Nobarani v Mariconte

[2018] HCATrans 87

[2018] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S270 of 2017

B e t w e e n -

HOMAYOUN NOBARANI

Appellant

and

TERESA ANNE MARICONTE

Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 MAY 2018, AT 10.00 AM

Copyright in the High Court of Australia

MR M.J. WINDSOR, SC:   If the Court pleases, I appear along with MR J.E.F. BROWN and MS M.E. HALL, for the appellant.  (instructed by Remedy Legal)

MR G.O’L. REYNOLDS, SC:  May it please the Court, in this matter I appear for the respondent with my learned friends, MR A.E. MAROYA and MR D.F. ELLIOTT.  (instructed by Vizzone Ruggero Twigg Lawyers)

KIEFEL CJ:   Yes, Mr Windsor.

MR WINDSOR:   Thank you, your Honour.  Your Honours, in the first instance this morning the appellant has provided to the Court a document setting out his position so far as the notice of contention is concerned.  That remains the position – namely, that it is a matter for the Court. 

We have made but two observations in respect of the notice of contention.  One, that notice of contention was sought very late in the piece.  Indeed, it was sought in circumstances where the Court had already granted an additional approximate four weeks for the respondent to put on its submissions in reply to the appellant’s submissions.  If I might proceed.

KIEFEL CJ:   Yes.

MR WINDSOR:   My learned friend wanted to say something, your Honour.

MR REYNOLDS:   Begging your Honours’ pardon, I just wanted to clarify whether we have leave to rely on the notice of contention.

MR WINDSOR:   As I understand it, your Honour, that leave has not been granted by the Court up to this point in time.

KIEFEL CJ:   Do you say that you have been prejudiced?

MR WINDSOR:   No, your Honour.

KIEFEL CJ:   Yes, leave is granted.

MR REYNOLDS:   If your Honour please.

MR WINDSOR:   Your Honours, in the appellant’s respectful submission, it would be a rare case in which an appellate court will not give relief if there has been procedural unfairness in circumstances where that procedural unfairness goes to a fact material to the decision.

We submit, on behalf of the appellant, that this is not one of those rare cases.  Can I proceed by taking the Court to the joint bundle of authorities book and in this context simply take the Court to tab 18 at first instance, tab 18 being the tab dealing with the Stead decision. That is at page 288 of the joint book.

Your Honours are, undoubtedly, well acquainted with the facts giving rise to this particular matter.  The then plaintiff had a neurotic condition.  The question was whether that neurotic condition was caused by the negligent act or breach of duty by someone and there was evidence by Dr Scanlon as to whether it did or did not occur.

But could I take your Honours over to page 292 of the joint book, at about point 3, where there is the quote, first of all, appearing from Jones v National Coal Board:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge . . . No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Then moving down a little further, still on that same page, there is reference to Justice Bollen.  Then three lines down from the quote:

Would further information possibly have made any difference?  That qualification is that an appellate court will not order a new trail if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.

Moving on to the next paragraph:

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.

There is then that discussion about whether a question of law fits into a particular category, then moving onto the next paragraph at about point 6 on the page:

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference . . . However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution.  It is no easy task for a court of appeal to satisfy itself that what appears on is face to have been a denial of natural justice could have had no bearing on the outcome of the trial.

Going over to page 293 or 146 of this judgment, I would ask your Honours to go down to the first full paragraph, about point 3 on the page:

We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant’s counsel been given a reasonable opportunity to present submissions on the issue, it could have made no possible difference to the result.

Then if I can invite your Honours to go over the page to page 294 or 147 of the judgment:

Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion.  All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.  In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

Just stopping there for a moment, your Honours, we submit that, having established that there had been a denial of, in this instance – the expression used is “natural justice” but I have used the expression elsewhere of “procedural unfairness” – the onus shifted.  We have made reference in our written submissions, particularly at footnote 59, to authorities for the proposition that that onus does shift.

Could I then invite your Honours to go to tab 19 of the bundle.  This is a decision of Ucar v Nylex Industrial Products.  This is a case which concerned some movements by the litigant which were observed by the trial judge.  Could I then invite your Honours to go to page 320 of the book, at 517, and go to paragraph 71 on that page:

The High Court has consistently stated that relief is not to be refused where the denial of natural justice deprived the applicant of the possibility of a successful outcome unless a new trial would inevitably have produced the same result.

Putting to one side cases which turned upon the rigidity of statutory imperatives concerning procedural fairness and which may be distinguishable from those concerned with common law requirements of procedural fairness, there has not always appeared to be consistency in the application of these principles at an intermediate appellate level.  Some cases have upheld the impugned decision because there were alternative grounds on which the decision could not be impeached.  Where the applicant has failed at the hearing as a consequence of a point of law or discrete issue of fact unrelated to the procedural unfairness, relief has sometimes been refused, because there was no possibility of a different outcome –

Thereafter there is some further discussion about the backward and forward‑looking tests and, as your Honours would well appreciate, there have been different judicial pronouncements as to whether it is one test or the other and that has certainly created confusion in this particular instance because, as your Honours would appreciate, in applying a backward‑looking test, Justice Ward in the New South Wales Court of Appeal came to the conclusion that a new trial would be a futility whereas Justice Simpson took a forward‑looking approach and she reached the conclusion that it was not a futility but rather there was an entitlement to the relief sought, namely, a new trial.

If I could just go over the page to page 322 and go down to paragraph 75, his Honour Justice Redlich says:

In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused.  It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness.

And then a bit further down:

Secondly, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.

And then, if I can go across the page to the observation of Justice Nettle in the matter of Collection House v Taylor which appears at paragraph 77:

[I]t is never an easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could not have borne on the outcome of an issue of fact.  The difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness. 

I will return to the question ‑ I am sorry, I will return to the subject matter of this appeal in the context of rejection or acceptance of a testimony of a witness shortly. 

His Honour has something further to say, that is, Justice Redlich has something to say at paragraph 79.  He talks about causal connection there in paragraph 79 and then he talks at line 4 of that paragraph, relates to could it “possibly have affected the decision”.  And then if before leaving this decision, I can invite your Honours to go over to page 325 at paragraph 86:

Where procedural unfairness bears upon the acceptance or rejection of the testimony of a witness at the trial, an appellant court, not being able to evaluate the evidence of the witness in the way in which the trial judge can, will generally be disabled from reaching any sound conclusion that a properly conducted trial could not possibly have produced a different result. 

