2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 5 June 2017 and, in their place, order that:
(a)the appeal to the Court of Appeal of the Supreme Court of New South Wales be allowed;
(b)the orders of the Supreme Court of New South Wales made on 22 May 2015 (Slattery J) and 28 May 2015 (Senior DeputyRegistrar Studdert) be set aside and, in their place, order that the plaintiff pay the second defendant's costs of the trial;
(c)the proceedings be remitted to the Equity Division of the Supreme Court of New South Wales for a new trial; and
(d)the respondent pay the appellant's costs.
3.The respondent pay the appellant's costs of the appeal to this Court.
4.The respondent have liberty to apply within 14 days for an order that the costs referred to in orders 2(b), 2(d) and 3 be paid out of the estate of the deceased and on a trustee basis.
On appeal from the Supreme Court of New South Wales
Representation
M J Windsor SC with J E F Brown and M E Hall for the appellant (instructed by Remedy Legal)
G O'L Reynolds SC with A E Maroya and D F Elliott for the respondent (instructed by Vizzone Ruggero Twigg Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nobarani v Mariconte
Practice and procedure – Appeals – Denial of procedural fairness – Where appellant unrepresented – Where nature of hearing altered at short notice – Where appellant's applications for adjournments refused – Whether appellant denied procedural fairness at trial – Whether denial of procedural fairness amounted to "substantial wrong or miscarriage" – Whether appellant denied possibility of successful outcome – Whether new trial should be ordered.
Succession law – Wills, probate, and administration – Grant of probate – Where appellant claimed interest in challenging will – Where respondent granted probate of will in solemn form – Whether appellant had interest in challenging will.
Words and phrases – "adjournment", "caveat", "denial of procedural fairness", "possibility of a successful outcome", "probate", "procedural fairness", "substantial wrong or miscarriage".
KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ.
Introduction
This appeal concerns whether a new trial should be granted to the appellant on the basis that he was denied procedural fairness in the conduct of a trial, heard on 20 and 21 May 2015, involving the respondent's claim for probate of a will in solemn form.
The appellant was unrepresented. He claimed…
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
AGLC
Nobarani v Mariconte [2018] HCA 36
Case
[2018] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a dispute over the grant of probate for the will of Ms McLaren. The appellant, Mr Nobarani, claimed an interest in challenging the 2013 Will, which left the entire estate to the respondent, Ms Mariconte, the named executrix. The appellant's claim was based on his entitlement under an earlier will. The primary issue before the High Court was whether the Court of Appeal of the Supreme Court of New South Wales had erred in dismissing Mr Nobarani's appeal, which alleged a denial of procedural fairness at trial.
The legal issues before the High Court included whether the appellant possessed a sufficient interest to challenge the 2013 Will, and whether the appellant had been denied procedural fairness during the trial proceedings. Specifically, the court considered whether the denial of procedural fairness, if established, amounted to a "substantial wrong or miscarriage" as defined by the Uniform Civil Procedure Rules 2005 (NSW), and whether this denial deprived the appellant of the possibility of a successful outcome. The court also had to determine if a new trial should be ordered.
The High Court found that the appellant did have an interest in challenging the 2013 Will, as the trial judge had correctly recognised his standing based on the 2004 Will, which the respondent had admitted. Furthermore, the High Court concluded that the appellant had been denied procedural fairness at the trial. This denial was considered material, constituting a "substantial wrong or miscarriage," because it prevented the appellant from having the possibility of a successful outcome.
Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, and ordered that the appeal to the Court of Appeal be allowed. The orders of the Supreme Court at trial were also set aside, with a new trial to be held in the Equity Division of the Supreme Court of New South Wales. The appellant was awarded costs of the trial and the appeal to the High Court, with liberty for the respondent to apply for costs to be paid out of the estate on a trustee basis.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 5 June 2017 and, in their place, order that:
(a) the appeal to the Court of Appeal of the Supreme Court of New South Wales be allowed;
(b) the orders of the Supreme Court of New South Wales made on 22 May 2015 (Slattery J) and 28 May 2015 (Senior Deputy Registrar Studdert) be set aside and, in their place, order that the plaintiff pay the second defendant's costs of the trial;
(c) the proceedings be remitted to the Equity Division of the Supreme Court of New South Wales for a new trial; and
(d) the respondent pay the appellant's costs.
3. The respondent pay the appellant's costs of the appeal to this Court.
4. The respondent have liberty to apply within 14 days for an order that the costs referred to in orders 2(b), 2(d) and 3 be paid out of the estate of the deceased and on a trustee basis.
