Nichol v Nichol

Supreme Court of NSW|2019-06-28|Before: Ward CJ, Annexure P

Background

The deceased died on 12 January 2015. Probate of her last Will dated 14 July 2014 (the Will), was granted to Nathan on 21 July 2015.
The deceased was married three times and was the mother of four children: Dennis John Nichol (to whom I have referred above), Edward Israel Nichol (Edward), Charmaine Nichol (Charmaine) and Roderick Alan Nichol (Roderick). Each of Edward and Charmaine pre-deceased the deceased. Edward, who died intestate, was survived by his wife, Loreta, (the administratrix of his estate) and three of their four children, one of whom is Jason. Charmaine was survived by her son, Nathan. Jason and Edward are, therefore, cousins. (I refer to the family members throughout my reasons, without intending any disrespect, by their first names.)
During her lifetime, the deceased made several inter vivos gifts to members of her extended family. At the date of her death, the deceased held interests in real property in both New South Wales and Queensland (and other assets). Her estate was estimated in the executor's inventory of property, as at 13 April 2017, at around $1,518,000.
Of the deceased's interests in real property (leaving aside her interest in her retirement village unit) were: a one-third interest in a home unit at Ettalong in New South Wales (the Ettalong property), the remaining shares in which were held as to one-third in Dennis' name and as to one-third in Edward's name (his interest now being held by Loreta); a home at a particular address in Gordonvale, Queensland, with the street number "28" (the Gordonvale property); and a one-quarter interest in a unit in Carlingford (the Carlingford property), the remaining interests in which were held as to a one-quarter share each by Dennis, Edward (now Loreta) and Nathan.

Jason's notice of motion filed 15 May 2019 - expert evidence

I will deal first with Jason's notice of motion, which seeks leave to obtain expert evidence in order to enable him to test the authenticity of documents relevant to Nathan's cross-claim in relation to his claim to the one-third interest in the Ettalong property held by Dennis and now disclaimed by Dennis. In that regard, it is relevant to note how Nathan's claim is pleaded in his further amended cross-claim; and the evidence he seeks to rely on in support of that claim.

