McGettigan v Coulter

[2022] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McGettigan v Coulter [2022] NSWCA 166

Hearing dates:

24 June 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Before:

Meagher JA at [1];
Leeming JA at [78];
White JA at [79]

Decision:

(1) Refuse an extension of the time for the applicant to file his notice of appeal.

(2) Dismiss the appeal as incompetent.

(3) Dismiss the applicant’s motion filed 30 June 2022.

(4) Order that the applicant pay the respondents’ costs of the application to extend time and of the proposed appeal.

Catchwords:

SUCCESSION – probate and administration – where primary judge granted letters of administration to respondents in respect of deceased’s 2000 will – where applicant challenged validity of that will and propounded 2016 will – where primary judge found applicant had no standing to challenge 2000 will and rejected substance of his challenge – where primary judge found 2016 will fabricated by applicant – whether evidence sufficient to support primary judge’s conclusions

CIVIL PROCEDURE – application to adduce further evidence in the appeal – where evidence sought to be led could have been obtained with reasonable diligence for use at trial – where no realistic probability that with benefit of evidence there would be different outcome in the proceedings – no “special grounds” established under Supreme Court Act 1970 (NSW) s 75A(8) – application dismissed

Legislation Cited:

Succession Act 2006 (NSW), ss 107, 111

Supreme Court Act 1970 (NSW), ss 75A(7), 75A(8), 75A(9)

Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.6, 51.9, 51.16(2), 51.51

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155

In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Category:

Principal judgment

Parties:

John Patrick McGettigan (Applicant)
Glen Patrick Coulter (First Respondent)
Rhonda Anne Coulter (Second Respondent)

Representation:

Counsel:

Applicant in person
J Brown with N Simone (Respondents)

Solicitors:

Field Lawyers (Respondents)

File Number(s):

2021/256597

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWSC 1097; [2021] NSWSC 1356

Date of Decision:

31 August 2021

Before:

Slattery J

File Number(s):

2018/238970; 2018/174649; 2020/104101

HEADNOTE

[This headnote is not to be read as part of the judgment]

Brian McGettigan died on 17 April 2018, and his wife Beverley on 16 July 2018. The respondents, as executors of Beverley’s will, commenced probate proceedings seeking a grant of letters of administration of Brian’s estate with his will made on 19 January 2000 annexed. By that will Brian left his whole estate to Beverley.

The applicant, Brian’s brother, opposed the grant of letters of administration, contending that Brian’s 2000 will was a fabrication. By a cross-claim he sought a grant of probate of a later will of Brian dated 16 July 2016. That will, of which the applicant propounded four versions, purported to appoint the applicant as sole “executrix” and to leave the whole of Brian’s estate to the applicant. The respondents contended that the signatures of the deceased and two attesting witnesses on the 2016 will were forged.

The applicant also commenced equity proceedings, seeking to enforce three partnership agreements said to give the applicant a five-sixths beneficial interest in Brian and Beverley’s real and personal property at the time of their deaths; and an agreement (of which the applicant propounded four versions) for the lease to the applicant of Brian and Beverley’s farm property at Tennyson, New South Wales.

Having heard the two proceedings together, on 31 August 2021 the primary judge (Slattery J) made orders granting letters of administration to the respondents in respect of the 2000 will; dismissing the applicant’s cross-claim in the probate proceedings; and dismissing the applicant’s claims in the equity proceedings.

By a notice of appeal filed out of time, the applicant sought to appeal from those orders, and from consequential orders made on 22 October 2021. After the hearing in this Court, the applicant filed a notice of motion seeking to reopen the hearing to call and cross-examine a witness, Mr O’Brien, whose affidavit the applicant had read in his case below. The issues in the appeal were:

1. Whether the Court should reopen the hearing to permit cross-examination of Mr O’Brien;

2. Whether the Court should receive further evidence in the appeal, being the forensic reports of a handwriting expert Mr Heath in relation to the signatures on the 2016 will and two of the partnership agreements;

3. Whether the primary judge’s conclusions that the 2000 will was a valid document, and that the 2016 will and partnership documents were fabrications, were supported by the evidence and justified by adequate reasons.

The Court (Meagher JA, Leeming and White JJA agreeing) held, refusing an extension of time in which to appeal and dismissing the appeal as incompetent:

As to issue (i):

1. The evidence of Mr O’Brien could only be relevant to the conclusion that the 2000 will was valid. As the applicant did not have standing to contest the validity of that will, there was no basis to permit reopening. Furthermore, any further evidence could have been obtained at trial, the applicant having chosen not to call Mr O’Brien to give oral evidence. In any case, its admission into evidence carried no realistic probability of producing a different outcome in the proceedings: at [4], [17]-[23] (Meagher JA); [78] (Leeming JA); [79] (White JA).

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36; In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137, applied.

As to issue (ii):

2. There were no “special grounds” within the meaning of Supreme Court Act 1970 (NSW), s 75A(8) justifying the Court receiving evidence of Mr Heath. His two reports contained forensic analysis of the signatures of Brian on four versions of the 2016 will, and of Brian and Beverley on two of the partnership agreements. Each report was subject to a critical qualification, namely that Mr Heath had only been provided with copies of the questioned documents, and that the questioned and specimen signatures he had reviewed presented “poor to average quality images”. Those qualifications meant the reports could not possibly have made a difference to the primary judge’s conclusions as to the invalidity of the 2016 will and the partnership agreements: at [24]-[34], [38]-[40] (Meagher JA); [78] (Leeming JA); [79] (White JA).

