Sadiq v NSW Trustee and Guardian

1. [1]

   McCOLL JA: I agree with Leeming JA.

2. [2]

   LEEMING JA: Mr Waleed Sadiq appeals from the dismissal of proceedings brought by him and heard over three days by the primary judge (Hallen J) in 2015. His contention was that he was the de facto partner of the late Christina Olga Coombes at the time of her death. He sought orders that he was entitled to the whole of her intestate estate pursuant to s 111 of the Succession Act 2006 (NSW). Alternatively, he sought a family provision order out of the estate of the deceased pursuant to Ch 3 of the Succession Act. Having regard to the size of the estate, his appeal is as of right.

3. [3]

   The primary judge gave elaborate reasons of 374 paragraphs promptly after the trial. His Honour did not say that he thought Mr Sadiq was deliberately giving false evidence. However, his Honour referred in uncontroversial terms to the onus which lay upon Mr Sadiq to make out his case, and the requirement that the Court feel an actual persuasion of the occurrence or existence of a fact before it could be found. His Honour identified aspects of Mr Sadiq’s case which were, in his view, unconvincing, and concluded that Mr Sadiq had not discharged the onus which he bore in respect of either of the cases he had advanced.

4. [4]

   The Court’s task was and is made more difficult, both at trial and on appeal, by the fact that, although Mr Sadiq has in the past received some legal assistance, he chose to represent himself. Indeed, during a number of directions hearings before the trial, Mr Sadiq had been represented by counsel appearing pro bono. That counsel advised that his instructions had been withdrawn shortly before the hearing. Nevertheless, he attended the hearing and confirmed his willingness to appear for Mr Sadiq, pro bono, at the hearing. Mr Sadiq chose to appear for himself, as is his right. He conceded during the hearing on the appeal that his former counsel had been a “very very good man” and that he had made a “big mistake” in declining his services.

5. [5]

   The notice of appeal has been drafted by Mr Sadiq. It is entirely unilluminating. It identifies the following grounds of appeal:

6. [6]

   In addition to the oral submissions made by Mr Sadiq when the appeal was heard, Mr Sadiq has filed a series of documents in support of his appeal: a submission of 17 pages dated 21 October 2015, three affidavits (sworn on 21 October 2015 and 11 and 19 February 2016), and a chronology of 29 pages. There is nothing on the face of any of the documents to suggest that Mr Sadiq has had the advantage of legal assistance. Each of those five documents contains portions which challenge the fact finding process undertaken by the primary judge, although it should be said at the outset that, in very large measure, Mr Sadiq has reiterated factual incidents of the relationship he claimed he enjoyed with the deceased which he made at trial and which were not accepted. Some aspects of each of those documents criticise the evidence given in the respondent’s case, and the reasoning of the primary judge.

7. [7]

   In the circumstances, the appropriate course to take is to deal with the substance of the matter, disregarding the substantial formal defects, and attempting as best as I can to grapple with the errors to which Mr Sadiq has pointed. I have treated each of the affidavits and the chronology as a submission in support of the appeal.

Uncontroversial factual background

1. [8]

   The starting point is that the primary judge made the following uncontroversial findings, none of which were challenged on appeal.

2. [9]

   The deceased was born in 1938 in the United Kingdom, and arrived in Australia with her mother, sister and brother in March 1947. The marriage of the parents of the deceased had been dissolved in February 1947.

3. [10]

   The parents of the deceased died in 1968 and 1981. Her brother, now known as John Simpson, is alive. Her sister died in March 2007, leaving two daughters and a son who are alive.

4. [11]

   The deceased married Kenneth Roy Coombes in 1959. The marriage was dissolved in November 1975, without issue. Mr Coombes died in 2001.

5. [12]

   The sole significant assets of the deceased’s estate are real property in Paddington, valued at $700,000, and money in a bank account (of some $78,000). At the time of her death, the sole income of the deceased was a pension. There was nothing to suggest that she ever disclosed to Centrelink that she was in a de facto relationship.

6. [13]

   For many years, the deceased had lived alone, in her Paddington house. She was estranged from her family, although her brother lived nearby.

