[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
WARD JA: I have had the opportunity to read in draft the reasons of both Simpson JA and Emmett AJA.
I accept that, for the reasons given by Simpson JA, the procedural fairness ground of appeal is made out and I share Emmett AJA's disquiet as to the way in which the proceedings were brought on for hearing for a final basis.
I have, however, come to the view that looking at the matter realistically there is no possibility that a trial conducted in accordance with the rules of procedural fairness would have yielded a different result in this particular case. In saying this, I am conscious of the caution expressed by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 in that regard (see at 147).
In Stead, the High Court said (at 145-146):
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board (1957) 2 QB 55, at p 67, in these terms:
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
In Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA (with whom Giles JA and Young CJ in Eq relevantly agreed) said (at [29], speaking of cases in the civil jurisdiction where a trial judge is said to have acted in a procedurally unfair manner):
In civil proceedings it is also helpful to consider the nature of the error asserted by reference to the categories identified above. Stead fell within the second category. In Stead the plaintiff had been denied a "fair trial" because he had been stopped from presenting his case properly before the judge: see reference in Stead at 145 to Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 67. Because the appeal court had not heard the witness, it could not say that the lost opportunity made no difference. To come within Stead, an appellant must first demonstrate a procedural ruling capable of preventing a trial according to law. Not every refusal of an adjournment, limitation on cross-examination or refusal to allow a plaintiff to reopen which is adverse to one party's interests will be so characterised. It is necessary in each case, therefore, to consider the extent to which the alleged unfairness may have had an impact on the outcome and, where that possibility arises, whether the extent of the impact can be assessed on the appeal. [my emphasis]
It is also necessary, by reference to r 51.3 of the Uniform Civil Procedure Rules (the reference in which to "any other ground" has been recognised as encompassing a denial of procedural fairness - see, for example Singler v Ferguson [2010] NSWCA 325 at [47]-[48] per Beazley JA, as her Honour then was) [110] per Young JA; and [141] per Handley JA), to consider whether it appears to the Court that some substantial wrong or miscarriage has been occasioned by this denial of procedural fairness.
In the present case, what is of significance is that the deceased's solicitor gave evidence as to the preparation of the will which was the subject of challenge by Mr Nobarani and, in particular, as to his observations of the capacity of the deceased at the time she gave instructions for the will and signed it in his presence. The solicitor had known the deceased for a very long time and gave a cogent explanation for his conclusion as to the deceased's capacity and alertness. In the face of that evidence, I am not satisfied that the procedural matters about which Mr Nobarani complains are such that he has been deprived of the possibility of a different result (whether or not he might now have the benefit of legal representation in any re-trial).
I accept that there is a public interest in proceedings for a grant of probate that goes beyond the interests of the parties to the proceedings, to which Simpson JA has referred, and that although Mr Nobarani's financial interest in the application for the grant of probate is limited he had sufficient standing to be heard. However, the plethora of matters raised by Mr Nobarani in his challenge to the validity of the 2013 will (such as his dispute as to the authenticity of the deceased's signature; allegations of impaired eyesight; hypnosis; drugs and psychological problems allegedly rendering the deceased susceptible to undue influence) does not raise a genuine doubt about the validity of the will in the face of the evidence of Mr Bradstreet, which was accepted by the primary judge. Nor, in my opinion, does the affidavit of Mr Lemesle on which Mr Nobarani was not allowed to rely. None of those matters meets the clear evidence of the deceased's solicitor as to the circumstances in which he prepared the impugned will and attended its execution.
I have taken into account the observation (at 145) in Stead that it is "no easy task" for a court of appeal to satisfy itself that an apparent denial of procedural fairness could have had no bearing on the outcome of the trial of an issue of fact and do not suggest any departure from established principle in that regard. However, in the present case, a close review of the issues raised by the pleadings and the conduct of the trial has led me to the conclusion that no substantial miscarriage of justice was occasioned by the unfortunate denial of procedural fairness that occurred when the matter proceeded to a final hearing rather than, as had been foreshadowed, a hearing on the motion relating to Mr Nobarani's caveat.
I agree with the orders proposed by Emmett AJA.
SIMPSON JA: I have read in draft the judgment of Emmett AJA. His Honour's comprehensive recitation of the relevant facts, history and circumstances relieves me of the need to undertake a similar exercise. There are, however, some additional circumstances that, in conjunction with certain aspects of the history, lead me to a different conclusion. I will repeat only so much of the factual background as is necessary to permit an understanding of the different view to which I have come.
Mr Nobarani's caveats were filed on, respectively, 23 January 2014 and 15 September 2014. The second was undoubtedly cryptic, stating as the interest he claimed only "Justice". The earlier caveat, however, was more expansive and claimed an interest under an earlier (unidentified) will of the testatrix, Ms McLaren. Why Mr Nobarani lodged a second caveat is not apparent. In the ordinary course the first caveat would have lapsed on 23 July 2014, the second on 15 March 2015 (Supreme Court Rules 1970 (NSW), Pt 78, r 69(1)), if not extended by the Court (r 69(2)). There is no evidence of any application for an extension.
The effect of a caveat is to require that the application for probate be commenced by statement of claim (SCR 78.72(1)), rather than the more informal procedure of commencement by summons. Ms Mariconte did in fact file a statement of claim, on 15 May 2014, while Mr Nobarani's first caveat was in force (and before his second caveat had been filed). The statement of claim named only the Animal Welfare League ("the League") as defendant, who had also filed a caveat.
The filing of the statement of claim, in effect, rendered Ms Mariconte's notice of motion seeking an order that Mr Nobarani's first caveat no longer be in force, redundant. However, no further action appears to have been taken in relation to Mr Nobarani's first caveat. The issues raised by the caveat filed by the League were resolved when the proceedings between the League and Ms Mariconte were resolved. Although the pleadings filed by the League were not before this Court, the caveat asserted an earlier will, said to have been made in 2004, of which it was a beneficiary. (As Emmett AJA has pointed out, there may exist a question about the validity of that asserted will.)
Prior to the resolution of the proceedings involving the League, in support of its defence and cross-claim it filed an affidavit sworn by Daniel Lemesle. The evidence in his affidavit (to which I will refer in more detail below) raised questions about Ms McLaren's testamentary intentions, her capacity (physical) to sign a will, and possible interference with, or influence upon, Ms McLaren by Ms Mariconte. It is important to note here that that affidavit has never been read in any proceedings; because the proceedings involving the League in which it was filed were resolved prior to hearing, it was not read in those proceedings. And Mr Nobarani was denied the opportunity to rely upon it in the proceedings before the primary judge (see below). The content of the affidavit has therefore never been tested, has not been the subject of any factual findings, and, indeed, there has been no determination as to admissibility. There are very real issues about the form in which the evidence in the affidavit is expressed.
The continued existence of Mr Nobarani's first caveat, and the filing of the second, created complications. JusticeLink records that the "matter" (which I take to be the matter constituted by the statement of claim, that is, Ms Mariconte's application for probate) was, on 24 November 2014, set down for a two day hearing on Wednesday, 20 and Thursday, 21 May 2015, and that was reaffirmed on 30 March 2015. On 23 April 2015, however, Hallen J expressly ordered that the hearing fixed for 20 and 21 May be limited to "the question whether any caveat lodged by [Mr Nobarani] should cease to be in force". His Honour gave directions for the filing and serving of affidavits in relation to that issue. He directed the parties to provide to the primary judge an index of affidavits upon which they intended to rely "in relation to the amended notice of motion" (which, it is plain, was the amended notice of motion concerning the caveats). By this time, no order that the caveats cease to be in force was required; both had lapsed by the effluxion of time, and, in any event, they had served their purpose, a statement of claim having been filed. Hallen J also stated that Ms Mariconte should file an amended statement of claim, but, ultimately, gave no directions in that respect.
The matter was next listed on Thursday, 14 May 2015 and came before the primary judge, who, it was then known, would be the trial judge. Ms Mariconte was represented by senior and junior counsel. Mr Nobarani was not legally represented. (With the exception of one occasion, 23 April 2015, when he was represented by a solicitor, Mr Nobarani appeared unrepresented.)
At the commencement of the proceedings on 14 May 2015, senior counsel for Ms Mariconte handed to the primary judge a document entitled "Outline of Plaintiff's Case". This was largely directed, not to the narrower issues involved in an application for an order that a caveat cease to be in force, but to the ultimate issue, the grant of probate.
There was a good deal of discussion, the transcript of which makes clear that Mr Nobarani had little appreciation of the procedural and evidentiary matters to which he needed to turn his attention. He made reference to Mr Lemesle. The primary judge asked if he was challenging the 2013 will. Mr Nobarani said that he was, and that (in his belief) the signature on the will was not that of Ms McLaren. There was also reference to a will that Mr Nobarani asserted had existed, and had been hidden in Ms McLaren's house or garden, but which could not be found. Mr Nobarani indicated that he wanted the opportunity to find the lost or missing will. (On previous occasions, Hallen J had made orders designed to facilitate the search for the will. No such will was ever located or produced.) The primary judge advised Mr Nobarani to obtain legal advice. Mr Nobarani asked for more time in order to do so. The primary judge told Mr Nobarani that the hearing would proceed on the following Wednesday, 20 May. He then raised with senior counsel for Ms Mariconte the nature of the hearing, and stated his inclination to proceed to a final hearing on the statement of claim. Senior counsel urged him to adopt that course. Senior counsel then gave notice of his intention to call on a notice to produce (served on Mr Nobarani) that itemised certain documents, apparently identified from affidavits that Mr Nobarani had filed. At no time was Mr Nobarani given an opportunity to comment on the proposal to convert the hearing from one limited to the question whether orders should be made that the caveats cease to be in force to a final hearing on the ultimate issue raised by the statement of claim, the grant of probate in solemn form.
Mr Nobarani said:
"Your Honour, they told me the 20th and the 21st is the court for the hearing. Even for that time I needed more time to get the witness. Just go through whatever they wrote, lots of untrue statements, one by one. To prove it I have to go and get witnesses to fight about that. For the 20th they asked me whatever, I said, 'Okay in the hearing I will bring everything I have, as much as I can, I bring all the documents.'"
His Honour then told Mr Nobarani:
"… it is all going to happen next Wednesday."
and added:
"You will need to be ready to produce everything you are relying on. What is going to happen is there is going to be a hearing in which [senior counsel's] side will advance all the evidence that they rely upon to support the will that they rely upon and you will have to advance whatever case you have got to say that that is not the deceased's last will, all right?"
Senior counsel made clear that he would take a hard line on the admission of evidence, or submissions, that did not fall within Mr Nobarani's pleading.
Mr Nobarani filed in court an affidavit affirmed by him on 13 May 2015. Attached to it was a list of affidavits upon which he proposed to rely. These were three affidavits made by himself. No mention was made of any affidavit by Mr Lemesle.
The primary judge then gave directions for filing of relevant documents. He directed Mr Nobarani to file any defence upon which he proposed to rely by 5.00pm on Monday, 18 May (despite Mr Nobarani's protest that he did not have time to do so before the date of hearing). He listed the proceedings for final hearing on the statement of claim "in addition to such procedural issues as are raised by [Ms Mariconte's] motions".
He gave the parties liberty to apply, with a view to the issue of subpoenas on short notice. This was in response to Mr Nobarani's statement that he needed to find witnesses. The final order the primary judge made was to direct Mr Nobarani to serve any supplementary evidence upon which he proposed to rely by 5.00pm on Monday, 18 May. He directed Ms Mariconte to serve any proposed amended statement of claim by the same time and date.
Mr Nobarani did file a defence, on the date specified. It is a document that bears the hallmarks of being prepared by a person without legal training and with limited English language skills. It included such assertions as:
"In respect of the alleged Will dated 5 Dec 13, I do challenge and contest its validity because:
a) Preparing a new Will in this case, virtually was an act of persuasion that over-came the free will and judgment of Iris McLaren
…
e) The plaintiff had the opportunity for exercising undue influence and used to say to Iris 'I'm the only one who cares about you'.
f) The plaintiff did her best to insulate Iris McLaren and prevented her from seeking independent advice by keeping 'the alleged Will' a secret. In order to give examples I do attach a document called 'insulation examples' marked 'Q'.
…"
The other assertions in the document raised the "validity" of Ms McLaren's signature on the document. It was asserted that, in previous wills, Ms McLaren had made the League the main beneficiary of her estate, and in others, named friends and family as beneficiaries. It was asserted that, on 5 December 2013, the date of the will, Ms McLaren was under the influence of "unprescribed hypnotic medicine" and/or "hypnotism". Attached to the defence was the affidavit of Mr Lemesle that had been prepared and filed in the League's proceedings against Ms Mariconte.
Mr Lemesle's affidavit set out a history of his lengthy relationship with Ms McLaren, who, he said, he had known since 1954. Mr Lemesle made statements about Ms McLaren's testamentary intentions. He said that she had told him that her "first priority" was animal welfare, and that, although he knew that Ms McLaren had changed her will on several occasions, to his knowledge she had made a gift to the RSPCA in an earlier will, but had transferred her allegiance to the League. She had more than once told him of her intention that her estate would benefit the League. She did this as recently as October 2013, when she told him that she had made the League the main beneficiary of her estate, although he was also mentioned in the will.
Mr Lemesle said that in early December 2013 he received a Christmas card purporting to be from Ms McLaren. He said that to his knowledge she was then unable to sign her name and stated his belief that the card was written by Ms Mariconte. He said that, on an occasion when he and Ms Mariconte were visiting Ms McLaren, Ms Mariconte took him aside and said:
"Iris has very good ears so I do not want her to hear this. We must stop them arseholes from getting anything under Iris's Will."
He understood the reference to "arseholes" to be a reference to Mr Nobarani, and another person who had been a tenant of Ms McLaren.
The hearing on 20 May 2015 proceeded, as had been indicated, as a final hearing on the statement of claim. An amended statement of claim was filed in court naming Mr Nobarani as the second defendant. Mr Nobarani appeared unrepresented. Senior counsel for Ms Mariconte read an affidavit sworn by her, and affidavits of Michael Bradstreet, the solicitor who had handwritten the 2013 will, and of Ms Rachel Parseghian, one of the attesting witnesses. Ms Mariconte and Mr Bradstreet gave oral evidence and were cross-examined by Mr Nobarani.
From time to time during the hearing, Mr Nobarani indicated that he had been unable to obtain relevant evidence, and made it clear that he sought to have the proceedings adjourned. At no time did he articulate such an application on the basis of the departure, six days (including a weekend) before the hearing date, from the limitation on the hearing placed by Hallen J, that the issue to be determined was only whether the caveats should cease to be in force. He did, however, state that he needed time to obtain witnesses, including expert witnesses. There were other instances of such requests.
At various times during the course of the proceedings, the subject of Mr Lemesle's affidavit was raised. At an early stage, senior counsel for Ms Mariconte acknowledged that Mr Nobarani had, by attaching the affidavit to his defence, given notice that he intended to rely on it. At a later stage, however, he denied Mr Nobarani's assertion that he had served notice of his intention to rely on the affidavit. The result was that the primary judge declined to admit the affidavit.
During discussion about the progress of the motion at the end of the first day of the hearing, 21 May, Mr Nobarani requested access to Mr Bradstreet's diary for 5 and 10 December 2013. The primary judge interpreted this as a call under s 36 of the Evidence Act 1995 (NSW), and it was agreed that the diary would be produced the following day. It was not until well into that afternoon that the diary was mentioned again. Senior counsel produced the diary, but objected to its being made available to Mr Nobarani, apparently on the basis that the call was made too late. The primary judge said that he had "completely overlooked" the call made the previous day. Eventually, despite senior counsel's objection, the diary was made available to Mr Nobarani, but the primary judge told him that he would be given "about one minute to decide what you are going to do next". Mr Nobarani said that he wanted to have the diary examined by an expert, but the primary judge told him that he should have done that weeks earlier.
At the commencement of the second day of the hearing there was a discussion about the affidavit evidence Mr Nobarani had filed. Senior counsel made a global objection to his evidence, on the ground that Mr Nobarani had failed to demonstrate that he had an arguable interest in the proceedings: see Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504 per Windeyer J. The primary judge rejected that proposition and read Mr Nobarani's affidavits. Senior counsel provided a written list of objections to individual parts of the affidavits. That list is not before this Court. The primary judge then ruled on the objections, invoking what he called "a tradition in this Court for a very long time that judges don't have to entertain argument about the admissibility of evidence".
[3]
The appeal
As indicated in the judgment of Emmett AJA, the appeal is principally grounded in the assertion that Mr Nobarani was, in a variety of ways, denied procedural fairness.
The specific instances of denial of procedural fairness upon which reliance was placed were:
(i) declining to adjourn the proceedings to allow Mr Nobarani adequate time to prepare for the hearing;
(ii) declining to allow Mr Nobarani to rely on the affidavit of Mr Lemesle;
(iii) failing to adjourn the proceedings to allow Mr Lemesle to be called as a witness;
(iv) failing to give Mr Nobarani an opportunity to cross-examine Ms Parseghian;
(v) failing to adjourn the proceedings in order to allow Mr Nobarani the opportunity to call expert evidence;
(vi) failing to adjourn the proceedings to enable Mr Nobarani an opportunity to issue subpoenas (designed to produce evidence with respect to Ms McLaren's eyesight); and
(vii) ruling on senior counsel's objection to Mr Nobarani's affidavit evidence without giving him an opportunity to be heard.
Except for the last, all are specific complaints arising out of the last minute change in, and extension of, the issue to be decided at the hearing of 20 and 21 May.
In addressing the question of procedural fairness, counsel for Ms Mariconte first relied on authorities to the effect that a new trial will not be ordered if the inevitable result of a new trial would be the same as that of the original, flawed, trial: for example, Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. That principle does not assist Ms Mariconte. I am not satisfied that a trial conducted in accordance with the rules of procedural fairness would not yield a different result. True, it can be hypothesised that, unless Mr Nobarani obtains legal representation, his preparation and presentation is very likely to be deficient. I am not persuaded, however, that if he were to receive legal advice, particularly with respect to preparation, that would be the case.
I have come to the view that the procedural fairness ground is made out. In doing so, I have not overlooked the significant procedural impediments to the orderly progress of the matter that attended the proceedings in the Supreme Court. It is apparent that Mr Nobarani had little, if any, appreciation of appropriate procedure, the manner in which his evidence had to be assembled and presented, and questions of admissibility. His command of English is not strong. He was plainly struggling to present his case.
Why the hearing date of 20 and 21 May, originally allocated for the hearing of the suit as an application for probate was limited, as it was on 23 April 2015, to a hearing in respect of caveats that had lapsed, is not clear. But that was done, and was not undone until six days, or, as counsel who appeared for Mr Nobarani on the appeal emphasised, four working days before the hearing date. Mr Nobarani was not invited to participate in the discussion when that occurred, and any objection he might have made was not heard.
Criticism was made on the appeal of the manner in which the evidence of Ms Parseghian was treated. Although Ms Mariconte and Mr Bradstreet, both of whom had sworn affidavits, were called to give evidence, Ms Parseghian was not. It is true, as was pointed out in the submissions on behalf of Ms Mariconte, that Mr Nobarani had not given notice that she was required for cross-examination. It is also true that, in the directions given on 14 May, no mention was made of the need for Mr Nobarani to give such notice. Given that Ms McLaren's physical and mental condition at the time of the signing of the will were known to be prominent aspects of Mr Nobarani's case, Ms Parseghian's absence was not insignificant.
There was no direct evidence that Mr Nobarani was actually misled by the limitation that was placed on the hearing. However, once that limitation was removed, and the decision was made that the hearing was to proceed on the substantive issues, he had virtually no opportunity to prepare or present his case.
I am of the view that he was denied procedural fairness. In the ordinary course that conclusion would warrant a new trial without further debate. However, Uniform Civil Procedure Rules 2005 (NSW), 51.53(1) provides as follows:
"(1) The Court must not order a new trial on any of the following grounds:
(a) misdirection, non-direction or other error of law,
(b) improper admission or rejection of evidence,
(c) that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury,
(d) on any other ground,
unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.
It could be argued that no substantive wrong or miscarriage of justice has been occasioned to Mr Nobarani. It appears that he would seek to propound one of two possible alternative wills, one that he claimed had been made about two months before Ms McLaren's death, and the document to which Emmett AJA has referred as "the 2004 document".
Mr Nobarani told Hallen J that, under the former, Ms McLaren had left the bulk of her estate to the League, and about $100,000 to him "plus some little items". Efforts have been made to locate that will, unsuccessfully. There is no reason to believe that further efforts would yield a different result. There is therefore little prospect that a substantial miscarriage of justice has been occasioned to Mr Nobarani by being deprived of the opportunity to propound that will.
The other will in which Mr Nobarani had a potential interest was the 2004 document (if it were found to be valid), in which he was to take a one seventh share of unspecified jewellery. There was no evidence about the nature or extent of any jewellery owned by Ms McLaren, and no evidence about its current location, if it can be located. It is likely that Mr Nobarani's interest (at least financial interest) in the 2004 will (if that is what it was) is very limited indeed. If the 2013 will were not admitted to probate, and the 2004 document also failed to meet the tests of a valid will, the 1997 will would fall for consideration. Mr Nobarani had no interest under that will.
It is, therefore, arguable that whatever flaws attended the proceedings before the primary judge, r 51.53 could be invoked as a basis for this Court to decline to order a new trial.
For two separate reasons, I would reject such an approach. First, while Mr Nobarani's financial interest in the application for the grant of probate may be seen to be limited, it is sufficient. That is what the primary judge found. Once he established a sufficient interest, he was entitled to a hearing that accorded him procedural fairness. Denial of a hearing in accordance with the rules of procedural fairness is itself a substantial miscarriage of justice (see Stead, at 145).
Secondly, there is a public interest dimension in a grant of probate that goes beyond the interests of the parties to the proceedings. Observations to this effect, although in different contexts, have been made in a number of cases. By way of example, in Phillpot v Olney [2004] NSWSC 592, White J said:
"7 Because the grant of probate or letters of administration is a public act, the Court will not make orders for the grant of probate or of letters of administration merely because the parties have agreed to them." (authorities cited omitted)
That was said in the context of an application for an order for probate in solemn form of one or other of two documents, where doubt existed as to the testamentary capacity of the author. Two interested parties had reached agreement as to the grant of letters of administration, and the distribution of the estate. Ultimately White J made orders substantially in accordance with the agreement. He did not do so, however, before considering for himself the propriety of the agreement.
