Indjic v Stojanovic

[2020] NSWSC 470

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Indjic v Stojanovic [2020] NSWSC 470
Hearing dates:	17 – 18 February 2020
Date of orders:	30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Orders that the Plaintiff’s Summons be dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Representation – Unrepresented litigant – Plaintiff refused to obtain legal assistance – Responsibility of the court to ensure fair hearing   SUCCESSION – Claim for family provision order by Plaintiff who asserts she was a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – No reliance on any other category of eligibility until raised at the hearing – Then asserted that Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member, and subsequently, that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death – No reference to factors warranting the making of the application until submissions served on second day of the hearing – Whether to permit Plaintiff to rely upon other grounds of eligibility – Defendant denies Plaintiff was an eligible person within any category of eligibility – Whether factors which warrant the making of the Plaintiff’s application – In any event, Defendant submits that no provision should be made for the Plaintiff and that her Summons should be dismissed.
Legislation Cited:	Evidence Act 1995 (NSW), ss 69, 140 Family Provision Act 1982 (NSW) Interpretation Act 1987 (NSW), s 21C Probate and Administration Act 1898 (NSW), s 86 Property (Relationships) Act 1984 (NSW), s 4 Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 63, 64, 84, 88, 99, Ch 3 Uniform Civil Procedure Rules 2005 (NSW), r 7.1
Cases Cited:	Antoun v R (2006) 80 ALJR 497; [2006] HCA 2 Armagas Ltd v Mundogas S.A. [1985] 1 Lloyds Rep 1 (“The Ocean Frost”) Ashton v Pratt (No 2) [2012] NSWSC 3 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Bar-Mordecai v Hillston [2004] NSWCA 65 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Carey v Robson (No 2) [2009] NSWSC 1199 Cary v Owners of Strata Plan No 7241 [2002] FMCA 18 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241 Cicek v Estate of late Solomon [2014] NSWCA 278 Dakin v Sansbury [2010] FMCAfam 628 Dion v Rieser [2010] NSWSC 50 Dive v Lin [2017] NSWLEC 153 Doshen v Pedisich [2013] NSWSC 1507 Farquar v Farquar (No 2) [2008] FamCA 682 FO v HAF [2007] 2 Qd R 138; [2006] QCA 555 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Grey v Harrison [1997] 2 VR 359 Hamod v New South Wales [2011] NSWCA 375 Harkness v Harkness (No 2) [2012] NSWSC 35 Hayes v Marquis [2008] NSWCA 10 Howard v Batistich [2019] FCA 525 HRDW v HSJL [2006] FamCA 257 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep) Kay v Archbold [2008] NSWSC 254 KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489 Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 Lynam v Director General of Social Security (1983) 52 ALR 128 MacPherson v R (1981) 147 CLR 512; [1981] HCA 46 Manuel v Lane [2013] NSWCA 61 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 McKenzie v McKenzie [1971] P 33 Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748 Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 Oscar v Traynor [2008] FamCAFC 158 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 Piras v Egan [2008] NSWCA 59 Pollock v Hicks [2015] NSWCA 122 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 R v Zorad (1990) 19 NSWLR 91 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Re Estate of Sigg (dec’d) [2009] VSC 47 Re Fulop, Deceased (1987) 8 NSWLR 679 Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 Richardson v Armistead [2000] VSC 551 Robson v Quijarro [2009] NSWCA 365 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 2) [2010] FCA 275 Sassoon v Rose [2013] NSWCA 220 Scragg v Scott [2006] NZFLR 1076 Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339; [2001] FMCA 2 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Sullman v Sullman [2002] NSWSC 169 Szypica v O’Beirne [2013] NSWSC 297 Thomas v Times Book Co [1966] 1 WLR 911 Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Winter v Fleeton [2002] WASCA 73 Ye v Fung [2006] NSWSC 243 Yee v Yee [2017] NSWCA 305 Yesilhat v Calokerinos [2015] NSWSC 1028 Zahra v Francica [2009] NSWSC 1206 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
Category:	Principal judgment
Parties:	Stoja Indjic (Plaintiff) Boris Stojanovic (Defendant)
Representation:	Counsel: Mr K Morrissey (Plaintiff) Defendant (self-represented)   Solicitors: MWK Lawyers (Plaintiff) Defendant (self-represented)
File Number(s):	2018/374311

Judgment

Introduction

1. HIS HONOUR: In this case, the Plaintiff, Stoja Indjic, seeks a family provision order out of the estate of Drago Stojanovic (the deceased). A family provision order is one made by the Court, under Chapter 3 of the Succession Act 2006 (NSW) (the Act) in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

2. The proceedings were commenced by Summons filed 14 November 2018. The hearing commenced on 17 February 2020 and concluded within the two days it had been allotted.

The Defendant — litigant in person

3. The Defendant in the proceedings is Borislav (‘Boris’) Stojanovic, who is a now adult child of the deceased. In clarifying the particulars of the relief that the Defendant sought in response to the Plaintiff’s claim for provision, he consistently stated that no provision should be made for the Plaintiff and that her claim should be dismissed. He continued to make that submission at the hearing. In addition, he argued that the Plaintiff should pay his costs of the proceedings in the event that she is unsuccessful.

