Missing element: High Court orders new trial in solemn form probate proceedings; denial of procedural fairness

It appears to be raining estate and trust law cases from the High Court of Australia over the last two weeks.

Yesterday, the High Court of Australia ordered a new trial be held in relation to solemn form probate proceedings in Nobarani v Mariconte [2018] HCA 36 on the basis that the appellant as denied procedural fairness during the proceedings.

The appellant in the proceedings was self-represented through the majority of the proceedings and questioned the validity of the last Will made by the deceased in 2013.  The appellant was also a beneficiary under an earlier Will the deceased had made and stood to receive jewellery and personal items under that Will. The earlier Will, made in 2004, nominated the Animal Welfare League NSW as the main beneficiary of that Will.  The 2013 Will appointed the respondent in the proceedings as the executor and the sole beneficiary of the estate.

The appellant had lodged caveats against probate of the 2013 Will (as did the Animal Welfare League) and argued that the Will was not valid for a variety of reasons, including some oddities in relation to the witnesses particulars on the 2013 Will (such as one of the witnesses’ addresses was a vacant building site).

Throughout the proceedings prior to the High Court being called to determine the matter, the appellant argued that he was denied procedural fairness in respect of the way the proceedings were managed.  In short, the executor of the estate had taken the view that the appellant had no interest in challenging the WIll and that that the executor had assumed that the appellant would be shown to have no interest in challenging probate of the 2013 Will. However, the executor did not take the same view to the Animal Welfare League’s position and filed a statement of claim in relation to the probate proceedings and the Animal Welfare League as the defendant in those proceedings. The appellant was not joined to the statement of claim and although he was served with the statement of claim and filed an appearance, he was not directed to take any steps in the proceedings. Eventually the executor and the Animal Welfare League reached a compromise and consent orders were filed dismissing the Animal Welfare League’s claim. The appellant was not named in the consent orders, nor was his signature sought on the minute.

Justice Hallen of the NSW Supreme Court noted, upon hearing the matter for directions following the consent orders being made, that the appellant was still not joined as a party to the statement of claim.  The executor had asked the Court to consider an application against the appellant for summary judgement, however Hallen J said that would be a waste of time given that the appellant was not named as a defendant to the proceedings. Hallen J considered two options; either have the issue of whether the caveats should cease to be in force to be dealt with at a trial, or dismiss the caveat motion and proceed to trial on the claim for probate.  The executor called for the earlier of the two options. Hallen J accepted the executor’s submission and determined that the caveat issue was to be amended and the trial to be limited only to determining the issue of whether the caveats should remain in force.

One week before the trial date, Slattery J was called upon to determine an issue raised by the executor which was to point out (for the first time) that the caveats had expired in time.  During the course of this directions hearing, the executor sought that the trial be held as a final probate hearing (i.e. not just for the caveat issue as previously agreed by Hallen J in the earlier directions hearing). Throughout all of this, the appellant had only filed evidence in relation to the opposition of the caveat motion and nothing more, as he had not been directed to take any further steps in relation to the Will itself (i.e. the probate hearing).   The Court accepted the submissions by the executor’s lawyers that 1 business day would be plenty of time for the appellant to file a defence in relation to the probate proceedings (the directions hearing was 14 May and the trial was set for 18 May).  At the conclusion of that directions hearing on 14 May, the executor’s lawyers brought to the Court’s attention what was referred to as a “housekeeping” matter of the appellant not having been joined as a defendant to the probate proceedings. The Court subsequently directed the executor to amend the statement of claim to join the appellant to the proceedings.

At the Trial, the executor continued to be represented by both senior and junior counsel and the appellant remained unrepresented. The Court described the appellant’s defence material that was filed as “almost incomprehensible”. During the trial, the appellant sought multiple adjournments to call witnesses, read documents and call expert evidence, all of which were denied. The caveat issue was only mentioned in closing submissions by the executor’s lawyers. The trial judge held that the appellant had an interest under the 2004 Will, which gave him standing to challenge the 2013 Will. Orders were ultimately made by the Court granting probate in solemn form of the 2013 Will and ordered the appellant to pay the executor’s costs.