In Re Swain (Dawn) [2008] NSWSC 1343, on an application under s 29A(3) of the Wills Probate and Administration Act 1898 (NSW) for extension of the time to apply for rectification of the codicil to a will (of which probate had been granted), Young CJ in Eq expressed some hesitation before making the order. His hesitation was because "the public has been given the impression for at least a year over [the period allowed] that they can safely act on the grant of probate in common form of the unrectified codicil". His Honour commented that a more stringent test than would otherwise be applied might be appropriate because "the public interest is more involved".
Earlier, he had said:
"41 It must be remembered that courts only grant probate where the courts can see that the testamentary document is intended to be the testatrix's last will."
In Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 (considering a question of costs of a probate suit) White J said:
"5 … in a probate suit the court is concerned to give effect to the last will of a free and capable testator or testatrix. There is a public interest in keeping faith with the wishes of a capable will-maker that requires an investigation into the validity of the propounded wills. A grant of probate in solemn form operates in rem, that is, it binds the world, or at least those affected persons who have notice of the proceedings. Irrespective of what the parties might want, the court will not pronounce against a will unless there is material to satisfy it that the deceased did not have capacity, or that there is some other reason why the will is invalid. A grant is not made or withheld solely by the consent of the parties. There is, therefore, a public interest in the incurring of some level of costs in cases where there is genuine doubt about the validity of a will."
In Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040, Young AJ qualified the statement that a grant of probate in solemn form operates in rem and binds all the world, but confirmed that:
"23 A suit to obtain probate in solemn form is litigation attendant to which is in the public interest in seeing that the last will of a free and capable testator is recognised and enforced."
The evidence contained in Mr Lemesle's affidavit is capable of raising doubts about the validity of Ms McLaren's 2013 will. There is a public interest component in the resolution of those doubts. The denial to Mr Nobarani of the opportunity to explore those doubts was a substantial miscarriage of justice. Resolution of the doubts is not achieved merely by reference to what is contained in Mr Lemesle's affidavit, which, in some respects at least, is not in proper form. Given the opportunity, Mr Nobarani may be able to produce evidence in admissible form. Rule 51.53 cannot operate to deny Mr Nobarani the opportunity to present whatever case he may have with respect to the validity of the 2013 will.
The orders I propose are:
(1) Appeal allowed;
(2) The proceedings be remitted to the Equity Division of the Supreme Court for a new trial;
(3) The costs of the appeal, and the proceedings below, to abide the outcome of the new trial.
EMMETT AJA: This appeal is concerned with probate of a will (the 2013 Will) of the late Iris McLaren (the Deceased), who died on 12 December 2013. The 2013 Will, which is dated 5 December 2013, names the respondent, Teresa Anne Mariconte (Ms Mariconte), as executrix and purports to be witnessed by Ms Rachel Parseghian and Mr Chen Yuanun. By the 2013 Will, the Deceased gives the whole of her estate to Ms Mariconte.
On 22 May 2015, a judge of the Equity Division sitting in the Probate List (the primary judge) ordered that probate in solemn form of the 2013 Will be granted to Ms Mariconte and ordered that the matter be referred to the Registrar to complete the grant of probate. The primary judge ordered the appellant, Mr Homayoun Nobarani (Mr Nobarani), to pay Ms Mariconte's costs of the proceedings. On 18 June 2015, Mr Nobarani filed notice of his intention to appeal from the orders made by the primary judge. An amended notice of appeal was filed on 13 October 2016 (the Notice of Appeal).
In the Notice of Appeal, Mr Nobarani asserts that the primary judge denied him procedural fairness in a number of respects in connection with the hearing of the proceedings at first instance. He also complains about the way in which his Honour dealt with caveats lodged by him and Ms Mariconte's motion for removal of the caveats. As will appear below, the way in which his Honour dealt with the caveats and the motion for removal of the caveats was an aspect of the alleged denial of procedural fairness. To that extent, the caveats are relevant. However, the treatment of them does not constitute a separate ground of appeal. If Mr Nobarani succeeds in his primary contention that there was a denial of procedural fairness, the grounds of appeal concerning the treatment of the caveats become irrelevant. If he fails in his primary contention, the complaints about the treatment of the caveats do not constitute an independent ground for interfering with the decision of the primary judge to grant probate of the 2013 Will in solemn form.
Before dealing with the grounds of appeal, it is desirable to say something about the procedural framework and the procedural background to the proceedings at first instance. That will entail a consideration of the caveats lodged by Mr Nobarani and the way in which they were dealt with both in directions hearings and at the final hearing before the primary judge.
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Procedural Framework
Rule 78.57 of the Supreme Court Rules 1970 (NSW) (the Rules) relevantly provides that any party to proceedings for the grant of probate may file and serve on any person having an interest adverse to the party a notice of proceedings. A notice of proceedings must state that, if the person to whom it is addressed does not enter an appearance in the proceedings, the proceedings may be heard and determined in the person's absence. If the person on whom the notice is served enters an appearance in the proceedings, he or she is entitled to the same notice of the hearing or trial of the proceedings as a defendant in the proceedings.
Under r 78.58, a person on whom a notice of proceedings has been served may include in a notice of appearance a statement that he or she elects to be a defendant in the proceedings. If the person makes such an election, the person becomes a defendant in the proceedings and the proceedings are to continue as if the person had been joined as a defendant by the application for the grant of probate.
Under r 78.60, subject to any order of the Court, any person on whom a notice of proceedings has been served is bound by all orders and decisions made in the proceedings, including orders and decisions made by consent or otherwise without a contested hearing, and is so bound whether or not the person has elected to be a defendant in the proceedings or has entered an appearance in the proceedings.
Rule 78.66 relevantly provides that a person who claims an interest in a deceased person's estate may file a caveat in respect of any grant of probate being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. If the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate, or the resealing of a foreign grant, in respect of the same estate, the caveator must serve a copy of the caveat on that other person. Rule 78.68 relevantly provides that a person who claims an interest in a deceased person's estate as a beneficiary under a will or who has an interest in a deceased person's estate and who wishes to challenge an alleged will on the ground that the will has not been duly executed may file a caveat requiring proof of any such will in solemn form.
Under r 78.69(1), a caveat takes effect when it is filed and, unless the Court otherwise orders, lapses after six months. However, under r 78.69(2), the Court may extend the duration of a caveat. Under r 78.72, if a caveat is in force in respect of a deceased person's estate, proceedings for the grant of probate must be commenced by statement of claim. Unless the Court otherwise directs, the caveator is to be a party to the proceedings.
Rule 78.71 relevantly provides that, if a person has applied for the grant of probate and a caveat is in force in respect of any grant of probate being made in respect of the estate concerned, the person may apply for an order that the caveat cease to be in force in relation to the application. If the person has commenced proceedings for the grant of probate, the application must be made by notice of motion in those proceedings. Under r 78.71(3), the caveator must be joined as a defendant in the proceedings.
Rule 78.71(4) provides that, if the Court considers that the evidence fails to show that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, such that there is a doubt as to whether a grant of probate should be made, the Court may order that the caveat cease to be in force in respect of the application. Under r 78.71(6), if the Court does not order that the caveat cease to be in force in respect of the application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of proceedings.
