Nobarani v Mariconte

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Gageler,Nettle,Gordon,Edelman JJ.
• Judgment Date: 15 August 2018
• Neutral Citation: [2018] HCA 36
• Docket Number: S270/2017
• Date: 15 August 2018

[2018] HCA 36

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Nettle, Gordon AND Edelman JJ

S270/2017

Homayoun Nobarani

Appellant

and

Teresa Anne Mariconte

Respondent

Representation

M J Windsor SC with J E F Brown and M E Hall for the appellant (instructed by Remedy Legal)

G O'L Reynolds SC with A E Maroya and D F Elliott for the respondent (instructed by Vizzone Ruggero Twigg Lawyers)

Supreme Court Act 1970 (NSW), ss 75A, 101(1)(a).

Supreme Court Rules 1970 (NSW), Pt 78 rr 42, 43, 44(4), 66, 69, 71.

Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

Practice and procedure — Appeals — Denial of procedural fairness — Where appellant unrepresented — Where nature of hearing altered at short notice — Where appellant's applications for adjournments refused — Whether appellant denied procedural fairness at trial — Whether denial of procedural fairness amounted to “substantial wrong or miscarriage” — Whether appellant denied possibility of successful outcome — Whether new trial should be ordered.

Succession law — Wills, probate, and administration — Grant of probate — Where appellant claimed interest in challenging will — Where respondent granted probate of will in solemn form — Whether appellant had interest in challenging will.

Words and phrases — “adjournment”, “caveat”, “denial of procedural fairness”, “possibility of a successful outcome”, “probate”, “procedural fairness”, “substantial wrong or miscarriage”.

Kiefel CJ, Gageler, Nettle, Gordon AND Edelman JJ.

Introduction

1 This appeal concerns whether a new trial should be granted to the appellant on the basis that he was denied procedural fairness in the conduct of a trial, heard on 20 and 21 May 2015, involving the respondent's claim for probate of a will in solemn form.

2 The appellant was unrepresented. He claimed an interest in challenging a handwritten will made by the late Ms Iris McLaren in 2013 (“the 2013 Will”). He filed two caveats against a grant of probate without notice to him. The respondent brought proceedings for orders that the caveats cease to be in force. Until 14 May 2015, the appellant's preparation was essentially limited to those proceedings. The appellant had not been joined as a party to the respondent's summons for probate of the 2013 Will and was not named in her later statement of claim. No directions had been made requiring the appellant to file any evidence in the proceedings. He had, correctly, proceeded on the basis that he had not been directed to take any steps towards a trial of the claim for probate. On 23 April 2015, the appellant was told by the judge at a directions hearing that the trial on 20 and 21 May 2015 would be confined to the respondent's motion that the appellant's caveats cease to be in force (“the caveat motion”).

3 On 14 May 2015, with three clear business days before the trial, the first directions hearing was held by the trial judge, Slattery J. For the first time, the respondent submitted that the appellant's caveats had lapsed by effluxion of time. The trial judge, with the urging of senior counsel who had appeared at the previous directions hearings, told the appellant that the trial on 20 and 21 May 2015 would be of the claim for probate. He directed that the appellant file and serve a defence to the statement of claim by 18 May 2015, that is, within one clear business day. He also directed that, within the same clear business day, the appellant should serve any supplementary evidence upon which he wished to rely in addition to the affidavits he filed in his caveat proceeding and identified during the directions hearing. The trial judge was not informed prior to making those directions that the appellant was not a party to the probate proceedings, or that the appellant's affidavits had been filed only in connection with the caveat motion.

4 On 20 May 2015, the first day of the trial, the appellant was joined as a party to the claim. His defence was in disarray. His applications for adjournments were refused. The trial judge delivered judgment orally on 22 May 2015, granting probate of the 2013 Will in solemn form. The appellant was ordered to pay the costs of the proceedings.

5 A majority of the Court of Appeal of the Supreme Court of New South Wales dismissed the appellant's appeal, but for different reasons. Ward JA dismissed the appeal because she concluded that, although the appellant had been denied procedural fairness, there was no possibility that the outcome would have been any different. Emmett AJA dismissed the appeal because he concluded that the appellant did not have an interest in challenging the 2013 Will.

