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Supreme Court of New South Wales - Court of Appeal |
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Supreme Court of New South Wales - Court of AppealLast Updated: 18 April 2008
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Piras v Egan [2008]
NSWCA 59
FILE NUMBER(S):
40311/06
HEARING DATE(S):
11
February 2008
JUDGMENT DATE:
11 April 2008
PARTIES:
Augusto Piras - Appellant
Michael Andrew Egan - First
Respondent
Renata Judith Egan - Second Respondent
JUDGMENT OF:
Giles JA Tobias JA Campbell JA
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
5185/03
LOWER COURT JUDICIAL OFFICER:
Macready AsJ
LOWER
COURT DATE OF DECISION:
4 May 2006
LOWER COURT MEDIUM NEUTRAL
CITATION:
Piras v Egan [2006] NSWSC 328
COUNSEL:
D A Smallbone -
Appellant
M T Bridger - Respondents
SOLICITORS:
Anderson Lawyers,
Burwood - Appellant
Robilliard Lawyers, Parramatta -
Respondents
CATCHWORDS:
SUCCESSION
WILLS PROBATE AND
ADMINISTRATION
whether appellant entitled to entire estate of
deceased
whether appellant was the de facto spouse of the intestate
s
61B(2) and s 32G(1) Wills, Probate and Administration Act 1898
whether
appellant and deceased lived together as a couple
s 4 Property
(Relationships) Act 1984
relationship between definition of ‘de facto
relationship’ in s 4 Property (Relationships) Act and list of
‘circumstances’ in s 4
claim in alternative for provision out of
estate under s 7 Family Provision Act 1982
whether appellant was in a
“close personal relationship” with the deceased
s 5(1)(b)
Property (Relationships) Act
whether appellant was an “eligible
person” within s 6(1) Family Provision Act
whether appellant was a
member of the household of which the deceased was a
member
EVIDENCE
witnesses
where trial judge forms view that
appellant’s unsupported word insufficient
whether trial judge’s
view was inconsistent with incontrovertible facts
whether trial judge’s
view was based on glaringly improbable evidence, or contrary to compelling
inferences
whether trial judge misused his advantage of seeing or hearing
witnesses
EVIDENCE
matters relating to proof
onus of proof
whether
findings of trial judge were merely findings that appellant had failed to
discharge an onus of proof
whether trial judge made positive
findings
EVIDENCE
weight and sufficiency of evidence
whether trial
judge gave insufficient weight to evidence of witnesses for
appellant
EVIDENCE
witnesses
whether trial judge’s acceptance of
evidence of witness A called for the respondents contravened rule in Browne v
Dunn (1893)
6 R 67
when that evidence alleged that witness B (earlier called
for the appellant) had made a particular statement, witness B had given
no
evidence concerning the topic of that statement, and the allegation that he had
made that statement had not been put to witness
B in
cross-examination
whether evidence of witness A gave rise to any imputation
against witness B
PROCEDURE
whether failure of trial judge to inform
parties that he proposed to accord to an item of evidence a significance
concerning which
no submissions had been made or invited amounted to a denial of
natural justice
APPEAL
whether, assuming there had been a breach of
natural justice, a new trial would be required
whether “substantial
wrong or miscarriage” occasioned
Rule 51.53 Uniform Civil Procedure
Rules
EVIDENCE
witnesses
credibility of witnesses
whether, once
admitted, evidence of conviction can be used as tending to show a witness lacks
credibility
LEGISLATION CITED:
Crimes Act 1900
Family Provision
Act 1982
Property (Relationships) Act 1984
Uniform Civil Procedure
Rules
Wills, Probate and Administration Act 1898
CATEGORY:
Principal judgment
CASES CITED:
Abalos v Australian Postal
Commission [1990] HCA 47; (1990) 171 CLR 167
Allied Pastoral Holdings Pty Ltd
v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Autodesk Inc v Dyason (No
2) [1993] HCA 6; (1993) 176 CLR 300
Black Uhlans Incorporated v NSW Crime
Commission [2002] NSWSC 1060
Browne v Dunn (1893) 6 R 67
Channel Seven
Sydney Pty Ltd v Mahommed [2008] NSWCA 21
Coleman v Power [2004] HCA 39;
(2004) 220 CLR 1
Kingsland v McIndoe [1989] VR 273
Klein v Minister for
Education [2007] HCA 2; (2007) 232 ALR 306
Manns v Kennedy [2007] NSWCA 217;
(2007) 37 Fam LR 489; (2007) DFC 95-406
Markulin v Drew (1993) DFC
95-140
Monie v Commonwealth of Australia [2007] NSWCA 230
Munro v Lake
(Supreme Court of New South Wales, McLelland J, 8 February 1991, unreported)
MWJ v R [2005] HCA 74; (2005) 222 ALR 436
Nasr v State of New South Wales
[2007] NSWCA 101
Piras v Egan [2006] NSWSC 328
R v Commonwealth
Conciliation and Arbitration Commission; ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR
546
Saif Ali v Sydney Mitchell & Co [1980] AC 198; [1978] 3 All ER
1033
Tory v Megna [2007] NSWCA 13
West v Mead [2003] NSWSC 161; (2003) 13
BPR 24,431
TEXTS CITED:
Cross on Evidence, 7th Australian ed (2004)
LexisNexis Butterworths
DECISION:
(1) Appeal dismissed.
(2)
Appellant to pay the Respondents' costs of the appeal.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF
APPEAL
CA 40311/06
SC 5185/03
GILES JA
TOBIAS JA
CAMPBELL JA
11 APRIL 2008
Augusto PIRAS v Michael Andrew EGAN & ANOR
Judgment
1 GILES JA: I agree with the reasons of Campbell JA, save that I
respectfully do not share the doubts expressed in [174].
2 The evidence of Renate Egan concerning changing of the locks assisted
the conclusion that the appellant maintained and lived at
the flat at Lindsay
Street, Neutral Bay and did not live on a full-time basis at the
deceased’s flat. Whether or not that
was so was centrally in issue, and
there was a deal of other evidence founding the conclusion. The trial judge was
not obliged to
exclude in his fact-finding evidence to which one party or the
other may not have specifically referred.
3 Renate Egan’s evidence was there, and the appellant had the
opportunity to make submissions in relation to it as in relation
to all other
evidence. The requirements of natural justice, now often referred to as
procedural fairness, depend on the circumstances,
see for example R v
Commonwealth Conciliation and Arbitration Commission; ex parte Angliss
Group [1969] HCA 10; (1969) 122 CLR 546 at 552-3 per Barwick CJ and McTiernan, Kitto,
Taylor, Menzies and Owen JJ). It was not necessary that the trial judge
disclose before
judgment that he saw in the evidence what he described at [73]
as “a clue as to what might have been going on”, any more
than it
was necessary that he disclose before judgment the significance he saw in other
of the host of competing factual indicators
of the nature of the relationship
between the deceased and the appellant.
4 I agree with the orders proposed by Campbell JA.
5 TOBIAS JA: I agree with Campbell JA subject to the additional
remarks of Giles JA.
6 CAMPBELL JA:
Nature of the Case
7 Roberta Anne Egan died on 21 April 2003 aged 47 and intestate. She
died of cancer, which first manifested itself in February 2002.
At the time of
her death she was unmarried, had no children, and no living parents or
grandparents. Her closest blood relations
were her half-siblings Michael Egan,
Renate Egan, and Martin Egan. Michael and Renate Egan applied for Letters of
Administration
of Roberta’s estate, and obtained a Grant of Letters of
Administration on 25 August 2003. That grant was one in common form.
8 The Appellant brought proceedings against Michael and Renate on 8
October 2003, seeking an order under the Family Provision Act
1982. It was never in dispute in the litigation that the Appellant had
been a friend of the deceased, and had assisted her during the
last few years of
her life. He claimed, however, that the relationship was more than friendship,
and that he was the de facto spouse
of the deceased.
9 Section 61B(2) Wills, Probate and Administration Act
1898, must be construed in the manner required by section 32G(2)
Wills, Probate and Administration Act to extend the word
“spouse” to a person who at the time of the death of an
intestate was the de facto spouse of the intestate. So construed, it has the
consequence
that if the Appellant had been the de facto spouse of the Deceased
her estate would have been held in trust for him absolutely.
In that
circumstance, he would have had a better claim to be the administrator of the
estate of the Deceased than half-siblings of
the Deceased would have had. Once
the legal advisors of the Appellant had realised that that was the state of the
law, they filed
an Amended Summons on 29 April 2005 seeking a declaration that
the Appellant was the de facto spouse of the Deceased, an order revoking
the
Letters of Administration that had been granted to Michael and Renate, an order
granting Letters of Administration to the Appellant,
and a declaration that the
Appellant was entitled to the entire estate of the Deceased. The claim for
provision out of the estate
under the Family Provision Act
remained in the Amended Summons, as an alternative claim. The Appellant
claimed standing to bring an application under the Family Provision
Act, even if he was not the de facto spouse of the Deceased, on the
basis that he was in a close personal relationship with her, of the
type that
falls within para (a)(ii) of the definition of “eligible
person” in section 6(1) Family Provision Act, or that he
had been partly dependent upon her and a member of her household and so fell
within para (d) of that definition.
10 Associate Justice Macready heard the case over four days in November
2005. In May 2006 he delivered a judgment dismissing the
proceedings and
ordering the Appellant to pay the costs of the administrators: Piras v
Egan [2006] NSWSC 328. The Appellant appeals against that decision.
The Deceased and her Family Background
11 The Deceased was born on 21 March 1956. Thus she was aged 47 at the
time of her death. The Deceased’s mother was killed
in a motor vehicle
accident the day before the Deceased’s fourth birthday. Over the period
from the Deceased’s birth
until 1962, she and her father lived overseas,
but in 1962 they returned to Australia. In 1963 the Deceased’s father
married
his second wife, Victoria Egan. They had three children, Michael (born
September 1964), Renate (born December 1965) and Martin (born
February 1971).
Around 1969 the Deceased began to truant from school and was apprehended for
shoplifting. The family were at this
stage living in Perth.
12 In 1972 the family returned to Sydney. The Deceased did not want to
leave Perth.
13 The trial judge found (at [12-17]):
“On Easter Saturday 1973 the deceased disappeared from home. She was apprehended in Perth. According to Victoria Egan, her husband told her that the Magistrate in Perth required the deceased to undertake psychiatric treatment. On 6 May 1973 the deceased was admitted to Chelmsford Private Hospital for two months undergoing deep sleep therapy. The deceased thereafter came under the care of Dr Bailey.
The deceased made a number of suicide attempts and began to use prescription and illegal drugs. The use of these continued over many years. The deceased completed her Higher School Certificate at Hornsby Technical College.
In 1974 or 1975 the deceased attended Newcastle University for approximately three months. Apparently the deceased had begun to use heroin at this time. In 1976 the deceased injured her leg in [a] motorcycle accident and received a settlement [of] approximately $6,000.00. She continued to live at home.
In February 1979 the deceased attended a second session at Chelmsford Hospital. In the 1980’s the deceased lived at home. In the late 1980’s the deceased attended a detoxification program in Byron Bay at the Buttery where she met her future de facto, Adrian Chenhall. Various members of her family later helped the deceased move in with Adrian Chenhall.
