Woodley v Woodley [No 6]
[2018] WASC 379
•9 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WOODLEY -v- WOODLEY [No 6] [2018] WASC 379
CORAM: ALLANSON J
HEARD: 9 OCTOBER 2018
DELIVERED : 9 OCTOBER 2018
FILE NO/S: CIV 2080 of 2013
BETWEEN: TERRY RAY WOODLEY
Plaintiff
AND
ROSS MAXWELL WOODLEY
First Defendant
ROSS MAXWELL WOODLEY and RAYMOND THOMAS WOODLEY As Executors of the Estate of the Late Shirley Grace May Woodley
Second Defendants
Catchwords:
Practice and procedure - Where plaintiff applies to adduce additional evidence after trial - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Mr P G Donovan & Ms H J Burnside |
| Second Defendants | : | No appearance |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | MDS Legal |
| Second Defendants | : | No appearance |
Case(s) referred to in decision(s):
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Woodley v Woodley [No 2] [2017] WASC 94
ALLANSON J:
(These reasons were delivered orally on 9 October 2018 and have been edited from the transcript.)
The trial of this action was heard over 10 days between 19 June and 2 July 2018 with final submissions on 21 August 2018. In the course of his submissions, the plaintiff, Mr Terry Woodley, foreshadowed an application to adduce fresh and new evidence before the court made its decision.
On 25 September 2018, by email, Mr Woodley sent notice of proposed orders that:
(1)the affidavit and attachments thereto dated 24 September 2018 be tendered as evidence and become exhibit 33 in the trial;
(2)that item 26 of the first defendant's affidavit dated 14 October 2013, being the compilation VHS cassette DVD, be tendered as evidence; and
(3)that the USB memory stick produced by the plaintiff referred to at trial containing photographs and videos attached to the witness statement of Mr Slee be tendered as evidence.
Mr Woodley also sent, by email, the text of an affidavit sworn 24 September 2018, but not the attachments to it. None of the material was immediately filed but it was subsequently and I have had the opportunity to look at it all.
On 8 October 2018, Mr Woodley sent a supplementary affidavit, but not the attachments to it. I received the attachments this morning. I had the opportunity to look at them and Mr Woodley took me through them in the course of his submissions.
Before outlining the evidence sought to be adduced, I turn to the principles to be applied in this application. They are conveniently summarised in Osborne v Landpower Developments Proprietary Ltd (in liq).[1] First, it is relevant to inquire why the evidence was not called at the hearing. A deliberate decision not to call it will ordinarily tell decisively against the application. Second, different considerations may apply depending on whether the application is made before judgment has been delivered. Third, if made before judgment, the primary consideration is that of embarrassment or prejudice to the other side. And, fourth, relevant factors include the materiality of the evidence and whether the interests of justice would be advanced by its admission.
[1] Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117 [12] ‑ [14] (McLure J).
There is no adequate explanation for why Mr Woodley did not obtain and lead the evidence at trial. It is not satisfactory for him to simply say, as he does for one part of the proposed evidence, that his memory was subsequently jolted or that he thought about these matters later. But while there is no sufficient explanation, I am prepared to assume that Mr Woodley did not deliberately choose to not lead the evidence.
The application has been made before judgment. Therefore, primarily, I am concerned with embarrassment or prejudice to the other side, the materiality of the evidence and, importantly, whether the interests of justice would be advanced by its admission. The last factor of course, overlaps with case management considerations. An application to adduce additional evidence should be considered by reference to case management considerations. In this case, by reference to those considerations and the interests of justice, I believe I should also have regard to Mr Woodley's conduct of the trial.
In short, Mr Woodley failed to comply with any of the orders made for the filing of witness statements before the trial. He provided the documents on which he wished to rely, two volumes of about 1,600 pages, to the defendant's solicitors the evening of the day before trial.
The present application was listed for hearing on 9 October 2018, that is, today. As late as yesterday Mr Woodley was seeking to file further evidence.
