Skinner v Frappell

[2008] NSWCA 296

New South Wales

Court of Appeal

CITATION:	Skinner v Frappell [2008] NSWCA 296
HEARING DATE(S):	12 September 2008
JUDGMENT DATE:	12 November 2008
JUDGMENT OF:	Basten JA at 1; Campbell JA at 18; Young CJ in Eq at 24
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL- Decison on fact- Powers of review by appellate courts discussed. - SUCCESSION- Appellant seeks revocation of probate or provision under Family Provision Act on basis of "compelling inferences"- Trial judge declines to draw inferences and dismisses claims- Held judge did not commit appealable error in so doing.
LEGISLATION CITED:	Family Provision Act 1982, s 6 Interpretation Act 1987, s 34
CATEGORY:	Principal judgment
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 Chambers v Jobling (1986) 7 NSWLR 1 CSR Ltd v Della Maddalena (2006) 86 ALJR 458 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 Dearman v Dearman [1908] HCA 87; 7 CLR 549 Devries v Australian National Railways Commission [1993] HCA 72; 177 CLR 472 Fox v Percy [2003] HCA 22; 214 CLR 118 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Jones v Hyde [1989] HCA 20; 63 ALJR 349 London Bank of Australia Ltd v Kendall [1920] HCA 53; 28 CLR 401 Paterson v Paterson [1953] HCA 74; 89 CLR 212 Petrohilos v Hunter (1991) 25 NSWLR 343 SS Hontestroom v SS Sagaporack [1927] AC 37 The Alice (1868) LR 2 PC 245 The Glannibanta (1876) 1 PD 283 Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 Warren v Coombes [1979] HCA 9; 142 CLR 531 Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 71 ALJR 29
PARTIES:	Anthony Robert Skinner (A) Helene Marie Frappell (R1) Leslie Frappell (R2)
FILE NUMBER(S):	CA 40800/07
COUNSEL:	R W Evans and J Whyte (A) L J Ellison SC (R)
SOLICITORS:	Lee Hourigan and Brooks (A) Bradley J Smith (R)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2626/06
LOWER COURT JUDICIAL OFFICER:	McDougall J
LOWER COURT DATE OF DECISION:	25 October 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Skinner v Frappell [2007] NSWSC 1241 Skinner v Frappell (No 2) [2007] NSWSC 1244

CA 40800/07
SC 2626/06

BASTEN JA
CAMPBELL JA
YOUNG CJ in EQ

Wednesday 12 November 2008

SKINNER v FRAPPELL

Judgment

1 BASTEN JA: Pursuant to a will made by John Robert Skinner six days before his death on 1 November 2004, the first respondent, his sister Helene Marie Frappell, took the whole of his estate. The appellant, being the grandson of the deceased, sought to challenge the will on the basis that it was procured by the first respondent’s fraud or that it was subject to a secret trust and otherwise made a claim under the Family Provision Act 1982 (NSW). The appellant was unsuccessful at trial: see Skinner v Frappell [2007] NSWSC 1241 (McDougall J).

2 The background and circumstances of the case are sufficiently recounted in the judgment of McDougall J and, in this Court, in the judgment of Young CJ in Eq. I agree with his Honour’s conclusion that the appeal should be dismissed and that the appellant should pay the respondents’ costs of the appeal. I also agree with his Honour’s reasons other than the discussion with respect to review of findings of fact at [59]-[70], which I address below.

3 This is a case which turned in critical respects on what happened in the home of the deceased, especially between 31 October and 2 November 2004. The primary judge made findings based upon the evidence of various witnesses, including Mrs Frappell, which the appellant challenged.

4 In 1953, after discussion of the authorities, Dixon CJ and Kitto J said of the rules relating to appellate review of facts found by a judge sitting without a jury in a civil trial that they “are formulated in the foregoing cases with such variety of detailed expression but with such identity of substance” that they led to an inevitable conclusion that the Court had to abide by the finding of trial judge: Paterson v Paterson [1953] HCA 74; 89 CLR 212 at 224. To similar effect, McHugh J stated in Fox v Percy [2003] HCA 22; 214 CLR 118 at [93] that doctrines of appellate review “have remained unchanged for over a century”. However, the frequent need to restate the doctrines and the fact that there is “variety of detailed expression” suggests that the principles are either uncertain or difficult to apply, questions of immutability aside. There are a number of reasons why this is so.

