Wild v Meduri

1. [1]

   BELL CJ: This judgment concerns the estate of the late Elisabetta Meduri (Elisabetta or the deceased), who died aged 98 on 8 June 2020. The proceedings arising out of her testamentary affairs have been regrettably complex.

2. [2]

   Elisabetta was survived by six children, who, in descending age order, are Concetta DiMaria (Connie), Rosa Wild (Rose or the Appellant), Antonio Meduri (Tony), Dominico Meduri (Dominic), Giuseppe Meduri Jnr (Joseph) and Giovanni Meduri (John). She was predeceased by her husband, Giuseppe Meduri (Giuseppe), who died on 26 July 2009. I refer to parties by their first names without intending any disrespect. Dominic and John are together the Respondents.

3. [3]

   Following Elisabetta’s death, three sets of proceedings were brought and determined together by Hallen J (the primary judge) in a judgment delivered on 23 February 2023: Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113 (the primary judgment or PJ). Prior to the hearing of the matters, Mr Richard Neal (the administrator), an experienced solicitor practising in the area of wills and probate, was appointed by consent as interim administrator pendente lite and receiver of the estate of the deceased. The administrator is the Third Respondent to the appeals the subject of this judgment but is only joined in his capacity as administrator. He played no substantive role in the hearing of the appeals.

4. [4]

   The three sets of proceedings before the primary judge were, in short summary, as follows:

   1. (1)

      2020/239852 (the Probate Proceedings), brought by Rose on 24 August 2020, seeking that letters of administration of the deceased’s estate, on intestacy, be granted to her. Dominic and John filed a cross-claim on 1 October 2020, propounding a Will dated 18 September 2009 (the 2009 Will), as a valid will of the deceased appointing Dominic and John as the deceased’s executors;

   2. (2)

      2021/91132 (the Trust Proceedings), brought by Dominic and John pursuant to a Statement of Claim filed on 1 April 2021, seeking a declaration that a property situated at Herbert Street, Kemps Creek (the Kemps Creek property) was held on trust by the estate for them as tenants in common in equal shares. In the alternative, each of Dominic and John sought a family provision order and an order extending the time for the making of such an application; and

   3. (3)

      2021/144417 (Joseph’s Proceedings), in which Joseph, by the NSW Trustee and Guardian, acting as his tutor (as Joseph is a person under a legal incapacity), sought a family provision order.

5. [5]

   The primary judge held that the 2009 Will was valid, and dismissed the Probate Proceedings brought by Rose and upheld the cross-claim brought by Dominic and John. The primary judge further held that there was no need to determine the Trust Proceedings because, under the 2009 Will, Dominic and John were to receive an absolute devise of the Kemps Creek property. However, the primary judge noted that he was satisfied that Dominic and John had made out their claims that the Kemps Creek property was held on trust as against the deceased and Giuseppe. Their family provision claim was therefore unnecessary to determine.

6. [6]

   In respect of Joseph’s Proceedings, the primary judge held that adequate provision for the proper maintenance or advancement in life of Joseph had not been made by the 2009 Will and that he ought to receive a lump sum out of the proceeds of sale of the property provided to him on trust in the 2009 Will. Joseph’s Proceedings were not the subject of any appeal and it is not necessary to go into any detail about them.

7. [7]

   The primary judge gave a further judgment on costs: Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors No 2 [2023] NSWSC 669 (the costs judgment). In the Probate Proceedings, Rose was ordered to pay 85% of Dominic and John’s costs on an ordinary basis, and ordered to bear her own costs. The primary judge made specific orders as to how the balance of costs should be paid. In the Trust Proceedings, the primary judge ordered that Rose pay Dominic and John’s costs of the proceedings, other than in respect of the claim for a family provision order, in respect of which Rose was to receive her costs from various specific assets in the estate proportionately. This order was taken into account in reaching the percentage costs order made in the Probate Proceedings. The assets which were set aside to provide for Joseph were not subject to these costs orders. All costs in Joseph’s Proceeding were to be paid out of the estate of the deceased on an ordinary basis, with Rose’s costs to be paid out of the residuary estate (or otherwise proportionately out of other property).

8. [8]

   Separate appeals were brought in the Probate and Trust Proceedings “from the whole of the decision” of the primary judge, including the decision on costs. There were eight grounds of appeal propounded in each proceeding, although there is some overlap between them. In truth, when one considers the terms of the separate notices of appeal, the matter is rendered even more complex because of the detailed and lengthy nature of many of the grounds of appeal, and their interaction with each other. Further difficulty is presented by the fact that, in part at least, the primary judge’s conclusions were influenced by the impressions he formed of witnesses over the course of a lengthy and hard fought trial.

9. [9]

   The appeal is brought as of right (pursuant to s 101(1) of the Supreme Court Act 1970 (NSW) (Supreme Court Act)) and is an appeal by way of rehearing (pursuant to s 75A(5) of the Supreme Court Act). The appeals are, as Mr Owens SC, who appeared on appeal for Rose, put in written submissions, “a comprehensive challenge to Hallen J’s findings of fact.”

10. [10]

    In addition to the grounds of appeal raised in both proceedings, there are 15 specific challenges to the findings of fact in the Probate Proceedings and a further seven challenges to the findings of fact in respect of the Trust Proceedings.

11. [11]

    It is desirable, at the outset, to provide some further background and to supply a broad overview of the primary judge’s reasoning process.

Background

1. [12]

   The deceased was born in Italy in 1921, and married Giuseppe in 1947. They emigrated to Australia in about 1958. Despite her lengthy period of residence in Australia, the deceased spoke Calabrese, a dialect of Italian, and only limited English. She was unable to read or write in any language, and signed documents with an “X” to represent her name.

2. [13]

   Connie, the deceased and Giuseppe’s eldest child, was born on 10 March 1950, followed by Rose on 6 September 1952 and Tony on 6 November 1954. After the deceased and Giuseppe, along with their first three children, arrived in Australia, Dominic was born on 11 March 1961, Joseph on 2 June 1962 and John on 31 January 1967.

3. [14]

   In about 1980, Dominic and his wife, Ms Karen Nash, moved to Crookwell where they lived with Karen’s parents. They remained living there until early 1989. In about 1988, John and his then-partner lived in a caravan for approximately one year. John later married Ms Ruby Meduri in 2004.

4. [15]

   On 16 December 1988, Giuseppe and the deceased purchased the Kemps Creek property as joint tenants for $360,000. Mr Puleo, a solicitor, was engaged to assist in the purchase. In early 1989, Dominic and his family and John and his then-partner, moved onto the Kemps Creek property where they remained living up to, and following, the deceased’s passing in 2020. (In the Trust Proceedings, and putting the matter broadly for present purposes, Dominic and John claimed that both of their parents had promised them that they could live on the Kemps Creek property for their lives on condition that they pay the rates, and that they made improvements to the property on the faith on their parents’ inducements.)

5. [16]

   In 1991, Rose commenced her relationship with Mr Alan Wild. They were married in 1994.

6. [17]

   In around 1992, the deceased and Giuseppe built their home at 7 Onyx Close, Bossley Park.

7. [18]

   On 15 June 2001, Giuseppe made his last will. This will was prepared by Mr Puleo. Mr Puleo could not recall whether the deceased was present when he took instructions in relation to Giuseppe’s Will. However, his evidence was that he last saw her prior to taking instructions from her in relation to the 2009 Will in about 2001. Giuseppe’s Will left the entirety of his estate to his wife but, contingently, in the event that she predeceased him, he left various properties to each of his children in the same manner that, eight years later, his wife did in the 2009 Will.

8. [19]

   In about 2007, Connie moved into 7 Onyx Close permanently to live with the deceased and Giuseppe and assist them with their domestic needs as Giuseppe had become unwell, although medical records from 8 March 2005 which noted that the deceased “lives w daughter – carer” suggest that Connie was caring for the deceased and Giuseppe from an earlier time. Connie continued to live with and care for the deceased following Giuseppe’s death on 26 July 2009. This fact is of some relevance in light of the lively dispute as to the deceased’s testamentary capacity when the 2009 Will was signed.

9. [20]

   On 17 August 2009, Puleo Lawyers wrote to National Australia Bank requesting information in relation to Giuseppe’s estate. Dominic, John and the deceased signed an Affidavit of Executors in the presence of Mr Puleo in relation to the grant of probate for Giuseppe’s estate on 18 September 2009. On 29 September 2009, probate of Giuseppe’s Will was granted to the deceased, Dominic and John.

10. [21]

    On 18 September 2009, just under eight weeks after Giuseppe’s death, the deceased, along with three of her children: Connie, Dominic and John, attended Mr Puleo’s offices to sign the 2009 Will. The attesting witnesses to the Will were Mr Puleo and Ms Melissa Williams, who was then a secretary at Puleo Lawyers. The deceased was 87 years old at the time the 2009 Will was signed.

11. [22]

    Pursuant to Giuseppe’s Will, the deceased had inherited all of Giuseppe’s real and personal assets. The 2009 Will was drafted and witnessed by Mr Puleo. Mr Puleo’s evidence of the deceased’s testamentary capacity was considered in detail by the primary judge. His Honour’s use and reliance on that evidence is reflected in a number of the grounds of appeal.

12. [23]

    The terms of the 2009 Will provided for Dominic and John to be executors and trustees of the deceased’s estate. By cl 3, the deceased gave the Kemps Creek property, together with any machinery and equipment, to Dominic and John in equal shares as tenants in common, just as Giuseppe’s Will had contingently done. By cl 4, again mirroring Giuseppe’s Will, the deceased gave to her trustees (that is, Dominic and John) a property at 6 Onyx Close, in order for Joseph to have the “use, occupation and enjoyment thereof during his life.” By cl 5, the deceased gave a property at 7 Onyx Close, together with its contents, to Rose and Connie in equal shares as tenants in common. This, too, mirrored the contingent provisions of Giuseppe’s Will. Clause 7 similarly gave Rose and Connie the deceased’s items of personal adornment and jewellery. By cl 6, the deceased gave Tony a property at 1 Rose Street, Smithfield, also mirroring Giuseppe’s Will. Clause 8 provided for the residue of the estate to be paid in one-sixth shares to each of the deceased’s children, with Joseph’s share to be held on trust, by the trustees, “for the purposes of meeting his reasonable living and medical expenses and for any other purposes or benefit which at the discretion of [the] Trustees” may be required during Joseph’s lifetime. This was different from Giuseppe’s Will which contingently gave the residue of his estate to each of his surviving children living as at his death, as tenants in common in equal shares. As such it may be seen that the 2009 Will, in substance, gave properties to each of the deceased’s children, with each to share equally in the residue of the estate but with bespoke arrangements for Joseph. Of course, and unsurprisingly, not all of the properties were of equal value. As has been noted, the structure of the 2009 Will broadly mirrored the contingent provisions in Giuseppe’s Will in the event that the deceased predeceased him.

13. [24]

    As of 12 December 2022, the net value of the deceased’s estate, as agreed between the parties, comprised some $10,824,258, being two properties in Bossley Park, the Kemps Creek property, a property in Smithfield, and an account at ANZ: at PJ [140]-[141]. Although the value of the Kemps Creek property was initially in dispute (at PJ [134]), the parties ultimately agreed that its value was $6,950,000 (at PJ [141]).

14. [25]

    The 2009 Will was witnessed by Mr Puleo and Ms Williams. It was signed by the deceased with an “X”, which was labelled as “her mark”, on every page as well as at its conclusion. The 2009 Will was also signed by the witnesses on each page. The signing page contains the following paragraph:

15. [26]

    It is to be observed, therefore, that Mr Puleo was the drafter, witness and translator of the Will as executed. No challenge was ultimately made to the formal validity of the 2009 Will: at PJ [54].

16. [27]

    It is also to be noted that, despite the terms of the 2009 Will appointing Dominic and John as executors, it was agreed at the hearing that the administrator should obtain a grant of administration with the 2009 Will annexed, or, if the Will was invalid, obtain a grant of letters of administration on intestacy: PJ [61].

The hearing at first instance

1. [28]

   The hearing before Hallen J commenced on 1 November 2022 and ran for 11 days in total. There was a significant amount of oral and affidavit evidence as well as expert medical evidence and medical records to which it will be necessary to return. The evidence reproduced in the appeal books extended over 2300 pages with some 1500 pages of transcript and written submissions from the trial.

2. [29]

   The principal issue in the Probate Proceedings related to the deceased’s capacity to make her Will in 2009. On this issue, the primary judge noted that there was “diametrically opposed lay evidence about the medical condition and mental state of the deceased”: PJ [57]. The burden fell on those propounding the 2009 Will, namely Dominic and John, to satisfy the Court that it was the last will of a “free and capable” testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[48].

3. [30]

   Rose contended that the 2009 Will was not validly made and therefore that the deceased died intestate. The basis for this was said to be that, at least by the time the 2009 Will was executed, the deceased had lacked testamentary capacity (although Rose’s contention was that the deceased had lacked capacity as early as the 1990s). It was also put that the deceased did not know and approve of the contents of the 2009 Will. In making this case, Rose gave evidence herself, together with her husband, Alan, Tony, Kerry La Rue (Tony’s former wife), Jake Meduri (Tony’s son) and David Jamie DiMaria (Connie’s son), in respect of whom an affidavit was read but who failed to attend to give evidence despite having been served with a subpoena to do so.

4. [31]

   The Respondents’ case was that the deceased did possess testamentary capacity at the time she made the 2009 Will (and continued to do so at least until the point at which she entered a nursing home in 2017), and that she knew and approved of the contents of the Will. The Respondents each gave evidence in the proceedings. They also called Mr Puleo, Ms Williams, Cathy Butera (the de facto partner of Sammy DiMaria, a son of Connie), Graham Ball (a real estate agent who acted for the deceased in 2010), Giuseppe Bonarrigo (the deceased’s neighbour until she moved to a nursing home), and Emanuel Girotto (a childhood friend of Dominic).

5. [32]

   Two of the deceased’s treating doctors were also called to give evidence. Dr Francesco Romeo (Dr Romeo) was the deceased’s general practitioner from 1999 until 2017. He speaks Calabrese, as did the deceased. Dr Mariam Doreen Joseph (Dr Joseph) did not meet the deceased until October 2014 (more than five years after the 2009 Will was executed), from which time she treated her as a geriatrician. The Court had before it contemporaneous progress notes of Dr Romeo as well as records of hospital attendances by the deceased both before and after the 2009 Will was executed. Those medical records ran to some 500 pages relating to the period between 11 July 1999 and 27 February 2020 and were obtained from the deceased’s general practice, MyHealth Medical Centre in Edensor Park, five hospitals, namely Mount Druitt Hospital, Blacktown Hospital, Fairfield Hospital, Liverpool Hospital and Braeside Hospital, Dr Joseph, and two nursing homes, namely SummitCare in Smithfield and Fairfield Aged Care Home.

6. [33]

   Expert evidence was also led from two medical experts who were jointly appointed. Associate Professor Christopher Ryan (Associate Professor Ryan) was then a Clinical Associate Professor at the University of Sydney and a Consultation-Liaison Psychiatrist at Westmead Hospital. Professor John Watson AM (Professor Watson) is a consultant neurologist with expertise in dementia and several research degrees in that field. Associate Professor Ryan and Professor Watson helpfully, following a conclave, produced a joint report, dated 5 December 2022, which set out the matters upon which they agreed and disagreed (and why that was so). Relevantly, the experts agreed that at the time the deceased made the 2009 Will, she was “more likely than not” suffering from a “clinically significant cognitive impairment”. The experts also produced their own reports.