The attachments to the affidavit include documents which are incomplete: for example, the front page of Raymond Woodley's 1992 tax return and page 5 of his 1999 tax return. In the supplementary affidavit that was received this morning, Mr Woodley attached cover pages to various documents but not the whole document.
Case management considerations weigh strongly against permitting the re-opening of a case. I have however considered the affidavits and whether any of the proposed evidence is material to the decision that I must make in the trial.
The first affidavit is divided into sections and I will deal with each section in turn.
The first section relates to Mr Robert Farris' evidence and the contention that he relied upon incorrect valuation data. Mr Woodley sets out contentions regarding the valuation of the Coronation Road property by Mr Farris. The sale of the Coronation Road property, and whether it was sold below value, may be material to the proof of any damage suffered by Mr Woodley if he is able to establish his claim. But the material in pars 5 to 17 of the first affidavit is not evidence. It is in substance a mixture of speculation and argument.
The next part of the affidavit, pages 18 to 27, deals with the history of values of the Coronation Road property and is again, in substance, argument about the method that should be used to value the property. Mr Woodley sought at trial to lead expert valuation evidence. He did not comply with orders for the provision of expert evidence before trial but relied on a report provided only after the trial had started. On objection from the first defendant, I held the report should not be admitted.
In the present affidavit, Mr Woodley argues for the court to value the property by a calculation from various bits of evidence to arrive at a valuation that no witness has suggested was the correct value. It is not a task on which the court should embark. Those paragraphs are not evidence and should not be admitted.
In pars 28 to 35, Mr Woodley deals with evidence relating to whether Ross was at the Coronation Road property during certain periods after 2010. He asserts that Ross' evidence that he would visit the Coronation Road property about once a week was incorrect. He asserts that Ross went to Broome for three months during the relevant period.[2] This was put to Ross in cross-examination at trial, and he agreed that it could be possible, so this is nothing which is new or fresh.[3]
[2] Affidavit of T R Woodley, sworn 24 September 2018, [31] ‑ [33].
[3] ts 798.
Mr Woodley also asserts that, in and about May 2011, Ross went to Bali for two weeks.[4] But there is no evidence of that other than the assertion. Even if that were the case, those paragraphs are not material to the issues. They may be of some marginal relevance to Ross' credibility, but I am not satisfied that such marginal relevance is sufficient to warrant the re-opening of the trial.
[4] Affidavit of T R Woodley, sworn 24 September 2018, [34].
Perhaps I should interpolate that, when I refer to re-opening of the trial, it would not simply be a matter of receiving the affidavits. It would be necessary for the defendant to have the opportunity to either cross‑examine or to call further evidence to deal with material which is new or fresh. That is an important case management consideration.
The next part of the affidavit deals with a group of matters: first, they deal with a visit by a Perth barrister in about 1997; Mr Woodley's dealings with another legal practitioner; the creation of two trusts; and assertions regarding his parents making new wills. The section of the affidavit relates to evidence which Mr Woodley now seeks to give about events in around 1997 when his parents made their wills.
Mr Woodley's case at trial was clearly stated in par 13 of the statement of claim, that from approximately 1992 until 2010 Thomas Woodley and Shirley Woodley regularly and on numerous occasions told the plaintiff that the Coronation Road property would be his when they passed away. Mr Woodley now wishes to adduce evidence that in about 1997, either the year or the year before his parents made their wills he engaged lawyers to assist him with matters in the Family Court. He says that his parents were aware that his brother, Raymond, stood to lose assets in a property settlement following his divorce, and Mr Woodley says that at that time he felt it was important to clarify matters relating to his own pending divorce and property settlement.[5]
[5] Affidavit of T R Woodley, sworn 24 September 2018, [50] ‑ [53].
