by David J Renfrey on 3 Dec 2018
Introduction
The issue of procedural fairness, no matter what area of law, always looms as fertile ground for possible appeal. This possibility is perhaps even more heightened when a self-represented party is involved in proceedings.
The recent case of Nobarani v Mariconte [2018] HCA 36 is such an example. It provides compelling circumstances which drew the High Court of Australia (HCA) to unanimously find that the appellant had been denied procedural fairness, concluding a substantial wrong or miscarriage had occurred.
However, this case also highlights other potentially important issues for legal representatives which are worth consideration. In particular, whether or not the respondent’s case was developed in the context of a strategic approach and whether or not the respondent’s counsel had a duty to alert the trial judge to certain matters of process throughout the proceedings.
Pre-Trial Background
The appellant, Mr Nobarani, claimed an interest in the 2013 Will of the late Ms Iris McLaren that had been handwritten. The Will had been drawn up by the deceased’s solicitor and purportedly witnessed by a Ms R Parseghian and Mr C Yuanun.
As a result of the appellant’s challenge, he filed two caveats against a grant of probate. The respondent, Ms Mariconte, subsequently sought orders to have the caveats cease to be in force. Until 15 May 2015, the appellant’s preparation for the upcoming trial on 20 and 21 May 2015 had been limited to those proceedings [2]. Throughout the process, the respondent was represented by senior and junior counsel. The appellant was self-represented.
On 14 May 2015, just 3 business days before the trial, the trial judge held the first directions hearing. For the first time the respondent submitted the appellant’s caveats had lapsed due to time. At this point, the appellant was told the upcoming trial would be of the claim for probate. The judge directed the appellant to file and serve his defence to the statement of claim by 18 May 2015. That was within one clear business day. The judge also directed the appellant to serve any supplementary evidence he wished to rely upon that was in addition to affidavits he filed in his caveat proceeding.
However, 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 [3]. It is clear that counsel for the respondent did not draw these circumstances to the court’s attention at this point.
The Trial
Nonetheless, on the first day of the trial, 20 May 2015, the appellant was joined as a party to the claim. Having added the appellant as a defendant to her action by amending her statement of claim, she sought costs against him.
The trial judge described the appellant’s defence as “almost incomprehensible”. However, despite requests by the appellant for adjournments to call witnesses, read documents and call expert evidence, no adjournments were granted. Nonetheless, the trial judge proceeded on the basis that the appellant had put in issue by credible evidence: questions of execution, questions of capacity, questions of testamentary intention, knowledge and approval. As a consequence, these matters placed the onus on the respondent to address.
In relation to the caveat motion, respondent’s counsel argued firstly, they had expired, and secondly, the appellant had no interest that could support the caveats because the 2004 Will had not been proved. The trial judge was of a different mind given that the respondent had admitted to the 2004 Will. This in fact gave the appellant an interest in the earlier Will and, in turn, allowed him standing to challenge the 2013 Will.
The trial judge was ultimately satisfied of the respondent’s case, granting probate in solemn form of the 2013 Will and ordering the appellant to pay the costs of the respondent. His decision was handed down on 22 May 2015.
New South Wales Court of Appeal
The court noted that the appellant had a number of grounds on which he appealed but in essence, they boiled down to a denial of procedural fairness. The sub-grounds included: his inability to a long-time friend of the deceased, Mr Lemesle, as a witness or to rely on his affidavit; the trial judge’s failure to allow him an opportunity to cross-examine Ms Parseghian; the trial judge’s failure to allow him to call expert evidence, including his failure to allow the appellant time to issue subpoenas, with respect to the deceased’s eyesight; and the trial judge’s failure to give him an opportunity to be heard in relation to objections to his affidavit evidence.
Simpson JA concluded all but the last sub-ground noted above came about directly as a result of complaints arising from the last minute change to the issue to be decided at the trial held on 20 and 21 May 2015.
This notwithstanding, the majority of the Court of Appeal found in favour of the respondent. Ward JA considered that although procedural fairness had been denied, that denial did not deprive the appellant of the possibility of a successful outcome. Emmett AJA concluded the appellant appeared to have no interest in the validity of the 2013 Will.
Simpson JA, on the other hand, would have allowed the appeal as the appellant had been denied procedural fairness and that denial was a substantial miscarriage of justice.
