Appeal Outcome: Special leave application dismissed by the High Court - 12 June 2008 - [2008] HCASL 313 New South Wales Court of Appeal CITATION: Karwala v Skrzypczak [2007] NSWCA 123 HEARING DATE(S): 25 May 2007 JUDGMENT DATE: 25 May 2007 JUDGMENT OF: Giles JA at 1; Tobias JA at 32 EX TEMPORE JUDGMENT DATE: 25 May 2007 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: Appeal - leave to appeal - whether arguable case of error in fact-finding by trial judge - whether errors in relation to admission of evidence - whether further evidence which would be received on appeal - failure to provide prima facie case of authenticity of a letter proposed to be relied on as fresh evidence - leave to appeal refused. Akins v National Australia Bank (1994) 34 NSWLR 155; CASES CITED: Karwala v Skrzypczak: in the Estate of Ratajczak [2006] NSWSC 203; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691. PARTIES: Maria Karwala - Claimant Jadwiga Skrzypczak - Opponent FILE NUMBER(S): CA 40391/06 COUNSEL: Claimant in person R Lovas - Opponent SOLICITORS: Claimant in person G A Kinsey, Hurstville - Opponent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 100898/03 LOWER COURT JUDICIAL OFFICER: Windeyer J LOWER COURT DATE OF DECISION: 29 March 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 2003 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40391/06 SC 100898/03 GILES JA TOBIAS JA Friday 25 May 2007 KARWALA v SKRZYPCZAK Judgment 1 GILES JA: This is an application for leave to appeal from a decision of Windeyer J given on 29 March 2006, Karwala v Skrzypczak; in the Estate of Ratajczak [2006] NSWSC 203. The claimant, Mrs Maria Karwala, does not have legal representation and conducted the application herself with the assistance of a friend. The opponent, Mrs Jadwiga Skrzypczak, was represented by Mr Lovas of counsel. In my opinion, the application for leave to appeal should be dismissed. I think it appropriate to explain why that is so in more detail than is customary when determining an application for leave to appeal. 2 Mr Ratajczak died on 8 May 2002. In the proceedings heard by Windeyer J there were competing claims to admit to probate documents said to be his last will. Mrs Karwala propounded a will dated 7 October 1961, as attorney for her mother who was a beneficiary under the will. Mrs Skrzypczak propounded as alternatives a will written in Polish dated 24 November 1995, a will written in English on the same date but prior to the Polish will, and a will written in English on 3 December 1992. Under these three wills Mrs Skrzypczak took the estate of the deceased. The principal asset in the estate was a house at Lidcombe. 3 The 1961 will was established, and Windeyer J said that a grant of letters of administration with that will annexed should be made unless one of the later documents was the deceased's last will. The defences to grants in relation to the later documents were poorly pleaded, but his Honour dealt with the case on the basis of defences of lack of due execution, lack of testamentary capacity, fraud, and undue influence, together with what the pleader called "suspicious circumstances" which his Honour in the end treated as amounting to a defence of want of knowledge and approval. His Honour noted in his reasons that he also permitted the case to proceed on the basis that forgery of the 1992 document was alleged and that, although not until late in the hearing, forgery of the 1995 documents was alleged. 4 His Honour upheld the 1995 Polish will, and said that if he had not done so he would have found the 1992 will to be valid. After a detailed consideration of the evidence, he said by way of summary - " [60] In view of the way in which the defence to cross-claim was pleaded, it is perhaps important that I set out my findings which are as follows: 1992 will (a) It was duly executed by the deceased in the presence of the two witnesses as stated. (b) The signature of the deceased was not forged. The signature on that document was the signature of the deceased. There is no evidence to the contrary. The document examiner, who gave evidence, did not examine the original wills and came to no conclusion on the copies she examined. (c) The deceased had testamentary capacity at the time the will was made and he knew and approved of its contents. (d) The will was not obtained by undue influence of the defendant/cross-claimant. (e) The will was not procured by fraud. Most of the particulars given of fraud relate to other defences. None of the claims as to misrepresentations about Polish relatives was made out. [61] So far as the 1995 documents are concerned I make the same findings. Doubts are raised by the health of the deceased, the undoubtedly desire of Mrs Skrzypczak to get a benefit for herself, opportunities to put some pressure on the deceased for this and by the evidence of Dr Lukaszewicz to the very limited extent to which I consider that evidence reliable. In the long run however, taking all these matters into account as required by Worth [ Worth v Clasohm (1952) 82 CLR 439] I conclude that the 1995 Polish document is a valid will. [62] I also accept the evidence of Mrs Skrzypczak as to its last being located in her possession so that no presumption as to revocation arises. In those circumstances a grant of administration with a copy of the document annexed should be made to Mrs Skrzypczak the sole beneficiary named in the said will, until the original be proved. I should perhaps add that if I had not come to this conclusion I would have found the 1992 will to be valid." 5 There were six grounds for the proposed appeal in the notice of appeal. 6 The first ground was that the judge "had admitted the wrong wills into probate". That was followed by a number of paragraphs put forward as reasons why the 1992 will was not genuine but was a later created forgery, with an apparent assertion also that the 1995 Polish will was a forgery. 7 The second ground was that the judge "erred in his adopting and/or admitting the 1995 Polish will to probate". That was followed by a number of paragraphs put forward as reasons why the 1995 documents had not been signed in 1995, plus a complaint that the judge had unduly helped the proponent of those documents by pointing out that the 1995 Polish will rather than the 1995 English will was the deceased's last will. It should be said immediately that there was nothing wrong in the judge raising such a matter. 8 Associated with these grounds was the fifth ground, that the judge "rejected the fact that the defendant originated the will to benefit herself". This was followed by paragraphs not really appropriate to it, but asserting not entirely directly that the 1992 and 1995 wills were later creations, error in failing to accept the evidence of a witness to the 1995 wills to the effect that she had not witnessed them, and error in failing to accept other evidence of deterioration of the deceased's mental condition. 9 The fourth ground was that the judge "erroneously rejected the treating doctor's reports on the medicate [sic] effects of the Dementia". This went to the contest over the deceased's testamentary capacity. From the paragraphs which followed this ground and the understanding gained from Mrs Karwala's submissions, the complaint was of rejection in the sense that the judge did not find lack of testamentary capacity. The submissions, however, included complaint of error in refusing to receive medical records, or at least hospital records, into evidence. 10 Save so far as there was complaint of failure to receive hospital records into evidence, these grounds were challenges to the judge's fact-finding as to the genuineness of the 1992 and 1995 documents, their execution, and the deceased's testamentary capacity and proper exercise of that capacity. Mrs Karwala's submissions, including a deal of affidavit material which was in the nature of submissions rather than evidentiary, detailed many reasons why the fact-finding was in error, within and also going beyond the grounds of appeal. 11 However, and understandably enough in the case of an unrepresented party, the submissions did not recognise the reasons given by Windeyer J in his detailed consideration of the evidence for his conclusions of fact, or the need not just to show that something could be said against the findings but that the judge came to conclusions which, for the purposes of a leave application, were arguably incorrect. A particular example is the asserted error in failing to accept the evidence of the witness to the 1995 wills to the effect that she had not witnessed them. The reasons given by the judge for decling to accept the evidence of that witness were compelling. The matters on which Mrs Karwala relied would have been present to the judge's attention at the time he came to his fact-finding, and having considered them all I do not think any reason has been shown to doubt the correctness of the judge's fact-finding or to perceive an arguable case for error. There is no prospect of a successful appeal in this respect. 12 The third ground was that the judge "rejected expert evidence of Dr Klaas Akkermann and Associate Professor Ian Cameron, reports without reason". In this instance, by rejection was meant refusal to admit the evidence. 13 The judge said that the report of Dr Akkermann - "HIS HONOR: At the present moment, I do not propose to admit it. It may be, if Dr Akkerman is called, you may be able to adduce some evidence from him. The report, on no basis, complies with the rules as to expert evidence. It does not separate the assumption from anything else. It does not bring about conclusions from assumed facts or known facts. It is quite impossible to have it admitted at this stage. At this stage I reject it. I am not stopping you calling the doctor." 14 His Honour later indicated that Dr Akkermann, who had not seen the deceased, could be called to address medical records if relevant documents were identified and put to him on which he could express an opinion. That was not done, and the doctor was not called. There is no basis for complaint about the way in which the judge dealt with the evidence of Dr Akkermann. 15 On 16 February 2006 Mrs Karwala's counsel tendered two reports of Associate Professor Cameron. They had not been served on or seen by Mrs Skrzypczak's lawyers until that time. His Honour declined to admit the reports because of lack of prior service according to the Rules and because it seemed to him that, had there been service Mrs Skrzypczak may have decided to adduce medical evidence, which had not been done on the basis of other reports served on behalf of Mrs Karwala. Application was then made to be allowed to call Associate Professor Cameron to give oral evidence. His Honour refused, saying - "That presents an even greater problem for the defendant than the application to admit the reports. 