Joyce Kathleen Burgess v Public Trustee of New South Wales [2011] NSWSC 1069

Supreme Court New South Wales

Medium Neutral Citation: Joyce Kathleen Burgess v Public Trustee of New South Wales [2011] NSWSC 1069 Hearing dates: Tuesday, 23 August 2011 Decision date: 23 August 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Application refused Catchwords: PRACTICE AND PROCEDURE - Defendant's witness becomes unavailable for cross-examination after affidavit read - plaintiff applies for witness' affidavits to be rejected - matters on which plaintiff proposes to cross-examine witness of marginal significance in context of case - affidavits not rejected. Category: Procedural and other rulings Parties: Joyce Kathleen Burgess (plaintiff) Public Trustee of New South Wales (defendant) Representation: Counsel: Mr M. Condon (plaintiff) Mr J.E. Armfield (defendant) Solicitors: ERA Legal (plaintiff) New South Wales Trustee and Guardian (defendant) File Number(s): 2010/290921

Judgment (ex tempore) 1HIS HONOUR: Mr Condon, for the plaintiff Joyce Kathleen Burgess, applies for an order that an affidavit of Julie Anne Brush sworn 9 April 2010, and her further affidavit sworn 14 August 2011, filed on behalf of the defendant the New South Wales Trustee and Guardian, be rejected on the basis that Julie Brush will now not be available for cross-examination. Those affidavits were read in the usual course yesterday, and it emerged only a few moments ago that Julie had sent some text messages to her sister Kim Brush, who is in cross-examination at the moment, advising that she did not propose to make herself available for cross-examination today. 2Mr Condon has outlined that he proposes to cross-examine Julie in regards to her lifestyle and expenditure. He has informed the court that it will be contended that if her expenditure exceeds her income, then that is entirely a matter of her own lifestyle choice. Furthermore, Mr Condon states that he wishes to ask her questions as to the quality of the relationship between her and the deceased. 3It may be that, had objection been taken at the outset, if it were then known that Julie would not be available for cross-examination, I might not have permitted them to be read. The fact is that they have been received and read. 4It is open to Mr Condon to make submissions to the effect of the cross-examination he proposed to undertake about expenditure in any event. Where there are available inferences adverse to her evidence, and she is not here to answer those inferences, those inferences would likely be drawn. 5So far as the quality of the relationship is concerned, it needs to be borne in mind that the deceased's children are not claimants but beneficiaries, for whom provision has been made in the will, and even if it were established that there was a poor relationship between the deceased and Julie, that would be of very little moment in the context of this case. 6Given that Ms Burgess' claim for provision is, in effect, a widow's claim by a widow of some 35 years standing in a relatively modest estate, it seems to me in any event that the detail of the financial circumstances of the beneficiaries is of limited practical significance, although it is relevant to know to some extent their respective asset and liability positions. 7Ultimately, I think the court is better informed by continuing to have before it the affidavits of Ms Julie Anne Brush, but in doing so the court will note that she is not available for cross-examination and, where there is conflict with or doubt about aspects of her evidence, her unavailability for cross-examination will be most material to the court's assessment of her evidence and the weight given to it.