4. The matter had been in the Family Provision List on a number of occasions, for directions, the first occasion being on 8 February 2019, when Mr K Morrissey of counsel appeared for the Plaintiff and when the Defendant appeared in person. On that occasion, and on each subsequent occasion that the matter was before the Court, the court explained to the Defendant that the matter appeared to be factually, and legally, complex, and that he could be at some disadvantage by appearing without legal representation. It was repeated that he should seek the assistance of lawyers in the conduct of the proceedings on behalf of the estate, as, without any disrespect intended, he lacked the professional skill and ability resulting from an education in, and understanding of, the relevant law and procedure and, also lacked the objectivity and emotional distance from his own case.

5. On each occasion, that the matter has been listed for directions, the Defendant confirmed that he would not obtain legal representation, and that he wished to continue to act for himself. It was difficult to know, precisely, what had driven that decision, as the estate has a gross value in excess of $1 million but it appeared to be the result of the exercise of a free and informed choice made by the Defendant.

6. Even at the commencement of the hearing, he stated at Tcpt, 17 February 2020, p 1(42–44):

“… I’m going to attempt to defend the case myself as best I can. I think I can make a fair effort in trying to disprove the claimant’s claims and their, their attempt at a successful verdict.”

7. Despite his appearance at the pre-trial directions hearing on 10 December 2019, when the matter was listed, for hearing, in the Family Provision Running List commencing on 17 February 2020, and despite being provided with a written copy of the directions made on that date for the orderly conduct of the hearing, the Defendant failed to comply with any of the directions made. However, at the commencement of the hearing, a document headed “Affidavit of Boris Stojanovic 18/12/2019”, was handed up and, without objection, relied upon.

8. A Schedule of Assets and Liabilities prepared on behalf of the Plaintiff, was marked Ex JS 1. (I shall return to these documents later in these reasons, the contents of both of which required amendment.)

9. In view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), the Court accepted the Defendant could continue without legal representation.

10. At the hearing, the Defendant, again, appeared without any legal representative and without the assistance of a “McKenzie friend” (that name being derived from the decision of the English Court of Appeal in McKenzie v McKenzie [1971] P 33).

11. The Court has a duty to ensure that the trial is fair and determined in accordance with the law and with the need for as cheap and efficient judicial determination as is feasible. Of course, this duty applies whether the Defendant has been unable to obtain legal representation, or if a party appears self-represented by his, or her, own choosing, or where the party is represented: Tomasevic v Travaglini (2007) 17 VR 100 at 129–130 [139]–[142]; [2007] VSC 337 at [139]–[142] (Bell J); see also MacPherson v R (1981) 147 CLR 512 at 546–547 (Brennan J); [1981] HCA 46.

12. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95 (The Court); Hamod v New South Wales [2011] NSWCA 375 at [309]–[316] (Beazley JA, Giles and Whealy JJA agreeing). Of course, the application of the general principle varies depending on the particular circumstances of the case.

13. Yet, to proceed without legal representation, or to dismiss one’s lawyers during the course of proceedings, should not be an advantageous procedural step. (There was no suggestion, in this case, that the Defendant was attempting to manipulate the system.)

14. The Defendant was told that the Court’s duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate or stand in the shoes of legal representatives had they been retained. Nor would the Court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 26–27 (Samuels JA); Cicek v Estate of late Solomon [2014] NSWCA 278 at [126]–[130] (Ward JA, Meagher and Barrett JJA agreeing); Tomasevic v Travaglini at [139]–[142] (Bell J); endorsed in Pollock v Hicks [2015] NSWCA 122 at [91] (Gleeson JA, Macfarlan and Emmett JJA agreeing).

15. The Defendant was also told that the duty to ensure a fair trial applies to both parties. Any assistance given to him would be limited to what was necessary so far as was reasonably practicable, to overcome the procedural disadvantages that he faced as a self-represented litigant by reason of not being legally trained: Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40, at [74] (Buss P, Murphy and Vaughan JJA).

16. As he had been told at different directions hearings, he was also told that the matter was one of some complexity, and that if he chose to represent himself, he would have to accept the consequences of that choice and that the Court would not become integrally involved in the formulation of the Defendant’s case on his behalf.

17. The Defendant was also informed that the Court would not permit him to give evidence from the bar table without oath or affirmation. The Court then went on to explain how the case would proceed, commencing with the reading of the affidavits onto the Court record; informing him of his right to object to any part of the affidavit evidence relied upon by the Plaintiff that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); his right to cross-examine the Plaintiff; and to provide an explanation of the consequences of not cross-examining a witness. The guidance did not extend to advising him of how his rights should be exercised.

18. The Court also provided him with an explanation of the role and purpose of cross-examination, and the necessity for him to put to each witness whose affidavit was read, any aspects of her, or his, evidence that he proposed to contradict or claim was false, so that he, or she, would have an opportunity to provide an explanation. (Clearly, he seemed to take account of what had been said to him but, unsurprisingly, he struggled with what was required for an effective cross-examination.)

