Hulme v Hulme

These reasons relate to a proceeding involving the estate of the Honourable Robert Shallcross Hulme (the deceased) who died on 4 December 2020 aged 79. (The deceased was appointed a Judge of this Court in 1993, retired from the Court in 2012, and returned, as an Acting Judge, to the Court between 2013 and 2016.)

The Plaintiffs seek to propound, in solemn form, a Will made by the deceased dated 13 June 2017. Without prejudgment, I shall refer to this Will as “the 2017 Will”.

The Plaintiffs are the deceased’s widow, Suzette Rosila Hulme, and one of their, now adult, children, Mark Shallcross Hulme. The Defendant named in the proceeding is another, now adult, child, David Alexander Hulme. There are two other children of the deceased, Richard Hulme and Braddon Hulme, who have played no part in the proceeding.

The Defendant is dissatisfied with the circumstances surrounding the making of the 2017 Will. He has attended Court, at various times, throughout the proceeding, in person, as an unrepresented litigant (as is his right). The suggestion, that he obtain legal assistance, was made more than once during the various directions hearings at which he attended.

Although the Defendant was served with the amended Statement of Claim filed on 20 September 2022, he has not entered an appearance (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rule 6.9) or filed a defence to the amended Statement of Claim (UCPR rule 14.3). Pursuant to UCPR rule 6.1, he would have been unable to take any step in the proceedings (including any appearance in court) without the leave of the court. He was not an "active party" in the proceedings (UCPR rule 1.2).

During the proceeding, the Defendant has sent numerous, many lengthy, emails, to the Court, and has appeared in Court during case management hearings. He has been permitted to appear and inform the Court of his intentions and as will be read, directions have been made to allow him to advance a case. (Whilst a distinction may be drawn between “active” and “non-active” parties, I am of the view that the position of a non-active party should be considered, since the UCPR r 6.1 permits the Court to grant leave to take a step in proceedings (including any appearance in court) and because the Defendant is a person who asserts that he will be adversely affected by the orders sought in the proceeding.)

As will be read, he did not appear at the hearing, which took place on 28 February 2023.

For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendant, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.

The nature of the Plaintiffs’ application, with which the Court is dealing, is one for Probate in solemn form of the last duly executed Will of the deceased. The Plaintiffs have based the application for the matter to be dealt with without further delay, principally upon the Defendant’s failure to file, and serve, an Appearance, any Defence to the amended Statement of Claim filed on 20 September 2022, and any affidavits setting out the evidence upon which he wishes to rely to oppose the grant being made.

Bearing in mind the events to which I shall next refer, it will be necessary to deal with the conduct of the Defendant in more detail than the Court would normally rehearse. In addition, the value of the estate, as revealed by the evidence read in the application which was brought by notice of motion filed on 8 December 2022 is a relevant matter. I shall return to the notice of motion later in these reasons.

It is also necessary to refer to the Court’s record of proceeding, which identifies the way in which the proceeding has been dealt with and the opportunities given to the Plaintiff to advance a defence.

As will be read, this is not a case where the Defendant could reasonably have proceeded upon the basis that he has not been given an opportunity to take steps to enable the determination of the claim for probate of the 2017 Will.

The notice of motion was listed to be heard on 28 February 2023. The Plaintiffs, as on many prior occasions, appeared by counsel. In addition, both Plaintiffs were present (as they had been on many of the occasions the matter had been listed). There was no appearance by, or on behalf of, the Defendant.

Despite the time that has passed since the Statement of Claim, and then the amended Statement of Claim, was filed and served, the Defendant has not filed an Appearance or any Defence and/or Cross Claim.

UCPR Pt 6 r 6.1 provides, relevantly, that except with leave of the Court, a party may not take any step in proceedings unless the party has entered an appearance. The time limit for the defendant to enter an appearance under UCPR Pt 6 r 6.10(1)(a)(i) was, in the case of proceedings commenced by statement of claim, 28 days after service on him of the statement of claim or such other time as the court directs for the filing of a defence.

The Defendant has also not complied with UCPR r 14.3 which provides that subject to the rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence.

The documents that he did send to the Court were not verified. Nor did they otherwise comply, for example, with the formal requirements for affidavits contained within UCPR Part 35, including the rules for annexures and exhibits under r 35.6, and the requirement for each page of an affidavit to be signed under r 35.7B. There was nothing on the face of any of the documents to suggest that he has had the advantage of legal assistance. For the most part, the documents were unilluminating.

Section 61 the Civil Procedure Act 2005 (NSW) provides that:

Generally, there should be no communication with a Judge's Chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at [3] per Kunc J; Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 at [153] (Meek J); Al Dakhili v Al Kheurallah [2023] NSWSC 47 (Meek J) at [63]-[64].

In an email sent to my Chambers, and copied to the Plaintiffs’ solicitor, at 1:00 a.m. on the day of the hearing, the Defendant wrote:

At the commencement of the hearing, Ms B Oliak, counsel for the Plaintiffs, confirmed that her instructing solicitor had received the copy email. There was no appearance by, or on behalf of, the Defendant.

