Mulroe v Mulroe

Supreme Court of NSW|2022-10-17|Before: Hallen J, System J

ivil Justice System in England and Wales (HMSO London, 1995) Practice Note SC Eq 11 Practice Note SC Eq 5 Practice Note SC Eq 7 Category: Procedural rulings Parties: Eileen Mulroe (Plaintiff/applicant) Andrew Mulroe (Defendant/respondent) Representation: Counsel: P W Bates (Plaintiff/applicant) A Djukanovic (Defendant/respondent)

Introduction

In the midst of contested Probate proceedings arises a notice of motion filed on 7 September 2022, on behalf of the Plaintiff/applicant, Eileen Mulroe, seeking the following relief: "1. Grant leave to the Plaintiff to adduce expert evidence in respect of the testamentary capacity of the deceased in respect of the deceased [sic] disputed Will dated 7 December 2020. 2. Note that the Plaintiff is not seeking in the appointment of a single expert at this stage of the proceedings and that at this stage of the proceedings the Plaintiff is to pay for her own costs of seeking to adduce exert [sic] testamentary capacity evidence."
It appears that Paragraph 2 is intended to mean no more than that the Plaintiff is prepared, initially, to bear the costs of the expert she seeks to retain, with liberty to seek an order otherwise: Tcpt, 17 October 2022, p 1(26-36).
The respondent to the notice of motion, and the Defendant in the substantive proceedings, is Andrew Edward Mulroe, who is the son of the Plaintiff and a nephew of the deceased. He opposes the relief sought in the notice of motion although he does not oppose the appointment of a single expert. Indeed, at the hearing of the notice of motion, the legal representatives sensibly agreed that if the Plaintiff is unsuccessful on the notice of motion, the parties should be given the opportunity to agree upon a single expert: Tcpt, 17 October 2022, p 22(26)-23(7).
I shall refer to the parties as the Plaintiff and the Defendant respectively, even though, on the current application, she is the applicant, and he is the respondent.
The notice of motion does not appear to have been filed in order to comply with the requirements of Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) concerning expert evidence, particularly the requirement for directions to be sought promptly (as required by UCPR rule 31.19).
Initially, the affidavit in support, to which I shall return, was one filed and served on 15 September 2022, sworn by Ms D Rakic, the solicitor with carriage of the matter in the firm of solicitors acting for the Plaintiff. It will be necessary to return to the contents of the affidavit shortly. However, in the Plaintiff's outline of written submissions (at [14]), counsel, additionally, made reference to and relied upon: 1. The affidavit dated 9 April 2022 and filed on 13 April 2022 of the Plaintiff in the substantive proceedings; and 2. Some pages, extracted from the subpoenaed hospital records, copies of the said pages (pages 53, 56, 65, 66 and 97) annexed to the Outline of Submissions that had been delivered to the Court by counsel for the Plaintiff.
No notice of an intention to rely upon the Plaintiff's affidavit or to any of the documents referred to had been given to the Court, or to the Defendant, prior to the receipt of the Outline of Submissions.
Before a notice of motion is set down for hearing, the legal representatives of each party have an obligation to broadly identify the evidence to be relied upon, and if not served, to serve a copy of that evidence. The evidence to be relied upon in support of a notice of motion should not be identified, for the first time, in an outline of written submissions.
The notice of motion was listed for hearing on 21 September 2022. Due to a mishap that he suffered the day before, Mr P W Bates of counsel, who appeared for the applicant, was unable to complete the Outline of Submissions and to appear at the hearing. He provided written notice of the event and the likelihood that he would be unable to proceed with the hearing shortly after the mishap occurred, to the Court, and to counsel for the Defendant.
On the day the matter was to be heard, Ms Rakic made an oral application to adjourn the hearing of the notice of motion, which application was not opposed by Mr P Wallis, then counsel for the Defendant. It was acceded to by the Court.
Mr Wallis confirmed that he had no objection to the contents of Ms Rakic's affidavit and that he did not require her for cross-examination. (She made no reference to the additional evidence referred to in the Outline of Submissions served subsequently by counsel.)
In the circumstances, the Court proposed that, upon the receipt of the written submissions from Mr Bates, the matter could be determined, in Chambers, on the papers. Directions for the submissions of the Plaintiff and submissions in reply were then made. (I have dealt with the Court's power to deal with a matter in Chambers in English v Stewart [2022] NSWSC 268 at [36]-[43]. It is unnecessary to repeat what was written in that case.)
Subsequently, the legal representatives of the Plaintiff rejected the proposal that the notice of motion be dealt with, in Chambers, and on the papers. In his Outline of Submissions, counsel wrote: "The Plaintiff seeks an oral Hearing of her Notice of Motion, filed on 7 September 2022, because any Judgment given may have an ongoing impact on the coduct (sic) of testamentary capacity disputes in the Succession Judge's List. The Plaintiff contends that the practice in the Succession Judge's List should permit parties, who have acted promptly during the proceedings, retain and exercise their traditional adversarial opportunities to carry out their own investigations and retain their own Expert Witnesses, which is an important element of the confidence of litigants in the sense of justice that derives from the ability to prepare one's own case in the attempt to influence the outcome of the proceedings and control one's own destiny."
As dealing with a matter in Chambers still requires the documents in the Court file that are relied upon to be read, and those documents to be identified as having been read, in the Court's record of proceedings: Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 at [79], including written submissions, and as it had not been suggested by the Court, that orders would be made without written reasons, I do not fully understand why an oral hearing was required on what was a fairly straightforward issue, and one covered, extensively, by legislation, rules of Court, and a Practice Note, to which reference will be made. However, as requested, the matter proceeded with an oral hearing.
In circumstances where delay, and costs, could have been saved by avoiding an oral hearing, the costs of the oral hearing, will need to be determined, whatever the result of the notice of motion. Ultimately, there was no dispute that the costs would follow the result of the notice of motion: Tcpt, 17 October 2022, p 23(29)-24(37).
In these reasons, I shall refer to the expert who a party seeks to retain, without reference to the other party, as "the adversarial expert". To avoid confusion, I shall refer to the expert agreed upon by the parties and who the Court appoints pursuant to the agreement of the parties, as "the joint expert".
These are my reasons for the orders I propose to make. Whilst they are more extensive than one might expect in an interlocutory application of this kind, I am prepared to accept that there may be an important issue surrounding the circumstances in which the Court, in a Probate suit, should permit a party to call an adversarial expert to give evidence relevant to the capacity of the deceased, at the time the disputed Will was made, where the adversarial expert is not an expert who had ever met, or treated, the deceased.
At the hearing of the notice of motion on 17 October 2022, Mr Bates of counsel appeared for the Plaintiff and Ms A Djukanovic of counsel appeared for the Defendant.

The substantive proceedings

Before dealing with the notice of motion, it is necessary to refer, briefly, to the substantive proceedings and the context in which the notice of motion arises. It can be summarised without provoking controversy.
The deceased died on 11 December 2020, aged 93, leaving property, both real and personal, in New South Wales. The value of the estate is large (in the order of at least $7.5 million).
The proceedings were commenced by Statement of Claim filed on 23 November 2021, in which the Plaintiff, relevantly, sought an order that Probate of the Will dated 7 December 2020 of Kathleen O'Hearn (the deceased) granted on 18 June 2021, by this Court, to the Defendant, be revoked and that letters of administration, on intestacy, be granted to her, or in the alternative, be granted to an independent administrator. She also sought orders for the filing and passing of accounts. Without pre-judgment, I shall refer to the Will as "the 2020 Will".
It was not suggested that there is any other Will of the deceased. It follows, if factually correct, that if the Defendant does not establish the validity of the 2020 Will, the deceased died intestate. That does not mean, however, that without more, a grant of administration will be made to the Plaintiff, who is only one of the beneficiaries who is entitled to share the estate of the deceased under the operation of the rules of intestacy. (That may be the reason why the Plaintiff sought the alternative relief.)
The basis of the Plaintiff's claim for the revocation of the grant of Probate appears to be that the 2020 Will is not a valid Will. The Plaintiff asserted in the Statement of Claim that at the time she "purportedly" signed the Will, the deceased: 1. lacked capacity to make the 2020 Will as she was "in the final stages of her last illness in hospital and the Deceased's mind was not in the same place as her body"; 2. "was not eating"; 3. "suffered from multiple medical problems and cognitive impairment"; and 4. "did not identify and evaluate competing claims on her testamentary bounty".
(I note that, whilst the Plaintiff refers to the deceased having "purportedly" signed the 2020 Will, she does not make the positive assertion that the deceased did not sign the 2020 Will, or that her signature on that Will is a forgery, each being an allegation that would have had to be expressly pleaded in the Statement of Claim.)
The Plaintiff also asserted that "the purported Will of the Deceased … was prepared, signed and witnessed in suspicious circumstances". She included, as particulars of the suspicious circumstances, that: 1. the Will "was at least in part in the handwriting of the Defendant"; 2. the Defendant prepared the Will and that the Defendant "is both a named Beneficiary and the Executor of the Will"; 3. the Will was signed by the deceased whilst a patient in the hospital; 4. the Will was not prepared by a solicitor; 5. the deceased "did not receive independent legal advice before executing the Will".
For the purposes of the notice of motion, it is only necessary to note that the Defendant denies that the deceased suffered cognitive impairment, that she lacked testamentary capacity, and that she did not know and approve of the terms of the Will.
There can be no doubt, at the final hearing of the substantive proceedings, since an order for the revocation of Probate is sought, that the Defendant will bear the ultimate onus of proving the validity of the 2020 Will. A grant of probate, or administration, is a judicial act, and becomes an order of the Court. A grant in common form, or a non-contentious grant, is usually made by a Registrar of the Court. That the Court possesses an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke its own grant for just cause cannot be disputed: Bates v Messner (1967) 67 SR (NSW) 187.
On 1 March 2022, the Defendant filed a Cross-Claim in which, relevantly, he sought an order that probate in solemn form of the 2020 Will be granted to him and that the Plaintiff pay his costs of the proceedings.
Where Probate in solemn form is granted after Probate in common form has been granted, the usual order of the Court is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form and the newly made grant in solemn form are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [21]. (I mention that an appeal in Starr v Miller was dismissed by the Court of Appeal in Starr v Miller [2022] NSWCA 46. Nothing was written, in the Court of Appeal reasons for judgment, to throw doubt on what was written in my reasons at [21].)
The Plaintiff, as Cross-Defendant, filed a Defence to the Cross-Claim on 13 April 2022.

Procedural history

The matter was before the Court for directions, first, on 4 February 2022. On that date, directions were made regarding pleadings and the filing and service of lay evidence.
The matter was next before the Court on 18 March 2022, and on this occasion, one of the directions made was in the following terms: "Notes that the Defendant will provide a copy of a video recording said to have been made of the deceased executing the testamentary instrument propounded in the Cross-Claim by 4:00 p.m. on 23 March 2022."
The Court was not expressly informed whether the Defendant had complied with the direction. However, at the hearing of the notice of motion, counsel for the Plaintiff confirmed that the Defendant had done so. Indeed, counsel suggested, helpfully, that not only would the video recording be viewed at the hearing, but a transcript of the words spoken should also be available. (The Court suggested that, perhaps to avoid controversy, the parties could prepare an agreed transcript if a transcript was required.
On 23 May 2022, the Defendant's solicitors delivered the original Probate document to the Probate Registry. It is now retained in the Court file.
On 8 August 2022, the Court noted that both parties had filed and served the lay evidence upon which it was intended to rely and granted leave to the parties to inspect documents produced in subpoena packets S1, S2 and S3. (A search of JusticeLink revealed that the subpoena packets referred to contained documents produced by the St Ives Medical and Cosmetic Centre; documents produced by The Proper Officer - Nambour General Hospital; and also documents produced by the Subpoena Team, Services Australia - Services Australia.)
Only a few of the documents produced, and inspected, were the subject of evidence on the hearing of the notice of motion.
Until the filing and service of the Plaintiff's notice of motion, no application had been made, by either party, for the appointment of any expert, joint or adversarial, to give evidence in the proceedings. I say that for completeness not by way of criticism, and do not imply that either of the parties was in breach of the rule, to which reference will be made, by not seeking the directions promptly.

