Zorbas v Sidiropoulous [2009] NSWCA 197 | Case summary

Zorbas v Sidiropoulous [2009] NSWCA 197 | Case summary | Zoe

[16]

Circumstances 5 The circumstances can very briefly be outlined as follows. 6 The appellant had known the deceased since 1964. In that year, the deceased had married a cousin of the appellant. From that time until the death of the deceased, both the appellant and the deceased lived at addresses quite close to each other in Drummoyne. 7 Between 1964 and the death of the deceased's husband in 1990, the appellant saw the deceased and her husband frequently. From 1990 until 1998, the appellant saw the deceased less frequently, but still (according to the appellant's estimate) about one or two times a month. 8 The deceased sold what had been her matrimonial home in 1998, and purchased a home unit in Drummoyne. The appellant gave evidence that from that time the deceased visited his house almost every day, and that from time to time he lent her money. 9 In 2004, according to the appellant's son Nickolas, following requests by the deceased, he downloaded from the internet a standard power of attorney form and a standard will form. 10 On 16 July 2004, there were present at the deceased's unit the deceased, the appellant, the appellant's friend Kristian Miller (a Justice of the Peace) and Nickolas. The deceased then signed a power of attorney in favour of the appellant, witnessed by Mr Miller. The appellant left the room and the deceased signed a will, witnessed by Mr Miller and Nickolas. This will appointed the appellant sole executor and gave the whole of the deceased's estate to the appellant. 11 On 16 October 2004, the deceased was admitted to Concord Repatriation General Hospital (Concord Hospital). Her presenting problem was noted as "worsening rash all over body". She was given some treatment and subsequently sent home. 12 On 31 October 2004, the deceased was re-admitted to Concord Hospital, and she became gravely ill. On 18 November 2004, she was diagnosed as having a malignant form of lymphoma, and she contracted pneumonia. 13 The appellant frequently visited the deceased in hospital. On and from 3 December 2004, having arrived from Greece that day, the respondent also visited the deceased at Concord Hospital. 14 On 14 December 2004, the deceased signed another will, which was the subject of the grant of probate in common form. That will appointed the respondent sole executor and sole beneficiary. It was witnessed by a solicitor and law clerk. The primary judge found it had been drafted by a solicitor. 15 On 16 December 2004, the deceased was moved to Greenwich Hospital for palliative care. 16 On 18 December 2004 the deceased died. Her only significant asset was her home unit valued at about $500,000. She had no close relative in Australia apart from the respondent. The only other close relative disclosed by the evidence was a brother living in Greece.

[17]

Hearing before primary judge 17 In the appellant's proceedings, the respondent was originally represented by solicitors. 18 The affidavits to be relied on by the appellant were served by about July 2007, at which time an affidavit and report of the appellant's expert witness Dr Obeid was served. 19 In October 2007, solicitors then acting for the respondent served four affidavits on the appellant's solicitors. 20 On 19 November 2007, the solicitors then acting for the respondent advised the appellant's solicitors that a Dr Rosenfeld was preparing a report which they expected to have available for service by the end of December. On 4 December 2007, the solicitors then acting for the respondent advised the appellant's solicitors that Dr Rosenfeld expected to complete a report by the end of December or early January. No such report was ever served. 21 On 29 February 2008, the respondent's solicitors signed a Notice of Ceasing to Act. 22 It appears that the matter was later set down for hearing on 23 September 2008. On 13 August 2008, the matter was listed before Windeyer J. On that occasion the appellant was represented by counsel, and the respondent appeared in person. Windeyer J sought assurances that all evidence had been filed. 23 On 8 September 2008 the matter was listed before the primary judge. The respondent again appeared in person, and said he proposed to call two expert witnesses to give oral evidence. The primary judge ordered that the respondent file and serve any application to adduce expert evidence by 10 September 2008. 24 The respondent was given notice that the deponents of his affidavits were required for cross-examination. 25 On 19 September 2008, the matter was listed before the primary judge in case the respondent wished to put on a Notice of Motion for medical evidence to be allowed. The respondent did not appear on that occasion. 26 The respondent also did not appear at the hearing on 23 September 2008. The evidence before the primary judge consisted of two affidavits by the appellant, two affidavits by Mr Miller (one of which was read only in part), an affidavit by Nickolas (read only in part), an affidavit of Dr Obeid, and an affidavit sworn 22 September 2008 by the solicitor with the day to day conduct of the matter on behalf of the respondent setting out the above history. There were also tendered two volumes of clinical records concerning the deceased's time at Concord Hospital, and a letter from a clinical psychologist Jill Farrelly. 27 The primary judge indicated that he would like Dr Obeid to attend for the purpose of asking him some questions, and the matter was stood over to 24 September 2008 for that purpose. On 24 September, again the respondent did not appear. The primary judge questioned Dr Obeid over about 30 pages of transcript, and there was re-examination over about one and half pages of transcript. Mr Grieve QC made submissions for the respondent, and the primary judge reserved his decision.

[18]

Decision of primary judge 28 In his reasons for judgment, the primary judge gave a general history of the relationship between the appellant and the deceased and of events following the deceased's admission to hospital, this of course being based on the appellant's affidavits. 29 He then referred to relevant law, including the cases of Banks v Goodfellow (1870) LR 5 QB 549 and Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277. He noted that the onus of proof in relation to the will of 14 December 2004 was on the respondent. 30 He said there was no evidence of suspicious circumstances in relation to this will, and that it was rational on its face; and that in those circumstances, it was to be presumed that the deceased was competent. 31 However, Dr Obeid had stated that in his opinion the deceased was suffering delirium and not capable of making a will; and this required the primary judge to make a vigilant examination of the whole of the evidence. 32 The primary judge continued: [41] This was, therefore, a small estate with only one asset. The defendant is a close relative of the testatrix. There is no evidence that there is any other relative residing in Australia. On its face there is nothing untoward in the testatrix deciding to bequeath her only asset to the only close relative she had in Australia. [42] There is no evidence of any suspicious circumstances attending the making of the second will. It was duly executed. It was drawn by a solicitor and witnessed by a solicitor and a law clerk. The only other evidence concerning the making of the second will is to be found in the medical records of the testatrix while at Concord Hospital. The effect of that evidence is that the testatrix had seen a solicitor. The will had been typed. It comprises two pages. It is reasonable to infer and I find that the instructions for the will had been given either earlier in the same day or, as is more likely, on the day before or several days before. The will had then been typed at a solicitor's office and brought to the hospital for execution. It is reasonable to infer and I find that the defendant arranged for the will to be prepared and executed. He is the only beneficiary. In some circumstances the fact that a will is prepared and executed at the request of the sole beneficiary of the will gives rise to suspicion as to the circumstances in which a will is made. In this case, I do not think that it a cause for suspicion. There is no evidence that the defendant knew that the testatrix had made an earlier will. The testatrix had been diagnosed with a malignant lymphoma. Given that that disease had the capacity to cause the early death of the testatrix, it was appropriate that she made a will. The fact that she had already made a will did not mean that she could not make a fresh will. [43] The second will is rational on its face. The testatrix appoints the defendant, who is her nephew, as the executor and gives the whole of her estate to him. There is no evidence that there is any claim upon the bounty of the testatrix by any relative of closer kinship to the testatrix than the defendant. The plaintiff is not as close in kinship to the testatrix as the defendant. Significantly, the will has been executed and attested in the manner prescribed by law. In addition, the witnesses are a solicitor and a law clerk. The will was drawn by a solicitor. In light of these circumstances, it is to be presumed that the testatrix was a person competent to make a will: Timbury v Coffee at 283. [44] However, the evidence of Dr Obeid, unopposed as it was by other medical evidence, raises a doubt as to the testamentary capacity of the testatrix. He unequivocally states that in his opinion the testatrix was suffering delirium and was not capable of making a will. I have regard to his evidence. His report requires me to make what the High Court in Worth v Clasohm called a "vigilant examination" of the whole of the evidence. The medical evidence [45] The main body of evidence led as to the capacity of the testatrix to make a will is that of Dr Obeid who provided a report dated 11 June 2007. He is a consultant physician and geriatrician. He has completed specialist training in geriatric medicine. He had neither seen nor treated the testatrix. His report is grounded on affidavits sworn by the plaintiff. Not all of those affidavits have been read. His report is also grounded on the medical reports concerning the testatrix while she was being treated at Concord Hospital. As he said in his evidence, the primary basis for his opinion was those medical records. In his opinion the plaintiff was suffering from delirium. He believed she had been suffering from delirium for a period of one month prior to the date on which she made the second will and continued to suffer from delirium thereafter. In his view it is extremely unlikely that the testatrix was not delirious at the time of signing her second will. Parts of his report purport to state the conclusions on questions that are for this Court to determine. [46] In his report Dr Obeid noted medical issues which, he asserts, are relevant to the testamentary capacity of the testatrix. [47] The first is that the testatrix was gravely ill in the period leading up to 14 December 2004. There can be little doubt that the testatrix was gravely ill for a period of some two months before she made the second will. She was in the intensive care unit at Concord Hospital from 21 November to 9 December 2004 and consideration was being given to her being admitted for a third time on 13 December 2004. [48] The second is that the testatrix had documented structural abnormalities of the brain. He noted them in his report: "2.2 The deceased had documented structural abnormalities of the brain. 2.2.1 Computerized tomography (CT) of the brain on 12 November 2004 was reported as showing cerebral atrophy, dilation of the ventricular system and subcortical white matter disease. This is indicative of cerebrovascular disease. 2.2.2 Nuclear Medicine SPECT scanning performed on 15 November 2004 demonstrated severe subcortical disease (particularly in the right temporal lobe) as well as some cortical disease. This was thought to be on the basis of a vascular aetiology. "