Appeal to the High Court of Australia
The appellant argued the majority of the Court of Appeal erred by not ordering a retrial, concluding that the denial of procedural fairness could not have made a difference to the final result and that the appellant had no interest in the estate sufficient to challenge the 2013 Will.
In contrast, the respondent, by way of notice of contention, argued that there was no denial of procedural fairness, but if there had been, there was no substantial miscarriage of justice by reason of any such denial.
The HCA considered the question of when a new trial should be ordered and referred to s101(1)(a) of the Supreme Court Act 1970 (NSW). This provides the circumstances under which an appeal can be brought from a judgment of the Equity Division. Section 75A(10) provides that powers of the court on appeal include that the:
“Court may make….. any order….. which the nature of the case requires”.
However, this is subject to section 101(1)(a), Uniform Civil Procedure Rules (NSW) and, in particular, Rule 51.53(1) which provides:
“The court must not order a new trial on any of the following grounds:
a. Misdirection, non-direction or other error of law, b. b. Improper admission or rejection of evidence’ c. c. That the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury’ d. On any other ground, unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned.”
a. Misdirection, non-direction or other error of law,
b. b. Improper admission or rejection of evidence’
c. c. That the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury’
d. On any other ground, unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned.”
The HCA concluded that a denial of procedural fairness was indeed captured by the last of the circumstances of Rule 51.53(1).
Appellant entitled to new trial
The HCA determined in its reasons that the denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim. Moreover, the appellant’s adjournment applications were attempts to ameliorate those consequences [40].
The trial judge gave two reasons for denying the adjournments. First, he said the matter had been set down for hearing for some time and the applicant had been warned on 14 May 2015 that he needed to have all his evidence ready for the trial on 20 and 21 May 2015. Second, the trial judge said given the vagueness with which the applicant presented many of the procedural issues, and the disorder of his case, the court had no confidence that an adjournment would lead to his case becoming any more precise [41].
However, the HCA also noted the trial judge was unaware that the dates set down for hearing were only to be used for the caveat motion, and no directions had been given to the applicant in relation to take any further steps, including filing or service of documents [42].
The HCA identified 3 issues in the abbreviated timetable prior to trial that had consequential effects on the outcome.
1. The applicant was not able to cross-examine a significant witness as to the deceased’s mental and physical condition because he did not give notice to the other side within the short timeframe. This was compounded by the applicant’s inability to cross-examine a further witness to the 2013 Will whose address appeared to be that of a vacant building site.
2. The trial judge refused to take account of an affidavit from another witness because it was annexed to the applicant’s defence filed in opposition to the caveat motion, nor was the affidavit read and the witness was not subpoenaed or brought before the court.3. 3. Despite objections from senior counsel for the respondent, the appellant was given access to the solicitor’s diary for the period 5 to 10 December 2013. However, the trial judge gave him only “about one minute to decide what you are going to do next” and an application to have the diary considered by an expert was refused.
2. The trial judge refused to take account of an affidavit from another witness because it was annexed to the applicant’s defence filed in opposition to the caveat motion, nor was the affidavit read and the witness was not subpoenaed or brought before the court.3.
3. Despite objections from senior counsel for the respondent, the appellant was given access to the solicitor’s diary for the period 5 to 10 December 2013. However, the trial judge gave him only “about one minute to decide what you are going to do next” and an application to have the diary considered by an expert was refused.
The HCA concluded that while each of these factors alone may not have amounted to a denial of procedural justice, together, along with the abbreviated timeframe for preparation, such injustice had been done [44].
The respondent’s counsel argued the appellant had known for months of the hearing for the caveat motion but the HCA rejected this saying there is considerably less preparation involved in such a hearing compared to that of a trial. Moreover, it was reasonable for the appellant to proceed on the assumption that he would have success in the caveat hearing and therefore there was no need for him to prepare for a trial [45].
The HCA further concluded that the denial of procedural fairness to the appellant amounted to a “substantial wrong or miscarriage.” The appellant was in fact denied the possibility of a successful outcome [46]. Importantly, the HCA stated that:
“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 [47].” Counsel for the respondent argued that the HCA ought not to rule in favour of a new trial, despite the denial of procedural fairness, because such a course of action would not make any difference to the result [48]. However, the court did not accept this proposition. Nor did it accept a further argument from counsel based on the conclusion reached by Emmett AJA, NSW Court of Appeal, that the appellant had no interest in challenging the 2013 Will. The HCA said “a person will have a sufficient interest if he or she has a right which will be affected by the grant [49].”