5 First, whenever principles are expressed in different language from that previously adopted, there is an understandable tendency to ask whether there has not been, at the very least, a change in emphasis or direction. Whether or not such a change was intended will give rise to contending submissions by parties in whose interest it is to promote one view or the other.

6 Secondly, it is difficult to resist the view that the barrier to appellate intervention is put at a higher level in some explanations than in others. That point is illustrated by Callinan J in Fox v Percy at [131]-[138] notably by reference to the judgment of Isaacs J in Dearman v Dearman [1908] HCA 84; 7 CLR 549 and the joint judgment of Isaacs and Rich JJ in London Bank of Australia Ltd v Kendall [1920] HCA 53; 28 CLR 401; a comparison which was addressed quite differently by McHugh J in Fox v Percy at [69]-[72]. The joint judgment in Fox v Percy, whilst affirming the principles stated in Jones v Hyde [1989] HCA 20; 63 ALJR 349 at 351-352, Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at 179 and Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479, 482-483, also noted the dangers of placing too much weight upon the demeanour of witnesses, suggesting the possibility of flexibility in some circumstances: at [26]-[27] and [30]-[31].

7 Thirdly, care is not always taken, either in expression or in application, to maintain the distinction between appellate challenge to findings of primary fact and to the drawing of inferences from facts admitted or found. Referring to Warren v Coombes [1979] HCA 9; 142 CLR 531, which was not cited in Abalos or Devries, McHugh J identified the two issues as “quite different”: Fox v Percy at [89]. There may, nevertheless, be circumstances where the dichotomy proves “artificial” in practice: cf Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502 (Gibbs J).

8 Fourthly, while it is beyond dispute that the appellate court must defer to the advantages of the trial judge in assessing the testimony of witnesses, the degree of deference depends upon a number of factors which are not clearly distinguishable but tend to merge into each other. It is frequently said that findings may be based upon assessments of credibility or reliability or, more diffusely, matters of impression. Each of these three concepts covers a range of factors. For example, an assessment of credibility may range from a conviction that a witness is lying, to a degree of uncertainty as to whether or not the witness is telling the truth. The assessment may relate to a specific question and answer, to a subject matter, or to the whole of the witness’ testimony. These distinctions are matters of importance when countervailing factors are placed in the balance.

9 Fifthly, the countervailing factors have also been described at differing levels of intensity. As was recognised by the joint judgment in Fox v Percy at [28], different emphasis may well result “by reference to considerations particular to each case”. Their Honours noted that, in particular cases, “incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings”. Their Honours continued at [29]:

“In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case.”

10 At the same time, the joint judgment acknowledged that “mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence”: at [24]. The Court further recognised that it was the duty of an appellate court to correct such mistakes. The question will remain in any particular appeal whether there has been a serious mistake, perhaps involving the overlooking of uncontested testimony, or whether the trial judge consciously discarded the uncontested testimony, for a reason not fully articulated in the judgment.

11 Sixthly, there is a greater tendency in recent case-law to pay attention to the precise terms of the statutory language conferring powers on the appellate court. Like the traditional principles governing the exercise of the discretion with respect to costs, established principles may need to be reassessed in the light of changes to statutory provisions. So much is expressly recognised in Fox v Percy at [21]-[23] and [27] (Gleeson CJ, Gummow and Kirby JJ) and at [127], [134], [136]-[137] and [143]-[148] (Callinan J).

12 By way of example, it has long been accepted that an appeal to the High Court is an appeal in the strict sense and not an appeal by way of rehearing or an appeal de novo: Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109-111 (Dixon J). Yet in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506, an appeal directly from the Chief Justice of Queensland to the High Court, Barwick CJ stated at 506:

“The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong.”

13 Whether his Honour was speaking generally, or by reference to an appeal to the High Court, may not be entirely clear, but the latter is the more likely reading. Accordingly, whether the same principle was intended to apply to a court conducting a rehearing is not clear. Of the other members of the Court, McTiernan J described himself as agreeing “substantially” with the reasons of Barwick CJ (at 507) and Owen J dissented. Neither member of the majority discussed the statutory basis of the appeal.

14 In Warren v Coombes, at 542-543, this passage, quoted in its full context, was described by the majority as heralding “a new approach”, at least to the question of appellate review of inferences from facts which are established or not in doubt. As was noted in Warren v Coombes, Barwick CJ affirmed his views set out in Whiteley Muir, in Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 199 where his Honour stated:

“However, there remains the question whether the primary judge was wrong in concluding that the appellant failed to take reasonable care for his own safety and that this failure contributed to his resulting injury. For my own part, had I the initial task of deciding that question I would conclude that the appellant did not fail to take care for his own safety when he placed his weight on the sheet of iron. … However, this is an appeal. My own view as to the limits within which the appellate court ought to confine itself in reviewing findings of fact have been expressed elsewhere. See Whiteley Muir and Zwanenberg Ltd v Kerr …. Further reflection has not caused me to modify that view.”

15 The comments of Barwick CJ in Da Costa were made in the context of reviewing inferences, but were described as principles confining the review of “findings of fact”. What precise aspect of Whiteley Muir was disapproved in Warren v Coombes is unclear; nor was this an issue addressed in Fox v Percy. It was treated by Kirby J in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 at [113] as one of the “attempts in this Court thirty years ago to impose on appeals from judgments of trial judges strictures similar to those observed in appellate consideration of jury verdicts”. His Honour described the attempts as “well and truly stopped in their tracks by Warren v Coombes”. (Compare Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 71 ALJR 29 at 31, where the Court treated Whiteley Muir as having been “followed” in Warren v Coombes, at least in part.)

16 Seventhly, a different exercise may need to be undertaken where a challenge is mounted against the acceptance of specific testimony, from that where the challenge is against rejection. In the present case, there was no testimony or factual material, incontrovertible, uncontested, or contested but accepted by his Honour, which demonstrated any degree of inconsistency with the testimony which his Honour accepted. Rather the case for the appellant was mounted upon a more general proposition that the inference to be drawn from a chain of uncontested (and facially neutral) facts rendered the first respondent’s evidence glaringly improbable. There is little doubt that a challenge of this kind faces a high hurdle. That inferences can be drawn from a sequence of events in the absence of, or even contrary to, the assertions of the principal protagonist in the events is illustrated by many criminal cases based on circumstantial evidence. In the present case the circumstantial evidence, even absent the first respondent’s denials, did not provide a persuasive case, even on the balance of probabilities, of fraud or the existence of a secret trust. Nor did they provide a basis for rejecting the testimony of the first respondent, found to be credible by the trial judge.

17 For these reasons, in addition to those given by Young CJ in Eq, I agree that the appeal should be dismissed.

18 CAMPBELL JA: I have had the benefit of reading the reasons of Young CJ in Eq and Basten JA.

19 In light of those reasons no further account of the facts, or issues, is needed.

20 For the reasons given by Young CJ in Eq at [71]-[81], there are no compelling inferences arising from undisputed or decided facts that show that the trial judge was mistaken in being unpersuaded that there was either fraud or undue influence that warranted revocation of the grant of probate.

21 I agree with Young CJ in Eq that there was no cogent evidence of communication to Helene of any purpose or purposes for which she was to hold the estate assets, and thus that the case based on a secret trust fails.

22 I also agree with Young CJ in Eq that the trial judge was correct in holding that the appellant failed to establish dependency, and thus that the claim based upon the Family Provision Act fails.

