Tasmanian Trustees Ltd v Fenton

[1991] TASSC 157

Serial No B43/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Tasmanian Trustees Ltd v Fenton [1991] TASSC 157; B43/1991

PARTIES:  TASMANIAN TRUSTEES LTD
  v
  FENTON, Elizabeth Nancy

FILE NO/S:  761/1990
DELIVERED ON:  15 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B43/1991
Number of paragraphs:  10

Serial No B43/1991
List "B"
File No 7611990

TASMANIAN TRUSTEES LTD & ANOR
V ELIZABETH NANCY FENTON & ORS

REASONS FOR JUDGMENT  ZEEMAN J

15 August 1991

1. The plaintiffs claim to be the executors named in the last true will and testament of Herbert Benjamin Fenton deceased ("the deceased"), being a will bearing date 21 April 1988, and in the alternative claim to be the executors named in the true last will and testament of the deceased bearing date 17 November 1986. Both wills are said to have been destroyed after the death of the deceased and it is a copy of the later will, and in the alternative a copy of the earlier will, that the plaintiffs seek to prove. The plaintiffs ask that the court pronounce for the force and validity of the later will and decree probate thereof in solemn form of law, and in the alternative that the court pronounce for the force and validity of the earlier will and decree probate thereof in solemn form of law.

1. The first defendant is the widow of the deceased. By her defence she does not admit that either will is the true last will and testament of the deceased. By her defence she has given notice as to each of the alleged wills that she will merely insist upon the plaintiffs proving the same and only intends to cross–examine the witnesses produced by the plaintiffs in support thereof. If either of the purported wills is proved, the first defendant would take some benefit pursuant to the terms thereof. If neither of the purported wills is in fact the true last will and testament of the deceased, it would appear that an intestacy would arise and the first defendant would take a far greater share of the estate of the deceased.

1. On 16 February 1989 the deceased executed another document purporting to be his last will and testament. The plaintiffs were named therein as executors and trustees. On the face of it, that document appeared to be a properly executed will and probate thereof was granted to the plaintiffs on 6 June 1989. It subsequently transpired that that document had not been properly executed in that one of the attesting witnesses had not in fact been present when it was signed by the deceased and the other attesting witness. There appears to be no dispute between the parties that that is in fact what occurred. On 27 November 1989 the plaintiff filed an application that the probate be revoked. That application was supported by a number of affidavits, including affidavits from the purported attesting witnesses and deposing to the true position. On 11 December 1989 a judge ordered that the probate be revoked.

1. In the course of the preparation of a certificate of readiness, a dispute arose between the first defendant on the one hand and the plaintiffs and the other defendants on the other hand as to the mode of trial. The first defendant claimed that she was entitled to have a trial by jury as of right. All other parties took the contrary view. The matter was referred to the Master pursuant to the provisions of O32A, r8. The Master took the view that he was bound by In re Hobden [1957] Tas SR 57 which he construed as having held that a party was not entitled to a jury in a probate action as a matter of right. Not surprisingly the Master did not accept an invitation not to follow that decision and instead referred the matter to a judge. Nevertheless, the learned Master proceeded upon a consideration of whether he ought to order trial by jury in the exercise of his discretion. Having considered that, he said that "[t]he application for a trial by jury as to the discretionary right sought under the rules is refused." It might be thought that it was inappropriate for the learned Master to have considered that matter at all, as it had not then been determined whether the occasion for the exercise of a discretion had arisen. No appeal against the Master's decision was instituted. The time for doing so has long expired. Nevertheless, all parties have requested that if I hold that the first defendant is not entitled to a trial by jury as a matter of right, then I should consider afresh as to whether or not I should order trial by jury in the exercise of my discretion. On this issue, the material before me is not the same material as that which was before the Master. It appears that the Master considered the matter by reference only to the pleadings and some uncontested statements of fact made from the Bar table. During the course of the proceedings before me a number of affidavits were read. There seems to be no impediment to the making of successive applications for a discretionary order for trial by jury at least where a further application is made upon material not before the judicial officer making the earlier order declining to order trial by jury. Having regard to those matters and the fact that all parties join in asking that I take this course of action, I will determine whether or not the first defendant is entitled to have trial by jury as a matter of right, and if not, whether or not I ought to order, as a matter of discretion, that there be a trial by jury.

1. By virtue of the provisions of O39, r6(1) the first defendant has a prima facie right to trial by jury if this action is one which before the commencement of the Supreme Court Civil Procedure Act 1932 could have been instituted in the court as an action at law. Senior counsel for the first defendant has submitted that the present action is such an action. That is plainly not so. Counsel's submission traced the history of the jurisdiction in probate matters in England, including a reference to the Court of Probate Act 1857 (Imp) and referred to the Probate Act 1893. That latter Act provided by s.11 that the practice and procedure of the Court under that Act should, as far as the circumstances of the case admitted, be according to the practice of the Court of Probate under the Imperial Act of 1857, except where otherwise provided by the Act, or rules or orders made thereunder. He submitted that because proceedings could have been instituted by writ under the Imperial Act, that procedure was available under the Tasmanian Act of 1893. He further submitted that because the proceedings could have been instituted by writ prior to the commencement of the Supreme Court Civil Procedure Act, a probate action was an action at law. Those submissions are fallacious. Proceedings could not be instituted by writ under the Imperial Act or the Tasmanian Act of 1893. Order LXXIII, r4 of the Rules of Court as they appeared in the second schedule to the Supreme Court Civil Procedure Act are confirmatory of the fact that probate actions were not instituted by writ of summons until the commencement of that Act. Even if such actions could have been instituted by writ it does not follow that the proceedings could have been categorized as constituting actions at law. When O39, r6(1) talks of "an action at law" it plainly speaks of actions traditionally maintainable in the common law courts and which immediately before the commencement of the Act were the subject of the provisions of the Common Law Procedure Act 1854. Whilst In re Hobden (supra) was a case where an application was made for trial by jury in a probate action, the application sought to invoke the discretion conferred by the rules. That a party was not entitled to trial by jury as a matter of right appears to have been assumed. In that sense it is not authority for the proposition that there is no right. It was no doubt obvious to the judge and the parties that there was no such right. I agree that it is obvious that no such right exists.