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Procedural Background
On 23 January 2014, Mr Nobarani filed a caveat under r 78.66 against the grant of probate in the estate of the Deceased without notice to him (the First Caveat). The First Caveat claimed an interest as "a past beneficiary to [the Deceased's] will". Although the First Caveat did not refer to the 2013 Will as such, it stated that Mr Nobarani was challenging the validity of the Deceased's "final will as she lacked the mental capacity required to create a valid will". The First Caveat also said that he, Mr Nobarani, was challenging the validity of the Deceased's "handwriting and signature". Those statements must be taken to be references to the 2013 Will. The basis for the statements was said to be that the Deceased was under the influence of strong medication "at the time of executing the will 39 hours prior to her death". That suggests a misapprehension as to when the 2013 Will was made, assuming that it was made on the date that it bears.
On 5 February 2014, the Animal Welfare League of New South Wales (the League) lodged a caveat under r 78.66 against the grant of probate in the estate of the Deceased without notice to the League (the League's Caveat). The League claimed an interest as beneficiary named under a will of the Deceased dated 12 August 2004.
A document bearing the typewritten date "12TH AUGUST, '004" was in evidence before the primary judge (the 2004 Document). The 2004 Document consists of three pages typed entirely in upper case. It is not easy to follow and gives the appearance of having been prepared by a lay person without any legal assistance. The 2004 Document bears signatures purporting to be those of the Deceased and two witnesses, one of whom appears to be Mr George Kaloudis. Against the signature of Mr Kaloudis on the third page, the date "24/9/04" appears in handwriting.
On 30 March 2015, Ms Mariconte filed an affidavit of Mr Kaloudis dated 23 May 2014, which was before this Court. However, the affidavit does not appear to have been read before the primary judge. In the affidavit, Mr Kaloudis said that he is an accountant, that he knew the Deceased from about 2002 and that he prepared her tax returns each year from that time until 2013. Mr Kaloudis said that, on or about 12 August 2004, the Deceased presented to him a document bearing that date, a copy of which was annexed to the affidavit. He said that the Deceased told him that it was her will and asked him to witness it. Mr Kaloudis said that he signed the document "on both pages", although the 2004 Document in fact consists of three pages, each of which appears to bear the signature of Mr Kaloudis. Curiously, he did not refer in his affidavit to the date in handwriting against his name on the third page. Mr Kaloudis said in his affidavit that he did not know whose signature was also on the copy of the 2004 Document annexed to his affidavit and that no other witness signed it as the same time as he did. That evidence, if it were accepted, would cast some doubt on the validity of the 2004 Document as a valid will of the Deceased.
By the 2004 Document, the Deceased appointed as her executors, Mr Michael Bradstreet, a solicitor, together with Mrs Pat Nixon, Mrs Molly Couzner and Mrs Margaret Powell. The Deceased's home unit and car space were to be given to her sisters-in-law, Molly Couzner and Pat Nixon, or to the League if they did not survive her. The 2004 Document contains other gifts to the League of money and land. In addition, the 2004 Document gave directions for a bequest to Ms Mariconte of the sum of $10,000 together with certain items of jewellery, as well as bequests of chattels to other persons. Copies of the Deceased's father's tapes and memorabilia were to be given to radio archives in Canberra.
After a description of some jewellery, the 2004 Document provided that certain unspecified jewellery was to be shared between Mr Bradstreet, Mr Nobarani, Mrs Couzner, Mrs Nixon, Mrs Powell, Mrs Rosenthal and Ms Mariconte. The 2004 Document stated that Mr Bradstreet was "to adjudicate". Finally, the 2004 Document provided that "any money left" was to be bequeathed to "WIRES Animal Charity" and that "personal property" was to be given to "my friends and beneficiaries".
There was also in evidence before the primary judge a will of the Deceased dated 18 November 1997 (the 1997 Will). By the 1997 Will, the Deceased gave the whole of her estate to her husband, with a proviso that, if he did not survive her for a period of one calendar month, the whole of her estate was to go to the League. Thus, whatever doubts there may have been about the validity of the 2004 Document, there was evidence before his Honour that the League had an interest for the purposes of lodging a caveat in relation to the estate of the Deceased.
On 11 February 2014, Ms Mariconte filed a summons for probate of the 2013 Will. The summons is dated 31 January 2014 and it was supported by an affidavit sworn by Ms Mariconte on 31 January 2014, to which an inventory of the property of the Deceased was annexed. Ms Mariconte said in the affidavit that she believed that the 2013 Will was the last will of the Deceased and that the means of identifying the 2013 Will were that she was a good friend of the Deceased and was "well familiar with her signature". The affidavit asserted that the Deceased's estate had a gross value of $2,121,598.82 and a net value of $2,106,958.82. The summons did not join a defendant and claimed a grant of probate on the basis that the summons be dealt with in the absence of parties.
On 14 February 2014, Ms Mariconte filed a notice of motion under r 78.71, seeking orders that the First Caveat and the League's Caveat cease to be in force (the Caveat Motion). Both the League and Mr Nobarani were joined as respondents. The Caveat Motion was supported by an affidavit of Mr Bradstreet dated 13 February 2014 outlining the circumstances in which he first knew the Deceased and the circumstances of her giving him instructions to prepare the 2013 Will. Mr Bradstreet said that, when he saw the Deceased on 5 December 2013, she appeared alert and interested. He said that he prepared the 2013 Will, which is handwritten, and read it to the Deceased, who said that she understood that she had left everything to Ms Mariconte and had made Mr Bradstreet the solicitor for her estate. Mr Bradstreet said that the Deceased then signed the 2013 Will in the presence of two witnesses, whom he did not name in the affidavit.
On 24 February 2014, Mr Nobarani swore an affidavit, which was apparently filed in relation to the Caveat Motion. In the affidavit, Mr Nobarani said that he was the defendant in the proceedings and that he had filed a caveat as he was a beneficiary under the Deceased's "previous wills". He did not identify the "previous wills". Mr Nobarani said that he visited the Deceased on 5 December 2013 for over an hour and that she was not alert but sleepy and barely spoke.
On 15 May 2014, Ms Mariconte filed a statement of claim seeking an order that she be granted probate of the 2013 Will. The League was the only defendant named. The allegations made in the statement of claim may be restated as follows:
The Deceased died on 12 December 2013 leaving property in New South Wales.
On 5 December 2013, the Deceased executed her last will by signing the same at the foot and end thereof in the presence of Rachel Parseghian and Chen Yuanun, who were present at the time of signature and who thereupon attested and subscribed the 2013 Will in the presence of the Deceased.
Ms Mariconte is the sole executor named in the 2013 Will.
On 10 January 2014, Ms Mariconte caused due notice of her intended application for grant of probate to be published.
The filing of the statement of claim is curious in light of the Caveat Motion. If the Caveat Motion succeeded, and orders were made that the First Caveat and the League's Caveat cease to be in force, there would be no need for the proceedings to proceed by statement of claim.
While Mr Nobarani was not named as a defendant in the statement of claim, he was apparently served with it. He filed an appearance on 27 June 2014. However, he did not file a defence at that stage.
On 21 August 2014, the League filed a defence to the statement of claim as well as a cross-claim and, on 8 October 2014, Ms Mariconte filed a defence to the League's cross-claim. The contents of the cross-claim and Ms Mariconte's defence are not before this Court and are not presently relevant since Ms Mariconte and the League apparently reached a compromise. Thus, on 10 February 2015, the League and Ms Mariconte filed consent orders whereby the League's defence to the statement of claim and its cross-claim were dismissed and Ms Mariconte was ordered to pay the League's costs assessed at $35,000.
