The Estate of Genevieve Bryan

[2021] NSWSC 567

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Genevieve Bryan [2021] NSWSC 567

Hearing dates:

12 May 2021

Date of orders:

25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Orders that the Plaintiff’s notice of motion filed on 4 March 2021 be dismissed.

(2) Orders that the Plaintiff pay the Defendant’s costs of the notice of motion.

(3) Orders that the time within which each party may, by notice in writing, seek clarification of any aspect of Professor Peisah’s report, in the form of questions, no more than 10 in number, or otherwise, be extended to 4:00 p.m. on 15 June 2021.

(4) Orders, pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the grounds set out in subs 8(1)(a), namely, that the order is necessary to prevent prejudice to the proper administration of justice, that the report dated 25 February 2021, of Dr Jonathan Phillips AM, Consultant Psychiatrist, and any matter tending to reveal, or disclose, its contents and conclusions, be treated as confidential and not be published or disclosed.

(5) Orders pursuant to s 12 of the Court Suppression and Non-publication Orders Act, that the non-publication order continue until the conclusion of the substantive proceedings and the delivery of reasons for judgment, or further order of the Court.

(6) Stands over the proceedings for further directions to a date to be determined when these reasons are published.

(7) Orders that these orders be entered forthwith.

Catchwords:

EVIDENCE – Expert evidence – Appointment of joint expert agreed upon by the parties – Plaintiff obtains report from another expert following receipt of joint expert report - Differences in opinion between appointed joint expert and proposed adversarial expert – Whether leave to adduce evidence from another expert on issue arising in proceedings if a parties' joint expert has been engaged – UCPR r 31.44

CIVIL PROCEDURE – Suppression and non-publication of the whole of contents of the adversarial expert report — Whether necessary to prevent disclosure of the contents and conclusions of the adversarial report – Whether order should be made until conclusion of the substantive proceedings and delivery of reasons for judgment delivered or until further order

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Ainsworth v Burden [2005] NSWCA 174

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70

Conias Hotels Pty Ltd v Murphy [2012] QSC 297

Cosgrove v Pattison [2001] CP Rep 68; [2000] All ER (D) 2007

Coyne v Calabro [2009] NSWSC 1023

Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197

D v S [2009] QSC 446

Frizzo v Frizzo [2011] QSC 107

Hawes v Burgess [2013] EWCA Civ 74

In the matter of Optimisation Australia Pty Ltd [2015] NSWSC 2072

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Nicholson v Knaggs [2009] VSC 64

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Starr v Miller; Starr v Miller [2021] NSWSC 426

Stolfa v Owners Strata Plan 4366 (No 2) [2008] NSWSC 531

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

Tomko v Tomko [2007] NSWSC 1486

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282

Wu v Statewide Developments Pty Ltd [2009] NSWSC 587

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Category:

Procedural rulings

Parties:

Elias Chatky (Plaintiff/Applicant)
George Daniel (Defendant/Respondent)

Representation:

Counsel:
Mr A Cheema (Plaintiff/Applicant)
Mr A E Maroya (Defendant/Respondent)

Solicitors:
Auburn Lawyers (Plaintiff/Applicant)
Danny Eid Lawyers (Defendant/Respondent)

File Number(s):

2019/373291

Publication restriction:

Nil; other than in relation to the contents and conclusions of the report of the adversarial expert

Judgment

The nature of the application

1. By notice of motion filed on 4 March 2021, the Plaintiff, Elias Chakty, who is a nephew of the deceased, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), r 31.19 and r 31.44, granting him leave to adduce expert evidence from Dr Jonathan Phillips AM, a Consultant Psychiatrist, in Probate proceedings involving a dispute about the validity of the last Will of Genevieve Bryan (the deceased).

2. Whilst these reasons are more lengthy, perhaps, than one would expect in an interlocutory application such as this one, there is an important issue surrounding the circumstances in which the Court should grant leave to a party to adduce evidence of any other expert (Dr Phillips) on any issue arising in proceedings, after a joint expert (Professor Carmelle Peisah), agreed upon by the parties, has been appointed pursuant to orders of the Court, particularly in Probate proceedings. There is an existing tension between the role of the joint expert witness, appointed by agreement of the parties and then by the Court, and each party’s desire to fully present his case as he sees fit.

3. What is important to note, at the outset, about both experts, is that neither met the deceased during her lifetime. As often happens in this kind of litigation, neither had examined the deceased in life, and were obliged to express views based on documents provided to them, including affidavits and the medical records.

Preliminary Matter

4. At the commencement of the proceedings, I asked counsel for the parties whether it might be necessary to make any orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) in the event that the application made in the notice of motion did not succeed. Neither counsel had considered the question and it was necessary to adjourn the hearing, for a short period of time, to enable them both to do so.

5. Following that short adjournment, both counsel agreed that if the notice of motion were dismissed, some orders under the Court Suppression and Non-publication Orders Act should be made. (Naturally, no suppression order or non-publication order would be necessary if the notice of motion were successful, since the evidence would be permitted to be adduced at the final hearing.)

6. Counsel for the Defendant offered to prepare a draft minute of order on which the parties were likely to agree. Following the conclusion of the hearing, the parties provided a form of order consented to (in respect of which I have made some minor editorial amendments):

“1. Orders:

(a) pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the grounds set out in subs 8(1)(a) of the Act, namely, that the order is necessary to prevent prejudice to the proper administration of justice; and,

(b) pursuant to s 12 of the Court Suppression and Non-publication Orders Act, that the order continue until the conclusion of these proceedings and the delivery of reasons for judgment herein, or further order of the Court that the report of Dr Johnathan Phillips AM, Consultant Psychiatrist, dated 25 February 2021 (‘the report’), and any matter tending to reveal or disclose the report and/or its contents and conclusions, be treated as confidential and not be published or disclosed.

2. Orders that that this order be entered forthwith.”

7. The legal representatives of the parties were informed that whether such, or similar, orders would be made would be determined by the result of the notice of motion.

