Cuthill v Vonta
[2015] SASCFC 120
•27 August 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CUTHILL & ANOR v VONTA
[2015] SASCFC 120
Reasons for Decision of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
27 August 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appeal against an interlocutory order made by a Judge of this Court during an adjournment of a trial. The plaintiffs are the executors named in a purported will of the deceased dated 24 February 2000. The defendant is the niece of the deceased. In or about early March 2011, the defendant advised the plaintiffs that the deceased had made a later valid testamentary disposition by a will dated 6 May 2007. The plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will. Subsequently, the plaintiffs wrote to the defendant stating that they believed the 2007 will had not been validly witnessed. The defendant produced two further purported wills dated 3 December 2006 and 10 October 2008. The originals of the purported 2006, 2007 and 2008 wills have not been produced. The plaintiffs instituted these proceedings seeking to rescind the May 2012 deed with the defendant and claim a grant of probate in solemn form of the 2000 will.
There has been a history of delay in these proceedings due to the availability of witnesses and the fact that the defendant was unrepresented for much of the proceedings, including at trial. The trial eventually commenced on 16 December 2014 continued until 19 December 2014. As at 19 December 2014, the plaintiffs’ case had concluded and the defendant had given evidence and presented witnesses for the defence. The trial has since been adjourned multiple times to allow for the taking of evidence from an elderly witness called by the defence. During this adjournment, the defendant engaged counsel. Counsel for the defendant considered that the defendant should call a handwriting expert to provide evidence as to the validity of the 2006, 2007 and 2008 wills and made an application for an extension of time for the obtaining of an expert report. Over the opposition of the plaintiffs, the Judge made an order extending time for the defendant to obtain and serve an expert report to 28 May 2015. The plaintiffs sought permission to appeal against the order to this Court. The appeal was set down for hearing on 3 June 2015. No report of the handwriting expert was served by 28 May 2015.
Whether the defendant’s failure to comply with the Judge’s orders rendered the appeal otiose. Whether this Court should grant the defendant a further extension of time to serve the expert report.
Held per Gray J (Kourakis CJ and Stanley J agreeing):
1. The expert report was not served by 28 May 2015 and as such the order and the appeal against that order are otiose.
2. Considering the history of this matter, the fact that the plaintiffs have closed their case and the indulgence already granted by the Court, there would need to be exceptional reasons for granting a further extension of time. Counsel for the defendant has proffered no such explanation.
3. The report does not provide the defendant with any arguable defence to the plaintiffs’ claim. Thus the importance of the extension of time is limited and would not justify the strain that it would place on the plaintiffs at this point in the proceedings.
4. The defendant’s application for a further extension of time is refused and the matter is to be remitted to the trial Judge for the resumption of the trial.
Supreme Court Civil Rules 2006 (SA) r 160(1), referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; De Poi v De Poi (No 2) [2010] SASC 333, considered.
CUTHILL & ANOR v VONTA
[2015] SASCFC 120Full Court: Kourakis CJ, Gray and Stanley JJ
KOURAKIS CJ: I adopt the reasons of Gray J as the reasons I joined in the orders of the Court made on 11 June 2015.
GRAY J.
This is an appeal against an interlocutory order made by a Judge of this Court during an adjournment of a trial. On 11 June 2015, I joined in an order refusing an application to extend the time within which the defendant could serve an expert’s report and the making of consequential orders. My reasons follow.
Background
The plaintiffs, Daniel James Cuthill and Barry David Machin, are the executors named in a purported will of the deceased, Franciska Pregelj, dated 24 February 2000. The sole beneficiary under this will is the Watchtower Bible and Tract Society of Australia. The defendant, Yana Vonta, is the niece of the deceased. The deceased died on 9 February 2011. The plaintiffs claim that, in or about early March 2011, the defendant advised the plaintiffs that a later valid testamentary disposition was made by the deceased. On 26 July 2011, the solicitors for the defendant provided the plaintiffs with a copy of a purported will dated 6 May 2007, together with a purported English translation of that document. The plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed dated 18 May 2012, whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will.
