Nobarani v Mariconte

[2017] HCATrans 236

[2017] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S184 of 2017

B e t w e e n -

HOMAYOUN NOBARANI

Applicant

and

TERESA ANNE MARICONTE

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 NOVEMBER 2017, AT 10.13 AM

Copyright in the High Court of Australia

MR M.J. WINDSOR, SC:   If the Court pleases, I appear with my learned friend, MR J.E.F. BROWN, for the applicant.  (instructed by Remedy Legal)

MR A.E. MAROYA:  May it please the Court, I appear with my learned friend, MR D.F. ELLIOTT, for the respondent.  (instructed by Vizzone Ruggero Twigg Lawyers)

GAGELER J:   You might stay on your feet, Mr Maroya.  We would be assisted by hearing from you first.

MR MAROYA:   Thank you, your Honour.  By our learned friend’s first special leave question, the applicant invites the Court to devise a catalogue of the criteria that must be met in order for a court to find that a party who has been denied procedural fairness would not be successful if a new trial were ordered.  In our submission, the difficulties with that question are several.  First, this Court’s decision in Stead v State Government Insurance Commission authoritatively settles the matter and it is unnecessary, in our respectful submission, for the question to be revisited by this Court now. 

GAGELER J:   Stead was a case where there was a mistake of law, was there not?

MR MAROYA:   Yes, yes, it was. 

GAGELER J:   So what is settled by Stead?

MR MAROYA:   What is settled by Stead, your Honour, is the approach that a court – in this case, the Court of Appeal – is obliged to take in arriving at a view that – to put the matter in shorthand terms – it would be a matter of futility to order that a new trial take place.  That is really the crux of what is laid down in Stead.  For that reason, in our submission, it would be most undesirable for this Court to seek to restrict, as the applicant invites it to do – to restrict the definition of “substantial wrong” or “miscarriage of justice” by reference to a list of criteria, particularly as our written outline records, where no conflict as to the state of the law is propounded by the applicant in his submissions.

The second difficulty that we proffer with the first special leave question is this, namely that it ignores the operation of rule 51.53(1) of the Uniform Civil Procedure Rules (NSW) which, as your Honours know, prohibits a court from ordering a new trial upon certain grounds including subparagraph (d), that is, “any other ground” unless - and I quote from the rule:

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

As we have recorded, your Honours, in our response, Justice Ward – and one can see this at page 40 of the application book – noted that any other grounds includes a denial of procedural fairness and in support of that proposition her Honour cited Singler v Ferguson [2010] NSWCA 325, and I will not take your Honours to the individual references in Singler but they are noted in our outline. 

Accordingly, the Court of Appeal was required to apply the matters stipulated in rule 51.53(1) in determining whether a new trial should be ordered. At page 41 of the application book one may see that Justice Ward held that on her assessment – her close assessment, we say - of what transpired at first instance and on appeal:

no substantial miscarriage of justice was occasioned by the unfortunate denial of procedural fairness –

Justice Emmett, albeit without reference to rule 51.53(1), held at paragraph 124, which one may see at page 72 of the application book, that the circumstances were such that the court should not intervene at the behest of the applicant. Of course, Justice Simpson – and one sees this at page 50 of the application book – considered rule 51.53(1) and arrived at the conclusion that a substantial miscarriage of justice had occurred and that a new trial was necessary.

The applicant goes on to contend that Justice Ward’s reasons were infected with a number of House v The King‑type errors.  In particular, we understand the applicant to be contending that first, Justice Ward was not in a position to say with such certainty, as the applicant puts it, that had the applicant had the opportunity to take certain steps, it would not have led to a different outcome at the trial before Justice Slattery and secondly, that Justice Ward failed to consider that the evidence of Mr Bradstreet, who was the solicitor who took the will, would have been sufficient to establish what is required to be established by the limbs of Banks v Goodfellow.

If I might deal with the first matter, it is submitted by the respondent that Justice Ward was in a position of certainty.  A scrutiny of her Honour’s reasons on this point reveal that certainty and how in careful accordance with what was laid down instead and what is prescribed by rule 51.53, her Honour correctly concluded that a properly conducted trial could not possibly have produced a different result.  One sees the reasons for this, set out in paragraphs 6 to 9 of her Honour’s reasons which appear at pages 40 to 42 of the application book.  Indeed, her Honour’s treatment of Stead begins on page 39 of the application book and her Honour records:

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.

Her Honour goes on to cite Stead.  In paragraph 5 on page 40, she refers to Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 where she records paragraph 29 of Justice Basten’s reasons for judgment and then she continues the thread of her reasoning in paragraph 6 on page 40 of the application book by making necessary reference to rule 51 ‑ that should read 53 of the Uniform Civil Procedure Rules. Her Honour goes on - and one sees this, your Honours, at page 41 of the application book - paragraph 7, she records that:

In the present case, what is of significance –

of course, at trial was:

that the deceased’s solicitor gave evidence as to the preparation of the will which was the subject of challenge by Mr Nobarani and, in particular, as to his observations of the capacity of the deceased at the time she gave instructions . . . In the face of that evidence, I am not satisfied that the procedural matters about which Mr Nobarani complains are such that he has been deprived of the possibility of a different result (whether or not he might now have the benefit of legal representation in any re‑trial).

GAGELER J:   What was her Honour referring to when she used the expression “the procedural matters about which Mr Nobarani complains”?  Precisely what is she referring to?

MR MAROYA:   She goes on in paragraph 8, your Honour, to refer to the plethora of matters raised by Mr Nobarani.  If one looks at the notice of appeal which appears at page 32 of the application book, one may see appearing from letters a. to h. various matters which one might, by using a shorthand expression, describe as “procedural matters”.

GAGELER J:   Is her Honour accepting all of those as established?

MR MAROYA:   One must infer from her Honour’s reasons and from her Honour’s agreement with the orders proposed by Justice Emmett who, in his reasons for judgment, gave an exhaustive narrative of the procedural history that, yes, she is agreeing with those matters but dealing with them in shorthand.  Then if I can – I derive further support for what I have just said, your Honour, by drawing to your Honours’ attention what appears in paragraph 9 of the judgment which is at the foot of page 41.  Her Honour says and I might – I was going to refer to this in any event on the Stead point.  Her Honour says:

I have taken into account the observation (at 145) in Stead that it is “no easy task” for a court of appeal to satisfy itself that an apparent denial of procedural fairness could have had no bearing on the outcome of the trial of an issue of fact and do not suggest any departure from established principle in that regard.

Of course, we lay emphasis on that.  Her Honour continued:

However, in the present case, a close review of the issues raised by the pleadings and the conduct of the trial has led me to the conclusion that no substantial miscarriage of justice was occasioned by the unfortunate denial of procedural fairness that occurred when the matter proceeded to a final hearing rather than, as had been foreshadowed, a hearing on the motion relating to Mr Nobarani’s caveat.

We say that that narrative of the reasons reveals that her Honour did have the necessary certainty to be able to properly conclude that despite the matters complained of by the applicant a new trial could not possibly have produced a different outcome.

NETTLE J:   Mr Maroya, did Justice Ward at any point in her judgment refer to Mr Lemesle’s affidavit?

MR MAROYA:   Yes, she did.

NETTLE J:   How does her Honour resolve the difficulties that Justice Simpson explains at paragraphs 28 and 29, pages 46 and 47?

MR MAROYA:   Her Honour was of the view that what was deposed to by Mr Lemesle in his affidavit was not able to meet – and that is the expression used by her Honour – the evidence that was given at the trial by Mr Bradstreet about the circumstances in which he prepared the will which was sought to be impugned. 

How the matter is dealt with by Justice Simpson, in our submission, is unsatisfactory from the point of view of the quality of the evidence that was sought to be led in the form of Mr Lemesle’s affidavit.  The affidavit was deficient in form.  It was deficient as a matter of the law of evidence.  It did not deal with the matters which one would have expected an affidavit to deal with if it were to be read at a trial upon a question of testamentary capacity.

So the treatment, in our respectful submission, by Justice Simpson of Mr Lemesle’s affidavit – and this culminates in her statement appearing on page 53 of the application book at paragraph 55:

The evidence contained in Mr Lemesle’s affidavit is capable of raising doubts about the validity of Ms McLaren’s 2013 will. 

Her Honour, with respect to her reasons for judgment, does not clearly state why Mr Lemesle’s evidence – as contained in his affidavit – was capable of raising doubts.

GORDON J:   Is that not addressed in paragraphs 28 and 29?

MR MAROYA:   We say that what is referred to in paragraphs 28 and 29 was evidence which was not capable of contradicting the clear and compelling evidence that was given by the solicitor, Mr Bradstreet, who took instructions for the will and who formulated it.  That was a view which, in our respectful submission, Justice Ward and Justice Emmett were entitled to come to.

We have put in our response – our written response – reference to Justice Young’s decision in the 2009 case of Zorbas v Sidiropoulous where, summarising or paraphrasing what his Honour said, in many cases of testamentary capacity, the most cogent evidence – or, perhaps, the best evidence, I think, was the expression that his Honour used – was the evidence given as to the question of the testator – in this case, the testatrix’s – capacity to make a will is given by a solicitor – an experienced solicitor who took the will and who made the necessary observations of the testatrix rather than evidence given ex post facto upon scrutiny of medical records by a, no doubt, highly qualified medical specialist. 

So, for those reasons, we say that inasmuch as the applicant was deprived of the opportunity to rely upon the affidavit of Mr Lemesle, Mr Lemesle’s affidavit would not have made any difference to the conclusions which were arrived at by the primary judge.

GAGELER J:   Is there anything further you wish to say, Mr Maroya?

MR MAROYA:   Yes.  I was just going to say, your Honours, that to conclude our treatment of the first matter in which it is submitted that Justice Ward erred, we say that she was properly able to express herself in the certain terms that she did and, of course, one must bear in mind the caveat expressed by Justice Lindgren in a case which appears on our learned friend’s list of authorities – Giretti v Deputy Commissioner ofTaxation (1996) 139 ALR 488 at 501 – where Justice Lindgren observed – and, we say, with significance to the case sought to be propounded by the applicant:

I do not think that the reference in Stead’s Case to a “possibility” of a different result, although it imposes a test which very strongly favours the granting of relief, requires or admits of speculation or guesswork as to matters not suggested by the evidence or by the parties.

Turning now the second so‑called House v The King error, it is our submission that Justice Ward was correct to conclude at paragraph 8 that the matters raised by the applicant were met by the evidence of Mr Bradstreet who gave the evidence that he observed the testatrix at the time the will was prepared and read it back to her before it was executed.  We say that it was unnecessary for her Honour to consider the implications of Banks v Goodfellow because the applicant had put no evidence before the primary judge that was otherwise capable of establishing doubts about the testamentary capacity of the testatrix.

The failure to consider the hypothetical operation of the Banks v Goodfellow doctrine was neither a House v The King error, nor was it a warrant, your Honours, for the conclusion that a new trial was somehow justified on that footing.  All in all we submit that even if the applicant were able to raise an arguable error about these things, this case has no special feature which warrants the attention of this Court, nor is it an appropriate vehicle for the consideration of the sort of issues which the applicant seeks to propound.

The second broad point – and I can deal with this very briefly – is that the applicant contends that the law of probate, particularly as regards testamentary capacity – my apologies, I withdraw that - as regards the interest necessary to mount a challenge to a will have been left in doubt by the reasons contained in Justice Emmett’s reasons for judgment.

Our submission on that is simply this, that it is clear that Justice Emmett’s reasons which culminate in paragraph 124 of his judgment, were directed at his conclusion that the circumstances of this case were such that the Court of Appeal should not intervene at the behest of the applicant and that no basis had been established for the grant of a new trial. So he was not making explicit reference to rule 51.53(1), but we say that that is the conclusion at which Justice Emmett arrived.

The final thing that we wish to say about that, it is clear that his Honour was not intending to, nor did he in fact, cast any doubt on settled principles concerning the nature of the interest that must be demonstrated by a person seeking to challenge a will, as the applicant did in

this case.  Otherwise, your Honours, we rely upon the matters that we have set out in writing.

GAGELER J:   Yes, thank you, Mr Maroya.

MR MAROYA:   Thank you, your Honour.

GAGELER J:   We do not need to hear from you, Mr Windsor.  There will be a grant of special leave to appeal on both grounds, grounds a. and b., identified in the grounds of appeal at pages 74 and 75 of the application book.

The Court will now adjourn.

AT 10.35 AM THE MATTER WAS CONCLUDED