In the mid 1990’s the deceased received compensation for her treatment at Chelmsford Hospital in the sum of $350,000. The Office of the Protective Commissioner administered her compensation and the amount remaining is included in the estate.
In 1996 the plaintiff first met the deceased who was living with Adrian Chenhall and with whom she had been living for the previous 10 years. In December 1997 Adrian Chenhall died and the deceased moved into a flat owned by the Department of Housing at 3/13 Edward St Bondi.”
14 The Deceased continued to be
the tenant of the flat at Edward Street, Bondi until the time of her death. The
Appellant never became
a co-tenant there, or acquired any other legal right to
occupy.
Estate of the Deceased
15 At the time of her death the Deceased had two principal assets. One
was a block of land at Blackheath on which was erected a weatherboard
cottage in
very poor condition. She obtained this land in consequence of Adrian
Chenhall’s death. At the time of obtaining
the Letters of Administration
its value was estimated at $610,000. The other substantial asset at the time of
death was the monies
held by the Office of the Protective Commissioner, which
totalled a little over $288,000. The Deceased lived by the Office of the
Protective Commissioner making an allowance to her from time to time. Though
she may have had occasional employment, she never had
regular long-term
employment. The only other assets at the time of her death were a Commonwealth
Bank account containing a little
over $3,400, and personal possessions of no
particular value.
16 By the time of the hearing, the only estate assets were the Blackheath
land, (which a professional valuation by then valued at
$465,000) and around
$228,000 held on an IBD with the ANZ Bank. Thus, by the time of the hearing the
assets of the estate were of
the order of $695,000. The trial judge was
informed of the costs that parties had incurred to date, and concluded that if
all of
those amounts were recoverable from the estate the net distributable
estate would be a little less than $506,000.
The Appellant
17 The Appellant was born in 1950, and is of Italian nationality. He
does not have a right of permanent residence in Australia.
He says he has been
living in Australia continually since 1984. On his own account, he was last in
paid employment "around the year 2000".
18 On 4 December 2002 the Appellant was arrested on charges of supplying
a commercial quantity of a prohibited drug, and having goods
suspected of being
stolen on the premises. He was in prison and unable to obtain bail until 24
April 2003, three days after the
death of the Deceased. He pleaded guilty in
the District Court on 23 June 2004 to a charge of knowingly taking part in the
supply
of a prohibited drug, namely heroin. This was a lesser charge than that
with which he had been originally charged, which related
to supply of a
commercial quantity of the drug. He was due to be sentenced on 20 August 2004.
However by the time of the trial
of the action from which the present appeal is
brought in November 2005 he had filed a Notice of Motion seeking to reverse his
plea,
and the outcome of that Notice of Motion was not known.
The Nature of the Evidence in the Case
19 The case was unusual in having evidence that gave totally divergent
accounts of the relationship between the Appellant and the
Deceased. That
divergence covered both the documentary evidence, and evidence of witnesses. It
is necessary to give an unusually
extensive account of the type of evidence with
which the trial judge had to deal.
The Appellant’s Evidence
20 The Appellant’s evidence was that he had first met the Deceased
in 1996, when she was still living with her then de facto
Adrian Chenall. He
says that he and the Deceased lived together as a couple at the Deceased's unit
in Edward Street, Bondi continually
from September 1999 until 4 December 2002.
21 According to the Appellant, during their life together he did most of
the cooking, and they did the cleaning and shopping together.
The Deceased was
an artist, and he says he encouraged her painting, and that she spent a lot of
time reading and painting. They
went out occasionally on social visits with
friends, and sometimes went to the Deceased’s property in the Blue
Mountains.
He said he paid for all the food and groceries, and that although he
did not have a regular income he had some savings. He says
that he looked after
her from the time she was diagnosed with breast cancer in February 2002 until
the time of his incarceration.
22 The Appellant had some involvement with the Deceased’s family.
The Deceased went to her family’s house for dinner
on Christmas Eve every
year. In one affidavit the Appellant said that on two Christmas Eves (out of
the three that occurred during
the time the Appellant says the relationship was
on foot) she went to the family function and he "went with her". That
evidence was clarified in a later affidavit by saying he attended Christmas Eve
dinner in 1999, and on Christmas Eve 2001 he
drove the Deceased to the suburb
where the family home was located but did not attend the dinner. The Deceased
did not drive a motor
vehicle, so always needed to have someone to drive her if
she was to travel any distance from her flat. On another occasion they
called
in at the house with gifts for the father and stepmother of the Deceased. They
attended an engagement dinner for Martin Egan.
They were invited to Michael
Egan's wedding in June 2000, but were asked to leave when they arrived with an
additional guest who
had not been invited.
23 The Appellant said that there were toiletries and shaving equipment belonging to him at the Bondi flat at the time of his arrest. He explained the fact that no such items were found by the Deceased’s family after her death by saying many other people had been through the premises after his arrest. That may well be so – I mention that the evidence did not include any list of items taken by the police in the course of execution of the search warrant on 4 December 2002, and the Deceased lived there on and off over several months after the Appellant was incarcerated, sometimes receiving visitors there.
Evidence of Friends and Acquaintances
24 There was evidence from various friends of the Appellant and the
deceased. Geoffrey Butler gave evidence of visiting the Bondi
flat on occasions
and finding both the Appellant and the Deceased there, that they cooperated in
providing drinks and snacks on those
occasions, and that there was only one
large bed in the flat. He gave evidence of seeing more than one toothbrush in
the bathroom
at the flat, and that there were some of the Appellant's "teas
and special preferences in the kitchen". He also gives evidence of going
out with the two of them on a number of occasions to social events, that they
arrived and left
together at those occasions, and that he considered them to be
a couple. He said that he observed them together, from the end of
1999 on many
occasions, sometimes only once a month, but at other times two or three times a
week, and that they were affectionate
to each other.
25 Another friend, Bronwyn Fullerton, gave evidence of seeing them together shopping or having coffee in Bondi. She had known the Appellant since 1985, and in 1999, when Ms Fullerton wanted to sell a desk, the Appellant "said that his friend, Roberta was looking for a desk and they came to my house to look at the desk". The Appellant used to call at Ms Fullerton's house "a lot and he began bringing Roberta. Both Augusto and Roberta were very fond of my daughter Georgia and they were constantly bringing her gifts." In cross-examination she said that he came to visit her at her place, rather than her going to visit him at his place though she visited "their flat" on one occasion and looked at the Deceased’s paintings. She said she might see the Appellant "every six months, maybe once a year." In cross-examination she denied that she had jumped to the conclusion that they were partners; rather, the Appellant had said, "she is my girlfriend". I note that “my girlfriend” is an equivocal expression.
Mr Smithson
26 Jonathan Smithson has trained as a psychiatrist but at the time of the
events relevant to this case had voluntarily removed his
name from the roll of
medical practitioners. The trial judge said he was a witness “who I
would normally accept”.
27 Mr Smithson first met both the Deceased and the Appellant "sometime
in 2000" at an exhibition at the Art Gallery of New South Wales. Thereafter
he saw them about once a month. Sometimes they went out to social
events
together. Sometimes he visited them at the Deceased’s Bondi flat. He
observed a single bed in the bedroom, male toiletries
and several toothbrushes
in the bathroom, and often, "including calls later in the evening" the
Appellant would answer the phone at the Bondi flat, or ask Mr Smithson to ring
him on the number of the Bondi flat when Mr Smithson
rang the Appellant on his
mobile phone. On two or three occasions in 2001 he went with both of them to
Blackheath. He observed
Appellant doing the washing, and assisting with the
drying and folding of clothes. He observed that the items washed included
clothing
of the Appellant, which he recognised. He also saw the Appellant
attending to other small household tasks. He estimates he went
to the Bondi
flat 20 to 30 times in 2000, and about 20 times in 2001, and that on most of
those occasions the Appellant was either
already there, or else appeared during
the course of Mr Smithson's visit. He gave evidence of the Appellant referring
to the Bondi
flat as "home", without any apparent demur by the Deceased,
and of the Deceased referring to it as "home" in conversations with the
Appellant. After the Deceased was diagnosed with cancer he observed signs of
affection between the Deceased
and the Appellant. After the Appellant was
incarcerated, Mr Smithson was at the Bondi flat "very often" when the
Appellant telephoned, or when he heard a message from the Appellant on the
answering machine.
28 His evidence in chief was that the Deceased told Mr Smithson that she
was concerned that the Appellant should have proper legal
advice, and spoke of
establishing a "fighting fund" of $100,000 for the legal costs of the
Appellant. In his cross-examination Mr Smithson thought that the fighting fund
that she talked
about might have been $100,000, but was not sure.
29 Mr Smithson provided significant support and assistance to the
Deceased in the period after the Appellant was incarcerated, sometimes
staying
over at the Bondi unit to assist. He accompanied the Deceased to Silverwater
Gaol on several occasions when she went there
to visit the Appellant. He gives
evidence of having overheard conversations in early December 2002 where the
Deceased said to Mr
Tsolakis and Mr Foster (lawyers who were representing the
Appellant at that stage) "I am his partner. Do what you can to help him. I
have property I can put up for his bail."
30 Mr Smithson’s summary, in cross examination, of their
relationship was:
“... She spoke of wanting to retire to the mountains together, had business plans together. She belly ached to me – she complained about him in a way that seemed pretty intense at times. More than just complaining about my annoying friend. She never said to me he is my de facto husband. She didn’t introduce him like that.
Q. They were friends?
A. You say that, and they certainly were friends, but they were together in this place.”
31 Mr Smithson said
that after the Appellant went into Silverwater, the Deceased at times told him
(Mr Smithson) that she did not
want to have any telephone calls from the
Appellant.
Mr Youl
32 Mr Edward Youl is a carpenter, who met the Appellant and the Deceased
in about May 1999. On several occasions he made frames,
and stretched canvasses
over the frames, for the Deceased. He saw them a few times until October 1999,
then did not see them again
for "about a year and a half". Then he went
out with the two of them on two occasions, once to a restaurant and another time
to coffee, and visited the Bondi
flat about three times to deliver frames. On
one of those occasions he shared a bottle of wine with the Deceased and the
Appellant
at the flat, and spoke to them about where some shelving could go in
the flat. On each occasion he went to the flat they were both
there. He
assumed that they were a couple. He also recalls driving past the flat, and
"on about half a dozen of these occasions" seeing the Appellant's motor
vehicle (which was to him quite distinctive) outside the flat. In
cross-examination he agreed that
neither the Appellant nor the Deceased offered
him any information about the terms of their relationship.
Evidence of Lawyers
Mr Tsolakis
33 Mr Vasso Tsolakis acted for the Appellant concerning obtaining bail
for "about three to four weeks" before his instructions were withdrawn.
He gave affidavit evidence that he was contacted by the Deceased seeking
representation
for the Appellant. His recollection is that her words were "I
need you to help my partner. His name is Augusto Piras and he has been arrested
by the Police in our home for some drug matters". Mr Tsolakis gave
affidavit evidence of her telling him "Augusto and I live together in a flat
in Edward Street Bondi". However his notes contain no mention of any such
conversation. He also gives evidence of an occasion "during the bail
hearing" when the Deceased said words to the effect "you can use my home
as a surety to get Augusto bail." Mr Smithson confirms that he was with her
when she made that offer. Mr Tsolakis agreed in cross-examination that the file
he opened
for the Appellant gave the Appellant's address as 13 Campbell Ave,
Paddington. Mr Tsolakis did not recall who told him to put that
address down,
but "assumed" that that was the address that the Appellant gave him.
