Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici
[2007] WASC 74 (S)
•4 MAY 2007
ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI -v- ORIFICI & ORS [2007] WASC 74 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 74 (S) | |
| Case No: | CIV:1869/2004 | 9 MARCH 2007 | |
| Coram: | HASLUCK J | 4/05/07 | |
| 27/03/07 | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application by third defendant to adduce affidavit dismissed | ||
| B | |||
| PDF Version |
| Parties: | SIGNORINO ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI FRANCESCA ORIFICI GIUSEPPINA CELENZA VINCENZO ORIFICI |
Catchwords: | Succession Wills, probate and administration Proceedings by executors and administrators Evidence at trial concerned with existence or otherwise of alleged Will Admissibility of new affidavit by deponent resident in Italy Affidavit filed late in breach of orders made regarding conduct of trial Rule on hearsay evidence in relation to a deceased person Affidavit ruled inadmissible Turns on own facts |
Legislation: | Evidence Act 1906 (WA), s 79C, s 79C(2)(e) Rules of the Supreme Court 1971 (WA), O 37 r 2 |
Case References: | Curley v Duff (1985) 2 NSWLR 716 Sugden v Lord St Leonards (1876) 1 PD 154 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 27 MARCH 2007 FILE NO/S : CIV 1869 of 2004 BETWEEN : SIGNORINO ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI
- Plaintiff
AND
FRANCESCA ORIFICI
First Defendant
GIUSEPPINA CELENZA
Second Defendant
VINCENZO ORIFICI
Third Defendant
Catchwords:
Succession - Wills, probate and administration - Proceedings by executors and administrators - Evidence at trial concerned with existence or otherwise of alleged Will - Admissibility of new affidavit by deponent resident in Italy -
(Page 2)
Affidavit filed late in breach of orders made regarding conduct of trial - Rule on hearsay evidence in relation to a deceased person - Affidavit ruled inadmissible - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 79C, s 79C(2)(e)
Rules of the Supreme Court 1971 (WA), O 37 r 2
Result:
Application by third defendant to adduce affidavit dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr A J Prentice
First Defendant : Mr B G Bennett
Second Defendant : Mr B G Bennett
Third Defendant : Mr C A Grasso
Solicitors:
Plaintiff : Mossensons
First Defendant : Brian G Bennett & Co
Second Defendant : Brian G Bennett & Co
Third Defendant : Millsteed Grasso
Case(s) referred to in judgment(s):
Curley v Duff (1985) 2 NSWLR 716
Sugden v Lord St Leonards (1876) 1 PD 154
(Page 3)
- HASLUCK J:
Introduction
1 The plaintiff, Signorino Orifici, was named as one of the executors in a document purporting to be a Will made on or about 29 September 1977 by Rosario Giuseppe Orifici. The latter died on 17 January 2001.
2 A question arose as to whether probate should be decreed in respect of the 1977 Will and this led to the plaintiff commencing legal proceedings by writ of summons dated 6 July 2004. Various procedural steps were taken which I will describe in more detail later. However, eventually, on 14 December 2006, the matter came before me for trial upon the basis that the evidence at trial was to be by affidavit.
3 A question then arose as to the admissibility of a certain affidavit, namely, the affidavit of the third defendant, Vincenzo Orifici, sworn 6 December 2006. The disputed affidavit was not served on the solicitors for the first and second defendants until 12 December 2006; that is, immediately before the trial.
4 These reasons for decision are limited to the issue concerning the disputed affidavit. However, in order to resolve that issue, it is necessary to set the matter in context.
5 The events referred to in the course of this ruling upon the evidentiary issue are set out by way of narrative only. It must not be thought that I am in any way purporting to make findings upon the matters in issue on the pleadings.
Background
6 It is said by the plaintiff in his affidavit sworn 8 June 2006 that he came to Western Australia from Italy in 1949. Two years later he was joined by his brother, Rosario Orifici; that is the deceased. At the time the deceased immigrated to Australia he was separated from his first wife who remained in Italy. The deceased's first wife was pregnant at that time and gave birth to a son on 16 December 1951 being the third defendant, Vincenzo Orifici. The latter grew up in Italy and continues to reside in that country.
7 It seems that in 1959 the deceased met the woman who was destined to become his second wife, being the first defendant in these proceedings, Francesca Orifici. It is said by the plaintiff that the deceased and the first defendant started living together after the birth of their daughter
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- Giuseppina who was born in Perth on 23 May 1960. Giuseppina is the second defendant in these proceedings. It appears from a marriage certificate exhibited to the plaintiff's affidavit that the deceased and the first defendant were married at Perth on 22 December 1976.
