Sykes v Richardson (No 2) - [2007] NSWSC 454

CITATION: Sykes v Richardson (No 2) [2007] NSWSC 454

HEARING DATE(S): 01/05/07; 02/05/07; 03/05/07; 04/05/07

JUDGMENT DATE :
4 May 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Application granted.

CATCHWORDS: PRACTICE & PROCEDURE: - Application to set aside ex parte orders for examination of witness under Evidence on Commission Act (NSW) - discretion conferred by s33 - serious illness of witness - whether examination of witness orally or in writing practicable

LEGISLATION CITED: Evidence on Commission Act

CASES CITED: British American Tobacco Aust Services Ltd v Eubanks (2004) 60 NSWLR 483
Sykes v Richardson [2007] NSWSC 418

PARTIES: Kieran Sykes (applicant)
Julius N Richardson (respondent/plaintiff)

FILE NUMBER(S): SC 2007/11499

COUNSEL: M J Leeming SC with K M Richardson (applicant)
Dr A S Bell SC with K C Morgan (respondent/plaintiff)

SOLICITORS: Atanaskovic Hartnell (applicant)
Ebsworth & Ebsworth Lawyers (respondent/plaintiff)
S. Lawrance (J P Morgan) (intervening)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 4 May 2007

2007/11499 Kieran Sykes v Julius N Richardson (No 2)
JUDGMENT

1 HIS HONOUR: The background to this judgment is to be found in a judgment I published on 1 May 2007 dealing with a question of law: see [2007] NSWSC 418.

2 The applicant also asks that the order of Patten AJ and the subpoena to her be set aside in the exercise of my discretion, on the basis that her examination would be oppressive. This arises from the parlous state of her health. As to that, I have unchallenged evidence in affidavits of her general practitioner, Dr Daniel Hameiri, and a surgeon, Mr Maxwell Coleman. By the agreement of the parties, up-to-date information from both those doctors has been supplied informally in response to questions put to them by the applicant’s solicitor.

3 There is no need to summarise this evidence in any detail, as its effect is clear. In 2001 the applicant was diagnosed with breast cancer and underwent a partial mastectomy, with consequent radiotherapy and chemotherapy. Unfortunately, in January of this year she was found to have developed extensive secondary cancer affecting her spine, her breastbone and her pelvis. She has recently undergone a course of radiotherapy and is currently receiving chemotherapy.

4 When the matter was last before me two days ago, the position was this. As a result of both the cancer and the treatment, she cannot sit for any length of time without significant pain, she is exhausted and, in addition, she suffers pain from burnt skin resulting from the radiotherapy. Her concentration is impaired. Her tolerance for stress is greatly reduced by the effects of her treatment, and Dr Hameiri described her as “particularly fragile at the moment”. The examination would significantly impede the effectiveness of her treatment.

5 Commendably, counsel for the respondent put forward a number of measures which, it was hoped, would alleviate the impact of an examination upon her health. It was suggested that it might take place at an informal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 454
Decision Date: 4 May 2007

CaseChat Overview and Summary

The second respondent, the executor of the estate of the deceased, brought proceedings against the first respondent, the executrix of the deceased's estate. The deceased had left a will that did not include the first respondent, and the first respondent sought to have it admitted to probate. The second respondent opposed the application, claiming that the deceased lacked testamentary capacity when the will was executed. The first respondent applied for an order for the second respondent to be examined in respect of his capacity and the circumstances of the execution of the will. The second respondent applied to set aside the ex parte orders for examination. The court was required to determine whether the second respondent's application should be granted. The court held that the second respondent had demonstrated a real prospect of successfully opposing the application for an order for examination. The court also held that the serious illness of the second respondent was a relevant factor in determining whether the examination of the second respondent should be set aside. The court held that the second respondent's illness was such that it was not practicable for him to be examined orally, and that it was not practicable for him to be examined in writing. The court exercised its discretion to set aside the ex parte orders for examination. The court ordered that the application to set aside the ex parte orders for examination be granted.

Orders