Wild v Meduri

[2024] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wild v Meduri [2024] NSWCA 230

Hearing dates:

17-19 October 2023

Date of orders:

26 September 2024

Decision date:

26 September 2024

Before:

Bell CJ at [1];
White JA at [281];
Kirk JA at [333]

Decision:

Proceedings 2023/93737

Appeal be dismissed with costs.

Proceedings 2023/93752

Appeal be dismissed with costs.

Catchwords:

SUCCESSION – contested probate – testamentary capacity – lack of knowledge and approval – where primary judge’s findings were predicated upon his view of the credibility of the witnesses assessed in the context of the whole body of evidence including contemporaneous medical records and the views of joint experts – Fox v Percy – where lay evidence was diametrically opposed – where no contemporaneous file notes made by the solicitor who prepared the will

LEGAL PRACTITIONERS – solicitors – whether the primary judge erred in his assessment of the evidence of the solicitor who prepared the will on the basis that the solicitor was also the solicitor on record for the Respondents – where the primary judge held that the solicitor should have ceased to act earlier than he did

APPEALS – from findings of fact – inferences from primary facts – Jones v Dunkel inference – where a witness swore affidavits in support of the Respondents’ case but was not called by the Respondents – where the witness was called by the Appellant but did not appear and a bench warrant was not issued – whether it was natural to expect the witness to have been called – where the witness was a family member with mental health issues and associated vulnerability

EVIDENCE – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect”

ESTOPPEL – equitable estoppel – estoppel by encouragement – proprietary estoppel – estoppel by acquiescence – where primary judge’s findings as to estoppel expressed in the alternative and as a contingency – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 29, 61-62

Evidence Act 1995 (NSW) ss 55, 76, 78, 135 140

Supreme Court Act 1970 (NSW) ss 75A, 101

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 27

Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 2.3(k), 31.1

Cases Cited:

Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73

Attwell v Morgan [2019] WASC 182

Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147; (2021) 157 ACSR 77

Banks v Goodfellow (1870) LR 5 QB 549

Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883)

BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chen v Chu [2024] NSWSC 1139

Chu v Lin, Gold Stone Capital Pty Ltd [2024] FCA 766

Commonwealth v Riley (1984) 5 FCR 8

Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379

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

Croft v Sanders [2019] NSWCA 303

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 458

Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551

Hampson v Hampson [2010] NSWCA 359

J and E Vella Pty Ltd v Hobson [2023] NSWCA 234

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Kerr v Estate of Badran [2004] NSWSC 735

Key v Key [2010] 1 WLR 2020; [2010] EWHC 408

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Lim v Lim [2022] NSWSC 454

Lim v Lim [2023] NSWCA 84

Ling v Pang [2023] NSWCA 112

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688

LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2001] NSWSC 886

Loupos v Demirgelis [2008] NSWSC 1207

Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275

Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785

R v Noble [2002] 1 Qd R 432; [2000] QCA 523

R v Wright (1985) 19 A Crim R 17

Re Griffith; Easter v Griffith (1995) 217 ALR 284

Revie v Druitt [2005] NSWSC 902

Salmon v Albarran [2023] NSWSC 1238; (2023) 414 ALR 36

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29

Watson v Foxman (1995) 49 NSWLR 315

White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817

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

Texts Cited:

J D Heydon, Cross on Evidence (7th ed, 2004, LexisNexis)

J D Heydon, Cross on Evidence (13th ed, 2021, Lexis Nexis)

J H Wigmore, Wigmore on Evidence (3rd ed, Little, Brown and Co., 1978)

Justice A Robertson, “Affidavit Evidence” [2014] Federal Judicial Scholarship 3

S Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters)

H Stowe, A Vial, H Paterson and M Temler, “Conversational evidence: A stake in the heart of ‘direct speech’ & the psychology of conversational memory” (2023, Summer) Bar News, Journal of the NSW Bar Association 50

J P Bryson QC, “How to Draft an Affidavit” (1985) 1 Australian Bar Review 250

Australian Law Reform Commission’s Interim Report on Evidence (ALRC 26, 1985)

W Wills, Wills on the Law of Evidence (3rd ed, 1938, Stevens & Sons)

Category:

Principal judgment

Parties:

Rose Marie Wild (Appellant)
Dominic Meduri (First Respondent)
John Meduri (Second Respondent)
Richard John Neal (Third Respondent)

Representation:

Counsel:
N Owens SC with N Kirby (Appellant)
J Needham SC with A Joseph (First and Second Respondents)

Solicitors:
McIntyre Legal (Appellant)
Puleo Lawyers (First and Second Respondents)
Teece Hodgson & Ward (Third Respondent)

File Number(s):

2023/00093737; 2023/00093752

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 113; [2023] NSWSC 669

Date of Decision:

23 February 2023; 20 June 2023

Before:

Hallen J

File Number(s):

2020/00239852; 2021/00091132; 2021/00144417

HEADNOTE

[This headnote is not to be read as part of the judgment]

The late Elisabetta Meduri (Elisabetta or the deceased) died aged 98 on 8 June 2020. She was survived by six children: Concetta (Connie), Rosa (Rose or the Appellant), Antonio (Tony), Dominico (Dominic), Giuseppe Jnr (Joseph) and Giovanni (John). She was predeceased by her husband, Giuseppe Meduri (Giuseppe), who died on 26 July 2009.

Following Elisabetta’s death, three sets of proceedings were brought and determined together by Hallen J (the primary judge) on 23 February 2023: Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113. Separate appeals were brought by Rose “from the whole of the decision” of the primary judge, including the decision as to costs, in relation to two of those proceedings, namely:

1. the Probate Proceedings, brought by Rose seeking that letters of administration of the deceased’s estate, on intestacy, be granted to her. Dominic and John filed a cross-claim on 1 October 2020, propounding a Will dated 18 September 2009 (the 2009 Will), as a valid will of the deceased appointing Dominic and John as the deceased’s Executors; and

2. the Trust Proceedings, brought by Dominic and John, seeking a declaration that a property situated at Herbert Street, Kemps Creek (the Kemps Creek property) was held on trust by the estate for them as tenants in common in equal shares or, in the alternative, a family provision order.

The terms of the 2009 Will appointed Dominic and John as the executors and trustees of the deceased’s estate. The 2009 Will also gave to Dominic and John the Kemps Creek property as tenants in common in equal shares. Pursuant to the 2009 Will, Rose and Connie inherited a property in Bossley Park as tenants in common in equal shares as well as the deceased’s jewellery and Tony was given a property at Smithfield. Another property at Bossley Park was to be held on trust by the trustees for Joseph. Each of the deceased’s children were also given a one-sixth share of the residue of the estate, with Joseph’s share to be held on trust. With the exception of the provisions made for Joseph, the 2009 Will largely mirrored the terms of Giuseppe’s earlier will.

There was no appeal from the primary judge’s determination in the third set of proceedings determined by him in which his Honour held that adequate provision pursuant to the 2009 Will had not been made for Joseph (a person under legal capacity) and that he ought to receive a lump sum out of the proceeds of sale of the property provided to him on trust by the 2009 Will.

The central issue in the Probate Proceedings was whether the deceased possessed testamentary capacity at the time the 2009 Will was executed and also whether the deceased knew and approved of the contents of the 2009 Will. Rose’s contention was that the deceased lacked testamentary capacity at least by the time she made the 2009 Will (and on her case, by the early 1990s). She gave evidence in the proceedings in addition to several lay witnesses.

Dominic and John’s case was that the deceased did possess capacity at the time she made the 2009 Will and continued to do so at least until the point at which she entered a nursing home in 2017. They also gave evidence in the proceedings alongside a number of lay witnesses, including Mr Puleo, the solicitor who had taken instructions for, prepared and been a witness to the 2009 Will. Mr Puleo was also, for a time, the solicitor on record in the proceedings at first instance. The primary judge took a generally favourable view of the witnesses called by, and including, Dominic and John, and a less favourable view of the witnesses called by, and including, Rose.

The deceased’s regular general practitioner, Dr Francesco Romeo, also gave evidence in the proceedings. Dr Romeo’s contemporaneous notes were before the Court in addition to a considerable volume of medical records which were obtained from the deceased’s general practice, five hospitals and two nursing homes.

Expert evidence was led from two jointly appointed experts. The experts relevantly agreed that at the time the deceased made the 2009 Will, she was “more likely than not” suffering from a “clinically significant cognitive impairment”, although they disagreed about a number of matters including the extent or degree of that impairment.

The primary judge held that the 2009 Will was valid, and dismissed the Probate Proceedings brought by Rose and upheld the cross-claim brought by Dominic and John. Although the primary judge therefore held that there was no need to determine the Trust Proceedings, his Honour noted that he was satisfied that Dominic and John had made out their claims that the Kemps Creek property was held on trust for them by way of a proprietary estoppel as against the deceased and Giuseppe. Their family provision claim was thus unnecessary to determine.

Rose was ordered to pay 85% of Dominic and John’s costs on an ordinary basis in the Probate Proceedings and to bear her own costs. This order reflected that Rose was also ordered to pay Dominic and John’s costs in the Trust Proceedings, other than those costs incurred in respect of their claim for a family provision order.

By grounds 1 and 2 of the appeal in the Probate Proceedings, the Appellant argued that the primary judge erred in finding that the deceased had testamentary capacity at the time she entered into, and knew and approved of the contents of, the 2009 Will. Ground 3 was directed to questions of sufficiency of weight given to the evidence of particular witnesses, particularly the evidence of the joint experts, and, alongside ground 4 (which concerned the primary judge’s assessment of the evidence of Mr Puleo) was underpinned by several discrete challenges to factual findings by the primary judge.

The Court held (Bell CJ, White JA and Kirk JA agreeing), dismissing the appeals in both proceedings:

As to grounds 1-3:

1. The primary judge gave appropriate weight to the expert evidence in circumstances where neither expert had ever met the deceased and their opinions were based on a process of reverse extrapolation from medical records relating to the deceased in 2014: [214] (Bell CJ), [281] (White JA), [333] (Kirk JA).

Lim v Lim [2022] NSWSC 454, Revie v Druitt [2005] NSWSC 902, Kerr v Estate of Badran [2004] NSWSC 735, Attwell v Morgan [2019] WASC 182, Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, Key v Key [2010] 1 WLR 2020, Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197, Croft v Sanders [2019] NSWCA 303, referred to.