Conclusion
The appeal was therefore allowed, and the matter remitted to the Equity Division of the NSW Supreme Court for a new trial. The respondent was also ordered to pay the appellant’s costs, both for the hearing in the NSW Court of Appeal and the appeal to the HCA.
by Frank Maconi on 27 Nov 2018
There is a lot of literature on drafting affidavits, but I think it’s worth reflecting on some of the most fundamental points.
Affidavits are very, very important.
Good affidavits can make your case. Bad ones can cause your case to end in disaster.
These days most evidence in chief is given by affidavit – the glaring exception being the criminal jurisdiction, where direct oral (or viva voce) evidence is preferred and still the norm.
Drafting good affidavits is an essential part of all litigation. It is a skill that can be learnt to a certain point.
I don't profess to be an expert on drafting affidavits. I do like to keep in mind a few pointers that I want to share with you.
2. Put yourself in the witness’s shoes. If you decide you need an affidavit from a witness, put yourself in their shoes. Use their language and expressions. Don’t be technical or use legalese – no one is impressed, and it may detract from the persuasiveness of what a witness is trying to say. Don’t present arguments – save that for submissions. Do show their account of what happened, how it happened and where it happened. Perhaps, you are better to start with a witness statement before drafting an affidavit. Witness statements have the advantage that you can record everything the witness wants to say and you can use the important points later on for the affidavit.
4. Remember the rules of evidence. As with all evidence, the rules of evidence apply to affidavits. Remember the three pillars of (1) relevance; (2) admissibility; and (3) weight. Think of each of these when drafting your affidavit i.e. (1) ‘is the statement relevant to a fact in issue?’ (2) ‘is the statement properly admissible or does it breach a rule of evidence?’; (3) ‘how much weight is a court likely to put on the statement?’.
5. Who is the deponent? It’s important to correctly identify the deponent of an affidavit. This includes drafting their full name, address and occupation. If the witness doesn’t want to disclose their address, it can be care of your office. The first thing the courts will notice is who the person swearing the affidavit is. This anchors the court to the paragraphs that follow and to the general narrative of the hearing.
6. What about authority? Your first paragraphs should identify the authority of the person swearing the affidavit. Be careful the person swearing actually has authority to do so. Does Joe Blogs, solicitor have authority to swear the affidavit on behalf of client x? Does Ms Smith, Director of company Y, have authority to swear the affidavit on the company’s behalf? You would be surprised how often this issue is overlooked.
7. Be persuasive. Being persuasive means that your client’s case is more convincing than the opponent’s case. Persuasiveness comes from contents, but also from form. Try to be clear, simple and logical when drafting your affidavit. Structure it so one paragraph is used for one fact at a time.
8. Always be truthful. Being persuasive is only half of the story. The reason I have underlined the word truthful, is that you and your witness must always be candid and truthful with the court. Must. Remember your professional duties. But also remember that witnesses who swear affidavits are liable to be cross-examined by the other side. If they are found to have exaggerated (or lied) the result could be disastrous for your case.
9. No opinions, please. Unless the person swearing the affidavit is an expert, or you provide lay opinion evidence, avoid opinions in affidavits. Don’t even use the expression ‘I opine’. Opinions are largely irrelevant and inadmissible.
10. Things to avoid. You should also avoid the following:
Complicated language – use simple language if you can, unless an expert needs to express something in technical terms.
Spelling mistakes, punctuation and grammar – that goes without saying.
Submissions – don’t argue, state facts.
Conclusions – don’t make conclusions or swear to the ‘ultimate issue’. Courts decide the ultimate issue, not your witness.
Self-serving statements (or prior consistent statements) – no one believes them anyway and they are inadmissible.
Irrelevant facts.
Facts your client can’t 100% swear to.
11. Think of your audience. The consumer of your affidavit is a judge. Make the affidavit easy to read, logical and concise. Be chronological and use subheadings.
12. Complying with directions and timeframes. I think it's important to comply with directions in terms of filing and serving affidavits. It shows you are on top of your case. It also gives the other side a fair opportunity to prepare their own material. If you are short of time, ask for an extension. You may need to have the matter listed for further directions.
A final word.
Remember that both you and the other side can object to an affidavit. This needs to happen before the affidavit is read or tendered through a witness.
When I want to object to affidavits, I ask my solicitor to write to the opposing solicitor and foreshadow that objections will be taken. I also like to prepare a table of objections that I use from the bar table.