19. The Defendant was shown the Outline of Submissions that had been received from counsel for the Plaintiff and he confirmed that he, too, had received a copy. A copy of the relevant sections of the Act upon which he would need to address the Court, including ss 57, 59 and 60, was provided to him. He was told that there was a difference between evidence and submissions and that what he said during submissions would not be regarded as evidence.

20. The Defendant did not provide any adequate reasons for not having complied with the directions of the Court regarding the service of updating affidavits or the provision of an outline of submissions in writing other than that he had “misunderstood the instruction” I had given: Tcpt, 17 February 2020, p 3(50) – p 4(36). He was also unable to provide a proper explanation for not responding to an email sent on 11 February 2020, at my request, by my Associate, to him and to counsel for the Plaintiff reminding each of the directions made which, at least in part, had not been complied with: Tcpt, 17 February 2020, p 4(38) – p 5(11).

21. The parties were also informed that the Court would not devote unlimited time to listening to unmeritorious arguments, or irrelevant cross-examination by either side: Antoun v R (2006) 80 ALJR 497 at 502 [22]; [2006] HCA 2 at [22] (Gleeson CJ).

22. As has been noted, “… the right of a party to be given an opportunity to be heard … includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his, or her, case and who fails to make the most of it, cannot later be heard to complain that there has been procedural unfairness”: Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568 at 579 [50]; [2014] NSWCA 293 (Basten JA, Barrett and Ward JJA agreeing).

23. Both parties were referred to my decision in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 and the decision of the Court of Appeal in Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62, in which the appeal was dismissed. A copy of each of the reasons of each Court was provided to the Defendant (because he may not have had access to New South Wales Caselaw).

24. I have no doubt that the Defendant is an intelligent man. He seemed to have no difficulty understanding what was said to him. Indeed, in response to a number of questions, the Defendant confirmed that he understood the process that he had to follow: Tcpt, 17 February 2020, p 5(50) – p 6(20).

25. It is never easy to act as a litigant in person, particularly against experienced legal opposition. However, the Defendant displayed an insight into the case that he was required to present and he was able to marshal some arguments in support of his case. In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the Court and to counsel for the Plaintiff. He properly participated in the hearing and his presentation of the case in court has not contributed to the assessment of his credit on the facts.

26. Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Defendant as he was clearly without any legal knowledge or training. Overall, I am satisfied that he understood the nature of the proceedings and that he conducted them as well as he could. As will be read, he has been successful.

27. I should also note that Mr Morrissey of counsel, who appeared for the Plaintiff, did not take pedantic objections to the Defendant’s affidavit evidence and, even though he might have objected to some matters, he did not do so. Furthermore, during his cross-examination, he questioned the Defendant politely and calmly, and he allowed the Defendant a reasonable opportunity to answer the questions put to him. Throughout the proceedings he treated the Defendant with respect, and, if I may say, fairly.

Some formal matters

28. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. The Plaintiff asserted in her affidavit of 4 February 2019, and it was submitted in counsel’s written Outline of Submissions that she was a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act.

29. A reading of the Defendant’s first affidavit affirmed on 30 May 2019, leads me to conclude that he disputed that the Plaintiff was an eligible person under s 57(1)(b) of the Act. At the commencement of the hearing, he confirmed that he proposed to dispute her eligibility on this ground.

30. Then, when the question of other bases of eligibility was raised by the Court, counsel for the Plaintiff submitted that if eligibility under s 57(1)(b) was not established, he would be submitting that the Plaintiff is a person (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who was, at that particular time or at any other time, a member of the household of which the deceased person was a member: s 57(1)(e) of the Act. Later still, on the second day of the hearing, counsel for the Plaintiff attempted to make the further alternative submission that the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death: s 57(1)(f) of the Act; Tcpt, 18 February 2020, p 91(14–18).

28. The Plaintiff had not, previously, relied upon either alternative basis of eligibility. There was no reference to “dependency” in the Plaintiff’s evidence or in her counsel’s written Outline of Submissions. Even if there had been, counsel had not mentioned (prior to his written Supplement to the Plaintiff’s Case Outline received at the conclusion of the first day of the hearing) s 59(1)(b) of the Act, which provides in the case of a person who is an eligible person by reason only of sub-paragraph (d), (e) or (f), of the definition of “eligible person” in s 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. (Indeed, he had not mentioned “factors which warrant the making of an application” at all: Tcpt, 17 February 2020, p 8(23–36).

29. I shall return to this aspect, and the consequences of the lateness of the proposed reliance on other grounds of eligibility, by counsel for the Plaintiff, later in these reasons.

30. It was not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 17 February 2020, p 9(12–18).

31. As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

32. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

33. In this case, the Plaintiff did not seek an order designating property as notional estate of the deceased. Counsel appreciated that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate; or (b) the deceased’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances: s 88 of the Act.