On 27 June 2012, the plaintiffs’ solicitors wrote to the defendant’s solicitors stating that they believed the 2007 will had not been validly witnessed. The defendant produced two further purported wills dated 3 December 2006 and 10 October 2008. Notice of the existence of these two purported wills was not provided until 5 November 2012. The originals of the purported 2006, 2007 and 2008 wills have not been produced. The plaintiffs instituted these proceedings seeking to rescind the May 2012 deed with the defendant and claim a grant of probate in solemn form of the 2000 will. The defendant claims that any testamentary disposition in the 2000 will has been revoked by the later purported wills or one of them.
Initially a trial date was set in June 2014 but could not proceed due to the unavailability of witnesses. The matter was then listed for trial to commence on 26 August 2014. On 14 August 2014, the solicitors acting for the defendant advised the Court that they were no longer acting and, on 19 August 2014, the defendant made an oral application for the trial date to be vacated on the ground that she had recently suffered injuries as the result of a motor vehicle accident and would be unable to represent herself at trial. On 22 August 2014, the August trial date was vacated and a new trial date was fixed for 15 December 2014. The trial commenced on 16 December 2014 and continued until 19 December 2014. The defendant was present at trial but unrepresented. As at 19 December 2014, the plaintiffs’ case had concluded and the defendant had given evidence and presented witnesses for the defence. A further elderly witness, Draga Holzl, remained to be called by the defendant. This witness, the defendant’s mother, was physically infirm and a resident in a nursing home in Noosa, Queensland. The trial was adjourned to 2 February 2015 for the taking of this witness’ evidence, then further adjourned to 9 February 2015, and eventually relisted to resume on 13 February 2015.
On 13 February 2015, the defendant called two further witnesses, including Ms Holzl, who gave evidence via audio-link from Noosa. Ms Holzl’s General Practitioner was present in Noosa. It became apparent to the Judge that there was a real question as to whether Ms Holzl had capacity to give evidence, and further, whether she had a sufficient understanding of English to give evidence. The Judge initiated an inquiry from Ms Holzl’s General Practitioner and received a report advising that Ms Holzl was capable of giving evidence, but she should do so in her native language, Slovenian. On 4 March 2015, the Judge made a direction that the defendant be permitted to recall Ms Holzl, an application not opposed by the plaintiffs. The trial was adjourned to have arrangements made for Ms Holzl to give evidence from Noosa with the assistance of an interpreter.
At a directions hearing on 12 March 2015, new counsel appeared for the defendant. Counsel only had preliminary instructions and the matter was further stood over to 26 March 2015. On that occasion, counsel for the defendant informed the Court that he had not yet read the transcript and that no arrangements had been made to recall Ms Holzl. Counsel for the defendant raised the prospect of the defendant calling a handwriting expert. This was the first time such a suggestion had been made. The matter was adjourned until 2 April 2015, but there was no appearance for the defendant, and then further adjourned to 8 April 2015.
The Application
On 7 April 2015, the defendant applied for an order “[t]hat the defendant be given leave to have a handwriting expert assess the last three Wills of the deceased and to call that expert to give evidence in relation to their findings.” A further direction was sought “as to the release of the copies of the original Wills held by the Court in order for them to be examined by the expert.”
Counsel for both parties provided the Court with written submissions and, on 1 May 2015, over the opposition of the plaintiffs, the Judge made orders as follows:
1. On the defendant’s application (FDN 47), the defendant is permitted to obtain a report of a handwriting expert, Ms Sharon Birchall, Senior Forensic Scientist at Forensic Science SA.
2. The report of Ms Birchall is to be served by Thursday 28 May 2015.
3. Permission to the defendant to uplift the documents that are Exhibits P18, P19, and P20 to provide to Ms Birchall for the purpose of forensic assessment.
4. The documents uplifted are to be returned to the Supreme Court Registry within five business days of uplifting in the same condition, order and packaging in which they were removed.
5. This matter is adjourned to a further directions hearing on Monday 1 June 2015 at 9.30am.
On 11 May 2015, the plaintiffs sought permission to appeal against the orders. A number of complaints were advanced. In particular, that the Judge in making the order, acted upon a wrong principle, namely taking into account the defendant’s lack of representation over consideration of any other factor. It was further contended that the Judge erred in not having regard to the full history of the matter, the lack of a satisfactory explanation for the delay in making the application, the probability of further delays, and finally, the fact that the plaintiffs’ case would likely need to be reopened.