2. There was no cogent evidence of a lack of cognitive capacity in relatively contemporaneous medical records of Dr Romeo. There was also a wealth of medical records which either addressed the deceased’s cognition positively or, failed to make any notation of matters consistent with a level of cognitive decay as at 2009. The significance of the medical records was reinforced by other evidence, including that of Mr Puleo and the lay witnesses who were accepted by the primary judge as witnesses of credit: [215], [219].

3. Once the assumptions put to the experts by counsel for the Respondents were taken into account, the strength of the experts’ opinions as to testamentary capacity was very much reduced, highlighting why the identification of an expert’s assumptions in any given case is important: [236]-[237].

Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275, Banks v Goodfellow (1870) LR 5 QB 549, Loupos v Demirgelis [2008] NSWSC 1207, Re Griffith; Easter v Griffith (1995) 217 ALR 284, referred to.

4. Having closely reviewed all of the evidence, including the medical records, the joint report and cross examination of the experts, and taken into account the limited successful factual challenges, bearing in mind the primary judge’s advantages in his assessments of the credibility of the witnesses, grounds 1-3 of the appeal in the Probate Proceedings were rejected: [258].

Discussion as to the manner of giving evidence of conversations

5. When affidavit evidence is given in direct speech but prefaced by “words to the effect” or some like expression, a witness is not providing or purporting to provide a verbatim recollection of a conversation and should not be penalised for giving evidence in such a form. The traditional New South Wales practice of drafting should not be departed from: [244]-[254] (Bell CJ).

6. Insofar as a witness recalls actual words used then the witness should state those words in direct speech. Insofar as the witness recalls only the substance of what was said then they can give evidence accordingly. Such evidence can be in the form of direct speech – after explaining that it is recording only the substance, effect or gist of what was said – or in indirect speech. The aim should be to capture the best recollection of the witness with a level of detail appropriate and relevant for the issue in the case, doing so in a way that is not misleading with respect to the level of detail that the witness remembers, and which meaningfully captures what the witness remembers in a way that the witness has expressed and can explain. In instances where particular spoken words are the foundation of a legal claim it is desirable that the witness’s recollection of the substance of those words be put into direct speech, in terms indicating that the witness is testifying to the substance or gist of what was said: [254] (Bell CJ), [356] (Kirk JA).

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Chu v Lin, Gold Stone Capital Pty Ltd [2024] FCA 766, Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156, disapproved.

Queensland v Masson [2020] HCA 28, Gan v Xie [2023] NSWCA 163, Watson v Foxman (1995) 49 NSWLR 315, LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31, Chen v Chu [2024] NSWSC 1139, White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817, Salmon v Albarran [2023] NSWSC 1238, BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421, Legione v Hateley (1983) 152 CLR 406, Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, Briginshaw v Briginshaw (1938) 60 CLR 336, Commonwealth of Australia v Riley (1984) 5 FCR 8, Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73, R v Wright (1985) 19 A Crim R 17, R v Noble [2002] 1 Qd R 432, Hamilton-Smith v George (2006) 247 FCR 238, Hampson v Hampson [2010] NSWCA 359, Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670, Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147, Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883), referred to.

7. Separate observations by White JA in relation to the New South Wales practice, that because the evidence of the witness in his or her affidavit or witness statement is the witness’ evidence in chief, it should be given in the witness’ own words, approving Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Chu v Lin, Gold Stone Capital Pty Ltd [2024] FCA 766, Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 and Gan v Xie [2023] NSWCA 163: [282]-[329].

As to ground 4:

8. The primary judge did not err in his assessment of Mr Puleo’s evidence notwithstanding that Mr Puleo continued to act for the Respondents when he should not have done so. The primary judge did not accept that Mr Puleo’s objectivity when deposing as to the deceased’s capacity was clouded. His Honour had a distinct advantage over the Court of Appeal in making that assessment: [184]-[186].

As to the Trust Proceedings:

9. In light of the conclusions in relation to the Probate Proceedings, it was not necessary to deal with the extensive challenges to the primary judge’s contingent findings in the Trust Proceedings: [267].

As to costs:

10. There should be no disturbance of the costs orders in either proceeding. The primary judge’s discretionary decision was not only open to him, but entirely reasonable and not affected by any error of principle warranting appellate intervention: [271]-[277].

JUDGMENT

1. BELL CJ: This judgment concerns the estate of the late Elisabetta Meduri (Elisabetta or the deceased), who died aged 98 on 8 June 2020. The proceedings arising out of her testamentary affairs have been regrettably complex.

2. Elisabetta was survived by six children, who, in descending age order, are Concetta DiMaria (Connie), Rosa Wild (Rose or the Appellant), Antonio Meduri (Tony), Dominico Meduri (Dominic), Giuseppe Meduri Jnr (Joseph) and Giovanni Meduri (John). She was predeceased by her husband, Giuseppe Meduri (Giuseppe), who died on 26 July 2009. I refer to parties by their first names without intending any disrespect. Dominic and John are together the Respondents.

3. Following Elisabetta’s death, three sets of proceedings were brought and determined together by Hallen J (the primary judge) in a judgment delivered on 23 February 2023: Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113 (the primary judgment or PJ). Prior to the hearing of the matters, Mr Richard Neal (the administrator), an experienced solicitor practising in the area of wills and probate, was appointed by consent as interim administrator pendente lite and receiver of the estate of the deceased. The administrator is the Third Respondent to the appeals the subject of this judgment but is only joined in his capacity as administrator. He played no substantive role in the hearing of the appeals.

1. The three sets of proceedings before the primary judge were, in short summary, as follows:

1. 2020/239852 (the Probate Proceedings), brought by Rose on 24 August 2020, seeking that letters of administration of the deceased’s estate, on intestacy, be granted to her. Dominic and John filed a cross-claim on 1 October 2020, propounding a Will dated 18 September 2009 (the 2009 Will), as a valid will of the deceased appointing Dominic and John as the deceased’s executors;

2. 2021/91132 (the Trust Proceedings), brought by Dominic and John pursuant to a Statement of Claim filed on 1 April 2021, seeking a declaration that a property situated at Herbert Street, Kemps Creek (the Kemps Creek property) was held on trust by the estate for them as tenants in common in equal shares. In the alternative, each of Dominic and John sought a family provision order and an order extending the time for the making of such an application; and

3. 2021/144417 (Joseph’s Proceedings), in which Joseph, by the NSW Trustee and Guardian, acting as his tutor (as Joseph is a person under a legal incapacity), sought a family provision order.

5. The primary judge held that the 2009 Will was valid, and dismissed the Probate Proceedings brought by Rose and upheld the cross-claim brought by Dominic and John. The primary judge further held that there was no need to determine the Trust Proceedings because, under the 2009 Will, Dominic and John were to receive an absolute devise of the Kemps Creek property. However, the primary judge noted that he was satisfied that Dominic and John had made out their claims that the Kemps Creek property was held on trust as against the deceased and Giuseppe. Their family provision claim was therefore unnecessary to determine.

6. In respect of Joseph’s Proceedings, the primary judge held that adequate provision for the proper maintenance or advancement in life of Joseph had not been made by the 2009 Will and that he ought to receive a lump sum out of the proceeds of sale of the property provided to him on trust in the 2009 Will. Joseph’s Proceedings were not the subject of any appeal and it is not necessary to go into any detail about them.

7. The primary judge gave a further judgment on costs: Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors No 2 [2023] NSWSC 669 (the costs judgment). In the Probate Proceedings, Rose was ordered to pay 85% of Dominic and John’s costs on an ordinary basis, and ordered to bear her own costs. The primary judge made specific orders as to how the balance of costs should be paid. In the Trust Proceedings, the primary judge ordered that Rose pay Dominic and John’s costs of the proceedings, other than in respect of the claim for a family provision order, in respect of which Rose was to receive her costs from various specific assets in the estate proportionately. This order was taken into account in reaching the percentage costs order made in the Probate Proceedings. The assets which were set aside to provide for Joseph were not subject to these costs orders. All costs in Joseph’s Proceeding were to be paid out of the estate of the deceased on an ordinary basis, with Rose’s costs to be paid out of the residuary estate (or otherwise proportionately out of other property).

8. Separate appeals were brought in the Probate and Trust Proceedings “from the whole of the decision” of the primary judge, including the decision on costs. There were eight grounds of appeal propounded in each proceeding, although there is some overlap between them. In truth, when one considers the terms of the separate notices of appeal, the matter is rendered even more complex because of the detailed and lengthy nature of many of the grounds of appeal, and their interaction with each other. Further difficulty is presented by the fact that, in part at least, the primary judge’s conclusions were influenced by the impressions he formed of witnesses over the course of a lengthy and hard fought trial.

9. The appeal is brought as of right (pursuant to s 101(1) of the Supreme Court Act 1970 (NSW) (Supreme Court Act)) and is an appeal by way of rehearing (pursuant to s 75A(5) of the Supreme Court Act). The appeals are, as Mr Owens SC, who appeared on appeal for Rose, put in written submissions, “a comprehensive challenge to Hallen J’s findings of fact.”

10. In addition to the grounds of appeal raised in both proceedings, there are 15 specific challenges to the findings of fact in the Probate Proceedings and a further seven challenges to the findings of fact in respect of the Trust Proceedings.

11. It is desirable, at the outset, to provide some further background and to supply a broad overview of the primary judge’s reasoning process.

Background

12. The deceased was born in Italy in 1921, and married Giuseppe in 1947. They emigrated to Australia in about 1958. Despite her lengthy period of residence in Australia, the deceased spoke Calabrese, a dialect of Italian, and only limited English. She was unable to read or write in any language, and signed documents with an “X” to represent her name.

13. Connie, the deceased and Giuseppe’s eldest child, was born on 10 March 1950, followed by Rose on 6 September 1952 and Tony on 6 November 1954. After the deceased and Giuseppe, along with their first three children, arrived in Australia, Dominic was born on 11 March 1961, Joseph on 2 June 1962 and John on 31 January 1967.

14. In about 1980, Dominic and his wife, Ms Karen Nash, moved to Crookwell where they lived with Karen’s parents. They remained living there until early 1989. In about 1988, John and his then-partner lived in a caravan for approximately one year. John later married Ms Ruby Meduri in 2004.