Background
Background to the litigation
This appeal should be allowed. For the reasons below, the appellant had an interest in the 2013 Will and he was denied procedural fairness at the hearing. The denial of procedural fairness was material in the sense of a "substantial wrong or miscarriage", as required by r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW), because he was denied the possibility of a successful outcome.The facts and course of proceedings Ms McLaren died of cancer on 12 December 2013, aged 83 years. One week earlier, on 5 December 2013, she had made the 2013 Will, naming the respondent as executrix and leaving the whole of her estate to the respondent. The 2013 Will purports to be witnessed by two people, Ms Rachel Parseghian and Mr Chen Yuanun. In an earlier will of the deceased, dated 12 August 2004 ("the 2004 Will"), she had made bequests to the Animal Welfare League NSW, including money and land, reflecting what the trial judge described as her strong, lifelong interest in the welfare of animals. In the same will, she had bequeathed to the appellant shares of her jewellery and personal possessions.The caveat proceedings On 23 January and 5 February 2014, two caveats were filed against the grant of probate in the estate of the deceased without notice to the caveator[1]. The first of those caveats was filed by the appellant, claiming an interest based upon his rights under one or more prior wills. The second was filed by the Animal Welfare League, claiming an interest as a beneficiary under the 2004 Will. [1]Supreme Court Rules 1970 (NSW), Pt 78 r 66. On 14 February 2014, the respondent filed the caveat motion[2]. The appellant and the Animal Welfare League were both joined as respondents to that motion.[2]Supreme Court Rules 1970 (NSW), Pt 78 r 71. The appellant and the respondent filed affidavits relating to the caveat motion. In one affidavit, the appellant said that he had visited the deceased on 5 December 2013, which is the date of the 2013 Will. He said that she was not alert but sleepy, and that she barely spoke. In other affidavits, the appellant doubted the veracity of the deceased's signature and stated that the address of one of the witnesses, Mr Yuanun, appeared to be a vacant building site. The appellant also annexed an affidavit of Mr Daniel Lemesle, who described himself as a close friend of the deceased who had known her for approximately 60 years. The 2013 Will has the words "Daniel Le" and the suburb in which Mr Lemesle lived below the space for a witness's signature, but those words are crossed out. In Mr Lemesle's annexed affidavit, he deposed to conversations with the deceased where she had told him of her love for animals and her intention to leave the bulk of her estate to the Animal Welfare League. He described visiting her frequently in hospital after she was admitted in October 2013 and every day after she was readmitted in November. He described the deterioration of her condition during November, including her distress, pain, inability to eat or drink, and, at times, lack of comprehension and inability to maintain a conversation. He said that he received a Christmas card in December dated 30 November 2013, purporting to be from the deceased, when, to his knowledge, she was unable to sign her name. Mr Lemesle also described the events of the day that the 2013 Will was signed, although he said that the date was Monday, 9 December 2013. He said that when he arrived at the hospital room, a man who introduced himself as the deceased's solicitor asked him to leave the room. He left for about an hour. When he returned, and was told by the respondent that he had been sought as a witness to the will of the deceased, he expressed doubt that the deceased could sign a will in her present state, given that her condition had worsened from two weeks prior, when she could not sign the Christmas card.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ
As to the caveat motion, this was mentioned only in the closing submissions by senior counsel for the respondent. After observing that the caveats had expired, senior counsel said that his only submission about the motion was that the appellant had no interest that could support the caveats because the 2004 Will had not been proved. However, as the trial judge pointed out during oral argument, the respondent had admitted the 2004 Will. The trial judge held that the appellant had an interest under the 2004 Will, which gave him standing to challenge the 2013 Will.The Court of Appeal decision The appellant's primary ground of appeal alleged that he had been denied procedural fairness. He had numerous sub-grounds in support of this. The sub‑grounds included the following: the appellant's inability to call Mr Lemesle as a witness or to rely on Mr Lemesle's affidavit; the trial judge's failure to allow him an opportunity to cross-examine Ms Parseghian; the trial judge's failure to allow him the opportunity to call expert evidence, including his failure to allow the appellant time to issue subpoenas, with respect to the deceased's eyesight; and the trial judge's failure to give him an opportunity to be heard in relation to objections to his affidavit evidence. As Simpson JA correctly said in the Court of Appeal, apart from the last mentioned sub-ground, all of the specific complaints arose out of the last minute change to the issue to be decided at the trial on 20 and 21 May 2015. By majority (Ward JA and Emmett AJA), the Court of Appeal dismissed the appeal. Ward JA held that procedural fairness had been denied but, notwithstanding her disquiet (shared with Emmett AJA) about the way that the proceedings had been conducted, she concluded that the denial of procedural fairness did not deprive the appellant of the possibility of a successful outcome[6]. Emmett AJA held that the appellant appeared to have no interest in the validity of the 2013 Will[7]. In dissent, Simpson JA would have allowed the appeal, concluding that the appellant had been denied procedural fairness and that the denial was a substantial miscarriage of justice[8].[6]Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [2]-[4].[7]Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [124].[8]Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [55].The appeal to this Court In this Court, the appellant alleged that the Court of Appeal erred in not ordering a retrial. He submitted that Ward JA erred in determining that the denial of procedural fairness could not have made a difference to the result, and that Emmett AJA erred in determining that the appellant had no interest in the estate sufficient to challenge the validity of the 2013 Will. By notice of contention, the respondent argued that the Court of Appeal erred in concluding that there was a denial of procedural fairness in any respect and, if there was a denial of procedural fairness, the Court of Appeal's decision should nonetheless be affirmed on the basis that there was no substantial miscarriage of justice by reason of any such denial. It is convenient for the purposes of these reasons to deal concurrently with the issues raised by the appeal and the notice of contention.When a new trial should be ordered
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