon which Vase claims to have relied to his detriment so as to generate an entitlement to receive an unencumbered transfer of the Granville property "on the grounds of promissory estoppel".
11. The representation said to have been contained in the Power of Attorney was that "upon the sale of the property at 49 Louis Street, Granville NSW [Vase] is entitled to full use of the proceeds of sale for his personal use and on his account and is entitled to deal with the money as his own private possession". The representation said to have been contained in the "Contract for a Gift" was that the deceased "would gift to [Vase] her entire estate and her real estate property at 49 Louis Street, Granville; or she would make a will in which she devised to [Vase] the property at 49 Louis Street, Granville together with the balance of her estate."
12. The ASOC pleaded that, in reliance upon these representations, from about early 2010, Vase carried out renovations and improvements to the Granville property and lived there with the deceased and Radmila from about May 2010 until the deceased's death on 17 November 2014 during which period, it was alleged, he assisted the deceased with the costs of living.
13. It was also pleaded, in the alternative, that "in breach of the [alleged] representation" that the deceased "would make a will in which she devised to [Vase] the property at 49 Louis Street, Granville together with the balance of her estate", the deceased failed to make a will to this effect and that "[i]n the premise" Lidija, as executor of the estate, holds the Granville property and the balance of the deceased's estate on constructive trust for the plaintiffs. The basis upon which the constructive trust is alleged to have arisen was obscure.
14. Vase had lodged a caveat on the Granville property on 16 March 2010, purportedly based upon the Power of Attorney.
15. The authenticity of the two central documents upon which Vase's case was built was put squarely in issue in the proceedings by Lidija. In addition to a challenge to the authenticity of the Power of Attorney and the Contract for a Gift, the circumstances in which, on Vase's case, those documents were executed (if executed at all) was said, by way of cross-claim, to attract the equitable doctrines of undue influence and unconscionability.
16. The proceedings were heard over eight days. The primary judge dismissed the ASOC with costs, declared that the execution by the deceased of one or more copies of the document entitled Power of Attorney was procured by the undue influence and unconscionable conduct of Vase and was of no effect, and ordered Vase to pay Lidija's costs of the cross-claim.
17. The detailed and meticulous fact finding of the primary judge to which I have already referred considers closely and carefully the at times conflicting and/or inconsistent and/or incomplete evidence in relation to the circumstances surrounding the execution of the Power of Attorney and the Contract for a Gift.
18. By way of summary, the primary judge concluded at [9]-[10] of her judgment (see also [456(20)]) that: 1. she was not persuaded that the Contract for a Gift was an authentic document; 2. she was satisfied that the Contract for a Gift was not a document executed by the deceased on 14 October 2009; and 3. (although strictly not necessary to decide), there was an unrebutted presumption of undue influence and unconscionable conduct in relation to the execution of the Power of Attorney. In relation to (1) and (2) her Honour had noted at [6] of her judgment that Vase relied upon both the Power of Attorney and the Contract for a Gift to establish his case such that, if the latter were found not to be an authentic document, then "this case would simply not be pressed further": see also at [157] and [454] of the judgment. No submission was advanced on appeal inconsistent with the concession that had been made at first instance.
19. The primary judge also held (at [12]) that the circumstances in which the promissory estoppel claim was brought by Vase amounted to an abuse of process on his part, and that there was no issue estoppel precluding Lidija from raising that issue, although her Honour noted that it was not necessary to determine the matter on that basis. The circumstances to which her Honour referred (at [12]) were: 1. the filing by Vase without leave of his amended summons in what had originally been commenced as family provision proceedings, after agreement had been reached for the settlement of the whole of the proceedings; and 2. claiming an interest wholly inconsistent with the claim for family provision that had been made by Vase in those proceedings. The settlement agreement to which her Honour referred was dated 23 March 2016 and assumed some significance more generally in the matter, as it was not until after this date that reference was made by Vase for the first time to the existence of the Contract for a Gift.
20. It should also be noted that the primary judge (at [13]), whilst expressing "real doubts" as to the capacity of the deceased to grant the Power of Attorney in favour of Vase as at 13 October 2009, was not satisfied that lack of capacity had been established on the limited medical evidence available.