Can I leave that decision then for the moment and ask your Honours to go to tab 11.  This is the matter of Etri in the District Court of New South Wales, another case of the loss of opportunity to make submissions.  Could I invite your Honours to go to page 97 and take your Honours to line 17:

Counsel for the second opponent also submitted that, even if the claimant was otherwise entitled to relief in this Court, such relief should be refused on the ground that even if a re‑hearing was ordered, there was no possibility of a different result.  In this connection counsel relied upon the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141.

In the present case, however, it is impossible to conclude that compliance with the rules of procedural fairness could have made no difference to the result.  This is so more especially having regard to the consideration that questions of fact would be involved in any re‑hearing, including questions as to facts which, according to the affidavit of counsel for the claimant before his Honour referred to above, were not put to his Honour, and were not identified in this Court and which might affect the significance of the facts which were before his Honour . . . This consideration alone would, in my opinion, make it impossible, for all practical purposes, to satisfy the Court that a re‑hearing complying with the rules of procedural fairness could not possibly produce a different result.

Your Honours, having perhaps laboured a little over those three judgments, I move on.  There is controversy as to which particular test should apply.  We submit that there is room for both tests in particular circumstances.  We submit that an appellate court considering a situation like the one applying here will apply both tests and if there be a “yes” to either of the tests, then what transpires there shall be, in our respectful view, a new trial.

KIEFEL CJ:   How do you say the two tests operate differentially in this case perhaps by reference to how they were approached in the Court of Appeal?

MR WINDSOR:   I am sorry, I just missed the last bit, your Honour?

KIEFEL CJ:   Perhaps by reference to how they were approached by Justice Ward and Justice Simpson in the Court of Appeal.

MR WINDSOR:   If I could take your Honours in the first instance to volume 2 of the appeal book?  Your Honours will see at paragraph 3 that Justice Ward says:

I have, however, come to the view that looking at the matter realistically there is no possibility that a trial conducted in accordance with the rules of procedural fairness would have yielded a different result in this particular case.

The use of the past tense – namely, the word “have” ‑ gives a clear indication that her Honour was applying a backward‑looking test, and if it has been what her Honour was concerned about, would it have made any difference at the impugned trial?  Then if I can go to Justice Simpson on page 628, she says at line 21 ‑ ‑ ‑

KIEFEL CJ:   Which paragraph number?

MR WINDSOR:   Paragraph 38, your Honour.  She says:

In addressing the question of procedural fairness, counsel for Ms Mariconte first relied on authorities to the effect that a new trial will not be ordered if the inevitable result of a new trial would be the same as that of the original, flawed, trial . . . That principle does not assist Ms Mariconte.  I am not satisfied that a trial conducted in accordance with the rules of procedural fairness would not yield a different result. 

Her Honour is applying, in our respectful view, a different test.

EDELMAN J:   But here it must be the same as the test that Justice Ward was applying, because Justice Ward must have been comparing the consequences of a trial without procedural fairness to one with procedural fairness.

MR WINDSOR:   In our respectful view, your Honour, what she is doing is taking the impugned trial and, as it were, reconfiguring what would have happened at that impugned trial had certain things occurred.  It is that task, in our respectful view, that she cannot do.  Why?  Because – and I will come to a litany of these in a moment – but there were factual matters that were not before the trial judge, despite the efforts of my client to have those matters before the trial judge.

EDELMAN J:   If that is an answer, that is not just an answer to Justice Ward, it is equally an answer to Justice Simpson’s point about:

a trial conducted in accordance with the rules of procedural fairness would not yield a different result.

MR WINDSOR:   What Justice Simpson is attempting to do is to approach it on the basis that there has been procedural unfairness, how best to identify the relief that should be granted in the particular instance, or whether relief should be granted.  In doing so, her Honour is avoiding the difficulties associated with trying to hypothesise how the original or the impugned trial proceeded.

GAGELER J:   You took us earlier to a passage in the judgment of Justice Redlich in Ucar and I understood you to be seeking to draw our attention to it because it stated a principle which you say is a correct principle. 

As I understand what his Honour was saying at paragraph 75, to which you took us, his Honour was saying that what goes by the label of the Stead principle is in truth two potentially overlapping principles:  one concerned with the materiality of the breach of procedural fairness that has occurred to the outcome that has occurred – call that backward‑looking, if you like, but absent a material breach, there is no basis for a court to interfere with a judgment that has been given. 

The second principle – call it forward‑looking, if you like – is concerned with the futility of ordering a new trial in circumstances where a material breach has been found.  Is that the way you put it?

MR WINDSOR:   Yes, your Honour, and whilst I may have expressed it less eloquently in terms of this ‑ earlier on, the position being that we see there is a need for incorporation of what have previously been described as this backward test and forward test as if they were independent of each other of having an operation conjunctively in the way that your Honour has described.

EDELMAN J:   Except your submission is that you would succeed if you satisfy either test or if you negate either test.

MR WINDSOR:   Yes, your Honour. 

EDELMAN J:   In other words, if you showed that it was material, then you are entitled to a new trial even if there would be no utility in the new trial.

MR WINDSOR:   That would be our primary position, but insofar as the second position is concerned – that is, the utility position ‑ we would submit this.  It does not quite go to the question of utility that your Honour has just raised.  As we read the authorities on the question of futility, your Honour Justice Gageler has used the expression that the question is one of depriving a person of the possibility of a successful outcome.  I am not sure that your Honour was using that quite in the context of futility but that was an expression used in the WZARH Case.

Others have expressed it slightly differently.  In Stead, I have already taken your Honours to the expression “inevitably result”.  The use of the word “inevitably” suggests that there is no chance that things would be different.  Justice Gleeson in Aala made reference to “no difference” to the result.  Justice Gaudron in that same place once again used the word “inevitably”.  Justice McHugh speaks about it “could not have affected the outcome”. 

Various other expressions have been used along the way but, in our respectful view, once you get to this question of futility, it is such a difficult bar for the respondent to satisfy an appellate court that there ought not be a retrial, that we would submit having established the materiality, as we did in this instance at least so far as both Justices Ward and Simpson are concerned, it is difficult then to take the next step and say that there is going to be a real prospect of any further consideration of the matter, although we do accept that with questions of law there is a futility about it; with questions of fact, not the situation.

In either case, namely, whether we are looking at a backward test or a forward test, appellate courts have to make some sort of determination or a determination as to materiality and the judge’s capacity to make an assessment of whether the particular denial was in fact one which was material.