7. [14]

   In April 2013, the deceased was taken to hospital and diagnosed as having suffered a stroke. From hospital she was moved to respite care, where she died on 13 June 2013.

8. [15]

   As will be explained in more detail later, the deceased’s house at the time of her death was in a derelict and uninhabitable condition. It had been substantially in that condition for a considerable period before her death.

Mr Sadiq’s case at trial

1. [16]

   Mr Sadiq’s case was principally based upon his own testimonial evidence, to which was added the supporting evidence of Ms Gail Fitzmaurice and two documents: one from Centrelink, the other from St George Bank.

2. [17]

   Mr Sadiq was born in Baghdad, where he lived until aged 23. He travelled to Athens in 1979, and migrated to Australia, with the help of the Red Cross, in June 1980. After originally staying in Melbourne, he travelled to Sydney and claimed that he first met the deceased in around 1996. He said that between March 1996 and May 1999, he lived with the deceased and had an intimate relationship with her. During that time, he said that she gave him money to repay his debts. The primary judge summarised the evidence he gave, in a manner of which no significant complaint was made on appeal, as follows at [72]-[75]:

3. [18]

   Mr Sadiq reiterated much of this in his written and oral submissions on appeal. He also added further factual matters, including details of paintings which were said to have been in the property, and of the pigeons he said he kept at the property. On a number of occasions, it was necessary to remind Mr Sadiq that his task was to make submissions as to why the primary judge had come to the wrong conclusion, and that he could not give evidence from the Bar table of the relationship he claimed to have enjoyed with the deceased.

4. [19]

   The following is drawn from [88]-[93] of the reasons of the primary judge. Although there was scant documentary evidence to support Mr Sadiq’s claim, it was supported by the testimonial evidence of Ms Fitzmaurice, a Welfare Worker at a lodge run by the Wesley Mission providing accommodation and support for homeless persons. She stated that she first had contact with the deceased “approximately 15 years ago”, when the deceased was outside the front door of her premises at Paddington “looking at pigeons whilst she was feeding her cats”, and that she had met her from time to time when walking around the Paddington neighbourhood. She said that she first had contact with Mr Sadiq “probably 4-5 years after I made contact with Christine at her property” and later on met him while he was walking with the deceased. She stated that on the occasions she saw them together, they would be arm in arm or holding hands, from which she concluded that they were in some form of relationship.

5. [20]

   Ms Fitzmaurice said that she saw the pair at the local supermarkets, or in a sandwich shop, or together at a coffee shop, or eating at the Captain Cook Hotel. She said that they would be sitting close together on these occasions. She did not ever see them talking to any other person.

6. [21]

   Ms Fitzmaurice also said that she saw Mr Sadiq at the supermarket when he told her that the deceased was in hospital and that he was buying things for them and for the cats. Subsequently, he told her that the deceased had died. She described him, at that time, as being very emotional and being hardly able to speak.

7. [22]

   Ms Fitzmaurice was candid in the limitations of what she could say. She said that she “cannot say I ever observed [the Plaintiff] at Christine’s house.” She said that she only “saw [the deceased] a few times at the front of her house early on (15 or so years ago)”. Even so, she said that she considered Mr Sadiq and the deceased to be a couple and regarded them as being “extremely close”.

8. [23]

   Ms Fitzmaurice annexed a diary note of a conversation with an officer from the respondent on 25 July 2014. The diary note was in the following terms:

9. [24]

   Ms Fitzmaurice accepted during cross-examination that she had never been inside the house, and that she felt that she was “advocating for Christina and for Mr Sadiq”.

10. [25]

    Mr Sadiq pointed to two documents said to be supportive of his claim. The first was a letter from Centrelink which demonstrated that, according to Centrelink’s records, he had been living at the deceased’s Paddington address between 1 October 2012 and 20 January 2013. Before that time, he had a variety of addresses in Petersham, Enmore, Summer Hill, Croydon and Chester Hill. After that time, Centrelink recorded his address as “NFA” (no fixed address).