[20]

[49] The third of the medical issues is delirium. Dr Obeid described the condition in these terms: "2.4 Delirium is the commonest medical disorder present in hospitalised older patients. Despite this, various studies have shown that delirium is only recognised as being present in about 20% of cases. The commonest causes of delirium are infection (eg urinary tract infection, pneumonia, septicaemia), medications (especially anticholinergic drugs, benzodiazepines and antihistamines) and metabolic derangements (eg hypoxia, electrolyte imbalance, renal or hepatic impairment). 2.5 Delirium independently predicts death in a hospitalised older person, but because it is reversible if the underlying causes are diagnosed and treated it is critical that it be recognised and managed appropriately. In the case of the deceased, recognition of the problem, cessation of mediations exacerbating the problem and aggressive management of hypoxia and infection were required to alleviate or reduce the severity of the delirium. 2.6 Delirium is a disorder of cognition that primarily affects attentional abilities. It is due to medical not psychiatric causes. Its principal features are an acute or subacute onset, fluctuating course and altered attention or level of consciousness. 2.7 The "fluctuating course" of delirium means that the patient's level of consciousness may be seen to vary from time to time during the course of the day. Improvements or reductions in the level of consciousness during the course of a day or from hour to hour are a normal feature of the illness and in the underlying disease process or gravity of the state of ill-health of the patient. In particular, the patient suffering from delirium does not pass between being unconscious or hallucinating in one part of the day to being able to rationally [assess] the extent of their assets and able to carefully plan the making of [a] Will in another part of the day." 33 The primary judge then referred to some questions and answers in Dr Obeid's evidence, and continued: [52] I was not impressed with the evidence of Dr Obeid. It borders on the presumptuous for a medical practitioner who has not seen a patient but has read only medical records to assert that he is able to make a diagnosis that other medical practitioners have missed. In this case that is especially so given that the other medical practitioners constantly saw the testatrix for a period of at least three months. The medical records relating to the testatrix were proved. I have examined them. In my view they do not support Dr Obeid's opinion. For the reasons that follow, I am not satisfied that the testatrix was suffering from delirium. 34 In par [53]-[75], the primary judge set out extensive reasons for not accepting that the deceased was suffering from delirium. He expressed his conclusions as follows: [77] When viewed as whole, I find the evidence of Dr Obeid to be unsatisfactory. While his conclusions as to delirium might have raised a doubt as to the testamentary capacity of the testatrix when making the second will, after careful consideration of the report and of his evidence I am satisfied on the balance of probabilities that the testatrix did in fact have testamentary capacity when making the second will. I do not think that Dr Obeid's report is sufficiently reliable to call that conclusion into question. I am fortified in that conclusion by the absence of evidence from medical staff at Concord Hospital and the testatrix's general practitioner.