Nathan's claim for 1/3 share of the Ettalong property

In summary, Nathan alleges that each of Dennis and Edward made declarations of trust in respect of his interest in the land in Nathan's favour, and that the deceased promised Nathan that, if he parted with an interest in land at Carlingford, in favour of Roderick, then she would give him the Ettalong property.
At [7] of the further amended statement of cross-claim, Nathan alleges that: By letter dated 25 July 2014, the first cross defendant [Dennis] declared that he held all his right title and interest in the Ettalong Unit on trust for the cross claimant [Nathan].
By way of his defence to the previous iteration of the cross-claim, filed on 21 December 2018, Jason denies this allegation.
At [9] of the original cross-claim, Nathan had pleaded: As to one third share of the Ettalong Unit the Deceased procured a declaration of trust from the first cross-defendant [Dennis] by letter addressed to the deceased and signed by the first cross-defendant dated 25 July 2014.
Dennis, in response to that allegation (see at [5] of his defence), relevantly says that: … in relation to paragraph 9 of the First Cross Claim, the first cross defendant admits the signature appearing on the said Declaration of Trust resembles his signature, however, he does not admit that the signature on the declaration, is, in fact, his. Otherwise, the first cross defendant does not admit that he holds the Ettalong Unit on trust for the first cross-claimant.
The letter dated 25 July 2014, on which Nathan relies, is annexed (Annexure E) to the affidavit affirmed by Nathan on 15 February 2017 (Nathan's affidavit) (that affidavit being itself annexed (Annexure C) to the affidavit affirmed on 15 May 2019 by Peter Murphy). It is one of four documents the authenticity of which is disputed by Jason and which he wishes to have forensically examined (the other three are identified below).
In Nathan's affidavit, he has deposed to various matters in relation to the acquisition of the Ettalong property. In particular, he has deposed that: the Ettalong property was "purchased by the deceased" on or about 15 August 2011 (by this, Jason understands Nathan to mean that the deceased instigated the purchase, as Nathan goes on to depose that the purchasers' named in the contract were the deceased, Dennis and Edward); the deceased had originally proposed the Ettalong property to be purchased in the name of Nathan, although such purchase did not eventuate and the Ettalong property was purchased in the names of the deceased, Dennis and Edward; the deceased provided the whole of the purchase price of the Ettalong property; at some time following the purchase, the solicitors acting for the deceased on the purchase were instructed to transfer the Ettalong property from three names into Nathan's name for the consideration of $1.00; the deceased did not proceed with the transfer of the Ettalong property into Nathan's sole name, and made oral promises that the Ettalong property would end up with Nathan either by way of inheritance or property transfer.
Edward died on 12 November 2013. At [11] of the further amended statement of cross-claim, Nathan alleges that, on or about 9 August 2014, the deceased represented to and assured him that he would receive a fee simple interest in the Ettalong property; that representation (and his alleged detrimental reliance thereon) forming the foundation of the promissory estoppel claim now brought by him against the estate. In his affidavit, Nathan has deposed that, on or about 9 August 2014, the deceased asked Nathan to sign a letter prepared by her to the effect that the Carlingford property, of which Nathan was then a one-quarter registered proprietor, was held by him upon trust for Roderick.
Nathan has deposed that he signed a declaration of trust (Annexure F to Nathan's affidavit) to that effect. It is alleged (at [13] of his further amended cross-claim) that this was in reliance on the representation made to him by the deceased (and was to his detriment). Nathan has deposed that, at the time of being asked to sign the declaration of trust in respect of the Carlingford property the deceased said to him "I want you to hand-over your one quarter share in the Carlingford unit to Rod and I will make sure that you have the Ettalong unit".
The declaration of trust at Annexure F to Nathan's affidavit is the second document that Jason wants to have examined.
Nathan says that, following the death of the deceased, he, Dennis, Roderick and Jason discussed an amicable division of the deceased's assets between them. Nathan says that on 17 January 2015 he prepared a document titled "Beneficiary Agreement" which documented the agreement between beneficiaries (that document being Annexure P to Nathan's affidavit) and that each of he, Dennis, Roderick and Jason signed the Beneficiary Agreement. This is the third document that Jason wishes to have forensically examined. (Jason points out that the document was ineffectual because the agreement purported to deal with property owned by Edward, which had passed to his wife, Loreta.)
Nathan has deposed that he located a number of papers within the deceased's home which support his claim that the Ettalong property is held upon trust for him, including: the letter dated 25 July 2014 said to be signed by Dennis in which Dennis declares that his share of the Ettalong property is held upon trust for Nathan (Annexure E to Nathan's affidavit); and a letter dated 17 November 2009 said to be signed by Edward in which Edward declares that his share of the Ettalong property is held upon trust for Nathan (Annexure H to Nathan's affidavit). Jason also disputes the authenticity of Annexure H, that being the fourth document that he wishes to have examined.
Thus, the four documents in respect of which leave to adduce expert evidence is now sought (the impugned documents) are: the letter dated 25 July 2014 purportedly signed by Dennis (Annexure E to Nathan's affidavit) (Dennis' Declaration); the letter dated 17 November 2009 purportedly signed by Edward (now deceased) (Annexure H to Nathan's affidavit) (Edward's Declaration); the declaration of trust dated 9 August 2014 by Nathan (Annexure F to Nathan's affidavit) (Nathan's Declaration); and the Beneficiary Agreement prepared by Nathan and dated 17 January 2015 (Annexure P to Nathan's affidavit).