8. It is to be remembered that s 6 of the Court Suppression and Non-publication Orders Act provides that “[I]n deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”; that s 7 permits the Court to make a non-publication order, on the grounds permitted by the Act, which prohibits the publication, or disclosure, of information, relevantly, information that comprises evidence given in proceedings before the Court; that s 8 provides the grounds on which such an order can be made, sub-s (1)(a) providing that the Court may make a suppression order or non-publication order where the order is necessary to prevent prejudice to the proper administration of justice and sub-s (1)(e), alternatively, providing that such an order may be made where it is otherwise necessary in the public interest, and that public interest significantly outweighs the public interest in open justice; that s 9 specifies that a court may make a suppression order or non-publication order on its own initiative, or on the application of a party to the proceedings concerned; and that s 12 deals with the duration of the order that is to be made.

9. Furthermore, an order may be made during the proceedings or after they have concluded and may be made subject to such exceptions and conditions as the Court thinks fit and specifies in the order. Importantly, the order must also specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.

10. Since the notice of motion is to be dismissed, an order is necessary. In particular, I am satisfied that the administration of justice would be prejudiced by reference to the contents of the evidence that is the subject of the Plaintiff’s application in circumstances where the Court has determined that he should not be granted leave to adduce the evidence of another expert on any issue arising in proceedings since the parties' joint expert has been engaged in relation to that issue.

11. To refer to the contents of the report, the subject of the application, other than in the most general terms, would result in that evidence being disclosed, at a final hearing, in circumstances where it ought not to be disclosed. The evidence is to be temporarily confidential until the completion of the hearing of the substantive proceedings or until further order of the Court. Thereafter, it would not be confidential, by reason of the determination of the issues in the case.

12. In the circumstances, it seems to me that the proper form of order is an order that applies until the conclusion of the hearing of the substantive proceedings and the publication of the reasons for judgment, or until further order of the Court. I have, effectively, followed the form of orders that was agreed between the legal representatives of the parties.

The claims made in the substantive proceedings

13. The deceased died on 13 November 2019, aged 93 years. She was not survived by any spouse or any children.

14. So far as is known, the deceased left four duly executed, professionally drawn Wills. The last Will in time was made on 31 October 2019 (the 2019 Will). It is the Will propounded by the Plaintiff. The second last Will in time is one dated 23 December 2014 (the 2014 Will) which is propounded by the Defendant. The third last Will in time of the deceased is one dated 6 May 2009 (the 2009 Will). The earliest Will in time is dated 7 June 2005 (the 2005 Will). I shall refer to each as a Will of the deceased even though there is a dispute about the validity of the 2019 Will. Neither party seeks to propound the 2009 Will nor the 2005 Will.

15. The Plaintiff commenced the substantive proceedings by Statement of Claim filed on 14 February 2020, in which he sought an order that Probate in solemn form of the 2019 Will be granted to him and an order for costs. In an amended Defence filed on 27 April 2020, the Defendant denied the validity of the 2019 Will, asserting that the deceased (a) “was induced to execute [the 2019 Will] by undue pressure or influence on the part of… the Plaintiff”; (b) “was not of sound mind memory and understanding at the time of the making of [the 2019 Will]”; and (c) “did not know and approve of the contents of [the 2019 Will] at the time it was made”.

16. The Defendant, who is said to have been the carer of the deceased, filed an amended Cross-Claim on 27 April 2020 in which he sought an order that Probate in solemn form of the 2014 Will be granted to him; an order for his costs; an order that the matter be remitted to the Senior Deputy Registrar to complete the grant; and, in the alternative, an order for further provision out of the estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW), if he was not successful in obtaining probate of the 2014 Will.

17. It is unnecessary to say anything more about his claim for a family provision order for the purposes of determining the Plaintiff’s notice of motion.

18. It is also unnecessary to detail the terms of each of the 2019 Will and the 2014 Will for the purpose of the notice of motion. However, it is to be noted that the estimated gross value of the deceased’s estate is in excess of $3.5 million. The main assets of the estate are two parcels of real estate in Hurlstone Park and cash in bank.

The procedural history giving rise to the notice of motion

19. It is next convenient to detail the history of the proceedings that led to the filing of the Plaintiff’s notice of motion. There is no substantial disagreement, between the parties, about the procedural history set out.

20. On 10 August 2020, the matter was listed for directions in the Succession List. On that date, I made the following orders and notations:

“Notes that the Plaintiff/Cross-Defendant does not dispute the validity of the 2014 Will other than to assert that it has been revoked by the Will made by the deceased on 31 October 2019.

Notes the parties agree that an issue for an expert has arisen in the proceedings and that an expert agreed upon by them, will be engaged jointly by them.

Orders that by 4:00 p.m. on Monday, 17 August 2020, the parties must endeavour to agree upon the identity of the single expert and on the written instructions to be provided to the single expert concerning the issues for the expert’s opinion and concerning the facts, and assumptions of fact, on which the report is to be based.

Stands the matter over for further directions before the Succession List Judge on Monday, 24 August 2020.

21. There was some delay occasioned in complying with the order made. The matter was listed for directions on a number of occasions, and it was only on 30 November 2020 that the following orders and directions were made, at the request of the parties, in Chambers:

“Orders, an issue for an expert having arisen in the proceedings, that Dr Carmelle Peisah, an expert agreed upon by them, be engaged jointly by the parties.

Notes that the parties have agreed on the written instructions and the documents to be provided to the joint expert concerning the issues arising for the expert’s opinion and concerning the facts, and assumptions of fact, on which the report is to be based.

Directs that the written instructions and the documents be provided to the joint expert by 4:00 p.m. on Monday, 30 November 2020.

Orders that by 5 February 2021, the joint expert must send a signed copy of her report, endorsed with the date on which it is sent, to each of the parties.

Notes the agreement of the parties that, subject to any party making application for an order which provides for the costs of the joint expert to prepare and send the report to be borne otherwise, those costs, initially, will be borne, out of the estate of the deceased.”

22. Interestingly, in the discussions between the legal representatives giving rise to her appointment, it was the Plaintiff’s legal representative who had nominated Professor Peisah, an Old Age and Consultation-Liaison Psychiatrist, as one of the joint experts who might be appointed. This demonstrates that the basis of the current application is not any concern as to her independence.

23. The Defendant had suggested, and had indicated a preference for, the appointment of a geriatrician. However, ultimately, he acceded to the joint expert nominated by the Plaintiff. Thereafter, the legal representatives collaborated in the preparation of the letter of instructions, and in the selection of the material that was to be put before Professor Peisah.

24. There was no dispute, at the hearing of the notice of motion, that Professor Peisah had been engaged in relation to the issues agreed upon under Part 31 Division 2, Subdivision 4 of the UCPR.

25. Following the making of the orders, there was no application made to set them aside.

26. On 15 February 2021, the matter was next in the Succession List and the Court was informed that the Plaintiff, having received a copy of the joint expert’s report, wished to engage another expert, being Dr Phillips AM. As the Defendant was not prepared to consent to that appointment, directions were made for the filing of a notice of motion by 4:00 p.m. on 4 March 2021.

27. The evidence reveals that by 15 February 2021, the Plaintiff’s solicitor, Mr Musabbir Hasan, had already retained Dr Phillips and had given him a brief to provide a report. In cross-examination on the notice of motion, Mr Hasan stated that, initially, he had approached Dr Phillips, on about 18 August 2020, for the purpose of ascertaining his availability to provide a report, as a joint expert, for the proceedings: Tcpt, 12 May 2021, p 9(42)-10(10). However, Dr Phillips did not confirm his availability, or accept any engagement, at that time: Tcpt, 12 May 2021, p 12(20-26).

28. Mr Hasan also confirmed that, on 2 February 2021, he had sent a letter to Dr Phillips requesting an expert opinion “on whether the deceased lacked testamentary capacity” and that, by the end of the first week of February, Dr Phillips had been sent the brief and had confirmed that he would begin preparing his report immediately: Tcpt, 12 May 2021, p 11(20)-12(03).

29. Mr Hasan accepted that, in a written Request for Expert Evidence Directions, which he had submitted to the Court on 11 February 2021, and also at the directions hearing on 15 February 2021, the Court had not been informed that Dr Phillips had already been retained and was in the course of preparing a report: Tcpt, 12 May 2021, p 16(29)-17(21).

30. There was no dispute that the documents reviewed by Dr Phillips to enable him to prepare his report were the same as those provided to Professor Peisah.

31. The Plaintiff’s notice of motion was filed in accordance with the directions of the Court.

32. In an affidavit affirmed 4 March 2021, Mr Hasan, in paragraphs 5 and 6, stated:

“On 2 March 2021 Dr Phillips provided me with his complete report. Annexed and marked ‘B’ and commencing at page [80], is a true copy of the report prepared by Dr Phillips together with my letters of instruction.

Dr Phillips’ opinion differs from that of Dr Peisah ….”

33. Although not specifically disclosed in Mr Hasan’s affidavit, it appears that Dr Phillips’ report responded to “your letters of instructions (2 and 24 February 2021) and note[d] that you have provided multiple documents…”. The report of Dr Phillips, sought to be relied upon by the Plaintiff, a copy of which report formed part of the evidence in support of the notice of motion, was dated 25 February 2021.

34. It is difficult to know whether the report from Dr Phillips was obtained, initially, for the purpose of its tender, or whether it was obtained for the purpose of asking Professor Peisah for clarification, or to enable cross-examination of the joint expert at the hearing. In any event, it is now clear, from the notice of motion, that the Plaintiff wishes to adduce evidence, by tendering the report of Dr Phillips at the hearing and to have him available as a witness in the proceedings.

35. On 26 March, 2021, when the matter was next in the Succession List, it was noted that the Plaintiff, as a condition of being able to adduce the expert evidence of Dr Phillips, consented to bearing the burden of any additional costs incurred by himself and by the Defendant in relying upon the evidence of Dr Phillips, subject to either party making such application as is necessary in respect of those costs at the conclusion of the hearing.

33. The notice of motion, which was filed on 4 March 2021, was listed for hearing on 12 May 2021, with an estimated duration of three hours. The hearing, in fact, took most of the day.

The difference between the two reports

37. It is not appropriate, in these reasons, to identify the differences between the reports of the two experts. However, I have considered the differences between the conclusions reached by them.

The Uniform Civil Procedure Rules and the applicable principles

38. It is first convenient to set out the parts of the UCPR that are relevant to the notice of motion.

39. Division 2 of Part 31 of the UCPR deals with expert evidence generally. Within Part 31, there are different types of experts to which reference is made.

40. UCPR r 31.17 provides that the main purposes of Division 2 are, first, to ensure the Court has control over the giving of expert evidence; secondly, to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings; thirdly, to avoid unnecessary costs associated with parties retaining different experts; fourthly, if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a joint expert; and fifthly, if necessary to do so to ensure a fair trial of the proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings.

41. Relevantly, UCPR r 31.18 contains certain definitions:

"expert", in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

"expert witness" means an expert engaged or appointed for the purpose of--

(a) providing an expert's report for use as evidence in proceedings or proposed proceedings, or

(b) giving opinion evidence in proceedings or proposed proceedings.

"expert's report" means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based.

"parties' single expert" means an expert engaged pursuant to rule 31.37.

42. UCPR r 31.19(1) provides that any party (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the Court in that regard.

43. UCPR r 31.20 provides that without limiting its other powers to give directions, the Court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings, including, amongst other directions, “(a) a direction as to the time for service of experts' reports” and “(f) providing for the engagement and instruction of a parties' joint expert in relation to a specified issue”.

44. UCPR r 31.23(1) requires an "expert witness" to comply with the code of conduct set out in Schedule 7. Pursuant to the code of conduct, the expert is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings, or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness: UCPR Schedule 7 cl 2. In other words, the real purpose for the calling of an expert is to provide assistance to the Court in the application of her, or his, expertise, not to advocate for either party.

45. UCPR r 31.37 provides that if an issue for an expert arises in any proceedings, the Court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected. The parties' joint expert is to be selected by agreement between the parties affected, or, failing agreement, by, or in accordance with, the directions of the Court.

46. UCPR r 31.41(1) provides that, within 14 days after the parties' joint expert's report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report. No such notice was sent to Professor Peisah and there are no reasons provided for not seeking such clarification.

47. UCPR r 31.43 provides that any party affected may cross-examine a joint expert, and the expert must attend Court for examination or cross-examination, if so requested, on reasonable notice by a party affected.

48. Pausing here, I interpolate that it is the parties who select the joint expert. The Court becomes involved only if a problem emerges regarding agreement on the identity of the suitable expert, or if the parties are unable to agree upon the instructions to be given to the expert, or upon the documents to be provided, or the matters upon which the expert is asked to opine. The expert’s report is to be provided to each of the parties and each may ask written questions in order to clarify the matters in the report if that is necessary. Furthermore, what the parties do with the joint expert’s report is left to each of them. Neither is under any obligation to tender the report. Under this regime, the expert is not the Court’s witness. The expert is the witness of the parties.

49. What is sometimes forgotten is that the appointment of a joint expert who then provides a report, does not involve a delegation of decision-making power. As already stated, as parties affected, either may cross-examine the joint expert orally. Each may make submissions about the weight of her, or his, evidence and also about its relevance to the ultimate result.

50. UCPR r 31.44 provides that, except by leave of the Court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties' joint expert has been engaged under this Division in relation to that issue.

51. The power to grant leave makes clear that the appointment of a joint expert does not prevent a party being allowed to obtain a report from another expert. There is nothing in UCPR r 31.44 that reveals what matters the Court should consider in determining an application for leave to a party to adduce evidence of any other expert on any issue arising in proceedings. Clearly, a degree of flexibility is required and the Court’s discretion in relation to the grant of leave is unfettered. The application of broad principles to very specific factual circumstances should not detract from the breadth of the Court's discretion.

52. In Tomko v Tomko [2007] NSWSC 1486, Brereton J considered some of the rules referred to above. His Honour pointed out, at [5]:

“However, r 31.41 does not authorise questions about or on the report generally, but only questions by way of clarification of the report. According to the Macquarie Dictionary, ‘to clarify’ is ‘to make clear, pure, or intelligible’. The concept is closely analogous to that of ‘reasonably necessary to enable a proper understanding of the communication or document’ in the Evidence Act, s 126. It implies the question. what is there in the report that requires clarification. A question will be one by way of clarification, in my opinion, if it seeks to elicit better understanding of what is the expert's opinion, or how that opinion has been reached. A question in the nature of cross-examination, which seeks to challenge the expert's opinion or undermine it, is not by way of clarification.”

53. As to the principles that apply for granting leave, his Honour wrote, at [8] – [9]:

“However, the defendants also seek leave, pursuant to r 31.44, to adduce expert evidence from Professor Reid on the issues which have been addressed by Dr Roberts. It has been said that proper exercise of the discretion to grant leave only requires satisfaction that there is an appropriate basis to permit a party to adduce additional evidence and that relevant considerations include the nature and complexity of the issues, the existence of an objective basis to question the conclusion arrived at by the joint expert, the existence of significant competing expert opinion, and the actual or apprehended bias of the joint expert. [Daniels v Walker [2000] 1 WLR 1382; Cosgrove v Pattison [2001] CP Rep 68; Ritchie’s Uniform Civil Procedure (NSW), [31.44.5]].

In my view, the court should be relatively ready to grant leave to adduce evidence from a separate expert, lest trial by single expert otherwise become substituted for trial by judge. Where some arguable basis is shown for challenging the report of a single expert, the court should be disposed to grant such leave.”

54. In Stolfa v Owners Strata Plan 4366 (No 2) [2008] NSWSC 531, Brereton J referred to Tomko v Tomko. His Honour did so again in In the matter of Optimisation Australia Pty Ltd [2015] NSWSC 2072, at [6].

55. In Wu v Statewide Developments Pty Ltd [2009] NSWSC 587, Brereton J identified three guidelines relating to the exercise of the discretion whether to grant leave under UCPR r 31.44. His Honour wrote, at [11] – [17]:

“The approach to be adopted to applications under this rule has been considered in England and in this Court. In Daniels v Walker [2000] 1 WLR 1382, Lord Woolf MR, with whom Latham J agreed, said (at 1387):

Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert.

In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.

...

In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert’s report. If questions do not resolve the matter and a party, or both parties, obtain their own expert’s reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.

The great advantage of adopting the course of instructing a joint expert at the outset is that in the majority of cases it will have the effect of narrowing the issues. The fact that additional experts may have to be involved is regrettable, but in the majority of cases the expert issues will already have been reduced. Even if you have the unfortunate result that there are three different views as to the right outcome on a particular issue, the expense which will be incurred as a result of that is justified by the prospect of it being avoided in the majority of cases.

In Cosgrove v Pattison [2001] CP Rep 68, [2000] All ER (D) 2007, Neuberger J in the Chancery Division referred to the passages that I have set out above in Daniels v Walker, and continued:

In my judgment although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and, finally, and in a sense all embracing, the overall justice to the parties in the context to the litigation.

His Honour then proceeded to examine various of those factors in the interest of the case. So far as the reasons for wanting a new expert were concerned, his Honour rejected as insufficient the proposition that the expert was biased or that the applicant had any good reason to suspect bias as “wholly insufficient of themselves to persuade me the learned judge was wrong”. But his Honour continued:

The more substantial reason, to my mind, is that the appellants have got a report from the new expert which calls into question some of the conclusions reached by Mr Courtnage. As Miss Caroline Hutton, who appears on behalf of the respondents argues, it cannot be enough for a person who wants to call a new expert, simply to say: ‘I have a report from another expert and it is inconsistent with the agreed expert’s conclusion’. Otherwise, anyone who had the money and the inclination to instruct another expert would always have the right to call him. Having said that, it does seem to me that if a new expert can be found who has a contrary view to the joint expert that is a reason for permitting the new expert to be called. It is certainly not a sufficient reason in every case, but if there are grounds for thinking that the joint expert may be wrong, because another expert takes a different view, that is certainly a factor which is to be borne in mind ...

His Honour then considered other relevant factors, ultimately returning to the appellant’s concerns about bias and adding:

As I have said, I consider those factors to be wholly insufficient to justify the appellants being entitled to call an expert. As additional factors, they provide a little assistance to the appellants, but it would have to be a pretty knife edge case indeed before they were decisive.

Finally, his Honour said:

Standing back and looking at the justice between the parties, I ask myself two questions, do not represent a decisive test but they may be of some help. First, if the appellants are not entitled to call Mr McIntosh and they lose the case, will they have an understandable sense of grievance judged objectively? To my mind they would an understandable if not an overwhelming, feeling. Secondly, if the appellants are entitled to call Mr McIntosh and won, would the respondents have an understandable sense of grievance, judged objectively? I think it is inevitable that they would have a sense of grievance, because that is in the nature of litigation. But I do not think that to most people it would be a particularly understandable sense of grievance. In all the circumstances, it seems to me that this is an appeal which should be allowed, but allowed only on terms.

