Re Carbo; Partosh v Czarnik

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02588

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE MATTER of the estate of ARTHUR CARBO, deceased

LISA JANE PARTOSH	Plaintiff
v
KLAUS CZARNIK (in his capacity as executor of the will of ARTHUR CARBO, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	14 November 2017
CASE MAY BE CITED AS:	Re Carbo; Partosh v Czarnik
MEDIUM NEUTRAL CITATION:	[2017] VSC 686 First Revision 19 December 2017

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EVIDENCE — Defendant’s objection to plaintiff’s affidavits — Whether matters objected to are inadmissible or should otherwise be excluded — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	Constable Connor & Co Pty Ltd
For the Defendant	Mr C Mantziaris	Schweizer Kobras Pty Ltd

HER HONOUR:

Introduction

Arthur Carbo died on 12 August 2013 (‘the deceased’). Probate of his will dated 17 February 2004 was granted to the defendant on 12 January 2016. The defendant is the beneficiary of the estate of the deceased.

On 4 July 2016, the plaintiff issued this proceeding claiming provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958.[1] In 2005, the deceased was suffering from a number of conditions including Alzheimer’s disease and vascular dementia. From October 2005 until his the death, the plaintiff was a paid companion of the deceased. The plaintiff claims provision from the estate of the deceased on the basis that her relationship with him was ‘akin to that of a father and daughter’.
[1]The deceased died before the amendments to the Act made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 so that the applicable legislation is the version of the Administration and Probate Act 1958 in force prior to 1 January 2015: Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 5.

At the first directions hearing, the plaintiff claimed one eighth of the estate as provision from the estate, which equates to approximately $1 million. At the last directions hearing, she modified her claim substantially and now seeks $200,000 to $250,000.

The plaintiff has filed nine affidavits in support of her application:

(a) affidavit of Lisa Jane Partosh (‘the plaintiff’) sworn 27 October 2016;

(b) affidavit of the plaintiff sworn 1 August 2017;

(c) affidavit of Caterina Tosto sworn 21 December 2016;

(d) affidavit of Carmelo Comobreco sworn 21 December 2016;

(e) affidavit of Peter Hollasbacher sworn 12 January 2017;

(f) affidavit of Michelle Di Donna sworn 12 January 2017;

(g) affidavit of Michelle Di Donna sworn 2 August 2017;

(h) affidavit of Eric Sidney Katz sworn 2 February 2017; and

(i) affidavit of Matcha Patsak sworn 9 February 2017.

On 18 August 2017, the proceeding was listed for pre-trial directions. In anticipation of this hearing, the parties filed a joint memorandum pursuant to the procedures and protocols of the Testators’ Family Maintenance List. This document included an extensive list of the defendant’s objections to the plaintiff’s nine affidavits.

Given the volume of the defendant’s objections, the Court requested that counsel for the plaintiff consider the defendant’s objections and advise counsel for the defendant and the Court which objections the plaintiff conceded or contested by 1 September 2017 so that any outstanding objections could be considered at the next directions hearing.[2]
[2]Orders of the Honourable Justice McMillan made 18 August 2017.

On 19 August 2017, counsel for the defendant provided short written submissions in support of the objections on the understanding that the objections would be determined on the papers.

On 30 August 2017, counsel for the plaintiff filed a short submission refuting all of the defendant’s objections. Given that response, the Court informed the parties that the defendant’s objections would be considered on the papers.

Defendant’s objections

The defendant canvassed his objections by way of an itemised table that included each of the nine affidavits. In addition to a general objection on the ground of relevance, the defendant objected to various passages in the affidavits on the grounds of form, hearsay, opinion, speculation, submission and conclusions of law.

In support of his objections, the defendant provided the following general submissions:

(a) the defendant objects, on the basis of relevance, to most of the plaintiff’s affidavit evidence pursuant to ss 55 and 56 of the Evidence Act 2008. This is on the basis that the bulk of the affidavit material is neither relevant to the plaintiff’s eligibility or her needs. The defendant notes this objection was not individually marked out in relation to each contested paragraph/sentence in the interests of efficiency; and

(b) while accepting the rule in Hughes v National Trustees Executors & Agency Co of Australasia Ltd,[3] the defendant also submits:
[3](1979) 143 CLR 134 (‘Hughes’).

(i) the hearsay from the deceased is, in the majority of instances, not in proper form. It does not consist of the words spoken, but is a description of conversations rendered in indirect speech, and therefore in bad form;

(ii) the rule in Hughes will only admit statements that are relevant to explain the reasons for a particular testamentary disposition or its absence. Most of the evidence from the deceased is not of this character; and

(iii) even if the statements from the deceased are admissible, they should be given no or little weight due to the deceased’s limited mental capacity as a result of his Alzheimer’s and dementia.

Plaintiff’s response to objections

In response to the defendant’s objections, the plaintiff submits the defendant’s objections are not made out and refutes the totality of the objections, contending, inter alia, that:

(a) in relation to the objection on the grounds of hearsay, the reference to statements and attitudes attributed to the deceased are not caught by the hearsay rule by virtue of s 63 of the Evidence Act 2008, namely, a civil case where the maker of the comments referred to is unable to give evidence;

(b) in relation the defendant’s form of objections, the plaintiff submits the statements, which go to the plaintiff’s attitudes to the deceased and the deceased’s attitude to her, are clearly relevant to the nature and character of the relationship. She submits these statements are relevant and admissible. Using the fourth paragraph of the plaintiff’s affidavit as an example, insofar as these comments go to the plaintiff’s view as to the nature and substance of the relationship with the deceased, it is admissible. Alternatively, the plaintiff submits that should these comments be thought to be hearsay and used to prove facts relating to a statement by the deceased, then it is still admissible, but in certain circumstances, goes only to the proof that such matters were said or discussed, and not as to the truth of the same;

(c) further, the plaintiff notes that some of the paragraphs include general material going to matters of background and the plaintiff should be afforded the opportunity to disclose the circumstances in which this knowledge came to her attention. As general background to the claim it is relevant and appropriate that it be admitted. This is even if only going to evidence of what the plaintiff believed to be the case. Similarly, she submits the provisions of the Evidence Act 2008 pick up much of what was said in Hughes as the Court differentiated between hearsay used to prove the truth of what was said by another, and hearsay being admissible, when relevant to provide that such things were said by another, regardless of their truth. The plaintiff submits she ought be provided with an opportunity, if necessary, to establish the basis of the evidence produced;

(d) referring to one particular objection on the ground of opinion by way of example, being the defendant’s objection number 47, the plaintiff noted that the objection is expressed as setting out the attitude and opinion of the plaintiff to the deceased. The plaintiff submits that it is of course directly relevant to the proper understanding of her relationship with the deceased. The plaintiff says she established a mutual loving and caring relationship akin to that of a father and daughter with the deceased and it is proper, appropriate and admissible that she should depose as to the way she saw the deceased and the nature of her relationship with him. On that basis, the plaintiff submits the defendant’s objection is not well founded. The plaintiff acknowledges that when the plaintiff gives this evidence, the Court will give it such weight as it may think fit; and

(e) the ruling on objections would be more properly reserved for the trial judge as it would enable the basis of any objection of substance to be considered by the trial judge and the plaintiff and defendant to deal with the manner in which evidence should be given in light of the underling import of such objections.

Consideration

Given the volume of objections and the nature of the contested material, it is impracticable and unnecessary to set out reasons for each and every disputed sentence or paragraph. Instead, the broad categories of the objections are canvassed using the defendant’s itemised table that are attached to these reasons and marked

Annexure A. The table sets out the sentences and paragraphs objected to by the defendant and the corresponding ground or grounds supporting each objection.

The findings in relation to the objections take into account the submissions of the parties and underpin each conclusion particularised in Annexure A.

Relevance

The primary ground of objection advanced by the defendant is relevance. In short, relevant evidence is evidence that ‘if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[4]Evidence that is not relevant is inadmissible.[5]
[4]Evidence Act 2008, s 55.
[5]Ibid s 56.

Relevance is informed by the nature of the proceeding and what facts must be established in order for the Court to grant the relief sought. In this proceeding, the plaintiff makes a claim for further provision from the estate of the deceased. To grant the relief sought by the plaintiff, the Court must be satisfied:

(a) the deceased had a moral obligation to provide for the plaintiff; and

(b) the plaintiff did not receive adequate provision from the deceased’s will.[6]

[6]Administration and Probate Act 1958, s 91 (prior to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014; Litchfield v Smith [2010] VSC 466 (20 October 2010) [21].

Substantial proportions of the plaintiff’s affidavits are inadmissible for want of relevance. To illustrate this point, a large volume of the objections concern:

(a) the deceased’s life prior to meeting the plaintiff;

(b) the plaintiff and the deceased’s relationship with the administrator of the deceased;

(c) the quality of the nursing accommodation for the deceased, and his supposed view of that accommodation;

(d) the interaction of the deceased and the plaintiff with the staff of the various nursing facilities where the deceased lived in the later years of his life;

(e) the events that transpired after the deceased’s passing and the plaintiff’s reaction to those events; and

(f) the minutiae of specific activities the plaintiff did with the deceased when engaged as his paid companion.

These matters or similarly remote issues are not relevant to the deceased’s moral obligation to make provision or the plaintiff.

When considering each passage in the affidavits that has been objected to by the defendant, the issue of relevance has been taken into account by the Court.

Opinion/Speculation

The defendant makes a number of objections on the basis that certain parts of the plaintiff’s affidavits contain opinion and speculation.

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.[7]
[7]

Most of these objections are not difficult to determine as they pertain to representations by the various deponents of:

(a) their view of the state of mind of the plaintiff or the deceased and the nature of their relationship; or

(b) their subjective inferences and conclusions in relation to various facts and events that took place during the period the plaintiff was engaged as the paid companion of the deceased.

There is a conflict between the substance contained in these parts of the affidavits and the prohibition of lay opinion. Subjective speculation or conclusions of this nature, plainly outside the means of the deponents’ knowledge, are opinions and are not admissible.

The plaintiff resists the opinion objections on the basis that the plaintiff’s view of her relationship with the deceased is highly relevant to her claim for further provision and ought be admitted. This submission, which appears to relate only to paragraph 47 of the plaintiff’s first affidavit, is misconceived. The alleged relevance or otherwise of the opinion does not overcome the prima facie exclusion of evidence of this nature.

The Court has adopted a similar attitude in relation to the objections on the ground of speculation as they to pertain to subjective conclusions and deductions.

Form/Hearsay

The defendant makes a number of objections on the grounds of hearsay. Relevantly, s 59 of the Evidence Act 2008 provides:

(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

This objection overlaps with the defendant’s objections on the basis of form. Most of the hearsay objections are accompanied by a corresponding form objection with the defendant submitting that ‘in the majority of instances’ the hearsay does not consist of the words spoken, but is a description of conversations rendered in indirect speech and, therefore, in bad form. The plaintiff’s submissions, as set out at paragraphs 11(a), 11(b) and 11(c) above also elide these two grounds of objection and these two grounds are considered together.

The defendant’s form objection is accepted. As noted in the defendant’s submissions, most of the hearsay evidence is not in proper form. Rather than the deponents providing a direct account of conversations and events, the hearsay is rendered in an abridged and indirect fashion. In most instances, the deponents provide their subjective account of the substance of what was said to them. There are also large swathes in the affidavits that contain highly discursive, vague and emotive accounts of various conversations and events that is not appropriate for sworn evidence.

