Mackedie and Mackedie v Public Trustee, Jerome (dec'd), Russo and Jerome

[1996] QCA 253

IN THE COURT OF APPEAL	[1996] QCA 253
SUPREME COURT OF QUEENSLAND

Appeal No 261 of 1995

Brisbane

[Mackedie v. The Public Trustee & Ors]

BETWEEN:

RONALD ROBERT MACKEDIE
and
RHONDA FAYE MACKEDIE

(Plaintiffs)

Appellants

AND:

THE PUBLIC TRUSTEE - REPRESENTATIVE OF
WILLIAM JAMES JEROME, DECEASED

(First Defendants)

First Respondent

AND:

LAURENCE ALAN RUSSO
and
WARREN WAYNE JEROME

(Second Defendants)

Second Respondents

Fitzgerald P
Williams J

Byrne J

Judgment delivered 02/08/1996

Order of the Court

APPEAL DISMISSED WITH COSTS

fresh evidence relevant to the deceased's mental
capacity.

Gibbons v. Wright (1954) 91 CLR 423

Counsel:  Mr L Stephens, with him Mr AM Musgrave for the
appellants.
Mr BW Nickel for the first respondent.
Mr RN Chesterman, with him Mr M Drew for the
second respondents.

Solicitors: Messrs McCullough & Robertson for the

appellants.

Official Solicitor to The Public Trustee for the
first respondent.
Messrs Murray Lyons & Co for the second

respondents.

Hearing Date: 25 July 1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 261 of 1995

Brisbane

Before Fitzgerald P
Williams J
Byrne J

[Mackedie v. The Public Trustee & Ors]

BETWEEN:

RONALD ROBERT MACKEDIE
and
RHONDA FAYE MACKEDIE

(Plaintiffs)

Appellants

AND:

THE PUBLIC TRUSTEE - REPRESENTATIVE OF
WILLIAM JAMES JEROME, DECEASED

(First Defendant)

First Respondent

AND:

LAURENCE ALAN RUSSO
and
WARREN WAYNE JEROME

(Second Defendants)

Second Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 2nd day of August 1996

The appellants, Ronald Robert Mackedie and his wife Rhonda Faye Mackedie, have appealed against an order dismissing the action they brought in the Circuit Court at Cairns against both the first and second respondents.

Rhonda Faye Mackedie and each of the second respondents, Laurence Alan Russo and Warren Wayne Jerome, were grandchildren of Williams James Jerome who died on 16 January 1987 aged about 83 years. Three documents in the form of a validly executed will have been produced, but as yet none has been admitted to probate. At all material times prior to July 1985 the principal, if not sole, asset owned by the deceased was a farm at Yungaburra on the Atherton Tableland which he had acquired in about 1961. It comprised in all approximately 166 acres.

Relevant particulars of the three testamentary documents are as follows:

(i)      Will dated 18 April 1980 giving his daughter, Mrs Cook, the mother of Rhonda Faye Mackedie, a life interest in the property with the remainder over to the appellants;

(ii)     Will dated 19 June 1984 leaving the whole of his estate to his daughter, Mrs Russo (the mother of Laurence Alan Russo) with a gift over to her children if she did not take.

(iii)    Will dated 22 January 1985 naming Mrs Russo as the sole beneficiary.

The deceased was still alive when the action was commenced on 30 January 1986, but as no executor or administrator was appointed with respect to any of the testamentary documents referred to, Thomas J on 26 February 1993 appointed The Public Trustee "the representative of William James Jerome, now deceased" for purposes of the action.

On 18 June 1985 the deceased executed a memorandum of transfer of his farm property in favour of the second respondents and executed a declaration of gift. That transfer to the second respondents was registered on 20 January 1986.