2. In my view the plaintiff has been given every possible consideration to get her case in order, but, to allow that evidence to be given at this stage, places a burden on the defendant, which I do not think can be satisfactorily met, by allowing this doctor to give oral evidence, without notice, in the witness box." 16 I cannot see any basis for complaint about the way in which the judge dealt with evidence from Associate Professor Cameron. 17 That leaves (possibly) within the grounds of appeal refusal to admit medical records, or at least hospital records. Mrs Karwala proposed to rely in her appeal on hospital records which were not in evidence before the judge, and I will come to that a little later. While it was not clear, her submissions appeared to include that the hospital records had been tendered at the trial but erroneously rejected by the judge. 18 That is not correct. Counsel for Mrs Karwala began to take a doctor called in her case to hospital records. The judge adjourned to enable counsel to "get the hospital records you want to put in", saying that he assumed that there would be no objection to their tender and that the doctor's evidence could then proceed in a better fashion. A little later a copy of some hospital notes was tendered and admitted, and some days later a bundle of what were described as "medical reports" but in fact included hospital records was tendered and admitted subject to relevance. There was no rejection of hospital records tendered on behalf of Mrs Karwala. 19 The sixth ground was that the judge "refused Forensic Examination of the fake 1992 and 1995 English wills without any reasons whatsoever". The paragraphs following the ground went beyond it, and so far as they did so the submissions which can be perceived as going to the paragraphs were within what I have earlier said about challenges to the judge's fact-finding. 20 As to refusal of forensic examination, the judge was asked to release the wills for examination but there was no error in what he did in that respect. An application at an interlocutory stage was refused because at that time forgery had not been raised on the pleadings, with further application possible if and when forgery was raised. No further application was made until the midst of the hearing. A forensic examiner had been called whose preliminary report included that she needed to look at the wills, and it was proposed by counsel for Mrs Karwala that she have them overnight and give further evidence the next day. His Honour declined to permit that to occur. He gave reasons explaining what had occurred and saying that it would be "absolutely prejudicial to allow what is proposed to do be done" and that "in no way would the defendant be able to meet that or decide whether or not she should call her own expert evidence". No basis for error in his Honour's decision has been shown. 21 I go then to the question of further evidence in the appeal. There was what came to be called the confession letters, with which I will deal separately, and a host of other material with which I now deal. 22 Under s 75A of the Supreme Court Act 1970 the Court of Appeal may receive further evidence, but where the appeal is from a judgment after a trial or hearing on the merits (which would be the present case) only on special grounds. Fresh evidence, being evidence relating to matters occurring after the trial, may be admitted without special grounds. Ordinarily for special grounds it must be shown that the evidence was not held and could not have been obtained with reasonable diligence for use at the trial, that the evidence is credible, and that it is such that there is a high degree of probability that there would be a different result: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There may be special grounds in other particular circumstances. 23 The material with which I presently deal is found in a number of affidavits sworn by Mrs Karwala. It is evident that much of it was held at the time of the trial, but not deployed in evidence. The hospital records were apparently held at the time, but to the extent to which they were not could readily have been obtained; and in any event perusal of them does not convey that taking them into account would be likely to have led to a different result as to testamentary capacity. Some of the material may not have been obtianed until after the trial, but by the exercise of reasonable diligence could have been obtained, and the material of that kind is largely peripheral. Again understandably enough in the case of an unrepresented party, the limitations upon reception of further evidence have not been recognised in Mrs Karwala's wish to place material before the Court on appeal, and I am unable to see particular circumstances sufficient to make out special grounds. 24 The affidavits contain material relating to matters occurring after the trial, in particular what happened about eviction from the house at Lidcombe after the decision of Windeyer J. That has no relevance to his Honour's decision of 29 March 2006, and I cannot discern any material fresh evidence. 