Bella-Lewis v Thompson [1996] QCA 27

Court of Appeal (Qld)|1996-02-27|Before: Before Fitzgerald P, Davies J, McPherson J, As McPherson J, Fitzgerald P

For the reasons given earlier I would allow the appeal, set aside the judgment below and order a new trial. The appellant should have the costs of the appeal but the costs of the trial should be reserved to the Judge conducting the new trial.

This is an appeal by the defendant from a judgment given for the plaintiff as executrix which decreed probate in solemn form of the will dated 25 September 1991 of Frank David Lewis, who died on 9 November 1991. The judgment followed a trial in the Supreme Court extending over some six days or more, at which the jury, after deliberating for less than an hour, returned answers in favour of the plaintiff to all questions left for their decision.

When he died Frank David Lewis was 72 years old. He had been married twice and at the date of his death there were four surviving children. They were Frank Theodore Lewis, then aged 49 years old; Jacqueline Ann Landis-Bell, aged 41; Sally Hannah Thompson, who was 33; and Megan Lewis-Sutton, aged 29. Jacqueline was not in fact the child of Frank Lewis but of his former second wife; but she was brought up as one of his own daughters and for many years believed herself to be his child. Within the family she was always known as Lindy.

At the time of their father's death, none of the children seem to have been in particularly affluent circumstances. Frank Theodore Lewis was and is the rector of the Church of St. Alban in the Anglican parish of Auchenflower in Brisbane. He was variously referred to during the proceedings as Theo, Theodore, Father Theodore or Father Lewis. At one time he was married to Marilyn Dorothy Lewis, who was a witness at the trial, and there is a child of their marriage named Rachel Ann; but the marriage had ended in divorce, and at the relevant time Marilyn Lewis and Rachel were living at Bundaberg. Theodore contributed to the maintenance of his daughter as far as his financial circumstances allowed, although not in any substantial way. Lindy was married to a ship's officer and lived at Mission Beach. Sally married in 1987 and lived at Palmwoods; she was named as sole executrix in the will of the deceased that is in contest, and she is the plaintiff in the proceedings for probate in solemn form. Megan was also married but separated from her husband, and lived on a property at Main in the Byron Bay district.

Each of these children gave evidence at the trial, at which the issue was the validity of the will or document in testamentary form dated 25 September 1991. It bears what is not disputed to be the deceased's signature and also those of Margaret Dent and Helen Ferguson apparently as attesting of subscribing witnesses. The will, which was obviously not professionally prepared, is typewritten on blue paper with letterhead bearing the name, address and telephone number of the deceased Frank D. Lewis. It became ex. 2 at the trial and is in the following form:

"This is the last will and testament of Frank David Lewis of 16 Paraka Court, Mountain Creek, Queensland.

I, Frank David Lewis, dated this 25th day of September, 1991, bequeath to Sheila, 16 Paraka Court Mountain Creek and one hundred thousand dollars cash to come from the sale of my assets of which the remainder is to be divided equally between my four children, Theodore, Lindy, Sally and Megan.

I make Sally Hannah Thompson the executrix of this will".

The opponent of the grant of probate of ex. 2, and the defendant appellant in the action, is Sheila Bella-Lewis. She did not give evidence at the trial, and not much detail of her personal history and circumstances emerges from the record. However, it appears that she came from the Philippines; that she had a child of her own named Tina; and that she and the deceased had been living together, as they were at his death in 1991, since about December 1979. There is evidence from several of the witnesses which, because the defendant herself did not testify at the trial, is uncontradicted, that the relationship between them was not always happy. She left him on one occasion after an incident in which, according to the account of it related by the deceased to a Mr Peter Farthing, she pushed the deceased down a flight of stairs.

The defendant did not herself propound any competing will or testament, although there was evidence from Father Theodore, which again was uncontradicted, that when he saw the defendant on the Monday following his father's death on Saturday 9 November 1991, she told him "Everything is all right. Your father left a will". However, on Wednesday 13 November, which was the day of the funeral, she called him into the office in the house where she and the deceased had been living in Maroochydore, and said "Before my very eyes, your father tear up his will". If there was any other will, it was not discovered or propounded at the trial. The defendant's interest in opposing the probate of ex. 2 is said to arise from the fact that, although not married to the deceased at his death, she would under the law of New South Wales, if that is where he was domiciled at the date of his death, stand to receive the matrimonial home and half of the estate. There was a valuable house at Hunter's Hill where they had been living before they moved to Queensland; and the assets of the deceased, who was described as having been a very successful and shrewd businessman, were said to be worth "several millions" of dollars.

The issue of fraud. The basis of the defendant's opposition to probate of ex. 2 is that it was a forgery. Perhaps it would be more accurate to say that the defendant's challenge to it was that it had been fabricated. As has been mentioned, the deceased's signature on ex. 2 was not questioned. Indeed, the evidence of a handwriting expert Mr Marheine, who was the only witness called by the defendant at the trial, was that he had no doubt the signature was genuine. The amended defence and counterclaim formally admitted that the plaintiff Sally Thompson is named as executrix in the document (ex. 2) dated 25 September 1991 purporting to be the last will of the deceased. What the defendant alleged - and it is particularised in several different ways in para.7 of the defence - is that ex. 2 was simply a letterhead signed by the deceased in blank, which had later been "converted" to the form in which it presently appears. In essence, the defendant's case was and is that someone dishonestly typed the terms of the will on to a piece of paper which the deceased had previously signed for some other purpose, or perhaps for no purpose at all. The allegation is made in para.7(a)(vi) and repeated in paras.7(b)(vi), 7(c)(vii) and 7(d)(vi) that the deceased "had the practice of placing his signature on blank pages containing his letterhead". The allegation was not supported by evidence at the trial, and was refuted by the plaintiff and the other witnesses in the evidence which they gave.

The defendant's case was that it was Father Theodore who was the perpetrator of this alleged act of fraud, as it is distinctly designated in para.7(b) of the defence. The circumstances in which the fraud was carried out are, naturally enough, nowhere precisely identified, although it was said to have been effected after the death of the deceased. The typewriter used to type ex. 2 was never located, although there was evidence that the deceased himself was a competent two-finger typist. The blue letterhead on which it was typed was a sheet of a quantity of such paper which had been given to the deceased as a birthday present some time before by the defendant's daughter Tina.

Although the precise date or means by which Father Theodore was alleged to have fabricated ex. 2 were not specified, the occasion on which he must, on the defendant's hypothesis, have set his plan into motion was identified. It was the celebration of the 25th anniversary of his ordination as a priest. That event took place on the evening of 25 September 1991 (which is the date that appears on ex. 2) at the church of St. Alban. It took the form of a communion service conducted by Bishop Adrian Charles, at which some 60 or 70 people were present, and it was followed by a dinner attended by, among others, Sir James Killen, Judge Pratt, and Cannon Ivor Church, as well as by the two attesting witnesses Margaret Dent and Helen Ferguson, both of whom were parishioners.

The dinner and the communion service were also attended by the defendant and the deceased. His presence on that occasion was noteworthy because he had wished his son to follow him into business and had disapproved of his decision to enter the Church. Although nominally Anglican, the deceased was not a churchgoer. This was the first and only occasion on which he attended a service in which his son took part as priest.