…

These cases establish, at least as guidelines, the following:

· An order for a single expert is a first step, not necessarily the last word on the topic. While the magnitude of the case will influence the court’s willingness to permit further reports, having regard to considerations of proportionality, the process was not intended to substitute trial by expert for trial by court.

· It will be a significant factor in favour of permitting further exert [sic] evidence if the existence of a competing respective expert opinion can be shown.

· It will be a significant factor in favour of permitting further expert evidence if otherwise the party affected would have a legitimate sense of grievance that it had not be permitted to advance its case at trial.”

56. In Postiglione v The Queen (1997) 189 CLR 295 at 323; [1997] HCA 26, Gummow J stated:

“In R v Taudevin (68), Callaway JA said, in a passage with which I agree: ‘…it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer’”.

57. In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Gibbs CJ, with whom Wilson J agreed, at 610, stated that a situation resulting in a justifiable sense of grievance is one that “give[s] the appearance that justice has not been done".

58. In Wu v Statewide Development Pty Ltd, at [20], Brereton J determined that a legitimate sense of grievance arose in a situation where the “central issues were, in effect, decided by a single expert, when there was evidence that a competing expert view [was] likely to be available”.

59. In Coyne v Calabro [2009] NSWSC 1023, White J dealt with a similar issue and referred to Wu v Statewide Developments Pty Ltd. At [12], his Honour accepted the guidelines referred to in that case.

60. In Conias Hotels Pty Ltd v Murphy [2012] QSC 297, at [14]-[16], Applegarth J noted that situations in which a legitimate sense of grievance may arise include where:

1. a party is not allowed to call expert evidence;

2. there is a departure from the presumptive single expert rule by a further report which represents differences of subjective opinion; or

3. a party is required to pay for the costs that arise, and will arise, by permitting a further report to be provided, considered and responded to.

61. However, at [9], Applegarth J wrote:

“In considering where the interests of justice lie, one has to consider the sense of legitimate grievance that a party may have if, on the one hand, an order of the present kind is refused and, on the other hand, the sense of grievance a party may have if an order of the current kind is allowed. Obviously, there are other considerations, including the costs implications for parties, separately and collectively, and whether ordering a further expert will delay the trial” [emphasis added].

62. I respectfully agree with the guidelines suggested by Brereton J as being relevant to the determination of the question whether leave should be granted. However, I am also of the view that the main purposes of Division 2 of Part 31, which relates to expert evidence, as detailed in UCPR r 31.17, provide additional matters for consideration by the Court on that question. The Court should be mindful of those purposes.

63. With the utmost respect, I part company with Brereton J in respect of his view that the Court “… should be relatively ready to grant leave to adduce evidence from a separate expert …”. Whether to grant leave will be fact sensitive. It may be distracting to suggest that the Court should be more ready, or for that matter, less ready, to grant leave.

64. It is naturally with considerable hesitation that I find myself also in disagreement with the proposition that the existence of a competing expert opinion will, necessarily, be “significant”. An application for leave to adduce evidence in the circumstances is unlikely to be made unless there is a competing and differing expert opinion. The existence thereof, in my view, should simply be one of the factors that the Court may consider in determining whether to grant leave. In any event, the significance of the competing and differing opinion may not be able to be determined on the application for leave other than upon the question whether it goes to an issue of critical importance for the trial judge's decision in the case. Then, the question will turn on the interests of justice.

62. It is not possible to provide a bright line boundary between cases in which the existence of a competing expert opinion will, necessarily, be “significant” and cases where it will not. The nature of the issue for expert evidence whilst not determinative, will certainly be relevant.

63. Again, as stated by Applegarth J in Conias Hotels Pty Ltd v Murphy & Anor at [5]:

“It almost may be taken for granted that experts adopting the same methodology applied to the same facts and applying the same assumptions might come to different opinions, simply as a matter of professional judgment”.

67. Biscoe J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282, at [33], noted:

“Large differences of opinion between valuation experts are, unfortunately, a common occurrence in this court. The solution does not lie in permitting the parties to call more valuation experts to join the fray.”

68. Further, as was put by Pain J in Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70, at [16], “if the Court does too readily establish a practice of allowing in new expert evidence when there is a parties' single expert then the adoption of single experts will be undermined”.

69. The Court should also be aware of “expert shopping” and the possibility that an applicant is seeking another expert’s evidence simply because the single expert has come to a conclusion that does not assist his, her, or its, case. (The Defendant raised the possibility of expert shopping in written submissions.)

70. For example, in D v S [2009] QSC 446, Wilson J wrote at [8]:

“This is simply a case of the applicant having agreed to a joint valuation and then not liking the joint valuation she received. It is not necessary to ensure a fair trial of the proceeding that there be more than one expert on the value of the real estate. To allow the applicant to rely on the evidence of another expert in the circumstances would unnecessarily increase the costs of the litigation”.

71. As stated, other factors that should be considered in determining whether to grant leave includes s 56 of the Civil Procedure Act 2005 (NSW) and the obligation of the Court to give effect to the overriding purpose, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when it exercises any power given to it by this Act or by rules of court. The Court should also have regard to the important set of principles which underlie case management and the need for expeditious resolution of disputes. Time and again, the Court has referred to access to justice and its obligation to ensure that public resources are applied in the best way and to ensure the most efficient means possible. In this regard, any delay in making the application or in obtaining any competing expert opinion will be relevant.

72. However, I acknowledge, as Kirby J noted, albeit in another context, in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27, at 542, that “rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires.”

73. In summary, then, it may be said that Court will be faced, in determining the question implicit in UCPR r 31.44, with the clear task of balancing the interests of the parties, taking into account not only the overriding objective referred to in s 56 of the Civil Procedure Act, but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties. All relevant circumstances should be taken into account, and a competing expert opinion is one such circumstance. The Court must have its eye on the overall justice to both parties. It is to that issue the existence of a competing expert opinion might be, principally, relevant.

Submissions

74. Doing what I can to put it neutrally, and without disclosing the nature of Dr Phillips’ report, and dealing only with evidence, or lack of evidence, that was available, the Plaintiff submitted that Dr Peisah’s conclusion that certain limbs of a modified Banks v Goodfellow test had not been made out, needed to be tested against a competing opinion. A number of reasons were identified, all of which refer to the documentary evidence. I have carefully considered the submissions of the Plaintiff on this topic.