15. On 16 December 1988, Giuseppe and the deceased purchased the Kemps Creek property as joint tenants for $360,000. Mr Puleo, a solicitor, was engaged to assist in the purchase. In early 1989, Dominic and his family and John and his then-partner, moved onto the Kemps Creek property where they remained living up to, and following, the deceased’s passing in 2020. (In the Trust Proceedings, and putting the matter broadly for present purposes, Dominic and John claimed that both of their parents had promised them that they could live on the Kemps Creek property for their lives on condition that they pay the rates, and that they made improvements to the property on the faith on their parents’ inducements.)

16. In 1991, Rose commenced her relationship with Mr Alan Wild. They were married in 1994.

17. In around 1992, the deceased and Giuseppe built their home at 7 Onyx Close, Bossley Park.

18. On 15 June 2001, Giuseppe made his last will. This will was prepared by Mr Puleo. Mr Puleo could not recall whether the deceased was present when he took instructions in relation to Giuseppe’s Will. However, his evidence was that he last saw her prior to taking instructions from her in relation to the 2009 Will in about 2001. Giuseppe’s Will left the entirety of his estate to his wife but, contingently, in the event that she predeceased him, he left various properties to each of his children in the same manner that, eight years later, his wife did in the 2009 Will.

19. In about 2007, Connie moved into 7 Onyx Close permanently to live with the deceased and Giuseppe and assist them with their domestic needs as Giuseppe had become unwell, although medical records from 8 March 2005 which noted that the deceased “lives w daughter – carer” suggest that Connie was caring for the deceased and Giuseppe from an earlier time. Connie continued to live with and care for the deceased following Giuseppe’s death on 26 July 2009. This fact is of some relevance in light of the lively dispute as to the deceased’s testamentary capacity when the 2009 Will was signed.

20. On 17 August 2009, Puleo Lawyers wrote to National Australia Bank requesting information in relation to Giuseppe’s estate. Dominic, John and the deceased signed an Affidavit of Executors in the presence of Mr Puleo in relation to the grant of probate for Giuseppe’s estate on 18 September 2009. On 29 September 2009, probate of Giuseppe’s Will was granted to the deceased, Dominic and John.

The 2009 Will

21. On 18 September 2009, just under eight weeks after Giuseppe’s death, the deceased, along with three of her children: Connie, Dominic and John, attended Mr Puleo’s offices to sign the 2009 Will. The attesting witnesses to the Will were Mr Puleo and Ms Melissa Williams, who was then a secretary at Puleo Lawyers. The deceased was 87 years old at the time the 2009 Will was signed.

22. Pursuant to Giuseppe’s Will, the deceased had inherited all of Giuseppe’s real and personal assets. The 2009 Will was drafted and witnessed by Mr Puleo. Mr Puleo’s evidence of the deceased’s testamentary capacity was considered in detail by the primary judge. His Honour’s use and reliance on that evidence is reflected in a number of the grounds of appeal.

23. The terms of the 2009 Will provided for Dominic and John to be executors and trustees of the deceased’s estate. By cl 3, the deceased gave the Kemps Creek property, together with any machinery and equipment, to Dominic and John in equal shares as tenants in common, just as Giuseppe’s Will had contingently done. By cl 4, again mirroring Giuseppe’s Will, the deceased gave to her trustees (that is, Dominic and John) a property at 6 Onyx Close, in order for Joseph to have the “use, occupation and enjoyment thereof during his life.” By cl 5, the deceased gave a property at 7 Onyx Close, together with its contents, to Rose and Connie in equal shares as tenants in common. This, too, mirrored the contingent provisions of Giuseppe’s Will. Clause 7 similarly gave Rose and Connie the deceased’s items of personal adornment and jewellery. By cl 6, the deceased gave Tony a property at 1 Rose Street, Smithfield, also mirroring Giuseppe’s Will. Clause 8 provided for the residue of the estate to be paid in one-sixth shares to each of the deceased’s children, with Joseph’s share to be held on trust, by the trustees, “for the purposes of meeting his reasonable living and medical expenses and for any other purposes or benefit which at the discretion of [the] Trustees” may be required during Joseph’s lifetime. This was different from Giuseppe’s Will which contingently gave the residue of his estate to each of his surviving children living as at his death, as tenants in common in equal shares. As such it may be seen that the 2009 Will, in substance, gave properties to each of the deceased’s children, with each to share equally in the residue of the estate but with bespoke arrangements for Joseph. Of course, and unsurprisingly, not all of the properties were of equal value. As has been noted, the structure of the 2009 Will broadly mirrored the contingent provisions in Giuseppe’s Will in the event that the deceased predeceased him.

24. As of 12 December 2022, the net value of the deceased’s estate, as agreed between the parties, comprised some $10,824,258, being two properties in Bossley Park, the Kemps Creek property, a property in Smithfield, and an account at ANZ: at PJ [140]-[141]. Although the value of the Kemps Creek property was initially in dispute (at PJ [134]), the parties ultimately agreed that its value was $6,950,000 (at PJ [141]).

25. The 2009 Will was witnessed by Mr Puleo and Ms Williams. It was signed by the deceased with an “X”, which was labelled as “her mark”, on every page as well as at its conclusion. The 2009 Will was also signed by the witnesses on each page. The signing page contains the following paragraph:

“The Testatrix ELIZABETH MEDURI not being able to read or speak English or to sign her name the Will was read to the Testatrix into the Italian language (being the customary language understood by her) in our presence by John Joseph Puleo who then informed us that the Testatrix knew and approved the contents whereupon the Will was signed by her with her mark in the presence of both of us being present at the same time and attested by us in the presence of her and of each other.” (Emphasis in original.)

26. It is to be observed, therefore, that Mr Puleo was the drafter, witness and translator of the Will as executed. No challenge was ultimately made to the formal validity of the 2009 Will: at PJ [54].

27. It is also to be noted that, despite the terms of the 2009 Will appointing Dominic and John as executors, it was agreed at the hearing that the administrator should obtain a grant of administration with the 2009 Will annexed, or, if the Will was invalid, obtain a grant of letters of administration on intestacy: PJ [61].

The hearing at first instance

28. The hearing before Hallen J commenced on 1 November 2022 and ran for 11 days in total. There was a significant amount of oral and affidavit evidence as well as expert medical evidence and medical records to which it will be necessary to return. The evidence reproduced in the appeal books extended over 2300 pages with some 1500 pages of transcript and written submissions from the trial.

29. The principal issue in the Probate Proceedings related to the deceased’s capacity to make her Will in 2009. On this issue, the primary judge noted that there was “diametrically opposed lay evidence about the medical condition and mental state of the deceased”: PJ [57]. The burden fell on those propounding the 2009 Will, namely Dominic and John, to satisfy the Court that it was the last will of a “free and capable” testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[48].

30. Rose contended that the 2009 Will was not validly made and therefore that the deceased died intestate. The basis for this was said to be that, at least by the time the 2009 Will was executed, the deceased had lacked testamentary capacity (although Rose’s contention was that the deceased had lacked capacity as early as the 1990s). It was also put that the deceased did not know and approve of the contents of the 2009 Will. In making this case, Rose gave evidence herself, together with her husband, Alan, Tony, Kerry La Rue (Tony’s former wife), Jake Meduri (Tony’s son) and David Jamie DiMaria (Connie’s son), in respect of whom an affidavit was read but who failed to attend to give evidence despite having been served with a subpoena to do so.

31. The Respondents’ case was that the deceased did possess testamentary capacity at the time she made the 2009 Will (and continued to do so at least until the point at which she entered a nursing home in 2017), and that she knew and approved of the contents of the Will. The Respondents each gave evidence in the proceedings. They also called Mr Puleo, Ms Williams, Cathy Butera (the de facto partner of Sammy DiMaria, a son of Connie), Graham Ball (a real estate agent who acted for the deceased in 2010), Giuseppe Bonarrigo (the deceased’s neighbour until she moved to a nursing home), and Emanuel Girotto (a childhood friend of Dominic).

32. Two of the deceased’s treating doctors were also called to give evidence. Dr Francesco Romeo (Dr Romeo) was the deceased’s general practitioner from 1999 until 2017. He speaks Calabrese, as did the deceased. Dr Mariam Doreen Joseph (Dr Joseph) did not meet the deceased until October 2014 (more than five years after the 2009 Will was executed), from which time she treated her as a geriatrician. The Court had before it contemporaneous progress notes of Dr Romeo as well as records of hospital attendances by the deceased both before and after the 2009 Will was executed. Those medical records ran to some 500 pages relating to the period between 11 July 1999 and 27 February 2020 and were obtained from the deceased’s general practice, MyHealth Medical Centre in Edensor Park, five hospitals, namely Mount Druitt Hospital, Blacktown Hospital, Fairfield Hospital, Liverpool Hospital and Braeside Hospital, Dr Joseph, and two nursing homes, namely SummitCare in Smithfield and Fairfield Aged Care Home.

33. Expert evidence was also led from two medical experts who were jointly appointed. Associate Professor Christopher Ryan (Associate Professor Ryan) was then a Clinical Associate Professor at the University of Sydney and a Consultation-Liaison Psychiatrist at Westmead Hospital. Professor John Watson AM (Professor Watson) is a consultant neurologist with expertise in dementia and several research degrees in that field. Associate Professor Ryan and Professor Watson helpfully, following a conclave, produced a joint report, dated 5 December 2022, which set out the matters upon which they agreed and disagreed (and why that was so). Relevantly, the experts agreed that at the time the deceased made the 2009 Will, she was “more likely than not” suffering from a “clinically significant cognitive impairment”. The experts also produced their own reports.

34. As the primary judge would observe at PJ [57]; having noted that there was “diametrically opposed lay evidence about the medical condition and mental state of the deceased at, or about, the time she made the 2009 Will”:

“There were no contemporaneous records that could be used to determine whose account of events at various times was to be believed. A second was that, whilst there was an enormous volume of medical evidence adduced on the question of the deceased’s testamentary capacity, a significant part thereof related to her condition after September 2009. A third was that there was no medical expert who saw the deceased with a view to assessing her capacity, at, or near, the date the 2009 Will was made.”

35. In the Trust Proceedings, the Respondents asserted that the Kemps Creek property, where they had resided since early 1989, was held on trust for them by way of a proprietary estoppel. They asserted that, on the basis of improvements made by them to the Kemps Creek property purportedly in reliance upon their parents’ promises that they would have beneficial ownership of the property and encouragement that they should make improvements, they were entitled to the beneficial ownership of the property.