The circumstances in which ex. 2 came to be signed by the deceased on that occasion were the subject of evidence from Margaret Dent. As well as being a parishioner of St. Albans, she occupied the office of rector's warden and in that capacity she was master of ceremonies and spoke at the dinner, which was held in the church hall. Afterwards, when talking to the deceased personally, he asked if she would do him the favour of witnessing his signature. Mrs Ferguson was also present at this conversation, and they went into the kitchen away from Father Theodore Lewis and the other guests. The deceased took a white envelope from his inside breast pocket and extracted a blue paper which Miss Dent saw him sign. Then she signed her name under the words "Witnessed by Margaret J. Dent (Retired), 117 Birdswood Terrace, Toowong. Qld. 4066", which she wrote on the document. She had had some experience in witnessing documents dating from the time when she worked in the Church offices at Ballarat some years before. Mrs Ferguson followed her, writing "Witnessed by Helen E. Ferguson (Housewife), 12/10 Carlyon Street, Hill End, 4101", and signing beneath it. Miss Dent did not see the document again until 3 February 1992, when at the request of solicitors for the plaintiff she signed an affidavit (ex. 68) for the purpose of obtaining a grant of probate in common form.

The subsequent history of ex. 2 was related by Mr Peter Farthing. He had been a close personal friend of the deceased for some 30 years, visiting his home, attending the weddings of all three daughters, and on occasion having Christmas dinner with the family when the deceased lived in Sydney. Mr Farthing was a solicitor of the Supreme Court of New South Wales. However, he never practised as such, and until 1985 was employed as an administrative officer by the Waverley Municipal Council. He participated in a number of business ventures with the deceased. He shared with the deceased a strong interest in horse racing. The deceased betted on horses in a substantial way, and at one time fielded as a bookmaker in partnership with Mr Farthing. When he left to live in Queensland, Farthing took over the bookmaking business.

According to the evidence, the deceased had a distrust of lawyers, and Farthing used to do his conveyancing and other minor legal work associated with his businesses. His evidence at the trial was that in late September 1991 he received through the post a white envelope addressed to him in Sydney. On opening it, he found ex. 2 dated 25 September 1991 signed by the deceased and bearing the signatures of the two witnesses. It was not accompanied by any letter or other document. According to Farthing's affidavit dated 5 May 1992, which was tendered by the defendant (ex. 13), the date on which he received ex. 2 was 30 September 1991. On the afternoon of the following day he received a telephone call from the deceased, who asked him "Did you get the will?" or "Did you get the will I sent you?" When Farthing replied "Yes", the deceased said "Just use it when it's necessary". He then asked Farthing how the bookmaking business was going, and there was some general conversation lasting for about five minutes before the call ended.

Farthing put the will away with other documents for safekeeping. He learned from a mutual friend of the deceased's death on the same day or the day after it happened on 9 November 1991. He did not attend the funeral in Queensland because at the time his wife was critically ill and waiting to be admitted to St. Vincent's Hospital for a serious operation. He did not think about the will again until he was at the Randwick races on Boxing Day 1991, when a Mr Barry Power, who had formerly worked for the deceased, showed him a notice (ex. 4) published in the Sydney Morning Herald of 26 December 1991. It notified the intention of Theodore and Sally to apply in Queensland for letters of administration of the estate of the deceased, who was described as having died intestate. On showing him the notice in the newspaper, Barry Power remarked "I can't believe this. Have a look at this. Frank's died intestate". Farthing responded by saying "No. I've got his will". On 31 December 1991 he wrote to the solicitors named in the notice a letter (ex. 12) forwarding ex. 2 and briefly describing the circumstances in which he had received it and was reminded of it on being shown the notice in the Sydney Morning Herald.

Farthing's evidence was obviously critical to the question whether the will ex. 2 had been concocted or fabricated; in short, to the issue of the fraud as alleged in para.7(b). Question 10 of the questions put to the jury asked whether they found for the plaintiff or for the defendant on the issue of fraud. Their answer was for the plaintiff. Such a finding would, as the learned judge reminded them in summing up, necessarily depend on the impression they formed of Farthing as a witness of credit. Their answer to question 10 shows that they accepted his evidence. It was not challenged on appeal.

Proof of the will. Once that point is reached there is, to my mind, little left in the case or the appeal from the judgment given at the trial. The allegation of fraud or fabrication being disposed of by the jury's answer to question 10, it is difficult to identify any basis in law or fact on which probate of ex. 2 could properly have been refused. The undisputed evidence was that the deceased's signature on ex. 2 was genuine. Of course, he might not have been aware that what he was signing was a will. He might have believed it was an instrument or document of some other kind. But that is contrary to the evidence of Farthing that when the deceased telephoned him on 1 October 1991, which was the day after ex. 2 was received in Sydney and less than a week after it was signed, he asked if Farthing had got the will which he had sent to him; and, receiving an affirmative answer, told him to use it when necessary. The plaintiff naturally relied on the evidence of Farthing as proving that the deceased knew that ex. 2 was a will and approved its contents.

The evidence to that effect is susceptible of no other interpretation. In the conversation on 1 October 1991, the deceased acknowledged ex. 2 to be his will and identified it as such to Farthing. It is not possible to suppose that the jury might have rejected this part of Farthing's evidence while accepting the remainder of what he said. If there was any substance at all in the defendant's hypothesis of fraud or fabrication by Father Theodore, Farthing was an essential party to the conspiracy which must have been formed to carry it out. Miss Dent and Mrs Ferguson must also have been privy to it. Recognising this to be so, the trial judge directed the jury that "the fraud case involves Theodore Lewis procuring the two women Miss Dent and Mrs Ferguson, to sign the fabricated document after Frank Lewis had died". The direction was not objected to by counsel for the defendant, nor was it the subject of any application for re-direction. It was not questioned on appeal.

Presumption of due execution. The plaintiff was, of course, bound to establish that the requisites for a valid will were fulfilled; that is to say, that the deceased executed his will in the presence of two attesting witnesses who were present at the same time and who attested and subscribed it in his presence: Succession Act 1981, s.9. For purposes of proof, the evidence of one attesting witness suffices. It is not necessary that both should testify. See Belkin v. Skeates (1858) 1 Sw. & Tr. 148; 164 E.R. 669; Rules of the Supreme Court, O.71, r.14; Hendy v. Jenkins [1900] NSWLawRp 102; (1900) 21 L.R. (N.S.W.) B. & P. 43. Miss Dent said she did not know she was witnessing a will; but that is not a requirement for its validity. If, as the evidence of Farthing proved, ex. 2 was understood by the deceased and later acknowledged to be his will, then all the statutory requirements were satisfied. His evidence and that of Miss Dent established it; and the answers of the jury to questions 1 to 8 show they accepted that evidence. It is consequently not possible to sustain ground 2(k) of the notice of appeal, which is that the jury's decision that the typewritten parts of ex. 2 were on it when it was signed by Miss Dent is against the evidence and the weight of evidence. There is no suggestion that she ever witnessed any other document bearing the signature of the deceased.