3. Further, there was no good reason why the evidence of Mr Heath or another document examiner could not have been obtained and led before the primary judge. That was particularly so in circumstances where the applicant had first sought to lead the evidence of an expert, Mr Biad, whom the primary judge had found to be the applicant’s “fictitious creation”; and where, once Mr Biad was said to have become unavailable, the applicant had been given ample opportunity to find another expert: at [36]-[37], [41]-[45] (Meagher JA); [78] (Leeming JA); [79] (White JA).

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127; Akins v National Australia Bank (1994) 34 NSWLR 155, referred to.

As to issue (iii):

4. The primary judge’s conclusion that the 2000 will was valid was supported by the evidence of the two attesting witnesses, in respect of whom the primary judge made favourable credibility findings. It was also supported by the evidence of the respondent’s expert Ms Holt that Brian’s signature on the original of that document was consistent with his genuine specimen signature: at [49]-[55] (Meagher JA); [78] (Leeming JA); [79] (White JA).

5. The primary judge’s conclusion that the four versions of the 2016 will and the partnership documents were fabrications was also well open on the evidence, in light of his Honour’s findings as to the applicant’s lack of credibility; the inconsistencies in the applicant’s accounts of the circumstances in which the 2016 will was executed; the absence of objectively verifiable evidence consistent with the making of the partnership agreements; and Ms Holt’s evidence that there was strong support for the hypothesis that someone other than Brian and Beverley was the author of their purported signatures on those documents: at [56]-[74] (Meagher JA); [78] (Leeming JA); [79] (White JA).

Judgment

1. MEAGHER JA:

Overview

The applicant (John McGettigan) seeks to appeal from orders made by the primary judge (Slattery J) on 31 August 2021 and 22 October 2021. The first orders disposed of claims made in proceedings 2018/00174649 (the probate proceedings) and 2020/00104101 (the equity proceedings) (McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097). The later orders were consequential, addressing the payment out of moneys paid into Court in the probate proceedings and the quantification of costs to be paid by the applicant in those and the equity proceedings (McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No 2) [2021] NSWSC 1356).

2. The applicant is the eldest brother of Brian McGettigan, who died on 17 April 2018, aged 81. His wife of 50 years, Beverley McGettigan, died on 16 July 2018, aged 80. The respondents (Rhonda and Glen Coulter) are Beverley McGettigan’s niece and nephew, and the executors named in her last will dated 25 May 2016 in respect of which an uncontested grant of probate has been made. Under that will they receive the whole of Beverley McGettigan’s estate. (These reasons refer to Brian and Beverley McGettigan by their first names, and do so without intending any disrespect.)

3. In the probate proceedings, the respondents sought a grant of letters of administration of the estate of Brian McGettigan with his will made on 19 January 2000 annexed (the 2000 will). By that will Brian left “all my worldly possessions, any real estate held in my name, monies in joint & or individual bank A/c’s (both included) and livestock (horses) jointly & individually owned, motor vehicles” to Beverley. As they had no children and as Beverley survived her husband by more than 30 days, had he died intestate she would in any event have inherited the whole of his estate (Succession Act 2006 (NSW), ss 107, 111).

4. The applicant opposed that grant, contending that the 2000 will was a fabrication. The respondents challenged his standing to do so. The applicant’s response was to allege that they had suppressed an earlier will made by Brian. The primary judge found that there was no evidentiary foundation for that allegation (J[4], [237]). It followed that the applicant had no standing to challenge the validity of the 2000 will because he did not show that he had any right “which will be affected by the grant” of probate (Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49]; In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145).

5. By his amended cross-claim in the probate proceedings the applicant sought a grant of probate in solemn form of a later will of Brian dated 16 July 2016 (the 2016 will). That will (of which there were four versions) appointed the applicant as sole “executrix” and left the whole of Brian’s real and personal property to the applicant. The respondents contested the validity of that will, alleging that the signatures of the deceased and of the two witnesses on each of the versions were forgeries. The primary judge upheld this argument, holding that each of the four documents had been fabricated by the applicant (J[201], [311]).

6. In the equity proceedings, the applicant sought declaratory and other relief with respect to the enforceability of three agreements said to have the effect that the applicant held a five-sixths interest in the real and personal property which was owned by Brian and Beverley at the time of their deaths. Those assets were or included a farming property at Tennyson in New South Wales (the Tennyson property) owned by them as tenants in common in equal shares, some moneys in bank accounts, one or two motor vehicles, farm machinery and two gold watches and chains (said to belong to the “McGettigan family” (J[92])).

7. The relief sought by the applicant included an order for possession of the Tennyson property. One of the bases upon which that relief was supported was that, by a further agreement dated 26 July 2016, Beverley and Brian had agreed to lease the Tennyson property to him for a term of 3 years (with options to renew) commencing on that date. In relation to that claim, the primary judge considered the validity of four versions of such an agreement, the last of which bore that date.

8. Returning to the three partnership or ownership agreements, the applicant alleged that initially he, his mother Margaret, and Brian and Beverley jointly, each held a one-third interest in a partnership which had been operating since at least 1972. That alleged partnership had the trading name “McGettigan Ownership Group” (McGOG). The document said to evidence that arrangement was dated 1 October 1991. According to the applicant, by July 2016 he had acquired his mother’s ownership interest and a one-sixth interest from Brian with the result that the remaining one-sixth interest was held by Beverley at the time of her death. The first of these acquisitions was said to have been made by an agreement dated 27 December 1997 between the applicant and his mother; and the second by an agreement with Brian dated 26 July 2016, the same date as the fourth of the versions of the lease of the Tennyson property.