[24]

Excessive intervention? 38 Mr Grieve QC for the appellant referred to Burwood Municipal Council v Harvey (1995) 86 LGERA 389, and in particular to the principles stated by Kirby P at 395-398. 39 He submitted that the primary judge's cross-examination of Dr Obeid was not inquisitorial but adversarial, that it amounted to a substantial departure from procedural fairness, and that it gave the impression that the primary judge was accusing Dr Obeid of being untruthful or unreliable. He submitted that there had been no waiver by the appellant of any objection to the primary judge's conduct of the proceedings. 40 I note that the result of success on this ground would be a new trial of the proceedings, unless the Court took the view that, on the basis of grounds 1 and 2 of the appeal, it could and should make a finding itself that testamentary capacity was not established. 41 In considering grounds 1 and 2, I will be considering the evidence that was before the primary judge, and the issues explored in his questioning of Dr Obeid. That consideration shows that there were issues raised by the evidence that made it reasonable for the primary judge to question Dr Obeid. In particular, there was evidence in the clinical notes from the hospital of observations of and interactions with the deceased during her time in hospital, suggesting behaviour by the deceased that could reasonably be considered inconsistent with the symptoms of delirium, as they were described by Dr Obeid; and at least some of this evidence was not addressed in the report. 42 In those circumstances, it was necessary for the primary judge to decide what conclusion he would draw from the clinical notes as to the behaviour of the deceased, having regard also to Dr Obeid's evidence as to the symptoms of delirium; and if he came to the view that the behaviour of the deceased so found might be inconsistent with the symptoms of delirium described by Dr Obeid, to decide whether he should conclude that the deceased's behaviour was inconsistent with those symptoms and on that basis not accept Dr Obeid's evidence. In circumstances where Dr Obeid was available to give evidence, it would in my view have been wrong for the primary judge to undertake this task without disclosing to Dr Obeid (and the appellant) the matters that were concerning him, and giving Dr Obeid the opportunity to deal with them. 43 This was not a case like Harvey, where the judge's intervention was directed to the introduction of issues (there concerning valuation methods) which had not been formulated by the parties but were formulated by the judge and apparently espoused and promoted by him. In my opinion, it could not be said, as it was said (in Harvey at 399) of the judge's intervention in that case, that the primary judge's interventions were belligerent and/or argumentative, or that they raised issues of credit and/or irrelevant questioning that tended to demonstrate the adoption of the role of an advocate and the surrender of that of a judicial officer. 44 As Kirby P said in Harvey at 397: … Determining whether judicial intervention has crossed the line from the permissible to the impermissible requires an exercise of judgment by the appellate court. Sometimes it is difficult to explain, with precision, why a case falls upon one side of the line rather than another. Upon such questions judicial minds will sometimes differ: see for example Government Insurance Office (NSW) v Glasscock [1991] NSWJB 11. Standards of restraint differ as much amongst appellate judges as amongst those at trial. And the ultimate question is whether the conduct complained of has undermined the fairness of the trial so as to render it, in law, no trial at all. …. 45 In my opinion, this is not a case where the intervention of the primary judge was such as to undermine the fairness of the trial. Although extensive, it was directed to the appropriate end of elucidating Dr Obeid's opinion in relation to matters of concern which were raised by evidence before him (namely, the hospital notes), and giving Dr Obeid and the appellant ample opportunity to deal with those matters of concern. 46 I would add that, had I considered this was a case of unacceptable intervention by the primary judge, I would not have considered that the appellant had waived any objection to this. Objections were taken from time to time to questions by the primary judge; and more importantly, the intervention that occurred could fairly be regarded as progressive and cumulative.

[25]

Grounds 2A and 2B 47 These grounds concern two particular complaints about errors in dealing with evidence. To the extent that they are relied on as discrete errors, they could operate either as errors vitiating the primary judge's conclusion on the facts, or as deficiencies of reasons. In either of these cases, this Court could order a new trial, or, if it considered the record sufficient to enable it to do this, reach its own conclusion. In addition, these two matters are also relied on in support of grounds 1 and 2, which if upheld would justify a decision by this Court against the will of 14 December 2004 rather than a new trial. 48 In relation to ground 2A, Mr Grieve submitted that (1) it should be inferred that the respondent received the report of Dr Rosenfeld, (2) the respondent did not serve it or seek to rely on it, and (3) thereafter the respondent raised no effective further resistance to the appellant's claim. In those circumstances, Mr Grieve submitted, the primary judge should have inferred that Dr Rosenfeld's report would not have assisted the respondent, and thus should readily have accepted Dr Obeid's evidence. 49 In relation to ground 2B, the relevant evidence was evidence from the appellant (Blue 18) that in or about the mid-1990's the deceased told him that the appellant had argued with her about money, that the respondent had grabbed her by the throat, that another person had pushed him away, and that she had called the police; and that she was very shaken and upset by this, and that she had to lock her bedroom door because she was afraid the respondent might strangle her when she was asleep. Mr Grieve submitted that this sat ill with the findings of the primary judge that there was nothing untoward in the deceased's deciding to give her only asset to the only close relative she had in Australia, and that the second will was rational on its face. 50 Both grounds concern omissions from the judgment in relation (in one case) to an absence of evidence and (in the other case) to evidence that was given. On the question whether such omissions vitiate a judgment or amount to an erroneous sufficiency of reasons, in my opinion the correct approach is that stated by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728: In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.

[27]

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. 51 The question therefore is whether either of these matters were of such moment that the primary judge's failure to refer to them and deal with them in his judgment is indicative of error. 52 In my opinion, the respondent's failure to serve and/or rely on a report from Dr Rosenfeld was not a matter of such significance that failure to refer to it and deal with it in the judgment is indicative of error. 53 The circumstance that the respondent's solicitors advised that such a report was expected does not, in my opinion, justify a conclusion that it was received, particularly in circumstances where those solicitors shortly afterwards ceased to act. The circumstance that the appellant did not then engage other solicitors to act for him below might suggest there were financial considerations operating: certainly, one could not infer the contrary. In my opinion, what actually happened in relation to any proposed report from Dr Rosenfeld can only be speculation. 54 In those circumstances, in my opinion any assistance to the appellant on a Jones v Dunkel basis would be weak. The failure of an unrepresented litigant to appear and thus to tender evidence is very different from a situation where a represented litigant selectively tenders some evidence and withholds other evidence. 55 As regards the evidence concerning an alleged assault by the respondent, its significance was affected by the question of the accuracy of the appellant's verbatim account of a conversation with the deceased that allegedly took place about ten years previously, the circumstance that whatever then happened apparently did not result in police action or in the respondent being ejected from the deceased's home, and the circumstance that (according to hospital records) the deceased in December 2004 was indicating a preference that the respondent rather than the appellant look after her affairs. Also relevant to the weight to be given to the appellant's account of the ten-year-old conversation was the circumstance that, although the evidence of the hospital notes showed that the deceased conveyed that the respondent had her permission to stay in her unit, the appellant's affidavit (Blue 25-27) conveyed to the Court that the respondent was a trespasser who had broken into the unit and that the appellant did not take action to evict him; and this could be taken as suggesting that the appellant was minded to express himself in ways discreditable to the respondent. 56 In those circumstances, in my opinion, evidence concerning the alleged assault was not of such significance that failure to refer to it in the judgment indicates error.

