Williams v Public Trustee of New South Wales [2007] NSWSC 921

New South Wales Supreme Court

CITATION : Williams v Public Trustee of New South Wales [2007] NSWSC 921

HEARING DATE(S) : 6, 7 and 20 August 2007

JUDGMENT DATE : 20 August 2007

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 20 August 2007

DECISION : Report rejected; evidence of expert deferred.

CATCHWORDS : EVIDENCE – EXPERT – Documents provided to expert for purpose of forming opinion – all documents provided not identified in expert's report or otherwise sufficiently identified to other party prior to calling expert – whether admission of report unfairly prejudicial.

LEGISLATION CITED : Evidence Act 1995 (NSW) – s.135(a)

PARTIES : Susan Diane Williams (aka Dionnet) – Plaintiff Public Trustee of New South Wales – Defendant

FILE NUMBER(S) : SC 106723/06

COUNSEL : L.J. Ellison SC – Plaintiff P. Hallen SC – Defendant

SOLICITORS : David Pain & Co – Plaintiff Clinch Neville Long – Defendant

106723/06 Williams v Public Trustee of NSW & Ors

JUDGMENT – Ex tempore 20 August, 2007

1 Mr Hallen SC, who appears for the Defendant, seeks to read an affidavit of Fay Norma Christie of 22 February 2007. Mr Ellison SC, who appears for the Plaintiff, wishes to cross examine Mrs Christie. 2 Mr Hallen proffers a letter from Mrs Christie's medical practitioner, Dr Olgers, which is dated 5 August 2007. In that letter Dr Olgers says that he has been Mrs Christie's treating doctor for some six or more years. Dr Olgers says that when Mrs Christie attended his surgery on 3 August she was very emotional about this hearing and progressively became more agitated and teary, and that she hyper-ventilated as she spoke about the case. Dr Olgers says further that Mrs Christie had experienced chest pains earlier, even while thinking about the case. He says that initial cardiac investigations were satisfactory, but says that Mrs Christie was referred for further cardiological assessment. 3 There is no information later than 5 August indicating what the further cardiological assessment revealed. Dr Olgers concludes by stating: "I feel that participating in this case could have serious repercussions for her psychological and physical health. I don't feel she is able to participate in any way, neither in person nor by telephone hook up." 4 The evidence of Mrs Christie in her affidavit is of particular significance as to the circumstances in which the deceased's will of 4 August 1997 came into existence. According to that evidence, it was the deceased himself who requested that he be taken into Gosford to attend to some business to do with the Public Trustee. 5 According to Mrs Christie's evidence, the suggestion clearly is that it was the deceased himself who arranged the appointment with the Public Trustee to make the will of 4 August 1997. The deceased went there of his own volition and he was in no way influenced or prompted in making that will by the actions of Mrs Christie or her family. 6 That evidence could be of considerable materiality in the case. Mr Ellison should have the opportunity of cross examining upon that evidence, unless I were satisfied that there is a serious risk to the health of Mrs Christie if she is compelled to give evidence. 7 I am not so satisfied from the report of Dr Olgers, which was given more than two weeks ago. All that Dr Olgers says, after referring to Mrs Christie's general condition and the fact that she becomes agitated when speaking about the case, is that participating in the case, "… could have serious repercussions for her psychological and physical health". No further particulars of the particular repercussions or particular aspects of her health are given. The degree of likelihood or probability of adverse effects is not stated. 8 In those circumstances I am not prepared to conclude that Mrs Christie would suffer such adverse consequences from being called for cross examination, even by telephone hook up, as to lead me to accept her affidavit without affording the Plaintiff the right to cross examine. The affidavit will therefore be rejected. 9 The Plaintiff tenders a report of Dr Julian Parmegiani. The report is dated 17 July 2007. It goes to the deceased's testamentary capacity at the relevant dates of the making of the two wills in contest, that is, his capacity in August 1997. The report was provided in accordance with the direction of the court given on 22 June 2007. At a pre-trial directions hearing on that day I directed the Plaintiff to serve on the Defendant by 23 July 2007 all further affidavits relied upon in support of the issue of testamentary capacity. The report of Dr Parmegiani was provided on or shortly after 17 July 2007, although Dr Parmegiani's formal affidavit verifying it was not sworn until 1 August 2007. However, no issue arises as to the date of swearing of the affidavit. 10 Mr Hallen objects to the tender of Dr Parmegiani's report upon the basis that the facts and materials provided to Dr Parmegiani for the purposes of expressing his opinion have not been sufficiently identified in the report. The first paragraph of the report states: "I did not assess Mr Gleeson while he was alive and my opinion is based on documentation provided. A schedule of documents was enclosed with your letter of instruction dated 9 July 2007. Additional documents were attached to a second letter dated 12 July 2007. These documents were from the Northern Sydney and Central Coast Area Health Service." 11 The schedule of documents attached to the letter of instruction dated 9 July 2007 was not included in Dr Parmegiani's report. Neither was there a schedule identifying the documents which were attached to the second letter of 12 July 2007. The Plaintiff now proffers a copy of the letter of 9 July 2007 to Dr Parmegiani which appends the schedule referred to by Dr Parmegiani in the first paragraph of his report. 12 The Defendant says, and it is not contested, that while it had a copy of the letter of 9 July 2007, it has not had until now a copy of the schedule of the documents enclosed with that letter. It says that also it has not ever had a schedule of the additional documents attached to the letter of 12 July 2007. It does not appear from the face of Dr Parmegiani's report what documentary material was provided to him. 13 In the course of his report the doctor refers to certain documents provided to him. Sometimes an expert is presented with material for the purpose of giving an opinion, but does not refer to some of it in his report. When cross examined as to why some material provided is not referred to, he may demonstrate that his opinion has not properly taken into account important relevant material which he had in his possession. In other words, when assessing the weight to which an expert's opinion is entitled, it is often the case that the Court must look at material produced but not referred to, just as much as to material produced to the expert and referred to. 14 Without precise identification of the documentary material provided to Dr Parmegiani for the purpose of his report, the Defendant is seriously hampered in its ability to assess the weight to which the report is entitled. It seems to me that the report of Dr Parmegiani is flawed in this respect – through no fault of his, I should add. The documentary material provided to Dr Parmegiani ought to have been identified to the Defendant's solicitors at the time the doctor's report was provided to them. 15 It seems to me that the production of the schedule of documents attached to the 9 July 2007 letter, at this stage of the trial, unfairly prejudices the Defendant in the conduct of its case. The material is said to be material which is contained in the Guardianship Tribunal file, but the significance of that material, even though it may now be located at fairly short notice by the Plaintiff, would have to be reflected upon in order to enable the Defendant to cross examine Dr Parmegiani adequately. 16 It seems to me, therefore, that the report of Dr Parmegiani, in the form in which it was presented to the Defendant causes it material prejudice if it is now sought to be supplemented in a necessary particular by the addition of the schedule of documents provided to Dr Parmegiani. In the exercise of the Court's discretion under s.135(a) of the Evidence Act 1995 (NSW), I think that, in fairness to the Defendant, the report of Dr Parmegiani ought to be rejected. 17 It is unfortunate that Dr Parmegiani has taken so much time and trouble to prepare a report and the Court really is not able to use that report with justice to the Defendant. That, as I said before, is not the fault of the doctor, but I do not think that at this stage of the trial injustice can be remedied by allowing the report to go in and requiring Mr Hallen to cross examine now without due consideration of the material which was provided to the doctor.