9. The primary judge held that each of these seven documents purporting to evidence agreements with various parties was also fabricated by the applicant. No original of any of these documents was produced in evidence. In each case the applicant relied on a copy document on which various signatures appeared. The primary judge accepted the evidence of an experienced and well-qualified document examiner (Ms Holt) that the signatures of Brian and Beverley on these “questioned” copy documents, when compared to uncontested “specimen” signatures, showed that the former were not written by the writers of the latter. In these circumstances an inference that could be drawn was that the copy documents were used to hide or disguise the fact that the signatures were the result of an electronic ‘cut and paste’ using either copies of genuine signatures or of forged signatures.

10. The claims made in the probate and equity proceedings were heard by the primary judge over 7 days between 1 April and 16 June 2021. On 31 August 2021 his Honour delivered detailed reasons and made orders granting letters of administration to the respondents in respect of the 2000 will; dismissing the applicant’s cross-claim in the probate proceedings; and dismissing the applicant’s various claims in the equity proceedings (J[380]).

11. On 22 October 2021, the primary judge ordered that moneys paid into Court, and representing the proceeds of sale of the Tennyson property, be paid to the respondents, that the applicant pay the respondents’ costs of both proceedings assessed on an indemnity basis, and that instead of paying those costs as assessed the applicant pay a specified gross sum, being $303,561 (including GST).

The grounds of appeal

12. On 8 September 2021 the applicant filed (in appeal proceeding 2021/256597) a notice of intention to appeal from the primary judge’s orders of 31 August 2021. The consequence of his doing so was that he had three months from 31 August 2021 in which to file a notice of appeal, that being the “material date” (Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 51.2, 51.6, 51.9).

13. On 10 January 2022, the applicant filed a notice of appeal. The grounds of appeal are:

1.    There was insufficient evidence to support the finding of the validity of the 19-Jan-2000 will.

2.    There was insufficient evidence to support the finding that the probate documents of the defendant (JMcGettigan) were invalidity.

3.    There was insufficient evidence to support the finding that the equity documents of the plaintiff (JMcGettigan) were invalidity.

4.    New Evidence to be presented by a new hand writing expert to validate the 16-Jul-2016 Will, the equity documents, police reports on the forged 07-Jan-2000 invoice.

5.    The judge failed to give adequate reasons for his conclusions.

14. That notice of appeal was filed out of time. It should have been filed by 30 November 2021. Accordingly the applicant requires an extension under UCPR r 51.16(2) of the time in which to file his notice of appeal. The appeal book also contains a summons seeking leave to appeal which is dated 26 November 2021. In circumstances where the applicant did not require leave to appeal, that summons (which was not filed) may be disregarded.

15. Ground 4 foreshadows an application under s 75A(7) of the Supreme Court Act 1970 (NSW) that the Court receive further evidence in the appeal. Because the appeal is from a hearing on the merits the Court cannot receive such evidence “except on special grounds” (s 75A(8)), unless that evidence concerns matters arising after the hearing (s 75A(9)). As will become apparent, that evidence is of a document examiner and directed to the authenticity or otherwise of signatures on the four versions of the 2016 will and the three partnership documents (see [7]-[8] above). Accordingly, the s 75A(9) exception does not apply as the matters to which the proposed evidence is directed happened before the hearing.

16. The argument before this Court was heard on 24 June 2022. On 30 June 2022 the applicant filed a notice of motion seeking to reopen the hearing so as to permit him to cross-examine Mr Tim O’Brien, whose affidavit sworn 21 June 2021 was read in the applicant’s case at first instance. Mr O’Brien was not cross-examined on behalf of the respondents. The circumstances leading to that outcome are dealt with in some detail by the primary judge at J[261]-[295]. It is necessary to deal with this application before addressing the substantive issues in the appeal. It is convenient to deal with it first notwithstanding that it also is or includes an application to adduce further evidence in the appeal. However, unlike the application foreshadowed by ground 4, the evidence which might be obtained from any cross-examination of Mr O’Brien is not specified or contained in any affidavit (cf UCPR r 51.51(3), (4)).

Application to reopen to cross-examine Mr O’Brien

17. Mr O’Brien’s evidence was relevant to the validity or otherwise of the 2000 will. The applicant’s case was that the will was the result of a conspiracy to create a false document, to which the relevant parties were the respondents, the respondents’ lawyers (Mark Field and his father James Field), the attesting witnesses to the 2000 will (Mark Shaw and Mary Cauchi), and Mr O’Brien. That case was rejected as having no substance whatsoever, and on the further basis that the applicant did not have standing to contest the validity of that will.

18. As the primary judge found at J[226], the disputed 2000 will came from what appears to be a “will kit” designed to be used by a married husband with no children and no possibility of children. The respondents’ evidence was that an original letter addressed to Beverley dated 7 January 2000 with a printed heading “Legal Wills Made Easy” was found with the original will in the office in the Tennyson property in July 2018 and after Beverley’s death (J[231], [232]). That letter purported to be signed by Mr O’Brien as “Account Manager”. At the time he was employed in that business, but on the online selling side rather than the call centre selling side. Below the letter was a receipt acknowledging a payment by Beverley for the purchase of a will kit or kits. The applicant’s case was that Mr O’Brien had conspired with the respondents to create that letter and receipt, thereby suggesting falsely that in January 2000 Beverley had purchased a will kit to enable Brian to prepare his last will.