Now, in our respectful view, in the case before your Honours today the New South Wales Court of Appeal could not have properly made – or Justice Ward could not properly have reached the conclusion that she did.  First of all, she, unlike Justice Simpson, did not engage with the evidence that may have been before the trial judge but which was rejected by the trial judge.

GORDON J:   Is that the affidavit of Lemesle?

MR WINDSOR:   It is, your Honour.

NETTLE J:   She does speak of it in paragraph 8 of her reasoning.

MR WINDSOR:   She does, but what she has done is that she rejected that and she rejected it for a number of reasons.  One, it was said that Mr Nobarani, who was then appearing for himself, had not made it clear to the then plaintiff’s senior counsel that he wished to rely on it.

NETTLE J:   That was wrong; I understand that.

MR WINDSOR:   That is right, your Honour.

NETTLE J:   But her Honour does go and say that none of the matters in Mr Lemesle’s affidavit were sufficient to trump the path of evidence of the solicitor as to the circumstances of execution of the will.

MR WINDSOR:   In our respectful view, that cannot be right.  If I can invite your Honours to go then to the Lemesle affidavit, and if your Honours go to volume 2 – before I take you to particular parts of it, in our respectful submission, what Mr Lemesle had to say went to the frailty of Iris McLaren, the deceased; her general state of health; her ability to express herself; her ability to reason; her ability to weigh up her proposed dispositions.  It also went to suspicion regarding the advantage that a person might be attempting to take and what is more it was an affidavit, albeit that Mr Lemesle says that it was on 10 December that these events occurred, we know that it was on 5 December.  How do we know that?  Because the will, which was made ‑ ‑ ‑

GORDON J:   The will is page 602, I think.

MR WINDSOR:   I am sorry, it is page 475 ‑ the will that was made on 5 December.  Your Honours will see this is the one that is in the handwriting of the solicitor.

GORDON J:   I think it is also on page 602 in the same book, is it not, because it is attached to the order when the probate was granted.

MR WINDSOR:   Thank you, it is, your Honour, yes.  I am coming back to Mr Lemesle’s affidavit in a moment, your Honour, but you will see that ‑ this is the handwritten will ‑ you will see down on the bottom at line 40 to 43 the two witnesses.  This is Rachel Parseghian, and then you will see over the other side the signature of someone described as Chen Yuanun.  Your Honours will appreciate that attempts were made to find Mr Yuanun.  His address, 31 Victory Street, Rose Bay, was in fact a building site.  He could not be found in the short space of time that Mr Nobarani had available to him.

But on that will that is front of you, you will see, on the right‑hand side, under the dot dot dot line, the words “Daniel” and then “L E”.  There is no dispute that what was proposed should happen is that Daniel Lemesle should be a witness to the will and he was living at Coogee and you will see Coogee crossed out on that document.  So then, whilst his Honour makes the point that there was this confusion about the date, in our respectful view, it does not go anyway; that is, it is not of consequence.

So, having, in short form, answered your question, Justice Nettle ‑ proffered some information, Justice Nettle, in relation to the Lemesle affidavit, can I go to page 461 again.  Your Honours will see that at paragraph 1, he was:

a close friend of the late Iris McLaren –

He gives in paragraph 3, the circumstances in which he met her.  And then if we go over to page 462, paragraph 13, he makes reference to the fact that she had relatively poor eyesight and then he says that:

“I am very reliant upon Hamid.

Hamid being my client:

If you ever need anything or want anything –

et cetera, et cetera, she makes reference to Hamid yet again.  Your Honours, just stopping there for a moment, would appreciate that one of the bases upon which my client asserted an absence of procedural fairness was Mr Nobarani’s inability in the timeframe that was permitted to him, to get information going to the capacity of, the capacity in the sense of ability of the deceased, to actually see what she was signing.

Whilst he arranged through the registry to issue a subpoena for that purpose, the registry issued the subpoena, it was served but the return date for the subpoena provided by the registry was after the date of trial and that subpoena is in the bundle.  Continuing on paragraph 18 of page 462, Mr Lemesle says that:

From time to time –

that she told him, that is the deceased told him that her:

first priority is animal welfare.

Then he makes reference at line 20 to:

In or about 2008 . . . Iris said:

Over to page 463:

“I am angry with them as they are killing animals so I am leaving my money to the Animal Welfare League.”

And then there is reference to further similar statements made in paragraph 21.  And then there is a reference to a conversation he has with the deceased at paragraph 24.  And then at paragraph 27, he makes reference to his observations of the deceased deteriorating significantly, not being able to eat or drink:

She kept her eyes closed all the time.  Sometimes Iris appeared to understand what I was talking about.  At other times she did not seem to understand.  Often Iris could not maintain a conversation.  She seemed exceedingly distressed . . . appeared to be in pain.

And then he makes reference at paragraph 29 that he received a Christmas card from her but it was not in her handwriting, and then on, over the page at 640 – sorry, 464, reference is made to his observation that the respondent seemed “overly caring” to the deceased and “appeared to be pandering to her”. 

Just stopping there for a moment, observation may reasonably be that had this information been before his Honour, it offered some observation about suspicious circumstances which may have been overbearing the deceased’s knowledge and approval.

I then move on.  He makes reference that he visited her at paragraph 34.  She was “very ill” on that day.  And this is said to be 9 December, we know it was 5 December ‑ makes reference to Mr Bradstreet in paragraph 35, and then at paragraph 36:

We wanted you to sign a Will as a witness.”

And he then says, at paragraph 37:

“How can Iris sign a Will in her present state?  She was not capable of signing the Christmas card two weeks ago and she is much worse now.”

And the plaintiff says to him:

“Mr Bradstreet said it is alright.”

And then he makes reference to seeing her when – being with her when she died.  And then if I can invite your Honours to go to paragraph 44, he says:

Although I have seen Iris sign on many occasions I am not certain that the signature on the document dated 5 December 2013 is Iris’s signature.  She was very ill at the time so it is possible that the signature is not that of Iris. 

And then over the page, paragraph 46, he says, making an observation:

The terms of the Will dated 5^th December 2013 are most unusual.  Iris had made it quite clear for many years that she intended the Animal Welfare League to have the greater part of her estate. 

And then he says his only interest in this matter is to see that Iris’s wishes are carried out.  And then in the final sentence:

To my knowledge Iris’s intention to give her estate to the welfare of animals did not waiver to the end of her life. 