In relation to material impugned on grounds of hearsay, it is useful to consider the hearsay attributed to the deceased first, as it is subject to a specific contention by the plaintiff that it is admissible by virtue of s 63 of the Evidence Act 2008.[8] It is unnecessary for the Court to consider the application of this provision as the various statements attributed to the deceased are also inadmissible by virtue of irrelevance and/or improper form. Many of these statements are discursive statements of each deponents’ truncated or revised account of what the deceased said, thought or felt and they generally pertain to matters not directly relevant to the deceased’s moral obligation to make provision to the plaintiff or her financial need.
[8]This provision provides an exception to the exclusion of hearsay evidence on the basis the person is not available to give evidence. The plaintiff submits that the deceased’s evidence falls into this category on the basis he has passed away.

In relation to the remaining objections on the grounds of hearsay, to the extent the statements are relied on to support the existence of the facts that person intended to assert, these comments are, in the main, hearsay and inadmissible.[9]
[9]Many of these passages are also subject to objections on the grounds of form and relevance.

To the extent the statements are relied on for a non-hearsay purpose, which appears to be the thrust of the plaintiff’s submission, the material is inadmissible for want of relevance and poor form. The forensic purpose of this evidence insofar as it is not relied on to establish the truth of what is asserted is merely evidence of what the deponents allege was said or represented to them, rendered in an indirect and unsatisfactory fashion. The existence or otherwise of the deponents’ recollections or opinions of the substance of these conversations and representations could not be found to be of probative relevance to the issues in dispute and should be struck out.

Speculation/Conclusion of Law

The defendant also advanced grounds of objection on the basis that some of the affidavits contains submissions and conclusions of law. The paragraphs and sentences subject to these grounds are also subject to objections on the basis of opinion and/or form. It is unnecessary to discuss these grounds as the objectionable parts of the affidavits are struck out on other grounds.

Plaintiff’s conduct

In dealing with the disputes relating to the defendant’s objections to the plaintiff’s nine affidavits, the plaintiff was expressly afforded an opportunity to consider the wide ranging objections to her affidavits with a view to narrowing the issues in dispute in the proceeding.

Instead of the Court being given a reduced list of contested objections, the Court was provided with a vague, logically incongruous submission by the plaintiff. In those submissions, the plaintiff did not make any concessions in relation to the objections. This required the Court to consider each and every objection that amounts to over 40 pages of objected text.

Given the findings of the Court in relation to the defendant’s objections, it would have been appropriate for the plaintiff to make concessions as a substantial portion of the contested evidence is plainly inadmissible on grounds of hearsay, relevance, opinion and form. This ought to have recognised by the plaintiff’s legal representatives and the appropriate concessions made on behalf of the plaintiff. The approach taken by the plaintiff and her legal representatives to the objections is unsatisfactory in light of the overarching obligations of practitioners under the Civil Procedure Act 2010, in particular, the obligations contained in ss 16, 18, 19, 20, 22 and 23 of that Act.

Conclusion

The defendant’s grounds of objection are broadly accepted and, upon individual consideration, the entirety of the objections have been allowed, as particularised in Annexure A attached to these reasons.

ANNEXURE A
Affidavit of the plaintiff, Lisa Jane Partosh, sworn 27 October 2016:

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
4(s4-s8)	“and I considered Arthur to be to be part of my family. Further, I believe Arthur considered me to be the child he never had. He wanted to come and live with me and my children. Although that was never possible, our relationship was akin to that between a father and daughter. Further, on several occasions, Arthur said that I would be provided for after his death.”	Form Opinion Submission	Inadmissible
26	"During his lifetime, Arthur told me that he had made and cancelled a number of Wills and that Herbert Losel had been his beneficiary. Since Arthur's death, I have been informed by my solicitors and James Campbell, Arthur's accountant and administrator with whom I had an ongoing contact during my time with Arthur ("James"), that Arthur had several wills and testamentary documents including powers of attorney, some executed and others being informal, prior to and following the Will. All were executed or contemplated prior to his involuntary admission to a psychiatric ward in May 2005 which is detailed below."	Hearsay	Inadmissible
27(s1)	"The last of these documents is a letter from Arthur to his solicitor CJ Southall dated 4 April 2005 which states: 'I wish to cancel all previous wills/testaments prior to this 4th day of April 2005 and request that any records related to myself be forwarded to me with a letter of confirmation that these actions have been completed to the above address at your earliest convenience.'"	Hearsay	Inadmissible
30	"Arthur informed me that during World War II, he and his family were exiled from their home in Poland and moved to Germany. Herbert Losal informed me that Arthur's family changed its surname from Czarnik to the German surname Schwarz/Schwartz. Herbert also informed me that Arthur fought in the Italian Army. Arthur himself told me that he fought in a Polish unit of the British Army."	Hearsay	Inadmissible
34	"Arthur originally worked as a fitter and turner and then became an engineer. He opened a factory in Airport West where he redesigned and improved tools and sold them to Black & Decker. He also began investing in share market."	Hearsay	Inadmissible
35	"Over the years, Arthur accumulated considerable wealth. He sold his factory and moved to the apartment in St Kilda."	Form Hearsay Opinion	Inadmissible
36	"Arthur travelled the world on his own. He spoke English, German, Polish, Italian and French."	Form Hearsay Opinion	Inadmissible
37	"Arthur was an intelligent, resourceful, proud and independent man."	Form Hearsay Opinion	Inadmissible
43(s3-s4)	"Vanessa informed me that Arthur was a difficult resident, displaying a variety of behavioural issues and that a private carer was required to assist Arthur with showering, dressing, and grooming, to make his bed and to take him out for morning or afternoon tea (depending on the shift). These were the stated duties of my paid employment, but at that time Arthur needed minimal assistance."	Form Hearsay	Inadmissible
45	"As to Arthur's behavioural issues, he often refused to eat the meals provided. As a result, the staff had arranged for Arthur's meals to be taken to his room, in addition to his laundry being done, at a cost to Arthur of $140.00 per week. He often refused to take his medication and gave the Hamble Court staff a difficult time in this respect. He was cautious and distrustful of the staff. He could be verbally aggressive and fly into an intimidating rage. He could become quite agitated and work himself into a rage. As a result of his behaviour and staff shortages, he was not showered and shaved adequately or regularly. He refused to associate with most of the residents and refused to participate in Hamble Court's inhouse activities (except for the Christmas party). He spent most of his time alone in his room. Some Hamble Court staff and carers refused to tend to or care for Arthur."	Form Hearsay	Inadmissible
46(s5-s9)	"He became quite conversational and was polite. He complained about the care he was receiving. He informed me that he wanted to be back at his apartment in St Kilda and to be independent again. He told me that he could afford the best around the clock care and that this could be administered at his home. He told me he felt betrayed by people who were meant to assist him who had had him admitted to Baringa, placed him into aged residential care and would not permit him to return to live in his apartment. "	Form Opinion	Inadmissible
47	"I came away from the visit with Arthur believing him to be an unhappy, depressed, angry, neglected and homesick man. I also observed that he was a funny and witty person. I believed that we had gotten on well and, that with my training as an applied behaviour analysis therapist and with dedicated attention, care and support, I could make a difference in his life."	Opinion	Inadmissible
49(s6)	"...owing to the combination of difficulties he presented to staff and the staff shortages by that time"	Opinion Submission	Inadmissible
50(s1)	"...Arthur refusing to be cared for by other carers."	Form Opinion	Inadmissible
51(s1-s2)	"… because we came to love and care for each other deeply. We developed a real and meaningful relationship which gave us both enormous enjoyment"	Form Opinion	Inadmissible
51(s3)	"I became the attentive and involved daughter, attending to all aspects of Arthur's care"	Conclusion of Law Form Opinion	Inadmissible
51(s4)	"which, when left to other Hamble Court carers and staff, was irregular and inconsistent and, towards the end of Arthur's residence, non-existent."	Opinion Speculation	Inadmissible
52(s2)	"..I was always contacted in the event of an emergency of which there were several during the last few years of Arthurs life."	Form	Inadmissible
52(s4-s5)	"He was a product of a generation I have come to understand, and I would be proud to call him father. I wish my children had such a grandfather."	Opinion	Inadmissible
53(s1-s2)	"From the outset, I liaised with James to inform him of the changes I intended to implement for Arthur and of Arthur's progress. I also liaised with Hamble Court management and staff and Arthur's inhouse health services providers (such as the nurse in charge) to inform them how best to handle Arthur, in particular, in respect of behavioural issues, and of any special requirements."	Form	Inadmissible
55	"Arthur dearly wished to return to his apartment in St Kilda and his old life. I assisted him to accept that this was not possible. I did my utmost to help him settle into life at Hamble Court as best he could and make it home, to feel comfortable, to find peace and to enjoy life. To this end, I provided Arthur with routine, dedicated care and attention and made him feel important to me, safe and loved."	Form Hearsay Opinion	Inadmissible
56(s3-s4)	"Sometimes and in Arthur's best interests, I went against his wishes such as encouraging him to use a walker in the later years and encouraging the other carers to ensure he used his walker in an attempt to keep him mobile. We had some big confrontations and battles of will, which we both enjoyed."	Form Opinion	Inadmissible
57(s1-s2)	"I was open and honest with Arthur. Within a short while, Arthur began to trust me and allowed me into his life."	Form Opinion	Inadmissible
57(s3-s4)	"I was often told by Hamble Court staff that Arthur asked when I wold be arriving. In fact, he came to rely on me greatly and was reluctant to let other carers do much at all for him."	Hearsay	Inadmissible
58(s1)	"Over time I grew fond of and loved Arthur as a daughter does her father."	Opinion	Inadmissible
58(s3)	"His face lit up when I entered the room."	Form	Inadmissible
59(s3)	"I achieved positive changes in Arthur's health and well-being, with only minimal support from the management staff."	Opinion	Inadmissible
60(s2)	"He embraced most changes with enthusiasm."	Form Opinion	Inadmissible
61(s1)	"Within a few weeks Arthur seemed happier, healthier and more settled."	Opinion	Inadmissible
61(s4-s6)	"Several Hamble Court staff commented to me on Arthur's transformation. A social worker who had seen Arthur before his placement told James that she was amazed at the improvement in his presentation in such a short time. She told James that she couldn't believe how well he looked."	Hearsay	Inadmissible
62(s1)	"When I first arrived at Hamble Court Arthur had a very poor diet."	Opinion	Inadmissible
62(s2-s3)	"He only wanted scrambled eggs and was consuming over a dozen eggs per week. I encouraged Arthur to eat a variety of foods."	Form	Inadmissible
65(s5)	"Arthur began to look presentable and take pride in his appearance"	Opinion	Inadmissible
67(s3)	"The dentures and implants greatly improved Arthur's diet and, as he began to eat more solid foods, he gained more weight and looked healthier."	Opinion	Inadmissible
76(s2)	"He also had an interest in locating his family home in Poland"	Form	Inadmissible
79	"By 2009 I attended to most of Arthur's personal care including showering, shaving, oral hygiene including assisting in cleaning his remaining teeth, dentures and implants, dressing, toileting and meal preparation each day that I attended him owing to the shortage of staff at Hamble Court and the shortage of carers."	Opinion	Inadmissible
89(s1-s2)	"When I first arrived at Hamble Court Arthur's medication was not properly administered. Sometimes it was hidden in his food but whether Arthur had consumed his food and medication was not checked"	Opinion Speculation	Inadmissible
95(s4)	"Arthur would not co-operate with the Hospital staff and I was required to assist in this regard with treatment, medication, meals and personal care which was the case with every hospital admission."	Opinion	Inadmissible
96(s2-s5)	"Arthur complained to me that the consultations were very brief. I was unable to be in attendance regularly as Dr Jimmy usually visited Arthur late in the afternoon. However, I stayed back to discuss my concerns regarding Arthur's health with Dr Jimmy when I could."	Form Hearsay	Inadmissible
102(s4)	"Again, he would only wear them when he was with me as I persisted in encouraging him to wear them."	Opinion	Inadmissible
104(s2)	"Dr Ferren performed a full examination and made new findings including a diagnosis of anaemia for which he prescribed Vitamin B12 injections."	Form Hearsay	Inadmissible
108(s3-s8)	"I listened to stories about his childhood, working years and travel. I learned about his loves, friendships, dreams, regrets, the future and his beliefs and values. I listened to his repeated litany over the years of wanting to return to his apartment in St Kilda to make a new will. I shared my family's ups and downs with Arthur. I told him that I was divorced and that I had raised my children on my own for the most part. I told him that my son suffers from autism, an intellectual disability and epilepsy, that I cared for him and that he would always require care."	Form Hearsay	Inadmissible
109(s1)	"Arthur had a wicked sense of humour and had a cheeky streak."	Opinion	Inadmissible
110(s2)	"My family warmed to and became very fond of Arthur as he did them."	Opinion	Inadmissible
111	"Arthur knew that I was very close to my children and told me he wanted me to spend as much time with them as possible. As such, Arthur was happy when Jordan accompanied Arthur and me on some outings. Arthur was very understanding of Jordan's disabilities. Arthur wanted to buy things for my children, but I did not allow that. "	Form Hearsay Opinion	Inadmissible
112(s4)	"Arthur loved the attention and often spoke about his birthday dinners with his friends and the nursing home"	Hearsay Opinion	Inadmissible
115(s7)	"Arthur always enjoyed the Christmas gatherings"	Form Opinion	Inadmissible
116(s4-s11)	"Arthur wanted access to his money more readily, allowing me to purchase items such as food and clothing for him to cover outings' expenses. To this end, on 2 November 2006, VCAT authorised me to withdraw funds from Arthur's cash account for his use and benefit. Arthur also wanted his apartment to be leased so it could generate an income. He did not wish it to be sold. To this end on 15 December 2008 VCAT ordered James to arrange for the apartment to be leased and that the apartment not be sold without VCAT's prior approval. Arthur also wished to be fully informed of his financial situation and to make a new will. To this end VCAT made several orders for James to arrange for Arthur to be medically assessed to ascertain his testamentary capacity. I accompanied Arthur to all but one of these medical assessments."	Form Hearsay Opinion	Inadmissible
117(s1-s2)	"Arthur had some particular requests to which I acceded whenever possible. For instance, in December 2007 Arthur wanted a photograph of us together."	Form	Inadmissible
117(s3)	"He told me that his biggest regret was that he did not have children and added"	Form Hearsay	Inadmissible
117(s5)	"Arthur had me hang the pictures in his room near his bed."	Form	Inadmissible
118	"Unfortunately, when I on leave and not attending to Arthur, his level of care was far from optimal. Sometimes Arthur was not provided with breakfast. His medical monitor was not switched on. Over time, Arthur's personal care was neglected including failure to shower and shave him and his dentures being left in his mouth overnight. He was left in dirty clothes. Arthur's medication was left on his table or found in his bed or on the floor. One of Arthur's falls was not reported. His room was unclean. Items were going missing from his room."	Form Opinion	Inadmissible
119	"When I returned from leave, I often found Arthur dishevelled, confused and having eaten poorly. It always took me a week to re-establish Arthur's routine and to reassure and settle him. This was the result of irregular or inconsistent care or no carer being assigned to Arthur. Further, Arthur required encouragement to adopt certain interventions such as the use of his walker and wearing his hearing aids. If Arthur failed to comply a few times, most of the carers did not persist in trying to implement the interventions. "	Form Opinion	Inadmissible
120(s1)	"In an attempt to improve the quantity and quality of Arthur's care"	Opinion	Inadmissible
121	"Further, in 2007 I requested Arthur's friend, Peter, take Arthur out for an hour or two daily when I was on leave. As Peter was not always available, in late 2007 I recommended to James that my sister, Michelle, who is a Division 2 registered nurse and who had met Arthur at my family functions, be employed to care for Arthur when I was on leave."	Form	Inadmissible
123	"As Hamble Court management failed to address the matters of concern I raised with it, on several occasions during the years 2009 to 2011 I suggested to James that Arthur be placed in alternative aged care accommodation."	Form Opinion	Inadmissible
129	"Immediately upon Arthur's transfer to Regis, James informed me that Arthur was not to be taken on outings daily as had been the case at Hamble Court. Rather, Regis suggested and James agreed that Arthur was to be taken out three (3) days per week leaving the alternate days for Arthur to participate in other activities organised by Regis. This meant that I would take Arthur out on two (2) weekdays and Michelle would take him out once over the weekend."	Form Hearsay	Inadmissible
130	"Arthur was very upset and angry by the decision to reduce his outings. He desperately wanted to go out daily, these outings being the highlight of his day. He became quite depressed and withdrawn. He became increasingly uncooperative with Regis' staff, refusing to eat his meals and to take his medication."	Form Opinion	Inadmissible
131(s5-s6)	"Regis' staff informed me that Arthur rarely participated in these activities when I was not with him. Arthur did manage to make friends with a few of the residents through these activities."	Form Hearsay Opinion	Inadmissible
132	"When attending Regis' outings, Arthur preferred to be transported by me rather than by Regis' transport as was used by the other residents and carers."	Form Hearsay	Inadmissible
137	"I spoke with Sharon, Regis' facility manager, Regis lifestyle co-ordinator (Jodi Buhler) and James about the negative impact on Arthur's physical, mental and emotional well-being of the decision to reduce his outings. The decision was maintained for almost a year before Jodi Buhler and I managed to have his daily outings resumed."	Form Hearsay	Inadmissible
138	"In addition, during 2011 the quality of Regis' care started to decline. Arthur's medication would often be hidden in his meals but what Arthur had eaten and what was left in his tray was not always monitored. Arthur liked ice-cream and, at times, ice-cream or a dessert was given to Arthur for breakfast, lunch and dinner. Arthur's dentures and implants were not cleaned properly. Arthur's clothes were not changed daily. Arthur's worn and dirty clothes were placed back in his wardrobe. He was not encouraged to use his walker."	Form Opinion	Inadmissible
140	"For several months in 2011 Regis' management excluded Michelle and me from Arthur's medical information and medical appointments making it difficult to give Arthur the care he required. For instance, Arthur suffered several little seizures. I informed Regis' staff but, as I was not present when Arthur was reviewed by Dr Boan, Regis' inhouse general practitioner, I could not raise the matter with the doctor. Further, without me beside him when being medically examined, Arthur became agitated and uncooperative."	Form	Inadmissible
149(s1-s2)	"In 2012 James requested that I speak with Arthur about his dying wishes and that I fill out the requisite paperwork. I did so."	Form Hearsay	Inadmissible
149-(s6-s8)	"I felt honoured that I meant so much to Arthur, as he did to me. I also discussed Arthur's wishes in respect of the funeral. Arthur discussed these matters only with me."	Form Hearsay	Inadmissible
150(s3-s6)	"I requested Regis' staff cut up his food and provide him with sandwiches for breakfast to make eating easier. This improved Arthur's food intake. However, Arthur's eating was compromised by Regis' staff not seating Arthur in his usual spot in the dining room each time, the change leading to confusion and disorientation. I raised this matter with Regis' manager."	Form Opinion	Inadmissible
156	"In July 2013 I liaised with the physiotherapist and nurse in charge about changing the layout of Arthur's room to make it easier and safer for Arthur to use his walker and to access the toilet."	Form Hearsay	Inadmissible
157	"Later in July 2013, I spoke with Dr Boan when he was attending Arthur. I raised issues of concern including dietary intake, Arthur's Parkinson's disease type symptoms and medication for the same, pain management, hip and back issues and further investigations and hospital admissions for the same. In particular, I was concerned that Arthur had many complaints, including ongoing pain, that had not been investigated. Arthur's Care Plan noted that Arthur preferred to be admitted to hospital rather than remain at Regis to be tested. I discussed this was James and it was agreed that Arthur be admitted to hospital for investigations."	Form Hearsay	Inadmissible
163(s2)	"At one visit, Arthur asked me if I believed in life after death and we discussed it at length."	Form Hearsay	Inadmissible
165	"James asked whether I wished to be appointed Arthur's guardian. I agreed without hesitation. James gave me relevant paperwork to complete. However, after speaking with a social worker at the Hospital, James requested I return the paperwork as the Hospital wishes to deal with James, not me. I was very disappointed and surprised by the decision."	Form Hearsay

167(s2-s4)	"We discussed Arthur's inpatient stay at Cabrini Hospital and the rapid and significant decline in his health. I told them that I was extremely upset and that I thought nothing could now be done for Arthur - we were going to lose him. We also discussed the need for a future palliative care plan, pain management plan and power of attorney."	Form Hearsay	Inadmissible
168	"I informed James of the seriousness of Arthur's condition"	Form Hearsay	Inadmissible
169(s8)	"I believe he knew the end was near, he was scared and he did not want me to leave his side."	Opinion	Inadmissible
172	"During the evening on 11 August 2013 I received a telephone call from James informing me that Arthur was in a lot of pain. A locum doctor was called who advised that Arthur was required to be admitted to hospital. James asked to which hospital Arthur should be admitted. I told him the Alfred Hospital as was Arthur's wish."	Form Hearsay	Inadmissible
174(s3)	"He seemed to be responding well."	Opinion	Inadmissible
174(s4-s5)	"I told the hospital staff I was going home to shower and organise my family and that I would return as soon as I took my son to his day program. I requested I be informed if there was any change in Arthur's condition."	Form Hearsay	Inadmissible
175(s5)	"I told him the things I wanted him to know."	Form	Inadmissible
177(s4-s5)	"The Hospital staff informed James and me that an autopsy could be performed in view of the treatment Arthur had received prior and his condition on arrival to the Alfred Hospital to ascertain the cause of Arthur's death and, perhaps, the cause of his pain too. James declined the autopsy. I would have wanted one performed."	Form Hearsay	Inadmissible
198	"I feel privileged to have met, embraced and loved Arthur. I believe that I significantly improved and enriched his life and extended it by several years. From my observations during my time with Arthur, I believe that my family and I were more of a family to Arthur than any of his relatives ever were."	Opinion	Inadmissible
199(s3)	"Among other matters, it provided advice in respect of a will contemplated by Arthur" (referring to a letter from solicitors to Arthur)	Form Hearsay	Inadmissible
200(s1-s6)	"On reading the letter to Arthur, he told me that he wished to make a will. He stated that he had made several wills but had 'cancelled' them. He said that he did not have a valid will. He mentioned a will pursuant to which his nephew, Herbert Losel, was the sole beneficiary but that he had made other wills since. He also said that just prior to his admission to Barina, Herbet had visited him for the purpose of making a will pursuant to which he (Herbert) would be the sole beneficiary but that he had not made such a will. He requested that I take him to a solicitor to make a will."	Form Hearsay	Inadmissible
200(s8-s13)	".. Asked me if I could take him to one of the solicitors. One card was that of Elizabeth Macnish in South Yarra and the other was that of CJ Southall in Prahran. He also requested that I take him to Luke and Rea who managed an investment portfolio. Later, Arthur would mention to me that he wished to make me the beneficiary of his will, But I would discourage him by dismissing or changing the subject. I told Arthur that he should not think this way because he might lose me as a carer and I asked him to consider his family in relation to his will. I also suggested on one occasion that he considered giving his money to a hospital."	Form Hearsay	Inadmissible
201	"I was concerned about the contents of the letter and surprised by Arthur's requests. I told Arthur that I would discuss the letter and his requests with James."	Form Hearsay	Inadmissible
202	"James informed me that it was unethical for me to take Arthur to see a solicitor and I did not do so."	Form Hearsay	Inadmissible
203	"I told Arthur that I could not take him to a solicitor as I did not want him to risk losing me as his carer. I told him he should speak with James about the matter."	Form Hearsay	Inadmissible
204	"I spoke with Wilhelmena Krooglik, the Hamble Court Manager, about the letter. She suggested I refer the letter to VCAT's Guardianship List for investigation."	Form Hearsay	Inadmissible
205(s1)	"I referred Moores Legal letter to Arthur dated 25 May 2005 to VCAT"	Form	Inadmissible
206(s3)	"Among other matters, Arthur continued to voice his desire to make a new will and to be informed as to his financial matter."	Form Hearsay	Inadmissible
208	"Arthur complained to me that was not informed of his finances. It was only on one occasion that James organised for me to drive Arthur to his office to discuss financial matters. I waited at reception. An argument broke out between Arthur and James. I could hear the raised voices but not the substance. Arthur continued to complain later that he was being told nothing about his finances."	Form Hearsay	Inadmissible
209	"Arthur was very frustrated by the Tribunal process. He continued to ask me to take him to a solicitor for the purpose of making a will for some years"	Form Hearsay	Inadmissible
210(s1)	"By VCAT letter to James dated 2 December 2011, VCAT enclosed, inter alia, an article from the Law Institute Journal regarding the power of the Supreme Court to make a Will."	Form Hearsay	Inadmissible
212	"In or about late 2006, Arthur started to tell me that he wished to make me the/a beneficiary under his will. He repeated words to this effect to me on money occasions over the years"	Form Hearsay	Inadmissible
217(s1)	"..as he was abusive to me and my children."	Form	Inadmissible
217(s2-s3)	"He only visited the children if I arranged the visits. He arranged his affairs so he could provide minimal financial support to me and his children."	Form	Inadmissible

Affidavit of the plaintiff, Lisa Jane Partosh, sworn 1 August 2017

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
4(s1-s4)	"…I say that Arthur told me on several occasions that he felt disappointed, angry and betrayed at the manner in which James performed his role as administrator. In this regard, as discussed at paragraph 46 of my affidavit, Arthur expressed an ongoing wish over several years to be able to reside in his apartment in St Kilda with around the clock care, which he could afford, and he believed that James would assist him to realise this. However, this was not the case. Further, as discussed in paragraph 208 of my affidavit, Arthur expressed an ongoing wish for James to inform him of his finances. This did not occur."	Form, hearsay	Inadmissible
5	"James and Arthur often argued and I was often the mediator or messenger between them. Arthur grew to resent James over the control he had over his life and that he did not exercise that control in accordance with is wishes. On many occasions that Arthur spoke to me about James, he made extremely derogatory comments about him or called him extremely derogatory names. He distanced himself from James. He often pretended to be asleep when James visited, and James' visits became less frequent over the years. Over the years, both Arthur and James complained to me of the arguments and increasing lack of communication between them."	Form, hearsay	Inadmissible
6	"I believe Arthur did not have a lot of choices as to who was willing or able to manage his affairs as he did not have many friends, and had even fewer who he trusted and were able to take on this role. Arthur was very suspicious of James and he did not trust him. He told me this on several occasions, especially when it came to being informed about his finances. At one VCAT hearing, Arthur stated to the Tribunal Member that he wanted me, not James, to be his Administrator.	Form, hearsay	Inadmissible
7	"In reply to paragraphs 26 to 30 of James' affidavit, I say that in the first few years, Arthur informed me that he regarded his stays at the various nursing home accommodations as temporary. He believed that he would be returned to his apartment in St Kilda with the requisite care bring administered there. He told me that, prior to moving to Hamble Court, he had discussed with James being temporarily placed at the Freemasons Homes as he had been a Freemason for many years. According to Arthur, this was an option. However, this did not occur."	Form, hearsay, opinion	Inadmissible
8(s2)	"..It is my understanding, there was nothing to prevent the requisite care being administered at Arthur's home as he so dearly wished."	Opinion, speculation,	Inadmissible
9(s3-4)	"..Arthur was moved because of many concerns Michelle Di Donna ("Michelle") and I had in respect of Arthur's care at Hamble Court which we raised with James. It was my suggestion to James that Arthur be moved out of Hamble Court and, with his permission, I searched for, researched and inspected suitable alternative aged care accommodation."	Form, opinion	Inadmissible
10(s1)	"I anticipate that Michelle will also strongly dispute this allegation"	Speculation	Inadmissible
10(s2-s9)	"There was an obvious, steady decline in the level of Arthur's care provided by Hamble Court which, I believe, coincided with the change of ownership of the nursing home. As a result , Arthur often complained to Hamble Court staff when care duties were neglected and, at times, he became angry with staff. This discouraged the staff from attending to him. Arthur also requested Michelle and I raised the problems with the care being administered by the staff with the staff and the new owner, Wilhelmina Krooglik ("Wilhelmina"). Both Michelle and I spoke with the staff, Michelle informing me of her discussions with the staff. I also spoke with Wilhelmina. Sometimes, after such discussion, care improved for a short time before declining again. I was informed by management and various staff members that there was often a lack of communication between the staff or between management and staff of the matters reported by Michelle and me, or that such matters were not followed up as this would have put more pressure on the limited staff."	Form, hearsay, opinion, speculation	Inadmissible
11	"I believe I was always polite and respectful in communicating with management and staff and I have no reason to doubt that Michelle conducted herself in the same manner with the staff. However, I do believe there was tension between Michelle and me and the staff because the staff were under a misapprehension that Michelle and I were required to perform care duties in respect of Arthur which was the staff's responsibility."	Form, opinion, speculation	Inadmissible
12	"The following are matters Michelle and I raised with Hamble Court staff (on weekends when management was unavailable) and management (during weekdays) regarding the declining level of care provided by the staff in respect of Arthur; a lack of clean clothes, especially underwear, jumpers and clothing damages due to incorrect laundering, many items requiring replacement with no replacement costs offered; clothes left piled on Arthur's bed rather than placed in Arthur's cupboard; clothes not ironed, clothes placed in another resident's room; clothes missing or lost, Arthur left on the floor of his room overnight with a blanket thrown over him; air conditioner left on all night in cold weather, Arthur not dressed; Arthur dressed in dirty clothes; Arthur not showered and ready for outings; Arthur not shaven; no oral hygiene performed; nail care and podiatry performed irregularly or not at all; medication not administered; medication administered by kitchen cook on duty rather than a nurse; medication found in Arthur's bed or on the floor; medication found in Arthur's uneaten meals; meals on meal trays left in the kitchen rather that taken to Arthur's room, with either late meals or no meals being provided; meals served cold; food trays with leftover food left in Arthur's room all day and overnight; Arthur's bed unmade; Arthur's room not cleaned; Arthur's bathroom not cleaned, Arthur's bar fridge not defrosted, items such as hair combs and pens missing from Arthur's room; medical issues, dietary issues, the general decline in the level of care and, at times, the absence of any care, and the apparent lack of communication between Hamble Court management and staff."	Form, opinion	Inadmissible
12		Form, opinion	Inadmissible	13	"Occurrence of the abovementioned matters was regular, and often daily. Michelle and I did our best to perform the said duties that were performed inadequately or not at all by the staff, to ensure Arthur received quality care, notwithstanding that these were neither our assigned duties nor did we receive remuneration for the same"	Form, opinion	Inadmissible
14(s1-s5)	"In this regard, I mentioned the problems in the care administered by the staff to James on a fortnightly to monthly basis. I also mentioned that Michelle and I were performing the care duties that were being performed inadequately or not at all by the staff. James informed me that Hamble Court was paid to perform these duties. I requested James put in writing the duties Michelle and I were to perform and those were the responsibility of Hamble Court staff so at to clarify the duties to be performed by each. This resulted in James' letter addressed to me, Michelle and Wilhelmina dated 29 January 2009" (that affidavit is exhibited to one of James’ affidavits)	Form, hearsay	Inadmissible
15(s1)	"As is detailed in the letter dated 29 January 2009, Michelle and I were assigned to shower Arthur every alternate day."	Form, hearsay	Inadmissible
15(s2-s3)	"In effect, this translated to showering, shaving and dressing Arthur and attending to his oral hygiene. These were carer duties, not companion duties, for which we were not remunerated."	Submission	Inadmissible
16	"Although our duties and those of Hamble Court staff were clarified, there remained ongoing problems with Hamble Court providing particular care services inadequately or not all, still requiring Michelle and me to pick up the slack. This was also the case at Regis."	Opinion	Inadmissible
17	"In reply to paragraphs 35 and 36 of James' affidavit, I say that, notwithstanding that Regis was a considerably more expensive aged care facility than Hamble Court, unfortunately, it did not prove to be a better option with respect to the level of care provided to Arthur, presenting the same and additional care issues which Michelle and I faced at Hamble Court."	Opinion, submission	Inadmissible
19	"Further, I state that if Arthur did state the above to VCAT on 11 October 2006, he did not maintain this position for long. In this regard, I note that order 3 of VCAT Order dated 31 October 2016 comprising Exhibit "JC16" to James Affidavit provides, inter alia, "..if to his (the administrator's) knowledge the represented person (Arthur) seeks to make a will, to ensure that a medical opinion is sought in order to establish the testamentary capacity of the represented person", order 4 of VCAT order dated 2 October 2007 comprising Exhibit "JC18" and order 4 of VCAT order dated 15 December 2008 comprising Exhibit "JC21" directed James to arrange medication assessments for the purpose of assessing Arthur's testamentary capacity, and that James arranged a number of medical assessments which Arthur attended during 2007 to 2009 for this purpose including those conducted by Dr Joel Aizenstros (Psychiatrist) on 14 November 2007 whose medical report dated 21 November 2007 compromised Exhibit "JC19" , Dr Harold Hecht (Psychiatrist and Psychogeriatrician)[which I believe occurred on 23 November 2007] whose letter to James dated 1 December 2007 comprise Exhibit "JC19" (medical report no served or exhibited by the Defendant), and Dr Sophe Kimonides (Neuropsychologist) on 9 Feb 2009 whose medical report dated 4 March 2009 compromise Exhibit "JC22". As such, I do not believe the above would have occurred had Hames been unaware of Arthur's wish to make a Will. "	Opinion, Submission	Inadmissible
20	"Arthur and I always believed that the abovementioned medical assessments were for the purpose of assessing his capacity to make a Will because he wished to make one. Arthur enquired of James and me as to the outcome of the various medical assessments, being keen to make a Will. I kept telling Arthur that I did not know the outcomes. He requested I enquire of James as to the same on his behalf which I did. James never informed me or Arthur of the outcomes. "	Form, hearsay, opinion	Inadmissible
21	"The Communication Diaries contain entries made by Arthur in respect of making a Will. There is an entry dated 19 November 2007 in Arthur's handwriting which states, "Lisa please help I cannot sleep! Regarding the Will!" This entry is dated just a few days prior to the medical assessment b Dr Hect. There is a further entry in Arthur's handwriting on 27 November 2007 which states, "Regard administration and Will! Dr HECT! and another on 28 December 2007 which states, "ABOUT WILL? The relevant entry in Arthur's handwriting is dated 15 December 2008, which I recall was a list of questions by Arthur for the VCAT directions hearing on the same date which states "1 Dr Hex Test Result? 2 Financial situation, Assets and Income.. 3 New Will, 4 Lunch every second day! 5 Ask me for the Finvia Statement the Last Time But I have Not Got It. Apartment to Let! For Income." It was Arthur's practice to note matters in the Communication Diary as a probate reminder and we discussed these matters together."	Form, submission	Inadmissible
22(s3-s4)	"These paragraphs detail the first time I mentioned to James that Arthur wished to make a Will. This occurred in 2006.	Submission	Inadmissible
22(s5)	"I recall that when I mentioned Arthur's will to James, James said words to the effect, "You are not to take Arthur to see a solicitor, to do so would be unethical. “He also asked, "Have you taken Arthur to see a solicitor?" to which I replied "no""	Form, hearsay	Inadmissible
23	"I again mentioned Arthur's wish to make a Will to James several times in 2007. This was around the time that the said medico-legal examinations were arranged by James"	Form, hearsay	Inadmissible
24	"As to James' claim that Arthur never discussed his testamentary wishes with him, this may be correct. However, based on the above, I certainly did communicate to James and he was informed of Arthur's wish to make a Will."	Hearsay, submission	Inadmissible
27(s3)	"..and I believe Michelle would agree with this in respect of herself."	Opinion, speculation,	Inadmissible
28(s3)	"However, Arthur preferred that I take him to his various medical and specialist appointments, and, as such, and with James' permission I did so, for Arthur's wellbeing."	Hearsay, opinion	Inadmissible
28(s4-s5)	"This continued to be the case when Arthur moved to Regis. As to attending the dentist and having dentures and implants fitted, James had tried, unsuccessfully, to encourage Arthur to do the same, however, I succeeded in doing so."	Opinion	Inadmissible
29(s1)	"Further, as detailed in paragraphs 12 and 13 herein, I spent considerable time performing duties that were performed inadequately or not at all by the staff at the nursing home."	Opinion	Inadmissible
29(s2)	"I was also requested by James to perform duties beyond my original assigned duties."	Form, hearsay	Inadmissible
32(s3)	"Accordingly, I believe that my qualifications, work experience and life experience armed me to perform my duties as Arthur's companion and the carer duties I ended up performing in respect of him, not only adequately, but with genuine care, compassion, love and affection."	Opinion, submission	Inadmissible
34(s3-s5)	"These outings, were extremely important to Arthur, they were the highlight of his days and an escape from the confines of the nursing home. They were also very important to maintaining Arthur's mental and physical health." In fact, in 2011 when at Regis James reduced Arthur’s daily outings, Arthur’s mental and physical health suffered significantly as detailed in paragraphs 129 to 137 of my affidavit.	Form, opinion	Inadmissible
36(s2)	"For example, at Regis when Arthur's eating declined, I recall that I took Arthur to Southland for his favourite Rockling with chips and salad to ensure he ate."	Form	Inadmissible
36(s4)	"Another example is that whenever I picked up food for Arthur and brought it back to Regis, which was regularly, I did not claim the travel."	Form	Inadmissible
37(s3-s6)	"Further, I say that Arthur often said to me that he disliked being on his own on weekends and became increasingly worried about being left on his own, not being confident about the care administered of a weekend. Arthur of ten requested I visit him on weekends, which I did on a few occasions, but I was unable to visit regularly. I bought these matters to James' attention."	Form, hearsay,	Inadmissible
41(s2)	"In fact, at the 2005 Hamble Court Christmas party, I requested James' permission to use some of the funds which he gave to Arthur for outings, grocery shopping, snacks and the like, to purchase clothes and shoes for Arthur."	Form, hearsay	Inadmissible
41(s5)	"I did this because it made Arthur feel good about himself and this was important to me."	Hearsay, opinion	Inadmissible
45(s3)	"I believe that this would have been the case with Michelle to."	Speculation	Inadmissible
50(s1)	"Further, over time, Arthur became anxious about being left alone in the nursing homes."	Form, opinion	Inadmissible
51	"As Arthur's outings were important to him mentally and physically, I attended to carer duties performed inadequately or not all by the nursing staff after hours to ensure that my assigned time with Arthur was quality time."	Opinion, speculation	Inadmissible
56(s2)	"Further, notwithstanding that James's agreement with Hamble Court included provision of laundry services for Arthur and that Hamble Court charged for the same, it did not translate, in fact, to Hamble Court providing the service it was contracted to do, this requiring me to step up to ensure that Arthur's laundry needs were met, as was also the case at Regis"	Form, opinion	Inadmissible
57(s3)	"This was following a discussion I had with the carer, Simone, and arising from my use of a communication diary for my son which we have used most of his life with his disability service."	Form	Inadmissible
57(s4)	"It may have been that James was unaware of this book."	Form, speculation	Inadmissible
58(s3-s4)	"I was concerned about and mentioned this to Chris Markew, Hamble Court's owner at the time, and suggested that Hamble Court place Arthur's money in a safe. Chris stated words to the effect that Hamble Court did not want the responsibility of looking after Arthur's money."	Form, hearsay	Inadmissible
59(s2)	"Further, I say that the conversation James and I had was at my instigation, following a discussion I had with Arthur."	Form	Inadmissible
59(s3-s5)	"As Arthur dearly missed and pined for his apartment in St Kilda, I suggested to Arthur that he might be assisted in better settling into life at Hamble Court and, perhaps, happier if his room reflected more of himself and he surrounded himself with furniture to his liking. Arthur liked this idea and requested I discuss the same with James. It was on relaying the same to James that he gave me the go-ahead to refurbish Arthur's room and to do so with quality furniture."	Form, hearsay	Inadmissible
59(s9)	"I believe the refurbishment of Arthur's room greatly improved Arthur's mood and assisted him to better settle into Hamble Court"	Opinion	Inadmissible
60(s4)	"However, it was my understanding that Arthur was not obliged to be treated by the in-house doctors and was entitled to choose his general practitioner."	Opinion	Inadmissible
64(s1)	"…which Arthur said he would like when I mentioned I was visiting my father in Bundaberg, Queensland" (in relation to a bottle of rum purchased by the plaintiff for the deceased)	Form, hearsay	Inadmissible
67(s1)	"…and I believe that Michelle will agree with me."	Speculation	Inadmissible
68(s3-s6)	"I believe Arthur had every right to receive the basic care he had paid Hamble Court to provide him- to be showered and shaved daily, to have his oral hygiene attended to daily and to have clear clothes; to complain if this was not provided; and to request, or even expect, that Michelle and I (and even James) would advocate for him in this regard if is complaints were not heeded. And this is what I did - I advocated for Arthur. If, in doing so, Staff were upset and/or management was disgruntled, I can only say that this was not my intention, but merely a by-product that could have been avoided had the requisite care been administered by Hamble Court. My sole priority was Arthur's care and health and wellbeing and my motivation was my love and affection for him."	Opinion, submission	Inadmissible
69(s5-s6)	"I recall asking James when the complaint had been made to which he had answered it has been a while ago. I also recall stating that I was not surprised that she had made a complaint in view of the many issues surrounding Arthur's care by the nursing staff"	Form, hearsay	Inadmissible
71(s2)	"We prompted Arthur to take his medication which assisted in the administration of his medication by the nursing home staff"	Form, opinion	Inadmissible
73(s3)	"On some of these occasions, Arthur did discuss his private affairs with the family whom he had known for several decades"	Hearsay	Inadmissible
73(s4)	"several occasions" (referring to conversation the plaintiff has with the deceased's family)	Hearsay	Inadmissible
75	"I wish to add that following Arthur's passing, James suggested Michelle and I bring a claim in respect of Arthur's estate. This occurred on a few occasions. I recall two of these occasions clearly. The first was shortly after Arthur's death when James telephoned me when I just gotten into my car which was parked at Southland Shopping Centre. James enquired as to how I was doing and the telephone numbers of some of Arthur's friends. I told James that it was a very difficult time for me and that I was missing Arthur greatly. I told him did not have Arthur's address book as Arthur's desk, along with the remainder of his furniture, has been delivered to his (James') office. He informed me that Carole and Edna Czermak had attended his office. He strongly suggested that I should make a claim against Arthur's estate, saying words to the effect, "you should make a claim (against Arthur's estate). He repeated words to this effect several times. I did not feel comfortable discussing this. I was uncertain whether James was expecting me to respond. I did not comment and wanted the conversation to end. I drove home and I mentioned this conversation to my mother and Michelle"	Form, hearsay	Inadmissible
76(s2)	"James gave me a copy of Arthur's citizenship papers as he knew they meant a lot to me"	Opinion, speculation	Inadmissible
76(s4-s5)	"Much of the conversation was about Arthur. I became emotional and started crying"	Hearsay	Inadmissible
76(s6-s8)	"James mentioned Arthur's estate and its worth. He suggested that Michelle and I make a claim in respect of Arthur's estate. Again, I did not feel comfortable discussion this.	Form, hearsay	Inadmissible
77	"I believe that as a consequence of my dedication to Arthur, I saved James much time and effort he would otherwise have been required to spend in respect of Arthur's care, health and wellbeing"	Submission	Inadmissible

Affidavit of Caterina Tosto sworn 21 December 2016

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
7(s1-s4)	"..at his request, I read the paper he showed us. It was a document by Arthur with words to the effect that he had cancelled all his Wills. He said that he had no Will and wished to make a new Will. He did not mention who he wished to benefit under any new Will, but he did say he did not want to leave anything to his family."	Form Hearsay	Inadmissible
10(s4-s5)	"At this time I recall thinking that I was very grateful that Arthur had Lisa in his life. In my eyes, Lisa cared for and loved Arthur dearly as if he were her father and Arthur fully trusted, relied on and cared for Lisa like she was his daughter."	Opinion	Inadmissible
12(s1-s2)	".. and informed me that Arthur had been rushed to the Alfred Hospital and was dying. She sounded extremely upset and distressed."	Hearsay	Inadmissible
13(s1-s2)	"… and informed me of Arthur's passing. She sounded heartbroken."	Hearsay	Inadmissible
14(s1)	"Lisa also invited me to Arthur's funeral which she informed me she was arranging."	Hearsay	Inadmissible
15(S2-s4)	"From watching the DVD, it is clear that Lisa went to extreme efforts to make the funeral a very personalised and special occasion. The flowers were brilliant and Arthur's favourite. In my eyes, this reinforced how dearly Lisa loved Arthur."	Opinion, submission	Inadmissible
18(s1-s2)	".. I also recall that at one of Arthur and Lisa's visit to my mother's home, Arthur said that just prior to his "nervous breakdown" for which he was hospitalised and placed in a nursing home in 2005, Herbert had visited him and had pressured him to leave his estate to him."	Hearsay	Inadmissible

Affidavit of Carmelo Camobreco sworn 21 December 2016

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
8(s2)	"He told me he wanted to give me a key to his apartment in case of an emergency or if anything went wrong."	Hearsay	Inadmissible
9	"I telephone my daughter, Caterina, and informed her of Arthur's telephone call. Caterina, her husband Joe, their two (2) sons, and I drove to Arthur's apartment. He showed us a piece of paper, stating that he had cancelled all his Wills. He also stated that he wanted to make a new Will and asked Joe to drive him to a solicitor so that he could make a new Will. He said he would call us to take him to a solicitor."	Form, hearsay	Inadmissible
11(s2)	"I believe he may have forgotten to do so."	Opinion, speculation	Inadmissible
13	"However, Caterina informed me that some time thereafter when she and her husband were overseas, Arthur phoned her home number and left a message requesting that her husband, Joe, return his call. Alex telephone Arthur and informed him that his parents were overseas. When Caterina and Joe returned from overseas in October 2005, Caterina called Arthur at his apartment but there was no answer."	Hearsay	Inadmissible
14	"Caterina further informed me that in response to the Christmas card she mailed to Arthur at his armament’s address in 2005, she was contacted by James Campbell, who I believe was Arthur's accountant, who informed her that Arthur was at the nursing home, Hamble Court in Brighton."	Hearsay	Inadmissible
16(s4)	"Arthur said he would like to visit again"	Form, hearsay	Inadmissible
19(s1)	“… and Arthur greatly trusted and relied on Lisa"	Form, opinion	Inadmissible
19(s5)	"They appeared to get along very well, enjoy each other's company and have a very close, trusting and caring relationship"	Opinion, submission	Inadmissible
20(s1)	"During these visits, I saw that Lisa attended to Arthur with a lot of care and patience, and Arthur greatly trusted and relied on Lisa."	Hearsay	Inadmissible
21	"Arthur also mentioned that he and Lisa went to Sydney for a few days and that she cared for him on his trip. He said he enjoyed the trip very much"	Hearsay	Inadmissible
22	"Arthur always appeared happy and to enjoy himself when he visited my home with Lisa. He smiled often. Sometimes he joked as he often had in early years that I knew him"	Form	Inadmissible
23(s2)	"and appeared a healthier and happier man"	Form, opinion	Inadmissible
23(s5)	"They took the left-overs from lunch for Arthur to eat, Arthur being quite particular about the foods he ate and not liking many of the meals offered by the nursing homes at which he resided"	Opinion, submission	Inadmissible
26(s1)	"Caterina informed me that Lisa telephone her and informed her of Arthur's passing and funeral. I was unable to attend the funeral due to poor health."	Hearsay	Inadmissible
27(s1)	"I have been informed that Lisa arranged Arthur's funeral service."	Hearsay	Inadmissible
29	“As to Arthur's family, he mentioned his sister, Hedwig, in Germany. He said she wanted to come to Australia but that he did not want that as they had a falling out."	Hearsay	Inadmissible
30	"Arthur did not speak fondly of his nephew, Herbert in Germany. In one of his visits he stated that Herbert had visited him recently and had only had a drink and spent a short time with him. He had not bothered to have a meal with him. He said he was very disappointed and hurt by this."	Hearsay	Inadmissible

Affidavit of Peter Hollasbacher sworn 12 January 2017

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
6(s2-s3)	"He told me that his surname at birth was "Czarnik." but he had changed it to "Carbo" having had an Italian girlfriend by the name of "Carbone."	Hearsay	Inadmissible
12(s2)	"He often spoke of holidays to Asian countries such as Hong Kong and Thailand and showed me photographs from his travels which included photographs of him with local women"	Form, hearsay	Inadmissible
16	"As to Arthur's estate and Wills, sometime in the early 1990s, Arthur informed me that he had brought a young Thai women over from Bangkok to live with him, Soon thereafter, I bumped into Arthur with an Asian looking women walking along Acland Street in St Kilda and Arthur introduced me to her. I believe this is the women Arthur had brought over from Thailand who was living with him."	Hearsay	Inadmissible
17	"After the event, Arthur informed me that the Thai women had lived with him for three (3) months but had left. He told me that he had told her that they should get married and, that if she did and he died before her, she would inherit his money, but not his apartment. She wanted to inherit his apartment to, so she had left."	Form, hearsay	Inadmissible
18(s1-s2)	"Some five (5) years prior to Arthur becoming physically and mentally unwell and being taken from his home, hospitalised and placed in a nursing home in 2005 which is detailed below in my affidavit, Arthur told me that his nephew, Herbert, would inherit his apartment. He did not mention who would inherit the balance of his estate"	Hearsay	Inadmissible
19	"I cannot recall the exact year but on another occasion prior to Arthur becoming unwell in 2005 as mentioned above, Arthur told me that he had attended a solicitor in Greville Street in Prahan and had changed his Will. He did not mention the contents of his new Will."	Hearsay	Inadmissible
20	"When Arthur was placed in the nursing home, Hamble Court in Brighton, which is detailed below, on a few occasions Arthur repeated to me that Herbert would get his apartment. Again, he never mentioned who would inherit the balance of his estate"	Hearsay	Inadmissible
26(s3-s5)	"We often spoke about old times together, his past prior to us meeting including his time in the War, and his travels. We also spoke about things that interested him such as history. Sometimes he joked."	Hearsay	Inadmissible
30(s2-s6)	"Because Arthur was in a nursing home, he had to rely on a few other people who attended to him. However, he did not rely on them to the extent that he relied on Lisa. And Lisa was the only person Arthur trusted and he came to trust he completely. Having known how independent Arthur had been and how little he had trusted people when he had been well. I believe this was a big change and big deal for Arthur and he did not come to accept Lisa into his life lightly. I believe that Lisa needed to have worked hard to earn that trust - it would not have been easy and it would have required a lot of persistence."	Opinion	Inadmissible
30(s7-s8)	"Also, from my observations, Lisa did things for Arthur which showed that she truly card for him. My observations are detailed below."	Opinion, submission	Inadmissible
31(s3)	"Lisa bought Arthur a new wardrobe of clothes and he was always well-presented"	Form	Inadmissible
32(s1-s2)	"Again, when I commented to Arthur about his new glasses, his dentures and hearing aids, he replied that Lisa had organised and taken him to each specialist. He said the same whenever we talked about his pacemaker."	Form	Inadmissible
32(s4)	"Arthur told me that Lisa had bought it for him"	Hearsay, form	Inadmissible
33(s2)	"He said that Lisa bought his food for him"	Form, hearsay	Inadmissible
34(s3)	"He had plants in his room and, for a while, a fish tank, which Arthur told me Lisa bought for him."	Form, hearsay	Inadmissible
35(s3)	"The only people who took him out were Lisa or, on weekends or when Lisa was on leave, her sister Michelle ("Shelly") who came into the picture a few years down the track"	Form, opinion	Inadmissible
36	"Arthur often mentioned that Lisa had taken him out for breakfast or lunch for his favourite foods such as for a coffee and a hash brown at McDonald’s in St Kilda or for rockling or fish and chips for lunch."	Form, hearsay	Inadmissible
37	"Arthur often spoke of and missed his apartment in St Kilda and his factory in Airport West. On occasions, he had told me that Lisa had taken him for a drive past his factory or apartment."	Form, hearsay	Inadmissible
38	"Arthur mentioned to me that Lisa had organised and taken him to Dromana and Sydney for a few days. Lisa had cared for him on these trips. He said that he had greatly enjoyed these trips."	Form, hearsay	Inadmissible
42(s1-s3)	"Arthur often spoke to me about Lisa's children, Jordan and Jessica. He told me that Jordan was a tall boy who attended a "special school". He told me that Jessica wanted to be a personal trainer, was studying some type of dentistry course and that she worked at McDonald’s in St Kilda."	Form, hearsay	Inadmissible
43(s1-s2)	"Arthur did not socialise with many of the nursing home residents at either Hamble Court or Regis. Sometimes he spoke to one or two of the residents. "	Form, opinion	Inadmissible
44	"Sometimes when Lisa was on leave, James Campbell requested that I spend more time with Arthur and I did so. I am unsure whether it was James, Lisa or Arthur who had thought to do this."	Form	Inadmissible
47(s4)	"Lisa arranged dinner at Milano’s at Brighton, near the beach."	Form	Inadmissible
49	"Arthur told me that he spent each Christmas with Lisa, having Christmas lunch with Lisa and her family including her children, Shelley and their mother at one of their homes."	Form, hearsay	Inadmissible
50(s1-s2)	"In the days prior to Arthur's passing, Lisa telephoned me and informed me that Arthur's health had deteriorated and that it was likely that he was going to die. She also told me that Arthur required palliative care which was administered at Regis"	Form, hearsay	Inadmissible
50(s5)	"Her face showed extreme concern and worry"	Form, opinion	Inadmissible
52(s5)	"Lisa had clearly gone to considerable effort to organise the funeral."	Form, opinion	Inadmissible
53(s1-s2)	"Some time later, Lisa organised Arthur's headstone. She had it inscribed including having Arthur's face engraved on it."	Form, opinion	Inadmissible
54(s2)	"On behalf of Arthur, I was very upset that Arthur's nephew, Herbert, did not attend seeing that I believe there was sufficient time for him to fly out to Australia, and that he was working for Lufthansa airlines at the time"	Opinion, submission	Inadmissible

Affidavit of Michelle Di Donna sworn 12 January 2017

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
13	"In summary, Lisa performed her assigned duties as a carer in respect of Arthur with great attention, care, patience and understanding. Further, she performed many duties over and above her assigned carer duties, at her own instigation and for which she was not remunerated. Lisa personalised Arthur's care- not only did she provide the care he required for his best interests, when possible, he also provided him with what he wanted to make him as comfortable, content and happy as possible. Moreover, Arthur and Lisa developed a mutual respect, trust and a very close and loving father-daughter bond. Lisa advocated for Arthur's best interest and persisted, both with Arthur and with Arthur's heath providers, nursing home staff and James Campbell, to improve Arthur's health, well-being and quality of life. I believe Lisa attended to, cared for and loved Arthur as she does our father. As a result of the above, I believe that Arthur became a healthier and happier man over the years and his life was extended by several years."	Opinion, submission	Inadmissible
14	"I believe Lisa had a special way with Arthur as Lisa had spent half her life caring for, managing and devoting herself to her autistic (now adult) son with challenging behaviours and, likewise, she embraced Arthur with his somewhat challenging behaviours. Arthur, in turn responded to and loved Lisa, all previous carers having given up on him. I believe Lisa's devotion to Arthur was not unlike her continuing and steadfast devotion to her son, both her son being and Arthur having been totally dependent on Lisa. In a way, Lisa cared for Arthur as a loving daughter does an ailing father, but also as a loving, protective mother does a very dependent child"	Opinion, speculation, submission	Inadmissible
15	"Arthur undoubtable relied on and trusted Lisa above all other persons in his life, having previously been, from what I have been informed by Arthur himself, a very independent, self-sufficient and private man who was very wary of people as a result of his experience during World War II, in the context of having no wife or partner, no children and no family in Australia and very few friends. I believe Arthur trusted Lisa completely, felt safe in her presence and loved her as if she were his own daughter."	Opinion, speculation, submission	Inadmissible
17(s1-s5)	"However, when Arthur was residing at Hamble Court, Arthur complained that the in-house carers were not showering and shaving him and were not cleaning his dentures daily or adequately. They were also not attending adequately to his laundry. Arthur was often smelly, dressed in dirty clothes and had no clean clothes to wear. His room was also unclean and untidy. Arthur was upset by the lack of hygiene and cleanliness. Lisa brought these matters to James Campbell's attention following which we were permitted to shower, shave and dress Arthur and to clean his dentures.”	Form, hearsay	Inadmissible
22(s2-s6)	"However, as the in-house general practitioner did not attend to Arthur adequately, with James Campbell’s permission, Lisa commenced taking Arthur to the general practitioner's private rooms and then to her own general practitioner. Lisa also drove Arthur to and from and accompanied him to his specialist appointments including those with his cardiologist, dentist, optometrist, hearing specialist and various cognitive assessments arranged by James Campbell. She attended the in-house doctor for Arthur's vitamin B12 injections and to ensure Arthur had his annual flu injections. She attended and remained with Arthur during various hospital admissions and drove him to and from the hospital when possible. I believe that Arthur, having difficulty trusting people and being somewhat resistant to and scared of medical intervention, would not have allowed medical staff to treat him without Lisa's presence and reassurance. In fact, List arranged eye surgery for Arthur which he backed out at the last minute, being afraid to undergo the procedure."	Form, hearsay, opinion	Inadmissible
23	"Lisa encouraged Arthur to take his medication, attend his medical appointments, do his physiotherapy exercises and eat well"	Form, opinion	Inadmissible
24	"Lisa brought Arthur a new wardrobe of clothes and shoes, having previously had few, old and ill-fitting clothes. She arranged for him to have regular haircuts, and manicures and pedicures when required. These things meant a lot to Arthur who took pride in his appearance and was a very clean man. I believe this helped to restore Arthur's dignity"	Form opinion, submission	Inadmissible
25	"Arthur missed his apartment in St Kilda and, for the first few years, he often spoke of his desire to return to live there. Lisa furnished his room, organising for some of his furniture to be moved from his apartment to his room and buying some new items. She hung old pictures on his wall and played his favourite music. She tried to make his room as comfortable and homely as possible. Over time, Arthur became less home sick."	Form, hearsay, opinion	Inadmissible
26	"Lisa did everything she could to make Arthur happy and content. There were small things she did for him, such as buying his favourite slippers, which made him very happy."	Form, hearsay, opinion	Inadmissible
27	"Lisa initiated several interventions for Arthur in an attempt to improve his health and well-being. These included organising prescription glasses and hearing aids and purchasing a walker and a wheel chair. She also organised and attended the requisite medical appointments with Arthur"	Form, hearsay, opinion	Inadmissible
28	"Lisa also recommended and implemented many strategies in respect of Arthur's health and well-being. These included the manner in which Arthur's dentures were to be cleaned, seating Arthur in the same chair in the dining room to reduce his confusion and improve his food intake, having Arthur wear pressure stockings to reduce leg swelling and ensuring he was put to bed rather than being left in his armchair to sleep"	Form, hearsay, opinion	Inadmissible
29	"Arthur could be a very stubborn man and refused several interventions including getting dentures fitted, wearing hearing aids and using his walker. However, with Lisa's gentle encouragement over several years, Arthur agreed to getting dentures. The dentures improved his ability to eat and his diet and he gained some weight. Arthur was initially resistant to using his walking frame unless with Lisa. And he only wore his hearing aids when Lisa was with him.	Form, hearsay, opinion	Inadmissible
30	"I believe the medical and specialist consultations organised and attended by Lisa and the medical interventions and strategies she recommended and implemented greatly improved Arthur's quality of life, health and well-being"	Opinion, submission	Inadmissible
31	"Lisa made contact with Arthur's family and friends to extend his very limited social circle, Arthur rarely participating in in-house activities offered by the nursing homes and having very few nursing home resident friends. Arthur had one regular visitor, Peter Hollasbacher, who was on of Arthurs few life-long friends. However, Lisa organised for outings to visit some of Arthur's long-life friends including Mela Camobreco who resided next to Arthur's old factory in Airport West and Ron Hampton who also ran a business near Arthur's old factor. Lisa also assisted Arthur to make telephone contact with his sister, Hedwig Losel, and nephew, Herbert Losel, who resided in Germany and to send them birthday and Christmas cards"	Form, opinion, submission	Inadmissible
32	"Lisa ensured that Arthur's outings were all about Arthur. We took Arthur to his favourite places and those he wished to visit including drive-bys of his old factory in Airport West and apartment in St Kilda , the St Kilda botanical gardens and the St Kilda Library. Arthur enjoyed walks in the Gardens, sitting by the pond and talking. He loved researching historical subject matters at the Library. We took him to eat at his favourite places including McDonald's and Leo's in St Kilda for breakfast, and when permitted by Hamble Court, for lunch at Lygon Street in Carlton, Pellegrini's in Melbourne, the Fish and Chip Shop on Acland Street and various hotels such as the Balaclava, Dick Whittington and the Elsternwick. These outings assisted with Arthur's depression and he always seemed to return from them with a smile on his face"	Form, opinion, submission	Inadmissible
33	"Lisa organised and accompanied Arthur on several excursions including a short trip to Sydney which they both enjoyed immensely."	Form, opinion, submission	Inadmissible
35(s3-s4)	"However, on several occasions, we both communicated our concerns to James Campbell in respect of the care and medical attention given to Arthur at the nursing homes, at the risk of losing our jobs. We treaded a fine line - on the one hand, we dearly wishes to improve areas of concern for Arthur, but, on the other hand, we did not want Arthur to lose us as carers who genuinely cared for him."	Form, hearsay, submission	Inadmissible
36	"In 2011, with James Campbell's consent, Lisa initiated a search for a new nursing home for Arthur as a result of ongoing, unresolved problems in Arthur's care and medical treatment at Hampton Court. Lisa spend many hours visiting several nursing homes in her own time, resulting in Arthur being transferred to Regis."	Form	Inadmissible
37	"Lisa also communicated regularly with the nursing home staff to raise matters of concern regarding Arthur at the risk of alienating herself from the staff. For instance, she regularly liaised with in-house carers about showering and personal hygiene concerns. She liaised with laundry staff about laundry concerns. In 2011, the days which Lisa and I could take Arthur on outings was reduced by James Campbell due to Arthur having a number of falls. As a result, Arthur became increasingly depressed and his eating reduced markedly, the outings having been the highlight of his days. Lisa and I went to great lengths to keep Arthur physically and mentally occupied within the confines of the nursing home. It was a very difficult year for Arthur, Lisa and myself. In an attempt to have the decision reversed, Lisa liaised regularly with Regis' lifestyle co-ordinator and James Campbell, finally resulting in Arthur's daily outings being resumed a year later."	Form, hearsay, opinion	Inadmissible
38(s1)	"Each year Lisa asked Arthur what he would like to do for his birthday and she organised it."	Form, hearsay	Inadmissible
39	"In 2012, Lisa went to great efforts to organise Arthur's 90th birthday at Milan's which was attended by most of our family, Peter Hollasbacher, some of Arthur's other friends and some of the nursing home residents. Arthur appeared to truly enjoy himself."	Opinion	Inadmissible
40	"Arthur became part of our family and, I believe, Arthur became very fond of our family too."	Opinion, submission	Inadmissible
41	"If Arthur was unsure about something he often said, "Ask Lisa." I believe Arthur had total confidence that Lisa would make decisions in his best interests and that she had complete integrity, as did I"	Opinion, submission	Inadmissible
42	"Lisa spent many hours of her own time organising Arthur's funeral and she did it with much loving care and attention. She located a suitable resting place for him, organised the grave, headstone, service and burial. She organised for his favourite flowers and had his favourite saying engraved on his headstone, "I did it my way"	Opinion, submission	Inadmissible
45	Arthur's passing had a profound impact on Lisa"	Opinion	Inadmissible
46	"During 2008 to 2011, Arthur often asked me to take him to a solicitor so that he could make a will stating, "I want to leave everything to Lisa." He told me he had made a will leaving his estate to his nephew, Herbert Losel, but his wished to cancel the Will. He said that he did not trust anyone in his family and did not want his family to take his estate. He told me that he had attended a solicitor in Prahran to cancel the will but he did not know the state of his financial affairs and he feared and presumed that Herbert would eventually succeed in gaining his estate"	Form, hearsay	Inadmissible
47	"On a few of the occasions that Arthur asked me to take him to a solicitor to make a will leaving his estate to Lisa, he said that he wished to help me financially too. He said this too if, in conversation, I complained about how much something cost, such as the cost of my car repairs."	Form, hearsay	Inadmissible
48	"Lisa informed me that, on several occasions, Arthur had also requested she take him to a solicitor to make will as he wished to leave his estate to her. We both believed it was unethical too and told Arthur the same. Neither of us took him to see a solicitor."	Form, hearsay	Inadmissible
49(s1)	During the last two(2) years of his life, Arthur did not repeat his request to me in respect of making a will."	Form, hearsay	Inadmissible
49(s2)	"I believe that Arthur came to accept that he was unable to make a Will and gave up trying to do so."	Speculation	Inadmissible
50(s6-s7)	"He was usually lucid, logical and reasonable and could maintain a sensible conversation. He was intelligent, stubborn, wary and not easily coerced."	Opinion	Inadmissible

Affidavit of Michelle Di Donna sworn 2 August 2017

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
2(s1-s4)	"In reply to paragraph 22 of James' affidavit, I say that I believe that Arthur did not trust James. To be fair, Arthur did not trust most people. I believe that this was the case even prior to Arthur becoming unwell in 2005, noting the unusual manner that James and Arthur communicated during the fifteen (15) year period from 1991 to 2005 as detailed in paragraphs 6 to 10 of James' affidavit. I believe that this continued to be the case after Arthur became unwell and up to his death."	Opinion, speculation	Inadmissible
2(s5-s7)	"In the early days I worked with Arthur, he told me that, just prior to becoming well and being hospitalised, when he telephoned James and told him that his nephew, Herbert Losel, had taken documents from him and he had requested James assist him, James did not help and merely referred him to the police. Arthur mentioned these things on several occasions and was very angry about them."	Form, hearsay	Inadmissible
2(s8)	"..but, in my mind this is irrelevant, as Arthur believed them to be true and did not trust James"	Opinion, speculation	Inadmissible
2(s9)	"Further, Arthur's lack of trust of James was added to when James refused to inform him of his finances , a request Arthur made of James on several occasions during the period I worked for him"	Hearsay	Inadmissible
3(s3-s10)	"Hamble Court's care of Arthur was lacking in many ways. This included not having Arthur showered, dressed and ready for Lisa and me to take him out, often finding him still in bed. As Arthur liked to be showered before going out, we were required to attend to this, which impacted on the time available and plans for Arthur's outings. Another problem area was a lack of clean clothes for Arthur to wear. Arthur requested Lisa and I mention to the staff the problems with the care administered. And we did so. I believe that I was always, friendly, polite and respectful when relaying Arthur's concerns to Hamble Court staff. I believe Lisa was too. Further, Lisa and I picked up much of the slack to assist the staff in the performance of their care duties to ensure Arthur received the care he paid to receive."	Form, hearsay, opinion	Inadmissible
3(s14)	"Hamble Court staff may not have liked that we complained of the care administered by them, but Lisa and I were merely heeding Arthur's request to report the same, which would not have been required had the care duties been administered in the first place or administered adequately."	Opinion, speculation	Inadmissible
4(s1-s3)	"In reply to paragraphs 35 and 36 of James' affidavit, I say that, notwithstanding that Regis was a more expensive aged care facility than Hamble Court, I believe it was not a high quality facility. Arthur experienced the same problems at Regis as he had at Hamble Court with respect to provision of care services. I believed this was due to under-staffing. "	Opinion	Inadmissible
4(s5)	"I do not believe that Regis addressed them or addressed them adequately."	Opinion	Inadmissible
4(s6-s9)	"I believe that Arthur had exhibited signs of kidney infection and failure for a long time and was not treated. I believe that Arthur died prematurely from a treatable illnesses. As a registered nurse who has worked in several hospitals and nursing homes, I do not consider Regis to be a high quality facility at all."	Opinion	Inadmissible
5	"In reply to paragraph 41 of James' affidavit, I say that Arthur did inform me that he wished to make a will and I refer and repeat paragraphs 46 to 47 of my affidavit in this regard. Further, I say that Lisa also informed me that Arthur told her that he wished to make a will and I refer to an repeat paragraph 48 of my affidavit in this regard. However, I never informed James that Arthur wanted to make a will because Arthur told me that he wanted to leave everything to Lisa, and I did not feel comfortable telling James this. I believe that Lisa felt the same away and also did not tell James."	Form, hearsay	Inadmissible
6(s1-s3)	"In reply to paragraph 64 of James' affidavit, I say that Lisa performed many tasks beyond the companion duties that were assigned to her. In this regard I refer to paragraphs 17 to 31 of my affidavit. Lisa was not remunerated for the additional tasks she completed."	Opinion, form	Inadmissible
7	"In reply to paragraph 66 of James' affidavit, I say that although Lisa was not a qualified nurse or carer, she had previously worked as a nursing aide in nursing homes, and, by the time she started working with Arthur, had been a carer of her very ill son (who suffers from autism, learning difficulties and epilepsy) for some twelve (12) years. As such, I believe that Lisa had sufficient work and life experience to perform, not only the companion duties assigned to her, but also the carer tasks she performed. And, I believe that she performed them impeccably and with genuine dedication, care and compassion."	Form, opinion	Inadmissible
8	"In reply to paragraph 69 of James' Affidavit, I say that I would not be surprised if the kilometres claimed by Lisa were increasing in 2009. I think mine were too. Arthur became bored of going to the same placed and wanted to visit new places. We acceded to his wishes."	Form, opinion, speculation	Inadmissible
9(s3)	"I believe that Lisa also felt she did the same" (in reference to exceeding paid kilometres of travel as Arthur was more important)"	Speculation	Inadmissible
14(s1)	"In reply to paragraph 118 of James' affidavit, I say that Lisa (and I) spent many unpaid hours with and in respect of Arthur for which we did not request payment, and therefore, there was no need to inform James of the same. "	Form, opinion	Inadmissible
14(s5-s7)	"I am aware that Lisa often waited for nursing home staff to administer Arthur's vitamin B injection, medications and medical intervention so that Arthur would co-operate. She waited to speak with nursing home management and various health providers. She completed paperwork on Arthur’s behalf."	Form	Inadmissible
16(s3)	"However, we both informed James that, at times, Hamble Court and Regis did not have any clean clothing for Arthur"	Form	Inadmissible
17	"In reply to paragraph 147 and 148 of James' affidavit, I say that it was Lisa who instigated refurbishment of Arthur's room. It was her idea, not James'. It was she who organised and accompanied Arthur when furniture shopping. In fact, if Arthur needed or wanted anything at all for that matter, it was Lisa he asked and Lisa always did her best to make it happen. She would speak to James, request his permission and, if it was given, she would do what was necessary to get things done. Although Arthur paid for items and services from his funds, he would not have had the benefit of them without Lisa's efforts. This applied to his clothing, walker , frame, dentures, spectacles, hearing aids, physiotherapy treatment and the like. It included the plants purchased whilst Arthur was at Regis referred to in paragraphs 159 and 161 of James' affidavit. And it also included the transfer of Arthur's double bed from his apartment in St Kilda to his room at Hamble Court, which Lisa requested be done on Arthur's behalf, referred to in paragraphs 163 to 165 of James' affidavit. This was because Arthur continuously complained to Lisa and me that the bed at Hamble Court was uncomfortable and that he wanted his own bed."	Form, opinion	Inadmissible
18(s2)	"..and I suspect he was unaware of same" (re James’ knowledge of the gits Lisa and Michelle purchased for Arthur)	Speculation	Inadmissible
19	"In reply to paragraph 162 of James' affidavit, I say that I recall Lisa telling me she had received a watch and matching bracelet as a gift from Arthur, which James had purchased from Arthur's funds.	Hearsay	Inadmissible
20(s2-s4)	"Arthur had a legitimate right to receive the care services he paid Hamble Court to provide and to complain if they were not provided. Lisa and I felt obliged to bring Arthur's complaints to the attention of the staff as he requested we do so. We were uncomfortable about doing this but did so believing it was in Arthur's best interest"	Opinion, submission	Inadmissible
22(s1)	"In respect of James' letter to Lisa, me and Wilhelmina dated 29 January 2009, comprising Exhibit "JC26", I say that I believe that the letter was the result of Lisa's request to James put in writing the duties she and I were to perform and those that were the responsibility of Hamble Court staff so that there would be no further issues in this regard"	Speculation	Inadmissible
22(s2)	"However, although Lisa’s and my duties and those of Hamble Court staff were clarified, there remained ongoing problems with Hamble Court providing particular care services inadequately or not all, still requiring Lisa and me to pick up the slack"	Opinion	Inadmissible
25(s3-s5)	"James said he thought a lot of people would be trying to make a claim on Arthur's estate and he suggested Lisa and I also make a claim. James said that he thought Lisa and I had been such great carers for Arthur that we had extended Arthur's life by several years. That was the only time, to my recollection, that I ever discussed Arthur's estate with James"	Hearsay	Inadmissible

Affidavit of Eric Disney Katz sworn 2 February 2017

Paragraph/ Sentence	Text	Basis of objection (in addition to relevance)	Conclusion
12(s1)	"To me it appeared that Arthur was very reliant on Lisa and she was a large part of his life."	Opinion	Inadmissible
13(s1-s2)	"Arthur's outings were always about what Arthur wanted. I am aware Lisa took him places he wished to go, for example, to the property at St Kilda where he used to live and to McDonald's for a coffee and a hash brown."	Form, opinion	Inadmissible
14(s2)	"She ensured he was given the meal he had ordered, encouraged him to eat and kept him company"	Form	Inadmissible
15(s2)	"She was patient, caring and always treated Arthur with respect."	Opinion	Inadmissible
16(s5)	"Some as simple as having the appropriate clothing ready for Arthur meant that Arthur felt dignified and ready for the day and contributed to his routine"	Opinion	Inadmissible
18(s1)	"Lisa did her utmost to ensure that all aspects of Arthur's care were performed correctly by those who attended him."	Opinion	Inadmissible
18(s2-s4)	"Form example, she spoke to me about the need to remove Arthur's dentures from his mouth to clean them. She was diplomatic about the matter but monitored that I attended to the task and that I attended to it adequately. On another occasion when I had removed Arthur's breakfast tray from his room, Lisa requested that I put it aside elsewhere in his room so that Arthur could eat if he became hungry later and so that she could monitor what he was eating. "	Hearsay	Inadmissible
20(s3-s5)	"Lisa was able to coax him to wear suitable clothing. I believe that this spoke of Lisa's loving persistence for Arthur-she was the only one that had "that kind of influence" on him. But it also spoke of Arthur's love and respect for Lisa who he did not wish to disappoint."	Form, opinion	Inadmissible
21(s6)	"…was fully aware that the celebration was in honour of his 90th birthday and was extremely happy."	Form, opinion	Inadmissible
24(s4-s6)	"Arthur and Shelly got along well. However, there was a very special and close bond between Arthur and Lisa. I believe that Arthur "took a very special liking to" Lisa and considered her "like his daughter"."	Opinion, submission	Inadmissible
25(s1-s2)	“For the first year I attended to Arthur, I mistakenly assumed that Lisa was Arthur's daughter. I made the assumption on the basis of the interaction I observed between Lisa and Arthur as detailed above in my Affidavit."	Form, submission	Inadmissible
26	"I was most surprised to learn that Lisa was not Arthur's daughter. I recall when I mentioned to another staff member that Lisa was Arthur's carer, not his daughter, that person also expressed disbelief."	Form, hearsay	Inadmissible
27(s1)	"I was also somewhat disappointed to learn that Lisa was not Arthur's daughter. "	Form, opinion	Inadmissible
27(s2-s4)	"Arthur was a good, decent man and he deserved to have a child to have looked after, cared for and loved him in his ailing years as Lisa had. In fact, he had no children at all. I believe he was most fortunate to have had Lisa in his life, who, in my eyes, treated Arthur as a most loving daughter would her father."	Form, opinion	Inadmissible

Affidavit of Matcha Patsak sworn 9 February 2017

Paragraph/ Sentence	Text	Basis of objection in addition to relevance	Conclusion
5(s2)	"Lisa regularly bought Arthur new clothes when required."	Form	Inadmissible
9(s1)	"Lisa persisted with care, patience and love and Arthur responded and listened to Lisa to achieve results that others could not or had difficulty achieving with Arthur."	Opinion	Inadmissible
10	"Of a morning, Arthur often said to me that he was waiting for Lisa to arrive. When confused, I often heard him asking for Lisa and looking for her."	Form, hearsay	Inadmissible
11(s1-s7)	"Arthur often spoke to me of special things Lisa had down with him. He toppled me that they had gone away together to Sydney and Dromana and that Lisa had cared for him during these trips. He spoke of Christmas lunches with Lisa and her family. He spoke of these fondly and always smiled when he recounted these memories. He also showed me the photographs of his 90th birthday party, organised by Lisa. He clear had happy memories of this occasion. And as it was on these occasions..."	Form, hearsay	Inadmissible
13(s1)	"Lisa monitored me to ensure I performed my duties well for Arthur."	Opinion	Inadmissible
14(s2)	"She requested I keep an eye on him - that I check that he had eaten his meals, that I buy him fresh fruit, that I tidy his wardrobe and check that dirty clothes not been placed in it and that the paper next to Arthur's telephone with her telephone number on it not to be thrown away by the clearers as Arthur sometimes rang her when she was on leave"	Form, hearsay	Inadmissible
16(s6-s7)	"Lisa was terribly upset. It was most touching and, at that moment, they could not have been more close than a father and a daughter"	Form, opinion, submission	Inadmissible

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Evidence Act 2008, s 76; see eg Matthews v SPI Electricity Pty Ltd [2012] VSC 340 (13 August 2012)

[7]–[11].

[2017] VSC 686

14 November 2017