17. Mr O’Brien’s evidence was directed to the authenticity or otherwise of that letter and receipt. Having agreed that the signature was not his, he speculated that “for convenience, the call centre may have used my name as the customer service representative against a pre-signed (printed) template”. He added that the receipt “appears genuine” and gave three reasons which included that the letterhead was “almost certainly” the letterhead used by the business at that time; and that the amount charged coincided with an amount the call centre would have charged for two copies of the kit.

18. Mr O’Brien’s evidence is directed only to the primary judge’s conclusion that the 2000 will was valid, and accordingly could only be relevant to ground 1 of appeal. However, that ground does not challenge the primary judge’s conclusion that the applicant had no standing to contest the validity of the 2000 will. It follows that the applicant has no standing to press ground 1 in the appeal. That alone is a sufficient reason to dismiss his application to reopen to cross-examine Mr O’Brien.

19. There is a further reason why this application to reopen should be dismissed. To permit the applicant to cross-examine Mr O’Brien would be futile unless he were also permitted to lead that evidence in the appeal. The general principles which apply to such an application are extracted below at [38]. They include that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, and that there must be a high degree of probability that with the benefit of the evidence there would be a different outcome in the proceedings.

20. Neither of these conditions is satisfied in relation to any further evidence from Mr O’Brien. First, whatever evidence Mr O’Brien might give in cross-examination could have been obtained at the trial. The applicant chose not to call him to give oral evidence and instead to make an argument based on the terms of his affidavit sworn 21 June 2021. Secondly, even if Mr O’Brien were to withdraw or qualify in some way his evidence concerning the letter of 7 January 2000, there remains in relation to the execution of the will the evidence of the two attesting witnesses, whom the primary judge regarded as “highly credible and reliable witnesses” (J[239]). The probative value of their evidence could not be adversely affected by any cross-examination of Mr O’Brien unless it showed that he was a party to a much larger fraud which also involved them. There is absolutely no basis in the evidence to suggest that this outcome is other than fanciful. It follows that there is no realistic probability that any evidence led from Mr O’Brien in cross-examination would have produced a different outcome in relation to any challenge to the validity of the 2000 will.

21. For these reasons, the application to reopen to cross-examine Mr O’Brien is dismissed.

Application to lead further evidence, including from Mr Heath

24. I turn now to the application to adduce further evidence foreshadowed by ground of appeal 4.

25. The “further evidence” sought to be led is contained in or attached to two affidavits of the applicant, one of 3 paragraphs sworn 6 June 2022 and the other of 42 paragraphs sworn 14 June 2022. The second of these affidavits is in the nature of a submission which addresses the existence of the alleged McGOG partnership, contends that the 2000 will was fraudulent and that the 2016 will was valid.

26. The documents attached to the affidavit of 6 June 2022 include a 74 paragraph affidavit sworn 6 June 2022. It is also in the nature of a submission, describing itself as a “detailed forensic analysis” of the circumstances of the “alleged 07-Jan-2000 receipt and the alleged 19-Jan-2000 will of Brian Bernard McGettigan”.

27. The remaining documents attached to that affidavit are described as follows:

b. Written Statement dated 02/06/22.

c. An affidavit from Mr John Heath dated 03/06/22 being the analysis of the signatures of Brian Bernard McGettigan and Beverley Teresa McGettigan.

d. A sworn report from Mr John Heath dated 05/05/22 being the analysis of the signatures of Brian Bernard McGettigan.

e. An affidavit from Mr John Heath dated 03/06/22 being the analysis of the signatures of Beverley Teresa McGettigan.

f. Copy of Beverley’s Disappointment Letter 18/02/98

g. Copy of Beverley’s Stop Pressuring Letter 30/01/16

28. Addressing each of these documents separately, document (b) is a written submission contending that the evidence of Mr Heath proves that the signatures of Brian and Beverley on the various partnership documents are valid.

29. Document (c), in the form of an affidavit of Mr Heath, appears to be incomplete. The documents it describes as attached include a letter of instruction from the applicant, Mr Heath’s report in respect of signatures of Brian, and his separate report in respect of signatures of Beverley.

30. Document (d) on its face is a report of Mr Heath dated 5 May 2022. It addresses whether the signatures present on four versions of the 2016 will and four other documents were written by the author of the Brian specimen signatures available to Mr Heath. Each of the eight documents containing the questioned signatures provided to Mr Heath was a copy. The specimen signatures apparently made available to Mr Heath were taken from a copy of Ms Holt’s first report of 26 July 2019.

31. Mr Heath’s report describes the questioned and specimen signatures to which he had access as presenting “poor to average quality images”. The partnership documents which are the subject of the report are a partnership agreement dated 25 June 1979 (which was not ultimately dealt with by the primary judge because it was not relied on in the equity proceedings), the McGOG contract dated 1 October 1991, and two “Debt and Settlement Agreement[s]” dated 26 July 2016. Mr Heath concludes that there is “limited support” for the proposition that the writer of the Brian specimen signatures wrote the questioned signatures on the four copy wills. At the same time he concludes that there is “strong support” for the proposition that the writer of the Brian specimen signatures wrote the questioned signatures on the four partnership documents.

32. Each of these conclusions is subject to a further and critical qualification because, according to this report of Mr Heath, only copies of the questioned documents were made available to him. Ms Holt’s first report was, with one exception, subject to the same qualification expressed as follows:

… when only reproductions of questioned documents are available, any conclusions expressed in relation to the authorship of the reproduced signatures do not provide any evidence or support that the disputed signatures were in fact signed on the originals of the questioned documents. This is because reproductions may be used to hide and/or disguise the fact that the signatures are the result of an electronic “cut and paste”. Only an examination of the original documents will establish whether the questioned signatures were in fact signed on the actual original document.

33. Document (e) on its face is a further report of Mr Heath dated 25 May 2022. It addresses whether the purported signature of Beverley on copies of the 1979 partnership agreement and McGOG contract were written by the same person as the 15 Beverley (copy) specimen signatures provided to Mr Heath. That report concludes that there is “very strong support” for the conclusion that the questioned Beverley signatures on those two copy documents were written by the same person who wrote the Beverley copy specimen signatures. As with Mr Heath’s earlier conclusions, these conclusions provide no evidence or support for the proposition that Beverley’s true signature was in fact signed on the originals of the questioned documents, assuming that those originals existed.

34. Ms Holt’s report dated 20 July 2020 addressed whether the writer of the Beverley specimen signatures also wrote her purported signature on the 1979 partnership agreement and McGOG contract. Each of the questioned documents was a copy, and therefore Ms Holt’s conclusions were subject to the qualification extracted above. Nevertheless she concluded that there was “very strong support” for the hypothesis that someone other than the Beverley specimen writer had written her signature on each of these documents.

35. Finally, documents (f) and (g) are copies of two typewritten letters, the first dated 18 February 1998 and signed “Beverley” and “Brian”; and the second dated 30 January 2016 and signed “Beverley”. The first of these letters was in evidence before the primary judge (J[212]). The second was not. However, on its face it was received by the applicant in January 2016, and there is no evidence to suggest that, if genuine, it was not available at the time of the trial.

36. Perhaps more relevantly, the copy of the letter of 18 February 1998 in evidence included a certification stamp that it was a “true copy” of the original. That stamp is dated 11 February 2021. One of the affidavits filed by the applicant was an affidavit of a document examiner, Mr Cai Biad, which on its face was sworn on 16 September 2019. That affidavit was admitted into evidence as a document shown to the applicant in cross-examination. It attached as one of the specimen signature documents which had been provided to Mr Biad the stamped copy of the letter of 18 February 1998, as well as copies of the two questioned documents signed “Beverley” dealt with in Ms Holt’s report dated 20 July 2020.

37. As the primary judge records at J[213], the applicant could not explain why an affidavit supposedly sworn on 16 September 2019 could have attached to it a document with a date stamp 11 February 2021. Having noted that there was “no reliable and objectively verifiable evidence that confirms that there is a forensic document analyst by the name of Cai Biad”, the primary judge concluded that he was the applicant’s “fictitious creation” (J[214]).

38. Turning now to the application that the Court receive any of this material as further evidence, what may constitute “special grounds” (s 75A(8)) is the subject of recent discussion by this Court in Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 at [169]-[175]. A useful starting point remains the often cited judgment of Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, where his Honour said:

Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.

39. It is only necessary to consider the purported affidavit and two reports of Mr Heath (being documents (c), (d) and (e) described above) and the copy “confirmation” letter dated 30 January 2016 (document (g)). The remaining affidavits and documents are submissions or were already in evidence. As to document (g), it is presumably tendered as supporting the authenticity of the McGOG partnership arrangement (to which it refers in its second paragraph). However, the document tendered is not an original document, and its authenticity as a letter signed by Beverley is justifiably put in issue. In the face of the primary judge’s findings it cannot be described as “credible” evidence.

40. There remain the affidavit and two reports of Mr Heath. Neither of these reports contains any opinion which could possibly have made a difference to the outcome of the proceedings in relation to the 2016 will or the partnership agreements. That is because each of the opinions is subject to the qualification that Mr Heath did not examine any original signed document. That is a sufficient reason to reject the application to adduce that evidence.

41. There is an additional reason why that application should be dismissed. Even if there were original documents available to be examined, the applicant has not established any good reason for why the evidence of Mr Heath or some other document examiner concerning those documents could not have been obtained and led before the primary judge. Ms Holt’s first report was served in August 2019. According to the applicant, he first secured a report from Mr Biad in September 2019. What follows assumes, contrary to the primary judge’s finding, that Mr Biad existed and that his reports were prepared by him: cf J[214].

42. In July 2020 and February 2021 directions were made that the applicant provide contact details for Mr Biad to Mr Mark Field, the respondents’ solicitor, presumably to allow arrangements to be made for the experts to confer. The applicant did not provide those details, advising in late February 2021 that he had received advice that Mr Biad “was suffering from dementia” which had the consequence that he was “unable… to hold conversations” (J[216]-[218]).

43. At a directions hearing in early March 2021 the applicant sought the opportunity to engage another expert, presumably on the basis that Mr Biad was not available. That application was granted, and eventually a Mr McGinn was said to have been retained (J[221]-[223]). However, on 22 March 2021 the Court was advised that Mr McGinn was no longer available. The applicant then sought “another 12 months” to retain an expert, and also inquired why he could not read the affidavit of Mr Biad (J[224]). That application was refused for the reason that prior to the hearing the applicant “had been given many opportunities to retain a new handwriting expert and elected not to take them up” (J[225]).