In the circumstances, I determined that the Court should treat the Defendant’s email as an eleventh-hour application to adjourn the hearing, even though it was not made, formally, by notice of motion, with supporting affidavit evidence.

Counsel for the Plaintiffs did not oppose the Court reading the documents that had been sent. The Court treated the copy of the medical certificate sent with the email as a document tendered in support of the Defendant’s application. Together, without objection, they were marked as Ex. 1.

In support of the Plaintiffs’ opposition to vacate the hearing date, counsel referred to the history of the proceeding; the fact that the contents of each of the documents sent to the Court was unverified; email correspondence, dated 23 February 2023, from the Court, to the parties to which reference will be made; and that no Defence, or any verified evidence in support of what the Defendant appeared to be alleging, had been filed or served.

To provide context to the hearing, and before detailing other matters, it is necessary to set out the procedural history.

The proceeding was commenced by an uncontested Summons for Probate, filed on behalf of the Plaintiffs, on 23 December 2021, in which they sought Probate of the 2017 Will of the deceased. They also sought consequential relief. The Summons was to obtain a grant of probate, in chambers, in the absence of the parties.

A caveat had been filed by the Defendant on 3 December 2021, which required that “no grant of probate or reseal be made in the estate of the deceased without prior notice to me”. It also stated:

The Defendant also stated that his “interest” was as “the 3rd son of the deceased. Whilst this form has been submitted by myself, I believe I am acting in the best interests of my father’s family”.

It is not clear whether the Defendant had complied with the Supreme Court Rules 1970 (NSW), Part 78 rule 66(3), which, relevantly, requires that if the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

The Plaintiffs must have been oblivious to the Defendant having filed the caveat as they filed the Summons. However, because of the caveat, a requisition, dated 3 February 2022, was issued by the Principal Registrar, directing the Plaintiffs to Division 10 of Part 78 of the Supreme Court Rules 1970 (NSW) and setting out the procedure that could be followed in order to proceed.

On 16 May 2022, the Plaintiffs filed a response to requisition containing a notice of motion, seeking an order that the Defendant be joined as a defendant in the proceeding that had been commenced and that the caveat cease to be in force. The notice of motion was filed, subsequently, on 2 June 2022.

That notice of motion was first returnable in the Succession List on 14 June 2022. By this date, the caveat had lapsed by the effluxion of its six-month duration (see, Supreme Court Rules, Part 78 rule 69(1)), and the Defendant had not filed another caveat.

Apparently, the Plaintiffs then decided to proceed by way of pleadings, and they filed a Statement of Claim on 8 August 2022 in which they sought Probate in solemn form of the 2017 Will and consequential relief.

On 14 June 2022, Ms Oliak appeared for the Plaintiffs and the Defendant appeared in person. The Defendant confirmed that he was not a lawyer; indicated that he had obtained “some legal guidance”; that even though the caveat had lapsed through effluxion of time on 3 June 2022, he intended “at this stage” to oppose the grant of Probate of the 2017 Will; that he had sought a copy of all prior Wills made by the deceased; and that he had only been provided with a copy of the penultimate Will, being a Will dated 3 February 2005. I shall refer to this Will, without prejudgment, as “the 2005 Will”.

Initially, he said that he did not dispute its validity, but a short time later, asserted that “There may well be a dispute about the 2005 Will”. The Defendant raised other matters, including that “there are also likely issues… between my father’s will and my mother’s will”. The relevance of the last statement was not made clear.

The Court made the following orders and directions:

On 11 July 2022, the Defendant, again, appeared in person and accepted that he had not complied with the direction made regarding the filing and service of evidence, stating that “I was not aware, or did not, at the time, appreciate, that I was required to provide more documentation other than there was an acknowledgement that the caveat itself had lapsed”. He repeated that “…the executors have not engaged in providing the information that they have been required to by law”. He also maintained, without evidentiary elucidation, that the 2017 Will “is clear evidence of the lack of capacity”.

The Defendant asked the Court to advise on “how [he could] build a case or work out what evidence to submit”. When it was suggested by the Court that this question provided a clear reason for the suggestion that he needed legal assistance, the Defendant suggested that he could not afford legal advice. He was informed that the Court could not provide him with legal advice on those matters.

No order was sought, pursuant to UCPR rule 7.36, for reference to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (Even if it had been, it would have been difficult to make such an order as the Defendant had not provided any information going to his means, or to his capacity to obtain legal assistance outside the scheme.)

It was also difficult to consider whether there was really any complexity to the proceeding as, in answer to a question from the Bench regarding the dispute about the validity of the 2005 Will, the Defendant stated “I question the validity of the 2005 Will on the basis that it appears inconsistent… I am not suggesting that [the deceased] did not have testamentary capacity”.

The Court repeated that the Defendant really needed legal assistance to which he responded: “There are multiple issues here in regards to the executors not fulfilling their role”.

