[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
McCOLL JA: I agree with Leeming JA.
LEEMING JA: Mr Waleed Sadiq appeals from the dismissal of proceedings brought by him and heard over three days by the primary judge (Hallen J) in 2015. His contention was that he was the de facto partner of the late Christina Olga Coombes at the time of her death. He sought orders that he was entitled to the whole of her intestate estate pursuant to s 111 of the Succession Act 2006 (NSW). Alternatively, he sought a family provision order out of the estate of the deceased pursuant to Ch 3 of the Succession Act. Having regard to the size of the estate, his appeal is as of right.
The primary judge gave elaborate reasons of 374 paragraphs promptly after the trial. His Honour did not say that he thought Mr Sadiq was deliberately giving false evidence. However, his Honour referred in uncontroversial terms to the onus which lay upon Mr Sadiq to make out his case, and the requirement that the Court feel an actual persuasion of the occurrence or existence of a fact before it could be found. His Honour identified aspects of Mr Sadiq's case which were, in his view, unconvincing, and concluded that Mr Sadiq had not discharged the onus which he bore in respect of either of the cases he had advanced.
The Court's task was and is made more difficult, both at trial and on appeal, by the fact that, although Mr Sadiq has in the past received some legal assistance, he chose to represent himself. Indeed, during a number of directions hearings before the trial, Mr Sadiq had been represented by counsel appearing pro bono. That counsel advised that his instructions had been withdrawn shortly before the hearing. Nevertheless, he attended the hearing and confirmed his willingness to appear for Mr Sadiq, pro bono, at the hearing. Mr Sadiq chose to appear for himself, as is his right. He conceded during the hearing on the appeal that his former counsel had been a "very very good man" and that he had made a "big mistake" in declining his services.
The notice of appeal has been drafted by Mr Sadiq. It is entirely unilluminating. It identifies the following grounds of appeal:
"Most of the case was based on spurious evidence, possibly developer-based.
Some of the evidence should have found, and some ignored."
In addition to the oral submissions made by Mr Sadiq when the appeal was heard, Mr Sadiq has filed a series of documents in support of his appeal: a submission of 17 pages dated 21 October 2015, three affidavits (sworn on 21 October 2015 and 11 and 19 February 2016), and a chronology of 29 pages. There is nothing on the face of any of the documents to suggest that Mr Sadiq has had the advantage of legal assistance. Each of those five documents contains portions which challenge the fact finding process undertaken by the primary judge, although it should be said at the outset that, in very large measure, Mr Sadiq has reiterated factual incidents of the relationship he claimed he enjoyed with the deceased which he made at trial and which were not accepted. Some aspects of each of those documents criticise the evidence given in the respondent's case, and the reasoning of the primary judge.
In the circumstances, the appropriate course to take is to deal with the substance of the matter, disregarding the substantial formal defects, and attempting as best as I can to grapple with the errors to which Mr Sadiq has pointed. I have treated each of the affidavits and the chronology as a submission in support of the appeal.
[3]
Uncontroversial factual background
The starting point is that the primary judge made the following uncontroversial findings, none of which were challenged on appeal.
The deceased was born in 1938 in the United Kingdom, and arrived in Australia with her mother, sister and brother in March 1947. The marriage of the parents of the deceased had been dissolved in February 1947.
The parents of the deceased died in 1968 and 1981. Her brother, now known as John Simpson, is alive. Her sister died in March 2007, leaving two daughters and a son who are alive.
The deceased married Kenneth Roy Coombes in 1959. The marriage was dissolved in November 1975, without issue. Mr Coombes died in 2001.
The sole significant assets of the deceased's estate are real property in Paddington, valued at $700,000, and money in a bank account (of some $78,000). At the time of her death, the sole income of the deceased was a pension. There was nothing to suggest that she ever disclosed to Centrelink that she was in a de facto relationship.
For many years, the deceased had lived alone, in her Paddington house. She was estranged from her family, although her brother lived nearby.
In April 2013, the deceased was taken to hospital and diagnosed as having suffered a stroke. From hospital she was moved to respite care, where she died on 13 June 2013.
As will be explained in more detail later, the deceased's house at the time of her death was in a derelict and uninhabitable condition. It had been substantially in that condition for a considerable period before her death.
[4]
Mr Sadiq's case at trial
Mr Sadiq's case was principally based upon his own testimonial evidence, to which was added the supporting evidence of Ms Gail Fitzmaurice and two documents: one from Centrelink, the other from St George Bank.
[5]
(a) Mr Sadiq's evidence
Mr Sadiq was born in Baghdad, where he lived until aged 23. He travelled to Athens in 1979, and migrated to Australia, with the help of the Red Cross, in June 1980. After originally staying in Melbourne, he travelled to Sydney and claimed that he first met the deceased in around 1996. He said that between March 1996 and May 1999, he lived with the deceased and had an intimate relationship with her. During that time, he said that she gave him money to repay his debts. The primary judge summarised the evidence he gave, in a manner of which no significant complaint was made on appeal, as follows at [72]-[75]:
"The Plaintiff gave evidence of what the deceased had told him, namely that her mother's name was Olga (meaning 'holy'); that she married Kenneth at the age of 21 years; that she had come to Australia, from London, at the age of '9 years… with her parent and sister and brother'; that she was older than her sister and brother; that she had bought the Paddington property when she was 38 years of age; she had been a teacher of sculpture and painting at North Sydney college for boys; that she had started selling her paintings at the Holdsworth Gallery in Woollahra and the Goodhope Gallery in Paddington in the late 1960's.
The Plaintiff gave evidence also of what he did for the deceased, including shopping for her and buying food for her cats, cooking, washing and raking leaves in the back yard. He also says that he painted the window frames, and door frames, put a plaster interior coat on the house and painted it, and with the deceased's assistance, he put up wallpaper in the lunch room and an upstairs room, and replaced the vinyl in the kitchen. (In cross-examination, he acknowledged that this was early in the relationship.)