Grounds of appeal

1. Leave to amend the notice of appeal was granted at the outset of the hearing of the appeal.
2. Vase challenged the decision at first instance on the following grounds in his amended notice of appeal: "1. Her Honour erred in finding that the Contract for a Gift, witnessed by Mirče Danilov was not authentic. No such allegation was put to Mirče Danilov. 2. Her Honour erred in holding that: a) The document of Ljubica Dimitrovska dated 14 October 2009 called 'Contract for a Gift' or the document of Ljubica Dimitrovska dated 13 October 2009 called 'Power of Attorney' was a transaction which attracted a presumption of undue influence; or b) The appellant failed to rebut any such presumption of undue influence, if it arose, with respect to either of those documents or transactions. 3. Her Honour erred in failing to hold that: a) The 'Power of Attorney' or 'Contract for a Gift' comprised representations by Vase's grandmother to the effect that: he could sell her home and deal with the proceeds of sale for his own use; her home property at Granville was or would be his; and she would give him her whole estate or leave it to him in her Will; and b) Detrimental reliance was reasonably placed by the appellant on the representations so as to ground an estoppel against his late grandmother's legal personal representative as to Vase's entitlement to her estate, including her home, on her death or so that a constructive trust arose in respect of the home or estate of his late grandmother. 4. Her Honour erred in holding that the Power of Attorney was procured by unconscionable conduct on the part of the appellant and is of no effect. 5. Her Honour erred: a) in the exercise of her discretion under UCPR r 31.3 in her interlocutory judgment of 27 February 2018, by refusing to receive the evidence of Zarko Dabeski via audio-visual link with the Court in Macedonia; and b) at trial, in refusing to receive Zarko Dabeski's affidavit into evidence."
3. In oral submissions, Mr McGrath SC, who appeared on behalf of Vase, put primary and almost exclusive emphasis on the fifth of these grounds in support of a submission that Mr Dabeski's evidence, which is the focus of that ground of appeal, was of central relevance to the question of authenticity of the Contract for a Gift, and submitted that her Honour's refusal to permit his evidence to be given via audio-visual (video) link had consequences for, and rendered insecure, other important conclusions reached by the primary judge. He submitted that the decision not to permit the video link evidence was "unreasonable" or "plainly unjust" in the House v R sense (see House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R)).
4. Because of the way in which the case was put orally, it is both appropriate and convenient first to deal with appeal ground five of the amended notice of appeal.

Appeal Ground 5 - Refusal to permit video link evidence

1. The primary judge heard and determined Vase's application for the taking of Mr Dabeski's evidence at the trial by video link on 27 February 2018, the application having been filed on 15 February 2018. That application noted that the matter had been fixed for hearing between 5 and 19 June 2018. The date proposed for the video link was 11 June 2018, almost four months after the hearing and delivery of judgment on the video link application.
2. The application for the taking of evidence by video link was supported by a short affidavit from Mr Oliveri, an Australian legal practitioner with carriage of the proceedings on behalf of Vase. That affidavit annexed a purported affidavit of Mr Dabeski of 13 December 2017 which comprised some 15 paragraphs. Mr Oliveri also stated that, since the filing of that affidavit, Mr Dabeski had advised that "he has declined [Vase's] invitation to travel to Australia at [Vase's] expense so as to make himself available for cross-examination", and that Vase had no means of compelling the witness. Mr Oliveri referred to and attached medical evidence to the effect that Mr Dabeski had a phobia of flying. Contrary to what was said in Mr Oliveri's affidavit, the medical evidence was not that Mr Dabeski "was unable to fly". The terms of the medical evidence were as follows: "Instructions for further treatment of the insured person The patient is being consulted for psychic troubles related to phobic disorders in form of phobic fear of flying (traveling by airplane). This fear has been present always and as a result the patient is limited in the travels with airplane. The medical history shows a presence of fear when even thinking about boarding on airplane … fear that is stopping and inhibiting the patient … associated with turbulent symptomatology like heart beating, over-sweating, redness … negative associations. Neurological finding - except for more expressed vegetative symptomatology, the rest of the finding is in order. Psychic status- anxious, with an increase of anxiety when talking about the situation related to traveling with airplane ... there is strongly expressed phobic fear that has elements of irrational ... with anticipation of fear when thinking about traveling and inhibition= isolated phobic disorder. Verbal intervention. This requires medical and psychiatric therapy. Check-up if needed."
3. Mr Oliveri's affidavit continued at paras 7-8: "Currently the time difference between Sydney and Macedonia is such that at 10:00am Sydney time, it is midnight in Macedonia. However, I have been advised and verily believe that if an audio video link order is granted, then I would serve this on the Minister for Justice in Skopje, Mace[d]onia, and that a Court room with appropriate audio visual equipment would be made available at the appropriate time in Skopje to link up with this Court. I have no reason to doubt the integrity of the system that the Skopje Court has in place. The evidence of Mr Dabeski is essential in meeting the allegations raised against the second plaintiff in the amended defence."
4. The "allegations raised against the second plaintiff in the amended defence" included the non-admission of the authenticity of both the Power of Attorney and the Contract for a Gift, the denial of the deceased's capacity to make either, and a denial that Vase could or did rely on the representation alleged in the statement of claim. (As a result of leave granted on 27 February 2018, the non-admission of authenticity in relation to the Power of Attorney and the Contract for a Gift was elevated to a denial of authenticity in the further amended defence filed on 2 March 2018).