44. In the application to adduce further evidence, the respondents tendered an email purporting to be from Mr Biad’s sister dated 29 August 2020, which in terms advised that Mr Biad had “passed away a few months ago, we are aware that he was doing a report for you, but unfortunately he had not finished it”. Such a statement would not have been consistent with Mr Biad having sworn an affidavit of 16 September 2019 which purported to attach a copy of a report. Furthermore, if that email was genuine, Mr McGettigan’s advice to the Court recorded at J[218] was not correct, and the true position was that he had ample opportunity after August 2020 to retain a handwriting expert. If the email was fictitious (consistently with the primary judge’s finding that Mr Biad did not exist), by late February 2021 the applicant on one of his versions of events had been aware for about 8 months that Mr Biad was suffering from dementia.

45. In this state of the evidence, the applicant has not established that there was any good explanation for why he had not retained a document examiner to address the evidence of Ms Holt, or that he had not been given ample opportunities to do so.

46. In the result, this application to adduce further evidence should be dismissed.

The grounds of appeal

47. Grounds 1, 2 and 3 challenge the sufficiency of the evidence to support his Honour’s conclusions in relation to the validity of the 2000 will, the invalidity of the 2016 will, and the invalidity of the partnership and lease documents. The subject matter of ground 4 has been addressed. Ground 5 challenges the adequacy of his Honour’s reasons for each of the above conclusions. That complaint is dealt with in the consideration of each of grounds 1, 2 and 3.

48. As McHugh JA observed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-279, the giving of reasons is a “necessary incident of the judicial process because it enables the basis of the decision to be seen and understood”. His Honour also agreed with the earlier statement of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 that reasons “need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it”.

The conclusion as to the validity of the 2000 will (ground 1)

49. In upholding the respondents’ claim in the probate proceedings, the primary judge found that Brian executed the 2000 will in the presence of the named attesting witnesses, Messrs Shaw and Cauchi. Each gave a clear account of the circumstances in which that will was signed by Brian (J[239]). The detailed accounts of those circumstances and his Honour’s reasons for rejecting the applicant’s challenges to that evidence are, in the case of Mr Shaw, at J[242]-[246]; and in the case of Mrs Cauchi, at J[247]-[251].

50. As already mentioned, the applicant’s case was that the falsification of the 2000 will involved a conspiracy to which the respondents, Mr Shaw and Mrs Cauchi, and the respondents’ solicitors were parties. Each of those witnesses denied such a conspiracy, and the primary judge accepted those denials, making favourable and demeanour-based findings as to their credibility (J[239], [300]).

51. The applicant’s conspiracy theory focused particularly on the letter and receipt dated 7 January 2000. In pressing his contention that the respondents or their solicitors had “created” the letter, the applicant sought three times to reopen his case to deal with aspects of the letter. Those applications were made on 7 May 2021, 31 May 2021 and 6 July 2021. Only the third was allowed, and the applicant was permitted to read the affidavit of Mr O’Brien (see J[265]-[294]). The primary judge accepted his evidence.

52. The primary judge considered that Mr O’Brien’s evidence did not cast any doubt on the authenticity of the letter. At J[296]-[298], his Honour set out his analysis of Mr O’Brien’s evidence supporting that conclusion.

53. The primary judge’s reasoning for rejecting the applicant’s allegations of forgery and accepting the validity of the 2000 will was summarised as follows:

[303]   Mr McGettigan’s allegations of forgery of the 2000 will fail for several reasons other than the genuineness of [the 7 January letter] and the credibility of the attesting witnesses of the 2000 will and of Mr Mark Field.

[304]    First, the 2000 will is an original handwritten will. Ms Melanie Holt’s expert evidence is consistent with the document being executed by Brian McGettigan and attested by Mr Shaw and Mrs Cauchi.

[305]    Secondly, the 2000 will is rational. Whatever the state of Brian’s and Beverley’s relationship, it is rational for one spouse to confer substantial testamentary benefits on another after 50 years of marriage.

[306]    Third, the 2000 will was found in the office at the Tennyson property by Rhonda Coulter in the days succeeding Beverley McGettigan’s death. This is a likely place for Brian and Beverley to keep the will.

[307]    Fourth, there is no credible theory to explain how else the 2000 will came into existence other than by genuine execution. Mr McGettigan’s spray of allegations that the 2000 will is a forgery were vague, inconsistent and fanciful and cast no doubt upon the natural inference arising from the finding of the document. The lack of substance of these allegations is important background in assessing Mr McGettigan’s case in the equity proceedings.

54. The reference at J[304] to Ms Holt’s evidence is to her opinion that Brian’s signature on the 2000 will was consistent in its appearance with the genuine specimen signatures provided to her for examination. In giving that evidence Ms Holt had the benefit of examining the original of the 2000 will.

55. Ground 1 should be dismissed, both because the applicant does not have standing to raise that ground (see [4], [20] above) and because the evidence overwhelmingly justified his Honour’s conclusions. Furthermore, his Honour’s reasons more than sufficiently identify his findings and conclusions and the process by which he reached them.

