Piras v Egan - [2008] NSWCA 59 - NSWCA 2008 case summary — Zoe

NSWNSWCA

Piras v Egan

[2008] NSWCA 59

Court of Appeal (NSW)|2008-02-11|Before: Giles JA, Tobias JA, Campbell JA, McLelland J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2008-02-11

Before

Giles JA, Tobias JA, Campbell JA, McLelland J

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

JUDGMENT OF: Giles JA at 1; Tobias JA at 5; Campbell JA at 6

[2]

DECISION: (1) Appeal dismissed. (2) Appellant to pay the Respondents' costs of the appeal.

[3]

CATCHWORDS: SUCCESSION - wills probate and administration - whether appellant entitled to entire estate of deceased - whether appellant was the de facto spouse of the intestate - s 61B(2) and s 32G(1) Wills, Probate and Administration Act 1898 - whether appellant and deceased lived together as a couple - s 4 Property (Relationships) Act 1984 - relationship between definition of 'de facto relationship' in s 4 Property (Relationships) Act and list of 'circumstances' in s 4 - claim in alternative for provision out of estate under s 7 Family Provision Act 1982 - whether appellant was in a "close personal relationship" with the deceased - s 5(1)(b) Property (Relationships) Act - whether appellant was an "eligible person" within s 6(1) Family Provision Act - whether appellant was a member of the household of which the deceased was a member - EVIDENCE - witnesses - where trial judge forms view that appellant's unsupported word insufficient - whether trial judge's view was inconsistent with incontrovertible facts - whether trial judge's view was based on glaringly improbable evidence, or contrary to compelling inferences - whether trial judge misused his advantage of seeing or hearing witnesses - EVIDENCE - matters relating to proof - onus of proof - whether findings of trial judge were merely findings that appellant had failed to discharge an onus of proof - whether trial judge made positive findings - EVIDENCE - weight and sufficiency of evidence - whether trial judge gave insufficient weight to evidence of witnesses for appellant - EVIDENCE - witnesses - whether trial judge's acceptance of evidence of witness A called for the respondents contravened rule in Browne v Dunn (1893) 6 R 67 - when that evidence alleged that witness B (earlier called for the appellant) had made a particular statement, witness B had given no evidence concerning the topic of that statement, and the allegation that he had made that statement had not been put to witness B in cross-examination - whether evidence of witness A gave rise to any imputation against witness B - PROCEDURE - whether failure of trial judge to inform parties that he proposed to accord to an item of evidence a significance concerning which no submissions had been made or invited amounted to a denial of natural justice - APPEAL - whether, assuming there had been a breach of natural justice, a new trial would be required - whether "substantial wrong or miscarriage" occasioned - Rule 51.53 Uniform Civil Procedure Rules - EVIDENCE - witnesses - credibility of witnesses - whether, once admitted, evidence of conviction can be used as tending to show a witness lacks credibility

[15]

Nature of the Case 7 Roberta Anne Egan died on 21 April 2003 aged 47 and intestate. She died of cancer, which first manifested itself in February 2002. At the time of her death she was unmarried, had no children, and no living parents or grandparents. Her closest blood relations were her half-siblings Michael Egan, Renate Egan, and Martin Egan. Michael and Renate Egan applied for Letters of Administration of Roberta's estate, and obtained a Grant of Letters of Administration on 25 August 2003. That grant was one in common form. 8 The Appellant brought proceedings against Michael and Renate on 8 October 2003, seeking an order under the Family Provision Act 1982. It was never in dispute in the litigation that the Appellant had been a friend of the deceased, and had assisted her during the last few years of her life. He claimed, however, that the relationship was more than friendship, and that he was the de facto spouse of the deceased. 9 Section 61B(2) Wills, Probate and Administration Act 1898, must be construed in the manner required by section 32G(2) Wills, Probate and Administration Act to extend the word "spouse" to a person who at the time of the death of an intestate was the de facto spouse of the intestate. So construed, it has the consequence that if the Appellant had been the de facto spouse of the Deceased her estate would have been held in trust for him absolutely. In that circumstance, he would have had a better claim to be the administrator of the estate of the Deceased than half-siblings of the Deceased would have had. Once the legal advisors of the Appellant had realised that that was the state of the law, they filed an Amended Summons on 29 April 2005 seeking a declaration that the Appellant was the de facto spouse of the Deceased, an order revoking the Letters of Administration that had been granted to Michael and Renate, an order granting Letters of Administration to the Appellant, and a declaration that the Appellant was entitled to the entire estate of the Deceased. The claim for provision out of the estate under the Family Provision Act remained in the Amended Summons, as an alternative claim. The Appellant claimed standing to bring an application under the Family Provision Act, even if he was not the de facto spouse of the Deceased, on the basis that he was in a close personal relationship with her, of the type that falls within para (a)(ii) of the definition of "eligible person" in section 6(1) Family Provision Act, or that he had been partly dependent upon her and a member of her household and so fell within para (d) of that definition. 10 Associate Justice Macready heard the case over four days in November 2005. In May 2006 he delivered a judgment dismissing the proceedings and ordering the Appellant to pay the costs of the administrators: Piras v Egan [2006] NSWSC 328. The Appellant appeals against that decision.

[16]

The Deceased and her Family Background 11 The Deceased was born on 21 March 1956. Thus she was aged 47 at the time of her death. The Deceased's mother was killed in a motor vehicle accident the day before the Deceased's fourth birthday. Over the period from the Deceased's birth until 1962, she and her father lived overseas, but in 1962 they returned to Australia. In 1963 the Deceased's father married his second wife, Victoria Egan. They had three children, Michael (born September 1964), Renate (born December 1965) and Martin (born February 1971). Around 1969 the Deceased began to truant from school and was apprehended for shoplifting. The family were at this stage living in Perth. 12 In 1972 the family returned to Sydney. The Deceased did not want to leave Perth. 13 The trial judge found (at [12-17]): "On Easter Saturday 1973 the deceased disappeared from home. She was apprehended in Perth. According to Victoria Egan, her husband told her that the Magistrate in Perth required the deceased to undertake psychiatric treatment. On 6 May 1973 the deceased was admitted to Chelmsford Private Hospital for two months undergoing deep sleep therapy. The deceased thereafter came under the care of Dr Bailey. The deceased made a number of suicide attempts and began to use prescription and illegal drugs. The use of these continued over many years. The deceased completed her Higher School Certificate at Hornsby Technical College. In 1974 or 1975 the deceased attended Newcastle University for approximately three months. Apparently the deceased had begun to use heroin at this time. In 1976 the deceased injured her leg in [a] motorcycle accident and received a settlement [of] approximately $6,000.00. She continued to live at home. In February 1979 the deceased attended a second session at Chelmsford Hospital. In the 1980's the deceased lived at home. In the late 1980's the deceased attended a detoxification program in Byron Bay at the Buttery where she met her future de facto, Adrian Chenhall. Various members of her family later helped the deceased move in with Adrian Chenhall. In the mid 1990's the deceased received compensation for her treatment at Chelmsford Hospital in the sum of $350,000. The Office of the Protective Commissioner administered her compensation and the amount remaining is included in the estate. In 1996 the plaintiff first met the deceased who was living with Adrian Chenhall and with whom she had been living for the previous 10 years. In December 1997 Adrian Chenhall died and the deceased moved into a flat owned by the Department of Housing at 3/13 Edward St Bondi." 14 The Deceased continued to be the tenant of the flat at Edward Street, Bondi until the time of her death. The Appellant never became a co-tenant there, or acquired any other legal right to occupy.

[20]

The Appellant's Evidence 20 The Appellant's evidence was that he had first met the Deceased in 1996, when she was still living with her then de facto Adrian Chenall. He says that he and the Deceased lived together as a couple at the Deceased's unit in Edward Street, Bondi continually from September 1999 until 4 December 2002. 21 According to the Appellant, during their life together he did most of the cooking, and they did the cleaning and shopping together. The Deceased was an artist, and he says he encouraged her painting, and that she spent a lot of time reading and painting. They went out occasionally on social visits with friends, and sometimes went to the Deceased's property in the Blue Mountains. He said he paid for all the food and groceries, and that although he did not have a regular income he had some savings. He says that he looked after her from the time she was diagnosed with breast cancer in February 2002 until the time of his incarceration. 22 The Appellant had some involvement with the Deceased's family. The Deceased went to her family's house for dinner on Christmas Eve every year. In one affidavit the Appellant said that on two Christmas Eves (out of the three that occurred during the time the Appellant says the relationship was on foot) she went to the family function and he "went with her". That evidence was clarified in a later affidavit by saying he attended Christmas Eve dinner in 1999, and on Christmas Eve 2001 he drove the Deceased to the suburb where the family home was located but did not attend the dinner. The Deceased did not drive a motor vehicle, so always needed to have someone to drive her if she was to travel any distance from her flat. On another occasion they called in at the house with gifts for the father and stepmother of the Deceased. They attended an engagement dinner for Martin Egan. They were invited to Michael Egan's wedding in June 2000, but were asked to leave when they arrived with an additional guest who had not been invited. 23 The Appellant said that there were toiletries and shaving equipment belonging to him at the Bondi flat at the time of his arrest. He explained the fact that no such items were found by the Deceased's family after her death by saying many other people had been through the premises after his arrest. That may well be so - I mention that the evidence did not include any list of items taken by the police in the course of execution of the search warrant on 4 December 2002, and the Deceased lived there on and off over several months after the Appellant was incarcerated, sometimes receiving visitors there.

[22]

Mr Smithson 26 Jonathan Smithson has trained as a psychiatrist but at the time of the events relevant to this case had voluntarily removed his name from the roll of medical practitioners. The trial judge said he was a witness "who I would normally accept". 27 Mr Smithson first met both the Deceased and the Appellant "sometime in 2000" at an exhibition at the Art Gallery of New South Wales. Thereafter he saw them about once a month. Sometimes they went out to social events together. Sometimes he visited them at the Deceased's Bondi flat. He observed a single bed in the bedroom, male toiletries and several toothbrushes in the bathroom, and often, "including calls later in the evening" the Appellant would answer the phone at the Bondi flat, or ask Mr Smithson to ring him on the number of the Bondi flat when Mr Smithson rang the Appellant on his mobile phone. On two or three occasions in 2001 he went with both of them to Blackheath. He observed Appellant doing the washing, and assisting with the drying and folding of clothes. He observed that the items washed included clothing of the Appellant, which he recognised. He also saw the Appellant attending to other small household tasks. He estimates he went to the Bondi flat 20 to 30 times in 2000, and about 20 times in 2001, and that on most of those occasions the Appellant was either already there, or else appeared during the course of Mr Smithson's visit. He gave evidence of the Appellant referring to the Bondi flat as "home", without any apparent demur by the Deceased, and of the Deceased referring to it as "home" in conversations with the Appellant. After the Deceased was diagnosed with cancer he observed signs of affection between the Deceased and the Appellant. After the Appellant was incarcerated, Mr Smithson was at the Bondi flat "very often" when the Appellant telephoned, or when he heard a message from the Appellant on the answering machine. 28 His evidence in chief was that the Deceased told Mr Smithson that she was concerned that the Appellant should have proper legal advice, and spoke of establishing a "fighting fund" of $100,000 for the legal costs of the Appellant. In his cross-examination Mr Smithson thought that the fighting fund that she talked about might have been $100,000, but was not sure. 29 Mr Smithson provided significant support and assistance to the Deceased in the period after the Appellant was incarcerated, sometimes staying over at the Bondi unit to assist. He accompanied the Deceased to Silverwater Gaol on several occasions when she went there to visit the Appellant. He gives evidence of having overheard conversations in early December 2002 where the Deceased said to Mr Tsolakis and Mr Foster (lawyers who were representing the Appellant at that stage) "I am his partner. Do what you can to help him. I have property I can put up for his bail." 30 Mr Smithson's summary, in cross examination, of their relationship was: "… She spoke of wanting to retire to the mountains together, had business plans together. She belly ached to me - she complained about him in a way that seemed pretty intense at times. More than just complaining about my annoying friend. She never said to me he is my de facto husband. She didn't introduce him like that. Q. They were friends? A. You say that, and they certainly were friends, but they were together in this place." 31 Mr Smithson said that after the Appellant went into Silverwater, the Deceased at times told him (Mr Smithson) that she did not want to have any telephone calls from the Appellant.

[25]

Mr Gold - Circumstances of Obtaining Bail 35 Garry Gold, solicitor, acted in connection with the criminal matter of the Appellant in 2003 after the instructions of Mr Tsolakis were withdrawn. He visited the Bondi flat on two or three occasions. He saw men's shoes and clothing, shavers and men's toiletries there. The Deceased told Mr Gold that she would foot the legal bill for the Deceased. 36 When bail was eventually granted to the Appellant it was on the security of $100,000 cash lodged with the court. That cash was supplied by the parents of Mr Gold, Nie Hing Lau and Chik Keung Ng, and Mr Gold informed the court at the time bail was granted that the money was a "gift from Roberta Egan". When counsel for the Respondents was cross-examining the Appellant counsel asked questions about the posting of bail on the mistaken assumption that bail was "posted by two gentlemen" - a mistaken assumption with which the Appellant agreed, though he asserted "it was arranged by Roberta". When asked where the Deceased got the money from, the Appellant said it was "from a friend of mine", "and also somebody I worked for". He said, concerning this, "I had advised Roberta to get in touch with a friend of mine who I used to work for." When asked how she could have raised money for the bail when she was so ill the Appellant said: "she arranged to contact this friend of mine and this friend of mine went to see Roberta and this was arranged while I was in Silverwater." 37 In cross-examination Mr Gold explained that he and his parents visited the Deceased and received the money from her in cash. The money was cash, mainly in $50 bills. While the cross-examiner asked Mr Gold whether the Deceased told him that the $100,000 was a gift from her, the question was not answered directly and the cross-examiner did not persist with it. 38 The cross examiner, presumably seeking to test whether the $100,000 was property of the estate, put to Mr Gold that if the Appellant honoured his bail conditions the money would eventually be returned to Mr Gold's parents. He agreed that the bail money would be returned to his parents, but expressed the view that his parents would not be obliged to return the money to the estate, because it was their money. His evidence was: "Q. So she gave it to your parents as a gift, did she? A. Yes. Q. These are people who she didn't know. Why would she give a gift of $100,000 to your parents? A. On the promise that my parents would help Mr Piras. Q. I see. And on no condition that she would ever want it back. Is that right? A. Well she knew she was going to die." 39 Mr Gold gives evidence that in "about March 2003" he received a telephone call from Jonathan Smithson, asking him to contact the Deceased in St Vincent's. He went to see her, and she said that she had two months to live, and that she wanted to do a will, but was too tired at that particular time. At her request, he returned to see her in the Hospice in the early to mid April 2003. According to his affidavit evidence, she told him "In the later years I have not seen my family. Not even at Christmas". The statement of which Mr Gold gives evidence, that the deceased said she had not even seen her family at Christmas, is against all the evidence that in fact she saw her family every Christmas. He says she gave instructions that "it is all to go to Augusto". He says she seemed mentally clear at the time, and that she gave him a summary of her assets. Other evidence shows that that summary is an accurate one. However no will was drawn up, let alone executed. In cross examination, when asked about what she had said concerning a will his evidence was: "Q. Did she say to you 'I want to do a will'? A. Not in those words. Q. What did she say to you? A. 'I want to do a will'? - well, I really can't recall exactly what she said and to my recollection actually I can't really reply to your question what she said to me because -- Q. You don't remember? A. What exactly she said." 40 He also said: "Q. Did you take any instructions from her to draft a will? A. I would say yes but there was no formal instruction as to her retainer and it come about when we talk about, well, she told me at that time I think she has about three months and then I ask her well, trying to get some business, that I was, had she made preparation when the time comes and she talk about her assets and things like that and I asked her whether she has a will. Q. I take it she didn't give you specific instructions to draw a will? A. She told me that she had, something about what is going to happen after she died and then I told her that is not going to hold up in court so she told me can you do it properly for me. Q. But she didn't give you specific instructions I take it as to, firstly, who she was going to appoint as executors, did she? A. Um, no. Q. I take it that you didn't make a file note of any of those instructions that she gave you about what she thought that she might want to do if she was going to draw up a will? A. There was no file notes." 41 However there is other evidence concerning the Deceased's testamentary intentions. During 2003 she discussed that topic with Mr Smithson, who said: "… a lot of what she had mentioned did not relate to any particular individual, it was for helping the underprivileged, particularly children in poor countries. I thought - that ain't going to happen if you don't put something in writing. Q. What she wanted to do was help people in Timor and other more deserving people be it Timor or anywhere else where there were people who had very little? A. That was a main plank of her concern for her assets after her death. Q. She certainly did not say to you, in 2003, she wanted Augusto Piras to have Blackheath? A. I think she did make a comment about that. She made comments about nieces and nephews, money for education and from a couple of nieces and nephews I had met - one boy had autism, he came around with his aunt - and Roberta's family from - I am not sure which side - anyway a couple of nieces. Also she had, she was always generous to the kids in her family. That theme continued when wanting to do stuff for, really, underprivileged children and in relation to Augusto she mentioned two things, both Blackheath and a fighting fund, they were her words - at that stage he still had some legal difficulties."

[26]

Other Evidence Bearing on Existence of a De Facto Relationship 42 On 1 July 2002 the Appellant and the Deceased flew to Canberra and back. It appears that the purpose of the visit was to enable the Deceased to obtain a British passport. She was talking at the time of visiting Martin, who lived in England. A receipt from the travel agent who made the booking for the Canberra flight says that the Appellant paid the fare of both of them, totalling $625.90, in cash. 43 On 30 January 2003 the Deceased sent, under cover of a letter handwritten by Mr Smithson but signed by her, a cheque for $2,084 to the real estate agent through whom the Appellant leased a flat at 7 Lindsay Street, Neutral Bay, in payment of the rent for February and March 2003. The cheque in question was a bank cheque, drawn on the Sydney branch of the Commonwealth Bank of Australia. Mr Smithson says he obtained that cheque from the bank. The evidence does not make clear whose money was used to purchase that cheque. 44 Records of the Department of Corrective Services show that the Deceased visited the Appellant in gaol on five separate occasions, on 5 December 2002, 15 December 2002, 2 January 2003, 8 January 2003 and 20 January 2003. On the first of these visits she went alone, but on the other three visits she went accompanied by Mr Smithson. 45 The Deceased also paid some money into the Appellant's prison account. There is a receipt for $100 that she paid on 15 December 2002. There is also a receipt for $100 dated 31 January 2003, that the Appellant identifies as being related to a deposit by the Deceased, although the receipt does not say so on its face. 46 From a reading of the rulings on evidence at the trial I would have concluded that the police Facts Sheet relating to the arrest of the Appellant on 4 December 2002 was annexed to an affidavit that was read, but that the sentence identifying the Facts Sheet was rejected. The usual consequence of that would be that the Facts Sheet itself would not be part of the evidence. However, counsel for the Appellant on the appeal, in both written and oral submissions, made reference to the Facts Sheet, without demur by counsel for the Respondents. When the appeal has been conducted on the basis that the Facts Sheet was in evidence, I shall assume that that is the correct position. The Facts Sheet gives the Appellant's address as being that of the Bondi flat and says "the defendant lives at the above address with a female person". It goes on to say that from 18 November 2002 a listening device with camera was installed in particular premises in Ultimo; that the Appellant delivered heroin daily to the occupant of that room; that the occupant of that room would contact the Appellant by mobile phone "each day" to arrange the delivery of heroin; and that "surveillance police have followed the defendant from his residence" to the Ultimo room. The last occasion when the Facts Sheet asserts that the Appellant was captured by the camera entering the room and selling heroin was at 1:00am on 4 December 2002. The Facts Sheet records that at 5:45am on 4 December 2002 police "executed a search warrant on the defendant's premises" at the address of the Bondi flat, and that during the search of the premises an amount of $9,500 in cash was located. 47 The prison form completed when the Appellant was first placed in custody on 4 December 2002 lists, under "Immediate Concerns and Assistance Provided", "rang friend Roberta [telephone number]". On that same form he nominated the Deceased as his next of kin, describing his relationship with her as "friend". 48 On 16 January 2003 the Appellant filled out a standard form headed "Application to Visit Seriously Ill Relative". This time he nominated his relationship with the Deceased as "partner/dependant". That application was refused, on the ground that her condition at that stage did not appear to be life threatening. 49 In the course of his time in prison the Appellant made several attempts to talk to the Deceased on the telephone, but was unable to get through. 50 He phoned her from gaol on 2 April 2003 and made contact. Another attempt he made to call her on 15 April 2003 did not succeed when she "could not come to phone". 51 The Appellant later completed another "Application to Visit Seriously Ill Relative". It nominates the Deceased as being his "de facto", in a section of the form that the inmate is required to fill in. The date when the Appellant filled out that section of the form does not appear, but the application was approved on 2 April 2003 by the first of the officials required to approve it. 52 The permission was finally granted on 15 April 2003, on condition that "inmate to be handcuffed at all times and in custody of two officers". 53 The prison record shows that, after the second request had been approved, and apparently on a date after 16 April 2003, the gaol received a message that the Deceased "does not wish to have inmate visit". 54 On 19 May 2003 Edmund Teng & Associates, the solicitors then acting for the Appellant, wrote to the solicitors for the defendants, saying that they acted for the Appellant, and asserting that he was the de facto spouse of the Deceased. The letter continued: "We further note your clients have lodged a Caveat against the property at Blue Mountain, the original Certificate of Title of which our client is in possession of. Please advise our office whether you have applied for Letters of Administration and if so, your clients are put on notice that Mr Piraz will be applying to the court for provision from the estate pursuant to the Family Provision Act 1982 . We further advise that our solicitor, Mr Garry Gold attended the hospital prior to Roberta's death and on her instructions we drafted her Will but it was unfortunate that she past [sic] away prior to the actual execution of the Will." 55 The evidence did not elucidate how it came about that the Appellant was in possession of the original certificate of title to the Blackheath property. It does not make a claim that the Appellant has a better claim to Letters of Administration by virtue of being the de facto spouse. Further, notwithstanding that the letter suggests that an unexecuted draft will is in existence, no such draft has ever been produced, and no application made for probate of it as an informal testamentary document, under section 18A Wills Probate and Administration Act. 56 When Michael and Renate made application for Letters of Administration they made an affidavit that the Deceased had no de facto partner. They did this even though that affidavit was made after they had received the letter from Edmund Teng & Associates which asserted that the Appellant was the de facto spouse of the Deceased. In cross-examination they both said they made the affidavit because they believed it was true. 57 A person called Robert Williams filed a summons seeking provision from the Deceased estate on 20 October 2004, on the basis that he had been a member of the Deceased's household and partly dependent on her, and claiming that he had lived in a de facto relationship with the Deceased for a period of time. The administrators settled that claim on the basis that Williams received a legacy of $10,000 inclusive of costs. The comparatively small size of the settlement amount is indicative that both Williams and the administrators regarded his claim as far from a strong one.

