1 MASON P: On 3 October 1996 Brownie J made orders in contested probate proceedings. They included orders enabling the grant of probate of a will dated 3 June 1994 of Charles Edward Francis Miller ("the deceased"). The deceased died on 28 May 1994 aged 100. Probate was to be granted to the respondents who are two granddaughters of the deceased. The appellants, who are respectively the son and grandson of the deceased, had contended that the will was invalid by reason of undue influence. Alternatively, they had propounded a document dated 1 July 1994 as an informal will under s18A of the Wills Probate and Administration Act. Their cross claim was dismissed.
2 Initially the appellants filed a Notice of Appeal without appointment. They did not file a Notice of Appeal with grounds within the time limited by the Rules. There was a contested motion to extend the time for filing such Notice. It was adjourned twice. Eventually, on 10 March 1997 the Registrar ordered that the time for filing of a Notice of Appeal with appointment be extended to 12 March 1997. The appellants were also ordered to file and serve any affidavits in relation to proposed fresh evidence by 14 April 1997. The Registrar ordered the appellants to pay the respondents' costs of 10 March 1997 and of the two prior occasions when the motion was before him, such costs to be payable forthwith.
3 There was no agreement as to the computation of costs. Accordingly, an assessment took place which resulted in a Certificate as to Determination of Costs which issued on 3 July 1997 in the sum of $8,318.33. The Certificate was registered as a judgment in the Downing Centre Local Court. Copy of it was served on the appellants' solicitors on 14 July 1997. The covering letter informed the solicitors that the Certificate had been registered as a judgment in the Local Court. It also indicated the intention of the respondents to seek an order that the proceedings be stayed unless and until the costs were paid. The capacity of the Court to grant a stay in these circumstances had been adverted to in the hearing before Registrar Jupp on 10 March 1997.
4 The costs remain unpaid.
5 On 22 September 1997 Handley JA, on the respondent's motion, ordered that the appeal be stayed pending payment of the assessed costs contained in the certificate. There was no appearance for the appellants. However, his Honour was satisfied that the Notice of Motion had been served on the solicitors for the appellants, that they were aware that the matter was on for hearing, and that non-attendance was deliberate.
6 On 30 October 1998 there was a callover of dormant matters before Registrar Jupp. The appellant Damon Miller was present. He has sworn that it was on this occasion that he (and by inference, his father) first learnt that Handley JA had granted the stay. The Registrar stood the matter over to a callover on 4 February 1999. He directed that the appellants pay the outstanding assessed costs prior to that date, failing which the matter was to be listed to determine whether the matter should be struck out for want of prosecution.
7 On 3 February 1999 the respondents filed a Notice of Motion returnable instanter seeking an order pursuant to Pt 51AA r17 that the appeal be dismissed for want of prosecution and other relief. The Registrar stood the motion over for mention on 22 February 1999. On that day the matter was referred to me.
8 It was also on 22 February 1999 that the appellants filed their Notice of Motion. Several of the orders sought are misconceived and (in all probability) an abuse of process. The only orders of present relevance were orders sought that:
- The ex-parte orders of his Honour Mr Justice Handley, made on 22 September, 1997 be set aside and reviewed.
2. A date be set for a fixture to hear the Appeal.
9 On 24 February 1999 each of the appellants filed in the Local Court an application for leave to pay the judgment debt by instalments (cf Local Courts (Civil Claims) Rules 1988, Pt 27 r2(1)(a)). Accompanying the application were affidavits disclosing that the appellants had no assets of any value and that the greater part of their respective incomes (which consisted solely of social security) was spent in regular living expenses.
10 The appellants were represented before me by the appellant Mr Damon Miller. In the presence of his father, Mr Miller informed the Court that the appellants were unable to comply with the orders of Registrar Jupp, due to impecuniosity. However, the appellants refrained from tendering any evidence as to their means until closing addresses. Over objection by counsel for the respondents, I then permitted the appellants to tender the application in the Local Court for leave to pay the judgment debt by instalments. As indicated, the affidavits attached to that application (though untested) show clearly an inability to pay. They do not address the financial position of the appellants prior to February 1999. There is, however some evidence to indicate that such assets as the appellants once had have been consumed in legal expenses relating to the trial at first instance and other litigation. I accept this material as proof of impecuniosity.
11 There is power to dismiss for non-compliance with the Registrar's orders to pay costs (Supreme Court Act, s46(1); Supreme Court Rules Part 51 r24; Jackamarra v Krakouer [1998] HCA 27 at 7, 69). Since, however the power is invoked in relation to an appeal as of right I should act with caution. A court is reluctant to dismiss summarily where impecuniosity is the basis of breach, but impecuniosity does not as such provide the ground for refusing an order, although it is a relevant factor. A similar attitude is taken in relation to impecuniosity in applications for stay of execution and security for costs.
12 The appellants' prospects of success are a relevant factor in the exercise of the discretion.
13 Essentially, two issues were fought at the trial. The first was a challenge by the present appellants to the validity of a formal will dated 3 June 1994. It was contended that execution of the will was procured by undue influence. The will was drawn up and witnessed by the testator's solicitor. Accepting this and other evidence, the trial judge rejected the claim of undue influence. Undue influence is notoriously difficult to establish in probate matters, where the doctrine is significantly different to that applicable to transactions inter vivos (see Newton v Taylor, Powell J, unreported, 2 August 1991). Here the appellants' challenge to the validity of the will was rejected on the basis of acceptance of the credibility of witnesses who were tested at trial. I think that the prospects of overturning this aspect of the judgment are fairly slender.
14 The second issue fought at trial related to the testamentary nature of a document dated 1 July 1994. It is a type-written and slightly discursive narrative. But it does express a clear intention to revoke the will of 3 June and to make alternative provision favourable to the appellants. The document purports to be signed by the deceased. If it is his document and his signature then it is capable of admission to probate (Wills, Probate & Administration Act 1898, s18A). The appellants' application for the admission of this document to probate failed at trial on several grounds that were connected:
• It was found that the signature purporting to be that of the deceased was in fact a forgery. This finding turned upon preference for the evidence of the hand-writing expert called by the respondents coupled with the trial judge's comparison of the disputed signature (as explained by the expert) with an undisputed signature of the deceased.
• Secondly, the authenticity of the document was rejected. The appellants' case was that the document was transcribed on the basis of instructions given by the deceased to a frail, aged friend of his, Mr Bill Manning. They gave hearsay evidence of conversations with Mr Manning to this effect. Mr Manning lived in a retirement village at Baulkham Hills. He had a fall on 23 May 1994. Although he continued to live in his retirement village he was treated as a nursing home patient. From 15 June onwards he was being treated with morphine. He died on 15 August 1994. This and other evidence made it very unlikely that Mr Manning could have ventured outside his nursing home after 15 June, let alone travel from Baulkham Hills to Leichhardt, without assistance from others and a wheelchair.
15 The trial judge recognised that the evidence relating to Mr Manning was significant. He referred to a considerable body of evidence indicating that it was very improbable the Mr Manning had attended upon the deceased at Leichhardt on 1 July 1994. This evidence doubtless strengthened his view as to the authenticity of the disputed signature.
16 The findings as to the improbability of Mr Manning coming from Baulkham Hills to Leichhardt to attend on the deceased on 1 July (AB 793-797) created a strong circumstantial case for rejecting Mr Damon Miller's evidence about his conversations with Mr Manning and for rejecting the document of 1 July 1994 as a forgery (in all likelihood that of Mr Damon Miller). If that were all, I would consider the prospects of success on appeal to be insufficient to lead me to refrain from exercising my discretion in favour of dismissing the appeal.
17 However, the appellants raise one final matter. They have presented evidence which, if true, would certainly suggest that the highly improbable did occur.
18 They have tendered an affidavit of Peter Paul Viscardi sworn 10 April 1997. The deponent was not cross-examined. Mr Viscardi had contact with Mr Damon Miller in business dealings commencing in 1987. His affidavit recounts in detail events occurring on 1 July 1994 (corroborated by an extract from a personal diary of that date). He attempted without success to speak to Damon or Charlie Miller (the appellants) that day about some business. Coming to the property at 45 Leichhardt Street Leichhardt, Mr Viscardi saw two elderly gentlemen on the external verandah. There was a taxi waiting outside. One of the elderly gentlemen (identified as the deceased) was seated in a wheelchair with a blanket over his lap. The other stood with the aid of a walking device at his side. (This corresponds with evidence as to the medical condition of Mr Manning at the time.) The deceased told Mr Viscardi that Damon and Charlie were out. Mr Viscardi's evidence was to the effect that he heard and saw matters involving a document which he recounts in detail. If true, this evidence would corroborate the appellants' case based upon Mr Manning's intervention. The evidence is untested but, if true and admissible on appeal, it would offer a significant prospect of a new trial being ordered.
19 In pars 23-26 of Mr Viscardi's affidavit there is material which, if ultimately accepted, would establish that Mr Viscardi's evidence first came to the knowledge of the appellants after the trial before Brownie J and after judgment was given. Before me there was nothing to show that this was the sort of evidence which would have been available to the appellants at trial in the exercise of reasonable diligence.
20 This is a case where the power to dismiss for want of prosecution has been enlivened in accordance with r24 by the appellants' default in paying the costs. That breach is relevant in its own right. It also evidences an inability to meet any future order for costs in an appeal that may possibly span longer than one day.
21 On the other hand there is sworn evidence from a witness whose evidence was unknown to the appellants at trial (for it is presently inconceivable that he would not have been called had the appellants known of his evidence), being evidence which, if accepted, might conceivably lead to the ordering of a new trial or the grant of probate in relation to the document of 1 July 1994. I have deliberately expressed myself in terms that avoid getting too close to the tests laid down in Council of the City of Wollongong v Cowan (1955) 93 CLR 435. This will be a matter for the Court hearing the appeal.
22 This is a difficult and troubling application. I am not unmindful of the strong findings made in relation to Mr Damon Miller's credibility by the trial judge. But I do not see how I can ignore Mr Viscardi's affidavit at this stage of the proceedings. Absent some conspiracy to pervert the course of justice, it comes to the Court as unchallenged material which may well have an impact on the outcome of an appeal as of right touching a substantial estate.
23 Appeal books have been filed. The only default on the appellants' part is the non-payment of costs and that is due to the impecuniosity of the appellants. That impecuniosity may have derived, at least in part, from the way the proceedings were conducted at trial. This is not irrelevant, but hardly conclusive.
24 I am anxious to spare the respondents from exposure to any greater risk of throwing away further costs than is clearly necessary. For that reason, I propose to direct that the respondents' application for summary dismissal of the appeal stand over to the hearing of the appeal. The appeal is to be listed for callover in the Registrar's next available callover for the purpose of being set down for hearing. The hearing is to be limited, in the first instance, to the issues touching Mr Viscardi's evidence, including the issues (if any) of the appellants' reasonable diligence in not having led that evidence at trial and of the impact of that evidence on the relief sought in the appeal.
25 In the meantime, the appellants are to file a full outline of their submissions referable to the appeal touching the document of 1 July 1994. If they do not do so within the time limited I will entertain a further application for the summary dismissal of the appeal in its totality.
26 I make the following orders: