French v Black
[2015] NZHC 2519
•13 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1004 [2015] NZHC 2519
UNDER the Family Protection Act 1955 BETWEEN
CEDRIC DUDLEY FRENCH First Plaintiff
SYLVIA JEAN WAREHAM Second Plaintiff
AND
CAROLE ANN BLACK AND ROBERT VICTOR EADES
AS TRUSTEES OF THE ESTATE OF LILLIAN ALMA FRENCH Defendants
Hearing: 13 October 2015 Appearances:
S P Chandra for Plaintiffs
A MacMillan for Carole Ann Black, DefendantJudgment:
13 October 2015
ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL
Solicitors:
Turner Hopkins (S P Chandra) Auckland for Plaintiffs
Barbara Knowles Law, Mairangi Bay, Auckland, for Carole Ann Black, Defendant
Copy for:
Alison MacMillan, Barrister, Albany, Auckland, for Carole Ann Black, Defendant
FRENCH v BLACK AND EADES [2015] NZHC 2519 [13 October 2015]
[1] This proceeding concerns the estate of Lillian Alma French who died on
21 December 2012. She was a widow. She had three children - the plaintiffs, Cedric Dudley French and Sylvia Jean Wareham, and Carole Ann Black, one of the executors and also a beneficiary.
[2] Mrs French left an estate of about $1,200,000. Part of that estate is a house in Northcote, Auckland, worth about $700,000. The rest appears to be funds. In her last will of April 2006 she left the Northcote property to Carole, left her engagement ring to Carole’s daughter, and divided the residue, four shares to Carole, four shares to Cedric and two shares to Sylvia. Probate was granted in April 2014. The executors are Carole Black and an Auckland solicitor, Mr Eades. In a previous will, Mrs French had left the Northcote property to Carole and Cedric equally, and the residue was divided 4:4:2 as with the 2012 will.
[3] In April 2014, Mr French and Mrs Wareham began a family protection proceeding in the Family Court. At the outset, each swore an affidavit. In the present application Mrs Black applies to strike out certain paragraphs in Mr French’s affidavit of 15 April 2014 and related annexures, and certain paragraphs in Mrs Wareham’s affidavit and related annexures.
[4] This proceeding was transferred from the Family Court to the High Court in about June 2015. The reason for the transfer was that Mr French and Mrs Wareham wanted to expand their claims. They wanted probate revoked on the grounds of alleged undue influence on the part of Carole Black, and alleged lack of testamentary capacity of Mrs French. The Family Court does not have a probate jurisdiction.
[5] While the proceeding was in the Family Court, counsel for Mrs Black wrote to the plaintiffs’ lawyers taking issue with the contents of the affidavits which Mr French and Mrs Wareham had filed at the outset of the proceeding. The Family Court Rules allow applications to be made for pretrial rulings on admissibility of evidence.1 While the proceeding was pending in the Family Court, Mrs Black did
not make any application under r 170. The rules for admissibility of evidence in
1 Family Court Rules 2002, r 170.
family protection claims are the same in that court as in this court.2 That is, the rules of evidence under the Evidence Act 2006 apply. The same admissibility issues were before the Family Court as are now before this court.
[6] The present state of the proceeding is that the plaintiffs have given their evidence. Certain evidence has been given on behalf of the executors. Mrs Black has still to give her evidence. At the end of this decision I will give rulings fixing a time for Mrs Black to give her evidence, and fixing a time for the filing of evidence in reply. The case has a close of pleadings date of 25 January 2016. A hearing has already been allocated for May 2016.
[7] Mrs Black’s application is directed at paragraphs 16, 17, 18 and 19 of Mr French’s affidavit, and also exhibits A, B and C of that affidavit. In those parts of his affidavit, Mr French refers to a letter from the Waitemata District Health Board to Mrs French’s general practitioner dated September 2008. That letter was attached. Mr French makes comments on the tests for diagnosis of Alzheimer’s disease and he attaches other clinical notes. The documents he refers to all came into existence in
2008, some two years after the will was made.
[8] The parts of Mrs Wareham’s affidavit that Mrs Black objects to are paragraphs 16, 17, 37, 38 and 47 and the documents referred to in those paragraphs. Again, the objection is taken that much of that content is hearsay.
[9] There is a question whether the court should deal with pretrial objections to evidence. Unlike the Family Court Rules, the High Court Rules do not contain an express provision allowing for pretrial rulings on admissibility of evidence in civil proceedings. Obviously, affidavits must be restricted to evidence that would be
admissible at trial. The rules make that clear.3 There is a difference in practice
between dealing with objections to evidence in criminal proceedings and in civil proceedings. Because criminal proceedings are heard before a jury, it is standard
practice to make pretrial rulings on admissibility of evidence to ensure that jurors do
2 The relaxation of the rules of evidence for certain family proceedings under s 12A of the Family
Courts Act 1980 does not apply to family protection proceedings.
3 High Court Rules, r 9.76(1)(d)(i).
not hear evidence that is inadmissible.4 By contrast, civil proceedings are commonly not heard before a jury. Trial by jury is the exception rather than the rule. Even with civil trials before a jury, it was standard practice to make rulings as to admissibility of evidence during the hearing itself, not pretrial. That is in part because in the older times evidence was not exchanged before the hearing.
[10] Here, evidence by affidavit has been exchanged. Given that the general practice is to leave objections to evidence to be determined in the hearing itself, the question is whether the court should develop a practice of giving pretrial rulings on evidence.