[27]

Statements by Appellant to Others Concerning His Address 58 The Appellant made numerous statements to people, including public officials, to the effect that his address was somewhere different to the Bondi flat. A file note of an officer of the Department of Immigration and Multicultural Affairs dated 29 October 1999, concerning the Appellant's migration status states: "When Mr Piras came to the counter on 20/10/99 he confirmed that he was still living at 13 Campbell Street Paddington." 59 The Appellant completed an application for a bridging visa on 20 October 1999, which showed his residential address as 13 Campbell Ave, Paddington. That form asked for correspondence to be sent to PO Box 201, North Sydney. 60 On 23 February 2000 the Department of Immigration and Multicultural Affairs wrote to the Appellant (c/- the firm of solicitors the Appellant was using in connection with a migration application) stating that he had been granted a bridging visa. On 8 March 2000 the Appellant signed a document acknowledging that the visa period was for "28 days after the Lie class action decision", and that the visa was subject to a condition that he reside at 13 Campbell Parade, Paddington 2021. In cross-examination the Appellant said that he was not living at the Campbell Parade address at that time, and indeed he had moved from there some time in the middle of 1997. He claimed to be unaware of the conditions on his visa. 61 In February 2000 the Appellant entered into a lease of an unfurnished one-bedroom unit with car space located at Lindsay Street, Neutral Bay. The Appellant renewed the lease of those premises periodically, so that the lease was still on foot at the time of his arrest in December 2002. 62 On 29 July 2001 the Appellant rented a trailer, and gave as his address 13 Campbell Avenue [sic], Paddington. His explanation in cross-examination for the address shown on the rental document was that he gave the hirer his driving licence. If that explanation is correct, it means that his driving license at that stage showed his address as being 13 Campbell Avenue, Paddington. 63 On 28 September 2001 the Appellant filled out and submitted to the RTA an application for renewal of his driver's licence. In it he stated his residential address to be 9 Premier Street, Neutral Bay. 64 On 3 October 2001 the Appellant filled out and submitted to the RTA an application for a replacement driver's licence. In that form he gave his address as being the Premier Street, Neutral Bay address. In cross-examination the Appellant said that he was not living at the Premier Street address at that time, though he had lived there previously. 65 On 27 October 2001 the Appellant applied for a bridging visa, in which he stated his "residential address" was 13 Campbell Parade, Paddington. 66 On 27 December 2001 the Appellant reported to police at Waverley that certain items had been stolen from his motor vehicle at some stage between 10:00pm on 26 December 2001 and 8:00am on 27 December 2001, when the vehicle was located at Denham Street, near the intersection of Edward Street, Bondi. He told the police on that occasion that his address was 9 Premier Street, Neutral Bay. 67 In August 2002 his address for credit card bills was PO Box 201, North Sydney. 68 On 11 December 2002 Australia Post sent the Appellant a form for renewal of a mail redirection service that he had on foot, for the redirection of mail from 9 Premier Street, Neutral Bay to PO Box 201, North Sydney. 69 On 28 January 2003 Energy Australia posted the Appellant, at PO Box 201, North Sydney, a bill for electricity at the flat at 7 Lindsay Street, Neutral Bay, for the period from 23 October 2002 to 24 January 2003. The bill was for a total of $86.98, of which $19.16 was a fee for availability of the service, and $67.82 was a fee for the actual electricity used. The average daily usage during that period was 4 kilowatt hours. Bearing in mind that 4 kilowatt hours is enough electricity to keep a 100 watt light globe burning for 40 hours, and that during the period to which the bill relates after 4 December 2002 the Appellant was in custody, there was more than sporadic or occasional use of electricity occurring at the flat prior to 4 December 2002. The bill shows that the average daily usage during the 90 days of the previous bill (ie the 90 days preceding 23 October 2002) was 3 kilowatt hours, and that the average daily usage during the same period as that of the bill, but during the previous year, was also 4 kilowatt hours. 70 In an affidavit of 29 April 2005 (after Michael Egan's affidavit of 1 April 2004 had annexed that electricity bill) the Appellant explained that that flat was one he used to live in "… before I moved in with Roberta. I kept the place rented in my name but only used it [as] a storage facility. We sometimes went and stayed there on weekends usually after we brought items back from Blackheath." 71 When cross-examined, he said that that affidavit evidence was wrong, and that he lived in Premier Street, Neutral Bay "before 2000 I think", that he and the Deceased had spent weekends at Premier Street, and that he had never lived in Lindsay Street. His affidavit of 29 April 2005 did not attempt to explain the rate at which the bill showed electricity as being used in the Lindsay Street unit. 72 His evidence, in re-examination about why he had given a false address on various occasions was: "I was always a bit afraid of my bridging visa finishing and being located. I always put an address, over the years, where I did not live." 73 There are some exceptions to this string of statements by the Appellant that he lived other than at the Bondi flat. One concerned the registration of his motor vehicle during a two-month period. The Appellant owned a white Toyota Camry station wagon. Between 1 November 2002 and 31 December 2002 it was registered in the name of the Appellant, and the RTA records showed his address in connection with that registration as being the address of the Bondi flat. On 24 February 1998 he gave the address of the Bondi flat as his address when purchasing a filter cartridge. That date is before the time he claims to have been living at the Bondi flat. In connection with that purchase he gave the vendor the telephone number of the Bondi flat as his telephone number. The evidence also includes an invoice dated 10 June 1999 from a printing company that stated: "Bill to: Expressions by Roberta Egan & Augusto Piras" and gave the address of the Bondi flat. It also stated that the order was lodged by the Deceased. 74 Another letter from an insurer dated 1 July 1999 was addressed to the Deceased and the Appellant at the address of the Bondi flat, declining to grant house and contents insurance for the Blackheath property. 75 A receipt dated 22 September 1999 related to the sale to the Appellant of a fruit and vegetable juice extractor for $39.95. It gave his address as that of the Bondi flat, and also stated that the item was to be shipped to him at the Bondi flat. 76 The Appellant issued a Local Court Statement of Liquidated Claim on 26 May 2000 seeking to recover the cost of repairs to his vehicle sustained in a collision. That court document gave the Appellant's address as that of the Bondi flat. 77 In assessing the significance of these documents showing a connection between the Appellant and the Bondi flat one would need to bear in mind the contention of the Appellant that he "always" put an address where he did not live. If that contention were correct, it may be significant that, so far as the evidence discloses, he provided the Lindsay Street, Neutral Bay address to no governmental official.

[29]