34. The Defendant did not state that he was going to make any application for commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background Facts

38. It is next convenient to set out some background facts that are not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.

39. The deceased was born in April 1939 and died on 27 June 2018 aged 79 years.

40. The deceased was married to Bosiljka Stojanovic. The marriage was dissolved by a divorce order made in June 1998, which became absolute in July 1998, and which terminated the marriage.

41. There were two children of the marriage, being Dragoslav (called “Rodney”) Stojanovic, who was born in May 1965, and the Defendant, who was born in Australia, in February 1972. Three members of the family had come to Australia from the Socialist Federal Republic of Yugoslavia (as it then was) in 1969.

42. There is evidence that in September 2015, an Apprehended Violence Order against Rodney was made. It appears, also, from the evidence, that Rodney was made bankrupt as a result of a debtor’s petition, on 14 December 2018 and that his trustee is the Official Trustee in Bankruptcy. He is currently an undischarged bankrupt. He played no part in the proceedings.

43. The deceased’s last Will was one made on 28 February 2007, Probate of which Will was granted, by this Court, to the Defendant on 21 September 2018.

44. In that Will, the deceased relevantly:

1. appointed the Defendant as the sole executor and trustee of his Will;

2. left a specific legacy of $20,000 to “my friend and cleaner MOJA BADA DAME PRATI for her own use and benefit absolutely”;

3. devised his one-half share in a property at George Street Erskineville (the Erskineville property) to Rodney (referred to as Dragoslav Stojanovic in the Will) for his own use and benefit absolutely, and noted that “I have purchased for him a home unit at Canley Vale for a sum of $27,000.00 sixteen years ago in his name which he has since sold to satisfy his gambling habit”;

4. devised his property at Kent Street Newtown (the Newtown property) to the Defendant for his own use and benefit absolutely;

5. devised his house at Zaxalska Novic Sad, Serbia (the Serbian property) to his “sons … DRAGO … AND BORIS …”; and

6. left the rest and residue of his estate to be divided “as to 50% between my brother’s son and daughter … [and] as to the remaining 50% between my sister’s sons …”.

45. At the commencement of the hearing, it was confirmed that “MOJA BADA DAME PRATI”, in the Serbian language, is not a person. (The Defendant asserted that the meaning of the words was “my friend and cleaner” and that the person referred to was the Plaintiff: Tcpt, 17 February 2020, p 11(32–41).)

46. The Plaintiff, by her counsel, denied that if the words meant “my friend and cleaner”, the person referred to was not her, with the result that there is no provision made for her in the Will of the deceased. (The dispute does not have to be determined as the Plaintiff asserted that no provision was made for her in the Will. The Defendant has not paid that amount to her.)

47. There was really no dispute that the Newtown property has been registered in the name of the Defendant. The Transmission Application dated 2 October 2018 revealed that he was seeking to be registered on title “being entitled as executor of the will … of the deceased registered proprietor … pursuant to probate …”: Tcpt, 17 February 2020, p 12(50) – p 13(40); Ex P1/99.

48. The Plaintiff annexed, to her Affidavit affirmed on 4 February 2019, a copy of the Reasons for Decision of the New South Wales Civil and Administrative Tribunal, Guardianship Division, in which the Public Guardian had been appointed as the guardian of the deceased “with the authority to make decisions about his accommodation; services; health care and medical and dental consents”. The Tribunal also committed the estate of the deceased to the NSW Trustee and Guardian.

49. The application to the Tribunal had been made by a social worker at the Royal Prince Alfred Hospital. Present at the hearing of the applications was the Plaintiff, who was identified as a “former partner” and she was a party to each application (although the Plaintiff’s name was misspelled as “Ms Incic Stognak”. The Defendant did not appear to dispute that the Tribunal was, indeed, referring to the Plaintiff: Affidavit, Boris Stojanovic, 30 May 2019). There was no evidence that the Defendant had been served with either of the applications and he was not referred to as a party to either application.

50. The Defendant lodged an “Application to Review or revoke a financial management order” with the Tribunal on 28 November 2016. In that application, he did not identify any “other people involved” as required.

51. On 31 March 2017, the New South Wales Civil and Administrative Tribunal, Guardianship Division, heard and dismissed an application, made by the Defendant, “to review the financial management order made on 10 October 2016 in relation to the estate” of the deceased. The Tribunal had made an order appointing the NSW Trustee and Guardian as the deceased’s financial manager. At the date of that hearing, the Tribunal found that the deceased was “unable to speak to the Tribunal or to provide any views”. The Tribunal had been informed by Ramila Pokharel, Director of Care at the Holy Spirit Aged Care Facility, in which the deceased was then a resident, that he “is physically very unwell, both physically and cognitively”.

52. The Defendant gave evidence, before the Tribunal, that the deceased had “promised him that he could live in the Newtown property rent-free (or, at most, paying less than commercial rent) and has left the Newtown property to [the Defendant] in his will”: Tribunal’s Reasons for Decision at [4].