It was nevertheless submitted on behalf of the defendant that there were "suspicious circumstances" surrounding the preparation and execution of the will, which the plaintiff had at the trial failed to displace, and which consequently disentitled her to a decree for probate in solemn form, or would have done so if the trial judge had correctly directed to the jury. The approach to be adopted in relation to probate of a disputed will was authoritatively laid down in two nineteenth century decisions of the Privy Council on appeal from the Prerogative Court at Canterbury. In Baker v. Batt [1838] EngR 643; (1838) 2 Moo. P.C. 317, 318; [1838] EngR 643; 12 E.R. 1026, 1027, Parke B. said that:

"in a Court of Probate where the onus probandi undoubtedly lies upon the party propounding the Will, if the conscience of the Judge upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in question does contain the last Will and Testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate".

Later in the same year in Barry v. Butlin [1838] EngR 1056; (1838) 2 Moo. P.C. 480, 484; [1838] EngR 1056; 12 E.R. 1089, 1091, his Lordship explained that:

"the strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances to create a contrary presumption."

These two decisions and the statements of principle they contain have frequently been adopted and applied in Australia; for example, in the High Court in Nock v. Austin [1918] ArgusLawRp 113; (1918) 25 C.L.R. 519 and Bailey v. Bailey [1924] HCA 21; (1924) 34 C.L.R. 558; and again, very recently, in Re Herbert (1990) 101 F.L.R. 279 (N.T.). Many of the reported cases have involved testators whose mental faculties were in question, or whose wills were prepared by someone who took a benefit; but the doctrine of "suspicious circumstances" is not so confined. The range of matters which may give rise to suspicion is virtually unlimited. See Bailey v. Bailey [1924] HCA 21; (1924) 34 C.L.R. 558, 571. In Tyrrell v. Painton [1894] P. 151, 157, Lindley L.J. said that wherever circumstances exist which excite the suspicion of the Court, and whatever their nature may be:

"... it is for those who propound the will to remove such suspicion and prove affirmatively that the testator knew and approved of the contents of the document, and it is only when this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."

In applying these principles, it must, however, be firmly kept in mind that the inquiry to which, in a case like this, suspicious circumstances are material is whether the testator knew of and approved the contents of the document signed. As Davey L.J. said in his concurring judgment in Tyrrell v. Painton [1894] P.150, 159, the circumstances relevant for this purpose are those raising "a well-grounded suspicion that it [the will] does not express the mind of the testator".

In this context it is convenient to begin by considering the general complaint in ground 2(h) of the notice of appeal that the trial judge ought to have directed the jury that the circumstances relating to the will were suspicious; and that they should only find the will proved if the suspicious circumstances were affirmatively removed and if it was proved affirmatively that the deceased knew and approved of the contents of the will. For the most part the matters comprehended in this ground have been covered in what has already been said. The deceased's knowledge and approval of the contents of ex. 2 were affirmatively proved by the evidence of Farthing, which the jury evidently accepted. As to the balance of ground 2(h), the directions given by his Honour were, initially, that if the jury were satisfied that ex. 2 was executed according to law, a presumption arose that the deceased knew and approved the contents of the document signed. That is in accordance with the principles, stated in Barry v. Butlin and with what was said by Isaacs J., with the concurrence of Gavan Duffy and Rich JJ., in Bailey v. Bailey [1924] HCA 21; (1924) 34 C.L.R. 558, 511:

"Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will ... then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof."

The presumption or assumption of due execution, as it has often been called, is specifically recognised in O.81, r.15 of the Rules of the Supreme Court. It is displaced if there are suspicious circumstances. The existence of such circumstances intercept the presumption and prevent it from arising unless they are removed or eliminated by the proponent of the will. So much was explained in the summing up. Having referred to the presumption of due execution, his Honour told the jury he would come back to it because Mr Griffin Q.C. for the defendant had submitted that the presumption did not apply "because there are some suspicious circumstances concerning the preparation and execution of the will Exhibit 2". With those circumstances themselves his Honour then proceeded to deal specifically. Having done so, he returned to the presumption of due execution "which was raised during counsel's addresses". He explained its effect, saying that, if it applied, then another presumption arose, which was that the deceased knew and approved of the contents of ex. 2 at the time he signed it. His Honour's direction to that effect accorded with Nock v. Austin [1918] ArgusLawRp 113; (1928) 25 C.L.R. 519, 528, where Isaacs J. said:

"... where there appears no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents".

His Honour went on to stress again that the presumption was subject to the qualification that it would operate only if no circumstances appeared to excite suspicion that the deceased may not have known of the provisions of ex. 2. He then referred once more to each of the circumstances which Mr Griffin Q.C. had identified as being suspicious. In the light of these directions, it is not possible to sustain the ground in para. 2(h) of the notice of appeal.

Suspicious Circumstances. It is necessary now to turn to what the defendant claims are the circumstances of suspicion in the present case. In this Court they were identified as the matters set out in para. 2(i) of the notice of appeal, which are incorporated in the appellant's written outlines of argument. It is convenient for the moment to pass over circumstance (i) and to begin with the circumstance alleged as no. (ii), which is that the deceased's signature was made by a different pen from that used to make the signatures of Miss Dent and Mrs Ferguson. The proposition has only to be stated to recognise its fatuity. There is no rule of law or dictate of human behaviour that the same pen must be used by several persons to execute or witness a single document. On the contrary, using the same pen to make each of several signatures on a document might in some circumstances be capable of raising a suspicion that all the signatures on it had been made by a single hand. What happened here was that, looking back from 1994 to the occasion in 1991 when she subscribed the will, Miss Dent said that the same pen had been used by all. The handwriting expert Mr Marheine said that in his opinion the deceased had used a felt pen with black ink, while the ink in the felt pen used to make the signatures of the two subscribing witnesses was black with a purple tinge. On that evidence Miss Dent was probably mistaken about the use of the same pen. There is nothing inherently suspicious about that, and the jury evidently did not consider that there was.

The circumstance numbered (iii) is that indentations under the signature of the testator "Frank Lewis" showed that his signature had been applied to the paper while it was resting on a different surface from the surface on which the signatures of Miss Dent and Mrs. Ferguson were applied. Miss Dent said that the deceased had used the top of the refrigerator in the kitchen as something to write on, and that, in following him, she had done so too. Mr Marheine based his opinion that different surfaces were involved on the assumption that the top of the refrigerator was uniformly smooth, or that all signatories wrote on precisely the same part of that surface holding the pen at exactly the same angle. As Mr Marheine himself acknowledged, that might not have been what happened. There might have been specks of rust, food residue, paint or any other substance like a table cloth on the top of the refrigerator or part of it at the place where the deceased signed, which should have been capable of producing the indentations which Mr Marheine identified. Again there is nothing in this evidence to raise a well-grounded suspicion that the will did not express the deceased's intentions.

Circumstance (iv) is that it was "never positively established" that the typewritten or dispositive part of ex. 2 was on the document before it was signed by Miss Dent and Mrs Ferguson. As to that, Miss Dent said she could see there was typewriting on the document she signed but could not see or did not know what its contents were. It is a fair summary of her evidence to say that she was uncertain about what, if anything, she saw. The result is that it is probably correct to say that it was not "positively established" by her evidence that the typewritten part of ex. 2 was on the document before it was signed by the attesting witnesses. However, that circumstance loses its relevance once Farthing's evidence is accepted that the deceased himself identified ex. 2 as his will in the course of the telephone conversation some six days later. It appears from the answer to question 8 that the jury drew the inference that all the typewritten words and figures were on ex. 2 at the time when the deceased signed it. On that evidence it was open to them to draw that inference. The complaint in ground 2(k) of the appeal that it was against the weight of the evidence has already been disposed of. To treat this matter as a suspicious circumstance, it would also be necessary to displace their answer to question 10, which, for reasons already given, must have rested on acceptance of Farthing's evidence.

Late production of the will. The circumstance relied on as no. (v) is that Farthing, as the person in possession of ex. 2 at the date of the death of the testator, did not take steps to advise family members that he had it, or advise the plaintiff that she had been appointed executrix. It is true that for a period of some seven weeks between the death of the deceased on 9 November 1991 and his letter ex. 12, dated 31 December 1991, to solicitors, Farthing did not inform any of the children or the defendant that he had the deceased's will in his possession. The reasons he gave for the oversight, as he claimed it was, were the distraction afforded by his wife's critical illness, and the assumption he made at the time that other persons would have copies of the will. In fact, in the course of cross-examination, it was elicited from Farthing that there was an occasion on about the Monday (13 November 1991) after the deceased's death when he disclosed to a Mr Norman Porter that he had the will in his possession. Porter had been associated in some way with Community Markets, which was a business established and conducted by the deceased, of which the defendant was a director. Porter telephoned Farthing to say that it had been the deceased's wish that the defendant and Porter should open a market in Queensland, and that they needed "the gear" to be sent from Sydney to Queensland. Farthing's response was that he had the will, and that nothing should be done with the estate until the will was put through the courts. He said he added "Will you make sure that Sheila [the defendant] gets that message".

It was a matter for the jury to assess the credibility of Farthing's testimony on this as on other maters. They may have been helped in reaching a conclusion about it by the fact that at the trial counsel for the defendant had announced that Norman Porter would give evidence. He was never called as a witness. No explanation was offered for his absence, and it was, as the trial judge instructed the jury, consequently open to them to infer that Porter's evidence would not have assisted the defendant's case.

What may be described as Farthing's late production of the deceased's will ex. 2 was specifically dealt with by the trial judge in the summing up. He instructed the jury to ignore it, saying it was not a circumstance which could be taken into account in dealing with this aspect of the case. Curiously, in view of ground 2(i)(v) of the notice of appeal, no complaint was made that this involved a misdirection, and no redirection was sought in relation to it at the trial. There is in any event authority which supports the correctness of his Honour's direction to that effect. The sheet-anchor of the defendant's contention on appeal was the passage in the judgment of Lindley L.J. in Tyrrell v. Painton [1894] P. 151, 157, to which reference has already been made. Its citation in this context disregards the later English decisions in Estate of Lavinia Musgrove [1927] P. 264 and Re R., Deceased [1951] P.10. In the first of these cases, the facts were that Lavinia Musgrove died in 1905 leaving a document, purporting to be a will dated 9 September 1890, appointing her cousin Emma Dummall as executrix and disposing of her estate to Emma's illegitimate daughter Agnes. On the death of Emma in 1925, Lavinia Musgrove's will was discovered years after letters of administration of her estate had issued and been carried into effect. In reversing the decision of Hill J. and pronouncing for the will, Lord Hanworth M.R. said (at 280) that the doctrine of suspicious circumstances "appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution". Sargant L.J., after observing that the sole ground on which the primary judge had pronounced against the will was the suspicion excited by the executrix Emma Dummall doing nothing for 16 years to secure the benefits of Lavinia's will for her daughter Agnes, went on to say ([1927] P. 264, 283):

"Now here there is nothing in the preparation or contents of the will to raise a suspicion that it did not express the mind of the testatrix. The sole peculiarity is the subsequent fact that for many years after knowledge of the death of the testatrix the executrix did not take any steps to prove a will which gave large benefits to her daughter. I cannot think that this fact is analogous to the facts in Tyrrell v. Painton or the previous similar cases or that it justifies such an inference as was drawn there".

To the same effect were the reasons of Lawrence L.J. (at 286) that in every case in which the Court had had to consider the question "the suspicious circumstances have been circumstances existing at the time of and surrounding the preparation and execution of the will"; and that what Lindley L.J. had in mind in Tyrrell v. Painton were:

"primarily circumstances existing at the time when the alleged will was executed and having a direct bearing on the question whether the testator knew and approved of its contents."

It was in this sense that the decision in Estate of Lavinia Musgrove was applied by Willmer J. in Re R., Deceased [1951] P. 10, 17-20.

Those decisions establish, at least in England, that the suspicious circumstances must be such as to bear directly on the testator's knowledge and approval of the contents of the document he signed. It is true that in Wintle v. Nye [1959] 1 W.L.R. 284, 291, there is a passing observation in the speech of Viscount Simonds (which was taken up by MacArthur J. in Tanner v. Public Trustee [1973] N.Z.L.R. 68, 85) suggesting that secret retention of the will after the death of the testator may be considered a suspicious circumstance; but neither Estate of Lavinia Musgrove nor Re R., Deceased was referred to. What is more important, both the English decision in 1959 and the New Zealand decision were cases in which the will was retained by the person who had prepared it and who benefited under it. The point does not appear to have been specifically considered in any Australian decision, although in Bool v. Bool [1941] St.R.Qd. 17, 39, there is a statement, on which the defendant particularly relied in this appeal, in which Macrossan S.P.J. said:

"The true rule is that wherever a will is prepared and executed under circumstances which raise the suspicion of a Court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion and satisfies the Court that the testator knew and approved of the contents of the instrument. Tyrrell v. Painton [1894] P. 151."

In so stating the principle, it will be noticed that his Honour confined it to circumstances associated with the preparation and execution of the will. It does not assist the defendant on the point at issue.

In my opinion, it is consistent with the decisions in this country to hold that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, a circumstance must, to be accounted "suspicious", be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death. What happens after a person's death is not readily capable of throwing light on the question whether he or she knew of and approved the contents of a document executed during his or her lifetime. Indeed, to adopt a contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no control after his death. It follows that in this case the fact that Farthing did not disclose the will for some seven weeks after becoming aware of the deceased's death could not in law be considered a circumstance raising a suspicion that the deceased did not know or approve its contents.

Mrs Ferguson's affidavits. Circumstance (i), which has been left to last, is that one of the two alleged attesting witnesses declined on the ground of self-incrimination to give evidence of the circumstances in which she appended her signature to ex. 2. The sequence of events is that, according to Miss Dent's evidence, Mrs Ferguson attested the will in the kitchen of the church hall in the presence of the deceased on 25 September 1991 immediately after Miss Dent had done so. Mrs Ferguson later swore an affidavit dated 13 February 1992 in the standard form envisaged by the Rules of Court for obtaining probate in common form where there is no express attestation clause. See O.71, r.14, which his Honour explained to the jury. In para. 1 of the affidavit she said she was one of the subscribing witnesses to the will dated 25 September 1991, which was produced to her; in para. 2 she deposed that the testator had executed his will on that date by signing his name at the end thereof "meaning and intending the same for his final signature to his will", and in the presence of the deponent and Miss Dent. In a subsequent affidavit dated 5 April 1992, she elucidated the circumstances in which she was requested to and did sign ex. 2, referring to the fact that the deceased had taken the blue sheet of paper out of an envelope from his pocket, but that he had not completely unfolded it "so that it was not possible to read what was on that piece of paper".

It is apparent that the two statements quoted from the two affidavits are inconsistent. In the first, ex. 2 is described as a "will", which the testator meant and intended to sign as his will; in the second, it is said to have been so folded as to make it impossible to read "what was on that piece of paper". It may have been this difference that accounts for what happened at the trial.

When Mrs Ferguson was called as a witness by the plaintiff at the trial, Mr Innes of counsel sought leave to appear on her behalf to say that she would, having regard to ss.140 and 193 or 194 of the Criminal Code, claim privilege from answering all questions relating to the circumstances of signing ex. 2. After some argument Mrs Ferguson went into the witness box and was sworn. Having given her name and address she was asked to look at the first of her affidavits, which had been filed in the relevant Supreme Court "ecclesiastical" or common form probate file. At that point, she claimed privilege on the ground of incrimination from answering questions relating to her signing ex. 2 and both of her affidavits. Further and prolonged argument then took place, at the end of which the trial judge directed her to answer whether she had signed the two affidavits referred to. To this, although under protest, she said she had. At that point the affidavits were tendered by the plaintiff, but objected to by the defendant. Further argument followed, after which his Honour ruled that each of the affidavits was admissible pursuant to s.92 of the Evidence Act 1977 as a statement contained in a document. They were admitted as exs. 15 and 16. Finally, Mrs Ferguson was asked and, at his Honour's direction, answered that she had received a letter dated 25 June 1993 sent to her by the plaintiff's solicitors, together with a photograph enclosed with it; and had in response written a letter dated 7 July 1993 identifying the persons in the photograph as herself, Judge Pratt, the deceased Mr Lewis, and a woman named Carol and affirming that the Mr Lewis she identified was the person whose signature she had witnessed. She also testified that she had herself filled in the words "witnessed by Helen E. Ferguson..." at the foot of the will. Those documents were together admitted as ex. 17. All three exhibits were then read to the jury and the photograph was shown to them.

Among the grounds of appeal taken in para.2(a) to (f) are that the trial judge was wrong in admitting the affidavits (exs. 15 and 16); that he ought to have directed the jury not to act on them at all, or alternatively to view them with the "utmost caution". In addition, it is also claimed in para. 2(a) that the jury should have been told to act on the evidence of Miss Dent only after having "scrutinised her evidence with great care". None of these grounds, whether taken singly or together, is tenable, although in passing it may be noticed that his Honour told the jury that question 8 (which was whether or not the typewritten portion was present on ex. 2 when, according to Miss Dent, the deceased signed it) required them to scrutinise the evidence carefully.

Section 92(1) of the Evidence Act provides that in any proceeding not criminal, a statement which is contained in a document and which tends to establish a fact of which direct oral evidence would be admissible "shall ... be admissible" as evidence of that fact if either of two conditions is satisfied. They are: (a) if the maker of the statement had personal knowledge of the matters dealt with in the statement, and is called as a witness in the proceedings; and (b) if the document forms part of a record relating to an undertaking, etc. The two affidavits probably satisfied para. (b) of s.92(1); but, as ex. 17 showed, they certainly satisfied para. (a) of that subsection. Mrs Ferguson was called as a witness, and both inferentially from ex. 2 and directly from ex. 17, she had personal knowledge of the matters dealt with in her affidavits: cf. Evidence Act, s.96(1). It is a consequence of the statutory provision, which has been recognised and acted on in Queensland ever since the decision in Hilton v. Lancashire Dynamo Nevelin Ltd. [1964] 1 W.L.R. 952, that a witness's own statement or proof of evidence may if signed be put in evidence through him by the party calling him when he gives evidence.

In these circumstances, his Honour was on the face of it bound to admit into evidence the two affidavits of Mrs Ferguson. Section 92(1)(a) uses the mandatory expression "shall ... be admissible". It is true that it is expressed to be "subject to this Part", including s.98, which confers on the court a discretion to reject any such statement "if for any reason it appears inexpedient in the interests of justice that the statement should be admitted". However, his Honour was plainly correct in interpreting s.92(1)(a) as requiring the statement to be admitted subject to the exercise under s.98 of the discretion conferred to reject it if its admission would be "inexpedient in the interests of justice". As to that, his Honour was surely correct in holding that it was no reason for rejecting Mrs Ferguson's affidavit that it would or might be difficult for defence counsel to cross-examine her effectively if (as in the event proved to be the case) she maintained her claim to privilege when questioned. It was not, and could not be, suggested to have been any act on the part of the plaintiff that induced Mrs Ferguson to claim privilege as she did. Her action in signing the affidavits exs. 15 and 16 and providing them, together with the letter and photograph (ex. 17), to solicitors for the plaintiff involved a waiver of her privilege with respect to the making and signing of those documents. See BTR Engineering (Australia) Ltd. v. Patterson (1990) 20 N.S.W.L.R. 724, 727-729. The fact that the circumstances in which she signed ex. 2 fell outside the scope of that waiver, and within the limits of her claim of privilege, so that she could not be cross-examined about that occasion is simply one of the misfortunes of litigation, or of the rules of evidence, which parties are obliged to suffer. As it is, the defendant's unsuccessful attempts to cross-examine on that matter followed the admission of the evidence now impugned. His Honour was not at that juncture requested to reverse his ruling on the admissibility of exs. 15 to 17, and it is doubtful if he would have been justified in doing so.

The question is, in the end, whether it is shown both that his Honour exercised his discretion wrongly in failing to reject the affidavits and that the admission of that evidence occasioned some substantial wrong or miscarriage of justice within the meaning of s.13 of The Supreme Court Act of 1874. Apart from any other consideration, the fact that at the trial there was both oral and affidavit evidence to the same effect from Miss Dent, who was cross-examined by counsel for the defendant, makes it impossible to say that any such miscarriage resulted. The argument that, although the evidence from Mrs Ferguson was before them, the jury ought to have been told not to act on it at all does not bear scrutiny. Once the evidence was admitted, it was necessarily there for the jury to give such weight to it as in all the circumstances they thought it deserved. See Evidence Act, s.102. In order to ensure that the jury were not unduly influenced by the documentary nature and the formal appearance of the affidavits, his Honour exercised his discretion under s.99 of the Act to withhold them from the jury during their deliberations.