Although he has pleaded and his case was consistently put on the basis that he was promised that the Coronation Road property would be his when his parents passed away, Mr Woodley says that, about this time in 1997, his parents had wanted to do a number of transfers, including the Coronation Road property. Mr Woodley says that he spoke to his lawyer and explained his concerns that his parents wanted to transfer a number of assets to him, including the farm. He explained that he thought doing property transfers now would only cause more issues to deal with, and add to the cost bill in the family law proceedings.[6] Mr Woodley says that he took legal advice and had a conference with his parents and his lawyer, where they discussed 'spousal maintenance, child support, the pool of assets, assets protection, property and financial resources, financial contributions, inheritances and other equitable interests and about using trusts'.[7]
[6] Affidavit of T R Woodley, sworn 24 September 2018, [56].
[7] Affidavit of T R Woodley, sworn 24 September 2018, [59].
None of that was in evidence at trial.
Mr Woodley says that at some time between 24 January and 30 May 1997 when his parents made their wills, he and his parents agreed that any property transfers that they had proposed 'between them and I' would not take place until later.[8] At about this time Mr Woodley created a unit trust and a children's maintenance trust. He says that at some time in 1998, his parents asked him for a copy of the trust deeds so that they could update their wills as a way of giving effect to the property transfers they had previously proposed.[9] Again I simply comment that this is vastly different from the case pleaded or presented at trial.
[8] Affidavit of T R Woodley, sworn 24 September 2018, [63].
[9] Affidavit of T R Woodley, sworn 24 September 2018, [70].
Mr Woodley also deposes to his belief that his parents made a new will or wills after 1997, and that that will or wills were lost by Nicholson Clement, their solicitors, or that Ross Woodley saw it and has destroyed it.[10] That was not the case pleaded. It's patently inconsistent with the pleading and evidence at trial.
[10] Affidavit of T R Woodley, sworn 24 September 2018, [77].
The allegations regarding the new will are also inconsistent with both the case presented and the decision of Pritchard J in what have been referred to as the Estate proceedings.[11] Mr Woodley will not now be permitted to advance this case, which was not his case at trial and which, although it is not necessary for me to make a final finding, tentatively I would regard it as an abuse of process.
[11] Woodley v Woodley [No 2] [2017] WASC 94.
Mr Woodley seeks to support his contentions with a photograph of an envelope on his mother's kitchen table addressed to him. He speculates that it may have contained another will.[12] The proposed evidence is nothing more than speculation and is not material.
[12] Affidavit of T R Woodley, sworn 24 September 2018, [78].
Next, Mr Woodley deposes that he did not attend any meeting to read his father's will. It is not apparent how that is relevant evidence.
Mr Woodley also wishes to give further evidence about the reading of his mother's will, including the amounts charged by the lawyers to the estate, as apparently proving something about the time spent by the lawyers at readings of the will.
Mr Woodley seeks to give evidence of a meeting he had with the lawyers, and what he was told. In particular, this relates to his discussion about loans, property interests and entitlements 'far beyond what Ross and Raymond represented to him'.[13] Mr Woodley says that as a result of his meeting with the lawyers and the executors' meeting, the lawyers wrote a letter dated 12 January 2012, which he has exhibited.[14] But again the evidence is simply not relevant to the issues which I am required to determine. This is not a free-ranging inquiry. This case is concerned with specific pleaded issues to deal with the Coronation Road property.
[13] Affidavit of T R Woodley, sworn 24 September 2018, [94].
[14] Affidavit of T R Woodley, sworn 24 September 2018, [97].
In pars 98 to 114, Mr Woodley deposes to matters relating to his brother Raymond, none of which is material to matters in this trial. This morning in effect Mr Woodley conceded that to be the case.
Paragraphs 115 to 117 deal with land owned by Thomas Woodley in Waroona, including three blocks that were disposed of in 1997 and 1981. None of those matters, or the related attachments, is remotely relevant.
The next section, from pars 118 to 136, is a part of the affidavit that Mr Woodley, this morning, described as being his main point. In those paragraphs Mr Woodley covers a range of matters regarding a property in Halls Head, the family home in Waroona, a farm lot in Paterson Road, Waroona, and two properties in Fitzpatrick Street, Waroona. He describes a barbeque lunch with his mother and his sister on 3 July 2010.[15] He sets out evidence given by Wayne Woodley in other proceedings regarding the Fitzgerald Street units. All of this apparently relates to the allegation that there was a family arrangement, the knowledge of which was conveyed to Shirley Woodley and which is part of Mr Woodley's allegation that there was a fraud upon his mother.
[15] Affidavit of T R Woodley, sworn 24 September 2018, [131].
Apparently based on all of this material and on the evidence at trial, Mr Woodley states his belief that his mother knew she had 100% interest in and entitlement to the Fitzpatrick Street units and the Coronation Road property, and did not include them in the probate application for his father's estate because she thought they had been dealt with under the family arrangements.[16]
[16] Affidavit of T R Woodley, sworn 24 September 2018, [137] ‑ [138].
This morning Mr Woodley referred specifically also to a boat and a caravan, again the subject of the alleged family arrangement. This was to support the argument that was presented at trial that Ross had told his mother about the family arrangement, and that it was shown on the 'I, Shirley Woodley' document which was the subject of some discussion at trial. Mr Woodley contends that his mother altered her will to include gifts of two motor vehicles, consistent with the family arrangement that Ross had proposed.[17]
[17] Affidavit of T R Woodley, sworn 24 September 2018, [139] ‑ [140].
The proposed new evidence firstly is not new evidence or fresh evidence. There is no reason put forward, and no reason for me to believe why it was not available and could not have been led at trial. Second, it is inadmissible both in form and in content. Mr Woodley's belief about things is not itself relevant. The conclusions he seeks to draw are not supported by the proposed evidence.
It is an important principle of law, and one which I will be referring to in my final reasons, that inferences can only be drawn from facts. You must first prove or establish the facts before the inference can be drawn. If you have not established the facts, or if the inference is only one of available equally likely inferences, then you have not proved what you have set out to prove.
But in any event, with regard to this material regarding Shirley Woodley's knowledge, I am not satisfied that it would be in the interests of justice to reopen the trial. The proposed evidence is inadmissible in form and in content. If it was important, I cannot understand why it was not led at trial. To some extent it was led at trial.
Next, Mr Woodley includes information about the units, including bank statements from his parents' account in 1978.[18] Why bank statements from 1978 are material is not apparent to me. Again it appears to be directed to the contention that in 2010 Ross proposed a family arrangement in respect of the Woodley parents' assets which included those units.
[18] Affidavit of T R Woodley, sworn 24 September 2018, [141] ‑ [147].
Mr Woodley contends, without evidence, that the units were put in Wayne's name for asset protection purposes and to maximise their estate.[19] As I said in the course of the hearing this morning, I am well aware of the previous regime of death duties. But the fact that there was such a regime is not itself sufficient to draw the inference which Mr Woodley asks the court to draw, or indeed to cover the position that death duties went out in about 1979 and these assets remained in Wayne's name up until the time of the death of his parents. It just shows how speculative this whole exercise has become. None of it is material. None of it is relevant or admissible.
[19] Affidavit of T R Woodley, sworn 24 September 2018, [145].
The next section deals with the document headed Mum's Stuff that has the notation on it 'Ross big loser'.[20] Mr Woodley refers to this document, a page of handwritten notes apparently made by Ross and included in the defendant's trial documents. Ross gave evidence at trial about this document. He said it was notes made in a discussion he had with Wayne Woodley about options for dividing their parents' estate.[21] Mr Woodley states his belief that Ross had been speaking to their mother about the estate and the 'I, Shirley Woodley' document because the notes include items that only Mr Woodley or his mother would have known.[22]
[20] Affidavit of T R Woodley, sworn 24 September 2018, [148] ‑ [153].
[21] Witness statement of R M Woodley, sworn 23 May 2018, [398] ‑ [414].