As the Defendant had failed to comply with the directions made on 14 June 2022, the Court made orders:

On Friday, 22 July 2022, the Defendant sent an email (which bore the time 4:49 p.m.) to the Court, and to the Plaintiffs’ solicitors, which was in the following terms:

On 22 July 2022, my Associate, at my request, sent an email (which bore the time 4:55 p.m.) to the Defendant and to the Plaintiffs’ solicitors, which was in the following terms:

On 22 July 2022, the Defendant sent an email (which bore the time 5:13 p.m.) to the Court and to the Plaintiffs’ solicitors, which was in the following terms:

On 22 July 2022, the Plaintiffs’ solicitors sent an email (which bore the time 5:16 p.m.) in the following terms to the Court and to the Plaintiffs’ solicitors, which was in the following terms:

On 25 July 2022, during the conduct of the Succession List, the Defendant sent an email (which bore the time 11:58 a.m.) to the Court and to the Plaintiffs’ solicitors, which was in the following terms:

Despite the terms of the first sentence, the Defendant did, in fact, appear. Hoping, to progress the matter, the following directions and orders were made:

On 22 August 2022, the Defendant sent two emails (which bore the time 4:00 p.m. and 4:25 p.m. respectively) to the Court and to the Plaintiffs’ solicitors in the following terms:

On 23 August 2022, the Defendant sent an email, bearing the time 1:27 a.m., to the Court, and to the Plaintiffs’ solicitors, which was in the following terms:

A few minutes later he sent another email, to the Court and to the Plaintiffs’ solicitors, which was in the following terms:

On 24 August 2022, the Defendant sent another email, bearing the time 4:29 p.m., to the Court and to the Plaintiffs’ solicitors, in the following terms:

None of the attachments was verified.

On 24 August 2022, the Defendant sent an email, bearing the time 8:01 p.m., to the Court and to the Plaintiff’s solicitors, which was in the following terms:

The document attached was headed “Respondent’s Statement of Claim/Defence”. I shall not set out its contents, but the headings provide some limited guide to the nature of the contents: “Administration”, “Introduction”, “Method”, “What is the Point of this dispute” (Executors unfit/and/or unco-operative; Suitability of Executors vs Trustees”, Interlocking Wills and Commitments; AMP Life Insurance Policy), “How can the purpose of the due administration of this estate be achieved”, “2017 Will – Goal to make capital allocation allowance for Braddon’s accommodation” and “Court Costs & Estate Costs”.

Most relevantly to the proceeding which had been commenced were the contents under the heading “RSH Will” which stated that:

On 12 September 2022, the Court made the following orders and directions:

The transcript of the proceeding on this date reveals that the Plaintiffs’ counsel reminded the Court that a Defence, in proper form, had not been filed; that the Defendant had maintained that he questioned the testamentary capacity of the deceased at the time of making the 2017 Will; and that the Court had repeated the suggestion that he obtain legal assistance, including by making an application for pro bono assistance; that the Defendant should “start the process of at least getting together the evidence that you are going to rely upon in relation to alleging that that the deceased had lacked testamentary capacity at the relevant times”; that perhaps, in light of the assertions regarding the executors that an independent administrator might be appropriate; that the Court’s task in the proceeding was to determine which was the last valid Will of the deceased and to whom Probate of that Will should be granted.

The Defendant then raised the question “whether or not my mother is in a fit state to be acting as an executor as we speak”.

Pursuant to leave granted by the Court on 12 September 2022, the Plaintiffs filed an amended Statement of Claim on 20 September 2022 in which they, again, sought Probate in solemn form of the 2017 Will, but in the alternative, sought Probate in solemn form of the 2005 Will, and in the further alternative, Probate in solemn form of the deceased’s Will dated 2 March 2000, to which Will I shall refer, without prejudgment as “the 2000 Will”. They also sought consequential relief.

The matter was again in the Succession List on 17 October 2022. The Plaintiffs’ counsel noted that the 2017 Will was in the handwriting of the deceased himself and that an affidavit of attesting witness had been filed.

The Defendant accepted that he had received a copy of the amended Statement of Claim that had been filed on 20 September 2022, but that he had not filed a Defence. He said that he would file a Defence the next day. He stated that he had failed to comply with the Court’s direction, “not by choice” but “because my current circumstances are preventing me from operating as normal”. He provided some details which are not necessary to repeat. He stated that the failure to comply was not because of “any disregard for the Court”. He accepted that he had still not put on all the evidence going to why the 2017 Will, or any other prior Will of the deceased, was invalid.

The Defendant was unable to advise the Court when his evidence might be completed, stating that “I would need to have the testimony of multiple witnesses some of whom reside interstate … some of the evidence would be my own personal testimony”. He also raised “the possibility of fraud”. He said that he had “spoken with the police in regard to this matter [and] the police have referred me to the Court”.