When you object to contents in affidavits, effectively you are applying to strike out parts of the affidavit in question. Take the judge through your objections slowly. Don’t rush. It will take time, but it may tip the scales in your client’s favour.
Drafting good affidavits can be a complex task. You can always ask your counsel to settle affidavits before they are sworn.
I hope you find my pointers useful the next time you are drafting an affidavit.
by Joelene Nel on 8 Oct 2018
In 2018 local lawyers came together for support and learning from each other in the GCDLA mentoring programme – GLAD.
Gold Coast Lawyers Achieving Development [GLAD] is a GCDLA initiative which matches lawyers who are seeking support, guidance and mentoring with those lawyers offering their time, experience and knowledge. During the course of the year regular breakfasts were held where everyone in the GLAD programme met up to explore those connections. Outside of the breakfasts the mentors and mentees are encouraged to have on-to-one meet ups, phone calls and general ongoing communication.
At the first breakfast we shared answers to questions to help us to get to know each other :
During the year we welcomed guest speaker, Kylie Sprott, who shared with us some of the work she does as an inspirational leader and transformational business advisor.
GLAD members were also provided with resource material; a mentoring toolkit, to help them keep focused and work through developing their mentoring relationship.
Feedback from members of the GLAD 2018 programme included:
"My mentor has a nurturing personality. It is good to be able to ask questions as this is an uncertain process for me." - Mentee
"I really enjoyed the reverse mentoring aspect to this. Mentoring is a two-way street" - Mentor
"The structure of the programme is fabulous, especially with the breakfasts." - Mentor
GLAD is for those lawyers who want to have the opportunity to create connections, on a one to one basis, for their own wellness and for their personal and professional development.
GLAD is free to GCDLA members and there is no cost for the breakfasts. We have been fortunate to receive the support and sponsorship from Queensland Law Society for this initiative.
The GLAD programme has the support of the local legal community and of Her Honour, Chief Justice Holmes, who thinks it is an excellent initiative.
For those interested in becoming part of GLAD 2019, please go to our website.
by Joelene Nel on 5 Oct 2018
We are nearly at the end of our mentoring breakfast series for 2018. After a successful 2018 year of the GLAD mentoring program, we are pleased to announce that we will be running this program again in 2019.
For those who are interested in joining GLAD, whether you are a senior solicitor wanting to mentor or a junior or have changed practice areas seeking a mentor, please click on the link below to complete the form:
GLAD EOI MENTOR AND MENTEES 2019.pdf
The closing date for expressions of interest is 1 December 2018 in order that the program can commence in early February 2019.
There is a responsibility on lawyers to make choices about what organisational culture they want to be part of…’ said Queensland Law Society CEO, Rolf Moses when he spoke at the recent GCDLA Wellness breakfast. Rolf also spoke about the conscious awareness that needs to happen around wellbeing so there can be education around this topic and ultimately change.
Anna Morgan, Senior Associate at Maurice Blackburn, spoke about vicarious trauma and the cumulative effect that it has on lawyers when we hear our client’s stories over and over again. She also spoke about the ABC’s of self-care, A= awareness, B=balance, C=connection.
The final panel speaker was Cliff Battley a local clinical psychologist who also does work around self-esteem, anxiety, stress and helping people work towards long-term positive change. Cliff reminded us that we should be preventative in our approach to our wellbeing, not curative. In the same way you take your car for a service every 6 months, we should be checking in with a psychologist regularly about our mental wellbeing.
The morning was well attending by a number of local practitioners and it was especially encouraging to see young lawyers being part of this important conversation.
The panel discussions was followed by a session run by Rolf Moses training lawyers, who are supervisors and leaders in their firm, about how to identify, support and manage the wellbeing of their staff.
It was an insightful learning experience with many helpful strategies to implement.
If local firms or organisations are interested in Rolf Moses attending the Gold Coast to run another supervisor training course, please get in touch with us at: info@gcdla.com.au
Thanks are extended to those who presented and attended and a special vote of thanks to Minter Ellison who extended the use of their office to us and put on a delicious spread for breakfast.
If members have suggestions or ideas about future events for the GCDLA please get in touch with us at: info@gcdla.com.au
Events
GLAD - GOLD COAST LAWYERS ACHIEVING DEVELOPMENT - 4 Feb 2019
MEET THE JUDICIARY BREAKFAST - 8 Feb 2019