[22] Affidavit of T R Woodley, sworn 24 September 2018, [153].
This could have been dealt with at trial, and to some extent was. The note by Ross was in evidence. What is proposed to be put forward now is not additional evidence. It is simply speculation based upon existing evidence.
The last six paragraphs of the affidavit deal with renovations done at the Fitzpatrick Street units, which Mr Woodley asserts were based on representations made by Ross; and an affidavit in other proceedings in which Ross deposed to telling his mother that Mr Woodley did not want the Coronation Road property and that he, that is Ross, would not mind ending up with it.[23] Mr Woodley denies ever telling Ross that.[24]
[23] Affidavit of T R Woodley, sworn 24 September 2018, [154] ‑ [155].
[24] Affidavit of T R Woodley, sworn 24 September 2018, [156].
Mr Woodley also disputes evidence given by Raymond Woodley about the purchase and erection of a cattle yard on the Coronation Road property.[25] None of that proposed material is relevant to the decision that I must make.
[25] Affidavit of T R Woodley, sworn 24 September 2018, [157] ‑ [159].
I turn now to the supplementary affidavit. The first part of the supplementary affidavit is directed to the fact that Mr Woodley was dealing with his solicitor in December 2017 and early January 2018. It is of very marginal relevance to his explanation for why he failed to comply with pre-trial orders. It is not sufficiently material to warrant re-opening the trial.
The second part is directed to evidence that was given at trial about milk quota licences. Mr Woodley simply says, without explanation, that he has been able to obtain documents to which he previously did not have access.[26] There was, of course, some evidence about the milk quotas adduced at trial, without objection. But having now heard all of the evidence and closely considered the case, I am satisfied that it is of no evidentiary value and is immaterial to my judgment. This additional material will not be admitted.
[26] Affidavit of T R Woodley, sworn 8 October 2018, [10].
Similarly, the proposed evidence about whether there was an operational dairy on the Hamel Road farm in 1968 is irrelevant to anything I have to decide. If it may be relevant to an assessment of the credibility of Ross, I am not satisfied that it is sufficiently material to that issue to warrant re-opening the trial. Mr Woodley had a full opportunity to cross‑examine at trial.
Further, on collateral issues, that is questions that go only to credit, Mr Woodley is bound by a witness's answer and cannot lead evidence to rebut that answer.
That conclusion applies with even greater force to the proposed evidence directed to whether Ross was absent from the farm due to his other activities, resulting in ongoing hygiene and quality issues in the dairy operation. The fact of Ross being absent, his rally driving and other activities, were explored at trial. But it is essentially a matter which at best could go to his credibility. As a general proposition, the case is not and never was going to be decided on the basis of these issues.
In conclusion, I am not satisfied that any of the evidence sought to be adduced in the affidavits is material to the decision in this matter. Mr Woodley has relied on a combination of argument and speculation, in some cases tenuously supported by the documents which were attached. But basically the proposed affidavits are not evidence, they are further argument. He has not shown anything of sufficient relevance to warrant re-opening the trial.
There is also before me a proposed amendment to the statement of claim in the prayer for relief. In effect, the amendment flows from the proposed evidence that the value of the Coronation Road property was $1,036,800. The proposed evidence of value is not admissible. It would not be in the interests of justice to permit a late amendment when it would not be supported by evidence. In any event, it would not be in the interests of justice to permit such a late amendment.
The proposed tender of the DVD and the photographs and videos on the USB stick were dealt with at the conclusion of the hearing this morning. As I understand it, Mr Woodley thought they had been received in evidence at trial, at least as regards the USB stick. The defendant accepts that the USB, which contains photographs and videos referred to in the evidence of Mr Slee, one of the plaintiff's witnesses, was admitted in evidence at trial.
The other documents were, as the first defendant correctly submits, not admitted at the trial. I am not going to re-visit my earlier ruling which, in any event, I believe was correct. Accordingly, the applications are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON7 DECEMBER 2018
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