11. [26]

    The second was a letter dated 16 July 2014 from the Ashfield branch of the St George Bank which stated that his home address was the Paddington property of the deceased, and that he had been a client of the Bank since December 2012.

The respondent’s case at trial

1. [27]

   The respondent’s case at trial was that there had been no relationship between Mr Sadiq and the deceased. Its case was primarily based upon the evidence of neighbours and social workers, and the state of the house at the time of the deceased’s death.

2. [28]

   Photographs taken at the time of her death show the interior of the Paddington house to be in very poor repair. The photographs corroborate the evidence of an officer of the respondent, who attended the property a week after the deceased’s death (which was around 10 weeks after she had suffered a stroke). The officer’s evidence was to the effect that there was no electricity service on the property, which was in derelict and uninhabitable condition. The officer and her colleague inspected the property using torches. One of the property’s two bedrooms was hoarded with old household contents, the other contained a double bed. There was only female clothing and female toiletries in the rooms. All paperwork and documents located in the rooms pertained to the deceased and there was no reference to any other person. The officer was cross-examined, very briefly, by Mr Sadiq but not so as to cast any doubt upon these matters. That cross-examination stands in contrast to the approach taken by Mr Sadiq to the evidence given by witnesses called by the respondent who gave evidence of the deceased’s lifestyle.

3. [29]

   One of the deceased’s near neighbours, Ms Wakefield, who had lived on the same street for 72 years, had known the deceased for around 40 years. She was cross-examined by Mr Sadiq. She said that the deceased had lived alone, and when asked how she knew that, said:

4. [30]

   Mr Sadiq then cross-examined Ms Wakefield as follows:

5. [31]

   Another neighbour, Mr Sciascia, who had lived two houses away for the previous nine years, said that he had assisted the deceased repair her television, and had spoken to her regularly. When asked in cross-examination how often he had spoken with the deceased, he said:

6. [32]

   Mr Sadiq put to him that that was ridiculous, that his evidence was nonsense, and ultimately:

7. [33]

   There was also evidence from a social worker, Mr Rauwendaal, who had interviewed the deceased on 14 May in hospital, and had reviewed previous Council reports which indicated that the “house is derelict, structurally unsound, squalid, malodorous, with a pigeon population”. When he opened a drawer, searching for a will, he found a dead cat “and the smell was overpowering and made me nauseous”. He said that:

8. [34]

   He too was cross-examined on the basis that “your statement, what you’ve done is just all made up, you just made a statement to remove us from the property, or both of us” and he was in collusion with the legal community. He denied all this.

9. [35]

   Another social worker, Ms Begg, had interviewed the deceased in her home in July 2009 and prepared a report to the Guardianship Tribunal. The report states:

10. [36]

    Ms Begg was cross-examined by Mr Sadiq. She said that “[t]he situation was one of the most severe cases of personal self-neglect and squalor that I had come across. It was very difficult to sit there for an hour and a half because the premise was so [odorous].” Mr Sadiq put to her that her report had been made up to remove the people in the property. She denied this.

11. [37]

    I have not, in the above, summarised the entirety of the case advanced by the respondent, but it is sufficient for the purposes of explaining the nature of the conflicting evidence and the way in which those conflicts were resolved by the primary judge. Further aspects of the respondent’s case will emerge from the extracts from the reasons of the primary judge reproduced below.

Reasoning of the primary judge

1. [38]

   The primary judge distinguished between Mr Sadiq’s claims that he lived in the Paddington house between January 1996 and May 1999, and the balance of the alleged de facto relationship between Mr Sadiq and the deceased. In relation to the first period of time, his Honour reasoned as follows at [137]-[138]:

2. [39]

   For the subsequent lengthy period of time during which the relationship was said to have been maintained, his Honour had regard to the following matters. First, attendances by Mr Sadiq upon a general practitioner or dentist or pharmacist to have prescriptions filled were all in suburbs other than Paddington and its immediate environs. The primary judge said at [140]:

3. [40]

   Secondly, the primary judge did not regard the relatively short period of time from October 2012 when Mr Sadiq lived in the Paddington property as voluntary. Nor did it result from a decision made by Mr Sadiq and the deceased seeking to develop their relationship. Rather, it was a consequence of Mr Sadiq being evicted from his Marrickville property.