7. [34]

   As the primary judge would observe at PJ [57]; having noted that there was “diametrically opposed lay evidence about the medical condition and mental state of the deceased at, or about, the time she made the 2009 Will”:

8. [35]

   In the Trust Proceedings, the Respondents asserted that the Kemps Creek property, where they had resided since early 1989, was held on trust for them by way of a proprietary estoppel. They asserted that, on the basis of improvements made by them to the Kemps Creek property purportedly in reliance upon their parents’ promises that they would have beneficial ownership of the property and encouragement that they should make improvements, they were entitled to the beneficial ownership of the property.

The primary judgment

1. [36]

   At PJ [83]-[86], his Honour provided the following summary of his conclusions in respect of each of the issues in the proceedings (omitting what he said about Dominic and John’s family provision claim):

2. [37]

   In reaching his conclusion in relation to validity of the 2009 Will, the primary judge engaged in a thorough assessment of the lay, documentary and expert evidence, including dealing with detailed credit attacks made by both parties on various witnesses. This analysis occupied some 70 pages of the primary judgment (at PJ [368]-[685]) and was prefaced by a thorough discussion of some general principles regarding evidence: at PJ [309]-[362].

3. [38]

   His Honour’s credit findings are significant for the purposes of both appeals. As the primary judge observed at PJ [368], his findings in relation to individual witnesses depended, in part at least, upon his “impressions of the witness” based upon his “observation of the way he or she gave oral evidence, and upon evidence that bolsters, or impugns, his, or her, credit.” Mr Owens SC, who appeared for the Appellant, squarely conceded that it would be necessary for him to meet the high bar set by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [29], namely that in order to succeed in appealing findings influenced by the credibility of witnesses, an appellant must establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”.

4. [39]

   The circumstance is, of course, a little more complex in circumstances where an intermediate appellate court is engaged in an appeal by way of rehearing entailing a “real review” and the universe of evidence relied upon at first instance to reach a conclusion did not all depend on lay witnesses whose credit was assessed by a primary judge. Insofar, however, as assessments of the credit of various witnesses did contribute to the determination of the key question or questions confronted by a primary judge, a degree of appellate deference is due to the advantages enjoyed by the primary judge, noting, in the language of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, that:

5. [40]

   Many of the primary judge’s findings leading to his ultimate conclusions were expressly predicated upon his view of the credibility of the witnesses and their recollections, in light of both the surrounding circumstances (such as the medical records and the views of the joint experts) and their demeanour in the witness box. As was held by the primary judge at PJ [310], “like all Probate and trust cases, this is a case that is fact sensitive” and “credit findings assume some significance.”

6. [41]

   In particular, his Honour took a generally favourable view of the following witnesses called by (and including) Dominic and John:

7. [42]

   His Honour took a less favourable view as to the credit of the following witnesses called by Rose (including Rose):

8. [43]

   As one might expect of such an experienced judge, the primary judge tested much of the evidence of central lay witnesses against other evidence, to assess its credibility and reliability. This can be seen in relation to the evidence of Tony in the passage set out above but, perhaps most critically, in relation to Rose. At PJ [749], his Honour detailed some 10 matters that caused him to “have some concerns about accepting Rose’s evidence in its entirety.” This list included inconsistencies in her evidence, her unsupported allegations of conspiracies as to, for example, fabrication of a photograph of the deceased, and her failure to raise the issue of what she said were the deceased’s delusions or suspected schizophrenia with Dr Romeo when she first started taking the deceased to see him in the late 1990s and in early 2002, especially in a context where the medical records revealed that it was not until August 2014 that Rose first raised with Dr Romeo any concerns, and those were in relation to Connie’s ability to care for the deceased.

9. [44]

   Some witnesses who have not been referred to in [41]-[42] above were of, at most, marginal significance. For example, on Rose’s side, Kerry La Rue last saw the deceased in 2002 when she separated from Tony, and on the Respondents’ side, Giuseppe Bonarrigo who, although the primary judge found to be “a witness who attempted to give an honest account of his recollection of past events”, was held to have had a closer relationship with deceased’s late husband than he had with the deceased and knowledge of the family which diminished after her husband’s death: at PJ [514].

10. [45]

    Another witness, David DiMaria did not make himself available for cross examination despite being subpoenaed. Unsurprisingly, the primary judge gave his evidence “little weight” (at PJ [816]), although the rejection of part of his evidence formed part of Rose’s grounds of appeal and will be dealt with later in these reasons: see [189] ff below.

11. [46]

    His Honour did not consider that the failure to call Connie as a witness in the proceedings enabled an adverse inference to be drawn against Dominic and John: at PJ [212]. This issue is the subject of ground 6 in relation to the Probate Proceedings and ground 5 in relation to the Trust Proceedings and is dealt with at [196] ff below.

12. [47]

    The primary judge then turned to the involvement of Mr Puleo, the drafter of, and a witness to, the 2009 Will. He was also, as will be set out more completely below in relation to ground 4 of the appeal in the Probate Proceedings, for a time, the solicitor on the record for Dominic and John in these proceedings (in which capacity he was succeeded by his son, Mr Matthew Puleo (Mr Puleo Jnr) who is an employed solicitor of Mr Puleo’s firm). The primary judge held the following at PJ [294]:

13. [48]

    Nonetheless, his Honour held at PJ [308] that the “value of the solicitor’s evidence should not be overstated, and it should not be regarded as being of magnetic, or definitive, importance” and “must be read with all of the other evidence in the case.”

14. [49]

    Later in his reasons, the primary judge said of Mr Puleo:

15. [50]

    Three of the factual findings challenged by the Appellant relate to Mr Puleo and are dealt with at [116]-[132] below.

16. [51]

    Next, the primary judge considered the duties of a solicitor in taking instructions for a will and set out the relevant law, as well as relevant principles regarding evidence, in particular where the circumstances in dispute occurred a considerable time prior to the hearing of the matter and, in that context, the significance of the fallibility of memory. In this respect, his Honour held at PJ [311] that “it is best to treat all of the evidence of events that occurred long ago with particular care, and a degree of scepticism unless supported by other evidence or the inherent probabilities.”

17. [52]

    In relation to an issue raised by counsel for Rose concerning the marked degree of similarity between Dominic and John’s affidavits, which was suggested to be evidence of collusion between them, the primary judge held that “having carefully considered the evidence of Dominic and of John”, it was appropriate to accept their evidence and their “denial that there was any ‘collaboration’ with the other in the affidavit evidence”: at PJ [355]. His Honour went on to find that, even if there was a degree of collaboration between the two, he was not satisfied that he ought to reject the evidence given by them on the topic of conversations with Giuseppe and the deceased: at PJ [364].

18. [53]

    The primary judge gave the following lengthy summary of the documentary medical evidence, including from hospital admission notes and records (at PJ [855]):

19. [54]

    It should be noted that the reference in (13) is to what will be referred to later in these reasons as the “Prasetyo letter” about which the Appellant made extensive submissions on appeal: see [76] ff below. The reference in (22) was referred to by the Appellant in her written submission on appeal. It is self-evident that his Honour did take this evidence into account given his reference to it in the list of salient medical information. The note cuts both ways, at best, for the Appellant. It records a concern of the family as to “recurrent falls”, but the concern falls far short of the condition of cognitive impairment, hallucinations and like behaviour to which the Appellant and her witnesses attested as having been manifest in the deceased either in 2009 or indeed for many years before.

20. [55]

    Professor Watson and Associate Professor Ryan gave joint expert evidence which the primary judge summarised. At PJ [878], his Honour identified seven “areas of agreement” between the experts:

21. [56]

    The primary judge at PJ [883] preferred the evidence of Associate Professor Ryan where there was disagreement between the experts. The central area of disagreement between the experts was that Professor Watson opined that “there was evidence of … a major psychiatric disturbance” while Associate Professor Ryan was of the view that the deceased’s depression was not a major psychiatric disturbance and that any fluctuating behaviours could be attributed to a cognitive impairment. In respect of these issues, Professor Watson accepted that he was not an “expert psychiatrist”: at PJ [879].

22. [57]

    The primary judge identified a further four areas of disagreement between the experts (at PJ [880]):

23. [58]

    On the basis of the concurrent expert evidence, the primary judge (at PJ [882]) was satisfied of the following matters:

24. [59]

    The primary judge then set out the relevant principles as to testamentary capacity. His Honour summarised the evidence and drew conclusions at some length. Ultimately, the primary judge admitted the 2009 Will to probate, holding that Dominic and John had discharged their onus: at PJ [939]. In so holding, his Honour reasoned as follows:

25. [60]

    The primary judge held as to the deceased’s knowledge and approval of the contents of the 2009 Will (at PJ [933]):

26. [61]

    Although his Honour stated that it was not strictly necessary to decide the issue, the primary judge held that he would have found for Dominic and John in the Trust Proceedings: at PJ [940]-[941].

27. [62]

    As stated briefly at [35] above, Dominic and John’s case was that the Kemps Creek property was held on trust for them, by the deceased’s estate, as tenants in common in equal shares. This claim was based upon an estoppel said to arise from reliance on various promises made by the deceased and Giuseppe that Dominic and John would have beneficial ownership of the Kemps Creek property, and also from encouragement by the deceased and Giuseppe for Dominic and John to improve and renovate the property. The case, as pleaded, was that the deceased and Giuseppe promised to leave the Kemps Creek property to Dominic and John if they made the property liveable, paid outgoings on the property and agreed to not receive any other real estate owned by the deceased or Giuseppe.

28. [63]

    It was not relevantly in dispute that Dominic and John moved to the Kemps Creek property in early 1989, and that they had undertaken significant renovations to the property to make it liveable to house their respective families, although there was some dispute as to the timing, extent and costs of the renovations.

29. [64]

    The key promise said to give rise to the estoppel was described as the “tomato patch conversation”, in which, on Dominic and John’s case, Giuseppe had said to them in a tomato patch on the Kemps Creek property that Rose and Alan had taken Giuseppe and the deceased to make a will, which was said to be “very bad”. Dominic and John both deposed that Giuseppe had asked them whether they would be happy to stay on the Kemps Creek property for the remainder of their lives, keep the property and get none of the other properties, knowing that the Kemps Creek property may end up of little worth. They both indicated that they agreed with that plan, and that the deceased had “nodded” at it.

30. [65]

    The primary judge found that the tomato patch conversation had occurred but in 1993 or 1994 and not within a year of the Respondents moving onto the property, contrary to Dominic’s evidence: at PJ [543], [975]. The primary judge further held (at PJ [976]-[977]):

31. [66]

    The primary judge also accepted Dominic and John’s evidence that they relied upon the promises of Giuseppe and the deceased and did not seek alternative accommodation, and that they would not have carried out the improvements to the property which they did absent the promises which were made: at PJ [978].

32. [67]

    Although the evidence as to the amount spent on the improvements was vague, his Honour held that “it was not put that the work done, the costs incurred, whatever they were, and not looking for alternative accommodation … over the years were done, or incurred, as gratitude for being able to live on the Kemps Creek property”: at PJ [986].

33. [68]

    Further, the primary judge noted that Dominic and John had properly conceded that they would be disentitled from receiving any other real estate (or a share of the proceeds of the sale thereof) out of the deceased’s estate as a result of their agreement to not receive any other property from Giuseppe or the deceased: at PJ [990].

34. [69]

    The primary judge concluded in respect of the Trust Proceedings as follows:

35. [70]

    In relation to Dominic and John’s claim for family provision, the primary judge set out the relevant principles at length (at PJ [991]-[1022]) before holding that adequate provision had been made for Dominic and John pursuant to the 2009 Will: at PJ [1037]. However, his Honour went on to hold that, if he was wrong in relation to the issues decided in favour of Dominic and John, under the rules of intestacy, their entitlement to receive one-sixth of the deceased’s estate would be insufficient to enable them to purchase alternative accommodation such that adequate provision for their advancement in life was not made: at PJ [1042].

36. [71]

    After having regard to the contributions made by Dominic and John to the Kemps Creek property, the dependency of Dominic and John on the deceased for the provision of accommodation and the fact that making some provision for Dominic and John would not unduly affect the financial resources of the other beneficiaries to the estate, the primary judge found that both should receive a lump sum equating to the greater of one-third of the net proceeds of sale of the Kemps Creek property or $2.2 million: at PJ [1051].

37. [72]

    It may be noted for completeness that the primary judge went on to find that the 2009 Will did not adequately provide for Joseph’s proper maintenance or advancement in life. As such, his Honour held that Joseph was entitled to receive a lump sum of $897,450, or the net proceeds of the sale of the No 6 Bossley Park property: at PJ [1061].

Challenges to Factual Findings

1. [73]

   The primary judge made a series of factual findings on the path to his ultimate conclusions in relation to both the Probate and Trust Proceedings. Some 15 findings were challenged by the Appellant in relation to the Probate Proceedings with a further seven challenges in relation to the Trust Proceedings.

2. [74]

   Given the challenge to the whole of the primary judgment, it is first necessary to work through the 15 factual challenges in relation to the Probate Proceedings prior to turning to the grounds of appeal proper and conducting the “real review” required by s 75A of the Supreme Court Act.

3. [75]

   The first, second, third and fourth factual challenges each relates in some respect to the primary judge’s findings as to whether the deceased was experiencing auditory and visual hallucinations or “florid symptoms” at the point at which the 2009 Will was made. Each of the first to fourth factual challenges also turns to some degree on the content of a letter from a Consultant Physician and Geriatrician, Dr Davin Prasetyo (Dr Prasetyo), to Dr Thomas Tjeuw (Dr Tjeuw), a general practitioner who had referred the deceased to Dr Prasetyo. The letter, some three pages long, is dated 27 February 2020. Dr Prasetyo was not called. The Appellant submitted that “It is difficult to overstate the importance of Dr Prasetyo’s report.”

4. [76]

   The letter was produced by the Fairfield Aged Care Home (where the deceased lived for a period prior to her death) in response to a subpoena which was returnable on 14 October 2022, roughly two weeks before the commencement of the first instance hearing. The subpoena was issued at the request of Rose on 30 September 2022. The return of the subpoena post-dated the filing of Rose’s affidavits (and those of the witnesses she called). It was adduced as an addition to exhibit NB3 on the fourth day of the hearing.

5. [77]

   The first two paragraphs of the letter are necessary to reproduce in full:

6. [78]

   The rest of the letter continues in a detailed fashion, recounting extensive discussions with Dominic about the deceased’s health and medical history, as well as with the nursing staff at the Fairfield Aged Care Home. It also records advice that Dr Prasetyo gave to Dominic.

7. [79]

   Dominic was cross examined in relation to the letter. Before discussion of the letter itself, he denied ever having observed his mother having hallucinations as early as 2005, saying “Absolutely not” in response to the suggestion of such observations. He similarly denied, in strong terms, having any recollection of Dr Prasetyo or Dr Tjeuw. After being shown the letter, he continued to deny knowing who Dr Prasetyo was or having spoken to him about his mother’s medical history or condition in early 2020. Dominic maintained this denial in strong terms:

8. [80]

   He equally denied that he was deliberately lying on the witness stand.