To Medical Professionals 78 On 31 August 2000 the Deceased arrived in the emergency department at St Vincent's suffering from pneumonia. The registration form gave her marital status as "S", and nominated as the person to notify "Victoria, step mum". A triage patient assessment record completed five minutes after she arrived nominated as a contact person "Augusto", and gave the telephone number of the Bondi flat. He was described in the form as "friend", but the only other alternative that the form offered was "relative". Concerning him, a box for "to be contacted" was ticked, while boxes for "present", "coming" and "aware" were not ticked. In evaluating the significance of this, it is relevant that the Deceased had a telephone answering machine at the Bondi flat, that she regularly used to screen telephone calls before answering. Thus, one could infer that she wanted the Appellant to be told of her condition, and that she understood that he could be informed by telephoning the telephone number of the Bondi flat, but one could not infer that she expected him to get the message because he would be at the flat at the time of the telephone call. Also, one could infer that at the time of her admission he was not aware that she was being admitted, and was not already coming to the hospital. 79 A history of the Deceased taken on 31 August 2000 at 9:00pm by an intern, records: " Social life lives alone in Bondi widow" 80 Another history taken on 31 August 2000 at 22:55pm by a medical registrar records "lives alone, husband died, no children". 81 The registrar also recorded, concerning her illegal drug use: "Many sorts in past now now occl heroin last used yesterday. (infrequently) only 1x last 1 week doesn't feel she would go into withdrawal here." 82 A nursing note on 4 September 2000 records "now wanting help to give up heroin". By 4 September 2000 the nursing notes record that she had become very agitated and was threatening to leave the building if she didn't get any methadone. She was prescribed some. 83 A referral note from the respiratory medicine part of St Vincent's to the psychiatry part on 1 September 2000 records "her husband died 2 yrs ago after an unpleasant final illness and she has unresolved grief issues regarding this." Another note of 7 September 2000 records "2 yrs ago husband died". 84 The first manifestation in the evidence of the cancer that eventually killed the Deceased was in mid-February 2002, when she sought investigation of a breast lump. A biopsy on 26 April 2002 identified cancer in the breast. By this time she also had a lump near her shoulder blade, which when subjected to fine needle aspiration biopsy also showed cancer. A scan showed metastases in other organs. 85 Thereafter, over a period of approximately 11 months until she died, she was in regular contact with medical professionals, sometimes in hospital, and sometimes in her home. 86 She was admitted to St Vincent's Private Hospital on 27 May 2002. This admission was for the first of what turned out to be four cycles of chemotherapy. The admission form recorded "Marital Status: single". 87 It nominated the uncle of the Deceased, Mr Geoffrey Lytton, as both the "person to notify", and also the "next of kin". Mr Lytton was a brother of the Deceased's mother. The Deceased had lived with him and his wife in Hong Kong for a three-month period in 1982. He and his wife migrated to Australia in October 1991, and lived in Sydney. 88 The admission form of 27 May 2002 also had a handwritten note on it, alongside the telephone number of the Bondi flat saying, "Augusto STAYIN (Friend)". In the part of the form that concerned discharge planning assessment, she answered a question "Do you live alone" by ticking a box marked "Yes". For the question "Do you have someone to care for you after discharge" she ticked neither the "yes" nor the "no" box. 89 The Appellant gave oral evidence that he had had a discussion with the Deceased about his name not being mentioned in the hospital documents, and that it was "always not to put my name in official things because of my worries about unstable immigration which could finish in a moment." Even if that were true, it does not explain why the Deceased said she lived alone. 90 The Appellant was cross-examined about the nomination of Mr Lytton as the person to notify. He said that he and the Deceased decided together "for a particular reason" to put Mr Lytton's name down. It was, he said, to allow Mr Lytton to be in contact with the Public Trustee. (I assume this was intended to be a reference to the Protective Commissioner - there was no evidence of the Deceased ever having had anything to do with the Public Trustee.) I fail to see how nominating Mr Lytton as next of kin for the purposes of the hospital would let him be in contact with the "Public Trustee". In fact, Mr Lytton was in contact with the Protective Office from June 2002, and the Deceased had told Mr Lytton about her cancer diagnosis in May 2002. 91 She was admitted to St Vincent's Private Hospital for the second cycle of chemotherapy on 16 June 2002. She completed the admission form in exactly the same way as I have recorded concerning her first admission, save only that she recorded no one as "next of kin". 92 On 9 July 2002 there was a referral to the community palliative care team of the South Eastern Area Health Service. The space for identifying a "carer" had a dash placed in it, as did the box for identifying the "relationship" of any such carer. Mr Lytton was nominated as next of kin, and also as the person for notification. The marital status of the Deceased was stated to be "S" (by ticking one box in a series of boxes that allowed as one of the choices "other"). That form was later added to to show that the date of first contact pursuant to that referral was 9 September 2002. 93 On 14 July 2002 the Deceased was admitted to St Vincent's Private Hospital for her third cycle of chemotherapy. The admission form was filled out in the same way as the admission form for her second cycle of chemotherapy had been filled out, save that to "Do you have someone to care for you after discharge" she ticked the "Yes" box. 94 By this time cancerous lesions had developed on her back, which proved resistant to the chemotherapy. She was referred for advice about radiation therapy to relieve the pain of those lesions. On 16 July 2002 Dr Jagavar, a radiation oncologist at St Vincent's, wrote a report concerning the proposed radiation treatment, in which he recorded, "she is currently single". 95 On 18 July 2002 a form entitled "first medical consultation data sheet" was prepared by the Sacred Heart Palliative Care Service. It recorded that the Deceased was single (from a range of choices that included "de facto"), and that she lived alone. It nominated Mr Lytton as "next of kin/contact person". In the space for "carer" the word "nil" appears. 96 On 4 August 2002 she returned to St Vincent's Private for the fourth round of chemotherapy. The admission form stated that she was single, and lived alone. It nominated Mr Lytton as the person to notify. The "next of kin" space was left blank. The question "Do you have someone to care for you after discharge" was not answered. The Deceased indicated that she currently used or had used Meals on Wheels. 97 On 9 September 2002, acting on the referral of 9 July 2002, the Deceased was visited by Ms Sutton of the Sacred Heart Community Palliative Care Service. The record of that visit includes a diagram intended to show the social relations of the affected person. The form makes provision for a drawing that shows relationships with people indicating whether each person concerned is male or female, and by special symbols indicating that the relationship with a particular person is one of marriage or divorce or neither, or that there is a relationship that has been severed by death, and whether the relationship is close, distant, or conflicting. There is provision for illustrating, by putting a circle around the appropriate symbols, who are the members of one household. The diagram drawn concerning the Deceased shows her as being the only member of the household. The only relationship of any kind depicted on it is a close relationship between the Deceased and her cat, Ninja. I would infer that the drawing was based on information provided by the Deceased to the social worker. 98 The notes of the 9 September 2002 visit record that she lives alone. The "summary of main issues and planned action" includes: "self confessed recluse: does not like people visiting. Does not have anybody to talk to, feels that everything is located [perhaps locked?] inside." 99 Social worker's notes of 6 September and 2 October 2002 refer to an unidentified "friend" as being present. Another undated note refers to "friend who leaves upon visit". 100 A social worker from St Vincent's visited the Deceased at home on 18 November 2002. The notes record: " FAMILY/SOCIAL - No discussion of family. - Male friend who was present in the unit. Doesn't live there but visits daily. Pt reports he is helpful but sometimes controlling. … - Life partner (male) RIP 4 yrs ago. Pt cared for during the last few years." 101 Part of the social worker's summary of that visit was: "Very socially isolated although mostly by choice … indicators of escapism as dominant coping strategy." 102 The social worker's notes of 28 November 2002 record another visit: "Friend Augustus was there & asking many questions on her behalf. Appeared concerned & attentive."

[30]