Jason's suspicions as to the authenticity of the documents

Jason points to the following matters as casting doubt on the authenticity of the impugned documents.
First, that Edward's Declaration purports to be signed by Edward on 17 November 2009; whereas the Ettalong property was purchased on or about 15 August 2011.
Second, that Dennis' Declaration: purports to be signed by Dennis on or after 25 July 2014; and is addressed to an incorrect address for Dennis (specifically, to an incorrect street number - "9 xxx Street, Gordonvale", whereas the correct street number is "28"; and there in fact being no house with the street address "9 xxx Street, Gordonvale"). It is noted that the same error in relation to the street number of the address noted for Dennis was also made in the deceased's Will. Jason points to the fact that, in Dennis' defence to the cross-claim, Dennis does not admit that he signed the declaration and asserts that he was not aware of holding an interest in the Ettalong property.
Third, that the Beneficiary Agreement refers to the Gordonvale property with the same incorrect street number of the address as appears in the Will and in Annexure E to Nathan's affidavit. (This document, insofar as it is after the death of the deceased, could not have been prepared by the deceased.)
Fourth, Jason points to various errors in the documents, namely: that Dennis' Declaration, purportedly signed by Dennis, incorrectly spells Dennis' name with one 'n' (as Denis), as does the Beneficiary Agreement prepared by Nathan (see Art 3); and that Dennis' Declaration spells 'New South Wales' incorrectly (as "New South Whales"), as does the Beneficiary Agreement prepared by Nathan.
It is submitted that these circumstances also call into question the authenticity (in terms of its date) of Nathan's Declaration on 9 August 2014 in favour of Roderick in respect of the Carlingford property, which Jason notes is pleaded by Nathan as a circumstance of his reliance on the alleged representation by the deceased in his further amended cross-claim at [13].

Expert evidence now sought to be obtained

Jason, as representative of the estate, seeks leave to engage both a forensic document examiner and a linguistics expert to examine the documents.
Counsel for Jason indicated that, although leave was sought to engage a linguistics expert, it is not intended to exercise the leave in respect of the linguistics expert unless it is "absolutely necessary" (if the results of the document examiner's consideration point to a need for it). It is said that given the size of the estate, Jason is anxious not to incur the costs of a linguistic expert unless it is really necessary but, equally, that he is anxious not to have to make another interlocutory application.
It is submitted that the need for examination is obvious: that Nathan has pleaded the questioned instruments as important integers in his case; and that, while the case against Loreta is not pressed, the declaration purportedly signed by Edward remains "evidentially significant" (noting that Dennis has not provided evidence that the instrument is authentic and his pleadings indicate that he does not know or admit its authenticity).
The ancillary orders for production of originals are said to be necessary incidents of the forensic exercise (but in any event are not resisted by Nathan assuming leave to adduce expert evidence of this kind is granted).