34 While Mr Smithson gives evidence confirming that the Deceased offered
to Mr Tsolakis to put up property for the bail of the Appellant,
there is no
evidence of any property actually being offered to the court for bail, until Mr
Gold offered $100,000.
Mr Gold – Circumstances of Obtaining Bail
35 Garry Gold, solicitor, acted in connection with the criminal matter of
the Appellant in 2003 after the instructions of Mr Tsolakis
were withdrawn. He
visited the Bondi flat on two or three occasions. He saw men's shoes and
clothing, shavers and men's toiletries
there. The Deceased told Mr Gold that
she would foot the legal bill for the Deceased.
36 When bail was eventually granted to the Appellant it was on the
security of $100,000 cash lodged with the court. That cash was
supplied by the
parents of Mr Gold, Nie Hing Lau and Chik Keung Ng, and Mr Gold informed the
court at the time bail was granted that
the money was a "gift from Roberta
Egan". When counsel for the Respondents was cross-examining the Appellant
counsel asked questions about the posting of bail on the mistaken
assumption
that bail was "posted by two gentlemen" – a mistaken assumption
with which the Appellant agreed, though he asserted "it was arranged by
Roberta". When asked where the Deceased got the money from, the Appellant
said it was "from a friend of mine", "and also somebody I worked
for". He said, concerning this, "I had advised Roberta to get in touch
with a friend of mine who I used to work for." When asked how she could
have raised money for the bail when she was so ill the Appellant said: "she
arranged to contact this friend of mine and this friend of mine went to see
Roberta and this was arranged while I was in Silverwater."
37 In cross-examination Mr Gold explained that he and his parents visited
the Deceased and received the money from her in cash. The
money was cash,
mainly in $50 bills. While the cross-examiner asked Mr Gold whether the
Deceased told him that the $100,000 was
a gift from her, the question was not
answered directly and the cross-examiner did not persist with it.
38 The cross examiner, presumably seeking to test whether the $100,000
was property of the estate, put to Mr Gold that if the Appellant
honoured his
bail conditions the money would eventually be returned to Mr Gold’s
parents. He agreed that the bail money would
be returned to his parents, but
expressed the view that his parents would not be obliged to return the money to
the estate, because
it was their money. His evidence was:
“Q. So she gave it to your parents as a gift, did she?A. Yes.
Q. These are people who she didn’t know. Why would she give a gift of $100,000 to your parents?
A. On the promise that my parents would help Mr Piras.
Q. I see. And on no condition that she would ever want it back. Is that right?
A. Well she knew she was going to die.”
39 Mr Gold gives evidence that in
"about March 2003" he received a telephone call from Jonathan Smithson,
asking him to contact the Deceased in St Vincent's. He went to see her, and
she
said that she had two months to live, and that she wanted to do a will, but was
too tired at that particular time. At her request,
he returned to see her in
the Hospice in the early to mid April 2003. According to his affidavit
evidence, she told him "In the later years I have not seen my family. Not
even at Christmas". The statement of which Mr Gold gives evidence, that the
deceased said she had not even seen her family at Christmas, is against
all the
evidence that in fact she saw her family every Christmas. He says she gave
instructions that "it is all to go to Augusto". He says she seemed
mentally clear at the time, and that she gave him a summary of her assets.
Other evidence shows that that summary
is an accurate one. However no will was
drawn up, let alone executed. In cross examination, when asked about what she
had said
concerning a will his evidence was:
“Q. Did she say to you ‘I want to do a will’?A. Not in those words.
Q. What did she say to you?A. ‘I want to do a will’? – well, I really can’t recall exactly what she said and to my recollection actually I can’t really reply to your question what she said to me because --
Q. You don’t remember?A. What exactly she said.”
40 He also
said:
“Q. Did you take any instructions from her to draft a will?A. I would say yes but there was no formal instruction as to her retainer and it come about when we talk about, well, she told me at that time I think she has about three months and then I ask her well, trying to get some business, that I was, had she made preparation when the time comes and she talk about her assets and things like that and I asked her whether she has a will.
Q. I take it she didn’t give you specific instructions to draw a will?A. She told me that she had, something about what is going to happen after she died and then I told her that is not going to hold up in court so she told me can you do it properly for me.
Q. But she didn’t give you specific instructions I take it as to, firstly, who she was going to appoint as executors, did she?
A. Um, no.
Q. I take it that you didn’t make a file note of any of those instructions that she gave you about what she thought that she might want to do if she was going to draw up a will?
A. There was no file notes.”
41 However
there is other evidence concerning the Deceased’s testamentary intentions.
During 2003 she discussed that topic with
Mr Smithson, who said:
“... a lot of what she had mentioned did not relate to any particular individual, it was for helping the underprivileged, particularly children in poor countries. I thought – that ain’t going to happen if you don’t put something in writing.
Q. What she wanted to do was help people in Timor and other more deserving people be it Timor or anywhere else where there were people who had very little?A. That was a main plank of her concern for her assets after her death.
Q. She certainly did not say to you, in 2003, she wanted Augusto Piras to have Blackheath?A. I think she did make a comment about that. She made comments about nieces and nephews, money for education and from a couple of nieces and nephews I had met – one boy had autism, he came around with his aunt – and Roberta’s family from – I am not sure which side – anyway a couple of nieces. Also she had, she was always generous to the kids in her family. That theme continued when wanting to do stuff for, really, underprivileged children and in relation to Augusto she mentioned two things, both Blackheath and a fighting fund, they were her words – at that stage he still had some legal difficulties.”
Other Evidence Bearing on Existence of a De Facto Relationship
42 On 1 July 2002 the Appellant and the Deceased flew to Canberra and
back. It appears that the purpose of the visit was to enable
the Deceased to
obtain a British passport. She was talking at the time of visiting Martin, who
lived in England. A receipt from
the travel agent who made the booking for the
Canberra flight says that the Appellant paid the fare of both of them, totalling
$625.90,
in cash.
43 On 30 January 2003 the Deceased sent, under cover of a letter
handwritten by Mr Smithson but signed by her, a cheque for $2,084
to the real
estate agent through whom the Appellant leased a flat at 7 Lindsay Street,
Neutral Bay, in payment of the rent for February
and March 2003. The cheque in
question was a bank cheque, drawn on the Sydney branch of the Commonwealth Bank
of Australia. Mr
Smithson says he obtained that cheque from the bank. The
evidence does not make clear whose money was used to purchase that cheque.
44 Records of the Department of Corrective Services show that the
Deceased visited the Appellant in gaol on five separate occasions,
on 5 December
2002, 15 December 2002, 2 January 2003, 8 January 2003 and 20 January 2003. On
the first of these visits she went
alone, but on the other three visits she went
accompanied by Mr Smithson.
45 The Deceased also paid some money into the Appellant’s prison
account. There is a receipt for $100 that she paid on 15 December
2002. There
is also a receipt for $100 dated 31 January 2003, that the Appellant identifies
as being related to a deposit by the
Deceased, although the receipt does not say
so on its face.
46 From a reading of the rulings on evidence at the trial I would have
concluded that the police Facts Sheet relating to the arrest
of the Appellant on
4 December 2002 was annexed to an affidavit that was read, but that the sentence
identifying the Facts Sheet
was rejected. The usual consequence of that would
be that the Facts Sheet itself would not be part of the evidence. However,
counsel
for the Appellant on the appeal, in both written and oral submissions,
made reference to the Facts Sheet, without demur by counsel
for the Respondents.
When the appeal has been conducted on the basis that the Facts Sheet was in
evidence, I shall assume that that
is the correct position. The Facts Sheet
gives the Appellant’s address as being that of the Bondi flat and says
“the defendant lives at the above address with a female
person”. It goes on to say that from 18 November 2002 a listening
device with camera was installed in particular premises in Ultimo; that
the
Appellant delivered heroin daily to the occupant of that room; that the occupant
of that room would contact the Appellant by
mobile phone “each
day” to arrange the delivery of heroin; and that
“surveillance police have followed the defendant from his
residence” to the Ultimo room. The last occasion when the Facts Sheet
asserts that the Appellant was captured by the camera entering the room
and
selling heroin was at 1:00am on 4 December 2002. The Facts Sheet records that
at 5:45am on 4 December 2002 police “executed a search warrant on the
defendant’s premises” at the address of the Bondi flat, and that
during the search of the premises an amount of $9,500 in cash was located.
47 The prison form completed when the Appellant was first placed in
custody on 4 December 2002 lists, under “Immediate Concerns and
Assistance Provided”, “rang friend Roberta [telephone
number]”. On that same form he nominated the Deceased as his next of
kin, describing his relationship with her as “friend”.
48 On 16 January 2003 the Appellant filled out a standard form headed
“Application to Visit Seriously Ill Relative”. This time he
nominated his relationship with the Deceased as
“partner/dependant”. That application was refused, on the
ground that her condition at that stage did not appear to be life
threatening.
49 In the course of his time in prison the Appellant made several
attempts to talk to the Deceased on the telephone, but was unable
to get
through.
50 He phoned her from gaol on 2 April 2003 and made contact. Another
attempt he made to call her on 15 April 2003 did not succeed
when she
“could not come to phone”.
51 The Appellant later completed another “Application to Visit
Seriously Ill Relative”. It nominates the Deceased as being his
“de facto”, in a section of the form that the inmate is
required to fill in. The date when the Appellant filled out that section of the
form
does not appear, but the application was approved on 2 April 2003 by the
first of the officials required to approve it.
52 The permission was finally granted on 15 April 2003, on condition that
“inmate to be handcuffed at all times and in custody of two
officers”.
53 The prison record shows that, after the second request had been
approved, and apparently on a date after 16 April 2003, the gaol
received a
message that the Deceased “does not wish to have inmate
visit”.
54 On 19 May 2003 Edmund Teng & Associates, the solicitors then
acting for the Appellant, wrote to the solicitors for the defendants,
saying
that they acted for the Appellant, and asserting that he was the de facto
spouse of the Deceased. The letter continued:
“We further note your clients have lodged a Caveat against the property at Blue Mountain, the original Certificate of Title of which our client is in possession of.
Please advise our office whether you have applied for Letters of Administration and if so, your clients are put on notice that Mr Piraz will be applying to the court for provision from the estate pursuant to the Family Provision Act 1982.
We further advise that our solicitor, Mr Garry Gold attended the hospital prior to Roberta’s death and on her instructions we drafted her Will but it was unfortunate that she past [sic] away prior to the actual execution of the Will.”
55 The evidence did not elucidate
how it came about that the Appellant was in possession of the original
certificate of title to the
Blackheath property. It does not make a claim that
the Appellant has a better claim to Letters of Administration by virtue of being
the de facto spouse. Further, notwithstanding that the letter suggests that an
unexecuted draft will is in existence, no such draft
has ever been produced, and
no application made for probate of it as an informal testamentary document,
under section 18A Wills Probate and Administration Act.
56 When Michael and Renate made application for Letters of Administration
they made an affidavit that the Deceased had no de facto
partner. They did this
even though that affidavit was made after they had received the letter from
Edmund Teng & Associates
which asserted that the Appellant was the de facto
spouse of the Deceased. In cross-examination they both said they made the
affidavit
because they believed it was true.