The primary judgment

36. At PJ [83]-[86], his Honour provided the following summary of his conclusions in respect of each of the issues in the proceedings (omitting what he said about Dominic and John’s family provision claim):

“The parties agreed that the most efficient way of dealing with the issues was that the Court should, first, determine the Probate proceedings and whether the 2009 Will is valid. The central questions in these proceedings are:

(a)   Did the deceased have testamentary capacity when she made the 2009 Will? I conclude that she did.

(b)   Did the deceased know and approve the contents of the 2009 Will? I conclude that she did.

(c)   Did the conduct of any of the beneficiaries, give rise to the application of the doctrine of suspicious circumstances? I conclude that there was no such conduct.

If the 2009 Will is not valid, the Court must determine:

(a)    Is the Kemps Creek property held on trust for Dominic and John? I conclude that it is.

…

If the 2009 Will is valid, or if Dominic and John succeed in the trust claim in a way that impacts upon his claim, the Court must determine, in respect of Joseph’s proceedings:

(a)    At the time when the Court is considering the application, has adequate provision for the proper maintenance, education or advancement in life of Joseph been made by the 2009 Will? I conclude that it has not.

(b)    What order for provision, if any, out of the estate of the deceased ought to be made for the maintenance or advancement in life, of Joseph, having regard to the facts known to the Court at the time the order is made? An order should be made that provides for Joseph to receive, absolutely, a lump sum out of the proceeds of sale of the property provided to him on trust in the 2009 Will.”

The Probate Proceedings

37. In reaching his conclusion in relation to validity of the 2009 Will, the primary judge engaged in a thorough assessment of the lay, documentary and expert evidence, including dealing with detailed credit attacks made by both parties on various witnesses. This analysis occupied some 70 pages of the primary judgment (at PJ [368]-[685]) and was prefaced by a thorough discussion of some general principles regarding evidence: at PJ [309]-[362].

37. His Honour’s credit findings are significant for the purposes of both appeals. As the primary judge observed at PJ [368], his findings in relation to individual witnesses depended, in part at least, upon his “impressions of the witness” based upon his “observation of the way he or she gave oral evidence, and upon evidence that bolsters, or impugns, his, or her, credit.” Mr Owens SC, who appeared for the Appellant, squarely conceded that it would be necessary for him to meet the high bar set by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [29], namely that in order to succeed in appealing findings influenced by the credibility of witnesses, an appellant must establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”.

38. The circumstance is, of course, a little more complex in circumstances where an intermediate appellate court is engaged in an appeal by way of rehearing entailing a “real review” and the universe of evidence relied upon at first instance to reach a conclusion did not all depend on lay witnesses whose credit was assessed by a primary judge. Insofar, however, as assessments of the credit of various witnesses did contribute to the determination of the key question or questions confronted by a primary judge, a degree of appellate deference is due to the advantages enjoyed by the primary judge, noting, in the language of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, that:

“[25]   Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.’ …

[28]    In particular cases incontrovertible facts or uncontested testimony will demonstrate that the primary judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (Footnotes omitted.)

40. Many of the primary judge’s findings leading to his ultimate conclusions were expressly predicated upon his view of the credibility of the witnesses and their recollections, in light of both the surrounding circumstances (such as the medical records and the views of the joint experts) and their demeanour in the witness box. As was held by the primary judge at PJ [310], “like all Probate and trust cases, this is a case that is fact sensitive” and “credit findings assume some significance.”

41. In particular, his Honour took a generally favourable view of the following witnesses called by (and including) Dominic and John:

●   John: “I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, regarding that evidence, a generally reliable witness. I am also satisfied that he had no part to play in the process of making the 2009 Will. His description of her condition at or about the time the 2009 Will was made is likely to be more accurate than the evidence of Rose and her witnesses.

Notwithstanding counsels’ many criticisms of his evidence and bearing in mind the inherent potential for unreliability in the evidence given the passage of time, I am satisfied that John was doing his best to assist the Court. He, like Dominic, did not attempt to exaggerate his recollection of events. I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, regarding that evidence, a generally reliable witness”: at PJ [684]-[685];

●   Dominic: “I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, in regard to that evidence, a generally reliable witness.

As already stated, I am satisfied that he had no part to play in the process of the deceased making the 2009 Will. The evidence, overall, makes reasonably clear that it was the deceased’s desire to make a Will following Giuseppe’s death.

Whilst some of his evidence about when the deceased’s condition deteriorated, I tend to think, was wrong, his description of that condition at, or about the time the 2009 Will was made, is likely to be more accurate than the evidence of Rose and her witnesses”: at PJ [624]-[626];

●   Ms Williams: “I am satisfied that she was a fundamentally honest witness doing her best to assist the Court given the constraints of the passage of time”: at PJ [469];

●   Cathy Butera: “I was impressed by Ms Butera in the witness box. I am satisfied that she was a reliable witness who gave an honest account of her own recollection of family history. She should be regarded as an independent witness. I did not form any impression that she was endeavouring to give her evidence in a partisan fashion, endeavouring to favour Dominic and John. Indeed, she has no reason to support their proceedings, as Connie’s interests are greater on intestacy, and if they were to fail in the trust proceedings.

Ms Butera’s interests are unaffected, directly, whatever the result of the different proceedings. I consider her to be a straightforward, and most satisfactory, witness. During cross-examination, it was clear that she was endeavouring to provide the Court with her best recollection of the events as she recollected them.

I accept her evidence about her observations of the deceased, particularly as at Christmas 2009. I give that evidence weight. Where there is a conflict of evidence, with the evidence of Rose and any other witness, about how the deceased presented in late 2009, I prefer Ms Butera’s evidence”: at PJ [483]-[485]

●   Graham Ball: “I have no reason to reject Mr Ball’s evidence. He was an uninterested witness who, in my view, did his best to remember events from over a decade ago. I was impressed by him in the witness box. I am satisfied that he was a reliable witness who attempted to give an honest account of his own recollection of the events which occurred. I did not form any impression that he was endeavouring to give his evidence in a partisan fashion, endeavouring to favour Dominic and John. Indeed, no reason was suggested for him to support their proceedings.

Importantly, I accept his evidence about the photograph taken at the time of the No 8 Bossley Park property was sold which enables me to reject as false Rose’s evidence on this topic to which I shall refer”: at PJ [496]-[497]; and

●   Emanuel Dante Girotto: “Having read, and heard, his evidence, I accept the broad thrust thereof [that the deceased was not experiencing any memory impairment and was able to recognise him in 2011]. Although I regarded his assertion as to the deceased’s condition after 2014 as incorrect, I consider that he was, generally, a reliable witness who has attempted to give an honest account of his own recollection of the Meduri family history”: at PJ [529].

42. His Honour took a less favourable view as to the credit of the following witnesses called by Rose (including Rose):

●    Rose: “The evidence that she gave regarding not one, but two alleged conspiracies, when her evidence was either contradicted, or not supported, by the contemporaneous notes of Dr Romeo, reveals a strained, and, in my view, untruthful, attempt to explain events according to her narrative, rather than providing simple and straightforward evidence to assist the court. I much prefer the evidence of Ms Butera about the deceased’s condition in 2009 where it conflicts with the evidence of Rose”: at PJ [750];

●   Alan: “I am of the view that Alan is an interested party who seemed to be willing to support Rose’s evidence. He certainly seemed to have supported Rose’s view as to the asserted unfairness of the 2009 Will, which seemed to underlie some of his evidence. I tend to the view that his recollection of the florid symptoms is unlikely to be accurate as to the date of its commencement. In this regard, as with Rose, if they had attended Dr Romeo with the deceased, as each said they did, at a time each had observed those symptoms, it is inexplicable that neither informed him of the deceased’s behaviour. (In my view, had it been mentioned, it would have appeared, even in an abbreviated way, in the Progress notes.)”: at PJ [770];

●   Tony: “I did not find Tony to be an overly impressive witness. In particular, I thought that he, too, was wedded to the view that the devise of the Kemps Creek property to Dominic and John was unfair. The florid examples of the deceased’s conduct prior to the making of the 2009 Will, as stated, do not find their way into any of the contemporaneous medical records. I also find his denial of the renovation work to be somewhat inconsistent with the photographs to which reference has been made”: at PJ [786]; and

●   Jake: “I found some of Jake’s evidence somewhat implausible. It is highly unlikely that he could have remembered the years that events had occurred with the precision that he said he did. He was not prepared to admit any fallibility of memory despite the passage of time that had passed and bearing in mind he was a teenager at the time. In addition, his evidence of the florid symptoms, to which he referred, were not reflected in any medical records made contemporaneously with the 2009 Will.

I tend to the view that he was endeavouring to give his evidence in a way that was consistent with the evidence given by Rose and Tony”: at PJ [798]-[799].

43. As one might expect of such an experienced judge, the primary judge tested much of the evidence of central lay witnesses against other evidence, to assess its credibility and reliability. This can be seen in relation to the evidence of Tony in the passage set out above but, perhaps most critically, in relation to Rose. At PJ [749], his Honour detailed some 10 matters that caused him to “have some concerns about accepting Rose’s evidence in its entirety.” This list included inconsistencies in her evidence, her unsupported allegations of conspiracies as to, for example, fabrication of a photograph of the deceased, and her failure to raise the issue of what she said were the deceased’s delusions or suspected schizophrenia with Dr Romeo when she first started taking the deceased to see him in the late 1990s and in early 2002, especially in a context where the medical records revealed that it was not until August 2014 that Rose first raised with Dr Romeo any concerns, and those were in relation to Connie’s ability to care for the deceased.

44. Some witnesses who have not been referred to in [41]-[42] above were of, at most, marginal significance. For example, on Rose’s side, Kerry La Rue last saw the deceased in 2002 when she separated from Tony, and on the Respondents’ side, Giuseppe Bonarrigo who, although the primary judge found to be “a witness who attempted to give an honest account of his recollection of past events”, was held to have had a closer relationship with deceased’s late husband than he had with the deceased and knowledge of the family which diminished after her husband’s death: at PJ [514].

45. Another witness, David DiMaria did not make himself available for cross examination despite being subpoenaed. Unsurprisingly, the primary judge gave his evidence “little weight” (at PJ [816]), although the rejection of part of his evidence formed part of Rose’s grounds of appeal and will be dealt with later in these reasons: see [189] ff below.