The conclusion that each of the four versions of the 2016 will was created by the applicant (ground 2)

56. Four different versions of the 2016 will were considered by the primary judge. Ms Holt examined six documents which were labelled in her 25 July 2019 report, items 1-6. Items 1, 2 and 3 were the same as version 1 considered by the primary judge, and items 4, 5 and 6 were versions 2, 3 and 4. Item 1 was an original and the remainder were reproductions. Ms Holt concluded that there was “very strong support” for the hypothesis that someone other than the writer of the Brian specimen signatures had written the questioned signatures on the four versions of the 2016 will. The evidence supporting that conclusion included that a latent indentation examination of item 1 did not reveal any decipherable indentations on the original of that version of the questioned will. Comparison of the different versions revealed that version 1 appeared to be a mixture of the other three versions, namely that it had the same first page as versions 2 and 4 and the same second page as version 3. His Honour accepted Ms Holt’s evidence and conclusion (J[200], [201]).

57. Each of the four versions of the 2016 will propounded by the applicant and in evidence was a copy (J[189]). The primary judge found that each was created by the applicant. In so concluding, his Honour accepted the respondents’ contentions that neither of the two purported witnesses, Kathleen Sparkes and Cecilia Zhan, could have witnessed the execution of any version of the 2016 will; that Brian could not have executed that will by any of the means described by the applicant; and that there were “so many versions of the 2016 will that none of them can be accepted as an original document executed by the deceased” (J[126]).

58. The two witnesses to the versions of the 2016 will are described as “Cecelia B. Zhan, Public Accountant, 120 Collins Street Melbourne” and Kathleen Patricia Sparkes of “Jackson Street, Northcote, Victoria”. No one claiming to be either of those persons was called to give evidence. In the absence of any “objectively verifiable evidence that Cecilia Zhan exists” (J[135]), the primary judge was not prepared to infer that there was a real person by that name who could have witnessed the execution of the will (J[141]). As to Ms Sparkes, the evidence established that a person having that name and living in Northcote had died on 6 August 2018, aged 90. The applicant’s evidence was that he had not met Ms Sparkes prior to her arriving in Sydney on 16 July 2016 to witness the will (J[142]). Apparently she had travelled to Sydney for that specific purpose, although why it was necessary for her to do so was never satisfactorily explained. Ms Sparkes’ daughter Karryn Sparkes, who was living with her mother in July 2016, said that it was impossible for her mother to leave the house without her knowledge and that her travelling by plane to and from Sydney in July 2016 was “unrealistic” (J[146]). She could not remember her mother leaving the house to go to Sydney in circumstances where her mother suffered from dementia, fragility, required a walking frame and had difficulty getting in and out of cars (J[147]).

59. The primary judge deals at some length with the applicant’s “at least three inconsistent versions of where and how the 2016 will came to be executed, and witnessed by Cecilia Zhan and Kathleen Sparkes” (J[154]-[174]). The first was that it was executed and attested in an accountant’s office in Melbourne, both witnesses being present. The second was that this occurred at a café in the Sydney suburb of North Richmond, which was close to the Tennyson property. In this version, Brian McGettigan collected the applicant from Richmond railway station on 15 July and they lunched together at the Richmond Hotel, went shopping and then on the following day the 2016 will was signed.

60. The primary judge described the third version as given after it “emerged that Brian had been in New South Wales undergoing cancer treatment at Nepean Hospital” on 16 July 2016 (J[128]). That version was that Brian had left that hospital to execute the will and the two Melbourne-based witnesses had flown up to Sydney on 16 July, and then returned to Melbourne that evening (J[167]). This version as initially given was then changed in respect of Ms Zhan’s return to Melbourne to take account of her signature as a witness on a lease agreement dated 17 July 2016, purportedly signed in Sydney. (That is the second of the four lease agreements of the Tennyson property which are the subject of findings in the equity proceedings.) None of these versions sits comfortably with the Nepean Hospital records which confirmed that Brian was admitted as a patient on 7 July and discharged on 25 July 2016. The hospital records contained no hint of his having left the hospital on 15 or 16 July (J[175]-[185]).

61. Finally, as the primary judge records at J[189]-[197], the differences between the four versions include that the signatures of each attesting witness are not the same from version to version, and that Brian’s signature is different as between the first and second versions and between the second and third versions. As already noted, Ms Holt’s evidence was that a comparison of Brian’s specimen signatures provided to her with those on the copy questioned documents revealed no significant similarities, so as strongly to support the proposition that the signatures were written by different people (J[200]).    

62. His Honour’s reasons, as summarised above, identify the evidence as to the circumstances in which the four versions of the 2016 will were alleged to have been executed. In doing so, they adequately explain why his Honour was not satisfied that any of those versions was signed by Brian or his signature witnessed by either of Ms Sparkes or any person named Cecilia Zhan. For these reasons, ground of appeal 2 should be dismissed.

The conclusion rejecting the authenticity and validity of the partnership and lease agreements (ground 3)

63. The seven purported agreements which are the subject of this conclusion are described at [7]-[8] above. His Honour’s reasoning and conclusions in respect of each of them may be dealt with shortly, having regard to his earlier findings as to the applicant’s credibility and his involvement in the creation of the fabricated 2016 will.

64. The first agreement, the McGOG contract, was purportedly signed by Brian, Beverley, the applicant and the applicant’s mother, and witnessed by a Mr John Buckley. No original of the document was produced. Ms Holt’s evidence was that the signatures of Brian, Beverley and Mr Buckley on the copy document were not written by any author of the specimen signatures of those persons (J[362], [363]). No challenge was made to the authenticity of those specimen signatures.