The appellant appealed the decision of the NSW Supreme Court to the Court of Appeal. The Court of Appeal dismissed the appeal (2:1) stating that notwithstanding that procedural fairness had been denied and noting the conduct of the proceedings, it held that the denial of procedural fairness “did not deprive the appellant of the possibility of a successful outcome” (Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [124]). In dissent, Simpson JA concluded that the appellant had been denied procedural fairness and that the denial was a substantial miscarriage of justice. (Nobarani v Mariconte (No 2) [2017] NSWCA 124 at [55]).

The High Court agreed with the appellant and ordered the matter back to the Supreme Court of New South Wales for a retrial.

Of the circumstances of a denial of procedural fairness, the Court referred to the principal enunciated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147:

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

In relation to entitlement to a new trial and of the time that the appellant had to prepare his defence material for trial, the High Court said, at paragraphs 42-43:

The trial judge was correct that the appellant had been told the previous week, on 14 May 2015, to have all his evidence ready for the trial, and that the proceedings needed to be managed in a just, quick and cheap manner.  Speed and frugality are often closely associated.  But they must be consistent with justice.  The trial judge erred in his statement that the appellant had sufficient time to prepare because the matter had, for some time, been set down for trial. the trial judge did not appreciate, and was not informed, that the dates that had been set down were only to be used for the hearing of the caveat motion and that no directions had been made for the taking of any steps, or filing or service of any documents by the appellant, save for the misconceived indication on 30 March 2015 for a defence, which, under Pt 78 r42, would have related to an informal testamentary document.

As Simpson JA correctly observed in the Court of Appeal, it is apparent that the appellant had little appreciation of the appropriate court procedure or rules of evidence and his command of the English was not strong.  In these circumstances, it is unsurprising that the appellant’s case was vague and disordered when he had only three clear business days to: (i) consider the statement of claim in a proceeding to which he had not been joined; (ii) prepare and serve a defence; (iii) issue any subpoenas, with an abbreviated return date before trial; (iv) locate any supplementary witnesses and obtain supplementary evidence from those upon whom he wished to rely; and (v) secure those witnesses for trial.

At it’s conclusion ordering the new trial and referring self-represented litigants, the High Court said, at paragraph 47:

This conclusion is not based upon reasoning that a litigant in person is entitled to be relieved from rules that would apply to a party who is represented. In this case, no legal representative would reasonably have been refused an adjournment if presented with only three clear business days to prepare for a trial of proceedings to which their client had not yet been joined and in which their client had not been the subject of pre-trial orders for preparing and filing a defence, preparing and filing evidence, issuing subpoenas, and locating and confirming availability of witnesses.  As Samuels AJA said [in Rajski v Scitec Corporation Pty Ltd] in a passage that has been relied upon on many occasions:

“the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement… An unrepresented party is as much subject to the rules as any other litigant.  The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts.  But it must see that the rules are obeyed, subject to any proper exceptions.  To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

Finally, in clarifying the position of the appellant’s interest in challenging the validity of the 2013 Will, the High Court said, at paragraph 49:

Finally, the respondent submitted that the appeal should be dismissed on the basis that, as Emmett AJA concluded in the Court of Appeal, the appellant had no interest in challenging the validity of the 2013 Will. That submission should not be accepted.  A person will have a sufficient interest if he or she has a right “which will be affected by the grant”. The trial judge held, correctly, that the appellant had an interest in challenging the 2013 Will as a legatee under the 2004 Will. No submission was made at trial or on appeal, and no point taken on the notice of contention file in this Court, to suggest that the 2004 Will or the appellant’s interest in it were invalid.  The respondent’s submission that a bequest to the appellant of a share of personal property and jewellery was too insubstantial to amount to an interest must also be rejected. That submission was based upon the factually erroneous assertion – founded only upon the lack of reference to jewellery in the deceased’s inventory of property – that the bequest had no value. It is also legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest. (my emphasis added)

You can read the case here and the High Court’s judgement summary here.

 

 

 

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