5. Before turning to consider the primary judge's reasons for refusing the application for a video link hearing, a number of observations should be made in relation to the purported affidavit of Mr Dabeski which was annexed to Mr Oliveri's affidavit, and a purported translator's affidavit in respect of Mr Dabeski's affidavit.
6. First, Mr Dabeski's purported affidavit is not witnessed. Instead, Mr Dabeski has signed both the English translation and the Macedonian version of the affidavit both as a deponent and witness. Secondly, neither version identified Mr Dabeski's address, despite provision being made for that. Thirdly, although the affidavit purported to annex true copies of the Power of Attorney and the Contract for a Gift Agreement, no copy of the Power of Attorney was annexed. Fourthly, the Macedonian version of the affidavit did not specify a particular date in December 2017 on which it was executed, but there is handwritten on the English translation on both the cover page and first page the number "13" before December 2017. Fifthly, the translator's affidavit was not witnessed. Sixthly, the translator's affidavit was undated. Seventhly, the translator's affidavit did not specify the date on which she met with Mr Dabeski for the purpose of translating his affidavit, even though the translator's affidavit made provision for the insertion of those dates in paras 3, 4 and 5. Eighthly, para 7 of the translator's affidavit read "Zarko Dabeski then signed her affidavit in my presence and in the presence." This sentence refers to Mr Dabeski as "her" and is obviously incomplete, as it does not identify any witness in whose presence the affidavit was witnessed. Ninthly, the translator's affidavit did not annex the Macedonian version of the affidavit which she claimed to have translated, or the English version of the affidavit which she attested to having translated.
7. The primary judge heard extensive argument in respect of the video link application on 27 February 2018. The application was opposed by Mr Heath who appeared for Lidija both before the primary judge on the application, at trial and on appeal. In his submissions, Mr Heath contended that it was not in the interests of justice and would be unfair to his client to permit the evidence to be given by video link. He made the point that the authenticity of the Power of Attorney and the Contract for a Gift had been in issue since the time the original defence had been filed.
8. In her ex tempore judgment, the primary judge commenced by noting the tortured background to the present application, noting the fact that the proceedings started their life as a family provision application in relation to the deceased's estate in 2015.
9. Her Honour noted that the family provision proceedings had been settled, and that it was only following this that the present claim was brought by Vase by way of an amended summons (this was the irregular procedure which her Honour indicated she would have held to amount to an abuse of process: see [19] above.)
10. Her Honour then noted, at [3]-[4] of her ex tempore judgment, that: "Those documents [referring to the Power of Attorney and Contract for a Gift] are said to have been prepared by a lawyer, Mr Zarko Dabeski (whose name sometimes appears as Zharko Dabeski). The plaintiff has been aware since at least 2009 of the involvement of Mr Dabeski in relation to the documents, since, in his affidavit of 2 November 2016 filed in these proceedings, he deposes (at [39]) to having arranged for Mr Zarko Dabeski to visit his grandmother. The particulars of the actual undue influence claim (particulars to [7J] of the amended defence), include (as particular 1), that the second plaintiff, now the only plaintiff, arranged for a lawyer of his choice, namely Mr Zarko Dabeski, alleged to be a Macedonian lawyer, to prepare the documents necessary for the deceased to revoke the power of attorney granted to the defendant, and for the execution of the alleged Macedonian power of attorney and the alleged Macedonian contract for a gift. That particular is amply supported by the plaintiff's own evidence in his affidavit of 2 November 2016. At the time that leave was granted for the amended defence to be filed (4 September 2017) there was also a direction made in relation to the service of any evidence to be relied upon as a result of that amendment. As I understand it, the evidence that the plaintiff seeks to rely upon in relation to the actual undue influence claim, and perhaps also the presumed undue influence claim, includes evidence from Mr Dabeski as contained in an affidavit of Zarko Dabeski sworn 13 December 2017, a copy of which is annexed to an affidavit of the plaintiff's solicitor, Emanueli Oliveri sworn 23 February 2018. Mr Dabeski's affidavit was read on this present application only as to the fact of that affidavit having been served and its contents, not for the truth of its contents."
11. Her Honour then outlined the gist of Mr Dabeski's purported affidavit, noting that it went to the provision to him of instructions by the deceased and to his observations as to the deceased's capacity when the Power of Attorney and the Contract for a Gift were executed. Her Honour noted the explanation proffered for the delay in the provision of evidence from Mr Dabeski, namely that it was due to the fact that it was only when the amended defence was filed and an actual undue influence claim raised, that it became relevant that Mr Dabeski had been instructed to prepare the disputed documents. Her Honour noted, correctly, that the plaintiff had been on notice as to the challenge to the authenticity of the documents for some time.