[11] When I raised this question with Ms MacMillan, she referred to a decision of Courtney J in Radisich v Taylor.5 That was an appeal from a decision of the Family Court giving rulings on admissibility of evidence in a proceeding under the Property (Relationships) Act 1976. That case involved a decision apparently under r 170 of the Family Court Rules or the equivalent rule in force at that time. The case is not authority that the High Court has a standard practice of giving pretrial rulings on admissibility of evidence in proceedings started in this court. I do not regard the Radisich case as indicating that this court does commonly make pretrial rulings on
admissibility of evidence. Nevertheless, in her decision, Courtney J referred to certain observations made by McGechan J in Donovan v Graham:6
Where, however, pretrial objection is indeed taken the Judge must act in a manner which will best promote the overall interests of justice given the facts of the particular case. The Judge must bear in mind risks involved in premature exclusion of evidence which on the more fully informed basis emerging at trial might be seen as admissible. He must keep in mind the desirability of the case being kept within bounds, and open to efficient disposal. It is important affidavits not be allowed to mushroom, with irrelevance piled upon irrelevance, accusation upon accusation, and with the parties becoming increasingly and unproductively inflamed. Having said that, it also is important the Court not become buried in extensive interlocutory battles over evidential points of relatively trivial importance, without time to decide substantive disputes. There is room for pretrial pragmatism, particularly over lesser matters. Each case must depend very much on its own facts.
4 Criminal Procedure Act 2011, s 101.
5 Radisich v Taylor HC Auckland CIV-2007-404-3276, 23 March 2009.
6 Donovan v Graham (1991) 4 PRNZ 311 (HC) at 313.
That indicates that the court has a discretion whether to exercise the power to exclude evidence ahead of trial.
[12] The following general factors are relevant:
(a) In most cases there will be no prejudice in leaving any decisions as to admissibility to the hearing. In a civil case the trial judge decides all questions of fact and law except in a jury trial (which is very much the exception). The judge will sift the evidence, disregarding what is inadmissible. Judges are used to analysing the evidence, assessing what is admissible, what is inadmissible, and putting the inadmissible to one side. That works well in practice and no hardship is generally seen to arise.
(b)One effect of that general practice is that parties preparing evidence have only one chance to get their evidence right. If they run their case on evidence that is ruled inadmissible at trial, they will not get a second chance to repair their case. If the present practice continues, that will encourage the parties to ensure that they have got their evidence right the first time. Allowing a practice of pretrial rulings may encourage a more casual approach.
(c) Allowing pretrial applications will add to inefficiency. The timetabling directions for the exchange of evidence will be disrupted by applications to challenge evidence.
(d)Inevitably there is a heavier cost on interlocutory applications than in dealing with matters in the course of the trial.
[13] Those factors together, in my view, point to reasons why the court should not consider applications such as this. I emphasise that those are general considerations only. There may also be good reasons why the court should, on occasions, consider pretrial applications. As Ms MacMillan submitted, the court does have an inherent jurisdiction to control its procedure, and that inherent jurisdiction has been exercised
in cases where affidavits contain scandalous material. Other examples come to mind where it might be appropriate to exercise the jurisdiction: the disclosure of information which is subject to privilege, or which contain matters of state under s
70 of the Evidence Act.
[14] There may be other cases where the parties need to make important tactical decisions as to the evidence they wish to call. As an example, there may be evidence which makes strong allegations against a party but is arguably inadmissible hearsay. A party may have to consider whether they need to muster evidence to rebut that allegation, or if they can safely rely on an objection. Some effort may be required to rebut the allegation. The matter might be safely dealt with by a pretrial ruling as to admissibility. There may be good reasons for an application for excluding the evidence. In other words, there is no definitive approach. It will be a matter of discretion in the particular case, as described by McGechan J in Donovan v Graham.
[15] In this case, the evidence was given at the outset of the proceeding. The evidence objected to is intended to go towards establishing a lack of testamentary capacity on the part of Mrs French. Some of it may also be relied on to support allegations of undue influence. But other evidence has since been given. In particular, the plaintiffs have instructed a neurologist who has given evidence in their support. The executors have also filed an affidavit by a neurologist. It strikes me that when a judge comes to assess the evidence as to lack of testamentary capacity, the judge is more likely to take notice of evidence from medical experts than from Mr French’s attempt to set out his understanding of Alzheimers. In the total context of the case, there is little difficulty in a judge addressing the admissibility of MrFrench’s affidavit and Mrs Wareham’s affidavit in the course of the trial. It appears to me that the particular parts of the evidence objected to by Mrs Black may not play great significance at the trial. But, as I say, it would be better assessed by the trial Judge than by myself at this stage.
[16] In short, I decline to make rulings on the admissibility of the evidence because that exercise is better left for the trial itself. I do that because, in general, I do not regard it as desirable for the court to give pretrial rulings, particularly given
the time required to deal with interlocutory challenges and the time and expense they add to a proceeding.
[17] For these reasons, I dismiss the application.
[18] I give these rulings as to the further exchange of evidence.
[19] Mrs Black, as beneficiary, will have until 13 November 2015 in which to file and serve her affidavit evidence.
[20] The plaintiffs will have until 11 December 2015 in which to file and serve any evidence in reply. I emphasise that their evidence is to be strictly in reply. They do not have the opportunity to give fresh evidence in support of their case.
Costs
[21] The plaintiffs are entitled to costs on this application on a category 2 basis. I encourage the parties to confer as to costs but if they cannot agree memoranda may be filed.
[22] I reserve leave to apply for further directions if required.
………………………………………..
Associate Judge Bell
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