Nathan's position in relation to the expert evidence motion

In essence, Nathan's opposition to the motion for expert evidence is that the appropriate way to proceed at this stage is not by way of expert evidence (noting that there has been no allegation of fraud or misrepresentation pleaded by Jason) and that Dennis should be given the opportunity of serving evidence first. Nathan raises, as a preliminary issue, whether there is any forensic advantage in obtaining experts' reports in the first place when the parties purportedly making the documents are at hand.
Nathan submits that there is now only one of the four impugned documents that is relevant to the balance of proceedings (since the proceedings against Loreta in respect of Edward's Declaration have been discontinued and that part of Roderick's claim in respect of Nathan's Declaration was settled by way of the consent orders made by Parker J on 12 December 2017). Thus, it is submitted that the only document relevant to those parts of the proceedings that are now continuing is Dennis' Declaration. Nathan says that there is no doubt that that document is relevant (not only in terms as a declaration of trust but as a corroboration in terms of the promises that have been made by the deceased as set out in Nathan's affidavit); but that "mere denial" of the pleadings is not sufficient to justify the granting of leave for an expert's report "on speculation, and in the hope of obtaining a favourable opinion". It is submitted that there is no allegation of fraud or misrepresentation or any other matter which would justify the qualification of an expert.
Nathan points out that there is no automatic entitlement to serve an expert's report, noting the provisions as set out in r 31.19 of the UCPR and Practice Note SC EQ 5 (the Practice Note); relevantly, that the Practice Note (at [4] and [5]) encourages discussion between the parties to minimise the costs of obtaining expert evidence and to reduce the time in hearing the case; and that the purpose of the requirement for directions is to restrict the use of expert evidence to that which is reasonably necessary having regard to the overriding purpose of facilitating just, quick and cheap resolution of the proceedings. Nathan also relies on the more general provisions contained in ss 56 and 61 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) (which provide for the just, quick and cheap resolution of the real issues in the proceedings and the making of directions for the speedy determination of the real issues).
Reference was made by Nathan to the decision of Young CJ in Eq, as his Honour then was, in Countouris v Kallos [2007] NSWSC 944 (Countouris), where his Honour deferred ruling on an application for expert evidence (sought to enable a determination as to which of certain proxies was the forgery and which was the authentic proxy) until after evidence had been obtained from the makers of the proxies (some 33 people all members of the one Church) as to whether or not they had signed the relevant proxy, or which proxy they had signed; on the basis that the "best evidence" would be that of the persons themselves (see at [6]). His Honour there had regard to the overriding purposes set out in ss 56-60 of the Civil Procedure Act.
Nathan's position, as I understand it, invoking Countouris by way of example, is that the present application is premature; rather, there should first be an opportunity for Dennis to provide an affidavit; and he asserts that Jason's application is an ambush, seeking pre-emptively to force Nathan's hand. In this regard, it is submitted that the "obvious cheaper alternative", than to employ an expert at some considerable cost, would be to ask Dennis to provide an affidavit.
As to the ambush submission, complaint was made that there had been no allegation of fraud raised prior to the suggestion, in an email of 15 March 2019 from Jason's solicitor (responding to a complaint that it was not clear on what basis Jason sought to agitate for the expert's report), that: As to the letter of 25 July 2014, what if Dennis says in cross examination he signed the document? The reason for the expert's report is to show that Dennis did not sign the document, and furthermore that it was your client who created the document. [my emphasis]
It is submitted that Nathan "should not be caught by surprise and ambushed by the nature of the evidence" that Jason is here seeking to obtain. It is said that the request for the provision of the expert's report and the consent to the expert's report was really put to Nathan "in a vacuum", in that Nathan does not know "whether it is an allegation that he forged the signature and created the document, whether it is alleged that the deceased did, or really what happened".
I was told that the objection (other than the "best evidence"/cheaper alternative point) that Nathan took to the provision, or the signing, of consent for the expert's report was that, until receipt of Jason's solicitor's affidavit, there were no particulars (whether given in the defence or in any other document) as to the allegation that these documents were fraudulent and as to who created them, though there had been a number of opportunities where Jason could have provided these particulars. In that regard, it was submitted that a "more prudent" course for Jason would have been to serve his solicitor's affidavit as part of the substantive proceedings; and that Nathan would then have been on notice as to the type of allegations that were being raised and then he could have put on an affidavit or affidavits in reply to those allegations. The gravamen of that complaint seemed to be that Nathan had not had an opportunity to put on any evidence in relation to "these allegations" (i.e., the possibility that it might be contended that Dennis did not sign the document "and that it was [Nathan] who created the document").
Finally, complaint was made as to the cost of the number of interlocutory applications that had been incurred and that there was no indication as to what it would cost to qualify the proposed expert (about whom complaint is also made that no particulars of his qualifications or expertise have been provided) to provide his report.
Nathan points to the requirement under the Practice Note for an applicant to: certify that consideration has been given to what expert evidence is required; the desirability of calling one expert; and whether the evidence can be given in accordance with r 31.35 of the UCPR.
Thus, it was said that the notice of motion had been filed pre-emptively "to force Nathan's hand" before proper contemplation could be given in terms of the considerations required by the Practice Note and, in particular, as to whether Dennis is able (or willing) to provide an affidavit; and the question of the costs of the expert and his qualifications.
For Nathan, it was said in oral submissions that he was prepared to discuss co-operatively the position of a joint expert, once he was provided with details of the expert's qualifications and his estimate of costs, to decide whether or not he would consent to expert evidence being adduced. (Jason's response to Nathan's now professed willingness to engage co-operatively in discussion as to the proposed expert was that Nathan's consent to a grant of leave to adduce expert evidence was sought some months ago (and was refused); that Nathan had refused to take up the opportunity to participate in a joint appointment and had required that Jason make the present application; and that Nathan had not offered any contributions for a joint letter of instructions. In those circumstances, Jason submits that there has been sufficient opportunity for Nathan to participate in the process and suggests that to proceed now with a jointly retained expert would "be a recipe for further contention, cost and delay".)
It is submitted for Jason that the policy of s 56 of the Civil Procedure Act is not advanced by affording to parties, who do not co-operate in a timely way, further opportunities to have input into a joint approach after their initial opposition fails (and that there has to be some deterrent consideration).
Jason submits that Nathan's approach has been obstructive and that, given the size of the estate, Nathan ought to have acted more co-operatively to avoid or reduce the costs of the present application. Thus, it is submitted that not only should leave be granted, but also that Nathan should pay the costs of the motion.