The Plaintiff also gave evidence of the ways in which the deceased assisted him, including, that she helped him financially to pay his rent at times; that she provided other money to assist him to pay some debts; and that she permitted him to live with her at various times before, and then on a full time basis. He also said that she paid him $200 per fortnight 'on a regular basis for a period of 14 years since 1999'. He also asserted that the deceased would otherwise support him, 'because I was unable to support myself from my own resources'.
The Plaintiff described the activities that he and the deceased engaged in together, including attendances at the Captain Cook Hotel, at Moore Park; attendances at the Chauvel Cinema, and the Verona Cinema, at Paddington; they would go to the Paddington RSL; and to 'Argentina tango classes…in Darlinghurst'. He also said that they would walk 'around the Paddington area, holding hands, hugging, kissing, greeting people passing by and socialising [with] them'. He stated that the difference in their ages did not matter, the deceased stating that 'age was only numbers'. (At the date of the deceased's death, the deceased was almost 75 years and the Plaintiff was 57 or 58.)"
Mr Sadiq reiterated much of this in his written and oral submissions on appeal. He also added further factual matters, including details of paintings which were said to have been in the property, and of the pigeons he said he kept at the property. On a number of occasions, it was necessary to remind Mr Sadiq that his task was to make submissions as to why the primary judge had come to the wrong conclusion, and that he could not give evidence from the Bar table of the relationship he claimed to have enjoyed with the deceased.
[6]
(b) The evidence of Ms Fitzmaurice
The following is drawn from [88]-[93] of the reasons of the primary judge. Although there was scant documentary evidence to support Mr Sadiq's claim, it was supported by the testimonial evidence of Ms Fitzmaurice, a Welfare Worker at a lodge run by the Wesley Mission providing accommodation and support for homeless persons. She stated that she first had contact with the deceased "approximately 15 years ago", when the deceased was outside the front door of her premises at Paddington "looking at pigeons whilst she was feeding her cats", and that she had met her from time to time when walking around the Paddington neighbourhood. She said that she first had contact with Mr Sadiq "probably 4-5 years after I made contact with Christine at her property" and later on met him while he was walking with the deceased. She stated that on the occasions she saw them together, they would be arm in arm or holding hands, from which she concluded that they were in some form of relationship.
Ms Fitzmaurice said that she saw the pair at the local supermarkets, or in a sandwich shop, or together at a coffee shop, or eating at the Captain Cook Hotel. She said that they would be sitting close together on these occasions. She did not ever see them talking to any other person.
Ms Fitzmaurice also said that she saw Mr Sadiq at the supermarket when he told her that the deceased was in hospital and that he was buying things for them and for the cats. Subsequently, he told her that the deceased had died. She described him, at that time, as being very emotional and being hardly able to speak.
Ms Fitzmaurice was candid in the limitations of what she could say. She said that she "cannot say I ever observed [the Plaintiff] at Christine's house." She said that she only "saw [the deceased] a few times at the front of her house early on (15 or so years ago)". Even so, she said that she considered Mr Sadiq and the deceased to be a couple and regarded them as being "extremely close".
Ms Fitzmaurice annexed a diary note of a conversation with an officer from the respondent on 25 July 2014. The diary note was in the following terms:
"Wanted to know:-
How many times I saw them (Wallid & Christina) together
I said depends, could be once a week, or 3 times in a fortnight, or not for weeks or months and then I might see them 2-3 times in quick succession.
He asked when they became a couple
I said I didn't know - they were friends, then they were a couple
He asked how I knew they were a couple
I explained they shared an intimacy that you could see, they were very affectionate, holding hands, whispering and sharing laughs and always together.
He asked me where they lived and how often I went to the house
I said I knew where they lived in [the Street], but that I had never been inside the house
He asked how long they had been a couple
I said I didn't know - could be 10 years, could be 5, or 7 years, could be 14 years
I explained they were acquaintances, not in my close circle of friends - and that I often saw them together having coffee at local Cafes or at our local pub (Captain Cook) where the former owners served the local community nice and cheap meals (and you often met everyone in the neighbourhood there)
I explained that I was working and travelling and did not know Christina had passed away and was already dead and buried when I found this out.
I mentioned that I had been aware over the years that Christina was not well and spent times in Hospital, when I would encounter Wallid at Duffys doing the shopping or on his way to or from visiting her. He always spoke to me about her other true loves - her cats (as I am a cat-person and that is how I originally met and got talking and friendly to Christina)
I mentioned that I knew Christina before I got to know Wallid. I knew they were friends and she taught him improvements to his English - he was always in the background, but I didn't know him as well as I knew Christina as he was a very polite man, but not a conversationalist."
Ms Fitzmaurice accepted during cross-examination that she had never been inside the house, and that she felt that she was "advocating for Christina and for Mr Sadiq".
[7]
(c) Documentary evidence
Mr Sadiq pointed to two documents said to be supportive of his claim. The first was a letter from Centrelink which demonstrated that, according to Centrelink's records, he had been living at the deceased's Paddington address between 1 October 2012 and 20 January 2013. Before that time, he had a variety of addresses in Petersham, Enmore, Summer Hill, Croydon and Chester Hill. After that time, Centrelink recorded his address as "NFA" (no fixed address).
The second was a letter dated 16 July 2014 from the Ashfield branch of the St George Bank which stated that his home address was the Paddington property of the deceased, and that he had been a client of the Bank since December 2012.
[8]
The respondent's case at trial
The respondent's case at trial was that there had been no relationship between Mr Sadiq and the deceased. Its case was primarily based upon the evidence of neighbours and social workers, and the state of the house at the time of the deceased's death.
Photographs taken at the time of her death show the interior of the Paddington house to be in very poor repair. The photographs corroborate the evidence of an officer of the respondent, who attended the property a week after the deceased's death (which was around 10 weeks after she had suffered a stroke). The officer's evidence was to the effect that there was no electricity service on the property, which was in derelict and uninhabitable condition. The officer and her colleague inspected the property using torches. One of the property's two bedrooms was hoarded with old household contents, the other contained a double bed. There was only female clothing and female toiletries in the rooms. All paperwork and documents located in the rooms pertained to the deceased and there was no reference to any other person. The officer was cross-examined, very briefly, by Mr Sadiq but not so as to cast any doubt upon these matters. That cross-examination stands in contrast to the approach taken by Mr Sadiq to the evidence given by witnesses called by the respondent who gave evidence of the deceased's lifestyle.
One of the deceased's near neighbours, Ms Wakefield, who had lived on the same street for 72 years, had known the deceased for around 40 years. She was cross-examined by Mr Sadiq. She said that the deceased had lived alone, and when asked how she knew that, said:
"Because she used to come up to my place every day. I would read her mail for her. I would do things for her. I would tell her what mail had to be done and ring up for her if she needed someone to ring up, give her food, so I saw her all the time."
Mr Sadiq then cross-examined Ms Wakefield as follows:
"Q ... [A]ll your evidence here today and your statement is nonsense, invented nonsense, had no sense, had no basis?
A. It is not nonsense because you did not even know that she died. You come up to me and asked me what had happened to Chris and I told him - I told you that Chris had died and she had been buried and if you needed to know any more you should go to Public Trustee. Then you come back again and you ask me what was happening to the furniture in her house, what did I do with the furniture in Chris' house and I said I didn't know, go to Public Trustee again and then you also asked me could I write you a letter to say that you lived there with Chris. You knocked on my door at 8.30 of a night, during the day, all these times so it is not nonsense.
Q. That is your made up story?
A. No, I don't make up stories. I don't make up stories."
Another neighbour, Mr Sciascia, who had lived two houses away for the previous nine years, said that he had assisted the deceased repair her television, and had spoken to her regularly. When asked in cross-examination how often he had spoken with the deceased, he said:
"Chris would come, and I would see Chris at least five times a week, and I would order her food, buy her food, and she - order her pizza, read her mail. She would knock on my door because she was lonely and she would often just want to have a chat to someone. Sometimes I would see her three or four times a day, sometimes I would only see her two times a week, but on average I would say it would be at least five times a week I would see her."
Mr Sadiq put to him that that was ridiculous, that his evidence was nonsense, and ultimately:
"Q. Have you got any ulterior motive to remove the property from Mr Sadiq?
A. Mr Sadiq, if we - if I really, truly thought you lived there, I would tell the truth and tell this Court that I thought you lived there. However, from my witness and from what I have seen, I cannot possibly imagine that you lived there."
There was also evidence from a social worker, Mr Rauwendaal, who had interviewed the deceased on 14 May in hospital, and had reviewed previous Council reports which indicated that the "house is derelict, structurally unsound, squalid, malodorous, with a pigeon population". When he opened a drawer, searching for a will, he found a dead cat "and the smell was overpowering and made me nauseous". He said that:
"I saw no evidence of any attempt to maintain the property. Quite the contrary, it looked to me that no work had been done in or on the terrace for many years."
He too was cross-examined on the basis that "your statement, what you've done is just all made up, you just made a statement to remove us from the property, or both of us" and he was in collusion with the legal community. He denied all this.
Another social worker, Ms Begg, had interviewed the deceased in her home in July 2009 and prepared a report to the Guardianship Tribunal. The report states:
"Ms Coombes' situation is one of severe squalor, the residence is in an uninhabitable state and unsanitary condition. The front door access is obstructed because of the volume of above waste [sic] height clutter from excessive hoarding; Items appear to be no longer in working order, or in reasonable condition to keep. The floor space left is inaccessible and there is no clear passage through. The premise is unbearably malodorous, dark, dirty and dusty covered in cobwebs and cat hair. The upstairs balcony houses several pigeons and is covered in droppings. It is apparent that the premise is infested with fleas from the cats, lice from the pigeons, cockroaches and rats. Protective clothing would be required for anyone entering the premise. This situation presents occupational health and safety issues for workers. Cleaning to return the premise to a habitable standard may not be possible and Ms Coombes does not wish to receive help.
…
The condition of cats is also of concern as veterinary attention could not be
afforded.
Ms Coombes reports that she has no hot water and that her toilet only works 'manually', requiring water to be poured into it.
There is no washing machine or fridge. There is no phone. She reports that she does have electricity, lights and a working stove.
There are several holes in the roof which rain comes through and other structural damage and defects. Ms Coombes states that she has been unable to afford necessary maintenance. She is in need of financial counselling, support and material assistance.
Neighbours have made formal complaints about the smell of sewage possibly from ruptured sewage pipes caused by an overgrown tree which has taken over the entire backyard and extends into the back section of the premise. There are also broken down pipes and problems with storm water drainage.
The premise has no smoke detectors and old electrical wiring ... is also a concern. The state of the premise presents a fire hazard and safety risk to Ms Coombes and adjoining neighbours."
Ms Begg was cross-examined by Mr Sadiq. She said that "[t]he situation was one of the most severe cases of personal self-neglect and squalor that I had come across. It was very difficult to sit there for an hour and a half because the premise was so [odorous]." Mr Sadiq put to her that her report had been made up to remove the people in the property. She denied this.
I have not, in the above, summarised the entirety of the case advanced by the respondent, but it is sufficient for the purposes of explaining the nature of the conflicting evidence and the way in which those conflicts were resolved by the primary judge. Further aspects of the respondent's case will emerge from the extracts from the reasons of the primary judge reproduced below.
[9]
Reasoning of the primary judge
The primary judge distinguished between Mr Sadiq's claims that he lived in the Paddington house between January 1996 and May 1999, and the balance of the alleged de facto relationship between Mr Sadiq and the deceased. In relation to the first period of time, his Honour reasoned as follows at [137]-[138]:
"It is extremely difficult to accept the Plaintiff's assertion when there is simply no other evidence, oral or documentary, to support it; where a document upon which the Plaintiff relies, suggests something that is contrary, and where a neighbour, who was friendly with the deceased, and who had known her for many years, including the period referred to by the Plaintiff, categorically denies the proposition that the Plaintiff ever lived with the deceased. That his evidence lacks detail does not assist.