46. His Honour did not consider that the failure to call Connie as a witness in the proceedings enabled an adverse inference to be drawn against Dominic and John: at PJ [212]. This issue is the subject of ground 6 in relation to the Probate Proceedings and ground 5 in relation to the Trust Proceedings and is dealt with at [196] ff below.

47. The primary judge then turned to the involvement of Mr Puleo, the drafter of, and a witness to, the 2009 Will. He was also, as will be set out more completely below in relation to ground 4 of the appeal in the Probate Proceedings, for a time, the solicitor on the record for Dominic and John in these proceedings (in which capacity he was succeeded by his son, Mr Matthew Puleo (Mr Puleo Jnr) who is an employed solicitor of Mr Puleo’s firm). The primary judge held the following at PJ [294]:

“… I am satisfied, having carefully considered [Mr Puleo’s] evidence, that he was endeavouring to tell the truth as to the events that he remembered, to the best of his ability, concerning the instructions for the preparation, and subsequent execution of, the 2009 Will. I did not find any indication that his role as a witness in the proceeding was materially compromised by having acted for Dominic and John. It has not been demonstrated that his role after the commencement of the proceedings has resulted in a miscarriage of justice.”

48. Nonetheless, his Honour held at PJ [308] that the “value of the solicitor’s evidence should not be overstated, and it should not be regarded as being of magnetic, or definitive, importance” and “must be read with all of the other evidence in the case.”

49. Later in his reasons, the primary judge said of Mr Puleo:

“[451]   … I am satisfied that he provided a complete and accurate recollection of what took place in connection with the making of the 2009 Will. Considering his evidence overall, I am satisfied that Mr Puleo was doing his best to state what he remembered. He gave his evidence in a calm and temperate manner. He acknowledged, and accepted, the factual error made in his first affidavit well before the hearing. Overall, I found him to be a fundamentally honest witness doing his best to assist the Court given the constraints of the passage of time.

…

[459]   In my view, Mr Puleo was a credible and satisfactory witness. Having seen and heard him give his oral evidence, I am satisfied that he saw the deceased alone when taking instructions for her Will; and that he was able to communicate with the deceased and she with him in the Italian language; and that had there been any genuine concerns held by him about the deceased’s capacity, he would not have made a Will for her without the involvement of a medical practitioner, which involvement he evidently did not seek; that he understood her testamentary intentions, which were relatively simple (and which were apparently long held) and which she communicated to him; and that he was able to draft a Will upon his understanding of the instructions that the deceased provided to him.”

50. Three of the factual findings challenged by the Appellant relate to Mr Puleo and are dealt with at [116]-[132] below.

51. Next, the primary judge considered the duties of a solicitor in taking instructions for a will and set out the relevant law, as well as relevant principles regarding evidence, in particular where the circumstances in dispute occurred a considerable time prior to the hearing of the matter and, in that context, the significance of the fallibility of memory. In this respect, his Honour held at PJ [311] that “it is best to treat all of the evidence of events that occurred long ago with particular care, and a degree of scepticism unless supported by other evidence or the inherent probabilities.”

52. In relation to an issue raised by counsel for Rose concerning the marked degree of similarity between Dominic and John’s affidavits, which was suggested to be evidence of collusion between them, the primary judge held that “having carefully considered the evidence of Dominic and of John”, it was appropriate to accept their evidence and their “denial that there was any ‘collaboration’ with the other in the affidavit evidence”: at PJ [355]. His Honour went on to find that, even if there was a degree of collaboration between the two, he was not satisfied that he ought to reject the evidence given by them on the topic of conversations with Giuseppe and the deceased: at PJ [364].

53. The primary judge gave the following lengthy summary of the documentary medical evidence, including from hospital admission notes and records (at PJ [855]):

“(1)   In July 1999, the deceased began being treated by Dr Romeo, at Myhealth Medical Centre in Edensor Park.

(2)   In September 1999, Dr Romeo prescribed an anti-depressant, Aurorix, to the deceased.

(3)   There is an entry that, in 2000, the deceased suffered a cerebrovascular accident (‘a CVA’) recorded in the hospital records produced under subpoena. It also records that (Ex. MB3/383) there were no residual effects. The source of the entry appears to be a handwritten note, by an unknown author, at Fairfield Hospital, in July 2007. There is, otherwise, no contemporaneous record of that event, if it occurred. There is no record of any relevant testing having been done at that time and there is nothing recorded in Dr Romeo’s clinical notes relevant to this alleged event.

(4)   There is an entry that, in 2002, the deceased suffered a CVA. The sources of this entry are the hospital notes from Mt Druitt Hospital dated 5 January 2005, from Blacktown Hospital notes on 5 January 2005 and from hospital notes from Fairfield Hospital on 1 December 2006. The notes also suggest that any such CVA had minimal effect on the deceased. Again, there is no record of any relevant testing having been done at that time and there is nothing recorded in Dr Romeo’s clinical notes relevant to this alleged event.

(5)   The deceased was prescribed Lovan on 29 July 2002 and also 22 January 2003 but is not recorded as having been diagnosed with depression until 3 September 2003 (Ex. MB3/008). Dr Romeo continues to prescribe Lovan, at different times, on a number of occasions between 2002 and 2009 but there are significant periods where no prescription for Lovan is provided. For example, a prescription is provided on 16 August 2004 and then another one is not provided until 18 August 2005. It is again prescribed on 1 December 2005 (Ex. MB3/015) and then not again referred to until 20 November 2008, when the notes suggest the deceased had ceased using Lovan. On 20 November 2008, the deceased received a prescription for Amitriptyline (Endep) (which is also an anti-depressant) but does not receive a further prescription. The deceased then received another prescription for Lovan on 24 December 2009.

(6)   In September 2003, the deceased was diagnosed with hypertension (high blood pressure) and depression.

(7)   From June 2004, the deceased suffered from urinary tract infections (in 11 April 2007 and 25 November 2010).

(8)   The first reference to the deceased having suffered a CVA in Dr Romeo’s clinical notes is in July 2004. In cross-examination, Dr Romeo, recollected that ‘at the time she was able just to walk without just support … [it] must have not been … a severe one’: Tcpt, 2 November 2022, p 198(35-37).

(9)   The deceased sustained falls in January 2005, October 2005 and September 2006. She presented to Mt Druitt Hospital with lower back pain after the first fall. She was transferred, and admitted, to Blacktown Hospital, where she remained a patient until 17 January 2005. In the notes from Mt Druitt Hospital, there is a reference to depression but no reference to dementia. The deceased was noted as being able to ambulate, with assistance, to the ambulance.

(10)   In the Progress notes of 11 January 2005, Rose is recorded as having given detailed instructions to staff about the deceased’s situation. She expressed concern about the deceased’s capacity to cope at home with Giuseppe. There is a reference to longstanding incontinence issues managed with pads, but it appears that the main area of concern related to safety and mobility issues. On 14 January 2005, there is a discussion with the family about possible modifications to the house, but the member or members of the family involved is, or are, not identified. There is no reference to the deceased suffering cognitive problems.

(11)   In the Progress notes of 13 January 2005, there is a reference to the deceased being able to mostly dress and wash herself independently. She was also mobilising with a walking frame. By 17 January 2005, it is noted she is mobilising with the frame by herself.

(12)   On 19 January 2005, Dr Romeo diagnosed the deceased as suffering from osteoporosis. On 8 March 2005, the deceased presented for outpatient physiotherapy due to back pain.

(13)   Although Rose suggested that from 2005, the deceased suffered from ‘auditory and visual hallucination [sic]. She sees people on trees, she hears birds calling her and her husband. She also has become paranoid thinking that her husband had an affair with her neighbour’, each of the joint experts was unable to find any reference to any of these things until 2014: Tcpt, 7 December 2022, p 791(8-45).

(14)   In the Fairfield Hospital Progress notes relating to the deceased’s fall in October 2005, the deceased is noted as not having suffered a loss of consciousness or deficit in orientation/alertness.

(15)   On 1 December 2006, the deceased presented to Fairfield Hospital with right-sided facial swelling. The Fairfield Hospital notes record that she lived with her husband and daughter, walked with a walker, and that she was independent of ADLs. There was a specific reference to ‘no dementia’. There is no record of neurological issues, and the deceased is recorded as being alert and oriented.

(16)   The second reference in contemporaneous records (Ex. MB3/020) relating to the deceased having suffered a CVA is in April 2007.

(17)   On 25 June 2008, the deceased presented to Liverpool Hospital with severe hypertension and a severe headache. There is a reference to the deceased being ‘confused to time/date’. No neurological symptoms were identified. When asked about this entry (Tcpt, 7 December 2022, p 797(3-28)), Associate Professor Ryan said it did not assist in indicating the seriousness of the cognitive impairment suffered by the deceased in 2008 and Professor Watson notes that an elderly person forgetting the time and date is quite common.

(18)   In the clinical notes of Dr Romeo, an entry on 4 June 2009 reveals that the deceased presented to Dr Romeo with tiredness. He advised her to have a check-up while in hospital visiting her husband. His entry on 16 June 2009 reveals that he observed her as suffering from reduced hearing and gastro-oesophageal reflux. He advised her to obtain hearing aids, but she refused. There is no other reference in the medical notes that were produced raising the deceased’s hearing other than a reference, in 2008, to tinnitus. Even in the ACAT assessment of July/August 2014, there is no suggestion that she suffered hearing difficulties.

(19)   On 28 July 2009, two days after Giuseppe’s death, the deceased exhibited agitation and was prescribed Serenace Liquid, an anti-psychotic medication, by Dr Romeo. Reference will be made to this later in these reasons.

(20)   On 18 August 2009, the deceased attended upon Dr Romeo who prescribed Veracap (a medication to treat high blood pressure) and Fosamax (medication used to treat osteoporosis and provide additional vitamin D). There is nothing in his notes of that date suggesting complaints about cognition.

(21)   On 25 August 2009, Dr Romeo’s notes record that the deceased was suffering from back pain and a low mood. She had a skin lesion on her trunk and face. Again, there is nothing in his notes of that date, suggesting complaints about cognition.

(22)   On 27 October 2009, the deceased again attended on Dr Romeo due to ‘recurrent fall [sic]’. His clinical notes stated that ‘Family worried about recurrent falls…, poor memory. Mobilising with pick up frame’.