In the circumstances, the Court, relevantly, made the following orders and directions on 17 October 2022:

On 5 December 2022, the matter was again in the Succession List and there was no appearance by, or on behalf of, the Defendant. Indeed, the Defendant did not provide any indication to the Court that he would be unable to appear. The Court made the following notations and directions:

On 15 December 2022, the Defendant sent an email to the Court setting out what he asserted were problems that he had experienced and attempted to explain his non-appearance on 5 December 2022. Economy does not enable the Court to outline the contents of the email which comprised 4 closely typed pages. In summary, by reference to headings, he asserted “Electronic Interference”, “Postal Interference”, “Telecommunication Interference”, “Building Security”, other events, the relevance of which it is difficult to understand, and “a medium case of gastroenteritis this week”. The email concluded after requesting an adjournment until the new Law Term that:

On 16 December 2022, the Defendant again appeared in person. He stated that he had not been able to operate as he normally would; that there remained for investigation the possibility of an issue of fraud “not in the final will but in the penultimate will”, and that when the Court reconvened in the New Year, he would be able to file and serve a proper defence and the evidence upon which he relied.

The Court concluded the directions hearing with the statement that the Defendant would be given “one last opportunity on the basis that if he does not comply with this direction he will not be permitted to do so”.

The Defendant was also informed that the Court would not adjourn the matter again if the direction was not complied with. The Court then made the following notations, directions, and orders:

On 26 January 2023, the Defendant sent another lengthy email to the Court and to the Plaintiffs’ solicitors which was in the following terms:

On 23 February 2023, the Defendant sent an email to the Court and to the Plaintiffs’ solicitors, in the following terms:

Following receipt of that email, my Associate, at my request, sent an email (which bore the time 10:04 a.m.) in the following terms to the Defendant and to the Plaintiffs’ solicitors:

When the matter was called, it was clear that the Defendant was connected to the Court’s audio-visual link system. However, neither his camera nor his microphone appeared to be engaged. On this occasion, the Court made the following orders and directions:

Prior to the directions being made, attempts had been made by the Court, via Microsoft Teams Chat, for Mr Hulme to be able to appear. The following Chat messages occurred:

Following the directions made in Court, my Associate, at my request, sent an email (which bore the time 11:10 a.m.) in the following terms to the Defendant and to the Plaintiffs’ solicitors:

On 24 February 2023 (at 4:59 p.m.), the Defendant sent email correspondence to the Court stating:

The Court responded (at 5:09 p.m.):

The history of the matter, as set out above, demonstrates delay, as well as a certain reluctance by the Defendant to disclose relevant information.

There can be no suggestion that the Defendant could suffer a denial of procedural fairness from the consequences, and effect of altering the nature of the hearing, as it was made clear to him that the hearing was one to determine the notice of motion.

There is one other matter that is relevant on the adjournment application. Suzette is 79 years of age and has had several health issues including significant periods of hospitalisation and recovery from surgery.

Section 66(1) of the Civil Procedure Act, relevantly, provides that subject to rules of court, the court may, at any time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. The Court also has an incidental power, to afford the Defendant another opportunity to provide a Defence and the evidence upon he may wish to rely.

In City of Sydney Council v Satara [2007] NSWCA 148 at [17], the Court of Appeal wrote:

The approach the court should take, when applying case management provisions of the Civil Procedure Act, is to strike a balance between the competing needs of the parties and determine whether, on balance, justice demands that a party should be given an indulgence (or in the present case, a further indulgence). The ultimate aim of the court is to do justice. In doing so, the Court must consider the position of both parties.

Perhaps, the failure of the Defendant to have legal representation has exacerbated the problems that he has faced. Yet, as was stated in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28]:

In Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [34], I noted that the Defendant, in that case, was unrepresented, and concluded that this fact, alone, does not mean, “they should be treated... with greater consideration than litigants who are legally represented”.

As was written in Duraisamy v Sydney Trains [2019] NSWCA 269, by Bell P at [25]:

(An application for special leave to the High Court was refused as the application concerned matters of practice and procedure and the application of settled principles. There was no reason to doubt the correctness of the Court of Appeal's judgment: Duraisamy v Sydney Trains [2020] HCASL 8.)

Naturally, in determining the application for an adjournment, the Court must have regard to the obligations imposed by ss 56 to 60 of the Civil Procedure Act 2005 (NSW): Rafailidis v Camden Council [2021] NSWSC 1087 at [17] (Robb J); Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177 at [45]-[46] (Ierace J).

Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. The court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57 in turn requires the court to have regard to specified matters. Section 58 requires the court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and the court must have regard to the provisions of ss 56 and 57.

Also, the Court must consider the effect of an adjournment. As the majority of the High Court noted in Sali v SPC Ltd (1993) 67 ALJR 841, at 843; [1993] HCA 47 at [11]:

As was observed in Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 182 (French CJ), the time of the court is a publicly funded resource and “[I]nefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be considered. So too is the need to maintain public confidence in the judicial system.”

In UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45, at [38], Kiefel CJ, Bell and Keane JJ wrote:

I have already noted the date and time of the Defendant’s email which has been treated as a belated, and informal, application to adjourn the hearing. Practically speaking, it was sent a matter of hours before the hearing was to commence.