9. [81]

   It was also pointed out in cross examination that Dr Prasetyo had recorded in the letter that Dominic told him that Connie held the deceased’s power of attorney, about which Mr Condon SC, who appeared for Rose at trial, inquired as follows:

10. [82]

    Dominic later denied remembering at any stage that Connie held a power of attorney for the deceased.

11. [83]

    Before turning to the individual factual challenges, the most significant aspect of the Prasetyo letter was that it described the deceased as starting to have auditory and visual hallucinations “about 15 years ago”. That would have dated the beginning of such behaviour in about 2005.

12. [84]

    The expert witnesses were pressed in relation to this reference. Their views were elicited against the background that they had not seen this document when preparing their evidence but had reviewed a vast body of the deceased’s other medical records. As shall be seen, Associate Professor Ryan expressed the view, in light of that other evidence, that what Dr Prasetyo was told “wasn’t accurate …. That … would be the most likely thing”. Associate Professor Ryan confirmed to the primary judge that he had not seen anything in the medical records contemporaneously made that would support the proposition recorded in the Prasetyo letter he was taken to by Mr Condon. Professor Watson was less definitive but surmised that any such behaviour as early as 2005 could have related to urinary tract infections.

13. [85]

    The first factual challenge was to the primary judge’s finding at PJ [57] that “[t]here were no contemporaneous records that could be used to determine whose account of events at various times was to be believed” (emphasis added).

14. [86]

    The Appellant contended that the deceased’s medical records corroborated the evidence filed by Rose and her witnesses. In particular, the Appellant pointed to the Prasetyo letter as supporting Rose’s contention that the deceased was experiencing florid symptoms “15 years ago” in around 2005. She also relied on the following passage in a note written by Dr Joseph to Dr Romeo on 20 October 2014 after reviewing the deceased, who was brought in by Connie:

15. [87]

    The Respondents submitted that neither Dr Prasetyo’s letter nor Dr Joseph’s note could be characterised as primary records “corroborating” that the deceased was experiencing florid symptoms at the time she created the 2009 Will. Rather, it was put that those documents merely captured the deceased’s medical history as reported by someone else on behalf of the deceased many years after the reported events and in a manner uncorroborated by the contemporaneous medical records.

16. [88]

    In relation to Dr Joseph’s note, the Respondents also submitted that there was some discord between Dr Joseph’s record that the deceased’s memory impairment was “noticed over the last seven years” and her record that “the decline” was noticed “six years ago”. Ms Needham SC, who appeared for the Respondents on appeal and at first instance, also drew attention to the fact that the reference to “seven years” appeared to be confined to a “short-term memory impairment”.

17. [89]

    On the Respondents’ case, the first medical records which corroborated the presence of the deceased’s delusionary symptoms were from 2010. In particular, Dr Romeo’s medical notes from 14 December 2010 recorded that:

18. [90]

    I would dismiss the first factual challenge. His Honour’s observation was about contemporaneous documents and it was made in the context of what his Honour correctly described (at PJ [57]) as “the diametrically opposed lay evidence about the medical condition and mental state of the deceased at, or about, the time she made the 2009 Will.” Neither of the documents relied upon were contemporaneous with those events and the recollections referred to in those documents were given many years after 2009. Dr Joseph’s letter is also considered further at [224] ff below.

19. [91]

    The second factual challenge was to the finding of the primary judge at PJ [855(13)] that:

20. [92]

    In making the finding at PJ [855(13)], the primary judge did not make any reference in terms to the Prasetyo letter however the language of this paragraph (other than the reference to Rose) does correspond to that letter. If the primary judge was referring to the letter, as I think he must have been, he misattributed to Rose, rather than Dominic, the suggestion that the deceased suffered hallucinations from 2005.

21. [93]

    The Respondents submitted that the timeline of the deceased’s cognitive decline recorded in the Prasetyo letter should not be given any weight because there is no contemporaneous support for it and, as already foreshadowed, this was a view adopted by the experts who gave the following evidence:

22. [94]

    The significance of the primary judge’s apparent misattribution of the report to Dr Prasetyo of the deceased’s auditory and visual hallucinations to Rose rather than Dominic in PJ [855(13)] is threefold.

23. [95]

    First, if the reference to 15 years was accurate and not a typographical error, it contradicted Dominic’s evidence as to the timing of his late mother’s suffering of auditory and visual hallucinations. In his affidavit of 19 October 2020, Dominic said the following (which was admitted as a statement of his belief, rather than to prove the truth of the opinion stated therein):

24. [96]

    Relatedly, on the premise that the reference to 15 years ago was accurate, it undermines other witnesses in Dominic and John’s camp who similarly dated the deceased’s suffering of hallucinations as after the making of the 2009 Will.

25. [97]

    Second, Dominic’s disavowal of any recollection of any interactions with Dr Prasetyo, which was, according to Dr Prasetyo’s letter, only eight months before he made the affidavit referred to above, at the very least casts doubt on the quality of his recollections.

26. [98]

    Third, on the footing that the letter accurately recorded Dominic’s recollection of the timeframe when his mother first started having auditory and visual hallucinations and developing paranoia, it supplied powerful corroboration of the evidence of Rose and others whose evidence the primary judge did not accept as to the deceased’s condition. This evidence included that of Alan Wild, Rose’s husband, who deposed that:

27. [99]

    Rose’s evidence, given in an affidavit dated 22 October 2020, was that:

28. [100]

    Rose also gave the following evidence of the deceased’s mental state in July 2009:

29. [101]

    Although Rose’s affidavit evidence had suggested that the deceased was experiencing florid symptoms, the Respondents submitted, consistent with the views of the two experts, that the date those symptoms were said to have emerged (2005) set out in the Prasetyo letter should not be given any weight as there was no contemporaneous support for it and the letter was merely recounting a chronology of the deceased’s medical history provided by one of her children. In those circumstances, it was put that the timing of the emergence of those symptoms (“15 years ago”) recorded in the Prasetyo letter could have been a typographical or other error.

30. [102]

    In any event, the Respondents submitted that the Prasetyo letter did not in fact mirror the Appellant’s case as to the timing of the development of the deceased’s hallucinations. As set out above, Rose’s recollection was that the deceased’s hallucinations did not begin “15 years ago” in about 2005 but rather, much earlier in 1992.

31. [103]

    I would accept that the primary judge has inadvertently, but mistakenly, referred to Rose rather than Dominic in PJ [855(13)]. What, if anything, flows from that misattribution will be considered in the context of the grounds of appeal, but the view of the two experts, and Associate Professor Ryan in particular, as to the likely inaccuracy of the reference to “15 years ago” robs this letter of the forensic force the Appellant sought to place upon it.

32. [104]

    The Appellant challenged the primary judge’s finding at PJ [857] that:

33. [105]

    The Appellant’s table of challenged findings unhelpfully omitted the opening italicised words of this sentence. Also unhelpfully, five of the seven references which the Appellant supplied in that table as supporting the alternative finding contended for were from the evidence of Rose or other witnesses called by her. These references did not undermine the complained of statement by the primary judge as his observation was expressly made by reference to there being little to “support the evidence given by Rose and other of her witnesses”. The primary judge’s observation was correct and the factual challenge should be dismissed.

34. [106]

    The fourth factual challenge was to the primary judge’s finding (at PJ [770], [786], [798], [837] and [857]) that if the deceased’s “florid symptoms” had been mentioned to Dr Romeo, or if he had observed them himself, then they would have appeared in his progress notes relating to the deceased.

35. [107]

    The Appellant submitted that the appropriate finding was that Dr Romeo’s notetaking was deficient, and his notes did not comprehensively record the deceased’s medical conditions.

36. [108]

    At PJ [836]-[838], the primary judge said the following in relation to the absence of any notes by Dr Romeo in relation to the existence of any “florid symptoms” in 2010:

37. [109]

    In support of the factual finding contended for by the Appellant, reference was made to the fact that the joint experts had been critical of Dr Romeo’s notetaking. When being cross examined as to the deceased’s cerebrovascular accidents (CVAs) in the early 2000s, Professor Watson gave evidence that Dr Romeo’s notetaking was “scant”. In his expert report, Professor Watson commented that:

38. [110]

    Again, when giving evidence as to the impact of a “not … severe” stroke in 2004 on the severity of the deceased’s cerebrovascular disease, Professor Watson said the following:

39. [111]

    The Appellant also relied on the Prasetyo Letter as supporting the fact that the deceased was experiencing florid symptoms in the form of auditory and visual hallucinations as early as 2005.

40. [112]

    The Respondents’ response was twofold. First, the Respondents argued that “florid symptoms” are recorded in Dr Romeo’s notes on 14 December 2010 when the deceased reported having auditory and visual hallucinations and Dr Romeo then (wrongly, in Professor Watson’s opinion) diagnosed her with schizophrenia and prescribed anti-psychotic medication. It was put that this suggests that Dr Romeo only noted the symptoms when they occurred and were mentioned to him, which was much later than the Appellant and her witnesses recalled.

41. [113]

    Second, the Respondents pointed out that the fact that the experts (primarily, in this case, Professor Watson) said that Dr Romeo’s recordkeeping was deficient does not necessarily mean that he was told of, or actually observed, any such symptoms, and then failed to record them.

42. [114]

    The challenge to the factual finding, namely that “if the deceased’s ‘florid symptoms’ had been mentioned to Dr Romeo, or if he had observed them himself, they would have appeared in Dr Romeo’s progress notes”, should be rejected. The two answers advanced by the Respondents are persuasive. That Dr Romeo may not have kept records to the standard Professor Watson would wish to see does not undermine the logic of the primary judge’s reasoning which was entirely orthodox, especially in circumstances where the doctor did make a note in December 2010 recording the deceased’s symptoms.

43. [115]

    His Honour’s conclusions based upon the absence of earlier notes of florid symptoms formed part of his overall assessment of the evidence. It is not as though no notes were taken by Dr Romeo at relevant times. The absence of a record of florid symptoms in such notes was more likely than not to have been because they did not exist or, even if they existed, were not assessed to be of sufficient significance as to warrant noting.

44. [116]

    The fifth, sixth and seventh factual challenges each turned on factual findings made by the primary judge in relation to aspects of Mr Puleo’s evidence as to his meetings with the deceased in relation to the 2009 Will and the instructions she gave.

45. [117]

    This challenge was to the primary judge’s finding (at, amongst other places, PJ [245]) that the deceased and Mr Puleo met to obtain her instructions for a will on a separate occasion prior to the execution of the 2009 Will on 18 September 2009. In the Appellant’s submission, there was insufficient evidence to establish that this meeting occurred.

46. [118]

    This challenge needs to be understood in the context where, in an early affidavit, Mr Puleo suggested that the taking of instructions in relation to and execution of the Will all occurred on one day. The primary judge dealt with this matter at PJ [395]-[397]:

47. [119]

    His Honour’s conclusion plainly entailed an acceptance of Mr Puleo’s evidence of his “normal approach”, referred to at the conclusion of PJ [396]. Earlier, at PJ [384], the primary judge held:

48. [120]

    The primary judge accepted Mr Puleo as an experienced solicitor (as he was) and a creditworthy witness. The evidence of his practice was not glaringly improbable, indeed far from it. The following two passages from the judgment are also germane to the finding challenged, and to the extent that the primary judge had the benefit of observing Mr Puleo give his evidence (in the course of which he was extensively challenged), this Court must give a proper level of deference to the advantage enjoyed by the primary judge in accordance with Fox v Percy.

49. [121]

    At PJ [244]-[245], the primary judge reasoned as follows in relation the date of a first meeting between the deceased and Mr Puleo:

50. [122]

    His Honour added the following in relation to the first meeting at PJ [417]-[421]:

51. [123]

    In my view, for the reasons given above, there was sufficient evidence to support the primary judge’s conclusion that Mr Puleo met with the deceased to obtain her instructions for the Will on an occasion prior to its execution on 18 September 2009.

52. [124]

    The sixth factual challenge was to the primary judge’s finding (at PJ [384]) that Mr Puleo gave “specific evidence that he discussed with the deceased the persons who had a claim on her bounty, and the extent of her estate”.

53. [125]

    The Appellant’s contention was that Mr Puleo could not recall the questions he asked the deceased.

54. [126]

    That Mr Puleo (unsurprisingly) could not recall the questions he asked the deceased did not negative the challenged finding of the primary judge. As the passages set out above in relation to the fifth factual challenge make clear, Mr Puleo did give evidence of the kind described at PJ [384]. Moreover, the primary judge was in the best position, and certainly a vastly superior position than this Court, to assess the credibility of Mr Puleo’s recall. The primary judge found Mr Puleo, “[h]aving seen him in the witness box”, to be a “fundamentally honest witness” who did not “exaggerate, or play down, facts to suit a particular narrative or agenda”: at PJ [451]-[452].

55. [127]

    The sixth factual challenge should be rejected.

56. [128]

    The seventh factual challenge was to the primary judge’s finding at PJ [384] (reproduced at [119] above) and [394] that Mr Puleo discussed the extent of the deceased’s estate with her. In PJ [394], his Honour relevantly observed that “[i]n complying with his obligations, as a lawyer, it would have been necessary to discuss with her the property that she owned as well as the property that she would receive by survivorship, or pursuant to the terms of Giuseppe’s Will.”

57. [129]

    The finding challenged was based upon the evidence of Mr Puleo’s usual practice as well as Mr Puleo’s evidence, which the primary judge accepted.

58. [130]

    The finding contended for by the Appellant was that “Mr Puleo identified the relevant properties based on the title deeds held by him.” There was no issue as to whether Mr Puleo had the deeds. He indicated this when under cross examination. His evidence was that:

59. [131]

    As with the sixth challenge, there is no necessary or obvious inconsistency between the challenged finding made by the primary judge and the finding contended for by the Appellant. In any event, the primary judge’s acceptance of Mr Puleo’s evidence was in part based on his long experience, including in the preparation of wills, and the advantages enjoyed by the primary judge in observing Mr Puleo give his evidence.

60. [132]

    The seventh factual challenge should be rejected.

61. [133]

    The eighth and ninth factual challenges were to the primary judge’s findings (at PJ [415], [882(1)], [908], [915] and [929]) that the deceased sought to include a gift of jewellery to her daughters in her Will which was not included in Giuseppe’s Will and gave instructions accordingly.

62. [134]

    This challenge is sustained and was accepted by the Respondents, although the acceptance of this does not mean that the deceased did not give the relevant instructions in relation to the 2009 Will.

63. [135]

    Clause 11 of Giuseppe’s Will provided that:

64. [136]

    Clause 7 of the 2009 Will provided that:

65. [137]

    It may be noted that the addition of the words “in equal shares” in the 2009 Will meant that it could not be said that cl 7 was simply copied from Giuseppe’s Will. However, the Respondents conceded that the gift of jewellery was a matter included in Giuseppe’s Will. Nonetheless, it was argued that the primary judge’s finding to the contrary was insufficient to vitiate his Honour’s findings as to testamentary capacity. The Respondents submitted that the similarity between the wills of Giuseppe and the deceased was consistent with the deceased’s instructions that she would like a will reflecting their shared testamentary intentions and was not indicative of her having lacked testamentary capacity.