I infer that that is a reference to the Appellant. 103 There are several other references in the social worker's notes to a friend being present when a social worker visited, but no identification of the friend. A note of the social worker of 17 December 2002 records "friend Jono also in the house". That is probably a reference to Mr Smithson. By that time, of course, the Appellant was in gaol. 104 On 10 January 2003 the Deceased was admitted to St Vincent's for symptom control and respite care. The persons to be notified are listed on the admission form as Geoffrey Lytton and Victoria Egan. The family history taken that day records "partner died a few years ago. No children, no family". The social history taken records "lives by herself, basically a recluse". 105 A social worker who visited the Deceased on 13 January 2003 recorded: "Patient remained private on the subject of her social network however stated that she was not afraid of them, just that they drained her." 106 The nursing notes of 22 January 2003 record: "Spoke to patient regarding a visit from a friend who is currently in prison. Patient stated that she would like this to happen soon but at this stage she did not know when. Discussed the unsuitability of prison officers and a prisoner coming onto the ward and talked about the possibility of having the visit in the garden or on level 2. Patient said she would discuss the visit with ward staff in advance." 107 The social worker discussed the question with the Deceased on 22 January, and recorded, "No visit planned at this time." 108 The Deceased was discharged home on 29 January 2003. The discharge summary stated that she "lives alone" and was "single". The person nominated for notification is "Victoria" whose relationship is stated to be "parent". 109 The Deceased was readmitted to St Vincent's for pain control on 15 February 2003. The nursing notes of 17 February 2003 record that she "lives alone". 110 On 3 March 2003 she was allowed home for several days. A note dated 3 March 2003 from a doctor at St Vincent's to a welfare officer at St Vincent's, recorded "at present she agrees to a visit by 'August'" and said that the time she would be at home would be an opportune time for a visit if it could be arranged. Other hospital records from then until her death repeat again that she lives alone. The people who were to be notified were listed as Victoria, Michael and Renate. 111 A nursing note on 4 April 2003 recorded "Roberta needs to ring the Protective Commission to start organising having her will made. This is on advice from lawyer." A nursing note on 15 April 2003 records that the Deceased "decided against visit of her friend Augustus". The nursing notes also show that by this time she had serious ongoing problems with pain. Another note of 15 April 2003 records: "Roberta has decided that she doesn't want her Silverwater inmate friend to visit her this Thursday. Dr Redelman aware of decision. I have informed the Deputy Governor tel: [number] of this. He will inform Roberta's friend. They have been informed that Roberta doesn't have management of her finances. Thus, he is welcome to ring her if he still wishes to communicate with her in the future." 112 At odds with all these statements by the Deceased in the hospital records is the action of her treating oncologist, Dr Grygiel, in writing a letter on 9 December 2002. On 9 December 2002, or a few days before, Mr Smithson wrote to Dr Grygiel saying: "- Her friend AUGUST PIRASZ DOB [date] whom you have met in consultation is facing a bail application, following charges on Monday next @ 10AM. - We are asking that you given consideration to providing a letter to the Judge of the Court indicating that. 1 - Roberta has advanced terminal lung [cancer] 2 - That her life expectancy is severely limited/death imminent 3 - That she requires continual assistance to be able to continue at home - without the presence of Augusta Piraz, who lives with her and cares for her that she would be (??) unable to remain out of hospital - That to your knowledge, there are no alternative carers. (There is no-one)."

[32]

To the Protective Office 113 The records of the Protective Office relating to the Deceased were subpoenaed and tendered in evidence. One of them lists the contacts connected with the Deceased. The only contacts listed are her stepmother, Mr Lytton, a real estate agent, two doctors (including her oncologist, from which one concludes that the record is one that is maintained at least up to 2002) and two friends. One of those friends is Mr Smithson, the other is a man whose name appears nowhere else in the evidence. The Appellant's name does not appear. 114 Mr Lytton, Mr Smithson, and the Deceased's GP, informed the Protective Office in June 2002 that the Deceased had been diagnosed with terminal cancer. 115 There is a note of a conversation between an officer of the Protective Office and Mr Smithson on 12 July 2002, concerning a request by the Deceased for access to funds so that she could enjoy her life at the moment. He explained that she was contemplating going overseas. There is other evidence that around that time she was thinking of visiting Martin in the UK, but any such plans were not carried through. 116 The Deceased did not return two telephone calls from the Office, nor respond to a letter sent on 9 August 2002 asking her to contact the Office about arranging her financial affairs. When the Deceased telephoned the Protective Office on 2 September 2002 the file note records that she said that she did not contact anyone as she was feeling sick and did not want anyone coming to see her. 117 On 4 November 2002 the Deceased contacted the Office. The file note records: "She said she is not accessing any services yet. But at times she has a friend come and stay with her to help her out with different things like going to hospital etc and stays the night and the friend has to sleep on the couch as her unit is a one bedroomed unit. She asked whether we could arrange with DOH to get a 2 bed roomed unit as she has seen some empty 2 roomed ones in Block 13. Explained to her that we don't have that authority but as a special case I will speak to them and see. She said it will be good if she have a bigger place as she will need to have a carer in the future because of her illness."

[35]

Statements by Deceased to Family Members Concerning the Relationship 121 As well as Christmas visits, over the period that the Appellant alleges the de facto relationship existed the Deceased was invited to some significant family events, like birthdays, weddings or christenings and her father's funeral, and attended the majority of them. The Appellant usually did not attend. It is clear, however, that in general her relations with her stepmother and step-siblings were not particularly close, though she seems to have been close to Martin. However, Martin lived overseas from December 1998, returning only occasionally for important family events. 122 Michael Egan gives evidence that between March and August 2001 their father was in a nursing home, and on at least four occasions he drove to the Bondi flat to collect the Deceased and take her to see their father, that on each occasion he went into the flat and had a cup of tea with her, but on each occasion he did not see the Appellant there, and that generally he used the bathroom and did not see evidence of men's toiletries, towels or a toothbrush to indicate that there was any person other than the Deceased living in the apartment. On another couple of occasions he went to the Deceased's flat to take her to a family occasion, and did not see the Appellant there. He observed no overt affection between the Deceased and the Appellant. 123 According to both Michael and Renate Egan, when they went to the Deceased's apartment after her death they found a small bag of tools, two plastic bags containing men's clothing, a pair of men's shoes, and a pair of boots. Michael says that the Appellant attended the flat on 4 May 2003, but when he was asked if those items were his, he denied that they were and did not take them. A friend of Michael, Mr Frederick Collas, confirms that a man attended the flat that day, was shown those items, but denied they were his. The Appellant disputes that evidence. When the Appellant came to the flat that day he made clear that, in his view, the Egans should return to the flat all the items they had taken out of it. As Michael put it, "he accused me of stealing all their stuff. He said he wanted it all returned …". 124 Both Michael and Renate say they did not find any men's toiletries or toiletries that might be associated with a man at the flat. They did not find any mail addressed to the Appellant at the address of the flat, but found some documents (already considered above) addressed to the Appellant at different addresses. That correspondence was, quite deliberately, not made available for the Appellant to take if he wished. They found mail addressed to the Deceased at the address of the flat from Telstra, Foxtel, Optus, Commonwealth Bank, Sydney Water, and medical accounts, but no mail addressed to anyone other than the Deceased at the address of the flat. 125 So far as Michael was aware, the Appellant was a friend or acquaintance of the Deceased who occasionally assisted her. He never enquired about the basis of their relationship. 126 Renate Egan gave evidence of visiting the Deceased at the Bondi flat from when she first moved in, in 1997, until the Deceased died. She says that during the last five years of the Deceased's life she visited her on average six to eight times a year, and that on each of the occasions she visited she did not see evidence of anyone else living in the apartment with the Deceased. Once she had found out about the illness of the Deceased in mid-2002 she contacted the Deceased weekly and "often" called in on her way home from work. On those occasions she assisted the Deceased with the washing. On those occasions (ie after mid-2002) the Appellant was not there. Renate had, however, seen the Appellant at the Deceased's apartment on about two occasions. She says: "On one occasion I recall I saw the Plaintiff returning to the apartment with milk and cake. I saw him give Roberta receipts and some change." 127 Renate gives evidence that on one occasion she asked the Deceased what the relationship between her and the Appellant was, to which she replied: "He is a friend. He doesn't try to get physical with me and I appreciate that. I'm not interested in any physical relationship with him. He does things for me like he drives me around sometimes." 128 Renate also gives evidence of going in July 2001 with the Deceased and the Appellant to the Blackheath property to retrieve a motorcycle, that they had lunch together, and on that occasion the Deceased paid for the Appellant's meal. 129 Renate visited the Deceased at the hospice "almost daily". She enquired about the Appellant, to which the Deceased said: "He's left town. He turned out to be someone other than I thought. I want nothing to do with him." 130 However, Renate accepted in cross-examination that, while the Deceased had not told her very much about the Appellant, "Roberta was quite particular at keeping the two parts of her life very separate … She avoided telling us in any details at all about Mr Piras being held in remand in Silverwater. She subsequently told me he had left town when I enquired. She didn't tell us about the apartment being turned over by the police when he was arrested there. That would have been very distressing for her but she chose not to tell us …" 131 Martin gave evidence of returning to Australia in 2001 for his father's funeral, in the course of which he visited the Deceased twice. The Deceased and her three step-siblings had their photograph taken together. Martin recalls taking the Deceased back to her flat after the photograph was taken, that the Deceased had some difficulty opening the door, that she telephoned the Appellant and asked him to come around to help, that the Appellant did not have the key to the flat, and that once access had been gained the Appellant left. After that visit, Martin only returned to Australia in March 2002 for his own wedding, and in April 2003 to see the Deceased. He says that the Deceased never discussed the Appellant with him in terms of her sharing a flat with the Appellant, or going out together with the Appellant as a couple, or to any social event. 132 Victoria Egan gives evidence that on several occasions she asked the Deceased who the Appellant was, and on each occasion the Deceased said "he is just a friend". Victoria says that she never saw any displays of affection between them. 133 The Deceased told Victoria in May 2002 that she had been diagnosed with cancer. The Deceased said she had not told her before because of Martin's wedding. Victoria gives evidence of seeing the Deceased after that telephone conversation at the Bondi flat, finding the Deceased alone, and that the Deceased did not mention the name of the Appellant to her. Victoria took her from the Bondi flat to hospital for chemotherapy and radiation therapy "a few times in late 2002", and brought her back to the flat after that therapy. From January 2003 Victoria's visits became more frequent. On one occasion Victoria asked the Deceased about the plaintiff, and was told, "He has gone away. I am glad he is not here." 134 Mr Lytton and his wife returned to Australia to live in October 1991. The Deceased told Mr Lytton in May 2002, when she was visiting the Lytton home, that she was dying. He gave evidence of having met the Appellant six or seven times overall, including one occasion after the death of the Deceased. He gives this evidence: "To the best of my recollection, Roberta only spoke to me about her relationship with the plaintiff on two occasions. The first occasion was when Roberta said to me "Augusto promised Adrian he would look after me after he died." The second occasion was in approximately October 2002. I was at Roberta's flat with her and the plaintiff. The plaintiff went out to buy food. Roberta wrongly interpreted my facial expression as being quizzical of her relationship with Augusto and Roberta said "We're just friends, you know." Roberta and I did not otherwise discuss the domestic affairs …" 135 Mr Lytton says that whenever he saw the Appellant in the company of the Deceased he never observed any overt displays of affection between them, and they did not speak in terms of endearment to one another, "but then I never knew Roberta to be a demonstrably affectionate person. The plaintiff's demeanour to Roberta never struck me as anything other than that of a caring and perhaps her closest friend. I visited Roberta at her flat at Bondi on several occasions in the last year before her death. On no occasion did I notice any evidence of occupation by any person other than Roberta."

[37]

The Legal Test for Existence of a De Facto Relationship 139 Section 32G Wills Probate and Administration Act provides: "(1) In this Part: de facto relationship has the same meaning as in the Property (Relationships) Act 1984 . de facto spouse , in relation to a person dying wholly or partly intestate, means someone who: (a) was the sole partner in a de facto relationship with the person, and (b) was not a partner in any other de facto relationship." 140 The definition of "de facto relationship" that is thus imported is set out in section 4 Property (Relationships) Act 1984: "(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

[39]

Nature and Extent of Common Residence 142 In considering the evidence concerning the nature and extent of common residence, the trial judge noted the various statements that the Appellant had given about his residential address. He noted the renting by the Appellant of the Lindsay Street, Neutral Bay flat through the entire duration of the relationship. He noted the evidence from a number of friends that both the Deceased and the Appellant were observed at the Bondi flat. He noted Mr Tsolakis' evidence about what the Deceased had told him. He noted the various forms that the Deceased filled out at St Vincent's. He noted the terms in which she made her request, in November 2002, to the Protective Commissioner for a two bedroom flat, and observed at [79]: "It would be strange for her to be making this request if, as the plaintiff says, he was living full-time at the deceased's flat and caring for her. Handwritten notes by the deceased which were found in the flat after she died also reflected this desire to have a two-bedroom flat so that she could have the carer there on a full-time basis." 143 He noted the evidence of her family about their observations and what the Deceased told them about the relationship with the Appellant, but observed at [81] that the Deceased's relationship with them "was not as close as that of her friends", and that "she was somewhat distant from them and did not fully confide in them". 144 He noted the evidence given by Renate Egan, that I have set out at [136] above, and said concerning it: "Mr Smithson was a friend of the deceased and the plaintiff. He played a particularly important role in the deceased's life after the plaintiff went to gaol. He visited the plaintiff in gaol and assisted the deceased in the months prior to her death. Because of his close friendship with the plaintiff Mr Smithson is likely to have a basis for such a statement." (at [74]) 145 His conclusion on this aspect of the relationship was: "Having regard to the evidence I am not satisfied that the plaintiff lived on a full-time basis with the deceased in the period up until December 2002 when he went to gaol. I have no doubt that from time to time he stayed at the deceased's flat but the frequency with which that happened, apart from his assertions, really does not appear in the evidence. The illness of the deceased certainly required someone to give her assistance during 2002 and plaintiff did this from time to time." (at [82]) 146 The finding of not being satisfied that the plaintiff lived on a full-time basis with the Deceased in the relevant period is of central importance to whether a de facto relationship existed. It should be recalled that the list of "circumstances" in section 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in section 4(1). If two people do not "live together as a couple" they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various "circumstances" listed in section 4(2).

[45]

Reputation and Public Aspects 154 Concerning the reputation and public aspects of the relationship he noted the opinion of various witnesses that they regarded the Appellant and the Deceased as a couple. He identified those family functions of the Deceased's family that the Appellant and the Deceased attended together, and those that the Deceased attended without the Appellant. He noted Mr Tsolakis' evidence about how the Deceased had described the Appellant. He also noted the various statements in the hospital records to the effect that the Deceased lived alone. He concluded at [105]: "These comments seem to indicate that the deceased did not believe that she was in a full-time relationship with a partner." 155 He also noted that there was a wedding invitation addressed to the Deceased and the Appellant, but that: "… there is no other evidence in documents suggesting that the plaintiff and the deceased were living together as a couple and that the public knew that this was the case. Quite often in these cases there are numerous documents available which would suggest such matters. It must be remembered however that the deceased was a somewhat reclusive person with only a few friends and that to a certain degree she felt distanced from her immediate family." (at [106]) 156 His ultimate conclusion on the existence of a de facto relationship was (at [107]-[109]): "In the last part of the relationship when both parties were suffering from their own quite separate difficulties their commitment to each other tends to appear in the evidence. The plaintiff was plainly concerned about her once he was in gaol. For her part the deceased had sympathy for the plaintiff's plight and although she was quite sick at the time she made an effort to assist in his defence and make provision for him. The plaintiff's case was that he was living with the deceased on a full-time basis and that throughout the period he was in a de facto relationship. I have earlier found that he was not living with the deceased on a full-time basis and accordingly the evidence does not address factual circumstances surrounding the precise extent of the time they spent together. There is very little evidence of the plaintiff and the deceased holding themselves out to the public as living together as man and wife. There is no doubt that the plaintiff spent time with the deceased and stayed overnight from time to time. It was, after all, a sexual relationship which apparently continued without any break, so far as the evidence is concerned, over a period of a little over three years. In the circumstances, I am not satisfied that the plaintiff was living with the deceased at the date of death as her de facto partner."

[52]

Error by Contravening Browne v Dunn ? 167 Contrary to the Appellant's submission, the trial judge's acceptance of Renate Egan's evidence on this topic, when the substance of it had not been put to Mr Smithson, does not involve any breach of the rule in Browne v Dunn (1893) 6 R 67. The only principle in Browne v Dunn that is relevant to this case is one concerning the duty of counsel cross-examining a witness concerning a topic in relation to which that counsel intends to submit that that witness's evidence should not be accepted: Browne v Dunn at 70-71; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 18-22; West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [94]-[99], 24,452-24,453. The trial judge's acceptance of Renate Egan's evidence concerning the circumstances of changing the locks did not involve the judge in rejecting any of Mr Smithson's evidence. Rather, no occasion for rejecting Mr Smithson's evidence concerning that topic arose, because Mr Smithson had given no evidence at all about it. 168 If the Appellant had wanted the trial judge to reject Renate Egan's evidence on this topic, there were two courses open. One was to put to Renate Egan that her evidence on the topic was untrue. That was done, but Ms Egan rejected the suggestion that was put to her. The other was to call Mr Smithson in reply. That was not done. 169 The Appellant drew attention to the statement of Gummow, Kirby and Callinan JJ in MWJ v R [2005] HCA 74; (2005) 222 ALR 436 at [38]-[41], 448-449 including in particular their Honours' statement that the rule in Browne v Dunn "… is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit." 170 Even if their Honours were using the word "imputation" in a very wide sense, of referring to any kind of attribution of flawed or unacceptable behaviour to a person, I do not see the evidence of Renate Egan as giving rise to any imputation against Mr Smithson. Insofar as the evidence gave rise to an imputation against the Appellant, to the effect that he was not living permanently at the Bondi flat, and concealed from people in authority the address of the Neutral Bay flat that he rented, that imputation was communicated to the Appellant through the affidavit evidence that the Respondents served. 171 Further, even if I am mistaken in taking that view about the imputations that arise from the evidence, in MWJ their Honours went on to say, at [40]: "Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice." 172 In the present case, it was not submitted that there would be any circumstances in which it would be unfair to permit Mr Smithson to be recalled. Even if there had been a breach of the rule in Browne v Dunn, in the wide sense that I have, for the purposes of argument, assumed their Honours were adopting in MWJ, the Appellant had the cure in his own hands.

[53]

Error By Denial of Natural Justice? 173 The Appellant submitted (correctly) that the trial judge did not inform the parties that he proposed to attribute to the evidence of Renate Egan concerning changing of the locks the significance that he accorded it in his judgment. Had the trial judge done so, it would have been open to the Appellant to draw attention to the fact that this evidence of Renate Egan had not been contained in her affidavit, and also to draw attention to the difference between Renate's account of the conversation with Mr Smithson, and Michael's account (assuming they were both referring to the one conversation). 174 I have some doubt about whether the trial judge proceeding in this way amounts to a breach of natural justice. It has often enough been remarked that a judge is not obliged to decide a case by reference only to matters specifically adverted to in submissions, and that in deciding a case the judge is entitled to think for himself or herself: Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at [7], 317 per Dawson J; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [243], 94 per Kirby J; Klein v Minister for Education [2007] HCA 2; (2007) 232 ALR 306 at [38], 315 per Gummow, Hayne and Heydon JJ. However, if a judge proposes to rely upon a matter that has not been raised by the parties, and to rely on it in a way that is of substantial significance in the resolution of the case, or in the resolution of a substantial issue in the case, the trial judge should invite submissions concerning that matter. I have quite some doubt about whether the role played in the case by the evidence about changing the locks is sufficiently important to have needed to have been raised by the trial judge with counsel. Particularly is that so when the matters that the Appellant could have said in response (that I have listed in para [173] above) are fairly obvious points. Rather than resolve my doubt about this matter, I shall turn to consider what the consequences would be if there had been a breach of natural justice of the type complained about. 175 The Appellant has had the opportunity to put to this Court the submissions he would have wished to have advanced to the trial judge about Renate Egan's evidence about changing the locks. However, the overall view that the trial judge reached concerning Renate's evidence is one factor that may well have entered into his assessment of the reliability of the Appellant's evidence. Thus, it seems to me that probably the present is not one of those cases where a breach of natural justice at a trial can be cured by putting arguments on appeal: Manns v Kennedy [2007] NSWCA 217; (2007) 37 Fam LR 489; (2007) DFC ¶95-406 at [95] and cases there cited. 176 A question would then arise of whether this breach of natural justice is one that required there to be a new trial. The power of the Court of Appeal to order a new trial is regulated by Rule 51.53 Uniform Civil Procedure Rules. That Rule prohibits a new trial being ordered "unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned". In deciding whether it is so satisfied, the appellate court must consider the evidence for itself: Tory v Megna [2007] NSWCA 13; Channel Seven Sydney Pty Ltd v Mahommed [2008] NSWCA 21. When the appeal in question is from a judge sitting alone, there will be no substantial wrong or miscarriage of justice if the Court of Appeal is satisfied that the decision reached by the trial judge was the correct one: Nasr v State of New South Wales [2007] NSWCA 101 at [23]-[27]; Monie v Commonwealth of Australia [2007] NSWCA 230 at [226]. 177 Assessing the matter for myself, I would come to no different conclusion concerning the approach to be taken to the evidence of the Appellant to that which the trial judge came. Where the Appellant was living was a central issue in the case, fundamental to his claim to be a de facto spouse, and was a topic concerning which he had repeatedly and systematically told lies. There was a significant body of evidence coming from the hospital records, and some evidence from the Protective Office's records, of statements from the Deceased herself not consistent with the Appellant living at the Bondi flat. Even ignoring, for the purpose of this exercise, the evidence of Renate and Michael Egan, I would conclude that the Appellant was a witness whose word could be accepted only when supported by other material. In saying that, the "other material" might be evidence of other witnesses, documentary evidence, or the inherent probabilities of this situation. 178 There is some other evidence, not specifically relied upon by the trial judge, that casts doubt on the reliability of the Appellant. One example is that the Appellant had said in his affidavit evidence that he knew that the Deceased was "using casual drugs. I assisted her to get off them and by late 2001 she was completely clean of all drugs." In cross-examination he agreed that he was aware that up to early May 2002 she was still using heroin, and that the statement in his affidavit was incorrect. 179 The appeal was conducted on the basis that the police Facts Sheet prepared following the arrest of the Appellant was in evidence. That Facts Sheet had the criminal record of the Appellant as part of it. Once admitted, evidence of conviction can be used as tending to show a witness lacks credibility: Black Uhlans Incorporated v NSW Crime Commission [2002] NSWSC 1060; J D Heydon, Cross on Evidence, 7th Australian ed (2004) LexisNexis Butterworths at [19020]-[19025]. 180 The Appellant's record shows that the Appellant had never been in gaol in Australia before December 2004. He had been before a New South Wales criminal court on four separate prior occasions, two of which (in 1984 and 1985, well before the events central to this case) involved charges of stealing. The first of those was dismissed although proved, under section 556A Crimes Act 1900. The second resulted in a conviction, and a fine of $100, from which I would infer it was an offence well towards the less serious end of the spectrum. The third offence on which he was convicted, was one of failing to leave licensed premises on demand. The fourth involved a conviction in 1996 for possessing a prohibited drug. Though a conviction was recorded on that charge, the penalty imposed was a $500 bond to be of good behaviour for 12 months. Again I would infer that the circumstances of the charge put it well towards the less serious end of the available spectrum. Though convictions of this kind might assist in turning the scales in a very finely balanced assessment of a question of credit, I do not need to rely on them to reach the conclusion that I have concerning the credibility of the Appellant. 181 If one turns to evidence other than that of the Appellant, that I have set out earlier in this judgment, the preponderance of evidence favours the view that the Appellant and the Deceased were not living together as a couple. While the various friends who gave evidence formed a clear impression that they were a couple, their opportunity for observation was less than complete. While members of her family formed the opposite impression, their opportunities for observation were even less complete. The repeated statements by the Deceased to medical practitioners that she was living alone outweigh her single statement to Mr Tsolakis that they were partners, and lived together. The Appellant's lease of the flat at Lindsay Street, Neutral Bay, together with evidence arising from the electricity account, from which I infer that that flat was more than occasionally or sporadically occupied, also counts against the Appellant living as a couple with the Deceased. I am satisfied that the decision arrived at by the trial judge was correct. Thus, even if there had been a breach of natural justice concerning the way the trial judge handled the evidence relating to changing the locks, I would not order a new trial.