23 In consequence, I agree that the appeal should be dismissed with costs.

24 YOUNG CJ in EQ: This is an appeal from a decision of McDougall J who dismissed three applications made by the present appellant, the applications being:

(a) An application to revoke probate;

(b) An application for a declaration of a secret trust; and

(c) An application under the Family Provision Act 1982

all in respect of John Skinner (the deceased) who died on 7 November 2004.

25 The background to his Honour’s decision is that John Skinner was born on 29 October 1937. On 11 January 1967, his then wife gave birth to a son, Jason. John Skinner and his wife separated and Jason continued to live with his mother. The deceased remarried, but his second marriage was dissolved in 1979.

26 The son Jason married in 1988 and the appellant was born on 21 May 1989. When he was 9 months old, his father Jason died tragically and accidentally when as a pedestrian he was hit by a motor vehicle. The appellant at all material times lived with his mother and when she remarried in 1993, with his stepfather as well.

27 In recounting the facts, for simplicity and not intending any disrespect, I will refer to the major participants in the case by their first names.

28 Anthony, the appellant had limited contact with John, the deceased. The judge held (vide [72] and [73] of the judgment), that the deceased had no extensive contact with the appellant except at Christmas and on birthdays until 1999. In that year the appellant spent about a week with the deceased during the Christmas holidays and this continued for the next four years until 2003. At that time the appellant became heavily involved in competition soccer and competition tennis and the Christmas visits ceased.

29 From about 1965, John lived in Bundeena, a relatively small and isolated settlement across Port Hacking from Cronulla. He lived alone after his second marriage collapsed. He underwent major heart surgery in July 1999. However, his terminal illness was bowel cancer. He went into hospital on 6 September 2004 to undergo surgery. He was released from hospital on 18 September 2004, re-admitted on 20 October 2004, released to live at home on 25 October 2004, and as I have said, died on 7 November 2004.

30 During his second admission to hospital, John’s sister Helene and her husband Leslie, who ordinarily lived in Jindabyne, came to stay with John at his Bundeena residence and they cared for him until his death.

31 The evidence which the learned trial judge accepted, was that from at least 1990, John had discussed his testamentary intentions with a number of people. On the unchallenged evidence of some of these people, John said he wished to give the bulk of his estate to Anthony. In the last two years of his life, John told a number of people that he wished to leave the residue of his estate to Anthony after providing legacies for a number of Anthony’s friends and children of John’s friends.

32 On one occasion in February 2004, he said to Mr Richard Carter, a nearby neighbour, and Mr Carter’s evidence on this was unchallenged, that he wished to give legacies of $30,000 each to some 10 younger people, and to leave the rest of his estate to Anthony. Some of these legatees were identified by name, and others by description.

33 However, John was troubled at the thought that Anthony might squander any inheritance that he might receive and John was also concerned that Anthony’s mother might gain access to the legacy and squander it. Thus, he was looking for ways to tie up his estate until Anthony reached a more mature age, sometimes said to be 25, sometimes 28, or even 30. However, John never consulted any lawyer about this.

34 The learned judge accepted evidence that during 2004, John made three wills. These were referred to in the judgment as the three “Carter” wills and I will continue to use that terminology. The respondents did not concede that those three Carter wills had been made, but the judge found that they were.

35 The first was made in February 2004. John asked Mr and Mrs Carter to witness his will; they did so, but they never read the will and they do not know, of course, what was in it. The second will was made in September 2004, again the Carters did not read what they were witnessing. The third will was made on 31 October 2004. The judge said at [28]:

“This time John asked Mr and Mrs Carter to come to his house to witness his will. They assembled at the dining table in John’s house and the signing ceremony took place. Mrs Carter again identified the document as a will form, similar to those signed on the two previous occasions. Neither she nor Mr Carter knew what the will provided. Again, I am satisfied that the document was a will, and was executed as such.”

36 The judge then at paras [32] to [34] of his judgment dealt with matters which counsel for the appellant said were crucial, namely that Helene and Leslie were present when the third will was made. The judge said that whilst Leslie’s evidence accommodated that possibility, Helene denied it. He said at [33]:

“I think it likely that she and Leslie were in the room for at least part of the time when the third will was signed. But I do not find that Helene or Leslie were aware that John was then making a will.”