So, let us just engage with that a little bit further and that is engage with Mr Lemesle’s affidavit a bit further.  How might it have affected things?  First of all, it provided a completely different account of – or picture of frailty, state of health et cetera, as I described before but it went to corroborate or give some support to what Mr Nobarani had said in his affidavits and in the witness box. 

We appreciate that her Honour - I am sorry, Justice Slattery at first instance, the primary judge, did not accept my client as a credible witness but once one adds to the mix the affidavit of Daniel Lemesle then it gives credence or greater credence than his Honour accepted in the evidence of the appellant.  So his Honour did not have this affidavit.  Mr Nobarani sought on two occasions to rely upon it.  No order had, in fact, been made but he had to give notice what he was to rely upon at the hearing albeit that it was put to or suggested at one stage by senior counsel for the respondent that such an order had been made so that to have not had the opportunity of relying upon that affidavit and, indeed, any further evidence that Mr Lemesle could give, in our respectful submission, was something that made it impossible for the appellate court to have made a conclusive decision that there was a futility.

Further, the trial judge had not seen some witnesses that Mr Nobarani had sought.  He had sought, first of all, the ophthalmologist, Dr Kearns.  Secondly, he had sought the opportunity of having a handwriting expert.  He had sought the opportunity of cross‑examining Ms Parseghian.  He had sought to locate Mr Yuanun, the other signatory or the other witness to the will.  He did not have documents produced by Dr Kearns or the focus ophthalmology or optometry service which would have given credence to the position he was advancing concerning the eyesight of the deceased.

GORDON J:   Do you make complaint about not only the non‑existence of those materials in those denials but the limited time in which he was given to make arrangements for those things?

MR WINDSOR:   Yes, your Honour.

GORDON J:   Do you make any point about the conversion of the proceeding or what seems to have been a conversion of – I do not actually know what it was, it seems as though the caveats must have lapsed but how it was that it suddenly got converted from ‑ ‑ ‑

MR WINDSOR:   Can I deal with that, your Honour? 

GORDON J:   Only at the appropriate time, but it seems to be a pretty good starting point.

MR WINDSOR:   I will come to that, your Honour, because, if the Court will bear with me, I wish to take your Honour to what transpired before Justice Hallen on at least one occasion, and what had transpired before the primary judge but three clear days from the commencement of a trial of what I will call all issues.  I will return to that.

Just staying with those elements or the information that was not available, we submit that an appellate court must be exceptionally cautious in circumstances where it did not even have the information upon which to make an assessment as to whether the nature of the evidence would have affected the ultimate outcome.  I have just made reference to what was not available.  We do know what was available, in the sense of Mr Lemesle’s affidavit, but we do not, and the court could not know what might have transpired had there been experts and had there been cross‑examination of any witness.

If I can then move on to the point that Justice Gordon took me to.  In that context I would invite your Honours to take up the first volume of the appeal book and go to page 108.

KIEFEL CJ:   You can, of course, take it, Mr Windsor, that we are familiar with the chronology of events as set out in the judgments.

MR WINDSOR:   Thank you, your Honour.  We do know that this is an event which is occurring on 23 April, so we are a little short of one month out from the hearing, and this has come on for directions and case management by Justice Hallen in the Supreme Court of New South Wales.  If I can invite your Honours in the first instance to note that on page 108 there is a reference at line 34.  His Honour is asking Queen’s counsel for the then plaintiff whether it is:

correct in saying there is no pleading on your side naming Mr Nobranie and the defendant?

Senior counsel makes reference that that is not his understanding.  Well, the fact of the matter was that my client was not joined as a defendant on the statement of claim until the commencement of the trial before the primary judge. 

Then, if I can invite your Honours to go to page 109, his Honour makes reference between lines 5 and 10 – he is, just for the moment, trying to work out what is the best way forward.  He makes reference to the notice of motion that relates to the caveats and then he is assisted by senior counsel at lines 16 and 17 and then through to line 27.  Then his Honour says at line 30 that he has spoken to the primary judge – no objection to Justice Hallen dealing with it and trying to see if it can be salvaged and then there is the reference to the hearing on 20 and 21 May.  Then his Honour says at line 38:

What I think what needs to be done, the first thing is you should file an amended notice of motion identifying [my client] as the caveator and so on and serve that relatively quickly with the affidavit in support with your application –

to have the caveat removed.  The caveats were not in place at this time.  There had been a caveat and a second caveat had been lodged by Mr Nobarani, but that had also lapsed by reason of the rules, namely, that caveat could only have been of effect for six months.  But he says at line 44:

The second thing that needs to be done is there should be an amended statement of claim filed and I will ask you about that in a moment but what I had in mind initially was to simply give you leave to file your amended notice of motion . . . If I then give Mr Nobranie an opportunity to put on any evidence in response to that and leave the entire issue for the trial judge on 20 May, being the determination whether the caveat should cease to be enforced.  If his Honour determines the caveat should cease to be enforced presumably since you have resolved your matter with the defendant and you have presumably affidavits of attesting witnesses on, then that will presumably be a matter that the trial judge can determine once he determines whether a caveat should cease to be enforced.

Then senior counsel says:

There is also on foot a notice of motion as yet undetermined seeking judgement as to the rules.

HIS HONOUR:   That is a waste of time.  My understanding has always been it is extremely difficult to get summary judgement of a proceeding particularly where you have not amended the statement of claim to make [my client] a defendant.

. . . 

HIS HONOUR:   The other alternative is to give you leave to file an amended statement of claim, dismiss the notice of motion and let Mr Nobranie put on any evidence he wants to including a defence and any affidavits he wishes to.

And then senior counsel says:

I would urge you not to do that.  The approach your Honour was considering the notice of motion of February 2014 be amended in the manner in which your Honour suggested and the matter go before the trial judge on that issue.  That would be far and away the most expeditious way of dealing with it.

His Honour then raises with senior counsel:

You appreciate in the event the trial judge considers the caveat should remain in force or alternatively there is a basis for the matter proceeding by way of pleading you will have to proceed by filing an amended statement of claim.

He understands that and so if one goes over the page to page 111, at line 5 through to line 15, it is made absolutely clear at that point that what is happening is that the court will proceed at the forthcoming hearing to deal with the proposed amended notice of motion, which in turn deals with two caveats.  Then there is this exchange at line14:

I assume, Mr Maconachie, all of the evidence upon which you intend to rely in support of the notice of motion has been served?

MACHONACHIE:   Yes.