12. Her Honour also noted that there were a number of difficulties relating to the manner in which the evidence of Mr Dabeski proposed to be relied on had been prepared, and further noted the difficulty in relation to attempts to obtain the original versions of the Power of Attorney and the Contract for a Gift whose authenticity was challenged. As to the difficulties in relation to the affidavit of Mr Dabeski, the primary judge noted some of the formal deficiencies to which I have already referred in [30] above, together with deficiencies in the affidavit of the Macedonian interpreter who had purported to translate Mr Dabeski's affidavit.
13. The primary judge then referred to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (Evidence (AVL) Act) which provides as follows: "Taking evidence and submissions from outside courtroom or place where court is sitting - proceedings generally (1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. (2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies. Note. Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings. (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so." (emphasis added).
14. The effect of s 5B of the Evidence (AVL) Act is that, whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party.
15. The primary judge referred to the evidence of Mr Oliveri which has been referred to at [26] above, but noted that the evidence in relation to Mr Dabeski's phobia in respect of flying did not make clear for how long he had been treated for such a phobia. Her Honour also noted the lack of any explanation as to any steps that could be taken to facilitate Mr Dabeski's travelling to Australia notwithstanding the phobia, by way of any form of medication.
16. In [10] of her ex tempore reasons, the primary judge summarised the competing arguments of the parties as follows: "The plaintiff's position is that he is not in a position to compel the witness to travel to Australia to give evidence; that the witness is to give material evidence, and that it is not fair to the plaintiff to deprive the plaintiff of the ability to call the plaintiff to give evidence. The defendant's position is that the forensic disadvantages to which the defendant will be put in testing this late evidence, having regard to the issues that will be sought to be raised with this witness and the need to take this witness to particular documents, (and in particular to the need for the Court to be in a position to assess the evidence of the witness) is such that I should not accede to the plaintiff's application. It is also noted that there is nothing in Mr Dabeski's affidavit, or the like, to inform the Court as to whether Mr Dabeski is in fact unable to speak English and requires the assistance of an interpreter."
17. In [11] of her ex tempore reasons, the primary judge observed that the issue as to the authenticity of the documents may well be able to be met by other witnesses whom she had been told had given affidavits and were intending to travel from Macedonia to Sydney to be cross-examined. These were Mr Mirče Danilov (Mr Danilov) and Ms Letka Kostovska (Ms Kostovska). As it turned out, Ms Kostovska did not attend the trial to give evidence, her absence was unexplained and the primary judge drew an adverse inference in her principal judgment: see at [433]. But the point of the primary judge's reference at [11] of the judgment on the video link application was that Mr Dabeski was not the only witness who it was anticipated would or could give evidence as to the execution of the contested documents.
18. The essence of the primary judge's reasoning on the video link application was set out in [12]-[15] of her ex tempore judgment as follows: "Factors relevant to the exercise of the discretion to permit video audio link testimony include not only the nature of the evidence and the extent to which it is likely to be disputed, but practical matters including the cost, convenience and duration of the proposed evidence. It has been said that the centrality of the proposed evidence is not necessarily conclusive against an order being made, but when combined with the prospect of lengthy cross-examination and a significant credit challenge the Court is likely to require the attendance of the witness in the absence of significant countervailing considerations, and I refer in that regard to the decisions in Australian Securities and Investment Commission v Rich [2004] NSWSC 467 and Commissioner of Taxation v Oswal No 5 [2015] FCA 1504. In my opinion, there would be unfairness to the defendant in making an order for the evidence to be taken by audio visual link in this particular case. The defendant has pointed out that, amongst other things, in the absence of any contact details that have been able to produce any communication with Mr Dabeski, they have not even been able to confer with Mr Dabeski in order to satisfy themselves in relation to some procedural aspects at least in relation to his evidence, to which I have adverted earlier. I am not persuaded that refusing this application necessarily means that there is no ability for the plaintiff to adduce evidence from Mr Dabeski. It may, however, be necessary for the plaintiff to consider other steps, such as facilitating some form of conference call with the defendant's legal representatives, to enable them to satisfy themselves as to particular aspects of the manner in which the evidence would be given, if it could be given by way of audio visual link. In any event, having regard to s 5B of [the Evidence (AVL) Act] to which I have already referred, given my conclusion that it would be unfair to the defendant to permit the evidence to be taken by audio visual link in these circumstances, where there will be credit challenges and where not only the authenticity of the documents but also the observations of the deceased when executing the documents will be highly relevant, I consider that I am obliged to refuse the application for evidence to be taken on audio visual link." (emphasis added)