By the statement of claim as it stood at the date of trial the following critical allegations were made:

(a)      In about December 1981 the deceased agreed orally with the appellants that he would not revoke his will dated 18 April 1980 during his lifetime;

(b)      The consideration for the agreement in (a) on the part of the appellants was that they would take up residence upon the land and reside there during the lifetime of the deceased, they would take care of and attend to the personal needs of the deceased during his lifetime, and that they would work the said land carrying out such maintenance and improvements as may be necessary or expedient;

(c)     The appellants complied with the obligations imposed on them;

(d)      Alternatively to the oral agreement alleged in (a), the appellants acted to their detriment relying upon and induced by the promise of the deceased that he would leave the land to them upon his death. In consequence the deceased was estopped from denying the interest of the appellants in the land;

(e)      As at 19 June 1984 and 22 January 1985 the deceased was not of sound mind, memory and understanding and was suffering from senile dementia so that he had, as at each of those dates, no testamentary capacity;

(f)      As at 18 June 1985 the deceased was not of sound mind, memory and understanding and was suffering from senile dementia so that he lacked the requisite capacity to execute the memorandum of transfer of that date;

(g)      There were also facts alleged in line with those outlined above on which it was said the deceased was guilty of breach of contract and the second respondents guilty of inequitable and unconscionable conduct so that the appellants were entitled to recover damages.

The principal relief claimed as then disclosed by the statement of claim was the following:

(i)      A declaration that the second respondents hold their title to and interest in the subject land on trust for the appellants;

(ii)     A declaration and pronouncement for the force and validity of the Will of William James Jerome dated 18 April 1980.

In broad terms the second respondents denied that in December 1981 there was any agreement between the appellants and the deceased as pleaded. There was a further denial that there was any conduct on the part of the deceased inducing the appellants to act to their detriment in the belief that they would inherit the property. The second respondents also denied that the deceased lacked the requisite capacity on 19 June 1984, 22 January 1985, and 18 June 1985. Because the appellants had remained in possession of the subject property the second respondents counterclaimed for damages flowing therefrom.

The first respondent (who was named as executor in the wills dated 18 April 1980 and 19 June 1984) served both a defence to the action brought by the appellants, and a statement of claim seeking relief against the second respondents. In broad terms the first respondent alleged that the deceased lacked the requisite capacity as at 19 June 1984, 22 January 1985 and 18 June 1985. There was a denial of any agreement in December 1981 and denial of any conduct on the part of the deceased creating an equitable interest in the land in the appellants. The first respondent sought an order pronouncing for the force and validity of the will of 18 April 1980 in solemn form of law, and an order setting aside the transfer to the second respondents.

Extensive lay and medical evidence was called at the trial with respect to the issues raised by the pleadings, and in particular with respect to the requisite capacity of the deceased at the material dates. The learned trial judge reviewed the evidence extensively in a carefully considered judgment and concluded that the action of the appellants should be dismissed. Critical conclusions were expressed as follows:

"I have concluded that -

There was no agreement entered into between the Mackedie's and Mr Jerome which was intended to be legally binding to the effect that if the Mackedie's came to live on the farm, remain there during Mr Jerome's lifetime and worked the land and cared for him that he would not revoke his will of April 1980;

The Mackedie's had not been induced to come to the farm and did not act to their detriment in reliance on the promise of Mr Jerome that he would not revoke his will to leave them his farm such as to make it inequitable for Mr Jerome to dispose of his land inconsistently with that alleged promise."

One of the critical questions was the extent to which the deceased was suffering from senile dementia in 1984 and 1985, particularly at the specific dates which have already been referred to. The following extracts from the reasons for judgment are material to that aspect:

"Dr Cossins conceded that his estimate that Mr Jerome had been completely demented for about six months prior to 1 August 1985 was "just a guesstimate" and had only offered this when pressed for a figure. He said that it was not a scientifically founded opinion but based on experience of previous cases and that individual cases had to be taken on their individual merit. ... He said that the treating doctor would be in a much better position to estimate Mr Jerome's mental state at a time close to 18 June 1985 and that the people seeing him regularly would be best placed to assess his mental condition. ...

It is readily accepted that Dr Cossins has had considerable experience in dealing with elderly people in nursing homes, particularly those who demonstrate signs of senile dementia in its various forms and his general evidence in respect of those matters was of assistance. However he was hampered by having no background understanding of Mr Jerome's family life or the context of his admissions to hospital. His evidence must be seen in the light of the evidence of Drs Di Palma, Simmonds and Johns together with the evidence of the lay people who saw and observed Mr Jerome at the time. Mr Jerome's mental capacity must be evaluated against the whole of the evidence and whether Mr Jerome's actions were consistent with externally known facts or whether they appear to be the acts of a demented person suffering from irrational delusions or hallucinations.

The evidence suggests that Mr Jerome was exhibiting some signs of early dementia whilst he resided on his farm. ...

Dr Di Palma saw Mr Jerome regularly and talked to him about his farm, and whilst accepting that Mr Jerome had progressive senility and occasional bouts of confusions, he did not regard him as demented and I accept his opinion. ...

I have concluded that Mr Jerome did have the requisite mental capacity at the time he executed the memorandum of transfer and declaration of gift to the second defendants."

With respect to the testamentary documents bearing date 19 June 1984 and 22 January 1985 the learned trial judge noted that no attempt was made to prove either of them in solemn form of law. Consistently with the earlier findings the learned trial judge did not pronounce against the force and validity of either of those documents on the ground of want and testamentary capacity.

The learned trial judge expressly noted that: "Neither party made any attempt to have it (the will dated 18 April 1980) proved in solemn form despite Mr Drew, for the second defendants, making it clear in the course of the trial that that was required". The learned trial judge, given the findings made, declined to pronounce for the force and validity of the will dated 18 April 1980.

Counsel for the second respondents at trial did not press the claim made with respect to damages.

As to the relief sought by the first respondent against the second respondents, the learned trial judge, consistently with findings made, declined to make a declaration against Mr Jerome's mental capacity to transfer the land on 18 June 1985, and also refused other ancillary relief claimed. The substantive orders made by the learned trial judge were as follows:

"1. Dismiss the plaintiff's action against the first

defendant and the second defendants.

2. Make no order on the second defendants'

counterclaim against the plaintiffs.

3. Dismiss the first defendant's contribution claim

against the second defendants."

From those findings and orders the appellants appealed.

The Notice of Appeal stated that the appellants appealed "from part of the judgment" given on 9 November 1995. The grounds of appeal were stated in the following terms:

"(a) The learned Trial Judge erred in fact in finding that Mr Jerome did have the requisite mental capacity at the time he executed the Memorandum of Transfer and Declaration of Gift to the Second Defendants in that:-

(i)    the finding was against the weight of the evidence;

(ii)  the learned Trial Judge placed excessive reliance upon the evidence of Dr Di Palma as to the condition of Mr Jerome during the relevant period;

(iii) the learned Trial Judge failed to take any or any sufficient account of the evidence of observations of Mr Cooper as to the rambling, meandering and confused nature of conversations with Mr Jerome;

(iv)  the learned Trial Judge failed to take any or any sufficient account of the evidence of Rhonda Mackedie and Laurence Mansbridge as to the general deterioration of Mr Jerome's mental faculties including hallucinations;

(v)    the learned Trial Judge failed to take any or any sufficient account of the evidence of Dr Johns and Simmonds which strongly suggested that Mr Jerome suffered senile dementia at or about the relevant period;

(vi)  the learned Trial Judge failed to take any or any sufficient account of the observations and opinions of Dr Cossins at the level of dementia suffered by Mr Jerome during the relevant period with such that he lacked testamentary capacity."

The substantive orders sought by the appellants on appeal as stated in the notice of appeal were as follows:

"(a) That the Appeal be upheld.

(b) That the Memorandum of Transfer and Declaration

of Gift be set aside.

(c) That the Court pronounce against the force and validity of the alleged last Will and Testament of William James Jerome, Deceased, dated 19 June 1984 and 22 January 1995 (sic)

(d) That the Court pronounce for the last Will and Testament of William James Jerome, Deceased, dated 18 April 1980."

It is obvious from a reading of the Notice of Appeal that the only ground of appeal related to the deceased's mental capacity as at the date of execution of the memorandum of transfer, whereas the orders sought from this court extended to the standing of the three documents in testamentary form. When that was pointed out to counsel for the appellants he sought leave to add a ground or grounds of appeal so that the appellants could agitate the testamentary capacity of the deceased as at 18 April 1980, 19 June 1984 and 22 January 1985.