1. I turn now to the question of discretion. Counsel for the first defendant submits that three contentious issues of fact will fall for consideration in this action. They are as follows:

1Whether the 1988 will was signed by the testator in the presence of the persons who claim to have been the attesting witnesses who are the same persons as the persons who appeared, albeit erroneously, to have been the attesting witnesses to the 1989 will, probate of which has been revoked.

2Whether the 1986 and 1988 wills were in fact destroyed prior to the death of the deceased, that issue presumably arising in the context of whether, independently of the making of the 1989 will which purported to revoke all earlier wills, those wills might not in any event have been revoked by having been destroyed at the direction of the deceased.

3Whether the copies of the wills sought to be admitted to probate in the alternative are in fact true copies of the originals of which they purport to be copies.

1. During argument, it became apparent that the principal issue may well be that it will be suggested to the alleged attesting witnesses to the execution of the 1988 will that in fact they were not both present at the time of the execution of that will, and that in that context, their credit will be sought to be attacked by reference to their conduct in relation to the 1989 will. Reference was made to the fact that both persons were officers employed by a trustee company and as such might well have been expected to have been familiar with the statutory requirements attending the execution of wills, so that their actions in relation to the 1989 will reflected particularly badly upon their integrity and therefore their credit. I note that there is no material before me suggesting what persons might have attested the execution of the 1986 will. With his usual enthusiasm, senior counsel for the first defendant submitted that if ever there was a case for trial by jury then the present is such a case. The plaintiffs and all other defendants opposed the action being tried with a jury, submitting that no sufficient reason has been disclosed and pointing to the increased cost if a jury were to be ordered. The parties seem to be agreed that the action could be disposed of in two days if tried without a jury, but that the hearing time was expected to be four days if tried with a jury. The estate has a value of about $1,000,000.00, and that is a relevant consideration in considering the extra costs which might be expected to be incurred if a jury is ordered in that the impact proportionately would not be as great as it would be in the case of a small estate.

1. The first defendant having no right to a jury, she must invoke the discretion conferred by O39, r5. The discretion conferred is unfettered. The issues to be tried in the action are issues which could conveniently be tried with a jury. Counsel referred me to the decision of Burbury CJ in Granton Brick Ltd v W Anderson & Sons Pty Ltd [1956] Tas SR 129, but I have not derived much assistance from his Honour's judgment as he was concerned with an application under what is now O39, r7 and therefore was called upon to exercise a different kind of discretion, namely whether he should order that there not be a jury in a case where prima facie a right to trial with a jury was conferred. I do not consider this case to have any special features making trial with a jury desirable. Whilst in another era there was a pronounced bias in favour of all issues of fact being tried by juries, that is no longer the case. Even in cases where there is a prima facie right to a trial by jury it is a right which is insisted upon by only a small proportion of litigants, although experience suggests that there has been somewhat of an increase in the number of such trials over the last ten years or so. At the same time it is exceedingly rare for an order to be made that an action be tried with a jury as a matter of discretion. Counsel were able to point to only one instance where such an order had been made since In re Hobden (supra) was decided. That was a case which was in part an action at law and in part an action claiming equitable relief. Different considerations might be said to apply to such an action. Counsel for the first applicant was not able to point to any matter, other than the nature of the issues of fact to be determined, as calling for a favourable exercise of my discretion. They are issues of the type being tried and determined by judges of this court every day. As against that, I have the wishes of all other parties and the question of costs. Assuming that all costs are ordered to be paid out of the estate, increased costs will only affect the first defendant's interest in the estate if there is to be found an intestacy. Attitudes to the desirability or otherwise of having issues of fact arising in civil actions tried with a jury have changed with the times. I consider the speech of Lord Diplock in Williams v Beesley [1973] 1 WLR 1295, at pp1297–1300, as expressing the current view. His Lordship said, at p1298:

"The fact that a case involves issues of credibility is not a ground for departing from the usual rule that cases, other than those in which a prima facie right to trial by jury is conferred by statute, should be tried by judge alone. The great majority of personal injury actions involve issues of credibility, and it is, rightly, the established practice that these are tried by a judge alone."

1. With respect, I agree. The present is not a personal injury action, but his Lordship's observations are no less applicable. Reference might also be had to Stafford Winfield Cook & Partners Ltd v Winfield [1981] 1 WLR 458. In the result, I am not persuaded that I ought to order that the action ought to be tried by a judge with a jury.

1. I order that upon the certificate of readiness being filed, the action be set down to be tried by a judge without a jury.