66. [138]

    In any event, the Respondents submitted that the deceased had made a more significant change to her will when compared with Giuseppe’s Will, namely the creation of a trust of residue for Joseph by way of cl 8(f). The Appellant submitted that Mr Puleo’s evidence was only that the deceased wanted Joseph to be provided for such that the fact that the residue share was held on trust, rather than gifted outright, could not shed any light on the deceased’s testamentary capacity.

67. [139]

    The significance of the primary judge’s conceded error is considered more fully in the context of consideration of the grounds of appeal, noting that the primary judge undoubtedly attributed some significance to his mistaken finding that the jewellery was not bequeathed in Giuseppe’s Will: see PJ [882(1)] reproduced at [58] above.

68. [140]

    The tenth factual challenge was to the primary judge’s finding (at PJ [382], [386], [411] and [580]) that the “deceased did not have any difficulty understanding or communicating with Mr Puleo.” The precise finding at PJ [382] was that “Mr Puleo concluded that the deceased did not have any difficulty understanding him” (emphasis added).

69. [141]

    The Appellant submitted that the preferred finding of the Court would be that the “deceased spoke Calabrese whilst Mr Puleo spoke Sicilian.” There was no expert evidence led in the case about the extent of differences between the Calabrese and Sicilian dialects.

70. [142]

    By way of an affidavit sworn on 20 October 2020, Mr Puleo deposed to the following:

71. [143]

    The Appellant accepted that, although the dialects were “mutually intelligible”, they were not the same and submitted that this added an “additional level of challenge in relation to the communication”. To this effect, she pointed to the following evidence of Dr Romeo:

72. [144]

    Mr Puleo gave evidence, accepted by the primary judge, that he could communicate with the deceased and Giuseppe, who spoke the Calabrian dialect.

73. [145]

    It was also submitted, and accepted by the primary judge, that Mr Puleo had been able to communicate with the deceased and her husband over an extended period of time and that they were able to understand one another, despite any differences between their native Sicilian and Calabrese dialects. Mr Puleo gave the following evidence under cross examination as to the differences between the dialects:

74. [146]

    There is no basis for interfering with the primary judge’s finding by reason of the differences in dialects. Mr Puleo’s evidence was plainly accepted by the primary judge with all the advantages he enjoyed.

75. [147]

    The eleventh factual challenge was to the primary judge’s finding (at PJ [393]) that “Mr Puleo was in a good position to assess [the deceased’s] capacity ‘as she was not a complete stranger to him’.” Again, the terms of the challenge are based upon an incomplete quotation of what the judge actually said at PJ [393]. The challenged finding was prefaced by the words: “Even though he had not seen the deceased for eight years, at the time he first obtained instructions to prepare her Will, …” In other words, the primary judge was cognisant of the evidence as to the last time Mr Puleo saw the deceased and took that into account in making his finding. That finding was also qualified by the words “as she was not a complete stranger to him”.

76. [148]

    Mr Puleo’s evidence was that “Mrs Meduri was no stranger” and that he “didn’t notice any change from when [he] saw her last time” eight years prior. He also gave evidence that he had been “dealing with the family since 1988”.

77. [149]

    Taking these matters into account, there is no cogent basis for the challenge to this finding.

78. [150]

    The Appellant challenged what was characterised as the primary judge’s finding at PJ [912] that “Mr Puleo would have detected cognitive impairment if any were present in the deceased.”

79. [151]

    At PJ [912], the primary judge held that:

80. [152]

    The Appellant submitted that, consistent with her general complaint under ground 3 of the appeal that the evidence of the joint experts was given insufficient weight, the view of the joint experts should have been adopted resulting in a finding that “even an experienced lawyer [like Mr Puleo] may have had real difficulty detecting the severity of [the deceased’s] cognitive impairment just from talking to [her].” Mr Owens argued that it is “difficult … to attribute generally to a class of professional, ie, a solicitor experienced in making wills, some general ability to detect cognitive impairment” without an understanding of “what their training was, what their client make-up was, what they’d seen in the past [and] what they’d learnt about those clients.”

81. [153]

    In support of this factual challenge, the Appellant relied on the following evidence of the joint experts but, on analysis and on balance, it tends to support, rather than undermine, the primary judge’s challenged finding:

82. [154]

    The Respondents submitted that the primary judge did not find at PJ [912] that “Mr Puleo would have detected cognitive impairment if any were present in the deceased”. Rather, his Honour held that, as a consequence of his experience, Mr Puleo was “especially aware of what he should be looking for, and was satisfied, having taken instructions from the deceased, that she had capacity.” Mr Puleo had been a solicitor for some 35 years when he took instructions in relation to the preparation of the deceased’s will in 2009.

83. [155]

    The Respondents also submitted that the primary judge’s finding at PJ [912] was correct in circumstances where, as set out in the following passage of Mr Puleo’s evidence, he had refused to make a will for the deceased in 2014 due to his view that she lacked capacity:

84. [156]

    A file note taken by Mr Puleo on 6 November 2014 recorded the following:

85. [157]

    This evidence gave further support to the challenged finding. The challenge should be rejected.

86. [158]

    The thirteenth factual challenge was to the primary judge’s finding (at PJ [619] and [621]) that “Dominic did not intend to dissuade or deter Jake from giving evidence in the proceedings by threatening him.” The Appellant submitted that the primary judge ought to have found to the contrary.

87. [159]

    As noted at PJ [607]-[608], Dominic was convicted on 1 June 2021 in the Local Court for an offence of stalking and intimidation with intention to cause fear of physical or mental harm in relation to an interaction with Jake which occurred on 8 November 2020. His appeal to the District Court was dismissed on 13 August 2021. The primary judge held the following in relation to those events:

88. [160]

    Mr Owens accepted during the hearing of the appeal that it was not an element of the offence for which Dominic was ultimately convicted that he intended to deter Jake from giving evidence. However, it was submitted that there was a “compelling inference” that, in circumstances where there was “no evidence of any disharmony other than the event” and “in light of the timing, and the absence of any other explanation for why he would want to intimidate with an intention of causing [fear of] harm” that Dominic had done so “to stop [Jake] giving evidence”. It was argued that the primary judge did not give any “reasoned account” at PJ [621] of why his Honour did not accept that Dominic had threatened Jake with the intention of deterring him from giving evidence.

89. [161]

    The Respondents contended that the finding that was made was open to the primary judge, and noted that Jake attended and gave evidence nonetheless. It was also noted by the Respondents that Dominic “absented himself for that portion of the case to avoid any issues arising”.

90. [162]

    Although the primary judge did not find Dominic to be a “person of great sophistication” (at PJ [624]) and considered that “certain aspects of his evidence cast doubt” on his reliability (at PJ [623]), after having seen and heard Dominic give his evidence, the primary judge was satisfied that Dominic was “telling the truth and was … a generally reliable witness”: at PJ [624].

91. [163]

    The challenged finding involved an express acceptance by the primary judge of Dominic’s denial of the intention attributed to him. The Appellant sought by the challenge to establish a positive proposition of a very serious kind based in part from inference as to the words uttered by Dominic. In rejecting the challenge, I note the primary judge’s finding as to Dominic’s denial coupled with s 140(1) of the Evidence Act 1995 (NSW).

92. [164]

    The fourteenth factual challenge was to what was said to be the primary judge’s finding (at PJ [824]) that “Dr Romeo decided to refer the deceased to Dr Joseph in 2014 as he felt he was unable to assist the deceased on his own.” It is not at all clear that this was a finding by the primary judge so much as simply an account of Dr Romeo’s evidence – the sentence from which the impugned “finding” is taken commences with the words “Dr Romeo recalled …”

93. [165]

    In any event, the materiality of this matter is peripheral at best. This is confirmed by the finding contended for by the Appellant, namely that Dr Romeo only referred patients for assessment who were a danger to themselves or others, or where the patient or their family specifically requested an assessment, and that Fairfield Hospital requested that Dr Romeo arrange the assessment with Dr Joseph.

94. [166]

    This challenge should be rejected on the basis that it misstated the judgment insofar as what was presented was a finding by the judge rather than an account of Dr Romeo’s recollection. Its relevance to the matters in dispute was also exiguous, at best.

95. [167]

    The fifteenth factual challenge was to what was said to be the primary judge’s finding (at PJ [909], [915], [926] and [928]) that “the deceased had a long-held pattern of testamentary intentions.” The Appellant submitted that the primary judge ought to have instead found that “the deceased had never made a Will prior to 18 September 2009.”

96. [168]

    The closest the primary judge came to making a finding of the kind stated in the Appellant’s table of factual challenges was at PJ [909] where what was said was that:

97. [169]

    His Honour’s clear purpose in making this statement was that there was a broad consistency between the 2009 Will and Giuseppe’s Will. That was correct and it would be surprising if a husband and wife who had been married for such a long time with many children did not share a common testamentary disposition.

98. [170]

    The deceased knew the terms of Giuseppe’s Will, having been an executor of that will, had participated in discussions about its terms and the Kemps Creek property, including during the tomato patch conversation (see [64] above), had repeated her intention with regards to the Kemps Creek property on numerous occasions, and had expressed her intention that her will be the same as Giuseppe’s to Mr Puleo. Ms Needham submitted that it was “completely within the course of human experience that a person who had been married for 61 years and knew the terms of her husband’s will” would be able to express to a solicitor that she wished for her will to reflect those terms.

99. [171]

    The challenge to the innocuous statement by the primary judge should be rejected. Properly understood, it contained no error requiring its rejection.

Grounds of Appeal – Probate Proceedings

1. [172]

   By Amended Notice of Appeal, the Appellant propounded seven grounds of appeal in the Probate Proceedings:

Consideration

1. [173]

   The manner in which the Amended Notice of Appeal was drafted, the wholesale nature of the challenges to the primary judge’s reasoning and the extensive detail and lines of attack relied upon, have made the preparation of these reasons for judgment difficult and dictated their length. Grounds 1 and 2 were expressed at a high level of generality. Underpinning grounds 3 and 4 were many discrete challenges to the primary judge’s assessments of the evidence of numerous lay witnesses.

2. [174]

   Even though it was accepted that Fox v Percy required the Appellant to establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”, the Appellant sought to rise to this forensic challenge with tightly argued attacks on particular findings made by the primary judge.

3. [175]

   Before turning to grounds 1-3, it is convenient to deal with the discrete grounds of appeal relating to Mr Puleo (ground 4), David DiMaria (ground 5) and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) and the failure to call Connie (ground 6). The question of costs raised by ground 7A is dealt with at [268] ff below.

Ground 4 – Mr Puleo

1. [176]

   Ground 4 of the appeal was in these terms:

2. [177]

   Mr Puleo acted for the Respondents in the contested proceedings from about 24 August 2020 until 29 July 2021 when his son, Mr Puleo Jnr, took over as the solicitor on record for the Respondents. Ms Anthea McIntyre, the Appellant’s solicitor, wrote to Mr Puleo on 13 October 2020 requesting that he cease to act for the Respondents on the basis that Mr Puleo had been the solicitor who prepared the 2009 Will and would thus be a material witness in the proceedings and referring to r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW).

3. [178]

   At a directions hearing on 28 June 2021, the primary judge instructed Mr Puleo to provide the Appellant’s legal representatives with information about the extent of his involvement in “conferences and giving instructions, et cetera”.

4. [179]

   On 12 July 2021, Mr Puleo informed Ms McIntyre that, in relation to the 23 affidavits which had by that stage been filed in the proceedings, he was responsible for drafting those of Ms Williams sworn on 9 October 2020, the executors sworn on 9 October 2020, Connie sworn on 22 April 2021, Graham Ball sworn on 18 May 2021 and Giuseppe Bonarrigo sworn on 11 June 2021. Mr Puleo set out that he had either not been involved in the preparation of any of the other affidavits or had only been involved to the extent that he had attended conferences with the witnesses, arranged for formal details to be included on the affidavit and for the relevant witness to attend his office for him to witness their signatures and/or acted as a conduit between counsel and the witness in relation to the affidavit.

5. [180]

   On 29 July 2021, Puleo Lawyers filed a Notice of Change of Solicitor. Ms McIntyre again wrote to Puleo Lawyers on 3 August 2021 seeking further details concerning Mr Puleo’s involvement in the preparation of the 23 affidavits filed. On 10 August 2021, Mr Puleo Jnr refused to provide any further information beyond that which had been provided on 12 July 2021.

6. [181]

   Mr Puleo himself was the deponent of the 24th affidavit filed in the proceedings. It was sworn after Mr Puleo Jnr became the solicitor on record.

7. [182]

   Mr Puleo gave the following evidence under cross examination as to his involvement in the preparation of the proceedings prior to 29 July 2021:

8. [183]

   After considering the law concerning lawyers acting in proceedings where they may be required to appear as a witness, at PJ [292]-[294], the primary judge said the following in relation to the significance of Mr Puleo’s involvement in the contested proceedings:

9. [184]

   This clear exposition of his Honour’s reasoning process indicates that he was fully conscious of Mr Puleo having continued to act when he should not have done so. The primary judge also addressed the question as to whether Mr Puleo’s role as a witness was materially compromised by having acted for Dominic and John or had resulted in a miscarriage of justice.

10. [185]

    What was put in written closing submissions at first instance was far less strong than that which is advanced in ground 4(a) of the Notice of Appeal. It was simply argued that there was “a basis to infer that [Mr Puleo’s] duty to his clients, combined with his personal interest in rebuffing a perceived attack on his professionalism, clouded his objectivity when deposing to the deceased’s capacity.” His Honour plainly did not accept this submission, although accepting that Mr Puleo should have formally ceased to act earlier than he did.

11. [186]

    The primary judge accepted Mr Puleo’s evidence that junior counsel was predominantly responsible for the preparation of all affidavit evidence in the proceedings and that Dominic, John and Mr Puleo had not been present while the Respondents’ other witnesses gave evidence in the proceedings. Mr Puleo’s account that junior counsel primarily handled the preparation of lay evidence was not challenged in cross examination and was accepted by the primary judge who had a distinct advantage over this Court in making that assessment.

12. [187]

    Insofar as the primary judge employed the phrases “prejudiced the administration of justice” and “miscarriage of justice” in the passage from his reasons set out at [183] above, his Honour was responding to the relatively faint attack on Mr Puleo, namely that it was open to infer that his objectivity was clouded. I do not read his Honour’s remarks as amounting to a “holding that before the conduct of Mr Puleo could be a relevant factor in the assessment of the evidence of the first and second respondents and their witnesses, it was necessary for the appellant to show that Mr Puleo’s conduct had ‘prejudiced the administration of justice’ or ‘resulted in a miscarriage of justice’.”

13. [188]

    I would reject ground 4 of the appeal in the Probate Proceedings.

Ground 5 – David DiMaria

1. [189]

   This ground of appeal pertained to the primary judge’s rejection of parts of paragraphs 26 and 30 as well as all of paragraphs 27, 28 and 29 of the affidavit evidence of David DiMaria “on the basis that it was unclear what period of time the evidence related to.”

2. [190]

   The relevant section of David’s affidavit, sworn 23 May 2021 (with the rejected material struck through), was as follows:

3. [191]

   As set out at [45] above, David did not respond to a subpoena to attend and was not called as a witness in the proceedings. His affidavit was nonetheless admitted into evidence.