In the event, however, the defendant did not comply with the terms of the Judge’s order. No report of the handwriting expert was served by 28 May 2015. At a hearing before the Judge on 1 June 2015, counsel for the defendant informed the Court that he had received an expert report, that he had raised some queries with the expert and that the expert wanted to refer to some articles before expressing her final opinion. Counsel for the plaintiffs advised the Court that this was the first his clients had heard of a report being in existence and that as the terms of the Judge’s order had not been complied with, the plaintiffs would oppose any further extension of time for the filing of the report.
In response to an inquiry from the Judge, counsel for the defendant informed the Court that he had not served the report because all may be otiose due to the pending appeal to this Court. In the discussion that followed, the Judge made clear that no order had been made granting permission to use the report in the proceedings. Both counsel then informed the Judge that they had understood that the Judge had granted permission both for the obtaining of the report and for its use, subject to questions of admissibility.
Counsel for the plaintiff reiterated that the grant of permission was to serve a report by 28 May 2015, that the order had not been complied with and, in those circumstances, the trial should be relisted. The Judge then determined to adjourn the matter to 9 June 2015 for further consideration following the hearing of the appeal.
The Appeal
On the appeal, it became evident that events had overtaken the issues raised in the application for permission to appeal. The order the subject of the appeal had not been complied with. There was some ambiguity over the extent of the order made by the Judge. Both counsel understood that the Judge had given permission for the obtaining and use in the trial of a handwriting expert’s report, subject to the service of that report on the plaintiffs by 28 May 2015. The Judge had a different understanding and considered that the question of the use of the report in the trial was still a matter for determination. Whatever the view as to the extent of the order, the condition of the Judge’s order was not complied with and the only issue to be resolved was whether a further extension of time should be granted to the defendant.
The appeal was first heard on 3 June 2015. On that occasion, counsel for the plaintiffs initially submitted that the appeal should be stood over until the defendant had filed an application for a further extension of time. However, upon accepting that this would prolong the matter, counsel for the plaintiff made a submission that the report should be produced and any application for a further extension heard by this Court. Counsel for the defendant informed this Court that he did not have instructions as to whether his client wished to apply for a further extension of time and that he did not have instructions to produce the report. Counsel for the plaintiff submitted that the report was not privileged and should be produced pursuant to rule 160 of the Supreme Court Civil Rules 2006 (SA). Rule 160(1) provides:
(1) A party must, before the relevant time limit—
(a) obtain all expert reports that the party intends to obtain for the purposes of the trial of the action; and
(b) serve on every other party to the action a copy of each expert report in the party's possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not) not previously served on that party.
In my view, it was irrelevant whether counsel for the defendant had instructions to produce the report as the report was required to be disclosed pursuant to sub rule 160(1)(b). Further, a consideration of the relevance and probity of the contents and opinion expressed in the report was critical to the determination of whether a further extension of time should be granted to the defendant. This Court requested production of the report and copies were provided by counsel for the defendant. The Court adjourned the hearing to 11 June 2015 to allow counsel for the defendant to file materials in support of any application for a further extension of time if his client so instructed.
On 10 June 2015, counsel for the defendant filed an affidavit in support of an extension of time in which to obtain and utilise the report of the handwriting expert. The affidavit sworn by Peter Scragg, counsel for the defendant, deposed that he had not obtained the report until the date it was due to be served, 28 May 2015. Mr Scragg further deposed that, as the order made by the Judge only allowed for the documents the subject of the forensic assessment to be uplifted from the Court file for a period of five days, the expert did not wish to receive those documents until 18 May 2015. Mr Scragg said that, upon receiving the report he telephoned the expert to discuss some of his concerns and she said that she would review the report. The expert did not get back to Mr Scragg until 1 June 2015, when she provided a publication on the method she used to analyse the documents. Mr Scragg further deposed that he did not receive instructions from his client as to the report until 3 June 2015, due to issues that she experienced with her email service.