25 In my view, and for the present putting aside the confession letters, there is no prospect of the Court receiving on appeal the evidence before us on the leave application as evidence to be put before it. 26 The confession letters were proffered as fresh evidence through an affidavit of Mrs Karwala sworn on 23 May 2007, although itnention to rely on them had been made known at a much earlier time. They were a copy of a letter to Campbell J dated 22 August 2006 attaching a copy of a letter to Mr Michael Keelty, the Commissioner of the Australian Federal Police, dated 7 July 2006. The letters purported to have been written by Mrs Skrzypczak. In brief, they confessed to forgery of the 1992 and 1995 documents at the suggestion of and to give effect to a scheme to acquire the house at Lidcombe proposed by counsel who appeared at the trial for Mrs Skrzypczak (not Mr Lovas). Such a confession would obviously be very serious, and the allegations made in relation to counsel were also very serious. 27 If there were a proper basis for the Court on appeal receiving the confession letters and deciding the appeal with them before it, a grant of leave to appeal would be hard to resist. There could be a question whether the correct course lay in an appeal, or in separate proceedings to set aside the grant on the ground that it was obtained by fraud, see Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691. That was not raised and can be passed over. But the letters do not prove themselves. Unless there is support by evidence for their being authentic and for authorship by Mrs Skrzypczak, they show no confession; and on the leave application it is necessary to consider whether a basis has been shown for Mrs Karwala establishing on tendering the confession letters on appeal, that they are authentic and Mrs Skrzypczak was their author. 28 The need to establish the authenticity of the confession letters was spelt out to Mrs Karwala at a directions hearing. Reasons delivered by Mason P on 20 February 2007 following the directions hearing included - "21 If the claimant wishes to rely upon one or more of the 'confession' letters then she will need to establish that they are authentic. To obtain a grant of leave to appeal based upon such letters would require her, it presently seems to me, to show at least a prima facie case that the letters are themselves genuine. 22 If the claimant therefore wishes to rely upon these 'confession' letters then she must put forward evidence showing why this Court should have regard to them in addressing the application for leave to appeal and any ensuing appeal itself. 23. Accordingly, the Pt 51 r 19 affidavit to be filed on behalf of the claimant must squarely address this material if the claimant wishes to rely upon it in the Court of Appeal. This means that the claimant must adduce evidence showing whatever it is that she contends for as to the authorship and/or the provenance of the 'confession' letters. If what purports to be the signature of the opponent on the letters is said to corerspond with the signature on undoubtedly genuine documents coming from that source, then those documents should themselves be identified and copied. … 26. The attached transcript shows that I have made it clear to the parties that the Court does not regard the New South Wales Police as some arm of the Court retained in this matter to get to the truth of the matter." 29 Mrs Karwala submitted first, that the internal logic of the confession letters demonstrated their authenticity. I am unable to agree. The content of the letters does not show authenticity, let alone authorship by Mrs Skrzypczak. She said secondly, that she expected that the Court, to whom in the person of Campbell J the letters had been sent, would take up establishing their authenticity. That is not so, as had been explained to her. She did not go further in supporting authenticity or authorship of the letters by Mrs Skrzypczak. There was no expert evidence comparing the signatures with acknowledged signatures of Mrs Skrzypczak; indeed, the affidavit of 23 May 2007 annexed photocopies, and there was no evidence of where the originals of either the letter to Campbell J or the letter to Mr Keelty might have been. 30 Mrs Karwala did not invite us to compare the copy signatures on the letters with signatures which we could take to be genuine signatures of Mrs Skrzypczak, such as signatures on affidavits read in the trial. Assuming that it would be open to us to do so, for completeness I have made a comparison. Particularly when the confession letters annexed to the affidavit are photocopies, I do not think that I could properly come to even a prima facie view that Mrs Skrzypczak was the author of the confession letters from such a comparison, without expert evidence: all the more so given the seriousness of the confession and of the allegations made in relation to counsel. In short, in my opinion no basis has been made out on the leave application for receipt of the confession letters by the Court on appeal if leave to appeal were granted. 31 It follows that I do not think that leave to appeal should be granted. I do not think that arguable error on the part of Windeyer J has been shown, or that it has been shown that there is further evidence properly to be put before the Court on appeal. I propose that the application for leave to appeal be dismissed with costs. 32 TOBIAS JA: I agree with Giles JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.