Accordingly, I cannot be satisfied that the Plaintiff lived with the deceased, in a de facto relationship, in the period between 1996 and 1999. In fact, I cannot be satisfied that he even knew the deceased during this period."
For the subsequent lengthy period of time during which the relationship was said to have been maintained, his Honour had regard to the following matters. First, attendances by Mr Sadiq upon a general practitioner or dentist or pharmacist to have prescriptions filled were all in suburbs other than Paddington and its immediate environs. The primary judge said at [140]:
"One might have thought that, at least in the 13 year period that the Plaintiff said he was living, for the most part, with the deceased in the Paddington property, there would be some objective evidence from this source of him having attended a doctor, a dentist, or a pharmacy in the local environs."
Secondly, the primary judge did not regard the relatively short period of time from October 2012 when Mr Sadiq lived in the Paddington property as voluntary. Nor did it result from a decision made by Mr Sadiq and the deceased seeking to develop their relationship. Rather, it was a consequence of Mr Sadiq being evicted from his Marrickville property.
Thirdly, the primary judge was sceptical of the fact that Mr Sadiq had been living in Paddington in December 2012, when he had opened a bank account at Ashfield at that time.
Fourthly, his Honour's findings were supported by detailed credit findings at [145]. That paragraph warrants being reproduced in full, notwithstanding its very substantial length. The passage shows both the magnitude of the difficulties standing in the way of an acceptance of Mr Sadiq's case, as well as the care with which the primary judge considered the conflicting evidence before him:
"In the following particular respects, I do not find the Plaintiff's evidence at all convincing and there is other evidence that does not support the conclusion that the Plaintiff and the deceased were in a continuous de facto relationship for two years immediately before her death:
(a) He stated that between 1996 and 2012, he was not in a very sound financial position. He said that he had not worked for many years and that he was struggling financially. He said that it was these matters which had led to the deceased providing him with financial assistance. Even if I accept this evidence as true, it is hard to believe that, throughout the period after 1999, he would rent accommodation, to be used as 'a postal address', or to be used 'one or two nights per week', with the balance of the time being spent living with the deceased at the Paddington property. He could not satisfactorily explain (see, T119-T120) why he would spend a part of what little money he had available, on accommodation, if the relationship was as he alleged with the deceased and when he was spending so much time with her.
The suggestion that he rented accommodation in order to obtain more by way of pension benefits, if true, does not do him any credit. It involves the deception of Centrelink for many years. He only provided some vague information about how much of the additional pension income he would spend on rent. I do not find his explanation for renting other premises at all persuasive, and, in my view, was inconsistent with the tenor of his case.
(b) The evidence of the Plaintiff is that all of the maintenance that he asserted that he had carried out on the Paddington property occurred in the 1990's, during what he described as 'the first two or three years' of the relationship. He does not give any evidence of any steps that he took to try to maintain the Paddington property thereafter. In this regard, I note that he stated that he was unemployed throughout the period that he says he lived there.
(c) The Plaintiff said that the description of the Paddington property as 'derelict and squalid', the meaning of which words he said he understood, was inaccurate. He also said that the deceased and he liked the condition of the Paddington property. As he put it, (at T118.39-T118.40): 'We leave the dust and spider webs. That's the way we live and we believe that we own the house, not the house owns us'. Even with that philosophy, it is hard to imagine two persons, one of whom does not appear to have a relevant medical condition to explain it, living in the manner that the photographs and the other evidence depict.
(d) The description of the Paddington property, given by a number of different witnesses is essentially the same. Despite the denial of the Plaintiff, the photographs, comprising Ex. 3 and Ex. 6, corroborate the description given. It is difficult to accept that the Plaintiff, who does not seem to suffer any cognitive deficiency, could live in such squalor, allow the deceased to live in that way, and not, apparently, take any steps to clean up, or to assist the deceased in trying to clean up, even a part of the Paddington property.
(e) The Plaintiff did not deny the evidence of Mr Rauwendaal that after the deceased's admission to St Vincent's Hospital, when he visited the Paddington property, there was a dead cat found by him in a drawer. The Plaintiff explained that he and the deceased realised an elderly cat was missing and that, perhaps, it was that cat that had been found in the drawer. He said: 'Many cats there, anything can happen. There's a lot of cats': T70.04.
There is no evidence of any attempt by the Plaintiff to ameliorate the conditions in which the deceased (and if his evidence were accepted) and he, were living. The suggestion made by the Plaintiff in an affidavit that it was 'basic tidy' is inconsistent with what is depicted in the photographs and the evidence of visitors to the Paddington property.
(f) The Plaintiff says that he moved out of the Paddington property on 15 June 2013, following the death of the deceased. He said that he did not have many clothes, or other personal effects, and that his clothes were packed in a 'trolley case'. He did not pack until 15 June 2013: T42.49-T43.38.
However, it is to be remembered that Mr Rauwendaal had inspected the Paddington property prior to the death of the deceased and had found no evidence of anyone else living there. One might have expected some evidence of the Plaintiff's occupation, if he had lived there as long as he had said.
Mr Sciascia, who went into the Paddington property twice, in 2008 and 2010, never observed any signs of another person living there.
(g) The Plaintiff gave evidence that he did not know the name of any of the deceased's neighbours, aside from a person called 'Monica', who he later agreed could have been 'Martina'. He said that he had not seen the neighbours often and that he did not communicate with any of them. He said that he did not socialise much with them and that he and the deceased were very quiet. He denied having provided the name of any of the neighbours to his then lawyers Armstrong Legal.
(h) Each of the three neighbours, who gave evidence and were cross-examined, was adamant that she, or he, did not ever see the Plaintiff coming from, or going into, the Paddington property, other than on the occasions that he was selling her fruit, or as one described it, 'junk'. None, for example, had ever seen him taking the garbage bins out, a task that he said he would do, most of the time 'every Thursday morning' in 2012 and in 2013, before he moved out of the property: T48.24-T48.50.
Furthermore, none saw him coming, or going, from the Paddington property, at any time in the period that the deceased was in the Hospital, or in the Nursing Home, in May and June 2013, a period when he said he was living in the Paddington property alone. Nor did Ms Sommer say she had heard him in the house during that period, her house being directly adjacent to the deceased's property and sharing the same wall. Had she done so, considering her other evidence, it is likely that she would have confronted him.
His only explanation given during the submissions (T208) was that he was a very quiet person; that he did not mix with others; and that, with the deceased, keeping to themselves, was their way of life.
(i) There is no evidence of the Plaintiff meeting any employees of the Council, or from ACAT, who, he accepted, had attended the Paddington property. He said the deceased told him about their visits. It is to be noted that there were a number of visits over the years by different employees, none of whom the Plaintiff identified as a person who had seen him at the premises. Nor did the deceased mention having a relationship with the Plaintiff to any person.
(j) The Plaintiff said the deceased told him about the application to the Guardianship Tribunal, but told him not to worry as she 'will do the job': T77.46-T78.10. Again, there is no suggestion that he involved himself, in any way, in the application, even to assist her in opposing it.
(k) Some of the following evidence belies the Plaintiff's claim of a strong emotional involvement with the deceased:
(i) The Plaintiff gave evidence that on the Sunday that the deceased was admitted to Hospital, he had found her slurring her words and being unable to move the left side of her body. He said that following his request to a neighbour, who was Ms Sommer, he did not stay with the deceased until the ambulance arrived, or even ask Ms Sommer to stay with the deceased, but rather, he made, not one trip, but two trips, to a local chemist to buy 'Panadol' for her. (On the first trip, he said he had forgotten his money and had to return to collect it.)
(ii) When I enquired about this, his explanation for not staying with the deceased was (T115.38-T116.26):
'Q. …Whilst you were away no‑one was with the deceased?
A. No‑one was with the deceased, yes that's right.
Q. Well could you explain to me why in circumstances where you were scared and distracted because of the condition of the deceased you left her alone?
A. I tried to do something to help her and that's what I, I run to the neighbour and told her‑‑
Q. I understand that but‑‑
A. ‑‑and after go to the chemist to get something‑‑
Q. After the neighbour told you that she was going to call the police or then an ambulance, you left the deceased alone whilst you went to the chemist?
A. Yes.
Q. Why did you do that?
A. Because I tried to do something to help her. I didn't know what's going wrong with her because she mumbling and she can't talk much.
Q. But when you went to the chemist, did you know that an ambulance had been called?
A. Because I did not ‑ I was expecting to do something before the chemist ‑ sorry, before the ambulance and, sorry about that, and the person who I talk to her is unfriendly.
Q. But she told you she was going to call the ambulance and you found out later that an ambulance had come. Why didn't you wait to see if the ambulance arrived rather than leaving the deceased alone?
A. I was not expecting she going to do that.
Q. You weren't expecting‑‑
A. To do that, to call the ambulance and I just went to do something, some medicine just to do something before, then I go back and see what I can do, I might find someone else to call the ambulance or to call‑‑
Q. But if you thought that the neighbour would not call an ambulance, why didn't you go to a telephone box or the chemist and call an ambulance yourself?
A. Yeah I ‑ I just don't, I got no idea what to do. I was very, very distracted.'
He gave evidence that the two trips to, and from, the chemist, had taken him about one hour to complete. The evidence of Ms Sommer, which I accept, was that it had taken about two hours to have the deceased removed from her home and placed in an ambulance.
(iii) By the time the Plaintiff returned from the chemist, he said that the deceased had been taken to Hospital. After being told by the neighbour that the deceased had been taken by ambulance, the Plaintiff did not attend at the Hospital. His explanation for not doing so was as follows (at T116.50-T117.24):
'Q. She told you that an ambulance had come?
A. Yes.
Q. And taken the deceased?
A. Yes.
Q. What did you do after that?
A. I didn't ‑ I stayed home and I didn't‑‑
Q. Why?
A. I don't know what happen and she just, the feeling is something with my feeling, I don't know why, something wrong with me.
Q. But wouldn't it have been a normal reaction to immediately go to the hospital to find out how the person you said was your soul mate was feeling?
A. Yes, that's right, yes. I, I was ‑ in my opinion is, my thinking is in good hands in the hospital.
Q. But didn't you want to find out what had happened to her?
A. Yes I, I, I hear that she has got the stroke.
Q. But didn't you want to find out whether she survived or whether she died or what had happened?
A. Yeah, it is ‑ it is something wrong with my, the way I did ‑ I'm very, very ‑ that's why I, you know, kicking myself what I have done. That's what I did.'
In fact, on the Plaintiff's own evidence, he did not go to visit her, at all, for over two weeks following her admission to the Hospital (using the dates that he gave which were clearly wrong). In fact, he never visited her at all whilst she was in the Hospital: T66.32. His only explanation for not doing so, initially, was that he did not like the smell of the Hospital.
Then, in answer to questions from the Bench, he said (at T117.35-T118.19):
'Q. … you did not go to the hospital to find out what had happened to the deceased for at least two weeks?
A. Yes.
Q. Then you found out she was no longer in hospital but she had gone to the nursing home. Is that the position?
A. Yes, that's right.
Q. Then you visited her once at the nursing home?
A. Yes.
Q. And did not go back again for almost two weeks?
A. She told me not, not ‑ look after yourself, not to worry about. I take ‑ I look after myself and you stay at home and I will get better.
Q. But you say that she was your soul mate?
A. Yes.
Q. I am just trying to understand‑‑
A. It is my soul mate.
Q. ‑‑why you didn't go back more than twice?
A. Yeah, I was expecting in very good hands is going to be ‑ I'm confident where she was is ‑ they are in very good care, but I don't know what ‑ I was very, very stressed and when I heard that what happened.
Q. But according to your evidence you were the only person that Ms Coombes had a relationship with?
A. Yes.
Q. Well, did you not think that she might be lonely in the hospital or she might need someone to talk to or hold her hand or anything like that?