19. The primary judge also dealt with the unsuccessful video link application in respect of Mr Dabeski's evidence in her principal judgment at [211]−[233]. Her Honour rehearsed the arguments that had been advanced on the hearing of the video link application on 27 February 2018. At [229]−[232] of the principal judgment, her Honour said: "Counsel for Vase accepted that there was an advantage to a cross-examiner being able to put documents to the witness in the witness box, particularly where issues of the kind raised in the course of argument were to be put to the witness or where the ability of the witness to speak English was to be tested; but maintained that, as against this, there must be weighed the disadvantage to the plaintiff of being denied the opportunity of being able to present this witness to the Court (it being said that there was no means of compelling Mr Dabeski to give evidence since he was not within the jurisdiction of the Court). The difficulty I had was that I considered that there were forensic issues that would need to be tested with this witness, and I foresaw real difficulties for the first defendant being able to test those issues in cross-examination via video link, let alone for me being able to form a proper assessment of the witness if his cross-examination were to be by way of audio-visual link. I considered that there were a number of unsatisfactory aspects in relation to the way Mr Dabeski's affidavit had been prepared (not least that he had seemingly witnessed the execution of his own affidavit); and there were a number of issues that might well need to be explored with him, such as how he received his instructions; what those instructions were; and the basis on which he had formed the views that he asserted, in very generalised and broad terms in his affidavit, as to the capacity of Ljubica at the time and the asserted lack of duress. (What was not apparent to me then, but is even clearer in hindsight, was that a critical issue would have related to the circumstances in which the Contract for a Gift came into existence and was executed.) From the bar table I was informed by Counsel for Lidija, for completeness of disclosure, that her legal representatives had sought to make their own enquiries and to make contact with Mr Dabeski but had not obtained any response. I raised at that time the prospect that some attempts might be made to make Mr Dabeski available to Lidija's legal representatives (say, for some form of a conference in order to enable them to satisfy themselves as to some of the issues that had been raised). I considered that there was still time between the date of the application and the date of the hearing for Vase's representatives to try to address the concerns that had been raised as to the inability of Lidija's representatives to make contact with Mr Dabeski; as well as time to consider whether other procedures might be available to enable evidence taken in Macedonia or in some other way, such that the ruling against the audio visual link would not of necessity deprive Vase of the ability to obtain evidence from this witness."

Analysis

1. Appeal Ground 5 (see [22] above) is formulated on the basis that the primary judge's decision to refuse to receive Mr Dabeski's evidence by video link was discretionary in nature. As noted at [23] above, Mr McGrath took the view that he needed to bring himself within the principles in House v R to challenge such a discretionary decision.
2. This ground of appeal is somewhat misconceived, in my view, insofar as it characterises the primary judge's decision as one involving the exercise of discretion under the Uniform Civil Procedure Rules 2005 (NSW) r 31.3 (UCPR). True it is that UCPR r 31.3(1) provides that "[i]f the court so orders, evidence and submissions may be received by telephone, video link or other form of communication". The primary judge's decision, however, was dictated by the operation of s 5B(2)(c) of the Evidence (AVL) Act set out at [37] above, given her Honour's finding that any exercise of discretion to direct that Mr Dabeski give evidence by video link would be unfair to Lidija: see the emphasised portions in her Honour's ex tempore judgment set out at [42] above.
3. Her Honour's decision was not, in truth, discretionary in nature. Rather, the assessment of unfairness involved a broad evaluative judgment of the kind referred to in Singer v Berghouse (1994) 181 CLR 201 at 210-212; [1994] HCA 40 (Singer). Because of the finding as to unfairness, the primary judge did not reach the stage where her discretion to direct video link evidence was enlivened. Indeed, she was precluded from exercising any discretion by reason of s 5B(2)(c) of the Evidence (AVL) Act.
4. Notwithstanding this matter, the broad evaluative nature of the finding of unfairness had implications for the standard of appellate review. As Singer (at 212) makes plain, a challenge to such a finding involves the same high hurdles that must be overcome as in a challenge to a discretionary decision.
5. Because of the misconception that I have referred to, the appellant's written and oral submissions were not directed to a challenge to the primary judge's finding of unfairness. Rather, they proceeded on the basis that the discretion had been exercised one way, but that it should have been exercised in another way, and that the failure to do so was "unreasonable" and "plainly unjust", to pick up some of the language in House v R at 505. The submissions did not focus on the effect of the proposed course on Lidija, and the fairness or otherwise to her of that approach. The closest the submissions came to this, albeit in the context of a challenge to the exercise of discretion, was a single sentence: "[t]he evidence [of Mr Dabeski] was unlikely to be lengthy or to involve more than a few documents."
6. The assertion that the evidence was unlikely to be lengthy was nothing more than that especially when it is borne in mind that translators would need to be involved given the inference arising from the fact that Mr Dabeski's affidavit had been translated. Mr McGrath's submissions conceded that Mr Dabeski's credit may well have been in issue, and the various irregularities to which I have referred at [30] above could legitimately have been explored with him even before the Power of Attorney and the Contract for a Gift and the circumstances of their purported execution were reached by the cross-examiner. Moreover, as was submitted on behalf of Lidija: "There was not just the issue of the documents in question and how they came into existence. But in the light of the undue influence claim, there were questions about what Mr. Dabeski knew about the deceased's circumstances, how it was she was removed from Zagreb to Skopje. How he supposedly took instructions from the deceased and what did he do if anything to satisfy himself about her capacity? Where and who was present when instructions were supposedly being taken? What documents or notes he had or made relating to his consultations? At the time the documents were said to have [been] witnessed where was the Appellant or any other person associated with the deceased? What happened to the originals of any documents made?"
7. Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the "reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party" may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].
8. Furthermore, the fairness or otherwise to one party of permitting a witness called by the opposing party to give evidence by video link may be affected by the timing of the application relative to the trial, the availability of other options to the party making the application and the circumstances of the witness involved. It is plain that the primary judge took these matters into account in reaching her conclusion that it would be unfair to Lidija to permit Mr Dabeski's evidence to be given by video link.
9. In this context, the timing of the application was significant. It was almost five months after the date which Kunc J, at an earlier case management hearing, had set for any applications for evidence to be given by video link and almost four months prior to the date set down for the hearing of the trial.
10. In the course of argument, Mr McGrath accepted that an application could have been made to take Mr Dabeski's evidence on commission, and for letters of request to be issued to the authorities in Macedonia for that to occur. This could have been done prior to, or indeed immediately after, the application for video link evidence had been declined. Moreover, as the primary judge observed at [232] of the principal judgment, set out at [43] above, there remained scope for the parties to explore means to facilitate the receipt of Mr Dabeski's evidence, such as by taking steps to arrange for him to be made available for a conference with Lidija's legal representatives.
11. A finding that it would be unfair to expose Lidija and her legal representatives to the potential disadvantages of cross-examining a witness of the potential significance of Mr Dabeski by video link unless and until such alternatives had been explored was, in my opinion, well open to the primary judge and involved no error. Further, it was always open to Vase to renew an application if either of these possibilities proved unavailing, or to seek an adjournment of proceedings if letters of request could not be given effect to in a suitable timeframe.
12. There was no appellable error in the decision to refuse to order video link evidence.
13. I now return to the balance of the grounds of appeal, noting that they were scarcely touched upon in oral argument.

Appeal Ground 1 - Authenticity of the Contract for a Gift

1. It will be recalled that the first ground of appeal was expressed in terms that the primary judge "erred in finding that the Contract for a Gift, witnessed by Mirče Danilov was not authentic. No such allegation was put to Mirče Danilov".
2. In the appellant's written submissions, it was put that the findings challenged under this ground were those made by the primary judge at [450] and [453]. The finding at [450] immediately followed the primary judge's finding that the Power of Attorney was authentic. Her Honour said: "I have concluded the opposite in relation to the Contract for a Gift. It has not been established on the balance of probabilities that such a document was executed by Ljubica. No plausible reason was put forward for the need to go to the public notary's office on two successive days (with all the difficulty that transporting Ljubica there would entail) to sign the two separate documents; the communications with Mr Dabeski that were in evidence are inconsistent with the proposition that there were two separate visits to the public notary; Mr Danilov did not give evidence beyond the mere possibility that there was a second visit by him to do with anything about Ljubica; Mr Kurtovic did not recall a second visit." At [453], her Honour concluded: "I make no finding that it was Vase who brought the document into existence. However, on the standard indicated by [Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34] (and taking the above into account) I am convinced that Ljubica did not execute the document in the public notary's office on 14 October 2009. Thus while I find the Macedonian Power of Attorney to be an authentic document, I find that the [C]ontract for a [G]ift is not an authentic document."
3. These two paragraphs brought together a number of considerations thoroughly canvassed in the primary judge's extensive reasons. Important in her Honour's reasoning was the fact that the Contract for a Gift bore a different date (14 October 2009) to the Power of Attorney (13 October 2009). This is a matter I adverted to at the outset of these reasons: see [7] above. Fully to understand how this bore upon the question of authenticity and the primary judge's parenthetical reference in [450] of her judgment to "with all the difficulty that transporting Ljubica there would entail", it is necessary to delve a little into the facts, including the prequel to the purported "execution" by thumb print of the Power of Attorney and the Contract for a Gift on 13 and 14 October 2009 respectively in the fortnight prior to those dates.
4. First it is necessary to note that Lidija (who resided in Zagreb), visited her mother (the deceased) in the Granville property in early 2009 to find her living, on Lidija's account, in a house infested with rats and cockroaches. She took her mother with her to Zagreb in late February 2009. In about March 2009, the deceased fell in Lidija's living room, broke her hip, had surgery and was admitted into an aged care facility in Zagreb. She was further hospitalised in Zagreb in late July 2009 when her right leg was amputated above the knee due to "wet gangrene".