On 21 August 2014, Ms Mariconte filed an affidavit made on 23 July 2014 by Ms Rachel Parseghian. Ms Parseghian said that she witnessed the 2013 Will on 5 December 2013 when she was visiting her mother, who was a patient in the same hospital ward as the Deceased. She said that she spoke to the Deceased from time to time and heard her speaking to others and that, at no time, did she consider that the Deceased was mentally incapacitated in any way. Ms Parseghian said that she would not have agreed to witness a will had she considered that the Deceased did not have the mental capacity to sign it. Ms Parseghian said that Ms Mariconte visited the Deceased every day whilst Ms Parseghian's mother's bed was next to the bed of the Deceased.
On 15 September 2014, Mr Nobarani filed another caveat against the grant of probate in the estate of the Deceased without notice to him (the Second Caveat). The Second Caveat failed to state fully or at all the nature of the interest claimed by Mr Nobarani, and simply stated the word "Justice". It therefore did not comply with the Rules.
On 24 November 2014, a Deputy Registrar made orders, relevantly, that Ms Mariconte serve on the beneficiaries named in the 2004 Document notice of proceedings under r 78.57. On the same day, another Deputy Registrar fixed Ms Mariconte's proceedings for hearing before the primary judge on 20 and 21 May 2015. Leave was given for the League to file and serve any further affidavit evidence by 6 March 2015 and for Ms Mariconte to serve evidence in reply by 1 April 2015. No directions were given in relation to Mr Nobarani, presumably because he was not named as a defendant.
On 14 January 2015, Ms Mariconte served on Mr Nobarani notice of proceedings, together with a copy of the affidavit of Ms Mariconte of 31 January 2014 and a copy of the statement of claim. The notice purported to be in accordance with r 78.42. Rule 78.42 is concerned with the service of notice of an application on each person whose interest may be affected by the Court's decision as to the deceased's intentions in relation to an "informal testamentary document". It is not clear what "informal testamentary document" was involved in the proceedings. It appears that the notice was treated as a notice of proceedings under r 78.57.
The notice served on Mr Nobarani stated that an application for grant of probate had been made by Ms Mariconte in respect of the estate of the Deceased and that, unless the prescribed form of notice of appearance was received in the registry, the Court might hear and determine the proceedings in the absence of Mr Nobarani. The notice annexed a copy of the 2013 Will and contained a statement that the Court would decide whether, relevantly, the 2013 Will was a will of the Deceased. The notice also stated that, upon filing an appearance, Mr Nobarani would become a defendant to the proceedings in so far as they related to the declaration by the Court as to the effect of 2013 Will. On 28 January 2015, Mr Nobarani filed a further appearance. Annexed to his appearance was a copy of page 2 of the First Caveat. He did not elect to be joined as a defendant, although on the front cover of the notice of appearance he named himself as the Second Defendant.
If the notice was truly given under r 78.42, under r 78.44(3), upon entering an appearance, Mr Nobarani became a defendant in the proceedings and the proceedings were to continue as if he had been joined as a defendant by the application for the grant of probate and had been served with that application on the day on which he was served with the notice. However, under r 78.44(4), Mr Nobarani could only take part in such parts of the proceedings as related to the decision in relation to the "the informal testamentary document" and such other parts of the proceedings as the Court directed. Under r 78.44(5), Mr Nobarani would cease to be a defendant on the conclusion of those parts of the proceedings. As I have said, it is not that clear any "informal testamentary document" was involved in the proceedings.
On 19 March 2015, Ms Mariconte filed a notice of motion seeking an order that judgment be entered against Mr Nobarani with costs (the Summary Judgment Motion). The basis for such relief is not clear. As I have said, Mr Nobarani had not been named as a defendant in the statement of claim. In the circumstances, it is difficult to understand what purpose was intended by the Summary Judgment Motion.
On 30 March 2015, the proceeding came before Hallen J for directions. Mr Nobarani appeared without legal representation. Hallen J asked Mr Nobarani why he had not put on a defence to the statement of claim. His Honour told Mr Nobarani that a statement of claim had been served on Mr Nobarani and that he had 28 days to file a defence but had not done so.
In the course of the directions hearing, Mr Nobarani referred to an earlier will of the Deceased, said to have been made two months before her death. He said that he made seven copies of that will and that the Deceased asked him to hide it in her house. He also said that he gave a copy to her accountant, and a copy to Mr Bradstreet. Mr Nobarani said that he no longer had a copy of the will. When asked the name of the accountant, Mr Nobarani said his name was "George" and that he had one copy and that Mr Bradstreet had a copy. Counsel appearing for Ms Mariconte then referred Hallen J to the affidavit sworn by Mr Kaloudis, which was shown to Mr Nobarani. Mr Nobarani confirmed that Mr Kaloudis was the person to whom he was referring as "George".
Hallen J then asked Mr Nobarani what he said was wrong with the 2013 Will. Mr Nobarani asserted that the Deceased's handwriting was very good and that the signature on the 2013 Will was of no value. He asserted that the Deceased did not sign the 2013 Will. He also asserted that the Deceased was too ill to drink and could not remember Mr Nobarani's daughter's name after 20 years.
Mr Nobarani said that the earlier will was in a "hole in the ground". Hallen J indicated to Mr Nobarani that he would give him the opportunity to go with Mr Bradstreet and his solicitor, if he retained one, to the Deceased's home and find "the hole" where he said he hid the earlier will. His Honour said that he would list the matter again on 20 April 2015.
On 8 April 2015, Mr David Coleman, of Lawyers and Legal Services Sydney Pty Ltd, filed a notice of appearance on behalf of Mr Nobarani. When the matter came before Hallen J for directions again on 20 April 2015, Mr Coleman appeared for Mr Nobarani. Senior counsel for Ms Mariconte referred to the question of whether there was a will buried in the yard of the deceased's house. He said that the search for the will had not yet taken place because Mr Coleman had come into the matter and that Mr Coleman had written saying that he and Mr Nobarani wished to inspect the Deceased's premises to see if they could find the alleged will. When asked what the difficulty of a search being conducted was, Mr Coleman indicated a limitation had been placed on the search, being that Mr Nobarani would only be permitted to dig in the garden and would not be allowed to search the inside of the Deceased's house. It is not clear who had placed the limitation. Hallen J invited Mr Coleman to identify within the next two or three days the exact places that Mr Nobarani wished to search.
After a brief adjournment, senior counsel for Ms Mariconte informed Hallen J that it was unlikely that there would be time to deal with the Summary Judgment Motion and proposed that there be a search of nominated places at the Deceased's premises on Wednesday 22 April 2015 and that the matter come back before Hallen J for "disposition of the suit" on Thursday 23 April 2015. Hallen J said that he would not be able to deal with disposition of the suit but might be able to deal with the disposition of the Summary Judgment Motion.
Mr Coleman then said that Mr Nobarani would mark places on a plan of the Deceased's premises where he wished to search. Hallen J said that he wanted to avoid a dispute as to what would occur at the proposed search and invited the parties to prepare short minutes of orders as to how the search would be conducted and who would be present. Senior counsel for Ms Mariconte then referred to a document which contained writings in different coloured inks. He said that it was agreed between the parties that the document had been brought into existence by Mr Nobarani to identify the places where he wished to search. Senior counsel indicated that it was proposed to produce a more intelligible plan.
Arrangements were then made for an inspection to be carried out at 9am on the morning of Wednesday 22 April 2015. Hallen J suggested that the matter might then be referred to the primary judge. His Honour stood the matter over to Thursday 23 April 2015 on the basis that a document relating to the inspection of the Deceased's premises and garden would be delivered to his Honour's chambers by 10am on Tuesday 21 April 2015. Hallen J referred the matter to the primary judge for any further directions about evidence.
