Gagliardi v Gagliardi - [2001] NTSC 5

Gagliardi & Ors v Gagliardi & Ors [2001] NTSC 5
PARTIES:GAGLIARDI, Elena, MAMONE, Antoinette and BLAIKLOCK, Maria

v
GAGLIARDI, Jesse Aaron, GAGLIARDI, Shane Joseph, GAGLIARDI, Justine Ellenrose, PODUTI, Steven Venturino, DRUSETTA, Jenny, PODUTI, Joesphine and CAMPAGNA, Ricky Patrick

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:30 of 2000 (20005333)
DELIVERED:  22 February 2001
HEARING DATES:  16 February 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
SUCCESSION

Wills probate and administration – privilege of communications between a medical practitioner and patient where sanity in issue – meaning of “sanity”.
Evidence Act 1939 (NT), s 12(2)

REPRESENTATION:
Counsel:
Plaintiffs:Mr J Stirk
Defendants:Mr D Francis
Solicitors:
Plaintiffs:Povey Stirk
Defendants:David Francis & Assoc
Judgment category classification:      B
Judgment ID Number:  mar0106
Number of pages:  4

Mar0106
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Gagliardi & Ors v Gagliardi & Ors [2000] NTSC 5
No 30 of 2000 (20005333)

BETWEEN:
ELENA GAGLIARDI, ANTOINETTE MAMONE and MARIA BLAIKLOCK

Applicants
AND:
JESSE AARON GAGLIARDI, SHANE JSOEPH GAGLIARDI, JUSTINE ELLENROSE GAGLIARDI, STEVEN VENTURINO PODUTI, JENNY DRUSETTA, JOSEPHINE PODUTI and RICKY PATRICK CAMPAGNA

Defendants

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 22 February 2001)

These are the reasons for the ruling I made on 16 February that s 12(2) of the Evidence Act 1939 (NT) does not apply in this case. It reads:
“A medical practitioner shall not, without the consent of his patient, divulge in any civil proceeding (unless the sanity of the patient is the matter in dispute) any communication made to him in his professional character by the patient, and necessary to enable him to prescribe or act for the patient.”
The plaintiffs are the executors named in the will of the late Guiseppe Gagliardi dated 18 February 1999. He died on 15 December 1999.
The defendants lodged a caveat against the grant of probate to the executors. There is evidence to which I have had regard for these purposes from two of the defendants who speak of deterioration in the deceased’s state of health, including his mental health over a period of years prior to his death, particularly around the time he executed the will. They also assert that the deceased became under the influence of the plaintiff, Antoinette Mamone, so as not to be able to resist her wishes.
There have been brought into court documents held by Dr Pevy, the general practitioner who attended the deceased for some years, the Alice Springs Hospital where he received treatment, and the Old Timers Home at Alice Springs where the deceased resided. The defendants seek leave to inspect those documents.
It is not necessary to decide many of the questions which were raised in argument. Similar legislation exists in Victoria, Tasmania and New Zealand, but there are differences. For example, in Victoria the prohibition is in respect of “any information which the physician or surgeon has acquired” (National Mutual Life Association v Godrich (1909) 10 CLR 1;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gagliardi v Gagliardi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NTSC 5
Decision Date: 22 February 2001

CaseChat Overview and Summary

In the case of Gagliardi v Gagliardi, the plaintiffs, Elena Gagliardi, Antoinette Mamoné, and Maria Blaiklock, are the executors named in the will of the deceased, Guiseppe Gagliardi. The defendants, Jesse Aaron Gagliardi, Shane Joseph Gagliardi, Justine Ellenrose Gagliardi, Steven Venturino Poduti, Jenny Drusetta, Josephine Poduti, and Ricky Patrick Campagna, have lodged a caveat against the grant of probate to the plaintiffs. The defendants allege that the deceased was not of sound mind, memory, and understanding when he executed the will. The defendants seek leave to inspect documents held by Dr. Pevy, the Alice Springs Hospital, and the Old Timers Home at Alice Springs. The court was required to determine whether Section 12(2) of the Evidence Act 1939 (NT) applied in this case. This section provides that a medical practitioner shall not, without the consent of their patient, divulge in any civil proceeding any communication made to them by the patient, unless the sanity of the patient is the matter in dispute.

The court found that Section 12(2) of the Evidence Act did not apply in this case. The court noted that while similar legislation exists in Victoria, Tasmania, and New Zealand, there are differences in the wording of the statutes. The court held that the word "sanity" should not be construed narrowly and should encompass testamentary capacity. The court also found that the interests of justice require that the word "sanity" not be confined to any degree less than its ordinary meaning. The court will hear the parties as to any limitation which should be placed upon the defendants’ inspection of the documents by reference to the period of time which they cover.

The court did not decide many of the questions which were raised in argument, including whether the executors named in the will to whom there has been no grant of probate could consent in the place of a deceased patient. The court also did not decide whether the prohibition extends to the medical practitioners divulging the prescribed communication in civil proceedings where “sanity of a patient” is the matter in dispute. The court found that the exception to the exemption should not be construed narrowly and that the interests of justice require that the word “sanity” not be confined to any degree less than its ordinary meaning.

The final orders of the court will be determined after the parties have been heard as to any limitation which should be placed upon the defendants’ inspection of the documents by reference to the period of time which they cover. The court will also consider whether the executors named in the will to whom there has been no grant of probate could consent in the place of a deceased patient. The court found that the exception to the exemption should not be construed narrowly and that the interests of justice require that the word “sanity” not be confined to any degree less than its ordinary meaning. The court will make further orders after considering the arguments of the parties.

Orders