I will need to return to this matter when discussing the appellant’s counsel’s submissions.

37 John’s last will was made on 1 November 2004. John’s cousin Lynne Kordovolos and her husband Mario Kordovolos visited John frequently during his last few weeks. On one visit, Mr Kordovolos brought a will form with him which he had procured from the Bundeena newsagency and gave it to John. The judge said that that day, or shortly afterwards, John told Mr Kordovolos that he wanted to make a “nice and simple” will in favour of Helene. On 1 November 2004, John asked Leslie to write out John’s will at John’s dictation. Leslie did so. The judge accepted that the dispositive words of the will were almost, if not completely, John’s words verbatim. Mr Kordovolos was present with John and Leslie while Leslie was doing this. Mr Kordovolos and Leslie agreed that after Leslie had completed the will form at John’s dictation, he read it back to John. Mrs Kordovolos entered the room and John signed the will in the presence of Mr and Mrs Kordovolos and they signed as witnesses.

38 Leslie did not tell Helene what had happened, nor did Mr Kordovolos.

39 Helene said that on 2 November 2004, she took some fruit juice in to John and John said: “I’ve got my will here. I want you to put it away so you know where it is for later. …. I have left everything to you. I want you to have Bundeena.” Helene gave evidence that she then said: “Oh John, what about your grandson?” to which John said: “I don’t want him to have anything. Why should I leave him anything? I don’t have any kind of relationship with him. I never see him and he never rings me. I’m the one who does all the phoning and sending him cards on his birthday. But what do I get from him? He isn’t interested in me or cares about me, only what I can do for him, it seems.” Helene said: “I think you’re being a little unfair.” John replied: “Well, did he think to ring me on my birthday? And besides, they don’t even know I am ill. I haven’t heard from him for ages. If he cared about me, he’d be here. You’re the only one that’s ever really cared for me.” At this stage Helene burst into tears and they hugged each other. John then said: “You do what you think is right with it. I know you will.” The judge accepted that this conversation took place.

40 There is no doubt that John’s birthday was on 29 October. It would seem fairly clear that he was affected by the fact that the appellant did not contact him on his birthday.

41 No will other than the will of 1 November 2004 was found in John’s house after his death. There was evidence, which the learned trial judge accepted, that in late October John had had a fairly extensive clean-up, saying to Helene: “I don’t want you to have to clean out all my personal stuff and I certainly don’t need it any longer.”

42 The appellant’s case appears to be that up until the end of October 2004, John had made a will in favour of the appellant, or at least the appellant after 10 pecuniary legacies to other “young people”. Then on 1 November 2004 as a result of activity of Helene and Leslie, John was induced to leave all his property to Helene. Alternatively, Helene had promised John that she would use the bequest to benefit Anthony.

43 This last assumption is at least in part based on a conversation that John had with Mr and Mrs Carter on 3 November 2004. The Carters met John in his bedroom when John told them that he had to change his will and then said: “Helene told me that her accountant told her that the way to make a will is to leave it all to one person who will carry out your wishes. Don’t you two make the same mistake with your wills that I nearly made.”

44 The appellant says that the irresistible inference is that the last Carter will benefited Anthony and that Helene convinced the testator that the way to make sure that Anthony would not squander the money by getting it too early was to leave it to her and she would then be able to ensure that Anthony got his benefit when he was mature enough to use it properly.

45 The learned primary judge accepted that John did say to Mr and Mrs Carter on 3 November 2004 words to the effect of what they said in evidence. He said that Helene denied that she had said those words or words to that effect to John. The learned judge accepted Helene’s evidence that she did not say anything like those words at any time to John.

46 At [52] the learned judge said that he accepted that something must have happened to change John’s intention to leave the bulk of his estate to Anthony, but he did not accept that Helene used words to John to the effect of those alleged.