[30]

[59] The District Court has such jurisdiction as is conferred by statute. That includes jurisdiction in actions in negligence as was the case here. It cannot be denied that judges gain enormous experience in determining such matters. However, that experience is in assessing the credit of witnesses; in determining what evidence to accept or reject; making findings of fact based on the evidence and in applying the law to those facts. Familiarity gained from experience with medical terminology and medical conditions is of undoubted assistance in helping a judge understand the evidence in a particular case. However, such familiarity never makes the judge the expert in the case. This was recognised in Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37, where Ipp AJA (as his Honour then was) commented, at [22], that the trial judge was not entitled, of her own knowledge, to determine whether a MRI scan revealed "significant and severe disc injuries". However, in that case, there was direct medical evidential support for her Honour's conclusion. 59 Mr Grieve referred to Dr Obeid's evidence that delirium was a common condition in elderly patients, that outward signs of it can be misleading, and that treating medical practitioners frequently fail to diagnose it. He submitted that, having regard to that evidence, and particularly in circumstances where no doctor at the hospital ever gave consideration to the question whether the deceased was suffering delirium, the fact that the treating doctors did not diagnose delirium carried no weight against Dr Obeid's evidence; and the primary judge was wrong to suggest otherwise. He submitted that the primary judge was faced with medical evidence that was in substance uncontradicted, and there was no proper basis for his failing to accept that evidence. 60 Mr Grieve submitted that the primary judge's questions of Dr Obeid and his judgment showed that he did not appreciate the interaction of three crucial symptoms of delirium identified by Dr Obeid, namely fluctuating levels of consciousness, acute or sub-acute onset of symptoms such as hallucinations or delusions, and underlying medical pathologies. In particular, he submitted, the primary judge (at [57]-[59] of his judgment) took the hospital note indicating fluctuating levels of consciousness as suggesting that, at times when the levels of consciousness were higher, the deceased was not suffering from delirium; and the primary judge expressed a view (at [69]) that the hallucinations experienced by the deceased on 10 November 2004 were attributable to a temporary onset of delirium, whereas Dr Obeid's expert opinion was that delirium does not come and go. 61 Mr Grieve submitted that the primary judge's opinion (at [60]) that Dr Obeid had no basis for commenting that a social worker was not qualified to assess (on 7 December 2004) that the deceased had mental capacity to make decisions and to understand the implications of those decisions was a non sequitur, in circumstances where Dr Obeid's expert opinion was that delirium is recognised only in about 20 per cent of cases, so that it was scarcely likely that the social worker would have any inkling that the deceased was affected by that disorder. 62 Mr Grieve submitted that a further indication that the primary judge erred in not accepting Dr Obeid's evidence was the primary judge's expression (at [74]) of serious doubts whether Dr Obeid, when writing his report, was aware the respondent was the nephew of the deceased. The relevant evidence (Black [29]-[33]) gave no basis for that comment. Dr Obeid's independence and impartiality could not be called into question, and the primary judge should not have doubted his reliability. 63 Mr Grieve submitted that the primary judge's unquestioning acceptance of the reliability of the hospital note was ingenuous, when medical personnel are concerned to record, if possible, that patients have the capacity to consent to treatment. 64 As regards the applicable law, I would adopt the exposition of it by Windeyer J in Kerr v Badran [2004] NSWSC 735 at [48]-[50]: [48] Both medical experts were referred to the passage in Banks v Goodfellow which since that time has been accepted as the proper test in cases where testamentary capacity is the issue. I set it out once again, because this case requires proper attention to be paid to it. The test is at p 565 of the judgment as follows: It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. The onus of proof is explained in Bailey v Bailey (1924) 34 CLR 558 and Estate of Hodges, dec'd; Shorter v Hodges (1988) 14 NSWLR 698.

[31]

[49] In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing "the extent" of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. The decision of Gleeson CJ in Estate of Griffith dec'd; Easter v Griffiths (unreported NSWCA 7 June 1995) must be kept in mind where he said: The formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to disclose one's assets by will is an important right, and a determination that the persons lacked (or, has not been shown to have been possessed) a sound disposing mind memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This, of course, was a case of alleged delusion, but the general requirement for care is involved in all contested probate actions. Although he was in dissent, Kirby P in para 8 of his judgment, emphasised the need for caution and stated that medical evidence must be carefully looked at to ensure that it was considered in light of the relevant test and not what the medical expert using medical terminology considered to be the legal position.