The proceedings were adjourned to 23 April 2015 to allow the inspection to be carried out. For reasons that are not clear, the inspection was not carried out and no other will of the Deceased has ever been produced.
When the matter came before Hallen J again on 23 April 2015, Mr Coleman was granted leave to withdraw as the legal representative for Mr Nobarani. At that stage, no order had been made extending the operation of the First Caveat or the Second Caveat, and Ms Mariconte now contends that, at that stage, both the First Caveat and the Second Caveat had lapsed by effluxion of time. However, Hallen J was not alerted to that fact on 23 April 2015.
At the directions hearing on 23 April 2015, Hallen J indicated that he was disposed to give Ms Mariconte leave to amend the Caveat Motion identifying the caveats. His Honour said that he would then give Mr Nobarani an opportunity to put on any evidence in response to the amended motion. He would leave "the "entire issue" of the determination of whether the caveats should cease to be in force for the primary judge to deal with on 20 May 2015. His Honour said that, if the primary judge determined the caveats should cease to be in force that will presumably be because the parties would have resolved the matter and the primary judge could deal with the grant of probate. On the other hand, Hallen J said, if the primary judge determined that the caveats should not cease to be in force, the primary judge could make directions as to the further conduct of the proceedings. Hallen J said that the undetermined Summary Judgment Motion was "a waste of time", particularly when Mr Nobarani had not been named as defendant in the statement of claim.
Hallen J then said that the alternative was to give Ms Mariconte leave to file an amended statement of claim, dismiss the Caveat Motion and let Mr Nobarani put on any evidence he wanted to, including a defence and any affidavits on which he wished to rely. Senior counsel for Ms Mariconte urged his Honour not to adopt that course and suggested that the most expeditious way of dealing with the matter would be for the Caveat Motion to be amended and for the matter to go before the primary judge "on that issue". Hallen J said that, in the event that the primary judge considered that the caveats should remain in force or, alternatively, that there was a basis for the matter proceeding by way of pleadings, Ms Mariconte would have to proceed by filing an amended statement of claim. Senior counsel for Ms Mariconte accepted that proposition.
Hallen J granted leave to Ms Mariconte to file and serve an amendment of the Caveat Motion by 24 April 2015 and directed that the hearing before the primary judge on 20 and 21 May 2015 be limited for determination of the question whether the caveats lodged by Mr Nobarani should cease to be in force. His Honour told Mr Nobarani that he needed to obtain legal advice and that there was going to be a separate determination of the question of whether his caveats should remain in force. His Honour observed that Mr Nobarani would be at a great disadvantage if he did not get legal advice.
On 24 April 2015, Ms Mariconte filed an amended notice of motion seeking orders that the First Caveat and the Second Caveat cease to be in force. At that stage, there appears to have been some confusion as to the state of the proceedings. The only purpose of the caveats was to require notice to be given to Mr Nobarani that an application for probate had been made. Once the caveat had been filed, the proceedings were required to continue by statement of claim. That occurred, although Mr Nobarani was not joined as a defendant as required by the Rules. Once a statement of claim had been filed, the proceedings should have continued on pleadings as a claim for the grant of probate in solemn form. The caveats were in effect spent whether or not they had expired by effluxion of time. However, they continued to drive the conduct of the proceedings.
The proceedings came before the primary judge for directions on 14 May 2015. Counsel for Ms Mariconte stated to his Honour that the First Caveat and the Second Caveat had expired due to the effluxion of time. His Honour then sought to elicit from Mr Nobarani how he wished to proceed. Ms Mariconte now contends that, at that stage, it was apparent that Mr Nobarani intended to advance a case as to the existence of an earlier will made in September 2013 and that the 2013 Will had not been validly executed. Mr Nobarani agreed with his Honour that he was challenging the 2013 Will as not having been validly executed.
The primary judge recommended to Mr Nobarani that he should get some legal advice and have someone to appear for him at the hearing on the following Wednesday, 20 May 2015. His Honour informed Mr Nobarani that, even if he could not get legal advice or someone to appear for him, the matter was going to go ahead on Wednesday, 20 May 2015. Mr Nobarani said that he followed what his Honour was saying. His Honour again strongly urged Mr Nobarani to get some sort of legal assistance before Wednesday. His Honour said that he was not minded to adjourn the case or make any further orders other than the matter would proceed on the following Wednesday.
The primary judge then sought to understand what the nature of the hearing on the following Wednesday was going to be. His Honour said that it was necessary to work out what both sides were expecting to happen and whether there had been any misunderstanding about that. His Honour indicated that he was inclined to let "it all happen as though it were a kind of final hearing". Senior counsel for Ms Mariconte urged his Honour to do so. That approach on the part of senior counsel for Ms Mariconte appears to be inconsistent with the stance adopted before Hallen J, when it was said by him that the most expeditious way of dealing with the matter was that it go before the primary judge on the issue raised by the Caveat Motion.
The primary judge then inquired as to the state of the pleadings. He indicated to senior counsel for Ms Mariconte that he was minded to allow her to attempt to prove the 2013 Will through witnesses and for Mr Nobarani to cross-examine those witnesses and to call any person he wanted to as well. His Honour then observed that there was a statement of claim and an appearance but no defence and senior counsel for Ms Mariconte confirmed there was an appearance, no defence and no cross-claim by Mr Nobarani, although Mr Nobarani had filed two affidavits. His Honour observed that it was "an old fashioned common law case of the general issue".
The primary judge then made orders directing Mr Nobarani to file and serve a defence by Monday 18 May 2015. His Honour listed the proceedings for final hearing of the statement of claim, in addition to such procedural issues as were raised by Ms Mariconte's amended Caveat Motion. His Honour also gave directions for the serving of subpoenas. Next, the primary judge sought to confirm the affidavits on which Mr Nobarani sought to rely. Mr Nobarani identified affidavits of 24 February 2014, 5 May 2015 and 13 May 2015. His Honour granted leave to Mr Nobarani to file the affidavit of 13 May 2015 in Court and directed that Mr Nobarani serve any supplementary evidence on which he sought to rely no later than 18 May 2015.
In the affidavit of 5 May 2015, Mr Nobarani asserted that attempts had been made to identify the true circumstances surrounding the signing of the 2013 Will. Mr Nobarani also said that he could not locate Mr Yuanun and that the address given on the 2013 Will appeared to be a building site with no one inhabiting it. Mr Nobarani also annexed to his affidavit examples of the Deceased's signature. The affidavit also drew attention to alterations made to the 2013 Will by the deletion of the words "my executrix" (although in his affidavit Mr Nobarani referred to the term "Executive", it is clear he meant to refer to the term "executrix"). It annexed various documents, including a handwritten statement by Mr David Lemesle and letters written by the Deceased.
Also in the course of the directions hearing on 14 May 2015, senior counsel for Ms Mariconte provided to the primary judge a document entitled "Outline of Plaintiff's Case". The document urged his Honour to proceed with the matter expeditiously, having regard to the stress being occasioned to Ms Mariconte by the delay. It asserted that Mr Nobarani had demonstrated no case and that the Court and Ms Mariconte had bent over backwards to facilitate "the opportunity for him to demonstrate an interest" and that he had refused or at least failed to do so. The document asserted that probate should be granted to Ms Mariconte as soon as practicable.
Thus, it was apparent that the primary judge was proposing a final hearing on the grant of probate of the 2013 Will, which was a significant change from the hearing proposed by Hallen J, which was to be limited to the hearing of the amended Caveat Motion. However, Mr Nobarani did not dissent from or complain about the directions given by his Honour.