5. On 2 October 2009, the deceased left the aged care facility in the presence of Vase and Radmila. To quote the primary judge at [100], "depending on whose account of events is accepted, this was either a rescue mission or akin to an abduction". Her Honour described what occurred on that day and following at [102] of her principal judgment as follows: "On any view what occurred was that an elderly woman, recovering from the aftermath of the amputation of her leg, was taken from the aged care facility wearing her nightgown and without glasses or dentures; was transported for a number of hours by car to Sarajevo and thence by plane to Skopje to a place where her movements were severely restricted by reason of the fact that she was on the top floor of an apartment building with no lift. When one adds to this picture that Ljubica may well have been suffering some degree of cognitive impairment at the time - and I accept that this is disputed by Vase - and that at the very least she was unhappy, or distressed, at the amputation of her leg, the scenario would have all the elements of a farce were it not so dispiriting." The apartment building to which her Honour referred was four or five storeys high and, according to Vase's evidence, he had had to carry the deceased up the flights of stairs, and she could not get up and down by herself.
6. This unfortunate set of circumstances underpinned the primary judge's observation at [450] of her principal judgment that: "… No plausible reason was put forward for the need to go to the public notary's office on two successive days (with all the difficulty that transporting Ljubica there would entail) to sign the two separate documents…" Her Honour's incredulity was reinforced by the fact that Vase left Macedonia on 13 October 2009 i.e. he could not have taken his grandmother, the deceased, to the public notary's office on 14 October 2009 to "execute" the Contract for a Gift, carrying her down four or five flights of stairs for that purpose. No evidence was offered as to how or with whose assistance the deceased could have got to the public notary's office on that occasion but one thing was certain: she could not have gotten there on her own in her condition.
7. As I have indicated in [59] above, the primary judge's reasoning at [450], which is challenged by appeal ground 1, was in essence a summary of earlier detailed analysis in the judgment. On the point made in the previous paragraph, her Honour had said at [154] of her reasons that: "Pausing here, if the Contract for a Gift is a genuine document and was correctly dated then there must have been a second visit to Mr Dabeski's office the day after the first - presumably entailing Ljubica being carried up and down four or five flights of stairs for a second time (by someone other than Vase, since his evidence is that he left Macedonia on 13 October 2009), at which time the same witnesses attended as had attended the day before in order for that second document to be signed and witnessed in the very same fashion as the first. That seems implausible to me. There was no explanation proffered for the need for there to be two separate occasions on which separate documents would be executed."
8. Next it should be noted, in respect of the appellant's attack on the primary judge's conclusion at [450] (reproduced at [58] above), that no attempt was made to criticise or undermine the primary judge's observation in that paragraph of her judgment that "the communications with Mr Dabeski that were in evidence are inconsistent with the proposition that there were two separate visits to the public notary". It was no part of Vase's case that the reference to 14 October 2009 in and as the date of execution of the Contract for a Gift was mistaken. Indeed the primary judge held at [153] that Vase was adamant that the Contract for a Gift was not brought back with him to Australia and "that he was not present when it was signed". The burden of this evidence was that the Contract for a Gift must not have been executed on 13 October 2009 (when Vase was present) but, rather, that it was executed on the date it bore, namely 14 October 2009. This, however, was the matter that the primary judge held to be implausible and inconsistent with the communications with Mr Dabeski. Her Honour's conclusion was, in my opinion, inescapably correct.
9. It must also be appreciated that the primary judge's conclusion at [450] and [453] in relation to the Contract for a Gift has to be seen in the context that no original or certified copy of this document was ever produced, despite a Notice to Produce having been issued and Vase obviously having access to Mr Dabeski, the lawyer who, on Vase's case, drew the document. The primary judge referred to this at [155] of her principal judgment. The purported affidavit of Mr Dabeski which was annexed to Mr Oliveri's affidavit, and to which I have referred at [26]−[30] above, did not make any reference to the whereabouts of the original of the Contract for a Gift, notwithstanding that it was known to Vase's lawyers at the time this purported affidavit was prepared that the authenticity of the document was very much in contest and a Notice to Produce had been issued for its production.
10. Insofar as this ground of appeal relies upon the failure to put that the Contract for a Gift was not authentic to Mr Danilov who claimed to have witnessed its execution, a number of things need to be said. First, the primary judge noted some problematic features of Mr Danilov's affidavit evidence and the circumstances in which his evidence had come to be prepared: see at [372]−[376]. No attack was made on these criticisms of his evidence. Next, Mr Danilov was not clear in his evidence under cross-examination as to how many visits he made to the public notary's office, although his affidavit said he attended on 13 and 14 October 2009. The primary judge referred to this at [144]−[156] of her principal judgment.