He also sought leave to amend to give an entitlement to adduce further evidence, said to be relevant to the deceased's capacity at material dates, in support of an application for a retrial. No formal document setting out the proposed amendments was submitted, but the transcript of argument clearly records what was proposed.

It must be noted that it was conceded that all beneficiaries under the testamentary documents dated 19 June 1984 and 22 January 1985 were not parties to the action. This court pointed out (as the learned trial judge had done) that in the absence of those parties it was not possible to make any formal pronouncement for or against those documents.

At the conclusion of submissions on the application for leave the court refused leave to amend the Notice of Appeal to add grounds of appeal which would permit the appellants to agitate the issue of capacity with respect to the three documents in testamentary form. Leave to adduce fresh evidence in respect of the testamentary capacity as at each of the relevant dates of the deceased was also refused. The court then formally stated that it would reserve the question of the reception of fresh evidence relating to the deceased's capacity at the time of execution of the memorandum of transfer.

Finally, on the application of counsel for the second respondents, the court ordered that paragraphs (c) and (d) of the substantive orders sought by the appellants on the hearing of the appeal be struck out.

The fresh evidence said to be relevant to the deceased's capacity as at 18 June 1985 was directed to evidence given by Dr Di Palma who was called as part of the case of the second respondents at trial. Dr Di Palma stated in evidence in chief that his notes regarding treatment of the deceased were missing (his surgery had been broken into) and he was not able to refresh his memory from them or produce them in court. Some of the alleged fresh evidence is claimed to come from PJ Astley, who was the solicitor for the appellants during the trial. In an affidavit filed in support of the application in this court, Mr Astley records that a short time prior to trial he spoke to a receptionist at the rooms of Dr Di Palma who told him that the records were lodged in a store room and would be available at the trial. He further deposes to the fact that on some undisclosed date prior to trial he had spoken to Dr Di Palma who had informed him that the deceased "was quite mentally incapacitated by 1984"; such a statement was arguably contrary to evidence given by the doctor at the trial. Mr Astley simply says in his affidavit that he "was unable to give the within evidence at the trial as I was the solicitor for the plaintiff."

That does not meet the test for the reception of fresh evidence. What the receptionist said as to the position a short time before trial does not take the matter anywhere; at best it would go to credit. Further, Dr Di Palma's alleged statement to Astley is very vague and on careful analysis may well not be inconsistent with his oral evidence. But in any event Astley was in the position to give all evidence at trial which he now claims to be relevant. The fact that he was solicitor for the appellants at trial would not have precluded him from giving the evidence if it was otherwise admissible.

The material in Astley's affidavit does not meet the threshold tests for the admissibility in this court of fresh evidence.

The appellants also sought to rely on the affidavit of Ronald Robert Mackedie. Though one of the appellants, he did not give evidence at the trial; that was a matter commented on by the learned trial judge. According to his affidavit he had a telephone conversation on 9 June 1984 with Dr Di Palma which he recorded. He then purports to set out in the affidavit a transcript of that recording. Prima facie it is arguable that some of the statements of Dr Di Palma there recorded were not consistent with his oral evidence at trial. Mackedie says that he had misplaced the tape as at the date of trial (August 1994) but has subsequently located it. According to his affidavit the appellants' barrister "advised that without it [the tape], it would not avail me to give parol evidence as to the said conversation without being able to produce some evidence that it had taken place."

The affidavit also contains detail of an alleged conversation between Mackedie and Dr Di Palma's receptionist in July 1996, in which the receptionist is alleged to have said that the surgery had never been broken into.

Again the material in Mackedie's affidavit fails to meet the threshold test for the reception of fresh evidence. It is conceded that he was aware of the conversation he had with Dr Di Palma and its contents as at the date of trial. His failure to give the evidence then was as a result of a decision taken by the appellants' legal representatives. The fact that a tape of the conversation has since been located does not constitute the conversation "fresh evidence". If the evidence had been given at trial it may have required some explanation from Dr Di Palma, but there is nothing in the alleged conversation which is so clearly contrary to the oral evidence of Dr Di Palma as to indicate that its reception might well lead to a reversal of the former result.