[32]

[50] Next it is important to bear in mind the decision in Worth v Clasohm (1952) 86 CLR 439. This explained that in a case where a doubt as to capacity is raised - thereby as explained in Shorter, satisfying the evidentiary onus on the defendant, the onus passing to the propounder to satisfy the court that the will propounded is valid - this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient to prevent its finding for the will propounded. 65 The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation. 66 It is true, as submitted by Mr Grieve, that the question whether the deceased was suffering from delirium, as Dr Obeid said she was, was a matter for medical expertise. However, Dr Obeid's opinion was that the underlying medical pathologies disclosed by the evidence did not of themselves establish delirium, so that what was crucial were the behavioural symptoms he described. Further, Dr Obeid's opinion was such that, if the deceased was suffering from delirium, there would be behaviour by the deceased of a kind observable by non-expert persons. This is illustrated, for example, by the following passage in which the primary judge questioned Dr Obeid about lucid intervals: Q. That question of lucid intervals, did you say that it is possible for persons to have lucid intervals? A. To appear to be so yes.

[38]

Q. Quite. In other words they might respond to matter of fact issues but have difficulty with concepts? A. Yes that's correct. 67 In that passage, Dr Obeid maintained his opinion that delirium does not come and go; and said that, although there may appear to a normal person to be "lucid intervals", testing of the person's cognitive abilities would dispel that appearance. Although a patient having delirium is unable to give appropriate attention to an issue and to make an appropriate response, the patient may be able to make an appropriate response to simple or matter-of-fact issues. 68 The medical notes contained quite extensive references to issues raised with the deceased and her responses. Two important examples are set out and discussed in pars [60] and [61] of the primary judge's judgment as follows: [60] At 17:00 hours on 7 December a social worker made a note concerning a conference between hospital professional staff including an ICU specialist and specialist haematologist. The conference was conducted through a Greek interpreter. The whole of that note must be read. I note some relevant extracts: "Mrs Kreizis was explained the dynamics of her illness, treatment plan and possible need for (indecipherable). Mrs Kreizis indicated that she understood all that was explained to her and asked appropriate questions. In regards to who she would like as person responsible pt indicated she wanted her nephew Stephen, However did not want neither he or George to know as she wants to make her own decisions. In the event however pt stated she wanted Stephen to be person responsible if she was unable to make decisions … Team happy that following assessment with interpreter Mrs Kreizis has the mental capacity to make decisions and understand the implications of her decisions." It is clear that the social worker believed that the testatrix was attentive and responded appropriately to what was being said. When his attention was directed to this note, Dr Obeid expressed the view that the social worker was not qualified to make that assessment. Dr Obeid had no basis for that comment. He did not know who the social worker was or the skills and experience of that social worker. For those reasons I reject the criticism. In my view, it was an attempt by Dr Obeid to explain away evidence that stood in the path of his conclusion. More importantly, the view of the social worker was confirmed by another assessment of the testatrix made that day.

[40]