A. Yes, I did visit her, yes, I did visit her once but it is ‑ my ‑ what I have done, that's why I'm really, I'm ‑ it is, I make big ‑ that's what I have done. It is not right.'
(iv) The Plaintiff did not state in his affidavits, or otherwise, that he had contacted the Hospital, by telephone, at any time during the period she was a patient there to find out about the condition of the deceased. Nor, so it would seem, did he endeavour to ascertain whether he could speak to her by telephone.
(v) The Plaintiff did not attend the deceased's funeral.
(l) The Plaintiff did not give evidence of having a key to the Paddington property. Had he been living there for as long as he asserted, one would have thought that he would give evidence about that fact and, perhaps, even have been able to produce the key.
(m) There are no records produced of the deceased's perception of the relationship in the deceased's own hand. There were no letters, cards or other indicia of affection, let alone a more substantial relationship. (The card allegedly given by the Plaintiff to the deceased was not produced either.) Nor is there any evidence of exchanging even small gifts with each other.
(n) There is no evidence that the deceased mentioned the Plaintiff to any person or that he did so (other than to Ms Fitzmaurice).
(o) Although the Plaintiff asserted that he had a sexual relationship with the deceased, he did not mention in his affidavits that he had observed that she had undergone a mastectomy. (Both Mr Rauwendaal and Ms Begg, in his and her report, noted that the deceased had referred to having undergone a mastectomy for breast cancer. Mr Rauwendaal described it as being a mastectomy of the right breast and Ms Begg stated that it had occurred in about 1975.)"
Fifthly, the primary judge also relied upon the conflicting testimonial evidence of Mr Sadiq and Ms Wakefield, whose evidence is summarised above. His Honour's reasoning was as follows at [153]-[156]:
"There is yet another part of the Plaintiff's evidence, which, in my view, satisfies me that I should not accept his evidence about living with the deceased, at least in May 2013. Ms Wakefield's evidence of the conversations that she had with the Plaintiff following the death of the deceased is significant. The Plaintiff denied each conversation saying that 'it never happened'. In cross-examination, he put to Ms Wakefield that he had never seen her before, and that she was making each conversation up. He had given the same answer at the start of his evidence: T38.39-T39.17.
Having seen and heard Ms Wakefield, generally, I accept her evidence. It would have been a very odd conversation for Ms Wakefield to have invented. I can simply find no motive for her having invented the conversation as she has no pecuniary, or other, interest, in the proceedings. Other than bristling at the suggestion that the Plaintiff had never seen her before, she gave her evidence calmly and politely, and there was no demonstration of malice towards the Plaintiff.
It was even put to her by the Plaintiff that she held animosity towards him and that she had colluded with legal representatives (who were not identified) that would give rise to her desire to harm him financially. Needless to say, Ms Wakefield denied these suggestions, denials that I have no hesitation in accepting.
Furthermore, other evidence of the Plaintiff made it clear that he had met Ms Wakefield before the hearing and that he knew her as a neighbour of the deceased."
However, the primary judge did not dismiss the entirety of Mr Sadiq's evidence. To the contrary, his Honour rejected part of the respondent's case. His Honour accepted that Mr Sadiq had some familiarity with the Paddington terrace, leading to the conclusion that the deceased permitted him entry on occasions: at [179]. He accepted that Mr Sadiq might have been present after the deceased had suffered a stroke in May 2013: at [181]. Most importantly, his Honour rejected the respondent's case that Mr Sadiq had had only minimal contact with the deceased, at her front door, at [182]-[184]:
"Additionally, and perhaps more importantly, the part of the Defendant's case, that the Plaintiff was a complete stranger to the deceased, and a person who only had minimal contact with her, essentially at her front door, also cannot be accepted.
There were parts of the Plaintiff's evidence that demonstrate that there must have been some relationship between the Plaintiff and the deceased. In this regard, I note the Plaintiff's evidence, in his affidavits, going to the background of the deceased which broadly accords with the result of the investigations made by the Defendant. In particular, in his affidavit sworn 7 August 2014, the Plaintiff wrote that the deceased told him:
(a) Her mother's name was Olga and that her father was 6 or 7 years older than her mother. (That her mother's name was Olga is undoubtedly correct. Her father was 6 years older than her mother.)
(b) She had come from London to Australia at the age of 9 years. (The relevant documents reveal that she left London at the age of 8 years and was almost 9 years old when she arrived.)
(c) She had come with her parent, her sister and her brother and that she was older than each of her siblings. (The relevant documents confirm each of these assertions.)
(d) The deceased had been married to Kenneth at the age of 21. (The Marriage Certificate reveals that she was aged 22 years.)
(e) She had married at about the same age as her mother had been married.
(f) That she had lived in Moore Park Road, Paddington. (The Marriage Certificate reveals that Kenneth's address, at the date of their marriage, was Moore Park Road, Paddington.)
(g) She had been a teacher for sculpture and painting. (She was described by the NSW T & G in its 'New Estate Report' as a 'retired art teacher'.)
Counsel for the Defendant was not able to explain how the Plaintiff would have known about these matters, at the time he swore his affidavit if he had not been told of them by the deceased and if the relationship of the Plaintiff and the deceased was as asserted by each of the neighbours. Perhaps, it can be explained by the fact that a person may simply present to the outside world in a particular way."
Ultimately, the primary judge was not satisfied that Mr Sadiq had been in a de facto relationship with the deceased, or had lived with the deceased. His Honour's reasons were as follows at [356]-[369]:
"Having considered all of the evidence as well as the submissions, I am unable to conclude that the Plaintiff and the deceased lived in a de facto relationship at any time. I am also unable to conclude that the Plaintiff lived with the deceased in either of the earlier periods that he asserted. I have identified the evidence that leads me to conclude that he did not do so.
Even if I were to accept the contents of the Centrelink document as proving the truth of the assertion that he was residing in the Paddington property in the period between October 2012 and January 2013, the period specified is not 'a continuous period of two years prior to the death of the deceased'. Nor is January 2013, the date of death of the deceased. (There is simply nothing in the evidence, other than the Plaintiff's assertions, to suggest that he lived with the deceased prior to that time, and from 2009 and because of the evidence I do not find that he was living with the deceased in May 2013).