Relevance of the claim to privilege. The submission that the judge should have directed the jury to view Mrs Ferguson's affidavits with the "utmost caution", and that, in the light of her claim to privilege, he gave "inadequate directions" concerning her evidence, perhaps merits closer attention. What his Honour said to the jury in directing them on the issue of fraud was that as a matter of law the fact that Mrs Ferguson had now refused to answer questions concerning the execution of ex. 2 by the deceased did not provide evidence that she fraudulently witnessed the will on 25 September 1991; nor did her refusal to do so mean "that the contrary of what she swore in those affidavits [exs. 15 and 16] has been proved". His Honour said that, as a matter of law:

"her reluctance now to answer questions concerning the execution of Exhibit 2, if taken at its highest, can only cancel out her earlier evidence to the effect that she witnessed Frank Lewis' signature on 25 September 1991 and was present when Miss Dent signed the will as a witness."

It is clear from exchanges between counsel and the judge which preceded or followed the summing up that in giving this direction his Honour was relying on the well-known dictum of Scrutton L.J. in Hobbs v. Tinling [1929] 2 K.B. 1, 21, to the effect that if a witness swears he did not go to Rome, and his credit is destroyed, it affords no evidence that he went to Rome; "there is simply no evidence on the subject".

What was said in summing up adopted this aphorism of the learned Lord Justice. It was, as the trial judge also said, open to the jury to accept as true what Mrs Ferguson had said in exs. 15, 16 and 17, while accepting that for some reason, "of which we are all unaware", she had decided not to give sworn evidence on the point. That was, he said, a matter for them to decide. Alternatively, they could reject her evidence in those exhibits; but, if they did so, it did not provide a basis for concluding that she fraudulently witnessed the will. In my opinion, her refusal to testify on grounds of possible incrimination was, as regards the particular reasons for her doing so, inscrutable. It was incapable of raising an inference, as distinct from a mere conjecture, of impropriety in the execution of the will on 25 September 1995: cf. Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298,304 (Dixon C.J.), 305 (Kitto J.) It would have been wrong to invite the jury to speculate about the reasons why she claimed privilege; it may, for example, have been due to mistaken legal advice. If Mrs Ferguson had not been called at all, proof of her claim to privilege would have been a sufficient explanation of her absence: Payne v. Parker [1976] 1 N.S.W.L.R. 191, 202, per Glass J.A., citing Wigmore, par.286. In these circumstances it was not incorrect to tell the jury that her unwillingness at the trial to answer questions concerning ex. 2 operated at most simply to "cancel out" her evidence in those exhibits. Indeed, the direction in question may have been unduly favourable to the defendant.

His Honour's directions as to how the jury should approach the evidence of Mrs Ferguson were repeated in substantially the same terms later in the summing up. In each instance it is clear that the trial judge was directing the jury on the issue of fraud raised by the defendant (Question 10). He said so explicitly on both occasions. His Honour was not then referring to the matter of "suspicious circumstances". Indeed, it is clear that it was not submitted by the defendant at the trial that her claim of privilege from giving evidence was, or gave rise to, a circumstance of suspicion. That is apparent from the matters that were specifically enumerated in the summing up as those being relied on by counsel for the defendant as the "suspicious circumstances", as well as from the application for redirections at the end of the summing up. No redirection was sought by counsel for the defendant to the effect that Mrs Ferguson's claim of privilege was capable of being considered as a suspicious circumstance. All that was asked for was that the jury be told that they should be extremely reluctant to act on Mrs Ferguson's affidavits, and also that his Honour should, in the course of the summing up, have read out to the jury the provisions of the sections of the Criminal Code on which Mrs Ferguson relied in claiming privilege. Having sought these directions, Mr Griffin Q.C. went on to another matter, saying:

"Your Honour, the other matter is this: in relation to suspicious circumstances, in my submission, Your Honour should direct the jury as a matter of law that the fact that different pens were used, particularly against - in the context of the witness asserting otherwise, but the fact that different pens were used is itself a suspicious circumstance, that is always a central feature looked at in relation to the execution of wills when the execution is disputed".

From this it is clear that no submission was made and no redirection was sought in order to raise with the jury the possibility of regarding Mrs Ferguson's claim to privilege against self-incrimination as itself a suspicious circumstance, or even as a matter from which such a suspicion might be inferred or derived. It must in any event be doubtful whether the fact that an attesting witness subsequently claims privilege from incrimination, and does so for reasons which can only be a matter for speculation, is capable of being considered a circumstance relating to the execution of the will and having a direct bearing on the question whether the testator knew and approved its contents: cf. Estate of Lavinia Musgrove [1927] P. 264. In any event, however, because it was not relied on at the trial as amounting to a suspicious circumstance as distinct from a matter going to fraud, Mrs Ferguson's action in claiming privilege cannot on appeal for the first time be relied on as having that character after the verdict of the jury is in. The jury were never invited by the defendant to approach it in that way at the trial. Paragraph 2(i)(i) of the grounds of appeal therefore also fails. As to the other matters raised in sub-paras. (a) to (f) of ground 2 of the notice of appeal, there was in my opinion no obligation on the trial judge to give the directions sought in those sub-paragraphs. No authority has been cited suggesting he was bound to do so. Directions of that kind might have been appropriate in a criminal trial in which the onus and standard of proof are different; but this was a civil matter in which the issues were to be determined on the balance of probabilities.

The reputation of Father Lewis. The remaining grounds of appeal concerning the conduct of the trial appear in grounds 2(l), 2(m) and 2(o) of the notice of appeal. The first complaint is that the trial judge was wrong in refusing to permit questions relating to the way in which Theodore Lewis conducted his church at Auchenflower. The matter was the subject of debate and ruling before that witness began to give his evidence. The questions it was sought to put were that Father Lewis ran his church so as to encourage attendance by persons who were homosexuals and lesbians. It is not unimportant to notice that the questions, or rather the answers if they had been given in the affirmative, were said to go not to credit but to the issue, "since the questions bore on the likelihood of [the deceased] Frank Lewis having completed a will on the occasion alleged". The idea that, despite an assumed aversion on his part to homosexuals and lesbians, the deceased would have attended a function and taken communion at the church to celebrate his son's silver anniversary as a priest while nevertheless scrupling to execute his will there, is simply too fanciful to merit rational consideration. His Honour was plainly correct in regarding the evidence as too remote to be relevant to any issue in the case, and in ruling that the questions should not be put.

Ground 2(m) belongs to a similar category of complaint, although in this instance the questions were acknowledged to go to credit and not to the issue. Again, they were the subject of debate and ruling before attempting to put the questions. From the course of that discussion, it is nevertheless possible to conceive the form the questions might have taken. It was proposed first to put to Father Lewis that he had at some time in the past been charged with indecency, and had failed to answer his bail, which in consequence had been forfeited. The latitude allowed to cross-examining counsel is, no doubt rightly, very wide; but there is a judicial discretion to stop it where it can serve no useful purpose apart from calumniating a witness. See Evidence Act 1977, s.20, and the authorities referred to in R. v. Judge Noud, ex p. MacNamara [1991] 2 Qd.R. 86, 93-96. It is impossible to say that an admission by a witness that he had been charged with indecency and had elected to forfeit his bail would, to use the expression in s.20 of the Act, "materially affect the credibility of a witness" in a case like this where the allegation against him was that he had forged or fabricated a will.

The other topic of proposed questioning stands on a different plane. It was intended, on instructions from the defendant based on what she said the deceased had told her, to cross-examine Father Theodore to the effect that the deceased had at some time in the past gone overseas "to bail out [his son] in relation to a charge of issuing dud cheques ... it was either Greece or Italy, but it was in Europe". The difficulty in this instance was presented by s.15A of the Evidence Act which prohibits questioning about the commission of an offence if the rehabilitation period (which is 10 years) has run. Father Lewis had been overseas for many years before his return to Australia in 1980; in fact it must have been for at least as long as 25 years before the silver jubilee of his ordination in 1991 because he had been ordained overseas by a bishop for the Syrian Patriarchate of Antioch. There was therefore, on the limited extent of counsel's instructions, a real possibility that the question if allowed might have contravened s.15A. As it is, the learned judge did not in terms rule that the question could not be put, but simply offered strong discouragement to its being asked. That, according to the practice followed in Queensland, is not enough to enable it on appeal to be regarded as a ruling of inadmissibility. See the authorities referred to in McLean v. Kalanda Constructions Pty. Ltd.(C.A. 221 of 1994; June 20, 1995). Requiring counsel to put the question means that he runs the risk of producing a mistrial if the question or the evidence is inadmissible. As such, it operates as a useful deterrent to irresponsible questioning.

The evidence of Marilyn Lewis. To explain the point raised by ground 2(o), it is necessary to refer to some of the detail of the evidence given by Mrs Marilyn Lewis, who is Theodore's former wife. At the trial she was called by the plaintiff and gave evidence of an occasion in February 1992 when she received an unsolicited telephone call in Bundaberg from a Mr Bob Mackenzie. He introduced himself to her as a member of the firm of solicitors (whom he named) then acting for the defendant. According to her account of the conversation, he asked her if she knew about Father Theodore's past. Mackenzie said that Theodore Lewis had had to leave Greece in a hurry because he had uttered false cheques; he had been in gaol there, and his father had had to go and bail him out; and that the defendant had confirmed this with Interpol. Mackenzie said that the defendant "felt for" Mrs Marilyn Lewis's daughter Rachel, and would like to offer $50,000 to be paid into a trust account "if you wanted to co-operate with her side in the case when it comes up". Marilyn Lewis said she would have to check with her solicitor about that. He then suggested it was in Mrs Lewis's best interests for the respective solicitors to arrange a meeting and have a formal document written out. Mackenzie also gave Marilyn Lewis a telephone number where she could telephone the defendant Sheila "this arve".

After consulting her solicitor, Marilyn Lewis called the number she had been given. The defendant answered. Marilyn Lewis said she had rung her solicitor about Mackenzie's proposal. The defendant explained that Mackenzie was the "junior partner" for those solicitors, whose name she gave. The conversation ended there. "A long time afterwards", as Marilyn Lewis described it, a meeting was arranged between the solicitors, which she attended after being telephoned by the defendant's solicitors and told she would be subpoenaed at the trial. At the meeting those solicitors said they did not have a man named Mackenzie working for them. Subsequently, she was subpoenaed by the defendant to attend the trial in Brisbane as a witness.

Before it was called and tendered, the evidence of Marilyn Lewis was objected to by counsel for the defendant. It was allowed in on the basis that it was capable of being considered by the jury as an admission, constituted by conduct on the part of the defendant, that the defendant had no case of fraud and was looking to Marilyn Lewis to assist her in making one. See Moriarty v. London Chatham & Dover Railway Co. (1870) L.R. 5 Q.B. 314, which is authority for saying that such an inference is capable of being drawn from conduct of that kind. In the present case the offer of $50,000 for the benefit of Rachel as a quid pro quo for Marilyn Lewis's co-operation with the defendant's side at the trial was capable of being viewed as an indication of the defendant's own assessment of the weakness of her case, particularly when taken in conjunction with Mackenzie's efforts in the course of the conversation to impute dishonesty to Father Theodore. The defendant's assertion that Mackenzie was a junior partner in the firm of solicitors, then acting on her behalf, is some evidence on which the jury could rely as showing that, in approaching Marilyn Lewis and offering the money, he was acting on instructions from the defendant.

Lack of balance. Finally, para. 2(j) of the notice of appeal contains the general complaint that the summing up lacked balance, by putting the defendant's case before the jury on the basis of contentions by counsel for the defendant and making "a comprehensive critique" of the defence case but not of the plaintiff's case.

Complaints like these are so much a matter of impression that it is always difficult to address them except in a general way. The criticism that, in referring in the summing up to the defence case, the trial judge introduced what he said by phrases like "Mr Griffin Q.C. says" or "counsel for the defendant says" was largely a consequence of the fact that almost the only evidence at the trial came from the plaintiff's side of the record. Given that state of affairs, it was scarcely possible to refer to the defence case in any other way. The same is true of the assertion that the defence case but not the plaintiff's case was comprehensively criticised. Apart from the speculation aroused by Mrs Ferguson's claim of privilege, there was very little to the defence case except Mr Marheine's evidence that the signatures of the subscribing witnesses were in different inks and had been written on ex. 2 while it was lying on surfaces that were not identical. Mr Farthing's evidence, if accepted, was virtually decisive on the issue of fraud, and, once that question was resolved in favour of the plaintiff, it is not easy to see that the same issue could be resurrected under the guise of "suspicious circumstances".

By contrast the jury may well have regarded the plaintiff's case as a particularly strong one. The timing of their verdict suggests they did. They may have considered it not unnatural that a man in advancing years, who from suffering a recent heart attack had already received indications of failing health, should have given thought to providing for his children in the closing period of his life. His attendance at the celebration of his son's ordination may readily be seen as a gesture of reconciliation of which the execution of the will (ex. 2) was a part. Equally the jury might have taken a distinctly unfavourable view of a defendant who preferred the well of the court to the witness box, while at the same time using that vantage point to slander Father Lewis with unsubstantiated and irrelevant imputations.

The defendant's persistent attempts to get before the jury her allegations of homosexuality on the part of Father Lewis seem finally to have succeeded when, at the insistence of counsel for the defendant, Marilyn Lewis's notes of the telephone conversation with Mackenzie were admitted as ex. 32. The jury may nevertheless have thought it was a matter having as little relevance to the issues in the case as the frequency with which Father Lewis saw his daughter Rachel, which was another matter about which the defendant insisted on cross-examining him. They may even have felt that, behind it all, there was on the part of the defendant a determination to blacken his character in the hope of forcing a settlement of her claims. It was a possibility to which the jury were entitled to turn their minds and is one reason why the human experience of juries in a case like this is often valuable. It was the defendant who asked for trial by jury.

In my opinion, there is no basis on which their verdict can be upset.

Costs. The final question is one of costs. After hearing submissions some time after the trial, his Honour ordered the defendant to pay the plaintiff's costs. Shortly before the appeal came to hearing, leave to appeal against that order was obtained from the trial judge in conformity with s.9 of the Judicature Act. It remains for the defendant to demonstrate that, in making the order for costs, the judge's discretion miscarried.