11. This was not a case involving or calling for the application of the rule in Browne v Dunn (1893) 6 R 67, requiring a challenge to be put to Mr Danilov before a submission could be put in relation to his evidence that bore adversely on his credit. No adverse finding was made in respect of Mr Danilov's credit; indeed, quite the opposite. Thus, at [379]−[380], the primary judge observed that: "I make no adverse findings as to Mr Danilov's credibility as a witness. I was satisfied that he was endeavouring to answer the questions honestly and I take into account that it was a stressful situation for him, at his age, to be giving evidence in a foreign court through an interpreter. Relevantly, what I take from his evidence as to what I regard as the crucial facts as to the authenticity of the Contract for a Gift is that he has no actual recollection of having attended the public notary's office on two days in a row (as distinct from on just one occasion) for the purpose of anything to do with Ljubica (cf the bald statement in his affidavit at [7] that on 13 and 14 October 2009 he did so); and, other than that his signature appears to be on the Contract for a Gift, he cannot now reliably attest to having witnessed its execution. Moreover, it is noteworthy that Mr Danilov gave no evidence of having provided copies of the critical documents to Vase in June 2016, as Vase says he did."
12. In the context of considering the attempted attack on the challenge to the primary judge's finding of the lack of authenticity of the Contract for a Gift, it is also relevant to note that the other alleged witness to the "execution" of the Contract for a Gift, Ms Kostovska to whom I have already referred at [41] above, did not give evidence. In this context, the primary judge held at [433], in a part of the principal judgment left unchallenged, that: "The fact that Ms Kostovska did not give evidence enables me more comfortably to reach the conclusion I have that the Contract for a Gift was not authentic because, on the balance of probabilities, there was no such meeting on 14 October 2009. I would have reached that conclusion …"
13. For these reasons, the attempt in appeal ground 1 to attack the primary judge's decision in relation to the lack of authenticity of the Contract for a Gift fails.

Other grounds

1. My conclusion in relation to appeal ground 1 means, as it meant in the court below, that the representational case which was built upon the Contract for a Gift must necessarily fail: see [18] above. That also means that it is strictly not necessary to deal with the balance of the grounds of appeal as they do not arise.
2. There is no need or occasion in the circumstances, moreover, to reinvent the wheel. The way in which the case was argued by Mr McGrath recognised that unless he could succeed in relation to his attack on the video link decision and the conclusion in relation to the lack of authenticity of the Contract for a Gift, the other grounds of appeal were not reached.
3. It is sufficient to say that, in respect of appeal ground 3 which relates to the representations which the Power of Attorney and the Contract for a Gift are together said to have given rise to and the question of reliance, I agree with and adopt the primary judge's conclusions. In this respect, at [489] of the judgment, her Honour concluded that: "The claim based on representations contained in the Contract for a Gift can be disposed of at once. It does not arise in light of my finding that it is not an authentic document (and even if it were an authentic document it does not contain the pleaded representations)." (emphasis added). In relation to reliance, at [499] her Honour concluded that: "However, in any event, I am not persuaded that Vase has established any reliance on any of the asserted representations, let alone detrimental reliance."
4. As to the finding with respect to the representations, the appellant's written submissions mostly repeated the terms of paras 5 and 6 of the ASOC, and did not advance any reason why her Honour's conclusion as to whether or not the representations pleaded arose was in error. Nor was any oral submission advanced in this regard.
5. The same observation may be made in relation to the appellant's submissions with regard to reasonable reliance. Those submissions did nothing more than assert a challenge to the primary judge's conclusion without developing any argument to support that assertion. The primary judge's detailed analysis of the facts with regard to reasonable reliance was cogent and, in the absence of any specific attack on that analysis and the factual findings on which it was based, this appeal ground has no merit. Moreover, given that Vase was not, on his own evidence, present when the Contract for a Gift was executed and given that a "copy" of it did not come into his possession until mid 2016, it is difficult to understand how he could have relied upon a written representation said to arise from it in the years preceding it ever having come into his possession.
6. For the reasons given in [70] - [74] and the findings in relation to the alleged representations and lack of reliance remaining intact, it is unnecessary, in my view, to deal with appeal grounds 2 and 4, dealing with undue influence and unconscionable conduct. One point, however, can and should be made relating to the appellant's submissions in support of appeal ground 4 which attack [563] of the judgment. That paragraph was as follows: "Ljubica was clearly in a position of special disability or disadvantage; Vase must have appreciated this at the time - he was certainly aware of her physical condition and dependence on himself and Radmila; and Vase's insistence that he simply followed 'the grandmother's' wishes (or orders) is implausible but, even if correct, does not in my opinion remove the unconscionability of his conduct in so doing without affording her the opportunity of independent advice. It is not necessary to go further and attribute some kind of premeditated scheme to Vase (and/or Radmila) as contended for by Lidija (and I make no such finding)."
7. Nothing in the appellant's written or oral submissions called into question the significance of the primary judge's finding as to lack of independent advice.

Conclusion and orders

1. For the foregoing reasons, I would dismiss the appeal with costs.
2. PAYNE JA: I agree with Bell P.

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