57 A person called Robert Williams filed a summons seeking provision from
the Deceased estate on 20 October 2004, on the basis that
he had been a member
of the Deceased’s household and partly dependent on her, and claiming that
he had lived in a de facto
relationship with the Deceased for a period of time.
The administrators settled that claim on the basis that Williams received a
legacy of $10,000 inclusive of costs. The comparatively small size of the
settlement amount is indicative that both Williams and
the administrators
regarded his claim as far from a strong one.
Statements by Appellant to Others Concerning His Address
58 The Appellant made numerous statements to people, including public
officials, to the effect that his address was somewhere different
to the Bondi
flat. A file note of an officer of the Department of Immigration and
Multicultural Affairs dated 29 October 1999, concerning
the Appellant’s
migration status states:
“When Mr Piras came to the counter on 20/10/99 he confirmed that he was still living at 13 Campbell Street Paddington.”
59 The Appellant completed an
application for a bridging visa on 20 October 1999, which showed his residential
address as 13 Campbell
Ave, Paddington. That form asked for correspondence to
be sent to PO Box 201, North Sydney.
60 On 23 February 2000 the Department of Immigration and Multicultural
Affairs wrote to the Appellant (c/- the firm of solicitors
the Appellant was
using in connection with a migration application) stating that he had been
granted a bridging visa. On 8 March
2000 the Appellant signed a document
acknowledging that the visa period was for “28 days after the Lie class
action decision”, and that the visa was subject to a condition that he
reside at 13 Campbell Parade, Paddington 2021. In cross-examination the
Appellant
said that he was not living at the Campbell Parade address at that
time, and indeed he had moved from there some time in the middle
of 1997. He
claimed to be unaware of the conditions on his visa.
61 In February 2000 the Appellant entered into a lease of an unfurnished
one-bedroom unit with car space located at Lindsay Street,
Neutral Bay. The
Appellant renewed the lease of those premises periodically, so that the lease
was still on foot at the time of
his arrest in December 2002.
62 On 29 July 2001 the Appellant rented a trailer, and gave as his
address 13 Campbell Avenue [sic], Paddington. His explanation
in
cross-examination for the address shown on the rental document was that he gave
the hirer his driving licence. If that explanation
is correct, it means that
his driving license at that stage showed his address as being 13 Campbell
Avenue, Paddington.
63 On 28 September 2001 the Appellant filled out and submitted to the RTA
an application for renewal of his driver’s licence.
In it he stated his
residential address to be 9 Premier Street, Neutral Bay.
64 On 3 October 2001 the Appellant filled out and submitted to the RTA an
application for a replacement driver’s licence. In
that form he gave his
address as being the Premier Street, Neutral Bay address. In cross-examination
the Appellant said that he
was not living at the Premier Street address at that
time, though he had lived there previously.
65 On 27 October 2001 the Appellant applied for a bridging visa, in which
he stated his “residential address” was 13 Campbell Parade,
Paddington.
66 On 27 December 2001 the Appellant reported to police at Waverley that
certain items had been stolen from his motor vehicle at some
stage between
10:00pm on 26 December 2001 and 8:00am on 27 December 2001, when the vehicle was
located at Denham Street, near the
intersection of Edward Street, Bondi. He
told the police on that occasion that his address was 9 Premier Street, Neutral
Bay.
67 In August 2002 his address for credit card bills was PO Box 201, North
Sydney.
68 On 11 December 2002 Australia Post sent the Appellant a form for
renewal of a mail redirection service that he had on foot, for
the redirection
of mail from 9 Premier Street, Neutral Bay to PO Box 201, North Sydney.
69 On 28 January 2003 Energy Australia posted the Appellant, at PO Box
201, North Sydney, a bill for electricity at the flat at 7
Lindsay Street,
Neutral Bay, for the period from 23 October 2002 to 24 January 2003. The bill
was for a total of $86.98, of which
$19.16 was a fee for availability of the
service, and $67.82 was a fee for the actual electricity used. The average
daily usage
during that period was 4 kilowatt hours. Bearing in mind that 4
kilowatt hours is enough electricity to keep a 100 watt light globe
burning for
40 hours, and that during the period to which the bill relates after 4 December
2002 the Appellant was in custody, there
was more than sporadic or occasional
use of electricity occurring at the flat prior to 4 December 2002. The bill
shows that the
average daily usage during the 90 days of the previous bill (ie
the 90 days preceding 23 October 2002) was 3 kilowatt hours, and
that the
average daily usage during the same period as that of the bill, but during the
previous year, was also 4 kilowatt hours.
70 In an affidavit of 29 April 2005 (after Michael Egan’s affidavit
of 1 April 2004 had annexed that electricity bill) the Appellant
explained that
that flat was one he used to live in
"... before I moved in with Roberta. I kept the place rented in my name but only used it [as] a storage facility. We sometimes went and stayed there on weekends usually after we brought items back from Blackheath."
71 When cross-examined, he said
that that affidavit evidence was wrong, and that he lived in Premier Street,
Neutral Bay "before 2000 I think", that he and the Deceased had spent
weekends at Premier Street, and that he had never lived in Lindsay Street. His
affidavit of 29
April 2005 did not attempt to explain the rate at which the bill
showed electricity as being used in the Lindsay Street unit.
72 His evidence, in re-examination about why he had given a false address
on various occasions was:
"I was always a bit afraid of my bridging visa finishing and being located. I always put an address, over the years, where I did not live."
73 There are some exceptions to this
string of statements by the Appellant that he lived other than at the Bondi
flat. One concerned
the registration of his motor vehicle during a two-month
period. The Appellant owned a white Toyota Camry station wagon. Between
1
November 2002 and 31 December 2002 it was registered in the name of the
Appellant, and the RTA records showed his address in connection
with that
registration as being the address of the Bondi flat. On 24 February 1998 he
gave the address of the Bondi flat as his
address when purchasing a filter
cartridge. That date is before the time he claims to have been living at the
Bondi flat. In connection
with that purchase he gave the vendor the telephone
number of the Bondi flat as his telephone number. The evidence also includes
an
invoice dated 10 June 1999 from a printing company that stated: “Bill
to: Expressions by Roberta Egan & Augusto Piras” and gave the
address of the Bondi flat. It also stated that the order was lodged by the
Deceased.
74 Another letter from an insurer dated 1 July 1999 was addressed to the
Deceased and the Appellant at the address of the Bondi flat,
declining to grant
house and contents insurance for the Blackheath property.
75 A receipt dated 22 September 1999 related to the sale to the Appellant
of a fruit and vegetable juice extractor for $39.95. It
gave his address as
that of the Bondi flat, and also stated that the item was to be shipped to him
at the Bondi flat.
76 The Appellant issued a Local Court Statement of Liquidated Claim on 26
May 2000 seeking to recover the cost of repairs to his vehicle
sustained in a
collision. That court document gave the Appellant’s address as that of
the Bondi flat.
77 In assessing the significance of these documents showing a connection
between the Appellant and the Bondi flat one would need to
bear in mind the
contention of the Appellant that he “always” put an address
where he did not live. If that contention were correct, it may be significant
that, so far as the evidence discloses,
he provided the Lindsay Street, Neutral
Bay address to no governmental official.
Statements by the Deceased to Others Relevant to her Relationship with the Appellant
To Medical Professionals
78 On 31 August 2000 the Deceased arrived in the emergency department at
St Vincent’s suffering from pneumonia. The registration
form gave her
marital status as “S”, and nominated as the person to notify
“Victoria, step mum”. A triage patient assessment record
completed five minutes after she arrived nominated as a contact person
“Augusto”, and gave the telephone number of the Bondi flat.
He was described in the form as “friend”, but the only other
alternative that the form offered was “relative”. Concerning
him, a box for “to be contacted” was ticked, while boxes for
“present”, “coming” and
“aware” were not ticked. In evaluating the significance of
this, it is relevant that the Deceased had a telephone answering machine at the
Bondi flat, that she regularly used to screen telephone calls before answering.
Thus, one could infer that she wanted the Appellant
to be told of her condition,
and that she understood that he could be informed by telephoning the telephone
number of the Bondi flat,
but one could not infer that she expected him to get
the message because he would be at the flat at the time of the telephone call.
Also, one could infer that at the time of her admission he was not aware that
she was being admitted, and was not already coming
to the hospital.
79 A history of the Deceased taken on 31 August 2000 at 9:00pm by an
intern, records:
“Social life lives alone in Bondiwidow”
80 Another history taken on 31
August 2000 at 22:55pm by a medical registrar records “lives alone,
husband died, no children”.
81 The registrar also recorded, concerning her illegal drug use:
“Many sorts in past nownow occl heroin
last used yesterday. (infrequently)
only 1x last 1 week
doesn’t feel she would go into withdrawal here.”
82 A nursing note on 4 September
2000 records “now wanting help to give up heroin”. By 4
September 2000 the nursing notes record that she had become very agitated and
was threatening to leave the building if she
didn’t get any methadone.
She was prescribed some.
83 A referral note from the respiratory medicine part of St
Vincent’s to the psychiatry part on 1 September 2000 records “her
husband died 2 yrs ago after an unpleasant final illness and she has unresolved
grief issues regarding this.” Another note of 7 September 2000
records “2 yrs ago husband died”.
84 The first manifestation in the evidence of the cancer that eventually
killed the Deceased was in mid-February 2002, when she sought
investigation of a
breast lump. A biopsy on 26 April 2002 identified cancer in the breast. By
this time she also had a lump near
her shoulder blade, which when subjected to
fine needle aspiration biopsy also showed cancer. A scan showed metastases in
other
organs.
85 Thereafter, over a period of approximately 11 months until she died,
she was in regular contact with medical professionals, sometimes
in hospital,
and sometimes in her home.
86 She was admitted to St Vincent’s Private Hospital on 27 May
2002. This admission was for the first of what turned out to
be four cycles of
chemotherapy. The admission form recorded “Marital Status:
single”.
87 It nominated the uncle of the Deceased, Mr Geoffrey Lytton, as both
the “person to notify”, and also the “next of
kin”. Mr Lytton was a brother of the Deceased’s mother. The
Deceased had lived with him and his wife in Hong Kong for a three-month
period
in 1982. He and his wife migrated to Australia in October 1991, and lived in
Sydney.
88 The admission form of 27 May 2002 also had a handwritten note on it,
alongside the telephone number of the Bondi flat saying, “Augusto
STAYIN (Friend)”. In the part of the form that concerned discharge
planning assessment, she answered a question “Do you live
alone” by ticking a box marked “Yes”. For the
question “Do you have someone to care for you after
discharge” she ticked neither the “yes” nor the
“no” box.
89 The Appellant gave oral evidence that he had had a discussion with the
Deceased about his name not being mentioned in the hospital
documents, and that
it was “always not to put my name in official things because of my
worries about unstable immigration which could finish in a moment.”
Even if that were true, it does not explain why the Deceased said she lived
alone.
90 The Appellant was cross-examined about the nomination of Mr Lytton as
the person to notify. He said that he and the Deceased decided
together
“for a particular reason” to put Mr Lytton’s name down.
It was, he said, to allow Mr Lytton to be in contact with the Public Trustee.
