ORDER
76 For those reasons, in my opinion, the appeal should be dismissed with costs.
77 YOUNG JA: I agree with the judgment of Hodgson JA, but because of the unusual nature of this case and for future certainty, I consider I should make some further remarks.
78 It must always be remembered that a judgment in probate is a judgment in rem. It is not only the parties that are affected by the decision, but often the community at large. Because of this, there are some special features about probate cases.
79 Prior to the secularisation of probate in the mid-19th century, probate cases were heard in the Ecclesiastical Courts by their own procedure. The English Act which secularised them, 20 and 21 Victoria Chapter 77, provided that whilst the practice of the court was to be modelled on that of the Prerogative Court, evidence was to be taken orally and the rules of evidence were to be the rules of the common law; see Holdsworth, History of English Law vol 15 p 203. However, some aspects of the earlier practice remain with the issue of citations etc and rules as to when the evidentiary onus shifts from the executor to the person impugning the will.
80 One of the procedures which survived appears to be that if the judge is furnished with material to throw doubt on the testator's capacity, he or she may consider it appropriate to hold an inquiry sua sponte.
81 An example of this is Re the Will of Richard Trudgeon (1882) 3 LR (NSW) (Eq) 22. In that case, an attesting witness wrote a letter to the Probate Office to the effect that he had thought the matter over and was worried that the testator may not have had a competent mind and understanding when he signed the will. The report says that "his Honour" presumably Sir W Manning, Primary Judge in Equity, held an inquiry and after the inquiry found that the will was not to be admitted to probate.
82 Although he did not refer to this in his judgment, the learned primary judge took a more leading role in the present case than normal, presumably because there was no contradictor and his Honour had doubts about the expert evidence tendered from Dr Obeid. His Honour thus requested that Dr Obeid be made available for cross-examination.
83 Dr Obeid was an expert witness. As such, clause 2 of schedule 7 to the Uniform Civil Procedure Rules is applicable, the expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise and his or her paramount duty is not as an advocate for a party, but to the court.
84 Thus, even had I not been in agreement with Hodgson JA that even if one strictly applied what was said in Burwood, the primary judge did not fall foul of any principle that flows from Burwood Municipal Council v Harvey (1995) 86 LGERA 389, 395-8, I would have considered that in a probate suit there could be no objection to what his Honour did.
85 During the argument, Mr Grieve QC referred to this Court's recent decision in Strinic v Singh [2009] NSWCA 15 at [57] and following. The Court then made it clear that the District Court, not being a court of specialist jurisdiction, a District Court judge was not entitled to determine medical matters of his or her own knowledge.
86 There is considerable doubt as to whether that general principle applies to all areas considered by the Equity Division of this Court. In many of its aspects, such as conveyancing (vide Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 435 per Deane J) as well as in its protective work the Equity Division should be treated as a specialist court. As I suggested writing extra curially in (2009) 83 ALJ 234, the same might be able to be said of other specialists lists in the Equity Division as well including the Probate List.
87 I should not be seen as encouraging too much questioning by judges in the average case, if there ever be an average case in equity or probate. Long experience as a trial judge indicates a general tendency of witnesses to agree with a proposition put to them by the judge probably in a subconscious feeling that it is wise to agree with the adjudicator. However, in an appropriate case, and the present seems to be one, it is perfectly proper to do what the learned primary judge did in the present case.
88 A flavour of Dr Obeid's evidence in the instant case was that he was a medical man, other witnesses were mere laity and accordingly, his views should virtually carry the day.
89 In a probate suit, the vital evidence is very often not given by medical experts, but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes.
90 Furthermore, it is not true to say that the evidence of lay people as to another person's condition of health is valueless.
91 If a matter is of common occurrence and people in their ordinary life are accustomed to make assessments of that fact, then they are able to give evidence of it. Thus, a witness can be asked whether a person is sober or not. In Reg v Whitby (1957) 74 WN (NSW) 441 at 443, the NSW Court of Criminal Appeal, consisting of K W Street CJ, Owen J and Roper CJ in Eq, followed a decision of R v German (1947) 89 Can CC 90 at 98, that:
"There are a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has personal knowledge. Such matters as the identity of individuals, the apparent age of a person, the speed of a vehicle are among the matters upon which witnesses have been allowed to express an opinion, notwithstanding that they have no special qualifications, other than the fact that they have personal knowledge of the subject-matter, to enable them to form an opinion. Doubtless there are many other matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion."
92 Here, the material which offended Dr Obeid was given by an experienced social worker. Her observations were of assistance to any judge of fact. It may be, as Dr Obeid put, that the social worker did not realize that the testator's delirium gave a false impression to a casual observer, but that was a matter for the judge to assess.
93 The penultimate sentences of both paragraphs [60] and [61] of his Honour's reasons do appear to be overstatements. However, their making does not seem to me to justify a submission that his Honour adopted an adversarial approach or overstepped his function.
94 I should particularly note that I wholeheartedly endorse Hodgson JA's adoption of the view of Windeyer J in Kerr v Badran [2004] NSWSC 735 at [49] that even though this Court continues to accept the general authority of Banks v Goodfellow (1870) LR 5 QB 549, 567, insofar as that case asserts that a testator must be seen to have recollected the property he or she has to dispose of, it is not necessary that the testator know precisely the nature and worth of each and every asset in his or her portfolio.
95 Another matter that I should mention is that I have taken the view in the past that there is a lot to be said for the proposition that when the court is sitting in rem in probate, lawyers for the parties are obliged to assist the court by putting before the court all the expert material that they have collected, whether favourable or unfavourable, and not merely place before the court those experts who have finally agreed with their client's case. I do not know whether this view is commonly held, however, I believe that in the current atmosphere of impartial expert evidence before the court, it should be the rule. It may well be that when a judge in probate is considering whether to give leave to call expert evidence, he or she should ask whether all the expert evidence on the point amassed by the party concerned is going to be called, and not give leave to call selected experts unless assured that it is the most eminent expert who is giving evidence, or that there is some other good reason for calling that particular expert.
96 If this practice were adopted, then the problems that have plagued the court in the past with what are often referred to as "junk experts" might be minimised. The problem is that people with the minimum qualifications as an expert are called because they support a party's case, even though that party has also received a number of reports from eminent experts to the opposite effect. This practice not only insults eminent experts, but also impedes the court finding the truth. I do not, of course, intend by this general comment to imply that Dr Obeid is a "junk expert", that is clearly not the case.
97 I would make one final point which has nothing to do with the merits of this case. At pp 145 and following of Vol 1 of the Blue Appeal Book, there is a document which purports to be an affidavit of an employed solicitor on behalf of the plaintiff. The document starts with the deponent's name and that she is a solicitor, and then says:
"I say on oath/affirm"