On 18 May 2015, Mr Nobarani filed a defence to the statement of claim. Attached to the defence was an affidavit sworn by Mr Lemesle, which had been filed by the League, and an affidavit by Mr Nobarani's wife, sworn on 13 May 2015.
At the hearing, that commenced on 20 May 2015 and concluded the following day, Ms Mariconte was represented by senior and junior counsel. Mr Nobarani appeared in person. At the commencement of the hearing, the primary judge granted Ms Mariconte leave to file an amended statement of claim, which added Mr Nobarani as second defendant and claimed an order that Mr Nobarani pay her costs. The amended statement of claim continued to name the League as first defendant. By the amended statement of claim, Ms Mariconte claimed orders that probate of the 2013 Will be granted to her and that Mr Nobarani pay her costs.
No defence to the amended statement of claim was filed. It appears to have been accepted that the defence filed by Mr Nobarani on 18 May 2015 would stand as a defence to the amended statement of claim. In that defence, Mr Nobarani referred to the "Outline of Plaintiff's Case" and denied the allegations made in it. Mr Nobarani then asserted that he challenged and contested the validity of the 2013 Will and set out 16 paragraphs constituting his reasons for contesting the validity. The particulars are somewhat repetitive. They refer to an alleged will of September 2013 and other earlier wills. The particulars challenged the capacity of the Deceased to make a will and also disputed the authenticity of the Deceased's signature on the 2013 Will. More particularly, Mr Nobarani alleged that the Deceased was susceptible to overreaching and had "psychological problems, and physical disability and dependency" and that Ms Mariconte had the opportunity to exercise undue influence. He also asserted that the Deceased was under the influence of hypnotism on 5 December 2013 and some of the other days before that time.
The primary judge delivered reasons for judgment ex tempore on 22 May 2015, concluding that probate of the 2013 Will should be granted to Ms Mariconte in solemn form. His Honour ordered Mr Nobarani to pay Ms Mariconte's costs of the proceedings. In the course of his reasons, his Honour found that it was not necessary for Ms Mariconte to move on the amended Caveat Motion because both the First Caveat and the Second Caveat had lapsed.
[6]
The Appeal
The grounds relied on by Mr Nobarani may be summarised as follows:
The primary judge denied Mr Nobarani procedural fairness by refusing an adjournment to allow him to call Mr Lemesle, to prepare for the hearing, to obtain expert evidence in relation to the authenticity of the signature of the Deceased, to obtain expert evidence in relation to the diary of Mr Bradstreet, being the solicitor who prepared the 2013 Will and to issue subpoenas to Dr Margaret Kearns, who treated the Deceased for her eyesight disability.
The primary judge denied Mr Nobarani procedural fairness by failing to allow Mr Nobarani to rely on the affidavit of Mr Lemesle.
The primary judge denied Mr Nobarani procedural fairness by failing to allow cross-examination of Ms Parseghian.
The primary judge denied procedural fairness by ruling on objections to Mr Nobarani's evidence without hearing argument from him.
The primary judge erred in determining that the First caveat and the Second caveat had expired and that Mr Nobarani required an extension of the caveats.
It is a matter of some concern that the nature of the proceedings before the primary judge changed dramatically from the directions hearing before Hallen J on 23 April 2015 to the directions hearing before the primary judge on 14 May 2015. That is to say, at the insistence of senior counsel for Ms Mariconte, Hallen J had made it abundantly clear that the only question to be heard by the primary judge on 20 and 21 May 2015 was to be the question of whether or not the First Caveat and the Second Caveat should continue to be in force. As I have indicated, that issue may well have been a false issue. Whether or not the caveats had lapsed by effluxion of time, the only purpose of the caveats was to require that probate of any will of the Deceased be determined on pleadings, rather than as non-contentious proceedings.
That is to say, once the caveats had been lodged, the proceedings should have continued on pleadings. In fact, as indicated above, Ms Mariconte had filed a statement of claim and the proceedings were continuing on pleadings as a contested suit. That contested suit was listed for hearing on 20 and 21 May 2015. It was the concern about caveats raised on behalf of Ms Mariconte that distracted attention from that position. Rightly or wrongly, the proceedings had been fixed in November 2014 for final hearing on 20 and 21 May 2015. Whether or not Mr Nobarani appreciated the distinction is unclear and, for whatever reason, Mr Nobarani was not represented. It was not suggested that he was indigent to the extent of being unable to afford to pay for legal representations. As Hallen J said, the Rules required him to file a defence to the statement of claim within 28 days. Had he done so, there would have been a triable issue in the suit as to whether or not the 2013 Will was a valid will of the Deceased that should be admitted to probate.
Confusion was generated by the approach adopted on behalf of Ms Mariconte concerning removal of the caveats. That approach appears to have been driven by a desire to have the proceedings resolved expeditiously. The Summary Judgment Motion appears to have been misconceived but appears to have been driven by the same object, namely, of obtaining a grant of probate in respect of the 2013 Will as quickly as possible.
A grant of probate is a solemn juridical act. In the majority of cases, probate is granted in non-contentious proceedings without the joinder of a defendant. However, in the present case, Mr Nobarani clearly wished to dispute the validity of the 2013 Will. He was given ample opportunity to do so.
An important question is what interest Mr Nobarani had in the validity of the 2013 Will. As indicated above, the 2004 Document may not have been validly executed. Further, Mr Nobarani had no interest under the 1997 Will. The League had been joined as a defendant and filed a cross-claim, but reached a compromise with Ms Mariconte, apparently accepting the validity of the 2013 Will.
Mr Nobarani referred to a will made shortly before the 2013 Will. Had such a will been located, an application for probate of it could have been made by any executor named. Alternatively, an application for the grant of Letters of Administration cta. could have been made by a person who had an interest under that will, as Mr Nobarani claimed to have. However, for whatever reason, nothing else been propounded as a valid will.
Clearly, if there is any basis for challenging the integrity of proceedings resulting in a grant of probate, it would be undesirable for the grant to stand. In the present case, there are possible straws in the wind hinting at some irregularity. Mr Nobarani asserted that he saw the Deceased and that she was not capable of making a will. However, he appears to have referred to having seen the Deceased some 30 hours before she died, while the 2013 Will was made some seven days before her death.
The primary judge had before him the evidence of Mr Bradstreet, whose only interest under the 2013 Will was his appointment as solicitor to the estate. His Honour also had the evidence of Ms Parseghian, who had no interest in the outcome of the proceedings. The absence of the second witness, Mr Yuanun, may give rise to some disquiet in the light of the assertion by Mr Nobarani that the address given was incorrect. However, the evidence given by Mr Nobarani was considered by the primary judge and apparently rejected.
While there may also be a basis for some disquiet as to the way in which the proceedings were brought on for hearing on a final basis, I do not consider that the circumstances are such that the Court should intervene at the behest of Mr Nobarani. Mr Nobarani appears to have no valid interest in the validity of the 2013 Will. The League, which had a vital interest in its validity, was joined and reached a compromise. No other person has been shown to have any interest in the estate of the Deceased. I do not consider that a basis has been established for the grant of a new trial of the issue of the validity of the 2013 Will.
In all the circumstances, I consider that the appeal should be dismissed. Ms Mariconte's costs of the appeal should be paid out of the estate of the Deceased on the trustee basis. There should be no order as to Mr Nobarani's costs. There should be no order for costs against Mr Nobarani.
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Decision last updated: 05 June 2017