The evidence read on the notice of motion

As stated, reliance was placed on Ms Rakic's affidavit, which, in summary, included assertions that: 1. The Plaintiff sought to qualify an expert "subject to the principles set out in the Expert Witness Code of Conduct … rather than the Plaintiff being forced by the Court to agree to the appointment of a single expert witness": Paragraph 3. 2. The Plaintiff is the mother of the Defendant and "their family relationship is very strained, as is reflected in the lay Affidavit evidence already served in the proceedings": Paragraph 4(a). 3. The deceased's estate is large, in excess of $7.5 million: Paragraph 4(b). 4. A private mediation, which had occurred on 9 May 2022, was unsuccessful "and it became apparent that it would be difficult to agree on common instructions, assumptions and questions to be provided to a common expert". 5. That "[A]s a litigant in adversarial proceedings, the Plaintiff wishes to have a reasonable opportunity to qualify this evidence from an expert of her choice without being forced to negotiate a common approach with the defendant": Paragraph 4(c). 6. The result of the case will affect the entitlement of each of the Plaintiff and of the Defendant: Paragraph 4(d); 7. The Plaintiff has had the opportunity to inspect the deceased's hospital records and should be permitted, at her own cost at this stage of the proceedings, to obtain her own "testamentary capacity expert evidence, subject to her seeking a different cost order in respect of such expert evidence at a later stage of the proceedings": Paragraph 4(e).
Importantly, the affidavit did not identify the adversarial expert sought to be retained, the area of expertise of that expert, or the nature of the opinion to be sought from him or her. The particulars of what was described as "a common approach" was not stated.
The Plaintiff also relied upon her own affidavit which, primarily, outlined the family history of the deceased. She stated that her parents, Anne Grogan and Edmund Grogan, had seven children, namely, the Plaintiff, the deceased, Anne "Teresa" Keller, Jane Tucker, John Grogan, Bridgett Grogan, and Dennis Grogan. She stated that her parents, as well as John, Bridgett and Dennis, had all predeceased the deceased.
She gave evidence that the deceased's husband, Phil O'Hearn, had predeceased the deceased and that, as far as she was aware, the deceased had never remarried, or had any issue. She also stated that while the Defendant had informed her of the deceased's death on 11 December 2020, it was not until 16 April 2021, when one of her other sons, John, had emailed her a copy of the "purported Will" of the deceased, that she became aware of any testamentary document of the deceased. She claimed that she immediately recognised the handwriting as that of the Defendant.
The Plaintiff did not advert to whether she had been in contact with the deceased, or state her observations, if any, of the deceased's condition, around the time that the 2020 Will was executed.
In addition to the two affidavits, as stated earlier, the Plaintiff sought to rely on the excerpts from subpoenaed hospital records, a copy of which excerpts was annexed to the written submissions. The copy was tendered at the hearing and marked Ex NMA. The excerpts were "Progress Notes" from Nambour General Hospital which were dated 3, 6 and 9 December 2020. These six pages, out of 683 pages that had been produced, were relied upon.
The Progress Notes from 3 December 2020 recorded the following observations: "Phone call to NoK/Nephew, Andrew for collateral and to update … Thinks Kathie would possibly want an operation but also understands she may not survive this - Andrew would at least like an opinion on Kathie's surgical suitability/prognosis - understands this may be very poor. Andrew understands this condition may lead to Kathie's mortality in this admission. Andrew is planning to drive from Sydney to Nambour to see Kathie, but will try to arrange a flight if outlook becomes more grim. Ultimately he is hopeful she survives and he can take her back to Sydney where she usually lives."
On 6 December 2022, the Progress Notes recorded that: "Nephew has been in attendance with pt most of shift and very attentive. However nursing staff feels this may be overwhelming pt, as once nephew had left at 1930 hrs pt was completely exhausted."
The nursing staff referred to were not identified.
The Progress Notes of a social worker, relevantly, recorded having had a discussion with the Defendant about the deceased's capacity, including advising him that the deceased had been deemed to lack capacity, and the ramifications of dying without a will.
The social worker summarised the discussion, in the following terms: "93 F w coli bacteraemia with likely UTI, guarded prognosis and has been deemed not to have capacity for financial decision making. Andrew has reported Kathleen has a multi million dollar property portfolio, with family conflict. Andrew has expressed he is close to Kathleen and a few days ago made a video with her advising clearly what she wanted in terms of her estate. Andrew appears to lose from a financial perspective after advising he lives in one of the properties and Kathleen owes him $15,000. It appears that Kathleen is quite vulnerable to potential financial exploitation or financial decision making which may not align with her current wishes, given lack of capacity. Andrew contesting the capacity, assessment, wishing to have a will and EPOA completed in the midst of Kathleen's current medical state."
The Progress Notes dated 9 December 2020 also record the following observations of the deceased: "Pt showing signs of confusion, such as wanting to go to the 'chemist shop' so she could get her 'stick or wheelchair' at 0400 and saying 'no coffee or tea' as I was doing her blood pressure. Nephew Andrew has stated multiple times that his Auntie is 'fiercly[sic] sharp and that doctors and talking to her from the end of her bed, therefore she can not hear them, but will nod and shake her head anyway, which makes her look crazy'. Andrew asked if he could read the SW notes on my computer, stating that the Social Worker did not take any notes during their conversation, therefore wrote his notes from memory, so he would like to know what has been written. … Andrew enquired about making a will and/or enduring power of attorney. SW advised unable to currently attend to legal issues as Kathleen has been deemed to lack capacity for financial decisions at this point given her acute illness. Andrew questioned how medical team could make this assessment, SW advised capacity is based on being able to understand the effects and risks of your decision, voluntary [sic] communicate this and be able to communicate this in some way. Andrew advised he believes Kathleen is "sharp as a tact [sic] mentally". Andrew questioned how any assessment could be made as he identified Kathleen as deaf with only 20% hearing ability. Andrew stated he has been communicating to Kathleen in the past few days and receiving her nods therefore he feels she understands and can communicate what she wants. Andrew is contesting the capacity assessment and would like the medical team to explain the assessment to him. … SW provided information regarding if a person passes away with [sic] a will their estate would be 'intestacy' which requires legal advice and pathways to navigate, SW recommended in the case that Kathleen does pass away he should contact the Office of the Public Trustee who can manage 'intestacy' matters. Andrew spent some time discussing the family conflict again and stated his family "would come crawling out of the woodwork. … Nephew has asked us if she has capacity for decisions for a will there has been conflict in the family and he has been asking about bank details and wanting to finalise will prior to deterioration. We have advised that she does not have capacity at this point for financial decisions regarding her will given her acute illness."
So far as is known, neither the social worker, nor the author of the notation in the Progress Notes, has, to date, provided any affidavit. It may be that the Plaintiff will endeavour to obtain other evidence from the person, or persons, who prepared the parts of the medical records to which reference has been made. Furthermore, there is no evidence that she, or he, had the requisite knowledge, or experience of, or in connection with, the assertions made in the Progress Notes.
It was not in dispute, at the hearing of the notice of motion, that the copy documents which form Ex NMA demonstrate that expert evidence may be required: Tcpt, 17 October 2022, p 5(37-44).
The Defendant did not, originally, anticipate reading any evidence on the notice of motion. (Unsurprisingly, perhaps (at this stage), the Defendant has not responded, in an affidavit, to what was contained in the hospital records.) However, at the hearing, counsel tendered a copy of a letter dated 1 September 2022, which was marked Ex NM1, from the Defendant's solicitor, Michael Grogan, to the Plaintiff's solicitors, Gerard Malouf & Partners, which was in the following terms: "We presume that by now you have inspected the documents produced under Subpoena. Please advise if you propose to seek leave to obtain an expert report."
The tender was objected to, but I permitted it to be tendered as there appeared to be no dispute that it had been sent or received.
There was no evidence that there had been any response, in writing or otherwise, to the letter, other than by way of the filing of the notice of motion on 7 September 2022, three working days after the date of the letter.

The alternatives existing under the 2020 Will and on intestacy

The 2020 Will, which appears to have been duly executed, relevantly: 1. Appointed the Defendant as the executor; 2. Gave the deceased's home, at St Ives, New South Wales, and all of her possessions to the Defendant absolutely; 3. Directed that all her real property in Queensland be sold and the proceeds of sale distributed as follows: 1. $100,000 to the Blind Dogs and Wildlife Sanctuaries at the Defendant's discretion; 2. The remainder to be divided equally between the Defendant and Teresa Anne Keller; 1. Gave the bank funds and term deposits to the Defendant absolutely.
Under the operation of the rules of intestacy, the brothers and sisters of an intestate are entitled to the whole of the intestate estate if the deceased left (a) no spouse, and (b) no issue, and (c) no parent. If a brother, or sister, predeceased the deceased leaving issue who survived the deceased, (a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and (b) the presumptive share of any such deceased brother or sister is to be divided between the brother's or sister's children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child's presumptive share is to be divided between the child's children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted: s 129 of the Succession Act 2006 (NSW).
So far as is currently known, only three of the deceased's siblings survived her, namely, Anne Therese Keller (also known, and referred to in the Will, as Teresa Anne Keller), Jane Tucker, and the Plaintiff. Of the three siblings who predeceased the deceased, only one, Denis Grogan, was survived by issue, namely his daughters, Jane Masini, Della Fry, and Dianne Grogan. It follows that Anne Therese Keller, Jane Tucker, and the Plaintiff, would each receive one quarter, and the remaining one quarter, of the deceased's estate, would be divided equally between the three daughters of Denis Grogan.
None of the beneficiaries entitled under the operation of the rules of intestacy, other than the Plaintiff, is a party to the proceedings and none is a witness who has made an affidavit which has been filed in the proceedings to date.

The Submissions

Counsel for the Plaintiff submitted, in writing: 1. Notwithstanding the case management regime, enacted by the Civil Procedure Act 2005 (NSW), especially, ss 56 and 57, a party retains her, or his, respective procedural rights to make adversarial choices including the selection of an expert witness. 2. Counsel placed reliance upon AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), in which it was stated: "A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate." 1. The Civil Procedure Act stipulates in s 58(1)(a)(iii) and s 58(2) that in deciding whether to make any order of a procedural nature (which it was contended includes the directions for expert evidence), the Court "must seek to act in accordance with dictates of justice" in a particular case, and that the Court may also have regard to the factors specified in s 58(2)(b), which, it was said, supported the application. 2. Part 31 Division 2 of the UCPR recognises a party's traditional adversarial procedural opportunity to qualify, and rely, upon an expert of the party's own choice, to be exercised within the framework of the Expert Witness Code of Conduct, set out in Schedule 7 of the UCPR. 3. The Plaintiff would suffer an injustice, within the meaning of s 58(2)(b)(vi) if she were to be deprived of her traditional adversarial procedural opportunity to obtain her own expert evidence in relation to testamentary capacity. Counsel for the Plaintiff, more than once, orally submitted (Tcpt, 17 October 2022, p 14(6-29)): "BATES: The submission I want to make is the dictates of justice and injustice would occur to my client within the meaning of subs (2)(vi) if she is forced to basically waive her forensic right to investigate the case in the way ‑ with great respect it is in my submissions I have to read and give emphasis to what was said at paragraph 112‑‑ HIS HONOUR: … Is the point of your submissions this, it is against the dictates of justice to reject the appointment of an adversarial expert on your side? BATES: Yes, your Honour. HIS HONOUR: Thank you, I understand that. Move to your next point, please. BATES: Because‑‑ HIS HONOUR: I understand. BATES: ‑‑it remains the right of my client to seek to control her own destiny, to seek to control the outcome of this case in the way she would like, she retains that right we submit and that is fundamental." 1. At Tcpt, 17 October 2022, p 18(45)-19(33), he added: BATES: "Your Honour experts in the course of consultation may well ask questions, "do you know more about that; is there evidence about that" and the answer would be "Mr Expert or Ms Expert we will need to clarify that and seek some instructions and give you some supplementary instructions". The expert, having looked at this video, having read the transcript and other documents including the hospital notes, may well say "There are some extra things I would like to know, can you please find out from your client and tell me your instructions, we can then write a supplementary letter of instruction. Before you provide the report you said you would like to explain, we have now sought instructions, here are our answers". With great respect they are things we don't know the answer to, we haven't got the benefit of that expert's opinion. Your Honour with great respect is not allowing for the dynamic process that occurs in a conference where the expert can seek additional requisitions, for want of a better term, about certain matters we have a chance to supply and that may then become material. True it's not there now because we have not had the benefit of our expert's opinion. Yes we want to give the expert those things but in order for him to give his opinion about from my expertise on testamentary capacity, I would like to know whether this or that, for example, do you have a letter about this or do you have some instructions about X or Y, they are the sort of things that we would like to be able to do which we can do. It was our expert, we are not restricted in doing that. If a joint expert we have to once again basically waive our privilege and start telling the other side what we are doing and bringing them into our own camp and your Honour I say yes, it's not in evidence now but that does not mean it won't be in evidence in due course. HIS HONOUR: What evidence, you mean the additional facts that-- BATES: Yes the additional facts, yes your Honour, they are the sorts of things. We don't want to have to try to negotiate all these things with our opponents. This is an adversarial fight and we want that right. HIS HONOUR: Thank you." 1. The pages attached to the written Outline of Submissions were said to corroborate the estranged family relationship between the Plaintiff and the Defendant and to record the concerns of a staff member of the Hospital that the deceased was vulnerable to financial exploitation in relation to the disputed Will and the Defendant's emotional pressure on the deceased.
In his oral submissions, counsel for the Plaintiff made clear that if an adversarial expert were retained pursuant to orders of the Court, it should not be assumed that any report received by the Plaintiff from that expert would necessarily be served or tendered: Tcpt, 17 October 2022, p 13(4-12).
In the written Outline of Submissions, Mr Wallis, formerly counsel for the Defendant, had submitted: 1. The Defendant's position was that the application for an adversarial expert was premature. 2. There was no evidence that the Plaintiff's solicitors had engaged with the Defendant's solicitors about the circumstances that they believe give rise to the need for expert evidence, and, in particular, had not adverted to any part of the subpoenaed hospital records that supported the need for expert opinion. 3. The Plaintiff had not provided any evidence that her solicitors had proposed the area of expertise of any expert to be retained or the identity of the particular expert sought to be retained on behalf of the Plaintiff. 4. The Plaintiff had not provided any evidence that the legal representatives for the parties, as opposed to the parties themselves, would not be able to agree upon a single expert, the terms of a letter of instructions to any such expert witness, and the material to be provided to the expert. Indeed, there was no evidence of any communications from the Plaintiff's solicitors to the Defendant's solicitors on this topic either before, or after, the private mediation. 5. Additional expense would be incurred if it became necessary to have more than one expert in the case.
Counsel for the Defendant orally submitted that there may be additional delay and costs which might be occasioned if, following the service of the report of an adversarial expert, the Defendant thought it necessary to retain his own adversarial expert to provide expert evidence. She accepted, as the Court put in arguendo with counsel for the Plaintiff, that if any adversarial report were not served by the Plaintiff, then a report from a single expert might be required. In each of those circumstances, there would be further delay in having the proceedings heard and determined.

The statutory, and other, framework

As is well known, s 56 the Civil Procedure Act relevantly provides: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) - (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person - (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
Section 57 of the Civil Procedure Act states: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
Section 58 of the Civil Procedure Act states: 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
Section 61(1) of the Civil Procedure Act provides that the court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.
Section 62 of the Civil Procedure Act provides that the court may, by order, give directions as to the conduct of any hearing, including but not limited to, a direction limiting the number of witnesses (including expert witnesses) that a party may call. However, s 62(4) provides that a direction under this section must not detract from the principle that each party is entitled to a fair hearing and must be given a reasonable opportunity to lead evidence.
Division 2 of Part 31 of the UCPR specifically deals with evidence, including expert witnesses, generally.
There is nothing in the Civil Procedure Act, or the UCPR, that suggests that each does not apply to proceedings in the Succession List.
UCPR r 31.17 provides that the main purposes of Division 2 are, first, to ensure the Court has control over the giving of expert evidence; secondly, to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings; thirdly, to avoid unnecessary costs associated with parties retaining different experts; fourthly, if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a joint expert; and fifthly, if necessary to do so to ensure a fair trial of the proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings.
UCPR rr 31.19 and 31.20 are applicable to proceedings generally. So far as relevant, for present purposes, they are in the following terms: 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. 31.20 Court may give directions regarding expert witnesses (1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings. (2) Directions under this rule may include any of the following: (a) a direction as to the time for service of experts' reports, (b) a direction that expert evidence may not be adduced on a specified issue, (c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court, (d) a direction that expert evidence may be adduced on specified issues only, (e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue, (f) a direction providing for the engagement and instruction of a parties' single expert in relation to a specified issue, (g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue, (h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts' reports in relation to a specified issue, (i) any other direction that may assist an expert in the exercise of the expert's functions, (j) a direction that an expert who has prepared more than one expert's report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.
UCPR r 31.37 relevantly provides: (1) If an issue for an expert arises in any proceedings, the court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected. (2) A parties' single expert is to be selected by agreement between the parties affected or, failing agreement, by, or in accordance with the directions of, the court. (3) A person may not be engaged as a parties' single expert unless he or she consents to the engagement
UCPR r 31.38 provides that the parties affected must endeavour to agree on written instructions to be provided to the single expert concerning the issues arising for the expert's opinion and concerning the facts, and assumptions of fact, on which the report is to be based, and if they cannot so agree, they must seek directions from the court.
UCPR r 31.41(1) provides that, within 14 days after the parties' joint expert's report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report.
UCPR r 31.43 provides that any party affected may cross-examine a joint expert, and the expert must attend Court for examination or cross-examination, if so requested, on the giving of reasonable notice by the party affected.
UCPR r 31.23(1) requires an "expert witness" to comply with the code of conduct set out in Schedule 7 of the UCPR. Describing it as an Expert Witness Code of Conduct is not a meaningless incantation. It applies, relevantly, to any expert witness engaged or appointed (a) to provide an expert's report for use as evidence in proceedings, or (b) to give opinion evidence in proceedings.
Pursuant to the Expert Code of Conduct, the expert is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings, or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness: UCPR Schedule 7 cl 2. In other words, the real purpose for the calling of an expert is to provide assistance to the Court in the application of her, or his, expertise, not to advocate for either party. If, consistently with the expert's overriding duty to the Court, an expert considered that he, or she, could not provide an opinion, then he or she, in the proper discharge of the expert's duty would say so.
In the present case, the obligation identified in the Schedule will apply whether a joint expert, or an adversarial expert, is appointed. Thus, expert evidence is expected to be, should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content, by the exigencies of litigation: Whitehouse v Jordan [1981] 1 WLR 246 at 256-257 (Lord Wilberforce). Any expert should provide independent assistance to the court by way of an objective, unbiased opinion, in relation to matters within his, or her, expertise: Polivitte Ltd v Commercial Union Assurance Co. Plc [1987] 1 Lloyd's Rep 379 at 386 (Garland J).

Practice Note SC Eq 5

Section 15 of the Civil Procedure Act provides that subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies.
Practice Note SC Eq 5 was issued on 10 August 2012 and commenced on 10 August 2012. It applies to all new and existing proceedings in the Division but does not affect existing informal practices concerning valuation evidence and/or medical evidence in family provision applications and similar proceedings (paragraph 2). Its object is to supplement the expert evidence rules and ensure the Court's processes are consistent with the overriding purpose set out in s 56 of the Civil Procedure Act (paragraph 4).
Importantly, the aims of the Practice Note appear also to encourage prospective parties to discuss the extent to which they intend to rely on expert evidence before commencing proceedings; ensure parties promptly obtain expert evidence directions in accordance with UCPR r 31.19; minimise the costs of obtaining expert evidence and reduce the hearing time of a case (paragraph 5).
It has been said that Practice Notes "complement legislative and regulatory provisions to specifically set out the steps practitioners and litigants are expected to take to prepare a case for hearing": Hamilton QC, Lindsay SC and Webster SC, NSW Civil Procedure Handbook 2022 (2022, Thomson Reuters) at [CPA 15.40].
In Baulderstone Hornibrook v HBO & DC Pty Ltd [2001] NSWSC 821, Bergin J observed at [14]: "Mason P in Atkins v Abbey Group [1998] NSWSC 254; [1998] 43 NSWLR 539 said at 543 that Practice Note 39 'governed' proceedings in the Commercial Division. Practice Notes need to be read in conjunction with the rules and one must be careful not to elevate a Practice Note to a status that it does not have. A Practice Note governs or guides the way in which the proceedings are expected to be administered. Practitioners, and thus the parties, should be aware of the requirements of the Practice Note, and it is to be expected that orders and/or directions will be made consistently with the Practice Note which governs a particular list."
Brereton J, in Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [14] (referring to Practice Note SC Eq 11), observed: "It is not a statute, nor is it a rule of the Court. It guides, but does not govern, the disclosure process...the importance of its purpose means that it will be in a rare case that the Court will depart from its guidance."
It has also been said that "As a matter of principle, a practice note is subservient to the Civil Procedure Act and cannot be inconsistent with it": Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372, Basten JA, at [14]. It co-exists with formally promulgated rules of court.
In Oxley v Oxley [2018] NSWSC 91 at [78], I wrote, in relation to Practice Note SC Eq 7 (which applies in claims for a family provision order) that: "A Practice Note is, deliberately, not designed, expressly, to answer every question which could arise in the course of the preparation of a case for hearing. It is designed to provide a compass to guide the Court, the litigants, and the legal advisers, as to the general course that will be usually be followed. The Practice Note does not have binding effect but enables flexibility. In other words, it does not tie the hands of the court."
Practice Note SC Eq 5 is said to apply to expert evidence in the Equity Division. There is nothing in the Practice Note that suggests that it does not apply to proceedings in the Succession List.
Relevantly, Paragraph 6 and Paragraph 7 of Practice Note SC Eq 5 provides: "6. Where the prospective parties have retained legal representatives the legal representatives of those parties must confer in an endeavour to jointly retain: one expert, or one expert for each specified issue or matters in issue. 7. Where it is not appropriate or possible to agree on one expert or one expert in each specified issue or matter, the legal representatives should confer as early as possible to minimise the number of expert witnesses."
The Practice Note provides a form headed 'Request for Expert Evidence Directions' which identifies for completion the matters with which the Court is likely to be concerned.
It is clear from the UCPR, and this Practice Note, that whilst the Court may permit the use of an adversarial expert, before doing so, the parties must confer in an endeavour to jointly retain one expert or one expert for each specified issue.
This approach is consistent with the obligation of the Court prescribed by s 56 of the Civil Procedure Act to give effect to the overriding purpose, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when it exercises any power given to it. The Court should also have regard to the important set of principles which underlie case management and the need for expeditious resolution of disputes. Time and again, the Court has referred to access to justice and its obligation to ensure that public resources are applied in the best way and to ensure the most efficient means possible. In this regard, any delay in making the application or in obtaining any competing expert opinion will be relevant.
In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, Gordon J observed at [125] and [128]: "This appeal raises important issues about the way in which litigation is conducted in the 21st century. Over the last 20 years, there has been a 'cultural shift' in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long-standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law. … It is now trite that courts and participants in civil proceedings must, in terms, "facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible" (Citations omitted)

Expert evidence in Probate suits

To place the determination of the question raised by the Plaintiff's notice of motion into context, it is next necessary to consider principles that apply in contested probate proceedings. It must also be considered in light of the case identified in the Statement of Claim.
As stated, there was no evidence of the identity of the adversarial expert sought to be retained by the Plaintiff. I draw the inference from the silence on this topic, that any such expert is not one who had seen, or treated, the deceased.
In The Estate of Genevieve Bryan [2021] NSWSC 567, I wrote at [87]-[95]: "Reliance upon medical experts who had not seen the deceased It must be remembered that the substantive proceedings are probate proceedings. Almost 100 years ago, in Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 572; [1924] HCA 21, Isaacs J set out what he described as "working propositions", which included (1) that opinions of witnesses as to testamentary capacity are "usually for various reasons of little weight on the direct issue"; and (2) that, while such opinions are not without some weight, "the Court must judge from the facts they state and not from their opinions". In any event, it is well-established that evidence of a treating doctor, or an expert, who had the opportunity to treat, or assess, the will-maker is preferable to evidence of an expert whose assessment of the deceased is ex post facto. In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, wrote, at [60]: "The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property." In Nicholson v Knaggs [2009] VSC 64, Vickery J wrote, at [39] - [41]: "Expert Medical Evidence The parties called expert neuro-psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case. In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand. The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents. Consistently with the approach of Judd J in Foster & Ors v Mellor, I respectfully adopt what was said by Windeyer J in Revie v Druitt: 'As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.' In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance." In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, the Court of Appeal wrote, at [65] and at [89]: "The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. ... ... In a probate suit, the vital evidence is very often not given by medical experts but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes." … In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133], the Court (comprising Gleeson, Leeming and Simpson JJA) noted that the trial Judge had "discounted the evidence of both experts on the basis that they had never met [the deceased]. Contrary to some of the submissions advanced by [the appellant, cross-respondent], there is no difficulty with his Honour having done so". In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J noted, at [87], that "The question of capacity is a legal rather than a medical question, which is to be determined by 'commonsense judicial judgment on the basis of the whole of the evidence'". Ultimately, whilst the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is a question of fact for the trial judge, and lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303, at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing)."
What I wrote in the last paragraph of the quotation appears to have been cited, with approval, by the Court of Appeal in GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157 at [95] (Gleeson JA with whom White JA and Emmett AJA agreed).
Also, as I reiterated in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [457]-[458]: "Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J). Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at s19 (Lam VP)."
I also wrote, at [462]: "Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case."
(As I have previously stated, the orders made in that case were subject of an unsuccessful appeal in Starr v Miller [2022] NSWCA 46. The substance of what was referred to above was quoted, with apparent approval, at [30].)
Thus, the question whether the deceased had testamentary capacity is determined and answered by the trial Judge, who will be required to consider all of the evidence, including the evidence of the expert, in a manner which entails a rational analysis of the issues.
With these principles in mind, it is necessary to remember about what a medical expert, in Probate proceedings, is required to give evidence. In relation to a medical expert who was a medical practitioner who the deceased consulted, there should be no dispute about the contemporaneous diagnosis of the medical, or mental, condition(s) from which the deceased then suffered. After all, he, or she, would have observed, and, perhaps, treated, the deceased.
The evidence of that treating expert is usually given by description of contemporaneous observations, the medical or other conditions from which the deceased was suffering, and how those medical, or mental, conditions, affected, if at all, the deceased's cognitive abilities. In such cases, by reference to contemporaneous documents, and/or the expert's recollection of the deceased, there should be clear, and cogent, evidence about the medical, or mental, condition(s) from which the deceased suffered at, or about, the time of giving instructions for, and/or executing, the Will the subject of dispute. How each of those conditions manifested itself in the deceased's life, such as in respect of activities of daily living, evidenced by lay observations, will also be useful and relevant.
Even calling a medical expert who had seen and/or treated the deceased will not, necessarily, determine the issue of testamentary capacity. For example, in Starr v Miller [2022] NSWCA 46, the appellant, at trial, had called evidence from Dr Cetiner, a consultant psycho-geriatrician, who, in December 2011, had diagnosed the deceased with "Alzheimer's disease in the mild to moderate stage".
Macfarlan JA wrote, at [60]-[61]: "Nevertheless, this evidence did not go so far as to contradict the other evidence before the primary judge justifying his Honour's conclusion that the deceased was aware of and approved the contents of her 2012 will. Dr Cetiner, for example, only referred to a "possible" lack of comprehension. The evidence of the oral and written communications concerning the will and the Bore Dispute to which the deceased was a party constituted much more powerful evidence on that issue. Secondly, Susan submitted that the primary judge erred in preferring the contemporaneous documentary material to the evidence of Dr Cetiner. Dr Cetiner had however only seen the deceased on two occasions and had not at those times, in any event, been concerned with any issue as to her testamentary capacity (see [494] quoted in [31] above). Dr Cetiner was thus only able to give a retrospective opinion and he was in any event not aware of all the circumstances relevant to assessing the deceased's level of cognition. Importantly, he was not aware of the instructions that the deceased gave to Mr Stuart and Mr Stuart's communications with the deceased concerning the Bore Dispute with Emma and her husband. The primary judge rightly placed significant weight on these matters (see [10] and [13] above)."
Whilst it cannot be regarded as a universal proposition, it may be said that if an expert retained after the death of the deceased to consider the deceased's condition by reference to contemporaneous medical records, the diagnosed medical condition(s) from which the deceased suffered at the relevant time, it ought not be difficult, or contentious, to state the sequelae of those medical conditions, and how, if at all, each affected the deceased's cognitive ability to remember, reason and reflect. After all, it is the medical conditions, and the sequelae that flow from each condition, that may give rise to any cognitive impairment, and which will be relevant to the determination of testamentary capacity. Differing opinions on the sequelae may, of course, occur. But, realistically, more often than not, this may only amount to degree.
In this case, what is alleged is that the Defendant, a beneficiary named in the 2020 Will, was involved in the preparation of that Will. That issue is one of fact.

Determination

I commence by repeating the often-expressed statement that the UCPR and the Practice Note are the servants, not the masters, and that they must be construed in the light of the need to do justice between the parties.
It should also be repeated that Probate litigation is not strictly adversarial, given the public interest in the due administration of property, "in the interests of the dead, the living, and the public": Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [108] (Lindsay J); Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [60] (Lindsay J).
Furthermore, I accept that, generally speaking, each party has the right to present her, and his, own case, respectively, to decide who to call as a witness, in the case sought to be advanced, and what evidence she, or he, may seek to obtain from any particular witness.
Clearly the Plaintiff perceives that the appointment of a joint expert is contrary to the adversarial system. Her counsel submitted that she ought to have the right to call and present witnesses of her choice. I have carefully considered the submission.
However, as was also written In AON Risk Services Australia Limited v Australian National University at [30], by French CJ: "It might be thought a truism that 'case management principles' should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account …Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification..."
I also remember what was written by Kent J in Tsoutsouvas & Tsoutsouvas [2012] FamCA 521 at [18], that: "It is readily apparent from those rules that there is recognition that the demands of justice and the management of cases are not limited to the particular case before the Court. There is recognition that disproportionate time spent on one case might cause delay and consequent injustice for other cases."
I also accept that the Court has power to appoint a joint expert, an adversarial expert, or both. By way of example, the Court did so recently, in a case decided by Slattery J, which bears the medium neutral citation Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279.
However, in that case, as was noted by Slattery J, at [144] and [148]: "Three expert witnesses addressed the effect of these medications. Their expertise was not in issue. Dr Gregory Deacon was appointed by the Court as a single expert. But leave was granted before the hearing for the parties to call additional experts. Professor Ross MacPherson was called in Zina's case and Professor Robert Sanders was called in Basil's case. There was a contest about whether additional experts should be called beyond the Court's single expert. A question may arise after this judgment as to how the costs of the parties' additional experts should be borne… … The experts advanced individual reports, Dr Deacon's as the Court-appointed expert. Once Dr MacPherson and Dr Sanders had reported, the Court directed that a conclave of experts occur. It took place on 21 January 2022 and a joint report was produced identifying areas of agreement among the experts. They gave evidence in a joint expert session during the hearing."
At least to some extent, although controlled by the directions made, the case involved what has been described, in some cases, as "a battle of the experts".
By way of another example, which demonstrates the point, I refer to Anthony and Comino v Sanderson [1994] QCA 527, a decision of the Court of Appeal in Queensland (Pincus and Davies JJA and Cullinane J), in which the question for the trial judge, which was determined against the plaintiff appellants, had been whether, at the time of making that will, the testatrix, Sophie Venery ("Sophie"), had testamentary capacity. The respondent had alleged that she lacked capacity due to mental illness. As appears from the reasons for judgment: "Before turning to the psychiatrists, Professor Varghese and Dr Barclay, neither of whom had ever seen Sophie but who each gave evidence of her psychiatric condition on the basis of the evidence of others, it is convenient to discuss the evidence of doctors who observed Sophie during her life. Those who appear to have had the best opportunity to observe her over a prolonged period were Drs Cobcroft and Grimes who were involved in the treatment of her leukemia."
Each of the two psychiatrists was an adversarial expert, and after referring to the evidence of each, the Court of Appeal noted: "This case illustrates, once again, the disadvantages of adversarial expert evidence. One may legitimately wonder whether, if Drs. Varghese and Barclay had been asked to produce a joint report on the basis of the evidence which the learned trial judge accepted, there would have been any difference in view between them. Moreover the adversarial nature of the proceeding appears to have caused Dr Varghese to express some views which, it seems to us, detracted from the overall reliability of his evidence; for example he was prepared to ascribe Sophie's complaints about being poisoned merely to her being very fastidious about food and he wondered whether her statement that people were throwing darts at her might be a reference to her having had lots of injections."
In determining the notice of motion, I note that the Plaintiff has not given evidence of: 1. Any attempt by her legal representatives to comply with the terms of the UCPR and the Practice Note in order to justify the assertion that it would be difficult to agree on common instructions, assumptions and questions provided to a common expert. As pointed out by counsel for the Defendant, there has been no attempt, let alone any satisfactory attempt, to have the legal representatives reach agreement. Exhibit NM1 provides adequate support for this conclusion. The affidavit of Ms Rakic has "the air of premature catastrophizing" (a term used in Neales & Neales (2022) 64 Fam LR 592; [2022] FedCFamC1A 41 (Aldridge, Tree & Schonell JJ) at [34]). 1. The identity of the adversarial expert sought to be appointed, or the nature of the opinion to be sought from him, or her. It is not known, therefore, whether the proposed adversarial expert "has specialised knowledge based upon the person's training, study or experience" or whether any opinion expressed by the witness "is wholly or substantially based on that knowledge". 2. The nature of the evidence to be sought from the adversarial expert, as compared with a joint expert, if appointed, and how it will be of real assistance in resolving a fact in dispute: Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 per Hodgson JA at [29] and Giles JA at [35]. 3. Whether there would be any controversy about the opinion, if a joint expert were appointed. There is no explanation going to why the approach of a joint expert may differ from the approach of an adversarial expert when both are bound by the Expert Witness Code of Conduct. In this regard, an argument that there is no way of testing whether the conclusions of the joint expert are correct because there is nothing against which to test the expert evidence does not arise. 4. The reasons why the interests of justice would be compromised by an order made to enable joint expert evidence to be given on any issues requiring evidence of the medical conditions from which the deceased suffered. 5. How the ordinary rules of procedural fairness, which entitles a party in civil proceedings to have an opportunity to test and challenge evidence which affects her, or his, interests, would be breached, if a joint expert, who could be cross-examined by each party, were appointed. As stated, the UCPR provide mechanisms for the clarification and testing of the evidence of a joint expert. In addition, a joint expert may be cross-examined at the hearing. (Indeed, the submissions advanced by counsel for the Plaintiff suggest that the very thing that the Civil Procedure Act and the UCPR each seeks to avoid is being relied upon to justify the Plaintiff's application.) 6. The reasons why "the main purposes" prescribed by UCPR r 31.17 should not be given full effect. The submissions made no reference to this important rule.
Taking all factors into account I must now carry out the balancing exercise - where does the justice between the parties lie?
I have carefully considered the obligation to ensure a fair trial of the proceedings, to allow for an adversarial expert to give evidence on an issue in the proceedings. At the time of these reasons, as an expert is likely to be required, whether there will, or is likely to be, any controversy in relation to the medical conditions from which the deceased suffered, and the nexus, if any between those conditions and testamentary capacity or her ability to know and approve the contents of the 2020 Will, is not known.
Nor is it clear why the appointment of a joint expert, would not enable a just hearing. In this regard, the interests of justice are not the same as the interest of one party: Wurz bht NSW Trustee and Guardian v Elawaad [2022] NSWSC 1404 at [49] (Henry J).
As well, this is not a case that patently depends upon the evidence of an expert. Whilst many questions in probate cases involving medical expertise will not, necessarily, admit any unequivocal answer, one focus, although not the only focus, of the enquiry, is to ascertain whether the deceased suffered from any medical conditions that affected her, or his, capacity to make the disputed Will or know and approve its contents. Another focus is upon the process by which the disputed Will was produced. In regard to each of these matters, it is asserted that there is a video recording said to have been made of the deceased executing the 2020 Will. That might be very important evidence in reaching a conclusion about the validity of the 2020 Will.
Putting it another way, the extent to which the deceased lacked testamentary capacity, or did not know and approve the 2020 Will is, ultimately, a matter for analysis by the trial Judge on the basis of all of the evidence, as a whole, rather than one simply upon which the medical experts provide an opinion.
What is sometimes forgotten by parties is that the appointment of a joint expert who then provides a report, does not involve a delegation of decision-making power. As already stated, each of the parties may cross-examine the joint expert orally. Each may make submissions about the weight of her, or his, evidence and also about its relevance to the ultimate result: The Estate of Genevieve Bryan at [49]. The joint expert has no different status from any other witness.
The suggestion that discussions between the Plaintiff's lawyers and the expert, not disclosed in written instructions to the expert, or not revealed, otherwise, in evidence, appears to be contrary to the current practice regarding expert evidence: see earlier reference to Tcpt, 17 October 2022, p 18(45)-19(31).
Generally speaking, expert evidence should not be admissible unless all written instructions (including any letter subsequent upon the original instructions) and a note of any oral instructions are included as an annexure to the expert's report: Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO London, 1995) Ch 13. Similarly, "[f]or justice to be seen to be done it is important that there be no unauthorised private communications between a party and a single expert jointly retained by all parties": Coyne v Calabro [2009] NSWSC 1023 at [14] (White J).
Experience also dictates that there is often debate, after a report by an adversarial expert has been served, about the instructions given to the adversarial expert and the documents provided to him or her. (Of course, it will be necessary for the Plaintiff to provide the letter of instructions and at least the index of the documents, or even a copy of all of the documents, provided to the adversarial expert.)
Although not directed to the adversarial expert that might be chosen by the Plaintiff, what has been submitted suggests that there is clearly a potential for partisanship, and concern that any report produced may not be a wholly independent product of the expert without the involvement of lawyers considering any draft report. It is this type of evidence that the rules were intended to empower the court to discourage and not permit a party to obtain.
A joint expert will not have been selected because he, or she, supports one party's cause, and, after selection, will be under no pressure to support either party. One might expect that the joint expert would be selected because both parties regard him or her as being well qualified, and as being a fair and reasonable professional. The court is then more likely to have the benefit of sound professional neutral evidence.
By virtue of the appointment of a joint expert, with the prior co-operation of the legal representatives in giving instructions, and providing agreed documents, to that expert, the aura of independence would be maintained and a highly competitive atmosphere at the trial would be avoided.
Nor am I satisfied that the main purposes of Division 2, including ensuring that the Court has control over the giving of expert evidence, restricting expert evidence in proceedings to that which is reasonably required to resolve the proceedings, avoiding unnecessary costs and delay associated with parties retaining different experts, andc enabling expert evidence to be given on an issue in proceedings by a joint expert, if possible, would be met if an adversarial expert were permitted.
When one reads the affidavit of Ms Rakic, which includes, more than once, the emotive language of the Plaintiff being "forced" by the Court to follow a course, not only permitted, but encouraged, by the UCPR, the Practice Note, and general experience in Probate suits, the foundational contention, erroneously, presupposes that the trial Judge will accept, without question, in the absence of other expert evidence, the opinion of a joint expert.
For the reasons advanced by Ms Rakic about the relationship of the parties, this may be a case where one party is highly unlikely to accept the other party's evidence on the issue of capacity. The Plaintiff's solicitor suggests that there is hostility and distrust, with the consequence that the Defendant, who would not be consulted may be suspicious of the adversarial expert unilaterally secured by, or for, the Plaintiff.
In such circumstances, it would be counter-productive to order the appointment of an adversarial expert, as sought by the Plaintiff, just to find out after his, or her, report is served, that the Defendant does not accept the conclusions set out in that report and then seeks leave to call his own expert which would result in further delay and cost. A conclave of the experts would then be required, which may narrow the areas of disagreement and without which the trial Judge may be given the impression that there is more controversy than is actually the case.
This aspect is exacerbated by the possibility that the report of any adversarial expert will not be served, or otherwise relied upon, by the Plaintiff.
On the other hand, if a joint expert were appointed, the parties' legal representatives would provide joint written instructions to be sent to the joint expert setting out the relevant issues together with a copy of the documents necessary for him, or her, to enable an opinion to be provided; there would be no unilateral communications between the joint expert and any party or legal representatives to the proceedings; the communications with the joint expert would be copied simultaneously to the other party; any aspect of the report can be clarified; and the joint expert would be available to attend the hearing to answer questions that may be raised by each of the parties or the court relating to the joint report.
I cannot help but venture the further observation that a court system that embraces, and regards as paramount, the concept of a just, cheap, and quick determination of the issues in dispute, would adopt, for the reasons advanced in this case, an adversarial expert-evidence based contest. The aim, after all, is the objective search for the truth about which is the last valid Will of the deceased will-maker. In addition, it is not the parties who, but the Court which, has comprehensive control over expert evidence. That should be unequivocally stated, and widely understood, by litigants and their legal representatives.
In my view, there is insufficient evidence to enable the Court to conclude that evidence from an adversarial expert who did not treat, or even see, the deceased at, or about, the time she executed the 2020 Will, is required. The Plaintiff has not established that the interests of justice in the case, however described, provides a reason to accede to the application.
Finally, initially, the fees of the joint expert would be borne out of the estate with liberty to either party to seek a different costs order. All these matters clearly advance efficiency and promote costs savings and "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56 of the Civil Procedure Act.
In answer to the Plaintiff's submissions generally, there is nothing preventing the Plaintiff from appointing any expert as her "shadow expert" to brief her lawyers on the relevant issues and to assist with cross examination of the single expert (if that becomes necessary).
As well, an application could be made, subsequently, if a joint expert were appointed, for an adversarial expert to be appointed by the Plaintiff. In this regard, I refer to the words of Lord Woolf in Daniels v Walker [2000] 1 WLR 1382 at 1387: " … Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence."
Whilst such an application should not be encouraged, it is available in the event that such an application is supported by reasons that are not fanciful.
In due course, the trial judge, of course, will be the decider of the case. He, or she, is not bound by everything which the expert, adversarial or joint, may write or say. The Court will come to its independent determination of the issues in the case based upon all of the evidence, including, but not limited to, the video recording said to have been made of the deceased's testamentary instructions. Expert opinion, particularly from an expert who did not see or treat the deceased, at the relevant time, will play a subservient role. The trial judge will be required to consider all of the evidence to enable the issues to be justly determined. In this regard, there can be no suggestion that a report by joint expert will result, effectively, in trial by expert.
Taking into account all of the matters and remembering that cost and delay are seen as twin barriers to justice, I am not persuaded that the interests of justice require the Court to make the order for an adversarial expert as sought by the Plaintiff. No doubt, she may be disappointed in the event that she fails in her claim, but in circumstances where the trial judge will be required to consider all of the evidence, both lay and medical, and reach a carefully considered conclusion based upon that evidence, such disappointment cannot properly be regarded as requiring the appointment of an adversarial expert. As already stated, the opinion of one, or two, experts, who had not seen the deceased, is unlikely to be determinative of the case.
In the circumstances, the Plaintiff's notice of motion should be dismissed with costs. (Counsel for the Plaintiff accepted that costs would be determined by success or failure on the notice of motion.)
The parties should now be given the opportunity to select a joint expert, by agreement, and, failing agreement, the selection will be made by, or in accordance with the directions of, the Court. At the hearing of the notice of motion, I adjourned the proceedings for directions on 7 November 2022. That should allow the parties sufficient time to consider the identity of the single expert so that directions may be made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2022

Civil Procedure Act 2005(NSW)ss 15, 56, 57, 58, 61, 62

(2022) 64 Fam LR 592

(2011) 189 LGERA 348

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (33)

Cited By (1)