(23)   On 1 December 2009, the deceased presented to Fairfield Hospital after falling on her left buttock and left shoulder. There is no reference in the Progress notes of that date to any neurological deficits or other cognitive issues. The Progress notes record that the deceased was apparently doing stretches and missed her frame. After receiving pain medication, she was reviewed by the Emergency Department consultant and discharged home.” (Emphasis added)

54. It should be noted that the reference in (13) is to what will be referred to later in these reasons as the “Prasetyo letter” about which the Appellant made extensive submissions on appeal: see [76] ff below. The reference in (22) was referred to by the Appellant in her written submission on appeal. It is self-evident that his Honour did take this evidence into account given his reference to it in the list of salient medical information. The note cuts both ways, at best, for the Appellant. It records a concern of the family as to “recurrent falls”, but the concern falls far short of the condition of cognitive impairment, hallucinations and like behaviour to which the Appellant and her witnesses attested as having been manifest in the deceased either in 2009 or indeed for many years before.

55. Professor Watson and Associate Professor Ryan gave joint expert evidence which the primary judge summarised. At PJ [878], his Honour identified seven “areas of agreement” between the experts:

“(1)   As at 18 September 2009, the deceased more likely than not suffered at least one medical condition which affected her mental capacity or cognition at that date.

(2)   As at 18 September 2009, one of the medical conditions from which the deceased more likely than not suffered was manifest by clinically significant cognitive impairment such that the impairment would justify a diagnosis.

(3)   As at 18 September 2009, the cognitive impairments that the deceased likely manifested would not have compromised her ability to understand the general nature of the act of making a will (that is any Will and its effects). However, the cognitive impairments present would have compromised her capacity to understand the provisions of the will she actually made.

(4)   As at 18 September 2009, the deceased was likely to have been suffering the problems with cognition namely:

‘1.   Complex attention: Normal tasks take longer than previously. Begins to find errors in routine tasks; finds work needs more double-checking than previously. Thinking is easier when not competing with other things (radio, TV, other conversations, cell phone, driving).

2.   Executive function: Increased effort required to complete multi-stage projects. Has increased difficulty multi-tasking or difficulty resuming a task interrupted by a visitor or phone call. May complain of increased fatigue from the extra effort required to organize, plan and make decisions. May report that large social gatherings are more taxing or less enjoyable because of increased effort required to follow shifting conversations.

3.   Learning and memory: difficulty recalling recent events and relies increasingly on list making or calendar. Needs occasional reminders or re-reading to keep track of characters in a movie or novel. Occasionally may repeat self over a few weeks to the same person. Loses track of whether bills have already been paid.

4.   Language: Has noticeable word-finding difficulty. May substitute general for specific terms. May avoid use of specific names of acquaintances. Grammatical errors involve subtle omission or incorrect use of articles, prepositions, auxiliary verbs, etc.

5.   Perceptual-motor: May need to rely more on maps or others for directions. Uses notes and follows others to get to a new place. May find self lost or turned around when not concentrating on task. Is less precise in parking. Needs to expend greater effort for spatial tasks such as carpentry, assembly, sewing, or knitting.

6.   Social cognition: Has subtle changes in behavior [sic] or attitude, often described as a change in personality, such as less ability to recognize [sic] social cues or read facial expressions, decreased empathy, increased extraversion or introversion, decreased inhibition, or subtle or episodic apathy or restlessness.’

(5)   Associate Professor Ryan stated that ‘the cognitive impairments that [the deceased] suffered on 18 September 2009 due to her likely mild neurocognitive disorder would not have compromised her capacity with respect to her ability to identify the beneficiaries whom she ought to have considered’. Both experts agree that if her cognitive disorder was more advanced than mild (in accordance with the opinion of Professor Watson, but not Associate Professor Ryan) then it may well have compromised her capacity to identify the beneficiaries whom she ought to have considered.

(6)   Her condition would have made it difficult for her to understand the particular provisions of the 2009 Will, to recall the assets she owned and the respective values of each of them, and to weigh up and evaluate the respective nature and strength of claims to which she ought to have given effect.

(7)   Although the experts did not agree upon the particular diagnosis that ought to be assigned to the medical condition that would have been manifest by the clinically significant cognitive impairment from which the deceased suffered, Associate Professor Ryan opined that the appropriate diagnosis would be ‘mild neurocognitive disorder’ (formerly called ‘minimal cognitive impairment’) and Professor Watson opined that the appropriate diagnosis would be ‘progressive dementia’ and ‘that, in 2009, the deceased was likely to have been affected significantly by dementia’, they agreed that the difference between the two possible diagnoses was a matter of degree and that there was not a great difference between the diagnoses.”

56. The primary judge at PJ [883] preferred the evidence of Associate Professor Ryan where there was disagreement between the experts. The central area of disagreement between the experts was that Professor Watson opined that “there was evidence of … a major psychiatric disturbance” while Associate Professor Ryan was of the view that the deceased’s depression was not a major psychiatric disturbance and that any fluctuating behaviours could be attributed to a cognitive impairment. In respect of these issues, Professor Watson accepted that he was not an “expert psychiatrist”: at PJ [879].

57. The primary judge identified a further four areas of disagreement between the experts (at PJ [880]):

“(1)   Whether the deceased suffered a hearing impairment

Professor Watson noted that the materials contained ‘entries about [the deceased] having reduced hearing’ and that since ‘deafness can seriously affect comprehension’ and particularly since she was illiterate, any hearing impairment that she had would have been relevant to considerations of her testamentary capacity. He pointed to the reference, in June 2009, by Dr Romeo of a history of poor hearing and that she had refused his advice to try hearing aids. He concluded that a hearing impairment, more likely than not, would have affected her capacity to understand the information being imparted to her aurally (particularly since she could not read that information herself).

Whilst Associate Professor Ryan agreed that, if she had suffered a significant hearing impairment this would have been relevant to considerations of testamentary capacity in the way Professor Watson opined, he was not of the view, based on the materials, that it was more likely than not that she had ‘reduced hearing’ at 18 September 2009. He was of the view that there was not enough evidence to say that it was more likely than not that she suffered from a hearing impairment.

(2)   The impact of any medication the deceased was taking on her cognition.

Professor Watson opined that at 18 September 2009, the deceased was taking ‘medications that alone, and even more so in combination, would have had a significant effect on attention, cognition …’. Associate Professor Ryan opined, ‘none of the medications listed [as prescribed] were likely to have affected [the deceased’s capacity to make a Will on 18 September 2009’.

(3)   Whether the deceased’s cognitive impairment impacted her ability to identify the beneficiaries whom she ought to have considered.

Professor Watson opined that the various ‘factors would more probably than not have had a significant effect on [the deceased’s] testamentary capacity under this part of the test’. Associate Professor Ryan was of the view that ‘the cognitive impairments that [the deceased] suffered on 18 September 2009 due to her likely mild neurocognitive disorder would not have compromised her capacity with respect to her ability to identify the beneficiaries whom she ought to have considered’.

Both experts agreed that if the deceased’s cognitive disorder was more advanced than mild (in accordance with the opinion of Professor Watson, but not Associate Professor Ryan), then it may well have compromised her capacity to identify the beneficiaries whom she ought to have considered.

(4)   Whether the deceased suffered from a disorder of the mind, such as delusions or hallucinations, which would have influenced the deceased’s awareness of facts or reasoning and decision-making ability

Professor Watson opined that the deceased ‘probably did suffer from a delusion or mental disorder which was likely to have a direct bearing on her dispositions in the Will.’ In contrast, Associate Professor Ryan was of the view that the deceased’s ‘neurocognitive disorder … did not manifest as a disorder of mind, such as delusions or hallucinations, which would have influenced her awareness of facts or reasoning and decision-making ability, with regard to the [testamentary] capacities.’ However, he acknowledged that he was not an expert psychiatrist, and he accepted Associate Professor Ryan’s opinion.”

58. On the basis of the concurrent expert evidence, the primary judge (at PJ [882]) was satisfied of the following matters:

“(1)   In relation to the gift in the 2009 Will, which gave all items of personal adornment and jewellery to her daughters, Rose and Connie, which was a gift that did not appear in Giuseppe’s Will, and assuming that Giuseppe’s Will was referred to and that there was a discussion between the deceased and Mr Puleo, following which the 2009 Will was created, that the deceased recognised that she had jewellery, which her husband may not have had, and that the jewellery should be left on her death to her only two daughters, this would indicate an ability to appreciate what was in her estate and the persons upon whom there might be a claim on her bounty in relation to the jewellery. (Professor Watson raised the possibility that the gift of the jewellery may not have come from the deceased but when asked to assume, correctly, that there was no one else other than Mr Puleo in the room, he agreed with Associate Professor Ryan: Tcpt, 7 December 2022, p 762(3)-763(19).)

(2)   The change in the residue clause, so far as it related to Joseph, who, Mr Puleo obtained the impression from the deceased, had more significant mental health issues than he had suffered in 2001, and, who the deceased explained, she wished to be looked after and to have enough money for food and to be able to look after himself, could demonstrate that the deceased was able to have regard to her estate, the claims upon it, and the way in which that estate should be distributed. That she had suggested a variation, that Mr Puleo had drafted it in the form that appeared from the 2009 Will and then explained it to her in Italian when she came to execute the 2009 Will would be one way to give effect to the deceased’s desire so far as it related to Joseph. If she spontaneously identified her son, Joseph, that would demonstrate that she could factor into her testamentary wishes, his circumstances: Tcpt, 7 December 2022, p 764(6-45).

(3)   At the time she instructed Mr Puleo to make the Will, she was also attending upon him to prepare documents to obtain Probate of Giuseppe’s Will and that at the meeting, details of Giuseppe’s bank account were given and there was also discussion of the real property that Giuseppe held. They were asked to assume that Mr Puleo took instructions from the executors and was able to discuss the properties with the deceased, and that he asked her open-ended questions, as in ‘What properties do you own?’ or ‘What properties are in the estate?’, rather than ‘Here's the properties that you own’. Even assuming that at least the substance of the discussion included the property that formed part of Giuseppe’s estate reasonably contemporaneously, giving instructions for the Will did not necessarily demonstrate a capacity to understand the property which she had available to dispose of by her Will, as that would depend upon her involvement in the discussion: Tcpt, 7 December 2022, p 766(21-32); 768(1-13).