4. [41]

   Thirdly, the primary judge was sceptical of the fact that Mr Sadiq had been living in Paddington in December 2012, when he had opened a bank account at Ashfield at that time.

5. [42]

   Fourthly, his Honour’s findings were supported by detailed credit findings at [145]. That paragraph warrants being reproduced in full, notwithstanding its very substantial length. The passage shows both the magnitude of the difficulties standing in the way of an acceptance of Mr Sadiq’s case, as well as the care with which the primary judge considered the conflicting evidence before him:

6. [43]

   Fifthly, the primary judge also relied upon the conflicting testimonial evidence of Mr Sadiq and Ms Wakefield, whose evidence is summarised above. His Honour’s reasoning was as follows at [153]-[156]:

7. [44]

   However, the primary judge did not dismiss the entirety of Mr Sadiq’s evidence. To the contrary, his Honour rejected part of the respondent’s case. His Honour accepted that Mr Sadiq had some familiarity with the Paddington terrace, leading to the conclusion that the deceased permitted him entry on occasions: at [179]. He accepted that Mr Sadiq might have been present after the deceased had suffered a stroke in May 2013: at [181]. Most importantly, his Honour rejected the respondent’s case that Mr Sadiq had had only minimal contact with the deceased, at her front door, at [182]-[184]:

8. [45]

   Ultimately, the primary judge was not satisfied that Mr Sadiq had been in a de facto relationship with the deceased, or had lived with the deceased. His Honour’s reasons were as follows at [356]-[369]:

The appeal

1. [46]

   Without intending any disrespect, much of Mr Sadiq’s submissions are difficult to follow, but on no view could they be directed to any appellable error by the primary judge. In very large measure, they recite factual matters about the relationship between himself and the deceased, rather than seeking to point to error by the primary judge.

2. [47]

   Mr Sadiq confirmed that the only two pieces of documentary evidence he could point to were the letters from Centrelink and St George Bank. He also said that there was a medical certificate from his general practitioner to explain why he didn’t visit the deceased in hospital. This had not been available at trial, so he said, because his solicitors had not released it to him. However, at trial, he had given a different explanation to the primary judge as to why he had not visited the deceased in hospital (“I don’t like the smell of the hospital. That’s the way I explained that”).

3. [48]

   For completeness, it may be noted that there was no application to adduce fresh evidence, nor any basis in the materials supplied by Mr Sadiq to support any such application. Moreover, the clear impression from reading the transcript of the trial is that Mr Sadiq was given great latitude to present his case as well as to challenge the respondent’s evidence.

4. [49]

   Mr Sadiq made submissions that the primary judge had erred in relation to the Centrelink document. He said in writing (paragraph 20) that the deceased did not inform Centrelink that she was living with him “because we discussed that, together, but made a conscious decision not to”. His submissions were maintained orally:

5. [50]

   Turning to the St George Bank letter, Mr Sadiq wrote (paragraph 35), and reiterated orally, that he had opened an account in Ashfield because for some reason that branch accepted his proof of identify by a Medicare card and pensioner concession card. Again, that may or may not be so, but it does not in any material way impugn the reasoning process of the primary judge. The inference drawn by his Honour at [143] remained open, and in any event, it was but a minor part of his Honour’s reasoning. More importantly, his Honour relied not so much upon the unlikelihood of an account being opened at Ashfield, but upon the absence of the sorts of documents one would expect to exist had the relationship been as Mr Sadiq claimed.

6. [51]

   Mr Sadiq then advanced a large number of factual criticisms addressed to the findings of the primary judge at the level of fine detail. I give two by way of example. Mr Sadiq said that the primary judge erred “in finding that there was no electricity services on the property. [There was] old wiring not working properly, there were more than, 10 table lamps all around inside the property.” But it is perfectly clear that it was open to accept the evidence from the officer who inspected the property shortly after the deceased’s death, which was unchallenged.