Then his Honour on page 112 makes reference to what he is going to do, at line 36:

The issue I am going to ask Slattery J to decide is going to be limited to whether or not your caveat should cease to be in force.  That will be the issue.  Do you understand that?

SECOND DEFENDANT:   Yes.

Then over on the following page at lines 4 through to 6 the reference to it again and a bit further down, still on page 113, at lines 23 to 24, it is a hearing that is proceeding:

against the caveat ceasing to be enforced.

If it were of any assistance to the Court, that order is then recorded on page 23 of the bundle of the appeal book.  If one goes to 23, this document that you see now is the extract of orders taken from Justicelink.  If I can ask you to go to 23, your Honours will see at line 28 there is a reference to order 7:

Orders that the hearing before Slattery J on 20 and 21 May 2015 be limited to the determination of the question whether any Caveat lodged by the second Defendant should cease to be in force.

So it is clear, it is apparent what the limited hearing is going to be about, but it did not transpire that way.  I invite your Honours then to go back to the later part of the same volume and go to page 120.  So we are now at page 120 but what his Honour the primary judge described is three clear days from the allocated hearing date and senior counsel says at line 11 that:

Hallen J ordered on 23 April that the matter proceed before your Honour on 20 and 21 May on the issue of whether or not caveats ought to be removed and restricted to that, his Honour didn’t appreciate – he being in the middle of a running list -

His Honour may not have appreciated that but senior counsel for the plaintiff in the proceedings, now the respondent, did not draw that particular matter to his Honour’s attention.  What his Honour then goes on to do and if your Honours go to page 131 you will see one of many applications for an adjournment by my client referred to at lines 19 and 20 and then his Honour says at line 34:

The only thing I just want to understand is what the nature of the hearing is going to be, Mr Maconachie.  I think we do need to work out now what both sides are going to be expecting to happen and whether there has been any misunderstanding about that.  I have to say I am inclined to, in effect, let it all happen as though it were a kind of final hearing.

To use an expression, we have a flip side of senior counsel’s approach to what should happen at this point.  What he does is he urges the primary judge to take that course, namely, to have a hearing in which all issues are determined.  He goes on to say more about that at line 40, once again urging his Honour to take that course.

As we point out in our written submissions, the position is one where the onus on Mr Nobarani had there been a hearing simply directed to the orders sought in the amended notice of motion was very, very different to the one he had to meet with a final hearing.  What would have satisfied a judicial officer in the event that there had been a notice of motion?  Mr Nobarani had the earlier will, that is, the 2004 will.  He was entitled, under that will, to not just things which may have been trinkets or not, but there is the reference of an entitlement to jewellery.  So he had an interest.  He was able to establish that by simply advancing or tendering that particular document.

Secondly, with the benefit of Mr Lemesle’s affidavit, it would have created a doubt concerning whether there ought to be a grant of probate of the 2013 will.  Further, he had his own affidavits which had been filed years before concerning his observations.  In our respectful submission, that would have been more than just sufficient.  It would have comfortably satisfied the not burdensome onus cast upon a person in the position of Mr Nobarani at the hearing of the amended notice of motion. 

The position was one where he now had to confront a completely different hearing with responsibilities in preparation and management which were just not capable of being met in that short space of time.  I will move on, your Honours.

KIEFEL CJ:   Where are we in relation to your outline, Mr Windsor?  Are we up to paragraph 8?

MR WINDSOR:   I have perhaps jumped into paragraph 10 as well, your Honour. 

KIEFEL CJ:   Yes, very well.  You have findings in relation to denials of procedural fairness in the court below.  Do you wish to deal with them now or in response to the notice of contention?

MR WINDSOR:   In response to the notice of contention, your Honour.

KIEFEL CJ:   Yes, very well.  As you moving then to ground 2?

MR WINDSOR:   Yes, your Honour.

KIEFEL CJ:   You have moved into it, I suppose. 

MR WINDSOR:   Yes.  Your Honours, we have remained somewhat confused as to what Acting Justice Simpson had in mind.  He did identify, in the course of his judgment, a concern about the way the proceedings had been ‑ ‑ ‑

KIEFEL CJ:   It stemmed from questions about the potential validity of the 2004 will, is it that – but you say this does not equate to the same question that Justice Simpson addressed in relation to whether there was an interest?

MR WINDSOR:   That is right, your Honour.

KIEFEL CJ:   Questions about the validity of the 2004 will would simply be dealt with if the 2013 will was not granted probate in solemn form.

MR WINDSOR:   That is right, your Honour.  It would require this course, your Honour.  Notice would have to be given to persons concerning the 2004 will before there could be a determination about whether it should be granted into probate.

KIEFEL CJ:   Yes.

MR WINDSOR:   But that would happen at some later point in time in the event that probate was not granted. 

KIEFEL CJ:   It might or might not be reached, depending upon the outcome of the hearing on solemn form. 

MR WINDSOR:   That is right, your Honour.  His Honour makes reference to some disquiet which, in our respectful view, may be consistent with his concern that there would be – there had been a denial or denials of procedural fairness.  It is not clear from his Honour’s judgment, but reading it, the disquiet arises, reading it – that is, his Honour’s judgment, the disquiet arises because of the change in the nature of what was to occur on 20 and 21 May. 

So he has some concern.  He has some disquiet.  If he is talking about Mr Nobarani’s interest in purely financial terms that cannot be right.  It is wrong, as I understand the respondent’s position, to say that he was only getting certain items which were he could choose but it was subject to others having a right of choosing as well.  He was entitled, as I said earlier, to items of jewellery and also other items.  Now, they might be worth nothing in financial terms, but that does not equate with them not being worth anything to Mr Nobarani. 

It is a truism, a cliché, that one person’s trash is another person’s treasure.  Certainly, so far as Iris McLaren was concerned, it was certainly not trash; it was treasure to her.

KIEFEL CJ:   Well, you rely upon Justice Simpson’s findings.

MR WINDSOR:   That is right, your Honour.  To the extent that I have made reference to the jewellery and personal effects, a reference to that can be found in the earlier will in the appeal book at 494.  To the extent that his Honour Acting Justice Emmett might have been referring to interests in another context, we submit that the appellant was a person whose interest may have been prejudiced or jeopardised by the will that was being challenged, and that was clearly the case. 

To the extent that Mr Nobarani had an interest, it was not remote, his interest was prejudiced or jeopardised, that is consistent with the authority that one finds in Devoy, which is at page 270 of the joint bundle of authorities.  If the Court pleases.