Also, as stated earlier, even if the deceased provided to the Plaintiff, on one or more occasions, financial or other assistance such as accommodation to alleviate hardship, that does not mean that they were in a de facto relationship.
In any event, the court must weigh the information in the Centrelink document, which could only have been provided to Centrelink by the Plaintiff, with what was noted in contemporaneous medical records, relating to the deceased in 2009 and in 2013, which statements, in my view, are likely to have been provided to the author of each by the deceased.
That the Plaintiff does not appear to have disclosed any de facto relationship with the deceased to Centrelink at any time is also relevant, and, perhaps, indicative of his knowledge that any relationship was not de facto in nature. He would have had many opportunities to disclose the information.
Furthermore, the information about the criteria relied upon by the Plaintiff are dependent almost entirely upon my acceptance of the Plaintiff's evidence. I am unable to accept his evidence in its entirety. The events of May 2013, including the failure by the Plaintiff to see the deceased whilst she was in hospital, and even later, on only one occasion, casts grave doubt, in my mind, on the closeness of the relationship and the suggestion that there was an intertwining, or merging, or union, of their lives.
Ms Wakefield's evidence of events post-death involving the Plaintiff, which I also accept, does not assist the Plaintiff in this regard. In any event, I found the evidence of the neighbours far more persuasive, particularly as to the assistance that each provided to the deceased.
Of course, I have reminded myself of Ms Fitzmaurice's evidence. In my view, her evidence, overall, must be considered in the context of her being a stranger to each of the Plaintiff and the deceased. She saw them only occasionally, in passing, and relatively infrequently. At face value, her evidence simply leads to a conclusion that she observed the Plaintiff on some social outings with the deceased, and, on some other occasions, elsewhere. Her evidence also suggests that there was some demonstration of physical contact between the Plaintiff and the deceased. It might even show that the Plaintiff demonstrated some concern for the deceased, and that he tried to assist her on, occasions, in purchasing food for her cats. Overall, it does not elevate the relationship into a de facto relationship.
Nor does Ms Fitzmaurice's evidence go far enough in corroborating the assertion of the Plaintiff that there existed a de facto relationship. But for her evidence, the relationship between the Plaintiff and the deceased was clandestine, and according to the Plaintiff, suggests that they spent very much time together, as distinct from time spent socialising as a couple. Certainly, none of the deceased's neighbours saw any sign of the Plaintiff in the deceased's life. According to each of them, the deceased lived by herself. It appears to be the case that it was only to Ms Fitzmaurice that the deceased and the Plaintiff presented themselves as a couple.
The evidence from Ms Fitzmaurice must be balanced by reference to the other evidence in the case. Although I am satisfied that the Plaintiff had some form of relationship with the deceased, I do not accept that they were in a de facto relationship at any time. It seems to me that any relationship was utilitarian and pragmatic.
Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another, or related by family, I find that the Plaintiff was not living with the deceased for the requisite period, and, in any event, that they did not 'live together as a couple'.
It follows that the Plaintiff is not the 'spouse' of the deceased at the date of his death, with the result that his claim to the whole of the estate on intestacy must fail. It follows, also, that he has no 'interest' in the estate to enable him to obtain an order for the revocation of the grant of Letters of Administration made to the Defendant.
For the same reasons, I am unable to conclude that the Plaintiff falls within the category of eligibility relied upon in s 57(1)(b) of the Act, namely that he is a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death.
Because of the conclusion that he was not living with the deceased, he is not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. Whilst he may have visited the Paddington property, and, perhaps, even stayed there overnight, on occasions, that is insufficient to establish he was ever living there. I am not persuaded by the Centrelink document and the Plaintiff's evidence that he was a member of her household during the period between October 2012 and January 2013."
[10]
The appeal
Without intending any disrespect, much of Mr Sadiq's submissions are difficult to follow, but on no view could they be directed to any appellable error by the primary judge. In very large measure, they recite factual matters about the relationship between himself and the deceased, rather than seeking to point to error by the primary judge.
Mr Sadiq confirmed that the only two pieces of documentary evidence he could point to were the letters from Centrelink and St George Bank. He also said that there was a medical certificate from his general practitioner to explain why he didn't visit the deceased in hospital. This had not been available at trial, so he said, because his solicitors had not released it to him. However, at trial, he had given a different explanation to the primary judge as to why he had not visited the deceased in hospital ("I don't like the smell of the hospital. That's the way I explained that").
For completeness, it may be noted that there was no application to adduce fresh evidence, nor any basis in the materials supplied by Mr Sadiq to support any such application. Moreover, the clear impression from reading the transcript of the trial is that Mr Sadiq was given great latitude to present his case as well as to challenge the respondent's evidence.
Mr Sadiq made submissions that the primary judge had erred in relation to the Centrelink document. He said in writing (paragraph 20) that the deceased did not inform Centrelink that she was living with him "because we discussed that, together, but made a conscious decision not to". His submissions were maintained orally:
"... that Centrelink document ... it's written is homeless from 1996 to 1999, and written homeless is 'no fixed address' and that is I was living with the deceased at that time. But Centrelink usually they put the old address to help the person to - like to give him concession card and he can use it for the transport or can find a job, because without that old address put in no-one - we cannot use the transport and we cannot - make it harder to find the job. And that the reason the Centrelink they put the old address and I used to collect my letters all from the Marrickville post office, and that is the error the primary Court made because he mentioned that he's living in - he was living in Marrickville, his address, living in Marrickville. I think there's more details about the documents, the Centrelink documents, saying that he was no fixed address from 1996 to 1999 and that I was living with the deceased at that time."
All that may or may not be so, but it does not affect the inferences available to be drawn from the document or the reliance placed upon it by the primary judge.