65. The only evidence as to the execution of the document by Brian and Beverley was from Mr Buckley, an 86 year old friend of the applicant, and the applicant. The primary judge found that no reliance could be placed on Mr Buckley’s evidence, which was given by three affidavits dated 26 July 2019, 24 September 2019 and 9 June 2020. In cross-examination he “disowned or could not confirm almost every point of his affidavits” and could give “no account of witnessing any of the documents he purported to witness in the proceedings” (J[358]). In the primary judge’s view, he was “quite seriously cognitively impaired” (J[358], [359]).

66. The applicant’s evidence was rejected by the primary judge. The starting point for the consideration of that evidence was the applicant’s “lack of credibility, already well-established in the probate proceedings” in which the primary judge had found that the applicant had fabricated at least four versions of the 2016 will (J[201], [202], [322]).

67. There were other circumstances and matters which the primary judge regarded as confirming that conclusion. The terms of the McGOG contract are extracted at J[324]. They purport to record business arrangements which came into existence in June 1972, or perhaps as early as 1951. Those arrangements include that the agricultural and other business activities conducted by Brian and Beverley, and their ownership of various properties, had at all times been undertaken by or on behalf of the McGOG as beneficial owner. In addition to the implausibility of that being the position, and the confusing and unclear terms in which the document seeks to record it, no business or other records were produced which were even claimed to be consistent with the existence and implementation of those arrangements over such a long period. The applicant, a qualified accountant, produced no accounting or tax records for any of that period which were consistent with the arrangement contended for. Nor was there any incontrovertible evidence of conduct on the part of any of the parties to the agreement during that period which was consistent with its existence and their adherence to it.

68. The second agreement, the 1997 sale agreement, purports to be signed by the applicant and his mother, and to transfer her one-third interest in the McGOG arrangement to the applicant. Again it is witnessed by Mr Buckley. No original of this document was produced, and Ms Holt’s evidence was that there was very strong support for the hypothesis that someone other than the writer of the Buckley specimen signatures had written his signature on this copy document. Again, the only evidence as to the execution of the document is that of the applicant. For the same reasons as he rejected the applicant’s evidence in relation to the McGOG contract, the primary judge concluded that this was also a false document created by the applicant (J[341]).

69. The third agreement is a sale agreement dated 26 July 2016 of 13 paragraphs, which is set out at J[342]. There was also in evidence a similarly described agreement dated 24 July 2016 of 16 paragraphs. Each of these agreements purports to be signed by Brian and the applicant and witnessed by Mr Buckley. The 26 July document records an agreement whereby Brian transfers to the applicant one-half of his and Beverley’s one-third interest in McGOG in satisfaction of a debt owed to the applicant. The 24 July agreement describes an arrangement under which Brian agreed to transfer his half-interest in the Tennyson property to the applicant in satisfaction of the same debt. Ms Holt’s evidence was that there was very strong support for the hypothesis that someone other than Brian had written “his” signatures on each of the two agreements. Her evidence also was that there was moderately strong support for the hypothesis that Mr Buckley’s signature on the document dated 26 July 2016 was not written by the author of the Buckley specimen signatures.

70. As with the other documents, the only evidence as to the execution of these documents was that of the applicant. The primary judge again found that the document was created by the applicant (J[346]). That finding was justified by Ms Holt’s evidence, as well as being consistent with his Honour’s earlier findings in relation to the McGOG contract. Again there was no objectively verifiable evidence consistent with the making of such an agreement, which as his Honour observed was implausible (J[343]).

71. There remain the four written versions of the 2016 lease agreements dated 16 July 2016, 17 July 2016, 24 July 2016 and 26 July 2016. The first and second of those documents were purportedly signed by Brian, Beverley and the applicant, and witnessed by Cecilia Zhan. Ms Holt’s evidence was that there was very strong support for the conclusion that Brian’s signature on these copy documents was not written by the writer of his specimen signatures; and moderately strong support for the hypothesis that Beverley’s signature on the copy documents was not written by the writer of her specimen signatures.

72. Of the remaining two copies of this agreement, one of those dated 26 July 2016 purported to be signed by Brian, Beverley and the applicant, but is not witnessed. That version of this agreement was apparently produced by the applicant as an attachment to an affidavit made on 16 February 2021, in which affidavit he described that attachment as being the “final” agreement for the lease of the Tennyson property.

73. In view of his Honour’s earlier conclusions as to the applicant having created a number of false documents for the purpose of pressing his claims to ownership of the Tennyson property and other remaining assets of his brother Brian, the primary judge was well justified in rejecting the applicant’s evidence and finding that these documents also had been fabricated by him (see especially J[348]-[357]). That conclusion was supported by the evidence of Ms Holt.

74. In the result, ground 3 is dismissed.

Adequacy of reasons (ground 5)

75. As is apparent from the foregoing analysis, the primary judge’s reasons for the conclusions which are the subject of grounds 1, 2 and 3 are more than adequate. There is no merit whatsoever in ground 5.

Conclusion and orders

76. In view of the foregoing, I do not consider that the time for the filing of the notice of appeal should be extended. As the proposed appeal has no reasonable prospects of success, the interests of justice are not served by granting the applicant the indulgence he seeks.

77. That being the position, I propose the following orders:

1. Refuse an extension of the time for the applicant to file his notice of appeal.

2. Dismiss the appeal as incompetent.

3. Dismiss the applicant’s motion filed 30 June 2022.

4. Order that the applicant pay the respondents’ costs of the application to extend time and of the proposed appeal.

78. LEEMING JA: I agree with Meagher JA.

79. WHITE JA: I agree with Meagher JA.

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Decision last updated: 29 August 2022