(4)   At the second meeting, which took place on 18 September 2009, there were two parts, one relating to the Probate of Giuseppe’s Will and the other relating to the 2009 Will. In relation to the first part, a number of documents were signed by the deceased, Dominic and John, some of which included a reference to Giuseppe’s property. The second part related to the execution of the 2009 Will, in relation to which, the deceased would have required support in making the decisions in relation to the gifts in her Will. She and Mr Puleo were alone together when the Will was explained, in the Italian language, to the deceased. The process may have provided the kind of support to the deceased that she would need in order to properly assess the assets that she owned and the persons to whom she would leave them: Tcpt, 7 December 2022, p 770(26)-771(26).

(5)   In relation to her capacity to weigh up and evaluate the respective nature and strength of the claims to which she ought to give effect, that the deceased understood, as at 2009, that Rose, Tony and Connie each owned a property of their own, and that Joseph did not own property, that he had his mental health issues, and that Dominic and John lived on the Kemps Creek property and had done so for many years by the time the Will was made, even taking into account any cognitive dysfunction that would have affected her capacity to make this Will, then, in some ways, some of the test was satisfied. Whether she would have the capacity to weigh competing claims was not as clear: Tcpt, 7 December 2022, p 777(1-22).

(6)   There is a difference between long-term memory and short-term memory. There may very well be a difference between the sequelae of the cognitive problems so far as they relate to long term memory, as compared with short term memory. Long term memory is ‘pretty crystallised and laid down after about two to four years’: Tcpt, 7 December 2022, p 807(31-33). Associate Professor Ryan stated that long-term memory is classically better preserved in dementia than short-term memory, and that although it may generally still be the case, when vascular dementia plays a role as well, it may not be quite as simple: Tcpt, 7 December 2022, p 808(1-6). If there had been some discussions about Giuseppe's Will at, or about, the time that his Will was made, the more likely it is that the deceased would have remembered it, at least in general terms and the less likely it would be that it was affected by her cognitive deterioration. However, it would be unlikely that she would have remembered Giuseppe’s Will, in detail in 2009. (This, however, does not take into account the evidence of Mr Puleo of his discussions with the deceased in August and September 2009.)”

59. The primary judge then set out the relevant principles as to testamentary capacity. His Honour summarised the evidence and drew conclusions at some length. Ultimately, the primary judge admitted the 2009 Will to probate, holding that Dominic and John had discharged their onus: at PJ [939]. In so holding, his Honour reasoned as follows:

“[934]   The Court is not required to carry out an objective assessment of the fairness, or reasonableness, of the deceased’s testamentary dispositions. The power freely to dispose of one’s property by Will is an important right, and a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.

313. It may be noted that Heydon said that “… the witness may also recount the impression made on the witness by whatever words were used.”

314. In Connex Group Australia Pty Ltd v Butt, the evidence in question was not given testimonially but the opinion rule in s 76 of the Evidence Act applied to it just as it does to evidence given in court. In that case, the solicitor’s file note included the following:

“The gist of the conversation was that the parties would await the outcome of the meeting with the DOT. While my handwritten notes were not able to capture every word of the conversation, Ken Butt clearly left the impression he would sort the matter out and that it was not a big deal. Conversely, Kevin Warrell made it clear that CGEA wanted to proceed subject to the DOT issue being sorted out. Ken Butt did not say anything that suggested that he would not deal with CGEA or that the matter would not settle. While Ken Butt did not say much, I was left with the impression that at the least everyone would await the outcome of the meeting on the following Friday with completion to be postponed until at least that time or shortly thereafter.”

315. I concluded that the statement was admissible under the exception to the admission of opinion evidence in s 78 of the Evidence Act. I concluded (at [27]):

“The file note of Mr Postema was said not to capture every word of the conversation. Therefore, Mr Postema’s opinions about the effect of the conversation were not superfluous. It was necessary to receive the opinions to obtain an adequate account or understanding of what he perceived of the conversation. His perception in December 1999 has probative value. His opinions were based on what he personally heard. In my view if the person giving the opinion had the opportunity to form a correct understanding of the effect or outcome of the discussion so that there is a rational basis for his or her understanding to satisfy the test of relevancy under s 55, and provided the witness has exhausted his or her recollection of what was said so that s 78 (b) is satisfied, (see also LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31 at 33), s 78 operates so that the witness’s opinion about the effect or outcome of the conversation is not excluded by s 76.”

316. In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, French CJ, Heydon and Bell JJ said (at 369; fn (40)) that when limited to conversations my finding that a witness’ understanding of the effect of the conversation fell within s 78 “did not seem wrong”.

317. Notwithstanding the view of the Queensland Court of Appeal in R v Wright (at 19) that evidence that a witness had received “an ‘impression’ of the matter in the course of a conversation” might not be admissible if that was all that the witness said and a statement to like effect by Besanko J in Hamilton-Smith v George (at [79]) that a witness’ recounting of conclusions drawn by the witness as to the effect of a conservation is not admissible at common law, I doubt that that was so. Both Wigmore and Heydon allow for the admissibility of a witness’ impression of the effect of the conversation if the witness was in a position to form an opinion on that matter and had exhausted his or her recollection and the witness would be in a better position than the trier of fact to form an opinion on the effect of the conversation. In any event, the matter is dealt with by ss 76 and 78 of the Evidence Act, assuming that the evidence is relevant (that is that it has some rational probative force (s 55)) and is not excluded under s 135.

318. In my view, if the opinion rule does not apply to the witness’ understanding of the effect of a conversation, the witness’ opinion, whether expressed as a recounting of the conversation in indirect speech or as to the effect of the outcome of the conversation, is admissible.

319. Because the witness is giving evidence in chief, if what he or she says is admissible it should be given in his or her own words.

320. A witness, particularly a lawyer, might well use the formula that “words to the following effect” were said. If they are the witness’ own words there is no difficulty. But it would be a rare witness (unless a lawyer) who would do so.

321. In Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [119], I endorsed the observations of Jackman J in Kane’s Hire at [121]-[129]. Simpson AJA and Basten AJA agreed with my reasons.

322. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, Barrett J dealt with an objection raised by the plaintiffs to a passage of a witness statement which said that the witness could not remember the specific terms of a conversation but “… in substance I told him that I stated that the consortium was prepared to negotiate along the following lines. There then follow pars (a), (b) and (c) which set out those ‘following lines’.”

323. Barrett J held that the question was not one of admissibility (at [10]), but of the way in which evidence might most appropriately be tendered or adduced. His Honour said that the desirable course was to give leave to the defendants to adduce oral evidence on the matter covered by the passage in the statement to which objection had been taken (at [11]).

324. It is apparent from Barrett J's final judgment that when the evidence in question was given orally, apparently without objection, it was given in the same conclusory form and was responded to in the same manner (LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2001] NSWSC 886 at [57]-[58]).

325. This was my experience as a trial judge. If objection were taken to a witness’ evidence of a conversation on the ground that it was conclusory, rather than fighting the objection, counsel would often seek leave to adduce oral evidence on the topic. That leave was invariably given. When the witness was asked in chief what he or she recalled about the conversation, the witness would always recount his or her version of the conversation (without objection) in the same conclusory form.

326. Under the current practice the risk a lawyer drafting the affidavit runs is that if the witness is not required for cross-examination the witness might not be present to be called to give oral evidence and the evidence might be rejected.

327. The fundamental point is that admissible evidence should be given in the witness’ own words. If the evidence is given in direct speech, albeit prefaced with the use of the phrase “words to the effect of” or similar, then even if the evidence is treated as the witness’ recollection of the gist of what was said that can obscure the particularity of the witness’ memory. I do not agree with the criticism of Jackman J’s observations in Kane’s Hire that the use of the expression “words to the following effect” “conceals the true nature and quality of the witness’s memory, and conveys a false impression of that memory”. In my view the practice carries that very risk.

328. For the same reasons I do not join in the criticism of Jackman J’s statement in Lantrak Holdings Pty Ltd v Yammine that his observations in Kane’s Hire were “… primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred ‘in words to the following effect’.” I see nothing wrong in a single judge attempting to correct a misguided practice where there is no appellate authority supporting the practice. Nor do I accept that there should be any continued confusion after this Court’s decision in Gan v Xie.

329. This is not to say that evidence of a conversation is inadmissible or should be rejected because the evidence is in direct speech prefaced by “words to the effect of”. In Gan v Xie the primary judge’s error was in thinking that a witness should be able to recall the actual words said, rather than the gist of the conversation, to be able to establish a misrepresentation.

330. That finding did not address the desirability of the still current New South Wales practice. But I, with the concurrence of Simpson AJA and Basten AJA, endorsed Jackman J’s reasons in Kane’s Hire.

331. This Court’s endorsement in Gan v Xie of Jackman J’s reasons in Kane’s Hire may have been obiter. Our reasons on this issue in this appeal are also obiter.

332. These reasons do not seek to qualify the oft-cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. As Jackman J said and this Court held in Gan v Xie, McLelland CJ in Eq’s observations are not a requirement for perfection. It is not only in a case where a witness whose evidence is believed professes a recollection of actual words used that a court can accept that a particular representation was conveyed. Even if a witness uses indirect speech, or can only express his or her understanding of the outcome of a conversation, that evidence, if the witness is otherwise credible, may be compelling.

333. KIRK JA: I agree with the orders proposed by the Chief Justice for the reasons comprehensively given by his Honour together with the following reasons with respect to the issue of the form of evidence of conversations.

334. It has long been common practice in litigation in this State for evidence as to past statements or conversations to be put into direct speech, typically prefaced by a qualification along the lines that “words to the following effect” were said. Objections are sometimes upheld if the practice is not followed. The practice has sometimes been applied with excessive zeal. It is not an invariable legal requirement. The Full Court of the Federal Court said forty years ago that “[t]he rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law”: Commonwealth v Riley (1984) 5 FCR 8 at 34. Yet it has sometimes been applied as though it were a rule of evidence.

335. An objection to evidence on the basis of the practice is commonly said to be one of “form” and/or “conclusion”. The legal foundation of such objections is somewhat obscure, especially since the enactment of the Evidence Act 1995 (NSW) (the Act). On one view it is a matter of common law: note Stephen Odgers, Uniform Evidence Law (19^th ed, 2024, Thomson Reuters) at [EA.26.270] (Odgers). That possibility raises the issue of the extent to which such common law rules have continued operation given the introduction of the Evidence Act, on which differing views have been expressed: contrast Odgers at [EA.Intro.120] with J D Heydon, Cross on Evidence (13^th ed, 2021, Lexis Nexis) at [1720]-[1750]. Section 56(1) of the Act provides that “[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding” (and see also the introductory note at the beginning of Ch 3 of the Act).

336. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, at [9], Barrett J noted that one possible basis is s 135 of the Act, although that would require the objector to establish that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time. His Honour noted an alternative way of looking at the matter at [10]: “I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced”. In that case his Honour excluded the relevant evidence in an affidavit, giving leave for the evidence to be adduced orally. He did not elucidate the legal basis upon which the Court might control how the evidence was tendered or adduced, although he did refer to court rules addressing the giving of oral evidence (at [10]-[11]); cf now Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3(k) and 31.1; Civil Procedure Act 2005 (NSW), ss 61-62. Whether such rules, or other legal powers relating to a judge controlling what occurs in court, extend to rejecting evidence only because not given in direct speech could be open to argument. His Honour had earlier ruled out s 29(2) of the Act, relating to giving evidence in narrative form, as a possible basis for objections to evidence in the form of an affidavit (at [6]-[7]).

337. A further possible way of looking at the issue was outlined by White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, namely that the “real objection” was that evidence of the gist of a conversation “contained conclusions as to the effect of the conversation which were inadmissible under s 76 of [the Act] as opinion evidence” (at [3]). This understanding reflects the fact that an opinion is “an inference from observed and communicable data”: Connex at [10], quoting Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. It was held in Connex that such evidence can be admissible as lay opinion evidence pursuant to s 78 of the Act. At the least, the “conclusion” objection echoes concerns about opinions insofar as the complaint is that a conclusion is stated without articulation of the matters which led to that conclusion being reached: note Connex at [5]-[18]. Where the basis of the conclusion is not disclosed, it can be argued that the evidence is unfairly prejudicial to the other side and of little assistance to the trier of fact. That evidence of a conversation in indirect speech may be treated as admissible pursuant to s 78 has since been accepted: Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [120], and authority there cited.

338. It is not necessary here to seek to locate the legal basis of the direct speech practice. Whatever its basis, it has regularly been reiterated since Riley that the practice is not a generic rule of law: eg R v Wright (1985) 19 A Crim R 17 at 19; R v Noble [2002] 1 Qd R 432; [2000] QCA 523 at [18]-[20]; LMI at [8]; Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551 at [82]-[83]; Hampson v Hampson [2010] NSWCA 359 at [40]; Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11]; Chen v Chu [2024] NSWSC 1139 at [269].

339. In R v Noble a criminal accused complained that a miscarriage of justice had occurred because the trial judge hampered a witness giving evidence by regularly intervening to insist that the content of conversations be put in direct speech. The Queensland Court of Appeal, applying common law, held that the judge had erred in this regard, although the appeal was dismissed on the basis of the proviso. Pincus JA said as follows:

[20]   There is … no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that [the witness] could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.

340. The approach of the trial judge in that case is an illustration of the excessive zeal with which the practice of requiring direct speech has sometimes been applied. It is important to recall that any legal rules or practices applicable here apply, within this State, not only in the Equity Division of the Supreme Court hearing civil matters but, for example, in criminal trials in the Local and District Courts around the State. The ability of a witness in a prosecution in the Local Court to give evidence in direct speech, after little if any time spent in preparation with a legal practitioner, is not likely to be the same as a business executive appearing in a commercial dispute who has spent significant time preparing with solicitors and counsel. The plea of the witness in R v Noble is noteworthy (as quoted at [17]):

Can I say something? I’m finding this all very confusing, you know. I am a boilermaker. I’m not an English student. I should be able to say what I want to say and then people can decide afterwards.

341. There is a spectrum here. At one end of the spectrum a witness will (claim to) have a memory of some or all of the actual words spoken by a person or in an exchange. Along the spectrum a witness may not remember the words spoken but can recall the substance, gist or effect of those words, including perhaps the order in which points were made by either side in an exchange. Or they may only have a memory of the topics discussed and of the effect of some portion of the points made. Towards the other end of the spectrum the witness may only have a recollection of what they understood to be the outcome of the interaction.

342. Insofar as the witness can recall the actual words spoken then they should state those words in direct speech, that being the best form of the evidence: see eg LMI at [8]; Hamilton-Smith at [83]. It is proper and useful for a witness to delineate what words they have an actual memory of being said from those matters of which they can only recall the substance: R v Wright at 19; LMI at [10]; Hamilton-Smith at [83]; Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [129(3)].

343. Insofar as the witness can only recall the substance of what was said then they can recount that recollection without being required to state it in direct speech. The witness can also give such evidence in direct speech, prefaced by words indicating that “words to the following effect” were said.

344. It has recently been suggested that putting such evidence in direct speech is (i) contrary to law, (ii) potentially unethical for legal practitioners involved, and (iii) such as to raise doubts about the credibility of the witness: Kane's Hire at [123], [126]-[127], [129(2), (5) and (6)]; Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [277]; Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766 at [11].

345. As to the first of those propositions, it was said in Kane’s Hire at [123] that “[e]vidence should be given in direct speech only if the witness can remember the actual words used: Noble at [20]; LMI Australasia at [8]; Hamilton-Smith at [83]”. The proposition is not supported by the authority cited and should not be accepted. That authority indicates that such evidence need not be given in direct speech. It does not say that it is impermissible or improper for a witness to put something into direct speech where they make clear they are only testifying as to the effect of what is said. So much is unsurprising given that the practice of doing so has been described as “ubiquitous”: Country Care at [6]; see also Chen v Chu at [262].

346. In Gan this Court recently upheld an appeal on the basis that the primary judge had erred in excluding evidence from two witnesses of the substance of what had been said in conversations which had been expressed in direct speech. White JA, speaking for the Court, said the following (see also at [118]):

[98]   Ms Di Si and Ms Wills did not purport to recollect the precise words that were said by Ms Xie. They used the widely adopted method of putting the gist or substance of what they professed to remember as conversations in direct speech, qualified by the statement that words were said “to the effect” of the words purportedly quoted. Once it is recognised that they did not profess to recall the precise words used, and professed fluency in English, there was no proper reason to reject the deponents’ first affidavits.

347. The first proposition is also contrary to one recent decision of the Federal Court and in tension with another. In Country Care Bromwich J rejected an objection to “references in numerous witness statements to conversations that are reproduced in those statements prefaced with ‘words to the following effect’ or ‘words to the effect’” (quotation from [2]). In Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147; (2021) 157 ACSR 77 at [46]-[71] O’Bryan J rejected an objection to evidence of an understanding of a conversation where that evidence was “supplementary” to evidence stating in direct speech words to the effect of what had been spoken (see at [68]).

348. As for the second proposition, about ethics, it would of course be unethical for a legal practitioner to settle, file, read or tender evidence which they knew to be false or misleading. But if a witness records words in direct speech prefaced by the phrase “word to the effect of” then the witness is overtly disclaiming having an exact recollection of the words said. The witness is not then falsely conveying a verbatim recollection of a conversation by using direct speech. No doubt issues of degree may arise where an affidavit does express or imply a greater specificity of recollection than the witness actually holds.

349. Much the same may be said with respect to the credibility of a witness. It is self-evidently true to say the following (Kane’s Hire at [129(6)]):

Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross-examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances).

350. A similar point had been made in 1883 by Cooley J in Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883), which was quoted approvingly by White J in Connex at [17]:

It is not surprising that a man should remember the substance or the result of a conversation, and yet not be able to recall the words made use of; and it sometimes casts suspicion on the veracity of a witness that he assumes to remember the very words of a conversation, when there was nothing in the case that was likely to impress upon his mind anything beyond the general result.

351. These points apply if the witness claimed to have an exact recollection of words used. If the witness has disavowed making any such claim then there is no adverse effect on their credit merely because they have expressed their best recollection in the form of direct rather than indirect speech. Again, whether or not a witness has overstated their degree of recollection and how that might affect their credit will depend upon all the circumstances.

352. Thus for a witness to express in the form of direct speech a memory which they acknowledge to be only as to the gist of what was said is not contrary to law (just as it is not required by law), nor inherently unethical, nor such as to necessarily cast doubt on the witness’s veracity. A witness has some flexibility as to how they express a recollection of the gist of a statement or conversation. There is no invariable requirement that it be put in either direct or indirect speech. That being said, there may be factors militating in favour of one or the other.

353. Evidence should be given in a way that is relevant and truthful and that explains the bases of any conclusions. It should meaningfully reflect what the witness actually recalls, has expressed and can explain and defend under further questioning. There can be an increasing degree of artifice in putting lengthier statements or conversations into direct speech. To require a witness to put in direct speech even a moderately lengthy conversation, the effect of which is supposedly recalled from some time ago, would be liable subsequently to lead the witness into confusion and not greatly assist the trier of fact.

354. On the other hand, there are circumstances in which it is preferable to put a gist memory into direct speech. In some instances the form of a particular statement will matter, for example with respect to a representation said to found a claim in estoppel or for misleading conduct, or where a claim is made based upon a term of an oral contract. Such a point was made by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:

In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition.

355. In cases where the form of a statement does matter then even if they cannot recall the precise words used it will generally be desirable for the witness to state their best recollection of the substance of the words used in direct speech.

356. In sum, insofar as a witness recalls actual words used then the witness should state those words in direct speech. Insofar as the witness recalls only the substance of what was said then they can give evidence accordingly. Such evidence can be in the form of direct speech – after explaining that it is recording only the substance, effect or gist of what was said – or in indirect speech. The aim should be to capture the best recollection of the witness with a level of detail appropriate and relevant for the issue in the case, doing so in a way that is not misleading with respect to the level of detail that the witness remembers, and which meaningfully captures what the witness remembers in a way that the witness has expressed and can explain. In instances where particular spoken words are the foundation of a legal claim it is desirable that the witness’s recollection of the substance of those words be put into direct speech, in terms indicating that the witness is testifying to the substance or gist of what was said.

357. In this matter, Mr Puleo gave evidence of his usual practice in obtaining instructions for wills, indicating that he could not recall the exact words he had used some 10 years earlier. As the respondents submitted, the mere fact that he could not recall the words used could not sensibly mean the evidence was not admissible or that an adverse credit finding should be made.

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Endnote

Decision last updated: 26 September 2024