Determination

As to the proposition that the best evidence would come from Dennis and that any expert evidence should be deferred until such time as it is known whether Dennis (now no longer an active party) is prepared to make an affidavit dealing with this issue, I consider that even if such an affidavit were to be provided first, that would not remove the likelihood that one or other party would wish to test his recollection by reference to expert evidence of the kind now sought. Moreover, at least on the basis of the pleadings, it must be assumed that there is a real prospect that Dennis' recollection will be equivocal or qualified. (A non-admission of this kind is not consistent with a positive recollection either way.) I consider that it should be open to both parties to test Dennis' version of events (assuming he ultimately gives one) by reference to whatever may emerge from a forensic review of the document in question. I see the position here as quite different from that with which Young CJ in Eq dealt in Countouris, where there were multiple signatories.
As to the proposition that only one of the impugned documents is relevant to the claim as now put, it seems to me that this ignores whatever use might be made of an expert analysis of the Dennis Declaration when considering the authenticity of the remaining documents (whether as informing the question of authenticity in respect of other documents or in testing the recollection or credibility of the witnesses involved in the making of the documents). Moreover, it is not apparent that forensic examination of four documents would be materially more expensive or time-consuming than examination of one.
As to the proposition that Nathan has somehow been ambushed by the application for leave to adduce expert evidence, I am somewhat bemused. Nathan has been aware for some time that Jason is putting him to proof of his case (which depends, in relation to his claim in relation to Dennis' one-third interest in the Ettalong property, at least in part on the declaration of trust that he says was made in the 25 July 2014 letter - i.e., Dennis' Declaration). If there is doubt on the face of that document, or read with others, as to its authenticity (as Jason has contended), then it must be open to Jason to test its authenticity. Nathan has been aware, since at least the time the first request for consent to the appointment of a forensic expert was made (by email dated 28 February 2019) that Jason was seeking to do so and, relevantly, to test the authenticity of that document (and two others of the impugned documents, Nathan's Declaration and the Beneficiary Agreement) by appointing an expert forensic examiner for the purpose of forensic document analysis. He was aware from 4 March 2019 that the proposed joint expert be Dr Steven Strach of Strach Forensic (Dr Strach). He was told on 5 March 2019 that the purpose of the expert evidence was to "test the veracity of the documents dated 25/7/14 and 13/8/14 [sic]". He was provided with a form of orders in accordance with the Practice Note. His input was clearly being sought in relation to the proposed appointment of the expert.
Nathan, however, staunchly resisted the proposal for the appointment of a joint expert and (quite extraordinarily to my mind) maintained the position that it was not clear "what issue the validity of the documents goes to" (see the email of 5 March 2019 from his solicitor). (It must have been obvious that the issue to which a forensic document examiner would be asked when examining a document would be as to the authenticity of the document in question - and the impugned documents are documents that have been relied upon in Nathan's own case.) To suggest that Nathan was ambushed by an application for leave to adduce expert evidence of this kind is ludicrous in circumstances where he himself insisted on the directions for a formal application of that kind to be made. And to suggest this was a pre-emptive move to force his hand (in terms of requiring him to commit himself to an explanation on oath of the preparation or execution of the documents) also strains credibility in circumstances where it is clear that authenticity was in issue.
What seems to have excited Nathan's suspicions is the hypothetical posed in the 15 March 2019 email as to what would be the case if (apparently contrary to Jason's suspicions arising out of the documents themselves) Dennis (who does not admit that the document is his) were to say in cross-examination that he had signed the document; and the proposition that Jason would wish to test that by reference to an expert's report (to show that Dennis did not sign the document "and, furthermore, that it was [Nathan] who created the document"). There might be all kinds of explanations arising out of the preparation of a document by Nathan being signed or purportedly signed by someone else that would not necessarily require a conclusion that Nathan had forged anyone's signature.
In any event, to the extent that Nathan seems to feel that he has been deprived of an opportunity to put on his own evidence as to how that document came to be signed (now that he has been told that one possibility might be that the expert evidence would go to show that Dennis did not sign the document and that he, Nathan, had created it) I do not accept that is the case. If he wishes to have leave to file an affidavit dealing with that topic, I will entertain such an application. Further, he will (by reason of his refusal to participate meaningfully in the joint expert proposal) be given an opportunity to respond with expert evidence of his own, if he so chooses.
In that regard, I share the view put by Jason that it is too late now for Nathan to make complaint as to there not being a joint expert or that there has been no certification of the application for expert evidence strictly in accordance with the Practice Note. It is he who has obstructed that process. Insofar as he complains that he has no information as to Dr Strach's qualifications or likely fees, that is of his own making. It would have been a simple matter for him to have sought that information rather than insisting upon a formal application of the kind that has now been made by Jason. In the interests of the just, quick and cheap resolution of the real issues in dispute, there should be no further delay. Jason's position is that once the expert evidence is obtained the cross-claim will be ready for a hearing. The matter needs to progress without further delay.
I will therefore make the orders sought in relation to the forensic examiner. Where I am not presently persuaded that leave for expert evidence should now be granted, is as to the evidence of a linguistics expert. The concerns raised by Jason in relation to the documents go to matters such as inconsistency in timing and spelling and other inaccuracies in the documents (not, as I understand it, phraseology or linguistic issues as such). I am not prepared at this stage to give leave for such an exercise. If it becomes necessary, then the parties will have liberty to approach my Associate and (if possible) the issue can be dealt with on the papers.