The copy document that was attached to the email was one headed “Medical/Attendance Certificate”, dated 27 February 2023. It was said to certify that the Defendant “has been an inpatient from 25/02/2023 to current” of Royal North Shore Hospital. The Certificate which followed stated that “he/she will be unfit for work/school/usual activities from 25/02/2023 to 03/03/2023”. The person who appeared to have signed the Certificate was Kathryn Pearson and was described as a “Resident Medical Officer”. (Needless to say, she was not available for cross-examination.)

I observe that nowhere on the copy Medical Certificate to which I have referred, was the nature of the Defendant’s medical condition referred to. There is also an absence of any matter demonstrating how the author reached the conclusion that she expressed therein. Importantly, the sentence “He/she was treated for (optional)” was left blank. (I have earlier referred to the Defendant’s diagnosis of his condition in the prior emails.)

What is stated in the Medical Certificate suggests that Dr Pearson may not have been fully, or properly, informed about the purpose of the certificate, and, therefore, did not appreciate that it is no easy task for a court to not proceed to hear a case on the date it is fixed for hearing. One would have expected a medical practitioner, properly informed, to apply some thought to the way in which a medical certificate directed to that objective might be expressed.

The untested opinion of a medical practitioner in a pro-forma, and incomplete, medical certificate, is not sufficient, of itself, to secure the adjournment of the hearing. The opinion expressed was not supported by any appropriately verified evidence. The symptoms, the diagnosis, the degree of any alleged condition from which the Defendant is said to be suffering are not identified. There was no explanation given going to the nexus, if any, between the unspecified medical condition from which the Defendant is said to be suffering and his asserted inability to appear at the hearing. All these matters are left to the imagination of the reader.

As was written by Barrett J in Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]:

A medical certificate relied upon to demonstrate a litigant is unable to attend court should address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing”: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, at [6] (Lindgren J), referred to, with apparent approval, in Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139, at [221] (McColl JA (Simpson JA and Sackville AJA agreeing).

In AHB v NSW Trustee and Guardian [2014] NSWCA 40, at [4], it was noted that the Court will not ordinarily act on “a formulaic document” and will usually require an explanation, on oath, from the medical practitioner of the illness and the reasons for the litigant’s inability to attend Court.

Furthermore, bearing in mind the contents of the Defendant’s email, one might have thought that “the experienced Sydney based lawyer whose firm specialises in Estate Law”, who is said to have been contacted, might have been retained to meet with the Defendant, or, at least to appear, on his behalf, if only to seek an adjournment. (I put to one side the number of occasions, prior to 28 February 2023, that the Defendant was encouraged to obtain legal assistance.)

Finally, there was an absence of any information indicating when the Defendant might become available to attend an adjourned hearing if the hearing date were to be vacated. In this regard, the last paragraph of the Defendant’s email is relevant.

Overall, what has been presented to the Court, by way of email correspondence, and the Defendant’s disorderly, unverified, and in some cases, somewhat extravagant, assertions therein, does not give the Court any confidence that an adjournment will lead to his case becoming any more precise or him being able to advance a proper defence to the claim for Probate of the 2017 Will. He has not identified, with any precision, from where his evidence would come, which also might be thought to be telling when the time that he has had to present his case overall is considered. In other words, it was not apparent that an adjournment would serve any useful purpose.

In my view, the email from the Defendant, sent a few hours before the matter was to be heard, with the uninformative and inadequate medical certificate, which has little probative value, seeking a further adjournment, this time of the hearing of the Plaintiffs’ notice of motion filed in December 2022, and without a clear indication of how such an adjournment would result in anything else being done, must be considered in light of the history of the proceeding and the conduct of the Defendant.

The Defendant could have been left in no doubt, in December 2022, and then again in February 2023, that further delay in relation to these proceeding would not be tolerated by the Court other than for very sound reasons. He must also have been aware that if he, or someone on his behalf, did not attend, the hearing was likely to proceed in his absence.

In considering the application for an adjournment, naturally the issue of procedural fairness has been considered. However, it is to be remembered that in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, Newnes JA, with whom Pullin and Murphy JJA agreed, wrote at [51]:

Whilst it cannot be said that there was an immediate urgency to have the application heard, it has been over 2 years since the death of the deceased, over 1 year since the initial application for the removal of the caveat, and over 3 months since the notice of motion was filed. Whilst the Defendant has been unrepresented, the Plaintiffs have appeared throughout and have, no doubt, incurred legal costs. They also incurred the costs of legal representation at the hearing of the notice of motion.

Additionally, the Court was not satisfied, bearing in mind the nature of the proceeding, that to grant the Plaintiff’s application could be properly compensated by an order for costs, even if those costs were calculated on the indemnity basis.

It would not be fair to the Plaintiffs, against the background of the proceeding, to delay a determination of the notice of motion. In all the circumstances, I did not accede to what I had treated as the Defendant’s application for an adjournment stating that I would provide reasons as part of the determination of the Plaintiffs’ application.