7. [52]

   Mr Sadiq also submitted that:

8. [53]

   Mr Sadiq also pointed to what he said were some transcription errors and missing words in the transcript, on which nothing material turned at trial or turns on appeal. He pointed to errors in the addresses (“[i]ncorrect reported … 3/105 Burns Street that is wrong, it should be 3/105 McClelland St”, “[i]ncorrect reported: Greavs Road. It should be [G]reens Road”). Nothing turns on such errors, if indeed they are errors.

9. [54]

   The written submissions included passages which were critical of the evidence of the neighbours and the social workers (for example, paragraphs 27-29, 50-51). Most is very difficult to follow, although the claims that their evidence was invented and subject to ulterior motives were repeated. Again, by way of example, one of the least opaque passages is the criticism of the social worker’s evidence, which is as follows:

10. [55]

    Mr Sadiq’s submission fails to make out any appellable error in the acceptance by the primary judge of the evidence of Mr Rauwendaal and the rejection of Mr Sadiq’s submission that he was improperly motivated.

11. [56]

    Mr Sadiq also submitted that the primary judge erred in making certain rulings on evidence, which it is unnecessary to summarise; none even taking them at their highest could have a material effect upon the conclusions based upon the oral evidence.

12. [57]

    The respondent rested on its very short written submissions. It emphasised a striking fact the force of which will not fully be appreciated from the foregoing, namely, the factual dispute between Mr Sadiq and the neighbour who called the ambulance when the deceased was discovered to have had a stroke. That neighbour, Ms Sommer, denied that she had spoken to Mr Sadiq. Mr Sadiq maintained that he had discovered the deceased, and had alerted her. Mr Sadiq challenged Ms Sommer in cross-examination, to the effect that she was lying because she had previously wanted him evicted. Ms Sommer rejected this, and the primary judge accepted her evidence.

Conclusions on the appeal

1. [58]

   This is a case where it is neither necessary nor appropriate to summarise the entirety of the submissions advanced on appeal. To do so would only add length to these reasons, and to no advantage. The essential character of Mr Sadiq’s submissions emerges from what I have reproduced above. I have read them in their entirety, and re-read the transcript of argument. Again without conveying disrespect to Mr Sadiq, they are very largely reiterations of claims of his relationship, or attacks upon the motives of the neighbours and social workers called by the respondent.

2. [59]

   The task for the primary judge was to weigh the conflicting testimonial and documentary evidence. As is clear from the extracts reproduced above, the primary judge was perfectly entitled to prefer the evidence of the neighbours and to reject the suggestions that they were involved in a conspiracy to deny Mr Sadiq rights to the property. The primary judge was perfectly entitled to point to the inconsistencies in Mr Sadiq’s case, and the unlikelihood that a person who had shared a relationship with the deceased in Paddington for 16 years would be unable to adduce better documentary evidence than he was able to do. The extracts of his Honours reasons reproduced above show that that was precisely what his Honour did. What is more, his Honour did so in a way which was measured and self-evidently balanced. He expressly rejected aspects of the respondent’s case.

3. [60]

   I think I should add that even in his presentation to this Court, Mr Sadiq gave inconsistent accounts about matters which one would think would have been important to him, had he been in a de facto relationship with the deceased. One example was the reason for his not visiting her in hospital after she suffered a stroke to which I have referred above. To be clear, I am not to be taken as suggesting that Mr Sadiq deliberately gave false evidence. I intend to convey only that there is nothing in the manner in which Mr Sadiq presented his argument on appeal which causes me to question the concerns the primary judge had over the lack of reliability of Mr Sadiq’s testimony.

4. [61]

   Mr Sadiq has not established – or come close to establishing – any appellable error in the reasons of the primary judge. His appeal must be dismissed.

5. [62]

   The respondent asked for the question of costs to be reserved. I can see no reason for that course to be taken. The appeal should be dismissed with costs. It is a matter for the respondent whether it chooses to take any steps to enforce the costs order. If there is some matter which the respondent wishes to draw to the Court’s attention bearing upon the exercise of the discretion as to costs, that may occur within the period for which UCPR r 36.16 makes provision.

6. [63]

   SACKVILLE AJA: I agree with Leeming JA.