4. [192]

   On the sixth day of the hearing at first instance, the following exchange took place in relation to the admissibility of various parts of David’s affidavit:

5. [193]

   The Appellant submitted that it was clear from the way in which paragraph 23 of David’s affidavit mentioned the period “prior to his [Giuseppe’s] death in July 2009” that the section of the affidavit containing paragraphs 26-30 related to a time before July 2009 such that this evidence was wrongly excluded by the primary judge. It was then argued that this evidence ought to have been given great weight in corroborating the account of the deceased’s testamentary capacity given by the Appellant and her witnesses. It was put that this was because David was a “disinterested witness” who had not read any of the affidavits filed in the proceedings, nor spoken to any party about the nature of the proceedings or the positions being taken in them.

6. [194]

   In a sense, the Appellant’s argument has force insofar as the recollection was placed prior to Giuseppe’s death. In another sense, the timing was entirely non-specific, and in circumstances where David did not respond to a subpoena to give evidence and was thus not able to be tested as to questions of timing, it was open to the primary judge to reject those parts of the affidavit that were rejected.

7. [195]

   Ground 5 should be rejected.

Ground 6 – Jones v Dunkel and the failure to call Connie

1. [196]

   As was noted by the primary judge, Connie was not called by Dominic and John as a witness. This was said to give rise to a Jones v Dunkel inference against Dominic and John, to the effect that any evidence that Connie may have given would not have assisted their case. The primary judge’s failure to draw such an inference is the subject of ground 6 of the Amended Notice of Appeal in the Probate Proceedings and ground 5 of the Amended Notice of Appeal in the Trust Proceedings.

2. [197]

   Connie had sworn two affidavits in support of Dominic and John’s case, dated 12 January 2021 and 22 April 2021 respectively. Neither was read at first instance. On appeal, Ms Needham pointed out that a hearing schedule (of the trial) provided by Dominic and John to the other parties in advance of opening submissions did not list Connie as a witness, from which, it was submitted, it should have been clear that Connie was not going to be called by them. A subpoena for Connie to appear and give evidence was issued by Rose’s representatives shortly before the hearing, which was returnable on 1 November 2022. Connie did not appear, but Rose’s representatives did not apply for a bench warrant to enforce the subpoena.

3. [198]

   The primary judge’s view on this matter was clearly and shortly expressed (at PJ [212]-[214]):

4. [199]

   In those circumstances, Rose’s case on appeal was to re-animate the view that a Jones v Dunkel inference should have been drawn, despite her failure to enforce the subpoena. Various explanations were advanced for this on appeal:

5. [200]

   The Appellant, in her written submissions, made it clear that the inference that ought to be drawn from the failure to call Connie was that she would have said that the deceased’s cognition and memory was significantly diminished in 2009, and that she had been wholly dependent on Connie’s care since 2007. In that respect, the Appellant pointed to Dominic’s evidence that he and Connie “still talk” and that she calls him “once a day” to suggest that she was likely a favourable witness for Dominic and John and was relevantly “in their camp”.

6. [201]

   The Appellant also pointed to the fact that the Respondents only advised the Court that they did not intend to rely on either of Connie’s affidavits, or to call her as a witness, after the Appellant contended that the content of Connie’s affidavits was inconsistent with phone conversations she had with the Appellant between July and September 2020, some of which had been recorded by the Appellant and which were the subject of an affidavit sworn by the Appellant on 7 May 2021. This last submission did not sit comfortably with Mr Owens’ submission that Rose’s side of the record would have been calling Connie “blind” had they followed through on the subpoena. In any event, the Respondents disputed the submission as to timing.

7. [202]

   In my view, the primary judge did not err in how he treated the failure of either party to call Connie. She was the sister of both Rose and John and Dominic. The failure to call her cuts both ways. She could be seen as being either in both or neither side’s camps. There was also evidence that she had been affected by schizophrenia, a matter that may have borne on forensic decisions in a family dispute and a matter that was equally relevant both to John and Dominic’s failure to call her and to Rose’s failure to call on the subpoena to give evidence. In this respect, in Dr Romeo’s notes of 19 August 2014, the following appeared:

8. [203]

   A Jones v Dunkel inference may be drawn “in appropriate circumstances”: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. As Kirk JA observed in Ling v Pang [2023] NSWCA 112 at [24], it “is not a rule that can be applied formulaically” and the “evaluation of whether it is natural to expect the person to have been called by the party is fact specific”: at [32]. I am not persuaded that the “most natural inference” as to the reason for the decision by the Respondents not to call Connie in their case was “fear” on their part that doing so would have “exposed facts unfavourable”: cf. Jones v Dunkel at 320-1.

9. [204]

   An at least equally plausible reason for doing so may have been a human concern for their sister’s welfare in a family dispute in circumstances where Connie had, or had had, some mental health issues and associated vulnerability, coupled with the fact that there was a wealth of evidence available to the Respondents to support their case which it fell to the primary judge to assess.

10. [205]

    Ground 6 of the appeal in the Probate Proceedings and ground 5 of the appeal in the Trust Proceedings should be rejected.

Grounds 1-3

1. [206]

   Grounds 1-3 have been set out at [172] above. Grounds 1-2 challenge the primary judge’s conclusion as to testamentary capacity and his Honour’s finding that the deceased knew and approved the contents of the 2009 Will. Ground 3 is directed to questions of sufficiency of weight given to the evidence of particular witnesses. This ground is necessarily affected by the fact that questions of weight were influenced by the primary judge’s assessments of the credibility of the evidence of particular witnesses, assessed in the context of the whole body of evidence before the Court. Nevertheless, Mr Owens sought to make serious attacks on the primary judge’s findings in relation to a number of lay witnesses, as well as to attack the basis of his rejection of Rose’s evidence.

2. [207]

   It has been emphasised that the role of the test in Fox v Percy is particularly acute in circumstances where a primary judge’s findings are based on demeanour in the witness box, as such findings are “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55]; see also J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 (Vella) at [214]-[216].

3. [208]

   However, even where demeanour has played a lesser role in a primary judge’s decision, where credit findings are in issue, “it is unlikely that … presentation in the witness box was not keenly observed and taken into account” and in making such findings a primary judge “enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript”, as was held in Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 at [84]-[85]; cf Vella at [120]-[121]. At [41], the plurality in Fox v Percy said that the Court of Appeal “was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him” and that:

4. [209]

   Fox v Percy is of particular relevance in the instant case. That is both because of the length of the trial, the multiplicity of witnesses and the volume of documentary evidence. The “puzzle” presented to the primary judge was complex. Many of his Honour’s findings were expressly predicated upon his view of the credibility of the witnesses and their recollections, in light both of the surrounding circumstances (such as the medical notes, and the view of the joint experts) and also the demeanour of witnesses in the witness box. As the primary judge said, “like all Probate and trust cases, this is case that is fact sensitive” and “credit findings assume some significance”: PJ [310].

5. [210]

   Conscious of the high hurdle which Fox v Percy posed for the Appellant, Mr Owens focussed much of his argument on the evidence of Associate Professor Ryan and Professor Watson, the two Court appointed experts who both prepared a joint report and were cross examined concurrently. (It is to be noted that both experts accepted that, at the time of the execution of the 2009 Will, such cognitive impairments as the deceased likely had “would not have compromised her ability to understand the general nature of the act of making a will … and its effects”.) The experts’ evidence was so cogent, Mr Owens submitted, that, even if one accepted the lay evidence (including the evidence of the solicitor, Mr Puleo - which the primary judge did), it should not have been accepted that the Respondents discharged their onus in propounding the 2009 Will.

6. [211]

   In his oral opening, Mr Owens confirmed that the experts’ joint opinion “was expressly and avowedly on both of their parts independent of the correctness of the competing lay positions.” It is understandable, in one sense, that the experts expressed their opinion independently of radically competing lay evidence. They did not, however, express their joint opinion on competing assumptions as to which body of lay evidence might be accepted.

7. [212]

   On any view, as it seems to me, the body of lay evidence from the deceased’s children and acquaintances who saw her on a regular basis in the years leading up to the execution of the 2009 Will was relevant, including for the experts whose opinions were based solely, as Mr Owens confirmed, on a review of medical records and “independent of the correctness of the competing lay positions”. In making this observation, I do not overlook the expert evidence and allied submission to the effect that lay people may not always recognise manifestations of cognitive difficulty. On the other hand, had the deceased been suffering from hallucinations prior to 2009, one would have expected that to have been noticed and reported, as it was in late 2010 and in July 2014: see [220] below.

8. [213]

   Ms Needham countered the Appellant’s position by contending that the primary judge placed reasonable and sensible reliance upon the evidence of those lay witnesses whose evidence he accepted, the evidence of Mr Puleo and the deceased’s treating doctors, and that to do so was consistent with well-established authority. She emphasised that questions of a testatrix’s capacity were ultimately matters for judicial assessment rather than expert medical evidence, and referred to his Honour’s summary of relevant case law and Lim v Lim [2022] NSWSC 454 at [217]-[218] which gathered authority for the principle neatly summarised by Windeyer J in Revie v Druitt [2005] NSWSC 902 at [34], citing Kerr v Estate of Badran [2004] NSWSC 735, to the effect that:

9. [214]

   These authorities make it clear that the approach followed by the primary judge was entirely orthodox, especially in circumstances where neither of the experts had ever met or examined the deceased, let alone in 2009, and their opinions were based upon a process of reverse extrapolation from medical records relating to the deceased in 2014, as to what the deceased’s capacity relevantly was, five years earlier, in 2009. To say this is not to deny the expert evidence as to the progressive nature of dementia; it is simply to note the difficulty which both experts confronted.

10. [215]

    There was no cogent evidence of a lack of cognitive capacity in relatively contemporaneous medical records of the deceased’s treating general practitioner, Dr Romeo, as well as in other medical records leading up to 2009 and for a material period thereafter. Whilst, as was set out in relation to the fourth factual challenge, Dr Romeo’s note taking was criticised, the absence of any record or suggestion of impairment in the deceased as at 2009 was regarded by the primary judge as very significant. Apart from the absence of medical notations in the years leading up to 2009 of any dementia or want of cognitive capacity by Dr Romeo, there was a wealth of other medical records which either addressed the deceased’s cognition positively or, alternatively, failed to make any notation of matters that were consistent with a level of cognitive decay as at 2009 and which commonsense suggested would have been likely to have been noted had such decay been apparent.

11. [216]

    A number of these records and their significance were highlighted in the primary judge’s summary of that evidence which has been set out at [53] above, with my emphasis added. An important record was that of 5 January 2005 after the deceased had had a slip and fall. The medical record expressly noted “no neurological deficit detected”. In Ms Needham’s words:

12. [217]

    Attention was also drawn to a note of Dr V Pham made at Fairfield Hospital on 1 December 2006 which recorded “independent of ADL [activities of daily life]” and “no dementia”. Ms Needham submitted that “this is the only note of dementia prior to the will and it is an express exclusion of that.” On the following page of the doctor’s notes were the words “Neurological – alert, oriented”.

13. [218]

    Ms Needham also referred to notes from Fairfield Hospital of 1 December 2009, that is to say, after the making of the 2009 Will. The “Emergency Department Discharge Referral” noted “vital signs were normal, the range of movement of left shoulder and left hip was limited. [O]therwise the examination was unremarkable. [T]here was no neurological deficit” (emphasis added). Hospital notes for this day also contained the following set of observations, all of which were marked in the negative:

14. [219]

    The significance of the medical “record” was reinforced by other evidence relied upon by the primary judge, including that of Mr Puleo and a number of other lay witnesses, who were accepted by the primary judge as witnesses of credit.

15. [220]

    Dr Romeo had been the deceased’s general practitioner since July 1999 and saw the deceased on a regular basis. The deceased was often accompanied to appointments by one or more of her children. Had she exhibited signs of having hallucinations or other cognitive deterioration, one would expect that her children would have reported such concerns to Dr Romeo. (One of Rose or Connie reported to Fairfield Health Service on 11 July 2014, for example, that her mother “has visual hallucinations”). The primary judge attached significance to the absence of any such notations in Dr Romeo’s records and so do I (noting that I have already dealt with Professor Watson’s criticism of Dr Romeo’s notetaking at [106]-[115] above). The primary judge said the following at PJ [835]:

16. [221]

    His Honour continued at PJ [838]:

17. [222]

    As was recorded in relation to the fourth factual challenge, the absence in Dr Romeo’s notes of support for material cognitive impairment in the deceased in or prior to 2009 was significant, not just in itself, but because it was also used by the primary judge as a means of testing the credibility of the evidence of Rose and other witnesses called in support of her case in circumstances where they claimed to have observed hallucinatory conduct on the deceased’s part from a period many years before execution of the 2009 Will.

18. [223]

    The first mention in Dr Romeo’s notes of some issue of delusion only appeared on 14 December 2010, well over a year after the execution of the Will. What is recorded is that the deceased “says that she hear[s] people calling her name and the name of her husband, she sees people ‘doing things’ … auditory and visual [h]allucination”. There were no other notes of this issue until the deceased’s hospital admissions in 2014 (see [220] above).

19. [224]

    Against this history, the Appellant and the experts placed strong reliance upon the letter by Dr Joseph dated 20 October 2014 and, in particular, the following passage of that letter:

20. [225]

    It was common ground that Connie was the source of the information as relayed to Dr Joseph. There was, however, a lack of precision in the information recorded, and some inaccuracy as it wrongly suggested that Giuseppe died “six years ago” in 2008 rather than 2009. The degree of the deceased’s decline and memory impairment is also not made clear in the letter. Further, to the extent that the decline was progressive, the history is largely silent as to linear points of decline. None of this is surprising insofar as the history was being given several years after the events in question. The quality of the general history also needs to be assessed against medical records for the period in question, which the primary judge did. The most important of these was Dr Romeo’s note of late 2010, the first which records any hallucination (see [89] and [223] above), and which was made more than 15 months after the execution of the 2009 Will.

21. [226]

    I have already dealt with the significance, or lack thereof, of the Prasetyo letter of 27 February 2020. Associate Professor Ryan’s view that the reference to 15 years in that letter was probably mistaken (see [84] above) is, to my mind, convincing in light of all the other medical evidence, especially when that reference was derived from an account given to Dr Prasetyo in 2020. Once this is accepted, the forensic significance of that document, and the consequences for other findings by the primary judge as to the credibility or reliability of other evidence, diminish very significantly.

22. [227]

    In terms of the lay witnesses and the primary judge’s carefully considered preference for the evidence of those called by John and Dominic, reference has already been made to Mr Owens’ attempt to rely on the expert opinions of Professor Watson and Associate Professor Ryan as providing some kind of “knock-out” blow, thereby obviating the Fox v Percy challenges which the appeal otherwise faced. This was unavailing in light of the authorities referred to at [213] above and the need to take the whole corpus of evidence into account. But Ms Needham also persuasively pointed out that the evidence of the two experts was not nearly as definitive as Mr Owens’ submissions assumed, especially once they were asked to make assumptions as to levels of support that the deceased received at the time of the making of the 2009 Will.

23. [228]

    In this context, the Court was taken to the following three passages in the experts’ joint report:

24. [229]

    Ms Needham emphasised that the slightly different clinical views expressed suggested that the deceased’s capacity was not eradicated but only “compromised”, with a slight difference as to the extent or degree of the compromise. In this context, it must be recalled that “Banks v Goodfellow does not require perfect mental balance and clarity in the deceased”: Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 at [246]. As Cockburn CJ said in his seminal decision in Banks v Goodfellow at 566, “the mental power may be reduced below the ordinary standard” provided the deceased retains “sufficient intelligence to understand and appreciate the testamentary act in its different bearings”. Questions of degree are involved: Loupos v Demirgelis [2008] NSWSC 1207 at [55]. “Slowness, illness [and] feebleness” are “not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will”: Re Griffith; Easter v Griffith (1995) 217 ALR 284 (Re Griffith) at 295. On the question of degree, this aspect of Associate Professor Ryan’s evidence should be noted:

25. [230]

    Associate Professor Ryan’s conclusion (which the primary judge preferred) was that the deceased was less compromised than in Professor Watson’s assessment of her cognitive faculties although it must be noted that Professor Watson did, at least in part, condition his conclusion in his original report as to the deceased’s testamentary capacity upon it being held that the deceased had delusions and hallucinations at the time of the execution of the 2009 Will which the primary judge did not accept in view of his rejection of lay evidence led on behalf of the Appellant and the absence of any such indication in the medical records prior to late 2010. Parenthetically, and contrary to a submission put on behalf of the Appellant, the primary judge’s preference of Associate Professor Ryan’s assessment was supported by his overall assessment of the medical evidence (see, for example, at PJ [921]) and Associate Professor Ryan’s psychiatric credentials to which Professor Watson deferred in a number of places in the course of the expert conclave. In any event, as Mr Owens submitted on appeal, there was not in truth much difference between the experts’ opinions.

26. [231]

    Ms Needham emphasised that the extent of the deceased’s capacity would depend in part on the “support” she had in considering and making the requisite evaluative judgments. In so doing, Ms Needham built on Associate Professor Ryan’s observation that he was “not suggesting that [the deceased] may not have been able to recall the terms of her husband’s Will and understand their impact on the nature and strength of claims which she needed to weigh and evaluate had she [been] provided appropriate support in this task.”

27. [232]

    The Court was taken to the cross examination of the experts in this regard in which each was asked to express opinions on various assumptions which were established by the evidence. These included that, shortly prior to the giving of instructions as to the 2009 Will, the deceased, in her capacity as one of the executors of her husband’s estate, had attended on Mr Puleo with the other executors for the purposes of obtaining probate to Giuseppe’s Will. This included executing the requisite affidavit with a list of assets which went to her under that will and which corresponded to the property that would become the subject of her own will.

28. [233]

    The next assumption, also borne out by the evidence of Mr Puleo which the primary judge accepted, was that the deceased said, “I want to have the same will as my - as Giuseppe's.”

29. [234]

    The next assumption was that the deceased indicated to Mr Puleo that she wanted to follow the pattern of Giuseppe’s Will insofar as properties were to be distributed amongst her children with the only variation to this being in relation to Joseph. In this regard, Mr Puleo gave evidence, which the primary judge accepted, that the deceased told him that Joseph had “mental issues”, and that she “was concerned [and] wanted him looked after, and the impression I got was that his condition had deteriorated and that … I made a provision in the will on instructions that Joseph was to be looked after with … his food, his … upkeep, that she was worried that he wasn't able to look after himself.” Mr Puleo was also asked: “How under the scheme of the will do you say you accommodated that concern of Mrs Meduri in the drafting?”, to which he answered: “Well the house was to be left to Joseph for his use and whatever residue there was, was to be divided between the six children, and Joseph's sixth was to be held in trust for his maintenance and welfare.”

30. [235]

    There was then the very important exchange between Ms Needham and the experts:

31. [236]

    This exchange highlights the importance of the assumptions that experts make when giving their evidence and shows how a variation to assumptions may result in the alteration of “headline” conclusions. This is why the identification of an expert’s assumptions in any given case is so important.

32. [237]

    Once the assumptions put to the experts by Ms Needham were taken into account, the strength of the experts’ opinions as to testamentary capacity was very much reduced. Also to be noted in this regard was Associate Professor Ryan’s candid acknowledgement recorded in [229] above.

33. [238]

    To these points should be added Rose’s evidence, elicited in cross examination, that as at 2009, the deceased knew of various of her children’s ownership of various properties, that she understood that Joseph had special medical needs that meant that if he did own property, he would need someone to help him manage it, and that Dominic and John had been living on the Kemps Creek property for about 20 years.

34. [239]

    Various challenges to factual findings made in relation to Mr Puleo have already been dealt with at [116]-[132] and [176]-[188] above. None of those have been successful. Contrary to the Appellant’s submission, the primary judge did approach Mr Puleo’s evidence with a measure of caution: at PJ [378].

35. [240]

    Apart from the rejection of the challenges to various factual findings relating to Mr Puleo, of particular significance, as it seems to me, was the fact that, as noted in relation to the twelfth factual challenge, in 2014, when Connie brought the deceased to Mr Puleo to execute a new will, he refused to do so on the basis of his assessment that she lacked capacity to do so at that time. Mr Puleo’s file note of 6 November 2014 was as follows:

36. [241]

    Other aspects of Mr Puleo’s evidence which the primary judge accepted should be noted. First, Mr Puleo’s evidence was that he explained the will in Italian from beginning to end, “paragraph by paragraph”. He was asked by reference to a Law Society Checklist whether it was his understanding in 2009 that if he “had a doubt about whether someone was capable or not it might be prudent to refer them to a doctor for an assessment”, to which he replied, “Very much so.” Asked whether he made any inquiries in August or September 2009 about who the deceased’s treating doctors were, he answered “No, because I didn't see any red flags.” Challenged as to whether he remembered the deceased saying anything about Joseph, he answered “I can, look you don’t make that up.” Mr Puleo rejected the proposition that he could not be satisfied when he read out the Will in 2009 that the deceased understood everything he was saying.

37. [242]

    The primary judge also placed reliance on the evidence Mr Puleo gave as to his usual practice: at PJ [378]. Part of this reliance necessarily involved his Honour accepting the evidence as to Mr Puleo’s usual practice (which he did) and that that practice was satisfactory. A solicitor’s evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection of a will being signed but gives evidence of his or her usual practice: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [54]-[55].

38. [243]

    Before leaving the discussion of Mr Puleo’s evidence, the Respondents submitted that there should be no adverse credit finding against Mr Puleo because he was unable to recall, at a remove of over 10 years, the exact words he used. I would accept that submission, noting that a detailed purported recollection of the exact words used at such a temporal remove would tend against common experience and attract a measure of judicial scepticism, as noted as long ago as 1883: Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883) quoted at [350] below.

39. [244]

    The Respondents cited in support of their submission in respect of Mr Puleo’s evidence the decision of White JA in Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 458 (Gan v Xie) at [119]. In that paragraph, his Honour expressed his agreement, by way of obiter, with certain observations in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] (Kane). Within those paragraphs in Kane, amongst other matters, was a critique of what has been the “usual practice in New South Wales” in the preparation of affidavit evidence, namely the use of direct speech when recounting past conversations of which a witness recalls only the “gist”. The criticism extended to a suggestion that the presentation of evidence in this form was ethically problematic.

40. [245]

    I disagree with this criticism in circumstances where accounts of conversations in direct speech are prefaced, as they invariably are in my experience, with a phrase such as “words to the following effect”. This was the relevant form of expression considered and accepted in Gan at [98]: see [343] below. So prefaced, I do not consider that “the evidence given as a result of that process conceals the true nature and quality of the witness’s memory, or conveys a false impression of that memory”: cf. Kane at [127]. Evidence in this form will represent the witness’s best effort to capture the gist of a conversation which can then be tested in cross examination if it is controversial or otherwise material. The prefatory phrase also makes it perfectly plain to the tribunal of fact that the witness is not purporting to recall the exact words used. As Kirk JA’s separate reasons on this topic highlight, there will invariably be a spectrum of recollection and one point on the spectrum is where the witness recalls the gist of a conversation but is unable to recall the actual words used. In Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11], Bromwich J saw “nothing wrong” with evidence being adduced in this way, and noted that it “has been long accepted that the substance or effect of the actual words spoken will suffice, without necessarily occasioning any unfair prejudice.”

41. [246]

    More recently, in Chu v Lin, Gold Stone Capital Pty Ltd [2024] FCA 766 at [11] and further to his judgment in Kane, Jackman J expressed the view that he regarded it as “adverse to a witness’s credibility for the witness to convey the false impression in an affidavit of a verbatim recollection of a conversation by using direct speech, when all the witness remembers is the gist of something which was said.” In a sense, that is obviously correct if a false impression is created. To repeat the essential point, however, when evidence is given in direct speech but prefaced by the expression “words to the effect”, that witness is not providing a “verbatim recollection” of a conversation and should not be penalised or criticised for giving evidence in such a form. It is to be emphasised, as Hammerschlag CJ in Eq has recently done, that one is talking of “a practice, not an irrefragable rule of law”: Chen v Chu [2024] NSWSC 1139 (Chen) at [269]. His Honour noted that the practice:

42. [247]

    In a previous judgment, Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 (Lantrak), Jackman J said of his decision in Kane that:

43. [248]

    It is, in my view and with respect to his Honour, both unorthodox and undesirable for a single judge of any court unilaterally to arrogate to him or herself the “ending [of a] longstanding practice in New South Wales” (or any other jurisdiction). Matters of practice are relied upon by practitioners in the discharge of their daily work, and unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. A case for reform of a practice, if subject to persuasive and cogent criticism, is best worked out in and after consultation.

44. [249]

    I note that, in Lantrak, neither Lee nor Button JJ endorsed Jackman J’s remarks. Lee J, however, at [25], referred to the joint judgment of Nettle and Gordon JJ in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 at [112] where their Honours said:

45. [250]

    None of these observations are to be gainsaid, and judges in New South Wales are astute to the shortcomings of witness memory and do not accept evidence at face value: see, for example, White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817 at [210]; Salmon v Albarran [2023] NSWSC 1238; (2023) 414 ALR 36 at [43]-[44]. That evidence, when contentious, will invariably be tested by cross examination and, when so tested, if there be any ambiguity, cross examination will be apt to clarify if the witness is purporting to give evidence as to the precise words uttered or merely the gist of what he or she recalls was said. There are of course any number of circumstances where precision as to what may have been said is necessary to found a cause of action: BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421 at [51]. Promissory estoppel is one such example: Legione v Hateley (1983) 152 CLR 406 at 435-436; [1983] HCA 11; Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35]. Other examples where a precise form of words is required are slander and oral contracts.

46. [251]

    The decision of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 318-319 lends invaluable guidance to judges in New South Wales (and beyond) when assessing such evidence and remains one of the most cited decisions in the day to day work of the courts.

47. [252]

    The “long-standing practice in New South Wales” criticised in Kane, has, as its underlying purpose, an attempt to come as close to capturing the essence of a past conversation as possible without, when the customary preface is used, purporting to supply exactitude. That is well understood and, generally speaking, the impugned practice has been and is a useful discipline for a witness to be pressed to provide as precise a recollection as he or she is able, especially in cases where “inexact proofs, indefinite testimony, or indirect references” will not suffice: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. As Barrett J once observed, “there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form”: LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688 at [8]. It goes without saying that to endorse this practice is not to endorse a solicitor putting words or the gist of a conversation into a witness’s mouth.

48. [253]

    The opposite of the traditional practice in New South Wales is the presentation of evidence in a loose, invariably rolled up and conclusory form which often meets with a successful objection to its admissibility, a point made by Robertson J writing extra-judicially: “Affidavit Evidence” [2014] Federal Judicial Scholarship 3. When such an objection is taken and upheld, leave may be sought to adduce oral evidence in direct speech, even if qualified by phrases such as “doing the best you can” and “words to the effect”. This is, no doubt, an imperfect method but is more desirable than leaving the recollection vague and conclusory. There is no meaningful difference, between a witness being asked in the witness box to give his or her “best recollection” and that “best recollection” being set out in direct speech in an affidavit or witness statement, qualified by “words to the following effect” where the witness cannot recall the actual words used.

49. [254]

    Many a witness has suffered by reason of the absence of any genuine recall even of the gist of a conversation, exposed under cross examination. Experienced judges are alive to imperfection of memory and artificially precise recollections. With the guidance of Watson v Foxman, they remain the arbiters of what may or may not have been said. But such forensic realities are not a reason to depart from the established practice in New South Wales which Hammerschlag CJ in Eq has recently described as “salutary” and as conducing “to a disciplined approach in the recounting by a witness of what was said”: Chen at [264]-[265]. More generally, I agree with Kirk JA’s summary of the position at [356] below.

50. [255]

    I should also note for completeness that, in the Trust Proceedings, the Appellant challenged the primary judge’s acceptance of Dominic and John’s “denial that there was any ‘collaboration’ with the other in the preparation of their affidavit evidence”: at PJ [355]. This challenge was based upon similarities in language used in the brothers’ respective affidavits. The challenge was principally relevant to the Trust Proceedings where “conversation” evidence was critical to the establishment of a proprietary estoppel claim. Nevertheless, it did have some relevance to the Probate Proceedings given the primary judge’s general acceptance of the evidence of John and Dominic, and his preference for it over that advanced by Rose.

51. [256]

    At PJ [354]-[355], the primary judge held the following:

52. [257]

    This assessment was no doubt influenced by the primary judge’s advantage in observing both John and Dominic give their evidence, and Fox v Percy considerations arise. Insofar as their evidence was germane to the Probate Proceedings, it formed only one part of the corpus of evidence relied upon going to the question of testamentary capacity.

Conclusion on grounds 1-3

1. [258]

   Having closely reviewed all of the evidence, including the medical records and what they did and did not contain, the joint report and cross examination of the experts and the various assumptions put to them, and taken into account the limited factual matters upon which the Appellant’s challenges to factual findings succeeded, bearing in mind the primary judge’s advantages in his assessments of the credibility of particular witnesses (including Mr Puleo) which supported his conclusions as well as his immersion in a lengthy trial, I would reject grounds 1-3 of the appeal in the Probate Proceedings.

2. [259]

   The Prasetyo letter, upon which the Appellant placed very heavy reliance, did not have the forensic significance the Appellant claimed for the reasons set out earlier in this judgment, and no “glaring errors” were established. In making this observation, I have not overlooked his Honour’s misapprehension that the reference to jewellery in the 2009 Will represented a change to Giuseppe’s Will where a similar clause was to be found (see [133] ff above), albeit that the 2009 Will added that the jewellery that was to be given to Rose and Connie “in equal shares”. I have also taken account of the fact that the lay evidence led on behalf of the Appellant which placed the deceased’s cognitive impairment well prior to 2009 was not supported by the joint experts or the medical records.

3. [260]

   To adapt the words of Basten JA in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [47], while “it is true that the Court must be affirmatively satisfied as to testamentary capacity, … it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ [in Re Griffith at 290], ‘a grave matter.’” Basten JA continued by observing that a “doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity.”

4. [261]

   In reaching my conclusion, I have also borne in mind, to pick up the language of Kirk JA in Lim v Lim [2023] NSWCA 84 at [9], that “what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg, in terms of providing for those who might have been expected to be provided for), the easier it may be to establish the requisite capacity.”

5. [262]

   Kirk JA made reference to White JA’s decision in Croft at [126] in this regard where his Honour said:

6. [263]

   The 2009 Will in the present case was entirely inofficious. It mirrored the contingency provisions in Giuseppe’s Will, the terms of which the deceased was aware of and which she told Mr Puleo she wished to follow, save for the more nuanced provision for Joseph which was perfectly rational given the evidence as to his mental condition. As Mr Owens put it in oral address, “what the trial judge got from the experts is that if [the deceased] had spontaneously identified her son, Joseph, then that would demonstrate that she could factor her circumstances into her testamentary wishes.” The primary judge accepted Mr Puleo’s evidence that the deceased had expressed concern about Joseph and that the residue clause had been modified accordingly.

7. [264]

   The 2009 Will was also unremarkable insofar as each of the deceased’s children benefitted under it with a gift of real property, and the fact that Dominic and John’s property may have become more valuable by reason of the development of the Western Sydney Airport in the years since 2009 was serendipitous. The fact remained that it had been their home for more than 20 years, making the disposition of it to them perfectly rational. (It was also broadly consistent with the various conversations which the primary judge accepted took place between John and Dominic and their parents about the property on which they had lived for so long, and which the primary judge accepted for the purposes of the alternative claim in the Trust Proceedings. My conclusion does not, however, depend on that observation.)

The Trust Proceedings

1. [265]

   The primary judge’s process of reasoning in relation to the Trust Proceedings has been set out at [61]-[69] above. It will be noted that his Honour’s conclusions on this leg of the case were expressed in the alternative and on the contingency that the deceased’s capacity was not established and the 2009 Will was declared invalid: at PJ [989].

2. [266]

   By Amended Notice of Appeal, the Appellant propounded seven grounds of appeal in the Trust Proceeding:

3. [267]

   In light of my conclusion in the appeal relating to the Probate Proceedings, it is not necessary to prolong these already lengthy reasons by dealing with the extensive challenges (including factual challenges) to what was a contingent finding in relation to the Trust Proceedings by the primary judge save to note that:

   1. (1)

      ground 1 is simply a rolled up challenge to the primary judge’s conclusion;

   2. (2)

      critical findings by the primary judge on this leg of the case and raised by ground 2 entailed the acceptance of the evidence of Dominic and John, and Fox v Percy considerations presented a formidable hurdle to the Appellant, as I have noted earlier in this judgment;

   3. (3)

      ground 3 and questions of weight were also matters which overlapped with those considered in relation to the Probate Proceedings and were matters upon which the primary judge’s advantages over those of an appellate bench were relevant;

   4. (4)

      ground 4 overlaps closely with the primary judge’s conclusions as to the deceased’s capacity in 2009 which has already been dealt with in relation to the Probate Proceedings;

   5. (5)

      ground 5 corresponds to ground 6 in Probate Proceedings which has been rejected; and

   6. (6)

      ground 7 does not arise; and

   7. (7)

      ground 7A on the question of costs is dealt with below.

Costs of the trial

1. [268]

   There remains to be considered the question as to the costs of the trial, recalling that the Probate and Trust Proceedings were heard together with a claim by Joseph and that John and Dominic also pressed an alternative family provision claim. Reference has been made at [7] above to the primary judge’s separate judgment on costs, and grounds 7A in both appeals challenged his Honour’s elaborate orders as to costs. Although the primary judge made separate costs orders in both the Probate Proceedings and the Trust Proceedings, he considered the question of costs in a single judgment and necessarily had to take into account in his assessment the factual and legal overlap between the different proceedings.

2. [269]

   Both decisions as to costs were discretionary and closely reasoned, taking into account the complexity and overlapping nature of the proceedings. A successful appeal on the question of costs would involve unscrambling a very well-cooked egg.

3. [270]

   In the absence of success in the challenge to the outcome of the Probate Proceedings, the starting point must be that the primary judge was best placed to assess the question of where costs should lie in respect of the proceedings at first instance.

4. [271]

   No error of principle or submissions of any substance were advanced in writing for disturbing the primary judge’s decision as to costs in respect of the Probate Proceedings. The rejection of the Appellant’s appeal in relation to the Probate Proceedings means that there should be no disturbance of the primary judge’s decision as to costs at first instance.

5. [272]

   In their submissions in relation to the Trust Proceedings, it was emphasised that the Respondents’ trust/estoppel and family provision claims were made against the estate and that the Appellant effectively represented the estate in those proceedings. Reference was made to various observations by the primary judge in the course of interlocutory proceedings as to the fact that he did not wish to see two sets of costs (Rose’s and the administrator’s) coming out of the estate. It was submitted that Rose was the proper contradictor and thus that she should have had her costs out of the estate, and on an indemnity basis.

6. [273]

   It was put, in separate submissions in relation to costs, that the primary judge had effectively encouraged the Appellant to conduct the defence of the Trust Proceedings instead of the independent administrator (a position the independent administrator fully supported) but that, in his judgment, the primary judge “did not advert to Rose’s submission or the exchange at the directions hearing on 28 June 2021.” This submission is not entirely correct. At [38] of the costs judgment, the primary judge noted that Ms Needham had submitted in relation to the Trust Proceedings that “Rose was not defending the proceedings as a representative of the deceased’s estate, but rather as a person promoting her own financial and personal interests.” This was in effect the answer put forward (and accepted) to the contention advanced by Rose which she claimed his Honour did not take into account.

7. [274]

   As the following extract from the costs judgment makes plain, the primary judge reached the view that, even in her defence of the Trust Proceedings, Rose was predominantly acting to advance her own interests. The key part of his Honour’s judgment at [68] is set out:

8. [275]

   His Honour also observed (at [73] of the costs judgment) that:

9. [276]

   No error of principle was pointed to as vitiating any of the foregoing analysis.

10. [277]

    There was no good reason advanced, in my opinion, for disturbing the costs orders in respect of the Trust Proceedings. Whatever may have been indicated prior to the proceedings was no guarantee that the Appellant would obtain her costs “come what may” and, as the above passage makes plain, this lack of any guarantee was repeated throughout the proceedings. The primary judge’s nuanced assessment as to the question of costs was based upon his assessment of lengthy, complex, interrelated and hard fought proceedings. His discretionary decision was not only open to him but, in my view, entirely reasonable and not affected by error of the kind that would, or should, attract intermediate appellate intervention.

11. [278]

    In those circumstances, ground 7A in both appeals should be rejected.

Costs of the appeals

1. [279]

   The Appellant must also bear the costs of the appeal. The three days of argument on appeal were overwhelmingly concerned with the appeal in the Probate Proceedings which was lost. Very little separate attention was devoted to the appeal in the Trust Proceedings and, in any event, it only arose in the event that the appeal in the Probate Proceedings succeeded, which it did not.

Conclusion and orders

1. [280]

   Both appeals should be dismissed with costs.

2. [281]

   WHITE JA: I agree with the orders proposed by the Chief Justice. Subject to the observations below I agree with his Honour’s reasons.

3. [282]

   The qualification to my agreement with the reasons of the Chief Justice relates to [244]-[255] of those reasons. The Chief Justice is there critical of observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] insofar as Jackman J was critical of what has been the “usual practice in New South Wales” in the preparation of affidavit evidence of using direct speech to recount past conversations of which a witness recalls only the “gist” ([244]-[245]). The Chief Justice is also critical of observations of Jackman J in Chu v Lin, Goldstone Capital Pty Ltd [2024] FCA 766 at [11] in which Jackman J considered that adherence to the practice can adversely affect a witness’ credibility ([246]).

4. [283]

   The Chief Justice is also critical of the statement made by Jackman J in Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 where Jackman J said ([at 277]) that his remarks in Kane’s Hire were primarily directed to changing the longstanding practice in New South Wales as to how evidence of conversations should be given.

5. [284]

   I do not agree with these criticisms.

6. [285]

   It is of first importance to recognise that a witness’ affidavit, or witness statement which is to be adopted in the witness box, will constitute the witness’ evidence in chief. It therefore should be given in the witness’ own words. The role of the lawyer is principally to provide a logical or coherent structure to the evidence, to exclude what is irrelevant, and, if necessary, to put the statement in a form required by the court to be admissible.

7. [286]

   Where the witness is giving evidence of a conversation, it is axiomatic that the witness should give his or her best account of the conversation according to the best of his or her recollection. If he or she professes to recall the words used, or some of the words used, he or she should say so. For the reasons below, if the witness does not have such a recollection the witness can and should give evidence, in his or her own words, of what memory, perception or understanding he or she has as to the effect of what was said.

8. [287]

   In their valuable article “Conversational evidence: A stake in the heart of ‘direct speech’ & the psychology of conversational memory” (2023, Summer) Bar News, Journal of the NSW Bar Association 50, Stowe, Vial, Paterson, and Temler rightly observed that “gist” evidence (that is the recollection of the “gist” of a conversation) can have different degrees of particularity. To quote from their article:

9. [288]

   For the reasons below, evidence in either form is admissible subject to discretionary exclusion under s 135 of the Evidence Act 1995 (NSW). Such gist evidence should be presented in the witness’ words just as if the witness were giving evidence orally. It is the witness’ words that matter, not those of a lawyer acting in conformity with current practice.

10. [289]

    This is now explicitly stated in a Practice Note applicable to “Business and Property Courts” in the United Kingdom. The Business and Property Courts include the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, and other circuit courts exercising a like jurisdiction (Civil Procedure Rules Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts [1] ).

11. [290]

    Practice Direction 57AC deals specifically with trial witness statements in the Business and Property Courts.

12. [291]

    Clause 4.1 requires the witness to affirm that:

13. [292]

    The statement is to be prepared in accordance with the Statement of Best Practice contained in the Appendix.

14. [293]

    Clause 2.4 of the Statement of Best Practice states:

15. [294]

    Everyone would acknowledge that it would be improper for a lawyer to coach a witness by saying “if you are asked this question … you should say …”. There is no difference in kind between such conduct and a lawyer’s converting the witness’ own words into a different form, unless that is necessary to put the evidence in a form required by the court. Unless the evidence is inadmissible the court should not make any such requirement. The difficulty with the practice commonly adopted in this State is that it can give a false impression of the witness’ actual recollection.

16. [295]

    Take the case foreshadowed by Stowe, Vial, Paterson, and Temler referred to at [287] above. The witness’ instruction to her lawyer was that she offered to sell the car to John for $10,000 and that John agreed if she included the trailer. She told her solicitor that she told John that that was okay but she needed John to pay by Monday and that John agreed with that.

17. [296]

    If the plaintiff gave oral evidence that is what she would say and how she would say it. In accordance with the New South Wales practice her affidavit would read something like:

18. [297]

    Notwithstanding the use of the words “to the following effect” this description of the conversation has greater verisimilitude than the same version in indirect speech.

19. [298]

    If the witness’ instruction to the solicitor were that her strong impression was that they agreed that she would sell the car and trailer but she couldn’t recall the exact conversation or the basis for her impression, under the current practice the solicitor would not be acting improperly if he or she prepared an affidavit which read something like:

20. [299]

    Again, putting the evidence into direct speech, although qualified by the expression “words to the following effect” gives the witness’ version greater verisimilitude.

21. [300]

    The use of the words “to the effect of” or “to the following effect” weaken, but do not remove that effect.

22. [301]

    The practice was described by Mr J P Bryson QC (as Bryson JA then was) in his paper “How to Draft an Affidavit” (1985) 1 Australian Bar Review 250. He expressed the then requirements of the Court (at 252):

23. [302]

    To avoid giving the results of what was recalled in indirect speech and to comply with the Court’s requirement, practitioners adopted the formula of using the expression “words to the effect of” or “to the following effect”.

24. [303]

    Because objections to affidavits were dealt with peremptorily, there seems to be no available judgment which gave reasons for this requirement.

25. [304]

    In R v Noble [2002] 1 Qd R 432; [2000] QCA 523, Pincus JA, with whom McMurdo P and Mackenzie J agreed, said (at [20]):

26. [305]

    In Commonwealth of Australia v Riley (1984) 5 FCR 8, the Full Court of the Federal Court was concerned with an extradition proceeding in which the relevant treaty stated that extradition should only be granted only if “the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found … to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory … ”. The Full Court held that the evidence on which the magistrate could act was confined to evidence in criminal proceedings, but the test was one of substance, not form (at 33). The Court rejected a submission that evidence of conversations given in indirect speech and statements of conclusions of the witness were inadmissible and hence the magistrate was required to have no regard to such evidence (at 34). The Court said (at 34):

27. [306]

    In R v Wright (1985) 19 A Crim R 17, the Queensland Court of Appeal said (at 18-19) that a witness could give the effect or purport or substance of what was said in the conversation even if unable to recall the precise words used. The Court said that for the purposes of that case it could be assumed that evidence that the witness had received an “impression of the matter in the course of a conversation” would not be admissible if that was all that the witness said.

28. [307]

    The basis for the rejection of affidavits or witness statements that set out the witness’ perception of the effect of a conversation without describing the words used was not articulated. But it must have been the opinion rule.

29. [308]

    The generally accepted understanding of an “opinion” for the purposes of the opinion rule is that it is “an inference from observed and communicable data”. This was the definition adopted by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. His Honour adopted the definition from the Australian Law Reform Commission’s Interim Report on Evidence (ALRC 26, 1985). The Commission in turn referred to Wigmore on Evidence (3 ed, 1978) para 1917 and Wills on the Law of Evidence (3 ed, 1938) p 150. Lindgren J’s definition has been frequently cited with approval.

30. [309]

    If a witness has or professes a recollection of the actual words used in a conversation and gives evidence that those were the words used, the witness is giving evidence of fact and not of opinion. There is no doubt that such evidence is admissible. If a witness has or professes to have such a recollection that is the form in which his or her evidence should be given.

31. [310]

    If a witness does not have such a recollection, then whether the witness’ recollection of the conversation is expressed in indirect speech, or as a recollection of the effect of the discussion, the evidence is opinion evidence. Even at common law, it was not on that account inadmissible.

32. [311]

    I repeat my reference to the relevant passages in Wigmore from Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379:

33. [312]

    In Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551, Besanko J (at [81]) cited with approval J D Heydon, Cross on Evidence (7th ed, 2004) p 476:

34. [313]

    It may be noted that Heydon said that “… the witness may also recount the impression made on the witness by whatever words were used.”

35. [314]

    In Connex Group Australia Pty Ltd v Butt, the evidence in question was not given testimonially but the opinion rule in s 76 of the Evidence Act applied to it just as it does to evidence given in court. In that case, the solicitor’s file note included the following:

36. [315]

    I concluded that the statement was admissible under the exception to the admission of opinion evidence in s 78 of the Evidence Act. I concluded (at [27]):

37. [316]

    In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, French CJ, Heydon and Bell JJ said (at 369; fn (40)) that when limited to conversations my finding that a witness’ understanding of the effect of the conversation fell within s 78 “did not seem wrong”.

38. [317]

    Notwithstanding the view of the Queensland Court of Appeal in R v Wright (at 19) that evidence that a witness had received “an ‘impression’ of the matter in the course of a conversation” might not be admissible if that was all that the witness said and a statement to like effect by Besanko J in Hamilton-Smith v George (at [79]) that a witness’ recounting of conclusions drawn by the witness as to the effect of a conservation is not admissible at common law, I doubt that that was so. Both Wigmore and Heydon allow for the admissibility of a witness’ impression of the effect of the conversation if the witness was in a position to form an opinion on that matter and had exhausted his or her recollection and the witness would be in a better position than the trier of fact to form an opinion on the effect of the conversation. In any event, the matter is dealt with by ss 76 and 78 of the Evidence Act, assuming that the evidence is relevant (that is that it has some rational probative force (s 55)) and is not excluded under s 135.

39. [318]

    In my view, if the opinion rule does not apply to the witness’ understanding of the effect of a conversation, the witness’ opinion, whether expressed as a recounting of the conversation in indirect speech or as to the effect of the outcome of the conversation, is admissible.

40. [319]

    Because the witness is giving evidence in chief, if what he or she says is admissible it should be given in his or her own words.

41. [320]

    A witness, particularly a lawyer, might well use the formula that “words to the following effect” were said. If they are the witness’ own words there is no difficulty. But it would be a rare witness (unless a lawyer) who would do so.

42. [321]

    In Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [119], I endorsed the observations of Jackman J in Kane’s Hire at [121]-[129]. Simpson AJA and Basten AJA agreed with my reasons.

43. [322]

    In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, Barrett J dealt with an objection raised by the plaintiffs to a passage of a witness statement which said that the witness could not remember the specific terms of a conversation but “… in substance I told him that I stated that the consortium was prepared to negotiate along the following lines. There then follow pars (a), (b) and (c) which set out those ‘following lines’.”

44. [323]

    Barrett J held that the question was not one of admissibility (at [10]), but of the way in which evidence might most appropriately be tendered or adduced. His Honour said that the desirable course was to give leave to the defendants to adduce oral evidence on the matter covered by the passage in the statement to which objection had been taken (at [11]).

45. [324]

    It is apparent from Barrett J's final judgment that when the evidence in question was given orally, apparently without objection, it was given in the same conclusory form and was responded to in the same manner (LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2001] NSWSC 886 at [57]-[58]).

46. [325]

    This was my experience as a trial judge. If objection were taken to a witness’ evidence of a conversation on the ground that it was conclusory, rather than fighting the objection, counsel would often seek leave to adduce oral evidence on the topic. That leave was invariably given. When the witness was asked in chief what he or she recalled about the conversation, the witness would always recount his or her version of the conversation (without objection) in the same conclusory form.

47. [326]

    Under the current practice the risk a lawyer drafting the affidavit runs is that if the witness is not required for cross-examination the witness might not be present to be called to give oral evidence and the evidence might be rejected.

48. [327]

    The fundamental point is that admissible evidence should be given in the witness’ own words. If the evidence is given in direct speech, albeit prefaced with the use of the phrase “words to the effect of” or similar, then even if the evidence is treated as the witness’ recollection of the gist of what was said that can obscure the particularity of the witness’ memory. I do not agree with the criticism of Jackman J’s observations in Kane’s Hire that the use of the expression “words to the following effect” “conceals the true nature and quality of the witness’s memory, and conveys a false impression of that memory”. In my view the practice carries that very risk.

49. [328]

    For the same reasons I do not join in the criticism of Jackman J’s statement in Lantrak Holdings Pty Ltd v Yammine that his observations in Kane’s Hire were “… primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred ‘in words to the following effect’.” I see nothing wrong in a single judge attempting to correct a misguided practice where there is no appellate authority supporting the practice. Nor do I accept that there should be any continued confusion after this Court’s decision in Gan v Xie.

50. [329]

    This is not to say that evidence of a conversation is inadmissible or should be rejected because the evidence is in direct speech prefaced by “words to the effect of”. In Gan v Xie the primary judge’s error was in thinking that a witness should be able to recall the actual words said, rather than the gist of the conversation, to be able to establish a misrepresentation.

51. [330]

    That finding did not address the desirability of the still current New South Wales practice. But I, with the concurrence of Simpson AJA and Basten AJA, endorsed Jackman J’s reasons in Kane’s Hire.

52. [331]

    This Court’s endorsement in Gan v Xie of Jackman J’s reasons in Kane’s Hire may have been obiter. Our reasons on this issue in this appeal are also obiter.

53. [332]

    These reasons do not seek to qualify the oft-cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. As Jackman J said and this Court held in Gan v Xie, McLelland CJ in Eq’s observations are not a requirement for perfection. It is not only in a case where a witness whose evidence is believed professes a recollection of actual words used that a court can accept that a particular representation was conveyed. Even if a witness uses indirect speech, or can only express his or her understanding of the outcome of a conversation, that evidence, if the witness is otherwise credible, may be compelling.

54. [333]

    KIRK JA: I agree with the orders proposed by the Chief Justice for the reasons comprehensively given by his Honour together with the following reasons with respect to the issue of the form of evidence of conversations.

55. [334]

    It has long been common practice in litigation in this State for evidence as to past statements or conversations to be put into direct speech, typically prefaced by a qualification along the lines that “words to the following effect” were said. Objections are sometimes upheld if the practice is not followed. The practice has sometimes been applied with excessive zeal. It is not an invariable legal requirement. The Full Court of the Federal Court said forty years ago that “[t]he rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law”: Commonwealth v Riley (1984) 5 FCR 8 at 34. Yet it has sometimes been applied as though it were a rule of evidence.

56. [335]

    An objection to evidence on the basis of the practice is commonly said to be one of “form” and/or “conclusion”. The legal foundation of such objections is somewhat obscure, especially since the enactment of the Evidence Act 1995 (NSW) (the Act). On one view it is a matter of common law: note Stephen Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters) at [EA.26.270] (Odgers). That possibility raises the issue of the extent to which such common law rules have continued operation given the introduction of the Evidence Act, on which differing views have been expressed: contrast Odgers at [EA.Intro.120] with J D Heydon, Cross on Evidence (13th ed, 2021, Lexis Nexis) at [1720]-[1750]. Section 56(1) of the Act provides that “[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding” (and see also the introductory note at the beginning of Ch 3 of the Act).

57. [336]

    In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688, at [9], Barrett J noted that one possible basis is s 135 of the Act, although that would require the objector to establish that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time. His Honour noted an alternative way of looking at the matter at [10]: “I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced”. In that case his Honour excluded the relevant evidence in an affidavit, giving leave for the evidence to be adduced orally. He did not elucidate the legal basis upon which the Court might control how the evidence was tendered or adduced, although he did refer to court rules addressing the giving of oral evidence (at [10]-[11]); cf now Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3(k) and 31.1; Civil Procedure Act 2005 (NSW), ss 61-62. Whether such rules, or other legal powers relating to a judge controlling what occurs in court, extend to rejecting evidence only because not given in direct speech could be open to argument. His Honour had earlier ruled out s 29(2) of the Act, relating to giving evidence in narrative form, as a possible basis for objections to evidence in the form of an affidavit (at [6]-[7]).

58. [337]

    A further possible way of looking at the issue was outlined by White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379, namely that the “real objection” was that evidence of the gist of a conversation “contained conclusions as to the effect of the conversation which were inadmissible under s 76 of [the Act] as opinion evidence” (at [3]). This understanding reflects the fact that an opinion is “an inference from observed and communicable data”: Connex at [10], quoting Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. It was held in Connex that such evidence can be admissible as lay opinion evidence pursuant to s 78 of the Act. At the least, the “conclusion” objection echoes concerns about opinions insofar as the complaint is that a conclusion is stated without articulation of the matters which led to that conclusion being reached: note Connex at [5]-[18]. Where the basis of the conclusion is not disclosed, it can be argued that the evidence is unfairly prejudicial to the other side and of little assistance to the trier of fact. That evidence of a conversation in indirect speech may be treated as admissible pursuant to s 78 has since been accepted: Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [120], and authority there cited.

59. [338]

    It is not necessary here to seek to locate the legal basis of the direct speech practice. Whatever its basis, it has regularly been reiterated since Riley that the practice is not a generic rule of law: eg R v Wright (1985) 19 A Crim R 17 at 19; R v Noble [2002] 1 Qd R 432; [2000] QCA 523 at [18]-[20]; LMI at [8]; Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551 at [82]-[83]; Hampson v Hampson [2010] NSWCA 359 at [40]; Director of Public Prosecutions (Cth) v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 at [11]; Chen v Chu [2024] NSWSC 1139 at [269].

60. [339]

    In R v Noble a criminal accused complained that a miscarriage of justice had occurred because the trial judge hampered a witness giving evidence by regularly intervening to insist that the content of conversations be put in direct speech. The Queensland Court of Appeal, applying common law, held that the judge had erred in this regard, although the appeal was dismissed on the basis of the proviso. Pincus JA said as follows:

61. [340]

    The approach of the trial judge in that case is an illustration of the excessive zeal with which the practice of requiring direct speech has sometimes been applied. It is important to recall that any legal rules or practices applicable here apply, within this State, not only in the Equity Division of the Supreme Court hearing civil matters but, for example, in criminal trials in the Local and District Courts around the State. The ability of a witness in a prosecution in the Local Court to give evidence in direct speech, after little if any time spent in preparation with a legal practitioner, is not likely to be the same as a business executive appearing in a commercial dispute who has spent significant time preparing with solicitors and counsel. The plea of the witness in R v Noble is noteworthy (as quoted at [17]):

62. [341]

    There is a spectrum here. At one end of the spectrum a witness will (claim to) have a memory of some or all of the actual words spoken by a person or in an exchange. Along the spectrum a witness may not remember the words spoken but can recall the substance, gist or effect of those words, including perhaps the order in which points were made by either side in an exchange. Or they may only have a memory of the topics discussed and of the effect of some portion of the points made. Towards the other end of the spectrum the witness may only have a recollection of what they understood to be the outcome of the interaction.

63. [342]

    Insofar as the witness can recall the actual words spoken then they should state those words in direct speech, that being the best form of the evidence: see eg LMI at [8]; Hamilton-Smith at [83]. It is proper and useful for a witness to delineate what words they have an actual memory of being said from those matters of which they can only recall the substance: R v Wright at 19; LMI at [10]; Hamilton-Smith at [83]; Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [129(3)].

64. [343]

    Insofar as the witness can only recall the substance of what was said then they can recount that recollection without being required to state it in direct speech. The witness can also give such evidence in direct speech, prefaced by words indicating that “words to the following effect” were said.

65. [344]

    It has recently been suggested that putting such evidence in direct speech is (i) contrary to law, (ii) potentially unethical for legal practitioners involved, and (iii) such as to raise doubts about the credibility of the witness: Kane's Hire at [123], [126]-[127], [129(2), (5) and (6)]; Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [277]; Chu v Lin, in the matter of Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766 at [11].

66. [345]

    As to the first of those propositions, it was said in Kane’s Hire at [123] that “[e]vidence should be given in direct speech only if the witness can remember the actual words used: Noble at [20]; LMI Australasia at [8]; Hamilton-Smith at [83]”. The proposition is not supported by the authority cited and should not be accepted. That authority indicates that such evidence need not be given in direct speech. It does not say that it is impermissible or improper for a witness to put something into direct speech where they make clear they are only testifying as to the effect of what is said. So much is unsurprising given that the practice of doing so has been described as “ubiquitous”: Country Care at [6]; see also Chen v Chu at [262].

67. [346]

    In Gan this Court recently upheld an appeal on the basis that the primary judge had erred in excluding evidence from two witnesses of the substance of what had been said in conversations which had been expressed in direct speech. White JA, speaking for the Court, said the following (see also at [118]):

68. [347]

    The first proposition is also contrary to one recent decision of the Federal Court and in tension with another. In Country Care Bromwich J rejected an objection to “references in numerous witness statements to conversations that are reproduced in those statements prefaced with ‘words to the following effect’ or ‘words to the effect’” (quotation from [2]). In Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147; (2021) 157 ACSR 77 at [46]-[71] O’Bryan J rejected an objection to evidence of an understanding of a conversation where that evidence was “supplementary” to evidence stating in direct speech words to the effect of what had been spoken (see at [68]).

69. [348]

    As for the second proposition, about ethics, it would of course be unethical for a legal practitioner to settle, file, read or tender evidence which they knew to be false or misleading. But if a witness records words in direct speech prefaced by the phrase “word to the effect of” then the witness is overtly disclaiming having an exact recollection of the words said. The witness is not then falsely conveying a verbatim recollection of a conversation by using direct speech. No doubt issues of degree may arise where an affidavit does express or imply a greater specificity of recollection than the witness actually holds.

70. [349]

    Much the same may be said with respect to the credibility of a witness. It is self-evidently true to say the following (Kane’s Hire at [129(6)]):

71. [350]

    A similar point had been made in 1883 by Cooley J in Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883), which was quoted approvingly by White J in Connex at [17]:

72. [351]

    These points apply if the witness claimed to have an exact recollection of words used. If the witness has disavowed making any such claim then there is no adverse effect on their credit merely because they have expressed their best recollection in the form of direct rather than indirect speech. Again, whether or not a witness has overstated their degree of recollection and how that might affect their credit will depend upon all the circumstances.

73. [352]

    Thus for a witness to express in the form of direct speech a memory which they acknowledge to be only as to the gist of what was said is not contrary to law (just as it is not required by law), nor inherently unethical, nor such as to necessarily cast doubt on the witness’s veracity. A witness has some flexibility as to how they express a recollection of the gist of a statement or conversation. There is no invariable requirement that it be put in either direct or indirect speech. That being said, there may be factors militating in favour of one or the other.

74. [353]

    Evidence should be given in a way that is relevant and truthful and that explains the bases of any conclusions. It should meaningfully reflect what the witness actually recalls, has expressed and can explain and defend under further questioning. There can be an increasing degree of artifice in putting lengthier statements or conversations into direct speech. To require a witness to put in direct speech even a moderately lengthy conversation, the effect of which is supposedly recalled from some time ago, would be liable subsequently to lead the witness into confusion and not greatly assist the trier of fact.

75. [354]

    On the other hand, there are circumstances in which it is preferable to put a gist memory into direct speech. In some instances the form of a particular statement will matter, for example with respect to a representation said to found a claim in estoppel or for misleading conduct, or where a claim is made based upon a term of an oral contract. Such a point was made by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:

76. [355]

    In cases where the form of a statement does matter then even if they cannot recall the precise words used it will generally be desirable for the witness to state their best recollection of the substance of the words used in direct speech.

77. [356]

    In sum, insofar as a witness recalls actual words used then the witness should state those words in direct speech. Insofar as the witness recalls only the substance of what was said then they can give evidence accordingly. Such evidence can be in the form of direct speech – after explaining that it is recording only the substance, effect or gist of what was said – or in indirect speech. The aim should be to capture the best recollection of the witness with a level of detail appropriate and relevant for the issue in the case, doing so in a way that is not misleading with respect to the level of detail that the witness remembers, and which meaningfully captures what the witness remembers in a way that the witness has expressed and can explain. In instances where particular spoken words are the foundation of a legal claim it is desirable that the witness’s recollection of the substance of those words be put into direct speech, in terms indicating that the witness is testifying to the substance or gist of what was said.

78. [357]

    In this matter, Mr Puleo gave evidence of his usual practice in obtaining instructions for wills, indicating that he could not recall the exact words he had used some 10 years earlier. As the respondents submitted, the mere fact that he could not recall the words used could not sensibly mean the evidence was not admissible or that an adverse credit finding should be made.