David Quince v Annabelle Quince

[2020] NSWSC 326

Supreme Court

New South Wales

Medium Neutral Citation:	David Quince v Annabelle Quince and Anor [2020] NSWSC 326
Hearing dates:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Application granted. See para [29].
Catchwords:	CIVIL PROCEDURE — Court administration — Sittings and vacations — Application to vacate — Video link evidence— Covid-19 — Other discretionary considerations
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases Cited:	Antov v Bokan [2019] NSWCA 250
Category:	Procedural and other rulings
Parties:	David Quince (plaintiff) Annabelle Quince (first defendant) Mary Quince (second defendant)
Representation:	Counsel: R Wilson SC, (plaintiff) I Neill SC, Dr Mantziaris (defendants)   Solicitors: Oliveri Lawyers (plaintiff) Schweizer Kobras (defendants)
File Number(s):	2019/86949

Judgment – ex tempore

1. HIS HONOUR: This matter is fixed to commence for hearing next Monday for some days, and apart from some medical evidence, which will not be capable of being called in that time, theoretically, at least, it was intended that all the lay evidence would be dealt with during the time allocated.

2. Application is made by the plaintiff to vacate the current hearing date on two bases. The first being the late filing of the evidence of a Ms Cavanough. Whether or not her evidence may properly be regarded as evidence-in-reply, it is accepted by Mr Neil SC for the defendants that it does raise new factual matters. I will come back to his approach to that affidavit in a moment.

3. The second ground is that the regime which I, as the trial judge, have imposed upon the parties means that the cross-examination of all of the witnesses would be undertaken by video-link with the various parties in separate parts of Sydney.

4. The circumstances which have led me to impose that regime are unusual in the extreme. Covid 19 is currently causing chaos here and elsewhere.

5. The allegation in the Statement of Claim is that certain transfers of shares purportedly executed by the plaintiff are forgeries. No particulars are given as to the precise time and circumstances when and how the first defendant either implemented or procured that fraud. It is nonetheless asserted that the defendant indeed effected it.

6. I am informed that no particulars have been requested of that allegation but there is no objection to it being ventilated at trial. That allegation is extremely serious to say the least.

7. Mr Wilson SC, who appears for the plaintiff, has made it abundantly plain that, I think to use his words, he has no "smoking gun", and that he would wish to be able to cross-examine the first defendant in a conventional setting. He accepts he may not have any documents, as such, to place before her. He submits that the atmosphere of the trial, such as he is able to create it and, hence, the first defendant's demeanour in answering these allegations will be crucial in assessing her credit, and in properly assessing her denials.

8. I understand and accept that allegations of this sort, especially in the absence of a clear documentary trail or other circumstantial evidence may be difficult, but not impossible on the part of the plaintiff to sustain. The exercise clearly depends upon a careful analysis of the facts and a careful observation of all concerned, which would include, Mr Wilson's own client as well because one must assume his credit will also need careful scrutiny.

9. The evidence that both parties have sought to procure from expert handwriting experts is equivocal. The simplicity of the signature and the absence of many original documents makes it impossible for the experts firmly to come to a view either way. Therefore, it is submitted that the cross-examination of the plaintiff both as to his own signatures, or alleged signatures, or, alternatively, the defendant's own conduct, will be crucial to the determination of the plaintiff's case.

10. Ms Cavanough's evidence goes to an entirely different issue. Her evidence goes to painting a picture which she is able, uniquely, to paint of her observations of the second defendant over many years. She is the life partner of the first defendant and has been for a very long period.

11. She is able to speak, at least on the face of it, as to her observations of the second defendant's personality, her activities and, more importantly, the alleged deterioration of her cognitive and physical abilities over time.

12. That is an important portrait in the case because it goes very much to the heart of the cross-claimant's allegation as to the unfair or unconscionable procurement by the plaintiff of the transfer of the relevant property or properties.

13. It is therefore essential, first, to consider the question of the video link evidence and then the evidence of Ms Cavanough.

14. Mr Wilson referred me to the decision of the Court of Appeal in Antov v Bokan [2019] NSWCA 250. In that case s 5B of the Evidence (Audio and Audio Visual Links) Act1998 (NSW) was considered. I think he is correct to submit as he does that the primary provision a Court should address is subs 2. In other words, although the Court has a discretion, either on its own motion or on application to direct that evidence be taken in a particular way, the Court must not make such a direction if any one of a number of alternatives is satisfied. One of those is in subs 2(c) namely, that the Court is satisfied that the direction would be unfair to any party to the proceeding.

15. It does seem to me that an unfairness does arise here, both from the plaintiff's point of view and from the defendant's point of view, although the defendant, I hasten to say, claims no unfairness. The defendant has been prepared to accept the regime and protocol that I have put in place.

16. However, it does seem to me that when allegations of this sort are made and where there is not an abundance of corroborative or other material, demeanour, rightly or wrongly, may well play a very significant part in the determination ultimately of whether such a serious allegation would be made out on a Briginshaw or s 140 basis.

17. I may take the view that as there is no smoking gun, Mr Wilson's chances objectively of proving his case might well be regarded as low, but the real issue is whether he would be dealt, or his client would be dealt, an unfairness in not being given a full opportunity at least to ventilate that issue in the conventional way.

18. Mr Neil, as always, candidly points to the fact that everyone is going to be in the same boat for the immediate future at least and, therefore, s 5B does not and should not be seen to have its usual operation.

19. I am not persuaded that is so. There will be many cases where the video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis. The test calls for an objective determination.

20. I, therefore, do think that given the nature of the allegation, and given the regime which the court has imposed upon the parties, it would be antithetical to the administration of justice if the regime were to work an unfairness upon any party. Here I think it would create such an unfairness.

21. I next come to the evidence of Ms Cavanough. Mr Neil pragmatically asserted this morning that if her evidence was effectively the only basis upon which I might contemplate vacating these dates he would forego all of her evidence bar, I think, paragraph 62.

22. I have heard submissions on that and I am not satisfied that that would solve the problem given the allegations in paragraph 62 which are in and of themselves novel.

23. The circumstances of this case are very sad. They are, however, analogous to many other cases of this sort which over the next few months will have to face impediments of various kinds because of the rather exceptional circumstances this country presently finds itself in.

24. I have got to ensure, as best I can, that we can continue to operate the Court’s services in New South Wales.

25. I also have to take into account, as a matter of vital public interest, and the interests of the parties, as far as I am able, whether I am able to provide a venue for the matter to proceed safely.

26. For the reasons I have just stated, I am not satisfied I can do that in this case given the issues and in my view the matter should be vacated.

27. I am prepared to consider fixing now, or in the next day or so, some dates a few months hence hopefully in circumstances where, if I may put it, perhaps overly-optimistically, the air has been cleared sufficiently for the matter to proceed, or, through joint imagination and innovation, a context can be identified where the matter can otherwise safely proceed.

28. The plaintiff in any event is arguably entitled to have time to answer if Ms Cavanough's material is to be deployed in part or in whole.

29. I therefore propose to vacate these dates and I will reserve all questions of costs.

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Decision last updated: 31 March 2020