The nature and value of the deceased’s estate

53. At a directions hearing on 10 December 2019, at which the Defendant was present, I directed the Plaintiff to provide an Agreed Schedule, that contained:

1. the assets and liabilities of the estate at the date of death;

2. the assets and liabilities of the estate at the date of the Schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; and

5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.

54. As stated, counsel for the Plaintiff did provide such a Schedule to the Court. A copy had been provided, belatedly, to the Defendant.

55. There was, initially a dispute that the Erskineville property was owned jointly with the deceased’s former wife, and had passed to her by survivorship. The Defendant had asserted that they had held the property as tenants in common. However, a copy of the Certificate of Title, when shown to him, satisfied him that the title to the Erskineville property had been held as joint tenants and that the deceased’s former wife, the Defendant’s mother, as the surviving joint tenant, was entitled to be registered as the sole proprietor of that property.

56. The Defendant gave evidence that the value of the Erskineville property was $1,300,000 (although had it been relevant, the maximum value of the deceased’s interest in it, if designated as notional estate, on the basis of that value, would have been $650,000). In the Defendant’s affidavit of 30 May 2019, he put the value of the half-share at $650,000. However, in his Affidavit of 18 December 2019 (attached to Ex JS1), he asserted that the half-share was valued at $625,000. (Any issues about the Erskineville property were really irrelevant, as the Plaintiff had not made any claim that the deceased’s interest, as joint tenant, should be designated as notional estate: Tcpt, 17 February 2020, p 19(09–27).) Had she done so, the deceased’s former wife, of necessity, would have had to be joined as a party/Defendant to the proceedings.

57. The Defendant acknowledged that the Serbian property has a value of $40,000, but added that “… I am unsure about the legal procedure in obtaining the property as it would be delayed and relatively expensive …”. A family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased was, at the time of death, domiciled in New South Wales: s 64 of the Act.

58. There was no dispute that a practical problem would arise in making an order for provision out of the Serbian property, and presumably, for this reason, neither party sought such an order. In any event, the Defendant, and his brother, Rodney, are entitled to this property under the terms of the deceased’s Will.

59. The Defendant annexed a copy of a bank statement of an account held in the name of the deceased for the period 20 July 2018 and 31 August 2018 that revealed a credit balance of $19,576. There was also another account with a credit balance of $207. There was a suggestion from the Defendant that the money in that account had now been expended: Tcpt, 17 February 2020, p 17(18–32). It is, ultimately, unnecessary for present purposes to determine whether this is so.

60. The Defendant gave evidence that the cost of memorial work on the deceased’s grave was $10,800, of which $4,000 had been paid as a deposit, and that the balance of $6,800 had been paid by the deceased in November 2012. However, funeral costs of $3,525 had not been paid and the Defendant was repaying this amount by an instalment agreement entered into with the Simplicity Funerals in July 2018 and had continued to make those instalments between August 2018 and 20 March 2019. He said that he had made the payments of the instalments out of his Newstart allowance but had reimbursed himself out of the estate: Tcpt, 17 February 2020, p 21(07) – p 22(25).

61. The Defendant also gave evidence that for the financial year ending 30 June 2018, there were Council rates of $1,186 outstanding and that for the financial year ending 30 June 2019, there were Council rates of $1,651 outstanding. Some of these rates had been paid, although as at May 2019 some amounts were still owed. Other liabilities were said to be $179 (to Energy Australia), $148 (to Sydney Water Corporation) and $2,073 to the Supreme Court for the filing fee of the Summons for Probate (an application for the waiver of which was refused on 27 March 2019).

62. During the course of the hearing, the parties reached agreement that the estate of the deceased, at the date of hearing, consisted, almost entirely, of the Newtown property which had a value of $1,250,000. There was remaining cash in bank of $9,500. The total gross value of the deceased’s estate at the date of hearing was, therefore, $1,259,500. (I have omitted a reference to cents and will continue to do so.)

63. The agreed liabilities of the estate were said to include $103,328, which was said to be the capital and interest payable to the nursing home at which the deceased had resided prior to his death. On the second day of the hearing, the amount said to be owing to Catholic Healthcare was $91,282 and an additional amount of $11,999 was payable as interest on the amount owing: Tcpt, 18 February 2020, p 88(47) – p 91(06); Ex P2.

64. (The Defendant asserted that he was in dispute about the amount and thought that the debt might be limited to $80,000. Since the lower estimate has not been agreed by the nursing home, I shall use the higher estimate for the purposes of determining the value of the distributable estate at the date of hearing.)

65. It was agreed that if the Newtown property were sold, the estimated costs and expenses of sale would be $38,125. It follows that, without any deduction of the costs of these proceedings, the value of the estate out of which an order for provision could be made was $1,118,047.

The Costs of the Proceedings

66. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

67. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

68. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

69. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times.

70. The Plaintiff’s solicitor gave evidence that the estimated costs of the Plaintiff, calculated on the ordinary basis, of the proceedings, were $65,000. He also gave evidence that “[p]ayment of the plaintiff’s legal costs is subject to a successful outcome in the proceedings”.

71. The Plaintiff’s solicitor did not disclose the terms of the conditional costs agreement, but counsel, in answer to a question from the Bench, and after taking instructions, stated, without objection, that the Plaintiff, if unsuccessful, would have to reimburse her solicitors for disbursements they had paid ($5,663): Tcpt, 17 February 2020, p 27(39) – p 28(13).

72. There was no suggestion that there was an uplift fee included in the estimate of the costs and disbursements provided by the Plaintiff’s solicitor.

73. The general rule in relation to the costs of self-represented litigants has been set out by Campbell JA (Tobias and Young JJA agreeing) in Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359 at 396 [182]–[183], [185]; [2011] NSWCA 40 at [182]–[183], [185], as follows:

“Costs

At the hearing Ms Mirzabegian accepted that, if the appeal were to be upheld, it would be appropriate to make in favour of the Appellant an order for costs of the limited type that can be made in favour of a self represented litigant who is not a lawyer, namely for reimbursement of certain out of pocket expenses. The Appellant did not seek any more extensive costs order, or argue in favour of any particular type of costs order. After the hearing, in response to a question asked by the bench during the hearing, and a suggestion that this was ‘somewhat of a test case’, Ms Mirzabegian sent a note stating that she was instructed that, if the appeal were to be dismissed, the Commissioner would not seek costs against the Appellant. It is the former alternative that has become applicable.

It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney [2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37].

...

There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia v Hanes. Thus the costs order should be the sort of order that the cases cited in [183] held was permissible.”

74. Mason CJ, Brennan, Deane, Dawson and McHugh JJ had held in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, that the general rule means that a self-represented person is not entitled to recover compensation for time spent in preparing and conducting the case (at 412–414); that an order for costs is ‘confined to money paid or liabilities incurred for professional legal services’ (at 409), and that: ‘costs are awarded by way of indemnity ... for professional legal costs actually incurred in the conduct of litigation’ (at 410). Furthermore, that unless allowed for in the relevant legislation or rules, it is not permissible to treat, as a disbursement, any loss of earnings incurred by a litigant in presenting and conducting a case (at 417).

75. In Dive v Lin [2017] NSWLEC 153, Preston CJ opined at [54]:

“The High Court held in Cachia v Hanes (1994) 179 CLR 403 that the costs for which rules of court provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: at 409, 410–411, 414. However, an order for costs can include reimbursement of expenses incurred in the proceedings. A litigant in person is entitled to be reimbursed for out-of-pocket expenses incurred in and for the purposes of litigating the proceedings: see also Cachia v The Hills Shire Council (2010) 210 LGERA 191; [2010] NSWLEC 136 at [29]–[31].”

76. Expenses that have been found to be properly recoverable include court fees: Oscar v Traynor [2008] FamCAFC 158 at [85] (The Court); transcript costs: Oscar v Traynor at [85] (The Court); expenses for serving documents: Winter v Fleeton [2002] WASCA 73 at [23] (Wallwork J); fees for searching registers, such as an ASIC search fee: Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at 780 [45] (Senior Member Bayne); incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions: Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at 358 [66]; [2001] FMCA 2 at [66] (Driver FM); Cary v Owners of Strata Plan No 7241 [2002] FMCA 18 at [17] (Driver FM).

77. Expenses which have been held not to be recoverable include travelling costs: Oscar v Traynor at [87] (The Court); Farquar v Farquar (No 2) [2008] FamCA 682 at [5]–[8] (Burr J); Cachia v Hanes at 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); parking costs: HRDW v HSJL [2006] FamCA 257 at [9] (Warnick J); and meals: Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14] (Bryson J).

78. The parties were able to agree that, for the purposes of the hearing, the amount that should be taken into account, for the Defendant’s costs, was $500: Tcpt, 17 February 2020, p 29(10–25).

79. It follows that if an order were made for the costs to be paid out of the deceased’s estate, the net distributable estate, out of which an order for provision could be made, is about $1,052,500: Tcpt,  17 February 2020, p 30(29).

Eligible Persons

80. The only undisputed eligible persons are the former wife of the deceased, and their two, now adult, children. Of those, only the Defendant has given evidence.

81. There was evidence given by the Plaintiff’s solicitor, that notice of the Plaintiff’s application, and of the Court's power to disregard the interests, was served on the deceased’s former wife and upon Rodney, in the manner and form prescribed by the regulations or rules of court. Whilst the notice should have been served by the Defendant, he did not do so, although he gave evidence that “I am in co-operative discussion with [Rodney] and my mother as to who may hold the most legal entitlement to [the Erskineville property] in respect of his bankruptcy and am yet to decide on the most appropriate course of action in regards to distributing the property”.

82. The Defendant also said, without objection, from the Bar table, in answer to a question from the Bench, that he had told them about the proceedings: Tcpt, 17 February 2020, p 37(33–42).

83. In all the circumstances, the Court can disregard the interests of the deceased’s former wife, but as Rodney is a beneficiary named in the Will of the deceased, the Court is not entitled to disregard his interests. There was evidence, however, that Rodney’s relationship with the deceased was not a close one.

84. The Defendant gave some evidence about his own financial resources and needs. As a beneficiary, the Court cannot disregard his interests in determining the Plaintiff’s claim.

Medical Records

85. Counsel for the Plaintiff relied upon a copy of hospital records that included a reference to the Plaintiff being described in a number of different ways. For example, in a number of the records, over a period of years, well before the death of the deceased, included in Ex P1 (the Plaintiff’s Tender Bundle), “Stogank Incic” was described as the Emergency Contact or the Person to Contact; in others, she was described as the “Next of Kin”; in another, she was described as “partner” or as “Female friend/partner Stojanka visits” (Ex P1/19); she was also described as “Life Partner” (Ex P1/35). (In the last reference “Life Partner” at Ex P1/35, is shown as “sawyer stojanovic”. It was assumed that when “sawyer” appeared in the medical records, it was a reference to the Plaintiff.)

86. In addition, there were Progress Notes, from the Catholic Healthcare Aged Care facility that contained the following passages:

“Resident aged 77 years old came from Royal Prince Alfred Hospital via Ambulance with his partner …”: Ex P1/41

“Nursing: Drago remains in hospital wife came and stated she wanted 1:1 care …”: Ex P1/43

“Drago sent to RPA @ 1800 hrs with wife ex partner, Stoya …”: Ex P1/45

“Received phone from ex partner …

…

As per ex partner Stoya …

…

Wife called him PM.”: Ex P1/46

“… but resident was very agitated and aggressive, reluctant to go hospital while his partner arrived and present [unreadable]”: Ex P1/49

“Visited by wife. Eating and drinking with wife. [L]aying on the bed during & after dinner. He is wandering in corridor after his wife left …”: Ex P1/50

“Family in attendance : partner, son and DIL.

…

Certified death by Dr.Hung La, Son, wife are here on GP visit …”: Ex P1/51

“Dragos [sic] wife keeps on feeding Drago with mashed strawberry, jogurt [sic] and milk even though Ive [sic] explained to her that Drago is now swallowing anymore and keeps on coughing everytime [sic] she feeds Drago. I already informed her and her son last night not to force Drago to eat because he is not alert enough to do so. Staff also kept on reminding her but keeps denying that she’s feeding Drago …”: Ex P1/52

“… Hospital had discussion with son, Boris and partner Stoja …”: Ex P1/56

“… girl friend visited …”: Ex P1/63

“… tried to contact son … and Stoja … around 20:15, nil answer, GF sawyer informed and reassurance given.

…

son and girlfriend both informed and reassurance given …”: Ex P1/72

“… spoken to his wife about the Medicare card …

…

wife is visiting at time of writing …”: Ex P1/75

“… visited by girl friend, this am request extra attention to the resident, some time bring the food for him form [sic] home and eat with him …”: Ex P1/76

“Visited by girlfriend this am, had some food from home.”: Ex P1/78

“… wife is visiting at time of writing …”: Ex P1/79

…

“… family Sawyer informed above, happy with staff management …

…

Sawyer visited and reassurance given, happy with staff information”: Ex P1/71

“… Nok sawyer notified of the hospital transfer …”: Ex P1/73

…

“… GP at concord stated will do blood transfusion after NOK agreeing with procedure … Stoja aware …”: Ex P1/81

…

“Stoja, his ex partner rang early morning while the staff busy with the work. RN suggest her to call around 930. She seemed to understand”: Ex P1/84

…

“… NOK Stoya and son were informed during their visit. Ate the food from family this dinner. Wife left the food in the room uncover [sic] and staff throw it after.”: Ex P1/86

…

“… he is no longer on public guardian, ex wife soya will be the primary contact in case of emergency …”: Ex P1/87

…

“Visted by ex partner Stoja and friends. Stoja stated she gave the money to Drago, RN gave her money back $10 and advice [sic] her not to give him money as might lost [sic]. Informed Stoja about the skin tear unknown reason. Stoja also requested to keep her update of Drago’s condition”: Ex P1/96

87. It can be seen from the above notations that there are different descriptions of the Plaintiff. Whilst the medical records were said to be admissible under s 69 of the Evidence Act 1995 (NSW) (and the tender was not objected to), those medical records do not disclose the identity of the author, or the identity of the person who provided the description noted. In other words, it is not known whether the information was given by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. In addition, the information that was given may have been inaccurately transcribed, may have been open to interpretation as to what was said or meant, and may not be comprehensive. It may also have involved a conclusion about the relationship of the Plaintiff and the deceased, the factual basis of which has not been disclosed. It may have also involved an impressionistic assessment, the basis of which was not disclosed.

88. Naturally, consideration has been given to the records relied upon by the Plaintiff, but they are only part of the mosaic of what was said to be her relationship with the deceased as a whole and as at the time of his death.

Credibility of the Witnesses

89. There was no dispute that the onus of satisfying the Court that she was a person with whom the deceased person was living in a de facto relationship at the time of his death, rested with the Plaintiff. Similarly, to the extent that she was permitted to rely upon other grounds of eligibility, she would have had to establish dependency and membership of the household, or that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased's death, and, in either case, factors which warrant the making of the application.

90. Credit findings assume a greater significance in a case such as this one. Because of the position of the parties and the witness, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act, which version is the more likely and plausible. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing. As well, it is important to note the words “at the time of the deceased person's death” in s 57(1)(b) of the Act.

91. The oral evidence about the relationship of the Plaintiff and the deceased came, primarily, from the Plaintiff. On the question whether I accept her evidence, I remember that in Thomas v Times Book Co [1966] 1 WLR 911, Plowman J (as his Lordship then was), at 916, stated:

“...not only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.”

92. (The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)

93. In Richardson v Armistead [2000] VSC 551, Hansen J (as his Honour then was), at [36], stated that:

“In such circumstances the self interest of a claimant to give evidence favourable to his or her case is obvious ... in such a case much caution is exercised before the evidence of the claimant is accepted.”

94. Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206 at [1]:

“In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson [2000] NSWCA 61 at [26]:

‘... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.’”

95. Whelan J (as his Honour then was) in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in such circumstances, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

96. Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).

97. I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liq) (No 2) (2011) 297 ALR 56 at 69 [48]; [2011] FCA 1123 at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.”

98. Whilst there is no rule that a witness is entitled, as of right, to give evidence in her, or his, native tongue through an interpreter, the Plaintiff did so in this case. I found her evidence, in cross-examination, vague. It seemed to me that she, and, perhaps, her legal advisers, believed that all that she had to do was assert that she had been in a de facto relationship. I did not find her to be an impressive, or entirely reliable, witness.

99. In any event, the evidence, overall, does not satisfy me that the nature of her relationship was a de facto relationship at the time of death:

1. The deceased had not asked the Plaintiff to move into his house, but, at times, she had visited him there “to be lovers as husband and wife”: Tcpt, 17 February 2020, p 60(27–30); later, she said that she and the deceased had lived at his house and also at Drummoyne (her home): Tcpt, 17 February 2020, p 61(11–39); however, later she said that it was “only, sometimes, he came to my place”: Tcpt, 17 February 2020, p 64(11–15); these are hardly descriptions of a de facto relationship;

2. There were no documents evidencing that the Plaintiff resided at the deceased’s home at the time of his death: Tcpt, 17 February 2020, p 56(43) – p 57(20);

3. There was no objective proof that the Plaintiff had given the deceased $200, every fortnight as she asserted: Tcpt, 17 February 2020, p 57(22) – p 57(35);

4. The Plaintiff said that the deceased had given her his bank account with a balance of about $20,000 in it because that is what she wanted and “I wouldn’t go to Court if he agreed”: Tcpt, 17 February 2020, p 59(06–26); this evidence is somewhat inconsistent with the continuation, at the time of the deceased’s death, of a de facto relationship; and

5. The Plaintiff said that she had informed Centrelink that she was living with the deceased: Tcpt, 17 February 2020, p 62(33–38), but no documents corroborating that assertion were produced; and no documentary evidence was produced by the Plaintiff to establish whether the pension that she had been receiving had been calculated at the single, or at the couple, rate.

100. Until the first day of the hearing, there was no other witness who gave evidence in support of the Plaintiff’s case. The witness whose affidavit was affirmed two days prior to the hearing and filed the day before the hearing commenced, was Margaret Louise Gallen, who “lived in Drummoyne, near [the Plaintiff], since about 2004”. She wrote that between about October 2016 to June 2018, she would drive the Plaintiff to the Holy Spirit Aged Care Facility in Croydon so that she could visit the deceased, often three or more times a week; that she observed that they would demonstrate affection towards each other, including kissing, hugging and holding hands.

101. When cross-examined, she accepted that “… in the initial stages there was - when he was able there was hugging and certain - but certainly when he, he - his condition deteriorated, it was, was different. But still holding hands, and still, still kissing”: Tcpt, 17 February 2020, p 69(34–50).

102. This, in my view, does not establish the existence of a de facto relationship. That is not to say, however, that it does not have any relevance as part of the whole mosaic of the relationship.

103. What Ms Gallen did not say may be equally important. For example, she did not say that, from her observations, she had formed the opinion that the Plaintiff and the deceased were in a de facto relationship. Moreover, when cross-examined by the Defendant, she accepted that she had not met the deceased prior to his admission into the Holy Spirit Aged Care Facility: Tcpt, 17 February 2020, p 70(47) – p 71(23). Accordingly, the period of time before the deceased’s death for her to base her evidence was relatively short.

104. The court, in cases involving events which occurred some period of time before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (Kenneth Martin J).

105. As was noted by Davies J, with whom Emmett AJA agreed, in Nominal Defendant v Cordin (2017) 79 MVR 210 at 246 [167]; [2017] NSWCA 6 at [167]:

“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person’s mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved.”

Amendments

30 April 2020 - Catchwords - amended 'litigants' to 'litigant'.

Decision last updated: 30 April 2020