6 This appeal should be allowed. For the reasons below, the appellant had an interest in the 2013 Will and he was denied procedural fairness at the hearing. The denial of procedural fairness was material in the sense of a “substantial wrong or miscarriage”, as required by r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW), because he was denied the possibility of a successful outcome.

The facts and course of proceedings

7 Ms McLaren died of cancer on 12 December 2013, aged 83 years. One week earlier, on 5 December 2013, she had made the 2013 Will, naming the respondent as executrix and leaving the whole of her estate to the respondent. The 2013 Will purports to be witnessed by two people, Ms Rachel Parseghian and Mr Chen Yuanun.

8 In an earlier will of the deceased, dated 12 August 2004 (“the 2004 Will”), she had made bequests to the Animal Welfare League NSW, including money and land, reflecting what the trial judge described as her strong, lifelong interest in the welfare of animals. In the same will, she had bequeathed to the appellant shares of her jewellery and personal possessions.

The caveat proceedings

9 On 23 January and 5 February 2014, two caveats were filed against the grant of probate in the estate of the deceased without notice to the caveator 1. The first of those caveats was filed by the appellant, claiming an interest based upon his rights under one or more prior wills. The second was filed by the Animal Welfare League, claiming an interest as a beneficiary under the 2004 Will.

10 On 14 February 2014, the respondent filed the caveat motion 2. The appellant and the Animal Welfare League were both joined as respondents to that motion.

11 The appellant and the respondent filed affidavits relating to the caveat motion. In one affidavit, the appellant said that he had visited the deceased on 5 December 2013, which is the date of the 2013 Will. He said that she was not alert but sleepy, and that she barely spoke. In other affidavits, the appellant doubted the veracity of the deceased's signature and stated that the address of one of the witnesses, Mr Yuanun, appeared to be a vacant building site. The appellant also annexed an affidavit of Mr Daniel Lemesle, who described himself as a close friend of the deceased who had known her for approximately 60 years. The 2013 Will has the words “Daniel Le” and the suburb in which Mr Lemesle lived below the space for a witness's signature, but those words are crossed out.

12 In Mr Lemesle's annexed affidavit, he deposed to conversations with the deceased where she had told him of her love for animals and her intention to leave the bulk of her estate to the Animal Welfare League. He described visiting her frequently in hospital after she was admitted in October 2013 and every day after she was readmitted in November. He described the deterioration of her condition during November, including her distress, pain, inability to eat or drink, and, at times, lack of comprehension and inability to maintain a conversation. He said that he received a Christmas card in December dated 30 November 2013, purporting to be from the deceased, when, to his knowledge, she was unable to sign her name. Mr Lemesle also described the events of the day that the 2013 Will was signed, although he said that the date was Monday, 9 December 2013. He said that when he arrived at the hospital room, a man who introduced himself as the deceased's solicitor asked him to leave the room. He left for about an hour. When he returned, and was told by the respondent that he had been sought as a witness to the will of the deceased, he expressed doubt that the deceased could sign a will in her present state, given that her condition had worsened from two weeks prior, when she could not sign the Christmas card.

13 The respondent filed an affidavit sworn by the solicitor who had prepared the 2013 Will on 5 December 2013 and read it to the deceased. The solicitor said that he knew the deceased well by the time of her death. He said that she rang him in early December 2013 and asked him to attend upon her in hospital. He said that, when he arrived, she appeared alert and interested, and she said that the

respondent was the only person who cared about her. He said that she understood that she had left everything to the respondent, and the 2013 Will was signed by the deceased in the presence of two witnesses.

14 On 15 September 2014, after the appellant's first caveat had lapsed by the effluxion of its six month duration 3, the appellant filed a new caveat against the grant of probate without notice to him.

The claim for probate

15 On 11 February 2014, shortly before filing the caveat motion, the respondent had filed a summons for probate of the 2013 Will. In contrast with the caveat motion, neither the appellant, nor the Animal Welfare League, was joined to the summons. The respondent's summons was to obtain a grant of probate, in chambers, in the absence of the parties.

16 As submissions at the trial revealed, the respondent's motivation for filing the caveat motion three days later was based upon her assumption that the appellant had no interest in challenging the 2013 Will. The respondent apparently assumed...