(I assume this
was intended to be a reference to the Protective Commissioner
– there was no evidence of the Deceased ever having had anything
to do
with the Public Trustee.) I fail to see how nominating Mr Lytton as next of kin
for the purposes of the hospital would let
him be in contact with the
“Public Trustee”. In fact, Mr Lytton was in contact with the
Protective Office from June 2002, and the Deceased had told Mr Lytton about her
cancer
diagnosis in May 2002.
91 She was admitted to St Vincent’s Private Hospital for the second
cycle of chemotherapy on 16 June 2002. She completed the
admission form in
exactly the same way as I have recorded concerning her first admission, save
only that she recorded no one as “next of kin”.
92 On 9 July 2002 there was a referral to the community palliative care
team of the South Eastern Area Health Service. The space
for identifying a
“carer” had a dash placed in it, as did the box for
identifying the “relationship” of any such carer. Mr Lytton
was nominated as next of kin, and also as the person for notification. The
marital status of the Deceased
was stated to be “S” (by
ticking one box in a series of boxes that allowed as one of the choices
“other”). That form was later added to to show that the date
of first contact pursuant to that referral was 9 September 2002.
93 On 14 July 2002 the Deceased was admitted to St Vincent’s
Private Hospital for her third cycle of chemotherapy. The admission
form was
filled out in the same way as the admission form for her second cycle of
chemotherapy had been filled out, save that to
“Do you have someone to
care for you after discharge” she ticked the “Yes”
box.
94 By this time cancerous lesions had developed on her back, which proved
resistant to the chemotherapy. She was referred for advice
about radiation
therapy to relieve the pain of those lesions. On 16 July 2002 Dr Jagavar, a
radiation oncologist at St Vincent’s,
wrote a report concerning the
proposed radiation treatment, in which he recorded, “she is currently
single”.
95 On 18 July 2002 a form entitled “first medical consultation
data sheet” was prepared by the Sacred Heart Palliative Care Service.
It recorded that the Deceased was single (from a range of choices that
included
“de facto”), and that she lived alone. It nominated Mr
Lytton as “next of kin/contact person”. In the space for
“carer” the word “nil” appears.
96 On 4 August 2002 she returned to St Vincent’s Private for the
fourth round of chemotherapy. The admission form stated that
she was single,
and lived alone. It nominated Mr Lytton as the person to notify. The
“next of kin” space was left blank. The question
“Do you have someone to care for you after discharge” was not
answered. The Deceased indicated that she currently used or had used Meals on
Wheels.
97 On 9 September 2002, acting on the referral of 9 July 2002, the
Deceased was visited by Ms Sutton of the Sacred Heart Community
Palliative Care
Service. The record of that visit includes a diagram intended to show the
social relations of the affected person.
The form makes provision for a drawing
that shows relationships with people indicating whether each person concerned is
male or
female, and by special symbols indicating that the relationship with a
particular person is one of marriage or divorce or neither,
or that there is a
relationship that has been severed by death, and whether the relationship is
close, distant, or conflicting.
There is provision for illustrating, by putting
a circle around the appropriate symbols, who are the members of one household.
The
diagram drawn concerning the Deceased shows her as being the only member of
the household. The only relationship of any kind depicted
on it is a close
relationship between the Deceased and her cat, Ninja. I would infer that the
drawing was based on information provided
by the Deceased to the social
worker.
98 The notes of the 9 September 2002 visit record that she lives alone.
The “summary of main issues and planned action” includes:
“self confessed recluse: does not like people visiting. Does not have anybody to talk to, feels that everything is located [perhaps locked?] inside.”
99 Social worker’s notes of
6 September and 2 October 2002 refer to an unidentified
“friend” as being present. Another undated note refers to
“friend who leaves upon visit”.
100 A social worker from St Vincent’s visited the Deceased at home
on 18 November 2002. The notes record:
“FAMILY/SOCIAL – No discussion of family.
- Male friend who was present in the unit. Doesn’t live there but visits daily. Pt reports he is helpful but sometimes controlling.
...
- Life partner (male) RIP 4 yrs ago. Pt cared for during the last few years.”
101 Part of the social
worker’s summary of that visit was:
“Very socially isolated although mostly by choice ... indicators of escapism as dominant coping strategy.”
102 The social worker’s
notes of 28 November 2002 record another visit:
“Friend Augustus was there & asking many questions on her behalf. Appeared concerned & attentive.”
I infer that that is a reference to the Appellant.
103 There are several other references in the social worker’s notes
to a friend being present when a social worker visited,
but no identification of
the friend. A note of the social worker of 17 December 2002 records
“friend Jono also in the house”. That is probably a
reference to Mr Smithson. By that time, of course, the Appellant was in
gaol.
104 On 10 January 2003 the Deceased was admitted to St Vincent’s
for symptom control and respite care. The persons to be notified
are listed on
the admission form as Geoffrey Lytton and Victoria Egan. The family history
taken that day records “partner died a few years ago. No children, no
family”. The social history taken records “lives by herself,
basically a recluse”.
105 A social worker who visited the Deceased on 13 January 2003
recorded:
“Patient remained private on the subject of her social network however stated that she was not afraid of them, just that they drained her.”
106 The nursing notes of 22 January
2003 record:
“Spoke to patient regarding a visit from a friend who is currently in prison. Patient stated that she would like this to happen soon but at this stage she did not know when. Discussed the unsuitability of prison officers and a prisoner coming onto the ward and talked about the possibility of having the visit in the garden or on level 2. Patient said she would discuss the visit with ward staff in advance.”
107 The
social worker discussed the question with the Deceased on 22 January, and
recorded, “No visit planned at this time.”
108 The Deceased was discharged home on 29 January 2003. The discharge
summary stated that she “lives alone” and was
“single”. The person nominated for notification is
“Victoria” whose relationship is stated to be
“parent”.
109 The Deceased was readmitted to St Vincent’s for pain control on
15 February 2003. The nursing notes of 17 February 2003
record that she
“lives alone”.
110 On 3 March 2003 she was allowed home for several days. A note dated
3 March 2003 from a doctor at St Vincent’s to a welfare
officer at St
Vincent’s, recorded “at present she agrees to a visit by
‘August’” and said that the time she would be at home
would be an opportune time for a visit if it could be arranged. Other hospital
records
from then until her death repeat again that she lives alone. The people
who were to be notified were listed as Victoria, Michael
and Renate.
111 A nursing note on 4 April 2003 recorded “Roberta needs to
ring the Protective Commission to start organising having her will made. This
is on advice from lawyer.” A nursing note on 15 April 2003 records
that the Deceased “decided against visit of her friend
Augustus”. The nursing notes also show that by this time she had
serious ongoing problems with pain. Another note of 15 April 2003 records:
“Roberta has decided that she doesn’t want her Silverwater inmate friend to visit her this Thursday. Dr Redelman aware of decision. I have informed the Deputy Governor tel: [number] of this. He will inform Roberta’s friend. They have been informed that Roberta doesn’t have management of her finances. Thus, he is welcome to ring her if he still wishes to communicate with her in the future.”
112 At odds with all these
statements by the Deceased in the hospital records is the action of her treating
oncologist, Dr Grygiel,
in writing a letter on 9 December 2002. On 9 December
2002, or a few days before, Mr Smithson wrote to Dr Grygiel saying:
“- Her friend AUGUST PIRASZ DOB [date] whom you have met in consultation is facing a bail application, following charges on Monday next @ 10AM.
- We are asking that you given consideration to providing a letter to the Judge of the Court indicating that.
1 – Roberta has advanced terminal lung [cancer]
2 – That her life expectancy is severely limited/death imminent
3 – That she requires continual assistance to be able to continue at home
- without the presence of Augusta Piraz, who lives with her and cares for her that she would be (??) unable to remain out of hospital
- That to your knowledge, there are no alternative carers. (There is no-one).”
Dr Grygiel provided a letter along the lines requested on 9 December 2002. The evidence does not show him as having any basis for that letter, beyond the request made to him by Mr Smithson.
To the Protective Office
113 The records of the Protective Office relating to the Deceased were
subpoenaed and tendered in evidence. One of them lists the
contacts connected
with the Deceased. The only contacts listed are her stepmother, Mr Lytton, a
real estate agent, two doctors (including
her oncologist, from which one
concludes that the record is one that is maintained at least up to 2002) and two
friends. One of
those friends is Mr Smithson, the other is a man whose name
appears nowhere else in the evidence. The Appellant’s name does
not
appear.
114 Mr Lytton, Mr Smithson, and the Deceased’s GP, informed the
Protective Office in June 2002 that the Deceased had been diagnosed
with
terminal cancer.
115 There is a note of a conversation between an officer of the
Protective Office and Mr Smithson on 12 July 2002, concerning a request
by the
Deceased for access to funds so that she could enjoy her life at the moment. He
explained that she was contemplating going
overseas. There is other evidence
that around that time she was thinking of visiting Martin in the UK, but any
such plans were not
carried through.
116 The Deceased did not return two telephone calls from the Office, nor
respond to a letter sent on 9 August 2002 asking her to contact
the Office about
arranging her financial affairs. When the Deceased telephoned the Protective
Office on 2 September 2002 the file
note records that she said that she did not
contact anyone as she was feeling sick and did not want anyone coming to see
her.
117 On 4 November 2002 the Deceased contacted the Office. The file note
records:
“She said she is not accessing any services yet. But at times she has a friend come and stay with her to help her out with different things like going to hospital etc and stays the night and the friend has to sleep on the couch as her unit is a one bedroomed unit. She asked whether we could arrange with DOH to get a 2 bed roomed unit as she has seen some empty 2 roomed ones in Block 13. Explained to her that we don’t have that authority but as a special case I will speak to them and see. She said it will be good if she have a bigger place as she will need to have a carer in the future because of her illness.”
I assume that “DOH” is the Department of Housing.
When cross-examined, the Appellant could not recall anything about the Deceased talking to him in early November 2002 about getting a bigger flat.
118 On 25 November 2002 the Deceased telephoned the Office:
“... she wants to treat all her nieces and nephews and friends to dinners etc during x’mas time and also buy them good presents saying ‘so that they will remember me when I am gone’. When asked how much she said about $20,000.00”
119 Another telephone
call from the Deceased to the Office on 5 December 2002 requested that she
receive $15,000 instead of the $20,000
she had requested earlier for Christmas.
At no time did she mention the Appellant to the Office, unless he was the
“friend” referred to in the note of 4 November 2002.
The Prison Authorities
120 The prison record relating to the Deceased’s five visits to the
Appellant in gaol in December 2002 and January 2003 has
a column for stating the
relationship of the visitor to the prisoner. In each case it identifies the
relationship of the Deceased
as “friend”. However, there was
no evidence about whether it was the visitor or someone else who provided the
information that appears in the
“relationship” column, nor
about whether it would have been possible to include “de
facto” on the form. In that circumstance weight cannot be placed on
the fact that the form nominates the relationship as being
“friend”.
Statements by Deceased to Family Members Concerning the Relationship
121 As well as Christmas visits, over the period that the Appellant
alleges the de facto relationship existed the Deceased was invited
to some
significant family events, like birthdays, weddings or christenings and her
father's funeral, and attended the majority of
them. The Appellant usually did
not attend. It is clear, however, that in general her relations with her
stepmother and step-siblings
were not particularly close, though she seems to
have been close to Martin. However, Martin lived overseas from December 1998,
returning
only occasionally for important family events.
122 Michael Egan gives evidence that between March and August 2001 their
father was in a nursing home, and on at least four occasions
he drove to the
Bondi flat to collect the Deceased and take her to see their father, that on
each occasion he went into the flat
and had a cup of tea with her, but on each
occasion he did not see the Appellant there, and that generally he used the
bathroom and
did not see evidence of men's toiletries, towels or a toothbrush to
indicate that there was any person other than the Deceased living
in the
apartment. On another couple of occasions he went to the Deceased's flat to
take her to a family occasion, and did not see
the Appellant there. He observed
no overt affection between the Deceased and the Appellant.
123 According to both Michael and Renate Egan, when they went to the
Deceased’s apartment after her death they found a small
bag of tools, two
plastic bags containing men's clothing, a pair of men's shoes, and a pair of
boots. Michael says that the Appellant
attended the flat on 4 May 2003, but
when he was asked if those items were his, he denied that they were and did not
take them.
A friend of Michael, Mr Frederick Collas, confirms that a man
attended the flat that day, was shown those items, but denied they
were his.
The Appellant disputes that evidence. When the Appellant came to the flat that
day he made clear that, in his view, the
Egans should return to the flat all the
items they had taken out of it. As Michael put it, “he accused me of
stealing all their stuff. He said he wanted it all returned
...”.
124 Both Michael and Renate say they did not find any men's toiletries or
toiletries that might be associated with a man at the flat.
They did not find
any mail addressed to the Appellant at the address of the flat, but found some
documents (already considered above)
addressed to the Appellant at different
addresses. That correspondence was, quite deliberately, not made available for
the Appellant
to take if he wished. They found mail addressed to the Deceased
at the address of the flat from Telstra, Foxtel, Optus, Commonwealth
Bank,
Sydney Water, and medical accounts, but no mail addressed to anyone other than
the Deceased at the address of the flat.
125 So far as Michael was aware, the Appellant was a friend or
acquaintance of the Deceased who occasionally assisted her. He never
enquired
about the basis of their relationship.
126 Renate Egan gave evidence of visiting the Deceased at the Bondi flat
from when she first moved in, in 1997, until the Deceased
died. She says that
during the last five years of the Deceased’s life she visited her on
average six to eight times a year,
and that on each of the occasions she visited
she did not see evidence of anyone else living in the apartment with the
Deceased.
Once she had found out about the illness of the Deceased in mid-2002
she contacted the Deceased weekly and "often" called in on her way home
from work. On those occasions she assisted the Deceased with the washing. On
those occasions (ie after
mid-2002) the Appellant was not there. Renate had,
however, seen the Appellant at the Deceased’s apartment on about two
occasions.
She says:
"On one occasion I recall I saw the Plaintiff returning to the apartment with milk and cake. I saw him give Roberta receipts and some change."
127 Renate gives evidence that on one
occasion she asked the Deceased what the relationship between her and the
Appellant was, to
which she replied:
"He is a friend. He doesn't try to get physical with me and I appreciate that. I'm not interested in any physical relationship with him. He does things for me like he drives me around sometimes."
128 Renate
also gives evidence of going in July 2001 with the Deceased and the Appellant to
the Blackheath property to retrieve a
motorcycle, that they had lunch together,
and on that occasion the Deceased paid for the Appellant’s meal.
129 Renate visited the Deceased at the hospice "almost daily".
She enquired about the Appellant, to which the Deceased said:
"He's left town. He turned out to be someone other than I thought. I want nothing to do with him."
130 However, Renate
accepted in cross-examination that, while the Deceased had not told her very
much about the Appellant,
“Roberta was quite particular at keeping the two parts of her life very separate ... She avoided telling us in any details at all about Mr Piras being held in remand in Silverwater. She subsequently told me he had left town when I enquired. She didn’t tell us about the apartment being turned over by the police when he was arrested there. That would have been very distressing for her but she chose not to tell us ...”
131 Martin gave evidence of returning
to Australia in 2001 for his father's funeral, in the course of which he visited
the Deceased
twice. The Deceased and her three step-siblings had their
photograph taken together. Martin recalls taking the Deceased back to
her flat
after the photograph was taken, that the Deceased had some difficulty opening
the door, that she telephoned the Appellant
and asked him to come around to
help, that the Appellant did not have the key to the flat, and that once access
had been gained the
Appellant left. After that visit, Martin only returned to
Australia in March 2002 for his own wedding, and in April 2003 to see
the
Deceased. He says that the Deceased never discussed the Appellant with him in
terms of her sharing a flat with the Appellant,
or going out together with the
Appellant as a couple, or to any social event.
132 Victoria Egan gives evidence that on several occasions she asked the
Deceased who the Appellant was, and on each occasion the
Deceased said "he is
just a friend". Victoria says that she never saw any displays of affection
between them.
133 The Deceased told Victoria in May 2002 that she had been diagnosed
with cancer. The Deceased said she had not told her before
because of Martin's
wedding. Victoria gives evidence of seeing the Deceased after that telephone
conversation at the Bondi flat,
finding the Deceased alone, and that the
Deceased did not mention the name of the Appellant to her. Victoria took her
from the Bondi
flat to hospital for chemotherapy and radiation therapy "a few
times in late 2002", and brought her back to the flat after that therapy.
From January 2003 Victoria's visits became more frequent. On one occasion
Victoria asked the Deceased about the plaintiff, and was told, "He has gone
away. I am glad he is not here."
134 Mr Lytton and his wife returned to Australia to live in October 1991.
The Deceased told Mr Lytton in May 2002, when she was visiting
the Lytton home,
that she was dying. He gave evidence of having met the Appellant six or seven
times overall, including one occasion
after the death of the Deceased. He gives
this evidence:
"To the best of my recollection, Roberta only spoke to me about her relationship with the plaintiff on two occasions. The first occasion was when Roberta said to me "Augusto promised Adrian he would look after me after he died." The second occasion was in approximately October 2002. I was at Roberta's flat with her and the plaintiff. The plaintiff went out to buy food. Roberta wrongly interpreted my facial expression as being quizzical of her relationship with Augusto and Roberta said "We're just friends, you know." Roberta and I did not otherwise discuss the domestic affairs ..."
135 Mr Lytton says that whenever he saw the
Appellant in the company of the Deceased he never observed any overt displays of
affection
between them, and they did not speak in terms of endearment to one
another,
"but then I never knew Roberta to be a demonstrably affectionate person. The plaintiff's demeanour to Roberta never struck me as anything other than that of a caring and perhaps her closest friend.
I visited Roberta at her flat at Bondi on several occasions in the last year before her death. On no occasion did I notice any evidence of occupation by any person other than Roberta."
The Reason for Changing the Locks
136 On the evening of the cremation of the Deceased the administrators
changed the locks on the Bondi flat. Renate said she changed
the locks in order
to keep the Appellant out. When it was put to her that she changed the locks
because she expected the Appellant
to return to the flat her evidence was:
“A. I was led to believe by Mr Smithson that Mr Piras would be returning – would be using Roberta’s flat as his residence because he didn’t want to use his Neutral Bay residence because he didn’t want the police to know that he had such a residence.
Q. Mr Smithson didn’t tell you that?A. Mr Smithson did tell me that.”
137 The
evidence of Michael Egan concerning changing the locks was:
“Q. You expected at that time that if you did not change the locks Mr Piras would return to the flat?A. We were informed by Mr Smithson that Mr Piras would be out on bail on that day and Mr Smithson’s advice to us was we change the locks on the flat and if possible, remove a silver case – or not the silver case but in a silver case were the title deeds to the property at Blackheath and they should be removed.
Q. Mr Smithson did not advise you to change the locks; did he?
A. He did.”
138 Later in his
cross-examination Michael Egan said:
“Q. On 24 April 2003 you were expecting Augusto to return to the flat at Bondi?
A. Mr Smithson informed us he was very likely to do so.
Q. You knew he was going to be returning because he was about to be released from gaol?
A Mr Smithson informed us of that.
Q. You expected him to return there because you knew that is where he lived?
A. We didn’t know where he lived.”
The Legal Test for Existence of a De Facto Relationship
139 Section 32G Wills Probate and Administration Act
provides:
“(1) In this Part:
de facto relationship has the same meaning as in the Property (Relationships) Act 1984.
de facto spouse, in relation to a person dying wholly or partly intestate, means someone who:
(a) was the sole partner in a de facto relationship with the person, and
(b) was not a partner in any other de facto relationship.”
140 The definition of “de facto relationship” that is
thus imported is set out in section 4 Property (Relationships) Act
1984:
“(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2) (a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”
The Trial Judge’s Reasoning - De Facto Relationship
141 The trial judge considered the “circumstances”
listed in section 4(2) one by one. He accepted that the Deceased and the
Appellant had a “relationship” over the whole of the period
from September 1999 until the Deceased’s death. He noted that the
administrators conceded that
if a de facto relationship existed then the
imprisonment of the Appellant would not have terminated the relationship. While
he accepted
that a relationship of some sort existed over the whole period,
“The question is the nature and extent of that relationship. The evidence does not disclose a break in the relationship but does disclose some changes in its nature.” (at [64])
Nature and Extent of Common Residence
142 In considering the evidence concerning the nature and extent of
common residence, the trial judge noted the various statements
that the
Appellant had given about his residential address. He noted the renting by the
Appellant of the Lindsay Street, Neutral
Bay flat through the entire duration of
the relationship. He noted the evidence from a number of friends that both the
Deceased
and the Appellant were observed at the Bondi flat. He noted Mr
Tsolakis’ evidence about what the Deceased had told him. He
noted the
various forms that the Deceased filled out at St Vincent’s. He noted the
terms in which she made her request, in
November 2002, to the Protective
Commissioner for a two bedroom flat, and observed at [79]:
“It would be strange for her to be making this request if, as the plaintiff says, he was living full-time at the deceased’s flat and caring for her. Handwritten notes by the deceased which were found in the flat after she died also reflected this desire to have a two-bedroom flat so that she could have the carer there on a full-time basis.”
143 He noted the evidence of her
family about their observations and what the Deceased told them about the
relationship with the Appellant,
but observed at [81] that the Deceased’s
relationship with them “was not as close as that of her
friends”, and that “she was somewhat distant from them and
did not fully confide in them”.
144 He noted the evidence given by Renate Egan, that I have set out at
[136] above, and said concerning it:
“Mr Smithson was a friend of the deceased and the plaintiff. He played a particularly important role in the deceased’s life after the plaintiff went to gaol. He visited the plaintiff in gaol and assisted the deceased in the months prior to her death. Because of his close friendship with the plaintiff Mr Smithson is likely to have a basis for such a statement.” (at [74])
145 His conclusion on this aspect of the
relationship was:
“Having regard to the evidence I am not satisfied that the plaintiff lived on a full-time basis with the deceased in the period up until December 2002 when he went to gaol. I have no doubt that from time to time he stayed at the deceased’s flat but the frequency with which that happened, apart from his assertions, really does not appear in the evidence. The illness of the deceased certainly required someone to give her assistance during 2002 and plaintiff did this from time to time.” (at [82])
146 The finding of not being satisfied
that the plaintiff lived on a full-time basis with the Deceased in the relevant
period is of
central importance to whether a de facto relationship existed. It
should be recalled that the list of “circumstances” in
section 4(2) are reminders of matters that possibly might be relevant in
deciding whether two people are in a de facto relationship, but do not
state its
essence. The essence is to be found in the definition in section 4(1). If two
people do not “live together as a couple” they do not satisfy
the definition of being in a de facto relationship, regardless of what might be
the situation concerning the
various “circumstances” listed
in section 4(2).
Sexual Relationship
147 Concerning the existence of a sexual relationship, the trial judge
found (at [90]) “that there was a sexual relationship although it may
have ceased during the deceased’s illness”. Neither party
challenges that finding.
Financial Relations
148 Concerning the degree of financial dependence or interdependence, and
any arrangements for financial support, between the parties,
he noted:
“The deceased and the plaintiff did not share bank accounts and there is no evidence of them in this way intermingling their financial affairs. The plaintiff said that he purchased groceries. There is little evidence of the observation of any independent person about how they managed chores such as shopping.” (at [91])
149 He noted the
Deceased paying two months rent for the plaintiff, and offering to put her house
up for bail. He concluded that
the $100,000 that was eventually put up for bail
in March 2003 was not her own money.
150 He noted there was no real or personal property which the evidence disclosed that the Appellant and Deceased bought jointly, and that they each had a lease of a flat.
Mutual Commitment to a Shared Life
151 Concerning the degree of mutual commitment to a shared life, he noted
the various incidents of social activity, the Appellant’s
encouragement of
the Deceased’s painting exhibitions and art work, and their visits to
Blackheath. He found the Appellant
took the Deceased to medical appointments,
and drove the Deceased to various places. He noted the various efforts that the
Deceased
and the Appellant made to get in contact with each other when the
Appellant was in gaol, the Deceased’s visits to the Appellant
in gaol at a
time when she was in serious pain, her active role in seeking legal
representation for him, and in offering security
for bail, and her instructions
to Mr Gold concerning the making of a will.
Care and Support of Children
152 He noted that the factor of care and support of children was not
relevant.
Household Duties
153 Concerning the performance of household duties, he noted the
plaintiff’s evidence, and that there was no other evidence
that touched on
those matters in the early period of the relationship. He noted Dr
Grygiel’s letter of 9 December 2002, and
that some progress notes of the
hospital dated 22 January 2003 stated that the Deceased’s previous carer
was in prison. He
found (at [99]-[101]) that:
“By July 2002 the hospital notes record the deceased was informing the hospital that she had assistance from meals on wheels and on discharge that she might require assistance with housework. This probably reflects the true situation.
...
I have no doubt that the plaintiff did some housework but the extent of it is unknown.”
Reputation and Public Aspects
154 Concerning the reputation and public aspects of the relationship he
noted the opinion of various witnesses that they regarded
the Appellant and the
Deceased as a couple. He identified those family functions of the
Deceased’s family that the Appellant
and the Deceased attended together,
and those that the Deceased attended without the Appellant. He noted Mr
Tsolakis’ evidence
about how the Deceased had described the Appellant. He
also noted the various statements in the hospital records to the effect that
the
Deceased lived alone. He concluded at [105]:
“These comments seem to indicate that the deceased did not believe that she was in a full-time relationship with a partner.”
155 He also noted that there was
a wedding invitation addressed to the Deceased and the Appellant, but that:
“... there is no other evidence in documents suggesting that the plaintiff and the deceased were living together as a couple and that the public knew that this was the case. Quite often in these cases there are numerous documents available which would suggest such matters. It must be remembered however that the deceased was a somewhat reclusive person with only a few friends and that to a certain degree she felt distanced from her immediate family.” (at [106])
156 His ultimate conclusion on the
existence of a de facto relationship was (at [107]-[109]):
“In the last part of the relationship when both parties were suffering from their own quite separate difficulties their commitment to each other tends to appear in the evidence. The plaintiff was plainly concerned about her once he was in gaol. For her part the deceased had sympathy for the plaintiff’s plight and although she was quite sick at the time she made an effort to assist in his defence and make provision for him.
The plaintiff’s case was that he was living with the deceased on a full-time basis and that throughout the period he was in a de facto relationship. I have earlier found that he was not living with the deceased on a full-time basis and accordingly the evidence does not address factual circumstances surrounding the precise extent of the time they spent together.
There is very little evidence of the plaintiff and the deceased holding themselves out to the public as living together as man and wife. There is no doubt that the plaintiff spent time with the deceased and stayed overnight from time to time. It was, after all, a sexual relationship which apparently continued without any break, so far as the evidence is concerned, over a period of a little over three years. In the circumstances, I am not satisfied that the plaintiff was living with the deceased at the date of death as her de facto partner.”
Credit of the Appellant
157 The trial judge did not say in so many words that he disbelieved any
witness. He said (at [71]), concerning the evidence relating
to the various
addresses that the Appellant told various authorities he had over the years, and
the Appellant’s explanation
for giving incorrect addresses:
“This exemplifies his attitude towards authority and thus I have to exercise particular care to scrutinise his story now placed before another authority.”
158 His ultimate conclusion
shows that he did not accept the Appellant’s evidence, in fundamentally
important respects. The
Appellant gave evidence that from September 1999
“we remained living [at the Bondi flat] as a couple until my
incarceration ...”. That evidence is cast in the precise language
that section 4(1) Property (Relationships) Act uses
as one of the defining characteristics of a de facto relationship. The
trial judge’s conclusion shows that he did not accept
that evidence.
Further, he remarked at [82] “I have no doubt that from time to time he
stayed at the deceased’s flat, but the frequency with which that happened,
apart from his assertions, really does not appear in the evidence.”
That remark is consistent only with the trial judge not regarding the
Appellant’s unsupported word as sufficient to discharge
an onus of proof
on that topic. Further, he said at [75] that the Appellant having maintained
the Lindsay Street, Neutral Bay flat
(which the trial judge referred to as
“this separate residence”) over the whole period of the
relationship:
“... casts serious doubt upon whether he lived on a full-time basis at the deceased’s flat. It is necessary to look at other evidence to see whether there is any support for his claim, or whether I should merely infer that, although the plaintiff and the deceased spend [sic] time together, the plaintiff maintained his own residence and presumably resided there during the period he claims he was residing at the deceased’s flat.”
This methodology that the trial judge set for himself is consistent only with his not regarding the Appellant’s unsupported word as sufficient.
159 A trial judge is often well advised not to make unfavourable credit
findings in terms that are harsher than is needed to dispose
of the case and to
give an accurate account of the trial judge’s reasons for so doing. It
seems to me that the trial judge
in the present case proceeded in that way. A
close reading of the judgment shows that, even though he did not say in so many
words
that he did not accept the Appellant, he did not regard the
Appellant’s unsupported word as sufficient.
160 The trial judge’s taking this view of the Appellant was in my
view not one that is inconsistent with incontrovertible facts,
based on
glaringly improbable evidence, or contrary to compelling inferences; nor can it
be said that he has misused his advantage
of seeing or hearing the witnesses:
cf Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171
CLR 167.
Mere Failure to Discharge an Onus of Proof?
161 The Appellant submitted that the findings of the trial judge that he
was “not satisfied that the plaintiff lived on a full-time basis with
the deceased” and that he was “not satisfied that the
plaintiff was living with the deceased at the date of her death as her de facto
partner” were no more than findings that the Appellant had failed to
discharge an onus of proof. He asserted that there was a particular
unfairness
in the Appellant bearing the onus of proving existence of a de facto
relationship when, if the Respondents had sought
a grant of probate in solemn
form, they would have had the onus of proving that the Appellant was not a de
facto spouse of the Deceased.
As I understood it, the submission is that this
alleged unfairness provided a reason why the Court should scrutinise
particularly
carefully the trial judge’s decision.
162 I will not pause to examine all the elements or implications of this
submission. That is because the premise from which the submission
proceeds
– that the trial judge’s decision was one based solely on failure to
discharge an onus of proof – is mistaken.
The trial judge stated how he
regarded his own finding when he said, “I have earlier found that he
was not living with the deceased on a full-time basis ...” (at [108]).
When considering the Family Provision Act claim he said again, at
[112]:
“... I have already found that the plaintiff and the deceased were not living together on a full-time basis.”
Later still he referred to the Appellant as having presented “a particular case which the Court has not accepted” (at [118]).
163 These findings are positive findings that the Appellant was not
living with the Deceased full-time, not a mere finding that the
trial judge was
left in a state of uncertainty and therefore the case had to be decided by
reference to where the onus of proof lay.
When the premise of the submission is
not made out, the balance of it does not need to be considered.
Evidence of the Friends
164 The Appellant submits that the trial judge gave insufficient weight
to the evidence of friends of the Deceased and the Appellant,
who formed the
view that they were a couple. That evidence, even if accepted at face value,
leads to a conclusion that the Appellant
was frequently at the Bondi flat, on
occasions slept there, performed some household tasks for the Deceased, and went
on some social
outings with her. It would show that the Appellant and the
Deceased were concerned for each other, and tried to assist each other.
Both Mr
Smithson and Mr Tsolakis give evidence of an occasion when the Deceased told Mr
Tsolakis that she was the Appellant’s
“partner”. There
is evidence from both Mr Tsolakis and Mr Smithson of both the Appellant and the
Deceased referring to the Bondi flat as “home”.
165 That evidence needs to be balanced, however, against the other
evidence in the case – the Appellant’s maintaining
the Lindsay
Street flat throughout, and apparently using it to an extent sufficient to
generate the electricity bills that were incurred,
the Appellant’s
apparently systematic deception of authorities about his true address, the
repeated statements by the Deceased
to medical professionals (recorded
contemporaneously in writing), and her statements to the Protective Office. In
the Appellant’s
account of his relationship with the Deceased to prison
authorities, she graduated from being “friend” to
“partner/dependant” and finally to “de
facto”. In my view, the trial judge made no error in concluding, on
the basis of all the evidence, that the Appellant was not the de facto
spouse of
the Deceased.
Error Concerning Reason for Changing Locks?
166 The Appellant submits that the trial judge fell into error in the way he treated the evidence of Renate Egan about why she changed the locks at the Bondi flat after the death of the Deceased. He submits, correctly, that this evidence of Renate Egan, given in cross-examination, had been in no way foreshadowed or even hinted at in the affidavit evidence filed for the Respondents, and had not been put to Mr Smithson. (Mr Smithson, being a witness in the case of the Appellant, had been called and cross-examined before any of the Respondents’ witnesses gave evidence.)
Error by Contravening Browne v Dunn?
167 Contrary to the Appellant’s submission, the trial judge’s
acceptance of Renate Egan’s evidence on this topic,
when the substance of
it had not been put to Mr Smithson, does not involve any breach of the rule in
Browne v Dunn (1893) 6 R 67. The only principle in Browne v
Dunn that is relevant to this case is one concerning the duty of counsel
cross-examining a witness concerning a topic in relation to which
that counsel
intends to submit that that witness’s evidence should not be accepted:
Browne v Dunn at 70-71; Allied Pastoral Holdings Pty Ltd v
Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 18-22; West v
Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [94]-[99], 24,452-24,453.
The trial judge’s acceptance of Renate Egan’s evidence concerning
the circumstances
of changing the locks did not involve the judge in rejecting
any of Mr Smithson’s evidence. Rather, no occasion for rejecting
Mr
Smithson’s evidence concerning that topic arose, because Mr Smithson had
given no evidence at all about it.
168 If the Appellant had wanted the trial judge to reject Renate
Egan’s evidence on this topic, there were two courses open.