Turning to the St George Bank letter, Mr Sadiq wrote (paragraph 35), and reiterated orally, that he had opened an account in Ashfield because for some reason that branch accepted his proof of identify by a Medicare card and pensioner concession card. Again, that may or may not be so, but it does not in any material way impugn the reasoning process of the primary judge. The inference drawn by his Honour at [143] remained open, and in any event, it was but a minor part of his Honour's reasoning. More importantly, his Honour relied not so much upon the unlikelihood of an account being opened at Ashfield, but upon the absence of the sorts of documents one would expect to exist had the relationship been as Mr Sadiq claimed.
Mr Sadiq then advanced a large number of factual criticisms addressed to the findings of the primary judge at the level of fine detail. I give two by way of example. Mr Sadiq said that the primary judge erred "in finding that there was no electricity services on the property. [There was] old wiring not working properly, there were more than, 10 table lamps all around inside the property." But it is perfectly clear that it was open to accept the evidence from the officer who inspected the property shortly after the deceased's death, which was unchallenged.
Mr Sadiq also submitted that:
"The plaintiff described the deceased and himself as 'free spirits' who did not like being told what to do by anyone else. His Honour admitted that relevant that the plaintiff only moved out of rented accommodation in Marrickville, because of an eviction. His Honour should notice that we both have both feet in, and that is correct I don't have any friends, or family during this, or any other period" [minor typographical corrections made].
That submission does not establish any error, let alone appellable error.
Mr Sadiq also pointed to what he said were some transcription errors and missing words in the transcript, on which nothing material turned at trial or turns on appeal. He pointed to errors in the addresses ("[i]ncorrect reported … 3/105 Burns Street that is wrong, it should be 3/105 McClelland St", "[i]ncorrect reported: Greavs Road. It should be [G]reens Road"). Nothing turns on such errors, if indeed they are errors.
The written submissions included passages which were critical of the evidence of the neighbours and the social workers (for example, paragraphs 27-29, 50-51). Most is very difficult to follow, although the claims that their evidence was invented and subject to ulterior motives were repeated. Again, by way of example, one of the least opaque passages is the criticism of the social worker's evidence, which is as follows:
"[H]e stated I could not conceive that anyone could live there, inconsistent with paragraph 13 stated that he found nothing to suggest that any person other than the deceased was living at the Paddington premises. He found no trace of anyone having attempted to maintain the premises. The wrong with his evidence, that he described that [grubby] house and no visible block in the house, means no partner. it is fallacious; once again, we were rustics. And also said, that, at no time, did the deceased inform him, or indicate to him otherwise, that she had any de facto partner, or that she was dependent upon any person, or that any person was dependent upon her. His evidence inconsistent with Ms Begg evidence. And my affidavit 7/08/14 when I said our privacy was important, and very important, talk was cheap, we kept our details to our self, we shared all between us, that was enough for us, it was perfectly sensible, and a joint policy we had" [sic].
Mr Sadiq's submission fails to make out any appellable error in the acceptance by the primary judge of the evidence of Mr Rauwendaal and the rejection of Mr Sadiq's submission that he was improperly motivated.
Mr Sadiq also submitted that the primary judge erred in making certain rulings on evidence, which it is unnecessary to summarise; none even taking them at their highest could have a material effect upon the conclusions based upon the oral evidence.
The respondent rested on its very short written submissions. It emphasised a striking fact the force of which will not fully be appreciated from the foregoing, namely, the factual dispute between Mr Sadiq and the neighbour who called the ambulance when the deceased was discovered to have had a stroke. That neighbour, Ms Sommer, denied that she had spoken to Mr Sadiq. Mr Sadiq maintained that he had discovered the deceased, and had alerted her. Mr Sadiq challenged Ms Sommer in cross-examination, to the effect that she was lying because she had previously wanted him evicted. Ms Sommer rejected this, and the primary judge accepted her evidence.
[11]
Conclusions on the appeal
This is a case where it is neither necessary nor appropriate to summarise the entirety of the submissions advanced on appeal. To do so would only add length to these reasons, and to no advantage. The essential character of Mr Sadiq's submissions emerges from what I have reproduced above. I have read them in their entirety, and re-read the transcript of argument. Again without conveying disrespect to Mr Sadiq, they are very largely reiterations of claims of his relationship, or attacks upon the motives of the neighbours and social workers called by the respondent.
The task for the primary judge was to weigh the conflicting testimonial and documentary evidence. As is clear from the extracts reproduced above, the primary judge was perfectly entitled to prefer the evidence of the neighbours and to reject the suggestions that they were involved in a conspiracy to deny Mr Sadiq rights to the property. The primary judge was perfectly entitled to point to the inconsistencies in Mr Sadiq's case, and the unlikelihood that a person who had shared a relationship with the deceased in Paddington for 16 years would be unable to adduce better documentary evidence than he was able to do. The extracts of his Honours reasons reproduced above show that that was precisely what his Honour did. What is more, his Honour did so in a way which was measured and self-evidently balanced. He expressly rejected aspects of the respondent's case.
I think I should add that even in his presentation to this Court, Mr Sadiq gave inconsistent accounts about matters which one would think would have been important to him, had he been in a de facto relationship with the deceased. One example was the reason for his not visiting her in hospital after she suffered a stroke to which I have referred above. To be clear, I am not to be taken as suggesting that Mr Sadiq deliberately gave false evidence. I intend to convey only that there is nothing in the manner in which Mr Sadiq presented his argument on appeal which causes me to question the concerns the primary judge had over the lack of reliability of Mr Sadiq's testimony.
Mr Sadiq has not established - or come close to establishing - any appellable error in the reasons of the primary judge. His appeal must be dismissed.
The respondent asked for the question of costs to be reserved. I can see no reason for that course to be taken. The appeal should be dismissed with costs. It is a matter for the respondent whether it chooses to take any steps to enforce the costs order. If there is some matter which the respondent wishes to draw to the Court's attention bearing upon the exercise of the discretion as to costs, that may occur within the period for which UCPR r 36.16 makes provision.
SACKVILLE AJA: I agree with Leeming JA.
[12]
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Decision last updated: 07 April 2016