She also indicated that she didn't want George or Stephen to know this at the moment - She appeared to be concerned about how George would feel … - Christina nodded and shook her head appropriately, she also mouthed names and questions. That showed that she understood what was being discussed - She responded appropriately to discussion about (indecipherable) and benefits of the tracheotomy including mouthing "will I die?" when the option of not having chemo was discussed. - Christina made her wishes clear through nodding, pointing and mouthing words. - Christina has the capacity to make these decisions." That same report also records the result of a family conference that had been noted in the social worker's report, though I have not quoted it. Both reports expressed the same conclusions. It noted that the family members agreed to respect her wishes. Those members of the family had visited the testatrix at hospital. They were in a position to assess her faculties and, relevantly, her capacity to be attentive and to respond appropriately. The fact that they were willing to respect her wishes does not necessarily mean that the testatrix was aware of what was occurring and was responding appropriately, but, when considered with all of the other evidence indicates that she was. When his attention was drawn to the psychiatrist's observations, Dr Obeid responded that the testatrix was intubated and unwell, feverish and in the intensive care unit. He thought that it was unlikely that she was able to respond appropriately. However, Dr Obeid does not know all of the circumstances of the conference. He does not know how information was given to the testatrix nor how adequately she responded. A psychiatrist present at the conference is obviously qualified to make the assessment. In addition, Dr Obeid was not present at that conference, a fact to which considerable weight must be given. In my view Dr Obeid's response was another attempt to explain away evidence which had not been referred to in his report and which stood in the path of his conclusions. In addition, it fails to have regard to the fact that the psychiatrist's report repeatedly refers to appropriate responses by nodding as well as to occasions when the testatrix mouthed an answer. 69 The primary judge's statement in par [60] that Dr Obeid had no basis for his comment (Black 18) about the qualifications of the social worker was criticised by Mr Grieve. However, in my opinion there was a reasonable basis for the primary judge's statement. The social worker was not expressing a medical opinion that the deceased was not suffering from delirium, but a lay opinion that the deceased had indicated she understood what was explained, asked appropriate questions, indicated she wanted the respondent as the person responsible, but did not want either the respondent or the appellant to know as she wanted to make her own decisions, and that the deceased had the mental capacity to make decisions and understand their implications. 70 Dr Obeid's comment could perhaps be understood as asserting (correctly) that the social worker would not be qualified to make a medical judgment as to whether or not the deceased was suffering from delirium; but the social worker had not purported to do this. The only basis on which Dr Obeid could have concluded that the social worker was not qualified to make the lay assessment that she did make (if he in fact did so) was that she must be wrong, and therefore not qualified, because Dr Obeid's opinion was that the deceased was suffering from delirium. A correct approach by Dr Obeid would have been to take the note as expressing the social worker's response to interaction with the deceased, and to take that into account before reaching his opinion that the deceased was suffering from delirium; and Dr Obeid accepted this (Black 18). However, if on the way to reaching that opinion Dr Obeid rejected the views expressed by the social worker, he should have been able to give reasons for rejecting them that did not beg the question by assuming that his opinion that the deceased suffered from delirium must be correct; and in my view he did not give such reasons. 71 The primary judge's judgment goes on to refer to further notes indicating that the deceased after 7 December 2004 continued to be aware of what was happening and to respond appropriately. Dr Obeid's evidence concerning those notes was also unsatisfactory, in that he did not explain how the behaviour described in those notes was consistent with the symptoms of delirium he had identified. 72 One note not specifically referred to by the primary judge seems to me quite telling against Dr Obeid's conclusion. On 7 December 2004, it was noted that the deceased nodded when asked if she wanted "chemo" and nodded when asked if she wanted a tracheostomy; and it was then noted (Blue 471) that she mouthed questions to the interpreter "including asking if the tracheostomy was required before the chemo". In my opinion that indicates a capacity to give appropriate attention to an issue that was not simple or matter-of-fact, and to make an appropriate response to that issue. 73 For those reasons, in my opinion this is not a case where the primary judge sought to rely on his own medical expertise to reject uncontradicted evidence by a medical expert; and in my opinion Strinic has no application. In my opinion, it was reasonable for the primary judge to accept the hospital notes at face value: they were substantially contemporaneous notes, and in my opinion there is no basis for the suggestion that they are unreliable because medical personnel would wish to convey that the patient had the capacity to consent to treatment. In my opinion also, the primary judge was justified in expressing doubts about Dr Obeid's reliability, when Dr Obeid appeared not to have taken into account matters in the hospital notes suggesting behaviour by the patient inconsistent with his diagnosis, and did not give reasons for not doing so other than reasons assuming the correctness of his opinion. The primary judge's expression of doubt as to whether Dr Obeid, when writing his report, was aware that the respondent was the nephew of the deceased, was not an expression of doubt whether Dr Obeid was telling the truth when he said that he had read the appellant's affidavits, but rather an expression of doubt whether he had taken in that particular aspect of them. 74 For the reasons given when discussing grounds 2A and 2B, those matters have no impact on the correctness of the primary judge's ultimate conclusion. 75 Accordingly, grounds 1 and 2 are not made out.

[41]

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"

Zorbas v Sidiropoulous

At a glance

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Judgment (43 paragraphs)

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Cases Cited (16)

Cited By (38)