Upon this Court’s examination of the report, it became clear that the reason counsel for the defendant was hesitant to produce the report without his client’s instructions or further conferral with the expert was because it contained some opinions that could be damaging to his client’s case. The handwriting expert opined:
In my opinion, the evidence provides very strong support for the proposition that the Frances Pregelj signature depicted on The LAST WILL AND TESTAMENT of FRANCES PREGELJ dated 2006 has been ‘cut-and paste’ by a method of manual or digital manipulation onto a previous copy of the document listed as item P18.
Mr Scragg deposed:
On the morning of 3 June 2015 I had further discussions with the expert in relation to the matter that I had raised with her on 28 May 2015. During that discussion she indicated to me she had had an opportunity to confer with her colleague. She was not prepared to modify her report, but stated, as she intended it, her opinion expressed in the report did not support a finding there had been a cut-and-paste in relation to the exhibit P 18, but only there was a strong possibility it might have occurred, and given the limitations of the state of the documents it was a possibility that could not be excluded.
Counsel for the defendant submitted that if his client was allowed a further extension of time, she would seek to obtain further documents, including an earlier copy of exhibit P18, being the 2006 will, to overcome the identified limitations. Counsel for the plaintiffs opposed the application, noting that the expert had already stated that she would not change her opinion and that the further documents sought would not assist in this regard.
Discussion
The expert report was not served by 28 May 2015 and as such the order and the appeal against that order are otiose. In Aon Risk Services Australia Ltd v Australian National University,[1] the High Court considered the factors to be considered when granting an extension of time. Aon involved an application for an adjournment in order to amend a statement of claim, made on the third day of a four-week trial in a proceeding that had been on foot in the Supreme Court of the Australian Capital Territory for two years. The factors identified by the plurality in Aon are also relevant to an application for an extension of time in respect of an interlocutory process.[2] The factors identified in Aon include:[3]
- the effect on other litigants;
- the just resolution of proceedings;
- the capacity of the amending party, or the party seeking the extension of time, to meet a costs order;
- the strain of litigation generally to litigants, including non-compensable inconvenience and stress;
- the nature and importance of the amendment, or the interlocutory application to which the extension of time relates, to the party applying;
- the point the litigation has reached; and
- whether the party making the application has had sufficient opportunity to plead their case or pursue the interlocutory application.
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[2] See De Poi v De Poi (No 2) [2010] SASC 333.
[3] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212-15.
While the Judge did not provide reasons for the orders, she made the following remarks at the hearing:
I am going to permit the defendant to obtain the report of the handwriting expert. It is with a great deal of reluctance that I do that and it is, I would have to say, primarily because she has been unrepresented through these proceedings. She gave evidence in the proceedings so she has been at a disadvantage. However, I note the argument that she did have representation up until just prior to the first trial date, as I recall.
... because of [sic] the authenticity of the will is a central issue in this trial, I am prepared and as I’ve indicated because of Ms Vonta being unrepresented to permit this indulgence, it goes without saying that if there were representation, there is no way the court would countenance the application.
These considerations as to the defendant being unrepresented do not apply to this subsequent application for an extension of time. The defendant was represented when the Judge made the order extending time and when the report was due to be served. The defendant failed to comply with the order. Considering the history of this matter, the fact that the plaintiffs have closed their case and the indulgence already granted by the Court, there would need to be exceptional reasons for granting a further extension of time. Counsel for the defendant has proffered no such explanation. The report does not provide the defendant with any arguable defence to the plaintiffs’ claim and, as contended by counsel for the plaintiffs, it unlikely that the further documents sought by the defendant would assist in this regard. Further, it is not known when such documents would be available for examination. Thus the importance of the extension of time is limited and would not justify the strain that it would place on the plaintiffs at this point in the proceedings.
It is for these reasons that I joined in orders refusing the defendant’s application for a further extension of time and remitting the matter to the trial Judge for the resumption of the trial as soon as reasonably practicable. The appeal was moot because the defendant failed to comply with the order of the Judge. The defendant’s subsequent application for a further extension of time to obtain and serve the expert report was dismissed. Accordingly the order of the Court was that the costs of the application be the plaintiffs’ costs in the cause.
STANLEY J: I agree with the reasons of Gray J for joining in the orders of the Court made on 11 June 2015.