The recent statement attributed to the receptionist goes only to credit and could not possibly command the significance which is required of fresh evidence sought to be adduced before an appellate court.

This court should not in those circumstances receive and act upon the alleged fresh evidence and the appeal therefore falls to be considered on the sole ground of appeal challenging the finding of the learned trial judge that the deceased had the requisite mental capacity at the time he executed the memorandum of transfer.

The second respondents submitted that the appellants had no interest in the outcome of the appeal, and that in consequence this court should summarily dismiss the appeal. It is true that there is no appeal against the rejection of the appellants' claim that they had an agreement with the deceased that he would not revoke his will of 18 April 1980, nor against the rejection of the alternate claim that they had acted to their detriment consequent upon an inducement from the deceased such as would create in them an equitable interest in the land.

It is also true that a finding that the deceased lacked the requisite capacity as at 18 June 1995 would not directly result in any material benefit to the appellants. Before they could benefit it would be necessary for the will dated 18 April 1980 to be admitted to probate as the last will and testament of the deceased. However, in all the circumstances it is in the interests of justice that this court adjudicate upon the issues raised by the ground of appeal taken. The question of the deceased's capacity as at 18 June 1985 was fully litigated and it is desirable that that issue be finally determined.

Counsel for the second respondents, relying on passages in Gibbons v. Wright (1954) 91 CLR 423, also submitted that neither the appellants nor the first respondent (the latter not being executor or administrator of the deceased's estate) had standing to challenge the transaction of 18 June 1985 and seek to have the transfer set aside. This is not an appropriate case in which to determine whether the limits on standing expressed in some of the earlier cases are still appropriate.

Given all the evidence led at trial, and the submissions made thereon, it is preferable for this court to review the relevant finding of the learned trial judge on the merits.

As is obvious from a reading of the particulars of the ground of appeal as set out in the Notice of Appeal, the complaint is essentially that the learned trial judge erred in making findings of fact. It is asserted that insufficient weight was attached to the evidence of the medical witnesses Dr Cossins, Dr Johns, and Dr Simmonds, and the lay witnesses, Cooper, Mansbridge, and the female appellant. The corollary to that is the assertion that the learned trial judge placed excessive reliance on the evidence of Dr Di Palma.

On a proper reading of the reasons for judgment such contentions cannot be made out. As already noted in the lengthy passage quoted above from the reasons, the learned trial judge did not arrive at the ultimate conclusion by the acceptance of the evidence of any one witness. It was rightly stated that the deceased's "mental capacity must be evaluated against the whole of the evidence and whether Mr Jerome's actions were consistent with externally known facts or whether they appeared to be the acts of a demented person suffering from irrational delusions or hallucinations." Both prior to and after making that observation the learned trial judge referred in some detail to the evidence of each of the persons whose evidence, according to the appellants, was afforded insufficient weight. A perusal of the transcript shows that there was ample evidence on which the findings made could be based. It was necessary for the learned trial judge to make an assessment of the accuracy and truthfulness of the evidence of a number of people. The task was one peculiarly within the province of the trial judge.

It is salutary to note that Dr Cossins in his evidence did say that a patient suffering from the disease which affected the deceased would have periods of lucidity and periods in which he would lack mental capacity before the stage was reached where there was a total lack of capacity. Dr Cossins was unable to say with any accuracy for what period prior to 1 August 1985 the deceased had been permanently demented. He conceded that the persons in the best position to assess whether or not the deceased had the requisite capacity were those who were in a position to observe him closely at the material time. He expressly conceded that the treating doctor, Dr Di Palma, would be in the best position to make such an assessment.

The learned trial judge referred at some length to Gibbons v. Wright and to other relevant decisions; clearly the proper test was applied in determining the relevant capacity of the deceased as at 18 June 1985.

A reading of the relevant evidence does not cause this court to doubt in any way the validity of the relevant findings made by the learned trial judge.

In all of those circumstances the findings made cannot be disturbed by this court. It follows that the appeal should be dismissed with costs.