I then proceeded to hear the notice of motion.

Following the conclusion of the hearing, at my request, my Associate sent an email to the Defendant, with a copy thereof to the Plaintiffs’ solicitor (which bore the time 4:44 p.m.), in the following terms:

On the day before these reasons were to be published, the parties were informed of the Court’s intention to do so. At the date of publishing these reasons, no response has been received to the Court’s emails, from, or on behalf of, the Defendant.

The Plaintiffs’ notice of motion was filed on 8 December 2022. They sought the following relief:

Because of the way in which the proceeding continued, as set out above, it was possible to list the notice of motion for final hearing.

In taking that course, and at the hearing, the Court has required the Plaintiffs to prove their claim so far as the burden of proof lies upon them. Whilst the failure of the Defendant, who does not plead to the allegations in the amended Statement of Claim founds deemed admissions of the allegations therein (see Ward v Ward [2011] NSWSC 107 at [28]), I have read the evidence so that the Court can be satisfied that the orders that are sought are appropriate. In other words, I have not relied upon deemed admissions. The evidence has been read so that the Court can be satisfied that the orders sought are appropriate.

In support of the notice of motion, the Plaintiffs read several affidavits and tendered some documents. There was a copy of an email dated 20 December 2022 from the Plaintiffs’ solicitors to the Defendant identifying the amended Statement of Claim and the affidavits upon which the Plaintiffs intended to rely: Ex NM6.

I shall refer principally to the evidence read that seems highly unlikely to be the subject of real dispute.

The Plaintiffs first referred to the Amended Statement of Claim filed on 20 September 2022. The principal claim for relief was for an order that Probate in solemn form of the 2017 Will be granted to them and consequential relief. (Other alternative claims for relief were sought in relation to other Wills, but considering the claim for relief in the notice of motion, those claims for relief do not require elucidation.)

The original of the 2017 Will was tendered as Ex NM1. It is the last Will in time executed by the deceased. There was no suggestion that the 2017 Will had been revoked by the deceased. The original of the 2017 Will remains on the Court file.

The deceased made several other Wills, the original of some of which was also tendered. In reverse date order, there was a Will dated 3 February 2005 (Ex. NM2), a Will dated 2 March 2000 (Ex NM3), and a Will dated 13 June 1991 (Ex. NM4). (There are other original Wills, even earlier in time, held in the Court file to which reference was not made and which were not marked as exhibits. Those Wills have been retained on the Court file.)

The Wills that have been tendered appear to be reasonably consistent in terms of the disposition of property. There does not appear to have been significant changes, or departures, from the long adhered to testamentary intentions reflected in the Wills. In all of them, Suzette appears to be the principal beneficiary. The main differences in the Wills relate to the identity of the executors and trustees, as the Defendant was removed as executor and trustee in the 2017 Will, and there are some adjustments made as to the nature of the provision made for Braddon directed towards purchasing a residence for him. The amounts of pecuniary legacies may have altered.

The evidence reveals that the value of the actual estate of the deceased is not large. The principal asset is the former matrimonial home which was held by Suzette and the deceased as joint tenants, and which passed by survivorship to her. In addition, the inventory of property disclosed shares in Perenti, Bluescope, Commsec BHP, and a trustee company, Marbrada Investments Pty Ltd; two boats, one being a Nereus MTR Cruiser and the other being a Yamaha RV; a Mitsubishi Verada car; law books; clothing; personal effects; and various tools. There was also a disposition of any entitlement under the Robert Hulme Superannuation Fund.

The degree of commonality of the beneficiaries between the various Wills that the deceased made, and the relationships to him, in my view show the 2017 Will (and indeed the others) to be rational on its face. It was not suggested that persons naturally having a claim on the deceased’s bounty have been excluded.

The Plaintiffs read an affidavit of Patricia Varnava, a solicitor, who was one of the attesting witnesses to the deceased’s signature on the 2017 Will. They also read an affidavit of Ann Lockley, whose occupation was not disclosed but who was referred to as “retired”, the other attesting witness to the deceased’s signature on the 2017 Will.

These two affidavits, when considered with the 2017 Will, itself, satisfy me that:

It follows that the 2017 Will was duly executed in accordance with s 6 of the Succession Act.

Clause 2 of the 2017 Will appointed the Plaintiffs as the executors and trustees of the Will.

The Will bears an attestation clause which states:

The Plaintiffs also read an affidavit of the executors sworn by Suzette on 17 December 2021 and by Mark on 12 December 2021. This affidavit satisfied me that:

I have earlier referred to the Defendant having lodged a caveat and that caveat having lapsed by the effluxion of its six-month duration.

Mark affirmed an affidavit on 8 December 2022. To that affidavit was annexed a copy of a document headed “To my Children and to my Executors and Trustees”. It is a typewritten document and was said to be “a letter intended to be read with, but is not part of, my Will”.

