McNamara v Nagel - [2016] NSWSC 529

Supreme Court

New South Wales

Medium Neutral Citation: McNamara v Nagel [2016] NSWSC 529
Hearing dates: 15 – 18 February 2016
Date of orders: 29 April 2016
Decision date: 29 April 2016
Jurisdiction: Equity
Before: Robb J
Decision:
1. Defendants’ application for an adjournment of the hearing rejected.

Catchwords: PRACTICE AND PROCEDURE – defendants’ application for adjournment on the last day of hearing – purpose to call evidence from treating geriatrician – doctor’s statement served on second last day of hearing – plaintiff’s case closed – cross-examination of medico-legal experts completed – doctor had been given copies of medico legal reports before statement prepared – whether the doctor should be qualified as an expert witness – discretionary power of the court – case management principles considered – court considered factors including unfairness to the plaintiff due to the need for a new hearing and for experts to be re-qualified to deal with a fundamental change in the defendants’ evidentiary case – consideration of substantial cost and delay – consideration that the doctor’s evidence will not be conclusive to the determination of the deceased’s testamentary capacity in any event – HELD on balance, prejudicial effect outweighs probative value of allowing the doctor’s evidence – HELD defendants’ application for an adjournment rejected
Cases Cited: Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Samsung Electronics Co Ltd v Apple Inc [2013] FCA 1142
Category: Procedural and other rulings
Parties: Kylie Ann McNamara (plaintiff)
Alan Robert Nagel (first defendant)
Gai Lorraine Costa (second defendant)
Representation:
Counsel: C Wilson (plaintiff)
A Hill (defendants)
Solicitors: Alexander Lawyers (plaintiff)
Gordon Salier (defendants)

File Number(s): 2013/367891
Publication restriction: None

Judgment

On the fourth and final hearing day in these proceedings, on 18 February 2016, the defendants made an application to adjourn the proceedings so that they could rely upon a statement signed by Dr Kannie Chuang on 17 February 2016.
At the time the application was made, the plaintiff had closed her case, and the defendants had also completed their evidence save for the tender of some additional documentary evidence comprised of hospital notes. Had the application for an adjournment not been made, there would have been time for the parties to commence their final addresses, although realistically, the addresses may not have been completed in the remaining available time, and it may have been desirable in any event, for some part of the addresses to be made in writing.
The defendants’ application was opposed by the plaintiff.
The primary issue in the proceedings is whether, when the late Mrs Rona Winifred Nagel made her final will on 8 June 2012, while in hospital during the course of her final illness, she had the testamentary capacity to do so. The plaintiff seeks a grant of probate of that will in solemn form. Mrs Nagel had made a prior will in 1997, in which she divided her estate between her three children (two of whom are the defendants) and other family…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] NSWSC 529
Decision Date: 29 April 2016

CaseChat Overview and Summary

In the matter of McNamara v Nagel, the defendants applied for an adjournment on the final day of a hearing, seeking to present evidence from a treating geriatrician. The plaintiff, McNamara, had already closed their case, and cross-examination of the medico-legal experts was complete. The geriatrician's statement was served on the second last day of the hearing. The geriatrician had been provided with copies of the medico-legal reports before preparing the statement. The court was required to decide whether the geriatrician should be qualified as an expert witness and if an adjournment should be granted under the circumstances.

The court examined the discretionary power to grant an adjournment, taking into consideration the principles of case management. Factors considered included the potential unfairness to the plaintiff due to the need for a new hearing and for experts to be re-qualified, given the fundamental change in the defendants' evidentiary case. The court also weighed the substantial cost and delay associated with allowing the evidence and the fact that the geriatrician's evidence would not be decisive in determining the deceased's testamentary capacity. The court found that, on balance, the prejudicial effect to the plaintiff outweighed the probative value of allowing the geriatrician's evidence.

Accordingly, the court rejected the defendants' application for an adjournment. The court held that the factors against granting an adjournment, including the unfairness to the plaintiff, the need for a new hearing, and the potential for substantial cost and delay, outweighed the probative value of the geriatrician's evidence. The court's decision was based on a careful consideration of the case management principles and the overall fairness of the proceedings. The defendants' application for an adjournment was dismissed, and the hearing proceeded without the additional evidence from the geriatrician.

Orders