KIEFEL CJ:   Yes, thank you, Mr Windsor.  Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, could I begin by dealing with what I will call the appeal proper, that is, leaving matters to do with our notice of contention to one side.  As my friend has said, both in writing and orally, two of the judges were against his client, that is, refused to order a new trial but on slightly different grounds.  What my learned friend does is to attack the reasoning of, first of all, Justice Ward and, second of all, Justice Emmett in relation to their refusal to order a new trial. 

What I would like to start with is some consideration of the rules that apply, principles that apply, in relation to ordering a new trial.  I want to try and attempt to get those straight and to put some propositions, in effect, to your Honours about how your Honours should, first of all, construe the relevant rules and go about appraising the exercises of discretion by both of the these two judges.

Your Honours should have a bundle of – which we have put together which contains the relevant statutory and regulatory provisions and I would like to spend if I may a few moments just going through those briefly.  Your Honours will see there is a number on the top right‑hand corner of the page - this is a document which has on its front “Civil Procedure Act 2005 No 28”. This is a little collection we have prepared.

If your Honours go to page 7, your Honours will see section 101 of the Supreme Court Act.  That provision creates a right of appeal, this is subsection (1), and I would ask your Honours to underline the expression “subject to the rules”.  Relevantly, that will pick up the provisions of - your Honours go to page 10, top right‑hand corner, it will pick up the provisions of the Uniform Civil Procedure Rules, 51.53, and it is the first sub‑rule that is relevant and that is there is a prohibition there on the court ordering a new trial on any of the following grounds and the relevant one here is (d).  This is also important “on any other ground”.  Then there is an exception.  The exception is that if it:

appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

KIEFEL CJ:   How does this become relevant to the decisions below?  The question in relation to a new trial is really one for this Court, is it not?  It was not really a matter before the, you would say, the Court of Appeal.

MR REYNOLDS:   It will only be a matter for this Court if error is shown in the exercise of discretion by either or both Justice Emmett or Justice Ward.

KIEFEL CJ:   But do you say these principles were relevant to the Court of Appeal?

MR REYNOLDS:   Exactly.  We need to see what are the rules, as it were, that they were playing by before we can determine whether or not they were leading to error.

KIEFEL CJ:   Yes, I follow.

MR REYNOLDS:   Your Honour, I will not be taking too long about this.  I just want to get a few points straight because I need to set that up before I then both defend Justices Emmett and Ward from the attacks that are made on their reasoning and, second of all, with respect, also myself attack the reasoning of Justice Simpson in relation to 51.53 but I need to get the goal posts right.

KIEFEL CJ:   Yes.  No, I understand, thank you.

MR REYNOLDS:   That is the exercise here.  Some of the points that I am making I appreciate are very basic but one of the problems I have found in preparing for the case is that perhaps with the honourable exception of Justice Basten there does not seem to be a lot of close attention paid to exactly how these relevant provisions work.

Now, the other provision I want to take your Honours to briefly is the provision that deals with the nature of the appeal which is section 75A - this is page 5.  Your Honours will know that that creates an appeal by way of rehearings - this is sub‑rule (5) and sub‑rules – also sub‑rule (6) and sub‑rules (7), (8) and (9) talk about further evidence.  I will be coming back to that in due course.  The most important provision here is the discretionary provision in sub‑rule (10) which states - and I will only pick up the relevant words:

The Court may . . . make any order . . . which the nature of the case requires.

There are two aspects of that.  One is that the word “may” obviously imports a discretion.  And the second is that an order – I do not think there will be any doubt about this – which would come within subrule (10), would be an order either to refuse a new trial or an order to order a new trial.

However, in the case of an order for a new trial there is, as your Honours have seen, a sine qua non, and that sine qua non is in rules 51.53, and that is there is a prohibition on that discretion being exercised – this is page 10, your Honour – unless, and this is the exception, there is “some substantial wrong or miscarriage”.

NETTLE J:   It is the civil proviso as we usually call ‑ ‑ ‑

MR REYNOLDS:   Yes, your Honour, but your Honour will understand why I do not want to go into that territory given both its similarity and the relevant differences.  But one matter that I would underline, since your Honour has raised it with me, is that as the Weiss line of country says, one of the important things is to actually go back and have a look at exactly what these provisions say.  And it is really doffing my cap to that proposition, in part at least, that I am doing this because I want to suggest that there is a way of construing these provisions and that it does fall into place and it falls into place fairly neatly in a way that I will respectfully submit will make it easier for your Honours to resolve the appeal.

KIEFEL CJ:   Do you say that these provisions are at odds with the decision in Stead at all?

MR REYNOLDS:   Well, I am coming to that, your Honour, but if your Honour would have me deal with that parenthetically ‑ ‑ ‑

KIEFEL CJ:   No, I will not take you out of sequence.

MR REYNOLDS:   Yes, I do have to deal with it; I will be dealing with it, I think, in about three minutes.  But I want to first say how it does work before I get to Stead which, in a sense, is kind of how it does not work, although I emphasise we can live with Stead.

Now, if the matter were res integra which, of course, it is not, and your Honours were approaching rule 51.53 for the first time and so it was a new provision, and your Honours were looking at who bears the burden of showing that a substantial wrong or miscarriage has been occasioned, the way your Honours would tend to approach it would be to look at this way and say, well, who is it that needs to assert that there is a substantial wrong?  Answer:  the applicant, for a new trial.  Who is it who bears the risk of non‑persuasion of the court on that issue?  The answer is the applicant. 

And the other thing your Honours would perhaps, again, if the matter were res integra, notice is that this is an exception provision.  And your Honours are aware of the line of country with Vines v Djordjevitch (1955) 91 CLR 512 and 519. And also, whilst I am on that topic, a case which is an application of the Vines principles about onus in relation to exceptions, on a similar provision to this, and the reference is Owens v BLF (1978) 19 ALR 569, a decision of the Full Federal Court, which was a case – your Honours do not have it, but I have mentioned it to my friend – which talked about someone saying someone must be admitted as a member, unless they are of bad character and it was held that the onus in relation to “unless of bad character” was on the person asserting it.

So here we would say, if your Honours were looking at this as a natural matter of ordinary statutory construction, your Honours would tend to say, “Well, whoever wants to say there is a substantial wrong or miscarriage is the person that is going to have to establish that”.  So that is, quite deliberately on my part, trying to have a look at the text without getting caught up in what judges have said about it.

What have they said about it?  Well, both a little and a lot but, relevantly, the case that I would take your Honours to in support of the proposition that the onus on my learned friend here is the decision he has already taken you to of Balenzuela v De Gail (1959) 101 CLR 226. It is the bundle of authorities, but perhaps before your Honours start eyeballing the text of it, can I just say this, that there have been basically two kinds of approaches in the various States to this issue of substantial wrong or miscarriage. The first is, what I will call the common law approach, and that is that some States retain the pre‑judicature provisions or practice, I should say, about the ordering of new trials and New South Wales, as your Honours know, was one of those.

So, when we are dealing with a New South Wales case, we are not actually construing the provisions of any particular rule, at least at the time of Balenzuela.  We are talking about a general law practice that had grown up over centuries in relation to the ordering of new trials en banc.  The other thing I would say though is that there is a Judicature Act provision that was brought in, obviously around the time of the Judicature Acts, and it was a statutory provision which in effect provided much the same as your Honours see in rule 51.53. 

So, the simple point I am making perhaps in too laboured a fashion is that well, your Honours are dealing with what I will call a Judicature Act provision.  Your Honours are not dealing with a common law practice.  However, this case is dealing, given it was New South Wales prior to 1970, it is dealing with the common law, but the importance of it is that it contrasts, or particularly Justice Dixon and a couple of the others, contrasts the position which obtains, on the one hand at common law, particularly in relation to onus and, secondly, and quite differently, in relation to the Judicature Act provision.  Now, with that in ‑ ‑ ‑

GAGELER J:   Mr Reynolds, rule 51.53 has a parenthetical reference to Part 51, rule 23 in the Supreme Court Rules.

MR REYNOLDS:   Yes, yes.

GAGELER J:   Is it the case that a provision along these lines has existed in New South Wales since 1970?

MR REYNOLDS:   Around about that, yes, your Honour.  If your Honour wants a little ‑ ‑ ‑

GAGELER J:   So, existed at the time of Stead?

MR REYNOLDS:   Yes, it did.

GAGELER J:   All right.

MR REYNOLDS:   Again, I will be coming back to Stead on this precise issue in a little bit of detail.

GAGELER J:   You said three minutes about five minutes ago.

MR REYNOLDS:   I know, your Honour, but your Honour knows how counsel get carried away on these things.  But just putting that to one side, what we ‑ ‑ ‑

KIEFEL CJ:   Well, it is the Judicature Act and you are from New South Wales, I suppose.  So it is understandable.

MR REYNOLDS:   Yes, your Honour.  We are still struggling with it.

KIEFEL CJ:   Yes.  Perhaps if we could get to the point.

MR REYNOLDS:   The point is, if your Honours go to the bottom of page 234, there is a contrast by Sir Owen Dixon between, on the one hand, the position at common law, where my learned friend would be in better shape because under the common law:

it was necessary to grant a new trial unless the court felt some reasonable assurance that the error . . . was of such a nature that it could not reasonably be supposed to have influenced the result ‑

So, if we were in a common law jurisdiction here, my learned friend’s client would be in a good state on this point.  But he goes on to say, unfortunately for my friend that:

under the judicature rule the burden is the other way.

Now, what that means is that under a Judicature Act rule of this kind the applicant, that is Mr Nobarani, has to show that the relevant error et cetera could reasonably be supposed to have influenced the result.  Notice also, your Honours, “at the trial” because he talks about:

of such a nature that it could not reasonably be supposed to have influenced the result –

Line 2:

at the trial ‑

I will come back to that in a moment.

KIEFEL CJ:   Is he speaking of a trial that has taken place?

MR REYNOLDS:   Yes.

KIEFEL CJ:   And where procedural fairness was not afforded?

MR REYNOLDS:   He is not talking about procedural fairness; he is talking about another sort of error but we are still talking about ‑ ‑ ‑

KIEFEL CJ:   Is it truly applicable, though, to a case where procedural fairness has prevented evidence being adduced?

MR REYNOLDS:   Your Honour, there are a lot of these cases about evidence and this is one of them.  This is about wrongful rejection of evidence and we would submit that, at least to that extent, it is on all‑fours.  But it is the general point of construction I am getting to.  What are the two points of construction I want to get out of this?  The first is that under this provision – I will call it the practical onus because at the bottom of 234 Justice Dixon discusses what he means by that.

The second thing is that we are actually talking about the result at the original trial.  There is a similar point that is made by Justice Taylor at point 4 on page 238, who talks about the difference between the common law rule and that under the:

Judicature Rules . . . under which the discretion of the appellate court is to be exercised against an appellant –

that is my friend:

unless, in its opinion, “some substantial wrong . . . has been . . . occasioned” ‑

The other references I will give your Honours briefly ‑ the notion that it is the original trial that we are talking about and the effect on it – are at pages 235, at point 1; 237, at point 7 and 239, at point 6.  I will come back and say something more about these discretions in due course, but if I can get to Justice Ward. 

KIEFEL CJ:   Does Justice Ward’s view of what amounts to a substantial miscarriage of justice involve an appellate judge forming a view as to the prospects of success on a retrial – on a new trial?  That is what her Honour appears to be doing at paragraph 8.

MR REYNOLDS:   I would submit that her Honour is looking at it in a couple of ways.  Looking at the outcome at the trial – that is paragraph 9, on page 619 ‑ ‑ ‑

KIEFEL CJ:   Her Honour does not expand on what is meant by:

a close review of the issues . . . and the conduct of the trial has led me to the conclusion [there is] no substantial miscarriage of justice ‑

MR REYNOLDS:   No, she does not.  Of course it is a concurring judgment and she refers in paragraphs 7 and 8 to various matters, so she is reviewing the matter in globo.  But her Honour also has an eye to the future as well, which I say is legitimate ‑ this is at line 20 on page 619 – because she says:

(whether or not he might now have the benefit of legal representation in any re‑trial).

We say that is legitimate, because the discretion to order or refuse a new trial can take into account what is likely to happen at a future trial.  That, we say is not an irrelevant factor, but the difficulty for an applicant for a new trial is that there is a hump – we submit, a large one – which they have to get over, namely, demonstrating a substantial miscarriage of justice.  At the foot of that page, Justice Ward concludes:

no substantial miscarriage of justice was occasioned –

GORDON J:   Could you just explain to me in relation to that sentence where we find the reasons for that conclusion?

MR REYNOLDS:   Her Honour is picking up the expression in the rule – that is, rule 51.53.  Her reasoning, which I agree is a little compressed, is fairly to be found in paragraphs 7 and 8.  What her Honour does in those paragraphs is to look at, first of all, the various discretionary matters – that is, matters that are relevant to the exercise of the discretion to order or refuse a new trial – and they include the affidavit of the solicitor.  Could I just dwell on that for a moment.  That is in paragraph 8 in particular.

The evidence from the solicitor here was about as good as it can possibly get in a case like this.  You had a man who had been her solicitor for 30 or 40 years.  He had done various work for the deceased.  She telephoned him – not the other way around.  He had no interest under the will.  He came in.  He made an assessment of her situation, which was in his affidavit, which was accepted.  He was given instructions by her.  He did not elicit them in the sense of putting words in her mouth as to what she wanted to do.  He wrote it down.  He then wrote out the will.  He then read it back to her.  He then got her to read through the will and to sign it in front of two witnesses.  This is rolled‑gold evidence of this kind and it is ‑ ‑ ‑

KIEFEL CJ:   But it assumes it would necessarily – well, her Honour does not actually assume - perhaps she does - that it would trump the affidavit of Mr Lemesle. 

MR REYNOLDS:   Well, she says really in terms, your Honour, in paragraph 8, I would submit, and the two points here are this is five star evidence from the solicitor and Mr Lemesle, to quote Justice Emmett, because he came to the same view about this.  Justice Emmett said - this is line 20 on page 652, he did not put it any higher than:

possible straws in the wind hinting at some irregularity.

I mean it is just a nothing.  That is what these two very experienced equity judges thought about this.  They looked at the evidence of Mr Bradstreet, the solicitor, which is – I mean, you are virtually, if you are going to try ‑ when one looks at the issues here of execution, knowledge and approval, and that has proved the cases say by taking the instructions, reading it back and getting the deceased to read the will in capacity, all the evidence was terribly strong here from Mr Bradstreet and he was not even cross‑examined by Mr Nobarani to suggest that any of this is wrong. 

GORDON J:   I must say I find that submission slightly difficult in the sense that it is very easy to sort of slice it up and take that aspect of it, but it has to be looked at in the context of somebody who is given at best three clear days - not actually a party until the start of the trial - time for preparation.  It is all very well to say he was not cross‑examined, but the very best of counsel have had difficulty getting prepared for this trial.

MR REYNOLDS:   Well, your Honour, I am in furious disagreement with my learned friend about that.  Let me put it high in response to what your Honour says and I will be getting to this in a lot of detail later on.  We submit essentially two things.  One, he had months and months and months to get ready for this case and he should have been ready and ready well before the hearing date. 

Your Honours were taken to the decision in Squire v Rogers.  You were taken to page 114 of that decision.  You were taken to the middle of that page.  We would invite your Honours to have regard to the passages which appear in the very first paragraph of that very same page and very briefly:

A court of appeal will not, as a general rule, interfere with the decision of a judge at first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him.

In the context of that Squires decision, at no time did Justice Slattery understand that what he was dealing with, either proposed on the 14th or indeed on the 20th or the 21st, had been and was to be the caveat issue.

Can I move on and go to page 637 of the second book?  This is Justice Emmett’s decision.  At page 637, paragraph 73 there is the reference there to the description of what Mr Nobarani is to receive.  There is the reference to the jewellery.  There is also reference at the bottom three lines:

Finally, the 2004 Document provided that “any money left” was to be bequeathed to “WIRES Animal Charity” and that “personal property” was to be given to “my friends and beneficiaries”. 

What his Honour either did not pick up or alternatively did not see is that Mr Nobarani was identified as one of those people, albeit he was identified as Hamid but there is no dispute in this case that Hamid is in fact Mr Nobarani.  That will, or that part of the will, appears at the appeal book at 493 and 494.

Excuse me a moment, if your Honours please.  Could I finish up with just one passage from John v Rees, Justice Megarry on page 402.  His Honour said:

Those who take this view do not, I think, do themselves justice.  As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

In our respectful view, applying the application to the appellant’s case, your Honours would be satisfied that the appeal should be allowed.

KIEFEL CJ:   Thank you. 

MR REYNOLDS:   Your Honour, technically I have a reply on my notice of contention which I do not wish to exercise, but what I wish to raise, if necessary, with leave, is my learned friend has made some attacks on the accuracy of the chronology.

KIEFEL CJ:   Yes.

MR REYNOLDS:   As to that, this is the tenth draft of that document.  There has been intense effort, particularly on my right ‑ ‑ ‑

KIEFEL CJ:   It will either withstand scrutiny by reference to the appeal book references that are given or it will not.  I am sure that we will give it its due attention.

MR REYNOLDS:   What I am concerned about is that I am told by those on my right that it is accurate.  Now, it may be that some prima facie inaccuracy may appear as a result of some of the things my learned friend has said but I am anxious that the matter not go off on a misstatement or misunderstanding as to what the detail is.  My suggestion would be we will have the transcript.  I do not know what the commitments are of my juniors ‑ ‑ ‑

KIEFEL CJ:   Appeal book references are given in the chronology to each of the statements asserted.  It is a simple question of the Court having regard to the references said to support the entry, is it not?

MR REYNOLDS:   Except this, your Honour, that in this jurisdiction, things happen such as ‑ ‑ ‑

KIEFEL CJ:   Mr Reynolds, if you want to put in a note, is that what you are asking to do? 

MR REYNOLDS:   Yes, your Honour, because I ‑ ‑ ‑

KIEFEL CJ:   You have seven days and then the appellant has seven days to respond. 

MR REYNOLDS:   Thank you, your Honour, and your Honour has my assurance that it will be accurate.

KIEFEL CJ:   Yes, very well.  While you are there, Mr Reynolds, there is something I wish to raise with you.  I have on a previous occasion made comment upon the document that you provide as an outline of argument and I think on that previous occasion I have called it an aide‑ mémoire for you.  It is not an outline of proposition as rule 44.08 requires and it is not of great assistance to the Court in the form it takes.  This is not the first time, this is the usual document, the type of document that you hand up.  This is by way of saying that on future occasions, the Court will expect you to produce a document which is compliant.

MR REYNOLDS:   Your Honour, all I can say is that I understood this to be compliant.

KIEFEL CJ:   Perhaps you should have a look at some other outlines of argument which are produced to the Court.  It might assist you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Sydney and in Melbourne.

AT 2.24 PM THE MATTER WAS ADJOURNED