I shall not set out the terms of the document, but it appears to have been carefully crafted. It concludes with the following:

The last paragraph states that the Will referred to was drafted by the deceased himself. That would be powerful evidence of actual knowledge and approval of the contents of the Will. That there is a reference to the same date as the 2017 Will enables the Court to infer that it is to that Will to which the deceased was referring.

Whilst the Defendant’s allegations appear to be quite unfocussed, and some difficult to understand, the course adopted was to deal with the substance of the matter, disregarding the substantial formal defects. I have treated the allegations as relating to a lack of testamentary capacity and a lack of knowledge and approval.

As I have repeated:

In Tatchell v Glavimans [2007] WASC 321, EM Heenan J wrote at [9]:

In Lim v Lim [2022] NSWSC 454, at [416]-[418], I referred to the relevance of an attestation clause:

I also referred to the law in relation to testamentary capacity at [340]-[349], [351]-[353] and at [358]-[371] as follows:

In a proceeding such as the present, whilst the Court should not ignore an issue such as a lack of testamentary capacity once raised, in Re Levy deceased (No 2) [1957] VR 662 at 665, Sholl J, stated that it is not:

In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, Isaacs J set out relevant principles which have been frequently applied and discussed. (Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment.)

I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. his Honour wrote (at 528):

It is difficult to ascertain from the unfocussed, and prolix, documents provided by the Defendant, what facts he asserts reasonably require investigation, or what other documents require inspection, before a determination can reasonably be made as to whether the 2017 Will was the last will of a free and capable testator. Naturally, the Court has conducted a vigilant examination of the whole of the evidence read at the hearing.

However, this is a case in which there is an apparently rational will, duly executed by the deceased. I have identified the evidence going to proof of due execution, which is consistent with the physical appearance of the 2017 Will, which bears three different signatures and an attestation clause.

In addition, the 2017 Will is the last Will, in time; it was prepared by the deceased himself; a willmaker who, until the year before he prepared the Will, had been a sitting Judge of the Supreme Court. The Court should be satisfied as to its validity.

The letter from the deceased demonstrates that he was a strong and decisive person, as well as someone who was concerned to do the right thing, as he understood it to be. His decision, apparently unaided, to make a new will, and then explain, in writing, to family members, his reasons, demonstrate that he was not hampered by mental incapacity.

Furthermore, there is no suggestion that any person taking a benefit under the 2017 Will played any part in its preparation. This is evidenced by the statement of the deceased that he had drafted the Will.

The existence of an apparently rational will, duly executed, of itself, is enough to cast on the person who opposes the making of a grant of probate, an onus of adducing evidence to suggest that there is a basis for not making a grant. That may include evidence of a lack of testamentary capacity or a lack of knowledge and approval. The Defendant has not done this. He has not advanced any cogent evidence to suggest that the deceased’s mental functioning was impaired in 2017.

What he has produced also does not raise any suspicion about the deceased’s capacity or his knowledge and approval of the 2017 Will. Indeed, I have not read anything that suggests that the 2017 Will did not truly represent the deceased’s testamentary intentions; or, that he did not know and approve its contents. One might think that, at a minimum, there would need to be demonstrated a matter occasioning doubt about the validity of the disputed Will.

Finally, the Defendant’s non-compliance with the Court’s directions, over a long period of time, is clear. There is no basis to assume that the non-compliance, throughout the period that the matter has been before the Court is accidental, or because of circumstances that, objectively, might justify the continuing default. He has not adduced any factual evidence to support the unverified allegations or to contradict the Plaintiffs’ evidence. There is no credible evidence that he will be able to do so in the future.

I am satisfied that the Plaintiffs are entitled to the grant of Probate of the 2017 Will as the executors named in it. The Plaintiffs should be saved from further cost, delay, and vexation.

I turn then to the issue of costs.

In both written and oral submissions, counsel for the Plaintiffs sought an order that the Defendant pay their costs calculated on the indemnity basis of the proceeding. They relied upon the Defendant’s repeated failures to follow proper court procedures and to comply with court orders, as well as his unfounded allegations of fraud and misconduct on the part of the Plaintiffs.

Counsel submitted that the Defendant’s continual agitation of a ‘formally undefined’ and ‘hopeless’ case, including the seeking of multiple adjournments and extensions, had caused the Plaintiffs significant trouble and expense. Citing Rose v Richards [2005] NSWSC 758, counsel reminded the Court that the fact that the Defendant was a self-represented litigant should not prevent the making of an order for indemnity costs against him.

When the Court inquired about the Defendant’s practical ability to meet such a costs order, counsel indicated that his financial circumstances were unknown, and that she had no instructions on the question, but that there may be other practical ways that the family could deal with the matter.