8 The plaintiff's case in these proceedings is that not long after the marriage the deceased instructed a solicitor, Salvatore Martella, to prepare a Will. It is said that the Will of the deceased was executed at Mr Martella's office on or about 29 September 1977. The 1977 Will purported to revoke all former Wills and testamentary dispositions and appointed the deceased's brother, the plaintiff, and the deceased's wife (the first defendant) to be executors and trustees of the Will. The trustees were to hold the residue of the deceased's estate for the first defendant for life and on her death, or if she should predecease him, to hold the residue for his daughter (the second defendant) and the son of the deceased's first marriage (the third defendant) in equal shares as tenants in common.
9 The pleadings include a denial by the first and second defendants that the deceased made the 1997 Will as alleged. The case of the first and second defendants is that no executed document purporting to be a Will of the deceased was found after his death. In essence, the first and second defendants say that the deceased died intestate and that his estate should be distributed according to the rules governing the distribution of an estate upon intestacy.
10 The third defendant, by his statement of defence, admits the allegations contained in the statement of claim. Thus, in effect, the third defendant supports the case being advanced by the plaintiff. These parties, being the proponents of the validity of the 1977 Will, say that the presumption of revocation (which arguably arises from the fact that a signed copy of the 1977 Will could not be located after the deceased's death) can be rebutted.
11 It appears to be common ground between the parties that in or about 1958 the deceased purchased vacant land at 264 Colwyn Road, Bayswater. This was later subdivided with one of the lots thereby created being sold. The remaining lot, known in these proceedings as the "Bayswater property" was owned by the deceased as at the date of his death.
12 Further, it seems that in 1977 the deceased purchased a residential property at 163 Drake Street, Embleton, which thereafter was occupied by the deceased and the first defendant as the matrimonial home (the
(Page 5)
- "Embleton property"). The deceased owned this property also as at the date of his death.
General observations
13 It emerges from the narrative that much of the evidence at the trial of the proceedings was bound to be concerned with the question of whether or not the 1977 Will was executed by the deceased as alleged.
14 The parties were also bound to adduce evidence as to any facts and matters bearing upon the testamentary intentions of the deceased and as to whether any documents, such as the alleged 1977 Will, were in the deceased's possession at the time of his death.
15 These issues were bound to bring with them various subsidiary issues concerning the nature of the relationship between the plaintiff and the defendants, and other matters bearing upon the presumption of revocation.
16 I pause here to note in passing that, pursuant to the rule against hearsay, evidence concerning the assertions made by a deceased person generally cannot be received as evidence of any fact asserted. However, it is not hearsay and is admissible when it is proposed to establish not the truth of the statement, but the fact that it was made, as a means of explaining conduct or for some other limited purpose: Cross on Evidence (7th Aust ed) par 31,010 at 970.
17 Further, there are certain exceptions to the rule against hearsay which may be held to apply to a case of this kind. Thus, a statement by a deceased person which was made against his own pecuniary or proprietary interest is admissible, as is a written statement made by a deceased person in accordance with a duty to report particular facts.
18 In Sugden v Lord St Leonards (1876) 1 PD 154 it was held that statements by a deceased testator after his Will has been executed may be admitted as evidence of the contents of the Will, although this exception is only relevant where there is no primary evidence of the Will available and does not apply to cases where the issue is proof of the Will's execution.
19 It follows from these various considerations that evidence sought to be adduced by the parties at the trial of the action was bound to be wide-ranging, as the deceased's financial position and the nature of his family relationships were examined, having regard to issues of credibility. However, at the same time, it is important to keep in mind that the rule
(Page 6)
- against hearsay imposes severe limitations upon the use that can be made of assertions attributed to the deceased.
20 This brings me to the legal principles and pretrial orders bearing upon the affidavits brought into existence by the parties including the disputed affidavit sworn by the third defendant.
Procedural issues
21 Order 37 rule 2 of the Rules of the Supreme Court 1971 (WA) provides that the Court may, before or at the trial of an action, order that all or any of the evidence therein shall be given by affidavit if the Court thinks that in the circumstances of the case it is reasonable so to order.
22 It appears from Seaman's Civil Procedure at par 36.2.2 that unless the proceedings are of an interlocutory nature, the Court will normally grant a bona fide application to cross-examine on an affidavit which has been relied upon. The likely relevance of the cross-examination to the issues in the proceedings is among the circumstances to be taken into account.
23 The learned author notes at par 36.2.3 that the discretion to permit cross-examination in interlocutory applications will be exercised sparingly, and even more so where there is a likelihood that the cross-examination will cover broad issues raised in the action. It is said further at par 36.2.4 that if the deponent is not available to be cross-examined, the Court in its discretion will consider the particular circumstances, including the nature of the proceedings, and may reject the affidavit or alternatively give leave for it to be used in evidence, giving it such weight as is appropriate.
24 The plaintiff filed an affidavit of scripts pursuant to an order made by Registrar Boyle on 24 November 2004. Exhibited to the affidavit was a file copy of the 1977 Will allegedly prepared by Mr Martella and executed by the deceased. The plaintiff said that he did not know who had current possession or control of the Will.
25 An order was then made by Registrar Boyle dated 7 December 2005 to the effect (at par 3) that the evidence at trial was to be by way of affidavit but the parties were to have leave to cross-examine any deponent on any affidavit provided that any parties seeking to cross-examine the deponent was to give reasonable notice prior to the trial of such intentions.
(Page 7)
26 The order provided further that in respect to the third defendant (Vincenzo Orifici) notice was to be given not less than 30 days before the date the matter was set down for trial.
27 An order of the kind made by Registrar Boyle is often made in proceedings concerning a contested Will. Unfortunately, in the present case, the procedure envisaged by the order did not run smoothly.
28 The plaintiff filed a second affidavit sworn 3 February 2006 in which he referred to a visit made by the third defendant to Australia in 1997 and some alleged discussion between the deceased and the third defendant concerning the Bayswater property.
29 On 28 April 2006 the matter came before Justice Le Miere and was listed for trial commencing 19 June 2006. However, it was clear that further directions were necessary concerning the use to be made of affidavits.
30 The matter was adjourned to a hearing in Chambers on 8 May 2006 for that purpose, and then to a hearing on 17 May 2006.
31 Directions were given on the latter date concerning an affidavit to be filed by the first defendant with programming orders being made as to the filing of any responsive affidavit by the plaintiff and objections to admissibility.
32 Soon afterwards, the first and second defendants changed their solicitors.
33 On 7 June 2006, shortly before the listed trial date, a notice of appointment was filed by the new solicitor.
34 In the end, when the matter came before me on the listed date, it was necessary to adjourn the trial sine die because the parties were not ready to proceed.
35 It was apparent that the first and second defendants disputed the plaintiff's case but no affidavit had been filed and served on their behalf.
36 Accordingly, orders were made by me as follows:
"1. Upon the application of the Third Defendant the trial of the action is to be adjourned sine die.
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- 2. The First and Second Defendants are to file and serve any affidavit to be relied upon in these proceedings within 14 days from the date hereof.
3. The Plaintiff and Third Defendant are to file any answering affidavit within 28 days of compliance with paragraph 2 above.
4. The evidence at trial shall be by affidavit as previously ordered. The parties have leave to cross-examine any deponent provided that the party seeking to cross-examine shall give 14 days notice prior to the trial of such intentions, save that leave will be required in respect of any such notice to the third defendant.
5. Any party shall be at liberty to relist the matter for trial after compliance with the preceding orders.
6. The costs of the adjournment and any related costs shall be reserved.
7. There shall be general liberty to apply."
37 It was against this background, in compliance with the prescribed time limit, that the affidavit of the first defendant sworn 28 June 2006 was filed and served. For present purposes, there is no need to traverse all the matters mentioned in the affidavit. Essentially, she disputed the plaintiff's case, she referred to matters bearing upon her late husband's habits in regard to the keeping of important documents, she referred to a visit made by the third defendant to Australia in 1997, she referred to financial assistance given to the third defendant.
38 This led to further steps being taken to obtain access to certain documents which were thought to be relevant. On 18 October 2006 the parties were advised that the matter had been relisted for trial on 14 December 2006. The plaintiff then filed his fourth affidavit sworn 20 October 2006 which purported to address matters raised by the first defendant's affidavit. There can be little doubt that by this time the various parties understood that there were important factual and credibility issues to be resolved and that on each side of the dispute the deponents were required to be present at the trial to be cross-examined on their affidavits.
(Page 9)
Further observations
39 For present purposes, there is no need for me to review the entire range of matters addressed in the affidavits filed by the parties. Put shortly, the plaintiff's affidavits were directed to the test required to be satisfied in order to prove a lost Will expressed by Young J in Curley v Duff (1985) 2 NSWLR 716 at 718.
40 His Honour observed in Curley's case that five matters must be established being first, that there actually was a Will, secondly, that that Will revoked all previous Wills, thirdly, the presumption that when a Will is not produced it has been destroyed must be overcome, fourthly, there must be evidence of the terms of the Will contended for, fifthly, there must be evidence of due execution. The first defendant's affidavit was directed to those matters also, and to the nature of the family relationships.
41 A day or so before the trial was due to commence the disputed affidavit was filed; that is, the affidavit of the third defendant, Vincenzo Orifici, sworn 6 December 2006.
42 The trial proceeded with each of the deponents of the various affidavits being available for cross-examination, and cross-examination took place. However, objection was taken to the admission of the disputed affidavit upon the basis that it was filed and served at a late stage and in a manner that did not comply with the pretrial orders and directions. Further, it was clear that the third defendant was not available to be cross-examined because he is resident in Italy. It was said that the third defendant is currently unemployed and cannot afford to travel to Australia.
The disputed affidavit
43 The affidavit of the third defendant, Vincenzo Orifici, reads in part as follows:
"1. I am the son of the deceased ROSARIO GIUSEPPE ORIFICI.
2. I was born in Ucria (Messina) on the 16th December 1951. I am 55 years old.
3. I make this affidavit to set out my knowledge of relevant facts pertaining to my father's estate and his Will."
(Page 10)
44 I pause to say that matters of this kind were referred to in the plaintiff's affidavits. It appeared to be common ground at the trial that the third defendant was indeed the deceased's son and had a relationship of sorts with his father.
45 The affidavit continued in this way:
"9. In 1996 my father came to Italy to spend holidays with myself and my family.
10. On that occasion he insisted that I travel to Australia to meet his Wife and my half sister Giuseppina.
11. Accordingly I did, in 1997 visit my father. In Summer of 1997 my father sent me flight tickets for my family and me to travel to Australia."
46 It is at this point that the disputed affidavit commences to address various matters in contention including an alleged conversation with the deceased about the Bayswater property.
Conclusion
47 It is apparent from the sequence of events I have described that the disputed affidavit was brought into existence at a very late stage. It was served upon the solicitor for the first and second defendants being the parties principally affected only days before the trial commenced on 14 December 2006. It was not filed and served in compliance with the orders made and the subject defendants were not given any opportunity to investigate the matters raised or to respond to it. Moreover, the third defendant, being resident in Italy, was not and is not available to be cross-examined on his affidavit.
48 It is important to keep in mind also that the late appearance of the disputed affidavit occurred against the background of a previous adjournment of the trial some months earlier due to the failure of the first and second defendants to present affidavits to the Court, and in circumstances in which it must have been clear to the parties and to their legal advisers that the Court would insist upon compliance with the orders and directions previously made. The orders in question, being those made on 19 June 2006 when the trial was adjourned, included provision for liberty to apply but no application was made to ameliorate the effect of the orders.
(Page 11)
49 To my mind, counsel for the third defendant did not provide a sufficient explanation or excuse for the late appearance of the affidavit or the failure to apply for an ameliorating order. All this occurred in a context where it had been known by the parties since the making of Registrar Boyle's order on 7 December 2005 that the evidence at trial was to be by affidavit.
50 I feel obliged to keep in mind also that, as indicated in earlier discussion, this was a case in which the credibility of the various deponents was integral to the nature of the family relationship and was bound to be important.
51 Having been equipped with the third defendant's affidavit, counsel for the third defendant was afforded an opportunity to cross-examine the first defendant at length about matters raised in the affidavit, but there will be no opportunity for counsel representing the opposing side to cross-examine the third defendant if the disputed affidavit is received as part of the evidence.
52 Moreover, I am not satisfied that the assertions attributed to the deceased in the affidavit concerning his intentions in regard to his estate fall within any of the exceptions to the rule against hearsay mentioned earlier. They are not statements made against the deceased's interest or pursuant to a duty. The rule in Sugden's case does not apply to a case such as this where the plaintiff and the third defendant seek to persuade the Court that a Will in the form of the 1977 Will was executed the contents of which are known.
53 When I draw these matters together I consider that I must uphold the first and second defendants' objection to the admissibility of the disputed affidavit on the ground that there has been a failure to comply with the relevant orders and directions. The subject estate is comparatively small and this is not a case where the adverse effect of admitting the affidavit can properly be dealt with by a further adjournment or an order for costs. It is quite clear that the third defendant cannot come to Australia to be cross-examined on his affidavit.
54 For the sake of completeness, I should mention that counsel for the third defendant sought to have the affidavit admitted pursuant to s 79C of the Evidence Act 1906 (WA) which provides for the admission of certain documents into evidence when the maker of the document is not called as a witness.
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55 It is questionable whether that provision can be applied to the disputed affidavit. However, in any event, s 79C(2)(e) provides explicitly that the maker of a statement in the subject document must be called as a witness unless no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness. In this case, in addition to their other objections to the affidavit, the first and second defendants do require that the third defendant be cross-examined. For the reasons I have given their stance is understandable. In my view, it follows that the disputed affidavit ought not to be admitted pursuant to the statutory provision.
Summary
56 Having regard to the terms of the orders made previously concerning the presentation of affidavit evidence at trial, I uphold the first and second defendants' objection to the admissibility of the disputed affidavit. It follows that the parties will now complete the trial process by proceeding to make their closing submissions on the further date appointed for that purpose.
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