47 At [53] and following the bulk of the judgment, the learned judge mused over the evidence. He said it was clear that in his last few months of life, John was very unclear as to his testamentary intentions. He had made four wills in his last eight months. He had become dissatisfied with the state of his relationship with Anthony, vide Helene’s evidence in para 37 of her affidavit set out above. He had become more and more attached to Helene and Leslie in the last few months of his life. The judge said at [59]:

“In my view, the change in John’s testamentary intentions can be explained by reference to innocent causes. There is no inevitable inference of fraud.”

48 He said at [62] that one could speculate as to why John said what he did say to Mr and Mrs Carter:

“But I do not regard those untested comments as compelling to the point where there can be no explanation other than fraud.”

49 The judge accordingly, dismissed the case on fraud.

50 As to a secret trust, the judge ruled there was simply no evidence that John had communicated any proposition to Helene or that she expressly or by acquiescence accepted a proposition that she would not hold her gift beneficially, but would hold it on trust for those nominated by the testator. He thus dismissed the secret trust claim.

51 So far as the Family Provision Act claim was concerned, the judge held that the appellant had failed to prove dependency. He said that the only dependency that had been established was emotional dependency, and that was insufficient. Had he not come to that view, and had he held that Anthony was an eligible person, he would have held that Anthony should receive a legacy of $250,000.

52 However, the end result was that the appellant’s case wholly failed. In a supplementary judgment given on 25 October 2007, the judge held that the proper order for costs was that as between the parties there should be no order as to costs and the respondents’ costs of the proceedings on the indemnity basis could be paid out of the estate. That may well have been over-generous to the appellant, but there is no appeal against that order.

53 The appellant appeals against the dismissal of all three claims. His basic focus was that the learned trial judge placed too much reliance upon his assessment of the demeanour of the respondents. He failed to give due weight to the Carters’ evidence and that he was in error in saying that there were other inferences that were consistent with the absence of fraud. The appeal also challenged the finding that the appellant was not dependent upon the deceased for the purposes of the Family Provision Act.

54 The appeal came on for hearing on 12 September 2008. Mr R W Evans and Mr J Whyte appearing for the appellant, and Mr L J Ellison SC appearing for the respondents. What one would have thought was a fairly simple matter lasted all day.

55 The reason for this appears to me to be that although the onus of proving the case was on the appellant at all times and the reason why the appellant was unsuccessful in his fraud and secret trust claim was because the judge did not accept that he had proved his case on the balance of probabilities, the attack on his Honour’s judgment was principally directed to showing that his Honour was in error in accepting the evidence of Helene. Even if that attack had been made good, it would not necessarily have shown that his Honour should have gone further and accepted the case being made by the appellant.

56 A considerable amount of time was spent by Mr Evans exploring matters which did not lead the Court towards the view that it should allow the appeal.

57 A considerable portion of the morning was spent in the Court being taken through cases, commencing with Fox v Percy (2003) 214 CLR 118 at 128-9 which indicate that modern courts should be less inclined to find facts based on demeanour, than on probative evidence of objective facts.

58 No one would gainsay that as a proposition, but the problem for the appellant in the instant case was that there was no other logical evidence that pointed the Court to the conclusion that he must win. Indeed, that may be putting it too highly. It sufficed that there was no probative evidence which an appellate court could say should have been accepted by the trial judge so that he was in error in not doing so.

59 Mr Evans kept saying that the logical series of events show that there was a compelling inference favouring the appellant’s case.

60 Mr Evans constantly said that the learned judge’s decision was “contrary to compelling inferences”. The words “compelling inferences” were used by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at p 128. Looking only at recent cases, their first modern use appears to be in the judgment of Kirby P in Chambers v Jobling (1986) 7 NSWLR 1 at 10, where his Honour reviewed the law at that point on the duty of an intermediate appellate court conducting a rehearing to review what had happened below. His Honour said:

“[s]uch review is always to be performed with proper regard to the advantages which the trial judge enjoyed. Especially is this necessary … where issues of credibility are raised for decision, directly or indirectly. Particularly is it so where the credibility of a witness is determined by the trial judge, expressly or by inference, on the basis of his impressions of the witness whose credibility is under attack. In such cases, the appellate court is not released from its duty to review the trial judge’s conclusions. But the circumstances in which it may reverse those conclusions are very narrowly defined indeed. They are confined to those few cases where the trial judge’s decision is ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

61 There is no footnote in the judgment from whence that quote was derived.

62 It must be said that cases that come before an appellate court from a decision on the facts, fall into a number of well recognised categories. Category A is where the judge decides questions of fact on the credibility of witnesses. Category B is where the judge decides questions of fact from admitted facts and from inferences drawn from those facts. There are obviously other categories including a mixture of category A and category B.