One was to
put to Renate Egan that her evidence on the topic was untrue. That was done,
but Ms Egan rejected the suggestion that
was put to her. The other was to call
Mr Smithson in reply. That was not done.
169 The Appellant drew attention to the statement of Gummow, Kirby and
Callinan JJ in MWJ v R [2005] HCA 74; (2005) 222 ALR 436 at
[38]- [41], 448-449 including in particular their Honours’ statement that
the rule in Browne v Dunn
“... is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.”
170 Even if their Honours were
using the word “imputation” in a very wide sense, of
referring to any kind of attribution of flawed or unacceptable behaviour to a
person, I do not see the evidence
of Renate Egan as giving rise to any
imputation against Mr Smithson. Insofar as the evidence gave rise to an
imputation against
the Appellant, to the effect that he was not living
permanently at the Bondi flat, and concealed from people in authority the
address
of the Neutral Bay flat that he rented, that imputation was communicated
to the Appellant through the affidavit evidence that the
Respondents served.
171 Further, even if I am mistaken in taking that view about the
imputations that arise from the evidence, in MWJ their Honours
went on to say, at [40]:
“Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.”
172 In the present case, it was not submitted that there would be any circumstances in which it would be unfair to permit Mr Smithson to be recalled. Even if there had been a breach of the rule in Browne v Dunn, in the wide sense that I have, for the purposes of argument, assumed their Honours were adopting in MWJ, the Appellant had the cure in his own hands.
Error By Denial of Natural Justice?
173 The Appellant submitted (correctly) that the trial judge did not
inform the parties that he proposed to attribute to the evidence
of Renate Egan
concerning changing of the locks the significance that he accorded it in his
judgment. Had the trial judge done so,
it would have been open to the Appellant
to draw attention to the fact that this evidence of Renate Egan had not been
contained in
her affidavit, and also to draw attention to the difference between
Renate’s account of the conversation with Mr Smithson,
and Michael’s
account (assuming they were both referring to the one conversation).
174 I have some doubt about whether the trial judge proceeding in this
way amounts to a breach of natural justice. It has often enough
been remarked
that a judge is not obliged to decide a case by reference only to matters
specifically adverted to in submissions,
and that in deciding a case the judge
is entitled to think for himself or herself: Saif Ali v Sydney Mitchell
& Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord
Wilberforce; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176
CLR 300 at [7], 317 per Dawson J; Coleman v Power [2004] HCA 39;
(2004) 220 CLR 1 at [243], 94 per Kirby J; Klein v Minister for Education
[2007] HCA 2; (2007) 232 ALR 306 at [38], 315 per Gummow, Hayne and
Heydon JJ. However, if a judge proposes to rely upon a matter that has not been
raised by the parties,
and to rely on it in a way that is of substantial
significance in the resolution of the case, or in the resolution of a
substantial
issue in the case, the trial judge should invite submissions
concerning that matter. I have quite some doubt about whether the role
played
in the case by the evidence about changing the locks is sufficiently important
to have needed to have been raised by the trial
judge with counsel.
Particularly is that so when the matters that the Appellant could have said in
response (that I have listed
in para [173] above) are fairly obvious points.
Rather than resolve my doubt about this matter, I shall turn to consider what
the
consequences would be if there had been a breach of natural justice of the
type complained about.
175 The Appellant has had the opportunity to put to this Court the
submissions he would have wished to have advanced to the trial
judge about
Renate Egan’s evidence about changing the locks. However, the overall
view that the trial judge reached concerning
Renate’s evidence is one
factor that may well have entered into his assessment of the reliability of the
Appellant’s
evidence. Thus, it seems to me that probably the present is
not one of those cases where a breach of natural justice at a trial
can be cured
by putting arguments on appeal: Manns v Kennedy [2007] NSWCA 217;
(2007) 37 Fam LR 489; (2007) DFC ¶95-406 at [95] and cases there cited.
176 A question would then arise of whether this breach of natural justice
is one that required there to be a new trial. The power
of the Court of Appeal
to order a new trial is regulated by Rule 51.53 Uniform Civil Procedure
Rules. That Rule prohibits a new trial being ordered “unless it
appears to the Court that some substantial wrong or miscarriage has been thereby
occasioned”. In deciding whether it is so satisfied, the appellate
court must consider the evidence for itself: Tory v Megna [2007]
NSWCA 13; Channel Seven Sydney Pty Ltd v Mahommed [2008] NSWCA 21.
When the appeal in question is from a judge sitting alone, there will be no
substantial wrong or miscarriage of justice if the Court
of Appeal is satisfied
that the decision reached by the trial judge was the correct one: Nasr v
State of New South Wales [2007] NSWCA 101 at [23]- [27]; Monie v
Commonwealth of Australia [2007] NSWCA 230 at [226].
177 Assessing the matter for myself, I would come to no different
conclusion concerning the approach to be taken to the evidence of
the Appellant
to that which the trial judge came. Where the Appellant was living was a
central issue in the case, fundamental to
his claim to be a de facto spouse, and
was a topic concerning which he had repeatedly and systematically told lies.
There was a
significant body of evidence coming from the hospital records, and
some evidence from the Protective Office’s records, of statements
from the
Deceased herself not consistent with the Appellant living at the Bondi flat.
Even ignoring, for the purpose of this exercise,
the evidence of Renate and
Michael Egan, I would conclude that the Appellant was a witness whose word could
be accepted only when
supported by other material. In saying that, the
“other material” might be evidence of other witnesses,
documentary evidence, or the inherent probabilities of this situation.
178 There is some other evidence, not specifically relied upon by the
trial judge, that casts doubt on the reliability of the Appellant.
One example
is that the Appellant had said in his affidavit evidence that he knew that the
Deceased was “using casual drugs. I assisted her to get off them and
by late 2001 she was completely clean of all drugs.” In
cross-examination he agreed that he was aware that up to early May 2002 she was
still using heroin, and that the statement in
his affidavit was incorrect.
179 The appeal was conducted on the basis that the police Facts Sheet
prepared following the arrest of the Appellant was in evidence.
That Facts
Sheet had the criminal record of the Appellant as part of it. Once admitted,
evidence of conviction can be used as tending
to show a witness lacks
credibility: Black Uhlans Incorporated v NSW Crime Commission
[2002] NSWSC 1060; J D Heydon, Cross on Evidence, 7th Australian
ed (2004) LexisNexis Butterworths at [19020]-[19025].
180 The Appellant’s record shows that the Appellant had never been
in gaol in Australia before December 2004. He had been before
a New South Wales
criminal court on four separate prior occasions, two of which (in 1984 and 1985,
well before the events central
to this case) involved charges of stealing. The
first of those was dismissed although proved, under section 556A Crimes
Act 1900. The second resulted in a conviction, and a fine of $100, from
which I would infer it was an offence well towards the less serious
end of the
spectrum. The third offence on which he was convicted, was one of failing to
leave licensed premises on demand. The
fourth involved a conviction in 1996 for
possessing a prohibited drug. Though a conviction was recorded on that charge,
the penalty
imposed was a $500 bond to be of good behaviour for 12 months.
Again I would infer that the circumstances of the charge put it well
towards the
less serious end of the available spectrum. Though convictions of this kind
might assist in turning the scales in a
very finely balanced assessment of a
question of credit, I do not need to rely on them to reach the conclusion that I
have concerning
the credibility of the Appellant.
181 If one turns to evidence other than that of the Appellant, that I
have set out earlier in this judgment, the preponderance of
evidence favours the
view that the Appellant and the Deceased were not living together as a couple.
While the various friends who
gave evidence formed a clear impression that they
were a couple, their opportunity for observation was less than complete. While
members of her family formed the opposite impression, their opportunities for
observation were even less complete. The repeated
statements by the Deceased to
medical practitioners that she was living alone outweigh her single statement to
Mr Tsolakis that they
were partners, and lived together. The Appellant’s
lease of the flat at Lindsay Street, Neutral Bay, together with evidence
arising
from the electricity account, from which I infer that that flat was more than
occasionally or sporadically occupied, also
counts against the Appellant living
as a couple with the Deceased. I am satisfied that the decision arrived at by
the trial judge
was correct. Thus, even if there had been a breach of natural
justice concerning the way the trial judge handled the evidence relating
to
changing the locks, I would not order a new trial.
The Family Provision Act Claim
182 Section 6(1) Family Provision Act defines
“eligible person” as someone who fits into one of the items
in the list that the definition contains. Two items on the list are relevant
for present
purposes. One is:
“(a) a person:
...
(ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death.”
The other is:
“(d) a person:
(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and
(ii) who ... was, at that particular time or at any other time, a member of a household of which the deceased person was a member.”
183 In the Family Provision Act, “domestic
relationship” has the same meaning as in section 5 Property
(Relationships) Act 1984. That is:
“(1) For the purposes of this Act, a domestic relationship is:
(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).”
184 Before the requirements of para (b) of the definition of
“domestic relationship” are satisfied the parties to that
relationship:
(i) must be in a close personal relationship;
(ii) must not be married to each other;
(iii) must not be in a de facto relationship with each other;
(iv) must both be adults;
(v) must both be living together; and
(vi) at least one of them must provide the other with both domestic support and personal care. Domestic support without personal care is insufficient, and likewise personal care without domestic support is insufficient.
185 In light of the definition of
“de facto relationship”, the only way in which the
requirements of two people living together, but not being in a de facto
relationship, can be satisfied
is if they are living together, but not as a
couple.
186 The trial judge correctly observed (at [43]):
“Apart from the exclusionary matters in s 5(2), there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship".”
187 Being an
“eligible person” is a necessary precondition under section 7
Family Provision Act to the Court being empowered to make an order
for the maintenance, education or advancement in life of the eligible person.
In the
present case, the trial judge held that the Appellant was not an
“eligible person” in either of the ways in which he claimed.
Hence, the question of whether the Court ought make provision for him, and if so
what
form that provision should take, did not arise.
188 The trial judge had explicitly found that the Appellant and the
Deceased were not living together on a full-time basis. The trial
judge
observed that the Appellant:
“... only put forward one case to the Court, namely, that he was living on a full-time basis with the deceased. In the circumstance that the evidence does not lead to a finding that the parties “lived together” on some other basis there can be no claim that the plaintiff was living in a close personal relationship with the deceased.” (at [113])
In my view, that analysis is correct.
189 Concerning the Appellant’s claim that he was an
“eligible person” under para (d) of the definition, the trial
judge accepted that there was some evidence of the Appellant being dependent
upon the
Deceased. He considered what was involved in the requirement for being
“a member of a household of which the deceased person was a
member” by reference to Kingsland v McIndoe [1989] VR
273; Munro v Lake (Supreme Court of New South Wales, McLelland J,
8 February 1991, unreported) and Markulin v Drew (1993) DFC ¶
95-140. He continued (at [118]):
“In the present case the plaintiff once again faces the same difficulty with presenting a particular case which the Court has not accepted. One is left without any evidence as to the extent of the regularity of these visits other than that which might be inferred from the fact they had a sexual relationship and they saw each other during that period when on occasions the plaintiff stayed overnight. It is this absence of evidence that prevents me from being satisfied that the plaintiff was a member of the household. The claim therefore must fail.”
In my view, that analysis is also correct.
Orders
190 I propose the following orders:
1. Appeal dismissed.
2. Appellant to pay the Respondents’ costs of the appeal.
**********
LAST UPDATED:
17 April 2008
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