On the fourth and final hearing day in these proceedings, on 18 February 2016, the defendants made an application to adjourn the proceedings so that they could rely upon a statement signed by Dr Kannie Chuang on 17 February 2016.
At the time the application was made, the plaintiff had closed her case, and the defendants had also completed their evidence save for the tender of some additional documentary evidence comprised of hospital notes. Had the application for an adjournment not been made, there would have been time for the parties to commence their final addresses, although realistically, the addresses may not have been completed in the remaining available time, and it may have been desirable in any event, for some part of the addresses to be made in writing.
The defendants' application was opposed by the plaintiff.
The primary issue in the proceedings is whether, when the late Mrs Rona Winifred Nagel made her final will on 8 June 2012, while in hospital during the course of her final illness, she had the testamentary capacity to do so. The plaintiff seeks a grant of probate of that will in solemn form. Mrs Nagel had made a prior will in 1997, in which she divided her estate between her three children (two of whom are the defendants) and other family members, including the plaintiff. By her 8 June 2012 will, Mrs Nagel left the whole of her estate to the plaintiff alone. The plaintiff is the granddaughter of Mrs Nagel.
In outline, the plaintiff's case is that Mrs Nagel had for some time expressed the intention to execute a new will leaving all of her property to the plaintiff. However, for various reasons, that intention had not been put into effect until, at Mrs Nagel's request, the plaintiff made arrangements with the solicitor, who prepared Mrs Nagel's 1997 will, to attend upon her at the hospital to take instructions for the preparation of the new will. The solicitor did so, on 8 June 2012, and on that date, the new will was engrossed and executed, with the solicitor and his secretary as the witnesses. The plaintiff says that, whatever Mrs Nagel's mental state may have been on other occasions when she was in the hospital, she had testamentary capacity on 8 June 2012.
The defendants say that Mrs Nagel had no pre-existing intention to make a new will solely in favour of the plaintiff, and that, by means not known to the defendants, the plaintiff persuaded her grandmother to execute the new will at a time when she lacked testamentary capacity.
Dr Chuang was a staff specialist in geriatric medicine employed by the hospital at the time Mrs Nagel executed her will.
Among other relevant notes in the hospital records, the notes for 8 June 2012 include the following:
- Granddaughter (Kylie) aware of recent change in will.
- Noted Patient (Mrs Nagel) at [illegible] is capable of making simple decisions but not complex decision like financial plan & will amendments
The evidence suggests that this note was not made by Dr Chuang, but was probably made by some unidentified registrar or intern, who was at that time accompanying Dr Chuang on her rounds.
The note was admitted into evidence without objection by the plaintiff.
It initially appeared, from the way counsel for the defendants was running their case, that the defendants would be content to rely upon the contents of the note to support their case, without calling Dr Chuang as a witness.
At an early point in the hearing, there was some discussion concerning the significance of the note. I made certain comments concerning its significance, particularly in relation to the words "complex decision like financial plan & will amendments". Essentially, there might be a question in these proceedings concerning whether or not the will involved a complex decision.
The observations that I made prompted counsel for the defendants to advise the court that they had requested Dr Chuang to give evidence, but she had declined. The defendants had served her with a subpoena to give evidence, but Dr Chuang had not come to court, after having sent to the defendants' solicitor a number of medical certificates.
Counsel for the defendants asked the court to immediately issue a bench warrant for the purpose of bringing Dr Chuang to court. It is not necessary for me to record the reasons why, in the circumstances, I declined to issue such a warrant.
Thereafter, in the period up to the time, on 18 February 2016, when the defendants made their application to adjourn the hearing, the following information came to light concerning the defendants' attempts to obtain evidence from Dr Chuang.
On 4 August 2014, the defendants' solicitor wrote to Dr Chuang at the Hospital with the request that "you might be good enough to provide me a report with respect to your views about the testamentary capacity of the Deceased". The letter drew the doctor's attention to the note that I have set out above.
Apparently, Dr Chuang did not reply, and on 9 April 2015, the defendants' solicitor wrote another letter to her. The letter recorded that the solicitor had been informed that, at the date of the earlier letter, the doctor was on maternity leave, and that she probably would not return to the hospital until around March 2015. The solicitor repeated his request for Dr Chuang to provide a report.
Dr Chuang replied on 5 May 2015, saying: "Thank you for your letter of enquiries. Unfortunately, I am not authorised to provide the information sought".
The next step appears to have been that, on 8 January 2016, the defendants' solicitor caused the court to issue a subpoena to the doctor to attend to give evidence in this matter, at 10 AM on 15 February 2016. An affidavit of service shows that the subpoena was served on Dr Chuang on 19 January 2016.
It appears that Dr Chuang responded by sending the defendants' solicitor an email on 4 February 2016, which stated: "I have contacted the Supreme Court and has (sic) been advised by them to contact you and also provide a medical certificate for inability to attend the Supreme Court on 15/2/2016 due to medical reasons. If you need further information, I can be contacted through this email address".
The exhibit tendered by the defendants that included this email contains two medical certificates by a doctor, who describes herself as a gynaecological oncologist and obstetrician, dated 19 January 2016 and 1 February 2016. I infer that both medical certificates were attached to the doctor's email. Both medical certificates were addressed to "to whom it may concern".
The earlier medical certificate states:
This is to certify that I saw Dr Kannie Shunn M Chuang today and she will be unfit for work duties from 19 January 2016 to 29 June 2016 inclusively due to complications with her pregnancy.
The second medical certificate states:
This is to certify that I saw Dr Kannie Shunn M Chuang today and due to complications with her pregnancy (EDC 27/05/16) she will be unable to attend the hearing at the Supreme Court.
Notwithstanding that both Dr Chuang and the doctor giving the medical certificates invited requests for further information, it appears that the solicitor for the defendants did not take any further steps to advise Dr Chuang that she would not be released from the subpoena unless she got an order to that effect from the court; or to take any other steps to obtain the doctor's evidence in written form; or to explore the possibility that the court might make directions for the taking of her evidence by some other means that would not have required her physical presence in the court room (say, by giving her evidence by telephone or video link).
An important consideration is that the plaintiff qualified Dr John Obeid to give expert medical evidence on her behalf, and the defendants qualified Associate Professor Tuly Rosenfeld to give expert evidence in their case. The reports of the two doctors have already been received into evidence, and they were both cross-examined on the third day of the hearing.
It is also significant that the solicitor who prepared Mrs Nagel's will, Mr McKimm, and the other witness, Ms Suttcliffe, have also given their evidence, and been cross-examined.
It appears that the efforts of the defendants' solicitor to get in contact with Dr Chuang were at all times frustrated by the need to do so via the Hospital, until, following the discussion in court, the defendants' legal representatives again contacted the Hospital on the afternoon of 15 February 2016, and were successful in talking to Dr Chuang personally. I suspect, but do not know, that the defendants' success may have been influenced by their ability to advise the Hospital that the court had made suggestions concerning how Dr Chuang may have been able to give evidence in a manner that would not put her health at risk.
A draft of Dr Chuang's evidence was prepared and served on the plaintiff's legal representatives on 16 February 2016.
Arrangements were then made to facilitate Dr Chuang being able to give her evidence by telephone on 17 February 2016. This was done in advance of the court hearing argument on the issue of whether or not it would be fair to the plaintiff if the cross-examination of Dr Chuang had to be undertaken by telephone.
It transpires that Dr Chuang was given copies of the two reports prepared by each of Dr Obeid and Associate Professor Rosenfeld, before her statement of evidence was prepared. That was done (as appears from par 20 of the defendants' written submissions) because Dr Chuang asked to be given the reports, as it had been some time since the events in question occurred. I infer that Dr Chuang wanted to read the reports, because about 3 ½ years had elapsed since Dr Chuang had made her rounds; the note was made by another person; and the note is relatively brief and uninformative.
The defendants said (par 21) that it was in the interest of ensuring the hearing would conclude on 18 February 2016 that the reports were provided to Dr Chuang, "as doing so would ensure that she could give an informed response to questions regarding the note made in the hospital records".
They also said (par 13) that, on 17 February 2016, the court ruled that Dr Chuang's evidence would only be admissible if she was qualified as an expert witness.
I would put the matter somewhat differently. The position was that the defendants had unsuccessfully taken steps to obtain a witness statement from Dr Chuang, and failing that, to require her attendance to give evidence by serving a subpoena on her. It was not clear whether or not the defendants' legal representatives ought to have acted more effectively, or whether or not Dr Chuang was justified in not answering the subpoena. The fact is that Dr Chuang was not before the court. As that outcome may have been unfair to the defendants, I openly entertained the possibility that she might give her evidence by telephone, without finally ruling on the issue. Then, when I was informed by the defendants that they had served a written statement of evidence on the plaintiff, I was also told that they had provided Dr Chuang with the experts' reports (T 149), in circumstances where the defendants wished to qualify Dr Chuang as an expert witness. Counsel for the plaintiff advised me that he had been given an opportunity, on the evening before, to have a short telephone conference with Dr Chuang. Put briefly, counsel said that he anticipated that Dr Chuang would say that she did not learn on 8 June 2012 that a lawyer had been involved in drafting a new will for Ms Nagel, but did so only on 9 June 2012. Counsel suggested that, if that were the case, not only may Dr Chuang not have written the note, but it may not in fact have been written under her direction.
There was discussion (T 149 to 154) between the bench and counsel about the significance of recent invents concerning Dr Chuang's evidence. As I understood it, the decision by the defendants to provide Dr Chuang with the expert reports, and to qualify her as an expert witness, was taken by them before the issue was ventilated in court on the morning of 17 February 2016. I had raised the possibility of Dr Chuang being able to give evidence by telephone, because I understood that she would be asked to give observational evidence, albeit evidence by an expert treating geriatrician, as to her recollection of Ms Nagel's physical and mental state on 8 June 2012, and possibly also an explanation of the note made on that date, if Dr Chuang had in fact any involvement in its preparation.
However, the defendants unilaterally changed the basis upon which Dr Chuang could give her evidence, when they provided the medical experts' reports to her. Particularly if her independent recollection of events on 8 June 2012 was very limited, recent knowledge of what the experts had said was highly likely to undermine the reliability of her evidence as to Ms Nagel's physical and mental condition on the day. As I said (T 154): "It is arguable that when Dr Chuang was sent the expert reports, the Rubicon was crossed and she ceased to be merely a lay witness".
Counsel for the defendants then deferred the issue, and it was only raised again on the last day of hearing, when the defendants sought an adjournment in order to properly qualify Dr Chuang as an expert witness.
In my view, that changed everything. I had inferred that, over a long period before the commencement of the hearing, the defendants had made ineffective efforts to call evidence from Ms Nagel's treating geriatrician, concerning her recollection of Ms Nagel's physical and mental condition on 8 June 2012, and possibly to explain the note dated that day that is contained in the Hospital's records. It was on that basis that I entertained the possibility of some flexibility in the way that Dr Chuang's evidence might be given. The defendants then unilaterally took steps that had the result that, as a practical matter, Dr Chuang could only give evidence as an expert, with the benefit of prior knowledge of the medico-legal experts' reports.
A witness statement signed by Dr Chuang on 17 February 2016 was tendered into evidence on the adjournment application as Exhibit 4. Dr Chuang gave evidence about the seriousness of Ms Nagel's medical condition, and the unlikelihood of her surviving her admission. In particular, she explained the effect of the hypoactive delirium from which Ms Nagel suffered, which involved a state of fluctuating consciousness and cognitive status. She said that she did not specifically recall the events on 7 and 8 June 2012, "or precise details of Mrs Nagel's condition at this time". She said that she could not recall with precision what was meant by the phrase "reasonable orientation" in one of the medical notes, and that Ms Nagel's level of consciousness was always fluctuating. She said that, if she had known ahead of the lawyer's visit, "I would have said Mrs Nagel's condition was not at a level she could make a decision". She said that Ms Nagel's "capacity to make simple decisions about her treatment fluctuated with her delirium". She said: "At her level of unwellness Mrs Nagel couldn't make a decision about what to do with a share portfolio, for example".
While this evidence of Dr Chuang's, if given in a timely manner, would clearly have been material, and significant, I do not think it would have been conclusive. It leaves open the question of whether Ms Nagel had sufficient capacity to make a voluntary decision to make the relatively simple will that she made. It leaves open the question of what would have been concluded, if a capacity assessment had been conducted at the time Ms Nagel made her will.
The plaintiff now opposes the adjournment because the evidence that will be given by Dr Chuang will be expert evidence.
As the four day time allotted to the hearing had almost expired, when the application for the adjournment was made, it was likely that the hearing would not finally have been completed on 18 February 2016, even if the adjournment had not been sought. However, as I have said above, there would have been some time for oral submissions, and the matter could have been completed by subsequent written submissions.
The plaintiff relies upon the well-known principles in Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, and also the judgment of Bennett J in Samsung Electronics Co Ltd v Apple Inc [2013] FCA 1142 at [140] to [144].
The opposition is based upon the proposition that, if the defendants are now allowed to call additional expert evidence, the expert witnesses who have already given expert evidence will have to be re-qualified, and there will need to be a new hearing, which is likely to require a number of days of court time, so that there will be a substantial delay in completing the matter, and a substantial increase in the costs incurred by the plaintiff.
I have decided that the proper course is to reject the defendants' application for an adjournment. In taking that view, I have agreed in substance with the submissions made by the plaintiff, as outlined in the preceding paragraph.
However, I have also been strongly influenced by the circumstance that the parties have been put to the expense of obtaining highly qualified medico‑legal expert evidence, which has now been led, and cross-examination of the experts completed. Given the nature of the proceedings, and the amount at issue, it would be quite unfair to the plaintiff to allow the defendants to reopen the whole issue of expert evidence, in a way that would not only cause additional delay and expense, but would jeopardise the basis upon which the proceedings have been conducted to date.
Dr Chuang's proposed evidence also highlights the importance of Ms Nagel's actual physical and mental state at the time she gave instructions for her will, and then executed it, as her condition fluctuated from time to time. As Mr McKimm and Ms Suttcliffe have now given their evidence, it is too late for the plaintiff to deal with these issues through those witnesses, in a manner that would reflect the detail of the evidence proposed to be led from Dr Chuang.
To permit the proposed evidence of Dr Chuang to be given now would re-enliven many of the issues already canvassed in the evidence, in a way that would require the recall of the plaintiff's lay and expert witnesses. There is a real risk that the plaintiff would not be able to do justice to her case, given that she has already led the evidence of her witnesses, in ignorance of what is contained in Dr Chuang's witness statement.
Furthermore, while it is true (as the defendants' counsel submitted) that in many cases the evidence of the treating doctor will be the most probative, there is a real risk in the present case that Dr Chuang's ability to give expert evidence, as the treating doctor, will have been infected by the fact that she did not begin to prepare her evidence until after she had full knowledge of the competition in views between the two expert witnesses who have already been called.
On balance, I have formed the view that the delay and expense, and potential unfairness to the plaintiff, in allowing the application for an adjournment of the hearing, so that expert evidence can be given by Dr Chuang, outweighs the probative value of her further expert evidence, given the circumstances in which it has been prepared.
Accordingly, I reject the defendants' application to adjourn the hearing.
The parties should arrange for the matter to be relisted before me at 9:30 AM on a convenient date, by arrangement with my associate.
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Decision last updated: 09 May 2016