63 In category B, the Court of Appeal may draw other inferences from the primary facts. It is in as good a position as the primary judge to find the facts, though generally speaking, if there are two equally valid inferences to be drawn from the primary facts and the judge draws inference 1, then the Court of Appeal should not draw inference 2 unless it can say that the trial judge was wrong in drawing inference 1, for instance, because he or she gave undue or too little weight to the material facts; see eg Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192.

64 In category A, which Kirby J in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 466 called “a credibility determination”, it becomes necessary to consider whether to use the words that his Honour employed in that case at [21], that there is justification in the “reversal of a decision by a primary judge who has ‘failed to use or has palpably misused his advantage’ or where ‘incontrovertible facts or uncontested testimony’ demonstrates the findings to be erroneous; or where they are ‘glaringly improbable’ and ‘contrary to compelling inferences’.”

65 In Whiteley Muir Barwick CJ said at 506 said that a trial judge’s finding on a credibility case:

“may … be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong.”

66 In SS Hontestroom v SS Sagaporack [1927] AC 37 at 47-49, Lord Sumner gave other synonyms for compelling inference, namely, drawing from what Wood LJ said in The Alice (1868) LR 2 PC 245 at 252 that the appellate court:

“should require evidence that would be overpowering in its effect on our judgment with reference to the incredibility of the statements made by any witness, and the general testimony to which credit has been so given”.

67 Again in The Glannibanta (1876) 1 PD 283 at 287, the court said it should not reverse the primary judge on a credibility determination except in cases of extreme and overwhelming pressure.

68 In summing up at p 50 Lord Sumner said, on this particular issue, that he looked to see whether there is:

“glaring improbability about the story accepted, sufficient in itself to constitute ‘a governing fact, which in relation to others has created a wrong impression’ or any specific misunderstanding or disregard of a material fact, or any ‘extreme and overwhelming pressure’ that has had the same effect.”

69 This passage was applied by Ipp JA with whom Mason P and Tobias JA agreed in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 200.

70 There are sufficient synonyms for “compelling” or “irresistible” inference in the extracts quoted above to indicate what the term comprehends.

71 Unfortunately I believe that what I have already spent some pages considering has really little effect on the outcome. The appellant says in paras 2.3 and 2.4 of his written submissions that the relevant undisputed or decided facts were:

(a) John made a will witnessed by his next door neighbours on 31 October 2004;

(b) the will was never found, nor the contents disclosed;

(c) however, for many years John had spoken only of the appellant and some children of the neighbourhood friends as intended beneficiaries, though he had also said that he did not want the appellant to have access to his estate until he reached 25 or 30, or that his mother could squander it;

(d) that John made a new will on 1 November 2004 naming Helene as sole beneficiary; and

(e) John summoned the Carters to his bedside on 3 November 2004 to tell them that he had made a new will because his sister had told him that she had rung her accountant who had said that the way to make a will was to leave the estate to one person who would carry out his wishes.

72 Appellant’s counsel say the compelling inferences arising from these facts are:

(a) until 1 November 2004, deceased’s wills nominated the appellant as sole or main beneficiary;

(b) in 2004, the deceased had concerns as to how he could postpone the appellant having access to his legacy until he was older;

(c) something of special significance caused the deceased to make a new will between the evening of 31 October 2004 and the afternoon of the following day 1 November 2004, being less than 24 hours, naming the first respondent as sole beneficiary and omitting the appellant from the will; and

(d) the first respondent had induced the deceased to leave his estate to her or had undertaken to the deceased to carry out his testamentary intentions of benefiting the appellant.

73 No matter which synonym one uses for compelling inference, what is set out above does not qualify.

74 First, there is no reliable material to say that until 1 November 2004 the deceased’s wills nominated the appellant as sole or main beneficiary. There was evidence which showed that John had made such statements of intention to a number of people over the previous ten years, but experience shows that one has got to be very careful about such statements.

75 However, even if one does accept these statements at face value, there was no evidence as to what the previous wills said; they were never produced, presumably because they had been destroyed by the testator.

76 Furthermore, there is reason to suspect that had the appellant been named in the wills, either he did not take the whole estate, or alternatively, his gift was somehow conditional upon him attaining a certain age.

77 As to (d) in [72] above, that is one possible inference, but there were equally competing inferences such as the one the judge chose, and such as John knew that he was shortly to die, the disposition of his estate was to the forefront of his mind, it worried him and he constantly changed his will.

78 It must be remembered too that the appellant was charging the respondents with fraud. Fraud is a very serious allegation, and although the civil standard of proof applies, the court must be comfortably satisfied that fraud has been made out. In the present case, in my view the most that could be said was that an inference of fraud could have been drawn as could a series of other inferences. This was not a situation where there was a compelling inference, and this was a situation where the judge made a credibility determination. This Court should not interfere.

79 It should be mentioned at this stage that essentially this was a probate case, in which the words “undue influence” and “fraud” have a different meaning to their ordinary use in the Equity jurisdiction. This was explained by Ipp JA in a judgment with which Mason P and McColl JA agreed in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [59] and following. Essentially, as appears in Theobald on Wills, 14th ed at p 40:

“Fraud misleads a testator whereas undue influence coerces him”.

80 Regardless of whether the present case was one of fraud or undue influence, the evidence was not sufficient to make it out and the learned judge correctly dismissed it.

81 As to a secret trust, there was just no evidence at all that any directions as to the use of the estate had been transmitted to Helene or if it had, what those directions were. The highest the case ever got was that John told the Carters that Helene had told him that she had rung her accountant who had suggested that he leave his estate to one person who would carry out his wishes. Although the judge accepted that these words were said by the testator, he also accepted Helene’s evidence that she had not said anything like that to the testator.

82 As to the Family Provision Act claim, the question is whether the appellant was dependent upon the testator in the relevant sense.

83 Under the Family Provision Act 1982, the court is only authorised to make an order in favour of an eligible person. “Eligible person” is defined in s 6(1) of the Act . The only possible category in which the appellant could fall is (d) which reads:

“(d) A person -
(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.”

84 The appellant is a grandchild, but the judge held he was not wholly or partly dependent upon John.

85 The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough. I have already set out the evidence as to how the appellant merely spent a week of his Christmas holidays for about four years and exchanged intermittent birthday and Christmas cards. That was not enough to show dependency as the trial judge well held.

86 However, Mr Evans went back to the Testator’s Family Maintenance and Guardianship of Infants Act 1916. He indicated that under some circumstances under that Act, grandchildren were eligible persons. He then pointed to the Second Reading Speech of the then Attorney-General when the 1982 Act was introduced where the Attorney said that the Act was intending to widen the class of persons for whom the court could make an order. Accordingly, Mr Evans said, this Court should not consider it to be a proper construction of the Act which excluded all grandchildren from being eligible persons unless they showed dependency.

87 I do not consider that this conclusion follows. However, one does not have to go that far because s 34 of the Interpretation Act 1987 defines the limits to which the court can have recourse to extrinsic material in the interpretation of a statute. Here, the statute clearly uses the test of dependency. That test has been expounded on by this Court. There is no provision which is ambiguous or obscure or otherwise comes within the warrant to use the extrinsic material referred to in s 34. Accordingly, the Court should not look at the material being the Minister’s Second Reading Speech.

88 It follows that the learned trial judge was correct and the appeal must be dismissed with costs.

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