75. The Plaintiff contended that, as the main contest in these proceedings will likely be whether the deceased had testamentary capacity at the time she executed the 2019 Will, there was a risk that the evidence of the joint expert may be determinative of the issues of testamentary capacity and leave the Plaintiff with a “legitimate sense of grievance” that he had not been permitted to advance his case at trial. For reasons to which I shall come, I do not accept this submission.

76. Counsel for the Plaintiff also submitted that consideration should be given to the large value of the estate in these proceedings: Tcpt, 12 May 2021, p 26(07-12).

77. The Defendant, in submissions, pointed to the purpose of appointing a single expert in these proceedings as being “to avoid the time and expense occasioned by contested opposing opinions on questions of expertise”: Wu v Statewide Developments Pty Ltd, at [16].

78. The Defendant also submitted that the Plaintiff’s actions, in retaining Dr Phillips, have rendered futile the Court’s directions made on 15 February 2021, which were directed to the question of whether leave should be granted for the appointment of Dr Phillips, not its approval after the event.

79. The Defendant pointed to the fact that Dr Phillips’ report is dated 25 February 2021, only one day after one of the letters of instruction, and that it is improbable, given the nature of the report that was prepared, that it was done in the course of one day’s work. The Court should, therefore, infer that it was likely to have been under way before the Court was informed of the Plaintiff’s decision to engage Dr Phillips and that the conclusion that was open to be drawn was that the course adopted by the Plaintiff was an attempt to force the Court’s hand in the matter of whether or not leave should be granted.

80. It was submitted that the appropriate course in seeking leave would have been to put before the Court the matters on which it was proposed to seek Dr Phillips’ opinion, and any preliminary views by Dr Phillips in divergence from Dr Peisah’s opinion.

81. According to the Defendant, the Plaintiff, now, is simply dissatisfied with the conclusion reached by the joint expert and is casting about for another opinion that is favourable to his case.

82. The Defendant submitted that the Court should not lightly depart from the view that only one expert be appointed, for the following reasons:

1. Professor Peisah was one of the experts proposed by the Plaintiff and acceded to by the Defendant;

2. The Plaintiff had fully collaborated in the preparation of the letter of instructions, and in the selection of the material that was put before Professor Peisah; and

3. Given that Professor Peisah’s discipline is geriatric psychiatry, her expertise should be preferred to that of Dr Phillips, whose expertise is of a more generalist nature.

83. The Defendant further submitted that Dr Peisah’s carefully considered, and referenced, view, does not result in a “legitimate sense of grievance” on the Plaintiff’s part. An expert’s opinion will necessarily favour one party’s position over another’s and this is not ‘prejudice’ in the forensic sense, but rather the result of facts and fate.

84. The Defendant referred to the case of Ainsworth v Burden [2005] NSWCA 174, in which Hunt AJA, at [99], made a distinction between prejudice in the real sense, for example, prejudice stemming from one party’s having been taken by surprise in the litigation (and procedurally disadvantaged), about which a complaint may legitimately be made, and, on the other hand, prejudice arising out of evidence having the potential to deleteriously affect the outcome of one party’s case. The Defendant submitted that the latter species of prejudice is not “prejudicial” in the relevant sense and that is the case in these proceedings.

85. Counsel for the Defendant pointed to the following grievance which he submitted the Defendant would face if leave were granted to admit Dr Phillips’ report (Tcpt, 12 May 2021, p 40(01-36):

“HIS HONOUR: Before you sit down, you haven’t really told me, I don’t know whether you wish to or not, but what grievance would the defendant have if the evidence was allowed to be tendered?

I know the grievance the plaintiff might have, you say it is not a grievance, but he says that the issue of not being able to call Dr Phillips would mean that some of the evidence he wishes to lead wouldn’t be available. What grievance does the defendant suffer in circumstances where on one of the occasions the matter was before me the plaintiff offered to pay costs. I will read the precise notation that I made.

MAROYA: I understand the notation.

HIS HONOUR: As a condition of being able to adduce the expert evidence the plaintiff will consent to bearing the burden of any additional costs incurred by himself and the defendant in relying upon the evidence of Dr Phillips, subject to any other order of the Court.

So costs, increasing costs can’t be a grievance. What are the grievances that you--

MAROYA: The grievance is this your Honour, the defendant having tried to mount an early opposition to the appointment of a Court single expert, the defendant having vociferously suggested that a geriatrician of the sorts identified in correspondence annexed to Mr Reid’s affidavit of 21 August having suggested that one of those specialists might be appointed, the defendant consented to the appointment of the Court’s single expert in the hope that that exercise, an expert as is known, an expert suggested by the plaintiff, the defendant consented to that course in the hope that would result in a saving of time and costs.

HIS HONOUR: I understand that. I understand there is a potential for costs and time but in relation to costs you have got the undertaking or the acceptance that if it’s going to be a condition that he pays the costs that is caused by the increase. The costs aren’t going to be, at least in theory, a grievance.”

86. (There was no evidence that the Plaintiff would not be able to satisfy any costs order that was made if leave were granted and costs were increased (as they undoubtedly will).)

Reliance upon medical experts who had not seen the deceased

87. It must be remembered that the substantive proceedings are probate proceedings.

88. Almost 100 years ago, in Bailey v Bailey (1924) 34 CLR 558 at 572; [1924] HCA 21, Isaacs J set out what he described as “working propositions”, which included (1) that opinions of witnesses as to testamentary capacity are “usually for various reasons of little weight on the direct issue”; and (2) that, while such opinions are not without some weight, “the Court must judge from the facts they state and not from their opinions”.

89. In any event, it is well-established that evidence of a treating doctor, or an expert, who had the opportunity to treat, or assess, the will-maker is preferable to evidence of an expert whose assessment of the deceased is ex post facto. In Hawes vBurgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, wrote, at [60]:

“The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

90. In Nicholson v Knaggs [2009] VSC 64, Vickery J wrote, at [39] – [41]:

“Expert Medical Evidence

The parties called expert neuro-psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case. In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand. The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents.

Consistently with the approach of Judd J in Foster & Ors v Mellor, I respectfully adopt what was said by Windeyer J in Revie v Druitt:

‘As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.’