The prima facie rule in probate litigation is that costs follow the event. However, costs may be paid out of the estate if the litigation has been caused or contributed to by the way in which a willmaker has made his, or her, testamentary intentions known, or alternatively by the conduct of the beneficiaries. Also, where the willmaker is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, there is either no order as to the unsuccessful party’s costs or costs are paid out of the estate. For reasonable grounds calling for an investigation to exist, it must be established that when a proceeding was commenced, all proper steps were taken to inform the challenger as to the facts of the case and having done so, the challenger has been led reasonably to the bona fide belief that there were good grounds for impeaching a will. If there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then costs will usually follow the event: Re Papavasiliou; Theofanous v Aizen (No 2) [2023] VSC 118 at [14] (McMillan J).

I summarised the principles in Chant v Curcuruto (No 2) [2021] NSWSC 882 at [32]. I shall not repeat what I wrote in that case, but I have borne the principles in mind.

In relation to the application for costs calculated on the indemnity basis, in summary, such an order can usually be justified because, in the circumstances, it would be unfair, or unjust, to require the successful party to bear costs calculated on the ordinary basis, or where there may be some special, or unusual, feature in the case to justify the Court in departing from the usual order. The question will be whether the particular facts and circumstances of the case warrant the making of an order for costs other than on the ordinary basis.

If a party's conduct is relied upon, the conduct which falls to be assessed in determining whether an indemnity costs order should be made is that which relates to the proceeding in which the order is sought.

The categories of case in which the discretion to award costs calculated on the indemnity basis may be properly exercised are not closed. However, the mere existence of facts and circumstances capable of warranting an order for costs calculated on the indemnity basis does not mean that the Court is obliged to make such an order, as costs, ultimately, remain in the discretion of the Court. Each case stands on its own, and one of the factors to consider is the Defendant’s lack of representation.

In determining the issue and remembering that the Defendant has been self-represented, it is to be noted that in years past, courts have generally been reluctant to order indemnity costs against a self-represented litigant. For example, in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13], Hodgson CJ in Eq wrote:

Of course, what was written should not be understood as implying that indemnity costs will never be appropriate against a litigant in person. In Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311, Meagher JA, at [9] – [10], wrote:

Bearing in mind what has been written earlier about cases involving self-represented litigants, it seems to me that the time has come for courts to overcome a reluctance to order indemnity costs against such litigants, particularly if he, or she, advances a patchwork of unfocussed complaints, which puts the other party to significant cost, and where, as here, the party has been urged to seek legal assistance and has not established that he lacks the financial means to do so, so that an application for pro bono assistance could be considered. The fact that a litigant chooses to represent himself, or herself, should not exempt him, or her, for that reason alone, from exposure to an order for costs calculated on the indemnity basis.

As enshrined in s 56 of the Civil Procedure Act 2006 (NSW), the Court has a duty to all parties to ensure that proceedings are conducted in a fair and timely fashion and without significant delay and unnecessary expense.

In this case, whilst I do not think that the Defendant has engaged in this litigation, necessarily, to advance his own interests, or has opposed the Plaintiffs’ application with some ulterior motive in mind, and whilst there is an element of public interest in ensuring the last valid will of a willmaker is the subject of a grant of Probate, he has resolutely maintained the belief, and has made many varied, and unrestrained, allegations, upon which he is fixated, that the Plaintiffs are not acting in the best interests of “the family”. That, of course, does not go to the issue of the validity of the 2017 Will.

Whilst allowances must be made in recognition of the difficulties faced by an unrepresented litigant and his, or her, lack of expertise, the procedural history referred to above demonstrates that the Court provided many opportunities to him to do what was required.

Furthermore, I have not read anything advanced by the Defendant, that would lead me to conclude that he was justified in maintaining his opposition, for as long as he has, to the grant of Probate of the 2017 Will being made to the Plaintiffs. Having seen a copy of the 2017 Will, the affidavits of the attesting witnesses, and having received, and considered, the deceased’s letter, he should have reflected upon the Plaintiffs’ case and determined that he should not maintain his opposition and, therefore, was at risk as to costs if he continued in the way that he did. In maintaining his position, and failing to comply with numerous directions, in circumstances where he did not file an Appearance, or a Defence, he has put the estate to significant cost.

Initially, the Defendant asserted that he had not been provided with some documents. For that reason, in the directions hearing of 14 June 2022, the Plaintiffs were directed to provide him with a copy of any will made by the deceased in their possession, custody or control. There is no suggestion that they did not comply with the direction. By 24 August 2022, the Defendant had a copy of the letter written by the deceased, to which reference has been made. The affidavits of each attesting witness were filed 14 October 2022 and 10 December 2022 and were included in the list of affidavits upon which the Plaintiffs intended to rely, as set out in a letter from E Berman & Co, dated 20 December 2022 and tendered as Ex. NM6, that was sent to the Defendant by email.

In my view, the Defendant should pay the Plaintiffs’ costs, calculated on the indemnity basis, from 31 January 2023. Otherwise, he should pay their costs, calculated on the ordinary basis, of the proceeding. It will be a matter for the Plaintiffs whether they enforce that order against him. If they choose not to enforce the costs order, or if the Defendant does not satisfy the costs orders, the Plaintiffs’ costs, calculated on the indemnity basis should be paid out of the estate of the deceased.

The Court: