Saunders v The Public Trustee

Case [2015] WASCA 203


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SAUNDERS -v- THE PUBLIC TRUSTEE [2015] WASCA 203

CORAM:   BUSS JA

BEECH J
MITCHELL J

HEARD:   14 AUGUST 2015

DELIVERED          :   6 OCTOBER 2015

FILE NO/S:   CACV 16 of 2014

BETWEEN:   VALERIE SAUNDERS

Appellant

AND

THE PUBLIC TRUSTEE
First Respondent

DAVID HOFFMAN
Second Respondent

JUDITH MARGARET HOFFMAN
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :EM HEENAN J

Citation  :THE PUBLIC TRUSTEE -v- ROYAL PERTH HOSPITAL MEDICAL RESEARCH FOUNDATION INC [2014] WASC 17

File No  :CIV 1154 of 2010

Catchwords:

Appeal - Contentious probate jurisdiction - Grant of probate in solemn form - Testamentary capacity

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent          :     Ms C F Holyoak-Roberts

Second Respondent      :     Mr R J Nash

Third Respondent        :     In person

Solicitors:

Appellant:     In person

First Respondent          :     Public Trustee (WA)

Second Respondent      :     Public Trustee (WA)

Third Respondent        :     In person

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Banks v Goodfellow (1870) LR 5 QB 549

Clark v Ryan (1960) 103 CLR 486

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 203

Devereaux-Warnes v Hall [2006] WASCA 268

Doyle (WA) Pty Ltd v ING Real Estate Joondalup BV [2014] WASCA 215

Easter v Griffith (1995) 217 ALR 284

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182

H v P [2011] WASCA 78

Jones v Darkan Hotel [2014] WASCA 133

Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460

Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359

Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Miller & Associates Insurance Broking Pty Ltd [2010] HCA 31; (2010) 241 CLR 357

Minister for Immigration v Hamsher (1992) 35 FCR 359

Moore v Minister for Immigration [2007] FCAFC 134; (2007) 161 FCR 236

Public Trustee v Stretch [2002] WASC 147

R v Bonython (1984) 38 SASR 45

R v GP (1997) 18 WAR 196

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403

Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525

S v D [2014] WASCA 224

Sami v Minister for Immigration [2013] FCAFC 128

Shire of Gingin v Coombe [2009] WASCA 92; (2009) 169 LGERA 236

Trajkoski v Director of Public Prosecutions (WA)

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AGLC
Saunders v The Public Trustee [2015] WASCA 203
Case
[2015] WASCA 203
Decision Date

CaseChat Overview and Summary

In Saunders v The Public Trustee, the appeal before the court concerned the grant of probate in solemn form to the will of the deceased, John Saunders. The primary issue was whether the deceased had testamentary capacity at the time he executed the will. The executor, who was also the respondent, argued that the deceased lacked testamentary capacity due to dementia, while the appellants, who were relatives of the deceased, contended that the deceased had the necessary mental capacity to execute the will.

The legal issues before the court involved the interpretation of Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) and the exercise of the court’s discretion to admit additional evidence under Rule 47(3)(d). The court had to determine if the discretion to admit new evidence should be exercised in this case, considering the public policy interest in the finality of litigation and whether the evidence was truly fresh and could not have been discovered with reasonable diligence at the time of the trial.

The court held that the discretion to admit additional evidence must be exercised judicially, considering the finality of litigation and whether the evidence was truly fresh. The court found that the evidence presented by the appellants was not sufficiently fresh or could have been discovered with reasonable diligence, and therefore, the discretion should not be exercised. The court also noted that there was no error in the primary court’s decision to grant probate in solemn form, as the evidence at trial supported the conclusion that the deceased had testamentary capacity.

The final orders of the court were that the appeal against the grant of probate in solemn form was dismissed, and the costs of the appeal were awarded to the respondent. The court declined to admit the additional evidence proposed by the appellants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEECH J

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Ratio Decidendi

Legal Principle Established

Established by: BEECH J

Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) provides for the appeal to be by way of rehearing. Provision for the appeal to be by way of rehearing connotes that:1.The court can receive further evidence and its powers are not restricted to making the decision which should have been made at first instance.2.The appeal is usually conducted by reference to the evidence given at first instance.3.Ordinarily, and absent further evidence or a relevant change in the law, this court can exercise its appellate powers only if satisfied that there was error on the part of the primary court.[5][5] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 203 [13] ‑ [14]. Rule 47(3)(d) of the Rules provides that a single judge has jurisdiction to make an order relating to the admission of additional evidence, either before or at the hearing of the appeal, by the Court of Appeal. This rule has been construed as conferring a statutory discretion on the Court of Appeal (whether or not constituted by a single judge) to make an order admitting new evidence.[6] While the rule does not contain any words limiting or governing the exercise of that discretion, the discretion to admit fresh evidence must be exercised judicially.[7][6] Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [35]; Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [9].[7] Lunt [35]. It may be that the source of the statutory discretion is better understood as being inherent in the provision by r 25 for an appeal to be by way of rehearing. On that view, r 47(3)(d) would empower a single judge to make case management directions in relation to the admission of evidence, for the purposes of s 61(1) of the Supreme Court Act. However, whatever the source of the power, the existence of the court's power to admit additional evidence is well established.[8][8] Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222 [39]. In deciding whether to allow an applicant to adduce additional evidence on an appeal against a final decision made after trial, the strong public interest in the finality of litigation will be an important consideration. That public policy provides a powerful reason for strictly confining the circumstances in which a party on appeal will be allowed to augment the evidence led at trial. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.[9][9] Devereaux-Warnes v Hall [2006] WASCA 268 [2], [26]. Another important consideration will be whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or which could not have been discovered with reasonable diligence at that time.[10] Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense, particularly where the evidence has been deliberately withheld at trial.[11][10] Lunt [36].[11] Goninan [12]. See by analogy Sami v Minister for Immigration [2013] FCAFC 128 [7], citing Moore v Minister for Immigration [2007] FCAFC 134; (2007) 161 FCR 236 [4] ‑ [7].