Nathan's motion filed 31 May 2019 - pleading and evidence directions

Nathan's notice of motion (said to be in reply to that of Jason) was filed on 31 May 2019 and seeks orders and directions in respect of two matters: first, as a pleading matter, that, if Jason intends to make allegations regarding fraud or misrepresentation, he should plead particulars of the allegations in accordance with the requirements of r 15.3 of the UCPR; and, second that directions should be made that Dennis be required to attend Court for the purposes of the cross-examination on Dennis' Declaration.
As noted above, complaint is made that, although in the pleadings there is no allegation (nor any particulars) of fraud or misrepresentation, there has been an allegation in correspondence that Nathan "created" the document (see the email 15 March 2019 from Jason's solicitor).
Nathan submits that if it is alleged that he "created" the document and that Dennis did not sign it, then that should be properly pleaded. It is noted that Jason, in his affidavit sworn 15 May 2017, makes no allegations that the documents annexed to Nathan's affidavit are forgeries.
Nathan emphasises (and I wholeheartedly accept) that an allegation of fraud involves an explicit allegation of dishonesty; that such an allegation is a serious allegation (which should not lightly be made) and that it requires proper pleading and particularisation. Reference is made to r 14.14(2) of the UCPR, which requires that in a defence a party must plead specifically any matter that may take the opposite party by surprise, and to r 14.14(3), which provides that matters that must be pleaded include fraud.
As to the directions sought in relation to Dennis' evidence, it is submitted that it is appropriate that he be called to be cross-examined by both parties "who have competing interests in the outcome in the decision in relation to the contents of the letter" and that Jason, as the representative of the estate, should arrange the attendance of Dennis at the hearing (by subpoena or otherwise) to be cross-examined on the contents of his defence which has been verified by affidavit, and any other affidavit evidence he may serve.
Jason's position in relation to this is that, as Nathan pleads the instruments, he bears the onus of proof that they are authentic (referring to National Australia Bank Ltd v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 (Dionys) at [1], [98]-[103], [154]). It is said that, as Dionys, which was a forgery case, shows (and as does the earlier decision of Simon v NRMA Insurance Ltd [1991] NSWCA 247 (Simon v NRMA)), a defendant can deny a fact (in the present case the authenticity of an instrument) and does not need to allege who was the author or instigator of the document or event.
In particular, Jason pointed to the decision of Simon v NRMA, where Samuels AP (with whom Clarke and Handley JJA agreed) did not consider a finding by the primary judge (that the primary judge was not satisfied on the balance of probability that the plaintiff had established that a motor vehicle had been stolen) was "necessarily equivalent to a finding of fraud" ( see at 4), considering that it was perfectly open to the primary judge to say "as he did, that he was not satisfied that the appellant had proved that the car was stolen, on the footing that the probability that it was was exactly equal to the probability that it was not", referring to Palamisto General Enterprises SA v Ocean Marine Insurance Co Ltd (1972) 2 QB 625 at 636 per Sachs LJ.
Jason disavows any allegation of fraud. He says that it is not an element of any special defence that any of the instruments was a forgery. Rather, he says, it is Nathan's case that they were brought into existence and that they are what they purport to be. Jason submits that it is not a legal element of the defence case that a particular person was the author (although that is no doubt an important question of evidence).
As to the directions that have been sought, it is submitted by Jason that no juridical basis for requiring the defence to call Dennis as a witness has been identified. It is said that proof of the instrument and its authenticity is part of the cross-claimant's case; and that if Nathan wishes to call Dennis to prove the authenticity of the document he can issue a subpoena to him.
The balance of Nathan's application is said to be a matter for the trial judge, but Jason submits that there is no basis for Nathan to be permitted to cross examine Dennis. To the extent that s 38 of the Evidence Act 1995 (NSW) (Evidence Act) may be relied on, it is submitted that none of the conditions for exercise of that power has been established.