His Honour was influenced principally by two considerations. One was that the defendant had made an allegation of fraud which had failed to find favour with the jury. The other was that, independently of that issue, she had failed to make reasonable inquiries, for example by attempting to interview the two attesting witnesses, until the very eve of the trial. She had not taken advantage of the procedure afforded by the Rules of giving notice of opposition under O.25, r.19 and then cross-examining the witnesses produced in support of the will. If she had done so, she could not have been made liable in costs unless the court was of the opinion that there was no reasonable ground for opposing the will. Having considered the principles laid down in Williamson v. Spelleken [1977] Qd.R. 152 and Horsley v. Dunlop (1893) 5 Q.L.J. 85, the learned judge concluded that the defendant had failed to satisfy him that she had been led to an honest belief that there was good ground for impeaching the will. Standing alone, this was practically decisive against the defendant on the question of costs.

It has not been demonstrated that, in making the order for costs, the primary judge was influenced by any mistake of law or fact. It was submitted that, in adopting an approach that costs should follow the event, the learned judge had applied a wrong principle which vitiated the exercise of his discretion. In that regard, reference was made to Re Herbert (1990) 101 F.L.R. 279, particularly at 306, in the judgment of Kearney J. However it is evident that in the Northern Territory a complete discretion over costs is invested in the judge. In Queensland the matter is governed by O.91, r.1, which, after conferring a general discretion, adds two provisoes of which the second is that:

"... when any cause, matter or issue is tried with a jury, the costs shall follow the event, unless the Judge by whom such cause, matter or issue is tried, or the Court, shall for good cause otherwise order."

Differences between the provisions of the Queensland rule and other rules based on the English Rules of the Supreme Court were adverted to in Barameda Enterprises Pty. Ltd. v. O'Connor [1988] 1 Qd.R. 359, 391. In the present case, the matter is regulated by the second proviso to O.91, r.1, because the cause was tried with a jury. That being so, costs followed the event unless the trial judge otherwise ordered: see Wheeler v. Riverside Coal Transport Co. [1964] Qd.R. 113, 115. The learned judge was therefore not at fault in adopting the approach he did in making the order for costs in this case.

In my opinion the appeal should be dismissed with costs.

[1] Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281 at 289 per Gibbs C.J.; Cross on Evidence, Australian ed. para.25105; Stone & Wells "Evidence - Its History and Policies" (1991) at 567-8.

[2] See for example Ex parte Symes [1805] EngR 311; (1805) 11 Ves.Jr. 521 at 523; R. v. Watson [1817] EngR 133; (1817) 2 Stark 116 at 158 per Holroyd J.; Lamb v. Munster (1883) 10 Q.B.D. 110 at 114.

[3] Lloyd v. Passingham (1810) 16 Ves. 59 at 64; Rose v. Blakemore [1826] Ry.&M. 382 at 384; Wentworth v. Lloyd [1864] EngR 492; (1864) 10 H.L.Cas. 589 at 590, 592; R. v. Petrie [1946] NSWStRp 43; (1946) 47 S.R.(N.S.W.) 20 at 29; Dolan v. AOTC [1993] FCA 202; (1993) 42 F.C.R. 206 at 214; Pappas v. New World Oil Developments [1993] FCA 375; (1993) 43 F.C.R. 594 at 595; Cross on Evidence Australian ed. para.25040; Phipson on Evidence (14th ed.) at para.20-05.

[4] Adams v. Lloyd [1858] EngR 835; (1858) 3 H.&N. 351 at 363; Lamb v. Munster (1883) 10 Q.B.D. 110 at 114.

[5] See the note to Rose v. Blakemore (supra) at 384-5.

[6] R. v. Watson (supra) at 153 per Bayley J.; Boyle v. Wiseman [1855] EngR 110; (1855) 10 Ex. 647 at 651 per Baron Park, Baron Alderson; Bartlett v. Lewis [1862] EngR 683; (1862) 12 C.B.(N.S.) 249 at 257; Stone & Wells (supra) at 571-2; Wilkinson "The Scottish Law of Evidence" (1986) at 90.

[7] Smith v. South Eastern Railway Co. [1896] 1 Q.B. 178 at 188 quoted with approval in Jones v. Great Western Railway (1930) 144 L.T. 194 (H.L.) and Holloway v. McFeeters [1956] HCA 25; (1956) 94 C.L.R. 470 at 483; Cofield v. Waterloo Case Co. Ltd. [1924] HCA 18; (1924) 34 C.L.R. 363 at 375.

[9] Steinberg v. Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 C.L.R. 640 at 694 per Gibbs J.

[10] Godhard v. James Inglis & Co. Ltd. [1904] HCA 37; (1904) 2 C.L.R. 78 at 92; Balenzuela v. De Gail [1959] HCA 1; (1959) 101 C.L.R. 226 at 235-6.

[11] Aimers v. Taylor (1897) 15 N.Z.L.R. 530; Hanna v. Hanna [1913] N.Z.G.L.R. 61.

Miss Dent's evidence was that Mrs Ferguson was an attesting witness to the deceased's signature of Exhibit 2. In her pre-trial affidavits, Mrs Ferguson had first sworn that the deceased had signed Exhibit 2 on the material date by signing his name at the end thereof "meaning and intending the same for his final signature to his will" in the presence of herself and Miss Dent. In a later affidavit, again sworn prior to the trial, she said that the deceased at no time completely unfolded Exhibit 2 "so that it was not possible to read what was on that piece of paper". When she was called by the respondent as a witness at the trial, counsel appeared on her behalf to claim privilege from giving evidence "relating to the circumstances of the signing or creation" of Exhibit 2 or "of the signing and contents" of either of her affidavits on the ground that her answers might tend to incriminate her of offences against ss. 140 (attempting to obstruct, prevent, pervert, or defeat the course of justice), 193 and 194 (false statements). After she was sworn and had given her name and address and, when an attempt was made to question her, repeated her claim to privilege, she was ordered to answer whether she had signed the two affidavits and Exhibit 2 and, under protest, she said that she had. Over the appellant's objection, the affidavits were then admitted under s. 92 of the Evidence Act 1977. At the trial judge's direction, Mrs Ferguson then gave evidence identifying the deceased from a photograph as the person whose signature on Exhibit 2 she had witnessed and that she had personally written the words "witnessed by Helen E. Ferguson" at the foot of Exhibit 2. Her claim to privilege was otherwise upheld, so that the trial judge must have been satisfied from the circumstances and the nature of the evidence which Mrs Ferguson was called to give, that there was reasonable ground for her concern that she might incriminate herself by her evidence at the trial: Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281, 289 per Gibbs C.J. The inevitable result was that she could not be cross-examined. She could not even be asked whether her statements in either or both the affidavits were true or false, and, unless falsity could be inferred from Mrs Ferguson's refusal to answer further questions on the basis of her privilege against self-incrimination, there was no basis for the jury to reject the truth of the statements in her affidavits. All of the evidence at the trial relating to the signature of Exhibit 2 by the deceased and its witnessing and attestation by Miss Dent and Mrs Ferguson therefore supported the respondent's case that it was duly signed, witnessed and attested. The appellant's prospect of challenging that conclusion was removed when Mrs Ferguson's affidavits were admitted and she was excused from cross-examination. Then, the trial judge consolidated the respondent's position by his directions to the jury with respect to Mrs Ferguson's evidence and conduct.

At a glance

Court

Decision date

Before

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Judgment (91 paragraphs)

Parties

Cases Cited (1)