In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.”

91. In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, the Court of Appeal wrote, at [65] and at [89]:

“The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. …

…

In a probate suit, the vital evidence is very often not given by medical experts but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes.”

92. In Frizzo v Frizzo [2011] QSC 107, where a doctor (Dr Byrne) was appointed as a joint medical expert in relation to the question of whether the testatrix had testamentary capacity at the time she made the 2006 Will, P Lyons J granted leave pursuant to the equivalent rule in Queensland, over the opposition of the defendants, for the plaintiffs to rely on the expert evidence of another expert (Dr Hecker), who had reached a different conclusion to Dr Byrne. At the final hearing, Applegarth J, at [31], noted that the issue of testamentary capacity was not one decided by expert witnesses, even by expert witnesses of the standing of Dr Byrne and Dr Hecker. They had not had the opportunity to observe the will-maker and assess her testamentary capacity on 28 January 2006.

93. In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133], the Court (comprising Gleeson, Leeming and Simpson JJA) noted that the trial Judge had “discounted the evidence of both experts on the basis that they had never met [the deceased]. Contrary to some of the submissions advanced by [the appellant, cross-respondent], there is no difficulty with his Honour having done so”.

94. In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J noted, at [87], that “The question of capacity is a legal rather than a medical question, which is to be determined by ‘commonsense judicial judgment on the basis of the whole of the evidence’”.

95. Ultimately, whilst the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is a question of fact for the trial judge, and lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303, at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing).

96. These authorities demonstrate that the evidence of Professor Peisah, and if leave were granted, of Dr Phillips, would only be part of the evidence to be considered, and that, in any event, the evidence of each may be discounted as she, and he, had not seen the deceased at the time the 2019 Will was made.

97. Importantly, yet surprisingly, counsel for each party accepted that consideration has not yet been given to obtaining the evidence of any treating doctor: Tcpt, 12 May 2021, p 46(27-33).

Determination

98. A significant issue in the case will be, of course, whether the deceased retained testamentary capacity at the time she executed the 2019 Will. However, that is not the issue upon which any expert should provide an opinion.

99. As I have recently reiterated in Starr v Miller; Starr v Miller [2021] NSWSC 426, at [457] – [458]:

“Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J).

Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at §19 (Lam VP).”

100. I also wrote, at [462]:

“Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case.”

101. Thus, the question whether the deceased had testamentary capacity is answered by the trial Judge.

102. The questions which Professor Peisah has considered, principally, relate to the medical conditions from which the deceased is said to have suffered. She identified two conditions, which she described as “disorders of mind, namely (i) neurodegenerative vascular brain disease; and (ii) delirium secondary to her medical state”. She opined that there was, “possibly”, “a third disorder of the mind, namely cerebral metastases”. Undoubtedly, she can be challenged on her conclusions that the deceased suffered from each of these conditions.

103. I have carefully considered the evidence relied upon in support of the notice of motion as well as the principles that apply in respect of the notice of motion. The following matters seem to me to be particularly important in exercising the Court’s discretion:

1. The proceedings are contested probate proceedings and the task of the Court is to determine which is the last valid will of the deceased. A judgment in probate is a judgment in rem. It is not only the parties that are affected by the decision, but often the community at large.

2. Neither Professor Peisah, nor Dr Phillips, ever met the deceased and each reviewed documents to reach the conclusions that she, and he, has reached. That documentary evidence relied upon is likely to be tendered, in whole or in part, at the hearing. The parties will, no doubt, refer to the relevant parts of the documents tendered. The Court will be required to review that evidence. This is not a case in which there will be no available contemporaneous evidence upon which the opinion of Professor Peisah can be contradicted.

1. Professor Peisah is an expert in whom the Plaintiff, and subsequently, both parties, had confidence. There was no dispute that she was an expert, initially, nominated by the Plaintiff and accepted by the Defendant. The legal representatives of both parties participated in providing instructions to her and delivering the documents considered relevant to her consideration of the questions that they jointly posed. There was a period of about 3 months taken to reach the stage that the evidence could be provided to her.

2. Clause 2 of Schedule 7 to the UCPR is applicable, and Professor Peisah, as the expert witness, has an overriding duty to assist the court, impartially, on matters relevant to her areas of expertise and her paramount duty is not as an advocate for a party, but to the Court.

3. There was no attempt made by the Plaintiff to clarify Professor Peisah’s conclusions before seeking a report from Dr Phillips. Importantly, he did not utilize UCPR r 31.41(1), by notice in writing sent to Professor Peisah seeking clarification of any aspects of the report that she had given.

4. There is nothing to prevent the Plaintiff, having engaged Dr Phillips, as his own expert, to have him advise upon, and to direct, cross-examination on the report of Professor Peisah, at the hearing, in order to establish that her opinion on the medical conditions from which the deceased suffered and the effects of those conditions should not be accepted, or to amplify the conclusions reached by her. Cross-examination can be truly effective where there is evidence to support that which is put in cross-examination. That evidence would be found, or not found, as the case may be, in the contemporaneous documentary evidence that is tendered.

5. An important purpose of the appointment of a joint expert is to explain the medical terminology and the medical conditions from which the deceased suffered, which will be of undoubted assistance in helping the trial judge understand the evidence in a particular case. This type of evidence should be largely uncontroversial. To the extent that it is controversial, it may be based on matters of personal judgment and general impression. On this aspect, the Court is likely to form its own view based upon all of the evidence given in the case. I have dealt with the authorities earlier.

6. If Professor Peisah’s evidence is successfully challenged, it may assist the Plaintiff to prove the case that the 2019 Will is valid. Furthermore, the testing of her evidence, by cross-examination, will materially assist the trial Judge in reaching a decision.

7. This is not a case that patently depends upon the evidence of a single, or multiple, experts. Many questions in probate cases involving medical expertise will not, necessarily, admit of any unequivocal answer. That, perhaps, explains why, one focus, although not the only focus, of the enquiry, is to ascertain whether the deceased suffered from any medical conditions that affected her capacity to make the 2019 Will or know and approve its contents. Another focus is upon the process by which the disputed Will was produced. To put it another way, the extent to which the deceased lacked testamentary capacity, or did not know and approve the 2019 Will is, ultimately, a matter for analysis by the trial Judge on the basis of all of the evidence, as a whole, rather than one simply upon which the medical experts provide an opinion.

8. The mere fact that a party produces a report which contradicts the opinion of the joint expert should not, of itself, necessarily be sufficient to warrant a grant of leave, where the order appointing the joint expert has been made. This is not to say that the areas of disagreement should not be considered to determine their significance on the application for leave.

9. Any application for separate experts should have been made as soon as reasonably possible, and, preferably, before the appointment of the joint expert, who, in this case, the Plaintiff had nominated and with whom the Defendant had agreed. Since it was not, there should be a sworn explanation by the party seeking leave explaining why a change from joint to multiple experts has been sought. The explanation should include more than the joint expert report is inconsistent with the case being advanced by the party seeking leave.

10. Another factor considered relates to case management principles and the need for the courts to provide, so far as is possible, expeditious resolution of disputes. There has already been some delay in obtaining Professor Peisah’s report, and then with dealing with the Plaintiff’s notice of motion. There would be further delay even though a copy of the report of Dr Phillips has already been served. If leave were granted, the Court would direct Professor Peisah and Dr Phillips (a) to confer, either generally, or in relation to specified matters, and (b) to endeavour to reach agreement on any matters in issue, and (c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and (d) to base any joint report on specified facts or assumptions of fact. That will take time. Even though the substantive proceedings have not yet been listed for hearing, there will be a delay in being able to do so pending any conclave of experts.

11. Regard to the potential cost implications of any procedural order must be considered. Those costs include not only the costs of the party seeking the grant of leave but also the potential costs to the other party. In this case, the factor has been ameliorated, perhaps to the point of extinction, by the Plaintiff consenting, as a condition of being able to adduce the expert evidence of Dr Phillips, to bearing the burden of any additional costs incurred by himself and by the Defendant in relying upon the evidence of Dr Phillips, subject to either party making such application as is necessary in respect of those costs at the conclusion of the hearing.

104. Ultimately, and considering all of the evidence, I have asked myself, amongst other things, whether, if the Plaintiff is not granted leave to rely upon the report of Dr Phillips, and he loses the case, will he have a legitimate sense of grievance judged objectively? The assessment of the legitimacy of a sense of grievance for the purposes of determining whether to permit the Plaintiff to adduce the evidence of Dr Phillips should be conducted on objective grounds. A sense of grievance which arises merely as a result of “the nature of litigation” will not be considered legitimate: Cosgrove v Pattison [2001] CP Rep 68; [2000] All ER (D) 2007.

105. The evidence from one, or perhaps, two experts, each of whom never met the deceased, whilst relevant, is not the only evidence that will determine the issues to be determined. Even at this stage, one could comfortably conclude, that, on its own, the opinion of one, or other, such expert will not carry the day. It will really be a matter for analysis by the Court on the basis of the evidence as a whole rather than for one, or even, two, experts to opine upon guided by all of the evidence.

106. As has been repeated, in a probate suit, the vital evidence, very often, is not given by medical experts who never saw the deceased but is given by treating medical practitioners and experienced lay observers. Often, in deciding a probate case, valuable evidence is given by the solicitor who took instructions for, and often, who witnessed the disputed Will, as well as other lay witnesses who observed the deceased. A very highly qualified geriatrician or psychiatrist whose evidence is based not on any personal observation of the will-maker, but who has reasoned her, or his, opinion from medical, hospital, and other documents, whilst relevant, is unlikely to be determinative. I am not satisfied that the Court would be assisted by calling another expert witness who did not see the deceased at any time.

107. The Plaintiff will be able to test the evidence of Professor Peisah, the joint expert, as he is entitled to do, using Dr Phillips’ report if he considers it useful. There is no restriction on cross-examination or questions which will lead to amplification of her report.

108. Taking into account all of the matters, I am not persuaded that the Plaintiff would suffer a legitimate sense of grievance. No doubt, he would be disappointed, but in circumstances where the trial judge will be required to consider all of the evidence, both lay and medical, and reach a carefully considered conclusion based upon that evidence, such disappointment cannot properly be regarded as a legitimate sense of grievance judged objectively. As stated, the opinion of one, or two, experts, who had not seen the deceased, is unlikely to be determinative of the case.

109. Finally, the consequence of dismissing the Plaintiff’s notice of motion, in my view, will not be that he will be deprived of making out his case at trial. Indeed, no submission to that effect was made.

110. Furthermore, and for abundant caution, and in order to alleviate any sense of grievance that the Plaintiff may feel, I shall allow each of the parties the opportunity to clarify any aspects of Professor Peisah’s report that he wishes to. Naturally, at the hearing, he will be able to cross-examine Professor Peisah and put to her all of the matters raised by Dr Phillips that are relevant to her conclusions.

111. In addition, I shall allow both parties the opportunity to consider whether it is necessary to issue any additional subpoenas to obtain the contemporaneous medical records of any medical practitioner who treated the deceased that have not yet been issued or obtain the evidence of any treating medical practitioner that has not yet been obtained. The production of such evidence may be far more helpful to the Court in determining whether the deceased had, or did not have, testamentary capacity at the time she made the 2019 Will. If further affidavit evidence is required, the parties should seek directions as soon as reasonably possible.

112. In the circumstances, the Court:

1. Orders that the Plaintiff’s notice of motion filed on 4 March 2021 be dismissed.

2. Orders that the Plaintiff pay the Defendant’s costs of the notice of motion.

3. Orders that the time within which each party may, by notice in writing, seek clarification of any aspect of Professor Peisah’s report, in the form of questions, no more than 10 in number, or otherwise, be extended to 4:00 p.m. on 15 June 2021.

4. Orders, pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the grounds set out in subs 8(1)(a) of the Act, namely, that the order is necessary to prevent prejudice to the proper administration of justice that the report dated 25 February 2021, of Dr Johnathan Phillips AM, Consultant Psychiatrist, and any matter tending to reveal, or disclose, its contents and conclusions, be treated as confidential and not be published or disclosed.

5. Orders, pursuant to s 12 of the Court Suppression and Non-publication Orders Act, that the non-publication order continue until the conclusion of the substantive proceedings and the delivery of reasons for judgment, or further order of the Court.

6. Stands over the proceedings for further directions to a date to be determined when these reasons are published.

7. Orders that that these orders be entered forthwith.

******************

Decision last updated: 26 May 2021