Determination

I accept the proposition put for Jason in the present case that it is open to him to challenge the authenticity of the document(s) on which Nathan relies to establish his cross-claim without positively alleging fraud. He has disavowed such an allegation. In those circumstances there is no requirement for him to provide particulars of an allegation of fraud that is not made.
In a not dissimilar context, in Antov v Bokan [2018] NSWSC 1474, the plaintiff relied upon two particular documents, a "Contract for a Gift" and a Power of Attorney, both said to have been executed in Macedonia but the former on an occasion when the plaintiff, on his own evidence, was not and could not have been present. While I reached the conclusion that the Contract for a Gift was not authentic, it was not necessary to make (and I expressly did not make) a finding that it was the plaintiff who had brought the document into existence. I reached the conclusion that the document relied on by the plaintiff was not an authentic document (having taken into account, as was impressed upon me by the plaintiff, the "inherent unlikelihood" that someone in the plaintiff's position would have forged the document or knowingly propounded a forgery - there referring to Telfer v Telfer (2014) 87 NSWLR 176 at 189; [2014] NSWCA 186 (Sackville AJA, Macfarlan and Gleeson JJA agreeing)) but I did so based on other matters that persuaded me to the standard indicated by Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 that the deceased had not executed the impugned document.
Therefore, I do not propose to make the orders sought as to the first aspect of Nathan's notice of motion (the requirement that Jason plead and particularise any allegation of fraud). Such a direction is not necessary. Jason has disavowed such an allegation. That said, Jason should be squarely on notice that, if he chooses not to plead fraud, then (absent a later amendment for which it might be expected he would be required to show proper cause) he will be bound by that pleading.
As to the remaining directions sought, I see no basis for interference by the Court in the forensic decisions made by the respective parties as to the evidence to be called in their respective cases. The juridical basis for such interference was not identified. Presumably, the plaintiff is here relying on the power to give such directions as the Court thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings (see s 61 of the Civil Procedure Act) which extends to the power to direct any party to proceedings to take specified steps in relation to the proceedings; but I was not pointed to any case in which that power has been exercised to compel a party (here Jason) to take steps to compel the attendance of another party to give evidence (a quite different proposition from the Court itself compelling the attendance of a particular person in Court by subpoena, or by the issue in an appropriate case of a warrant). Who Jason chooses to call in his case (accepting that he is joined as a party as a representative of the estate) is a matter for him; as likewise it is for Nathan. No doubt that decision will be informed by legal advice. In appropriate cases, as is well-known, the failure to call a particular witness or to adduce particular evidence might give rise to the drawing of an adverse Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 or Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332; [1993] HCA 5 inference. (I am by no means suggesting that in the present case any such inference would arise - rather, I am simply pointing to the inappropriateness I see in the Court here becoming involved "in the fray" so to speak.)
There is force to the observation by Jason's Counsel that if Nathan wishes to call Dennis then it is open to Nathan to seek to obtain that evidence voluntarily or to issue a subpoena to compel Dennis to attend and give evidence. The fact that Dennis is a party to the proceedings should not pose any obstacle in this regard. In Commissioner for Railways v Small (1938) 38 SR 564 (at 571), Jordan CJ clearly contemplated the possibility of a subpoena duces tecum being issued to require the attendance of a party to the proceeding.
In particular, I was not pointed to any authority for the proposition that a representative of the estate has an obligation to call witnesses that a party suing the estate might wish to cross-examine.
Nor do I consider it appropriate to make directions at this stage as to how that evidence might be given at the final hearing (whether a party calling Dennis might, for example, be given leave to cross-examine him pursuant to s 38 of the Evidence Act) or as to whether certain evidence might be taken on a voir dire. Those matters will fall to the judge who finally hears the matter to determine (although I would observe that any suggestion of separate determination of the issue of authenticity ahead of other issues in the hearing would seem to me to be very problematic (for obvious reasons), if credibility issues or credit findings might potentially arise in relation to that evidence).
Finally, as to costs, I consider that Nathan should pay Jason's costs of both notices of motion: the costs of Jason's notice of motion not just because Jason obtained much of the relief he sought but because I consider that Nathan was unnecessarily obstructive in relation to the issue of expert forensic evidence leading up to the filing of the application and necessitating a contested hearing on that issue; the costs of Nathan's own notice of motion as part of the general rule that costs follow the event.

Orders

For those reasons, I order as follows: 1. Grant leave for the fourth cross-defendant (Jason Nichol), as representative of the estate of the late Edna McKay, to engage an expert handwriting, forensic document analyst (Dr Steven Strach) for the purpose of forensic document analysis of the following documents: 1. letter dated 25 July 2014 (Dennis' Declaration), a copy of which is Annexure E to the affidavit affirmed 15 February 2017 of Nathan Nichol; 2. letter dated 17 November 2009 (Edward's Declaration), a copy of which is Annexure H to the affidavit affirmed 15 February 2017 of Nathan Nichol; 3. letter dated 9 August 2014 (Nathan's Declaration), a copy of which is Annexure F to the affidavit affirmed 15 February 2017 of Nathan Nichol; 4. document entitled Beneficiary Agreement dated 17 January 2015 (the Beneficiary Agreement), a copy of which is Annexure P to the affidavit affirmed 15 February 2017 of Nathan Nichol. 1. Direct that the cross-claimant (Nathan Nichol) provide to the solicitors for the fourth cross-defendant within seven days, the originals of the documents referred to in Order 1 for the purpose of the expert analysis to be conducted in accordance with Order 1. 2. Direct that the first plaintiff (Dennis Nichol), if he is able to do so, provide to the solicitors for the fourth cross-defendant within 14 days, for the purpose of the expert's analysis referred to in Order 1, the original affidavit sworn by him on 26 November 2016 in these proceedings and the original of his defence to cross-claim (being the originals of the documents e-filed on 28 June 2017 and 4 July 2016). 3. Direct that the fourth cross-defendant file and serve a report from the expert retained for the purposes of Order 1 on or before 23 August 2019 (or such other date as the Court may allow). 4. Order the cross-claimant (Nathan Nichol) to pay the fourth cross-defendant's costs of the notice of motion filed 15 May 2019, such costs to be assessable forthwith. 5. Dismiss the motion filed 31 May 2019 by the cross-claimant with costs. 6. Stand the matter over for further directions to a date to be fixed.

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: 12 July 2019

1 CLR 298; [1959] HCA 8 National Australia Bank Ltd v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 Palamisto General Enterprises SA v Ocean Marine Insurance Co Ltd (1972) 2 QB 625 Simon v NRMA Insurance Ltd [1991] NSWCA 247 Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186 Texts Cited: Practice Note SC EQ 5 Category: Procedural and other rulings Parties: Dennis Nichol (First Plaintiff) Roderick Nichol (Second Plaintiff) Nathan Nichol as executor of the estate of Edna Mary McKay (First Defendant) Nathan Nichol (Second Defendant/Cross-Claimant) Jason Nichol (Third Defendant/Fourth cross-Defendant) Representation: Counsel: RW Tregenza (Plaintiffs/Respondents) AR Lakeman (First and Second Defendants/Cross-Claimant and Applicant) DA Smallbone (Third defendant/Fourth Cross-Defendant)

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