Supreme Court New South Wales Medium Neutral Citation: NSW Trustee & Guardian v Hull & Anor [2011] NSWSC 1106 Hearing dates: 14 & 15 September 2011 Decision date: 12 October 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: 1. Upon enquiry, it is determined that the persons entitled on intestacy to succeed to the estate of Warren Scott Smith who died between 15 and 30 September 2008, are the second Defendant David Wayne Smith and his half brother, Daryl John Smith. 2. The Plaintiff is authorised to distribute the deceased's estate accordingly. 3. Unless the parties are able to agree, stand the matter over to a convenient date to argue how the burden of the costs of the proceedings is to be borne. Catchwords: Plaintiff's application seeks an order for determination, by inquiry, of the identity of the next of kin of the deceased intestate - Proceedings brought pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3 - First Defendant asserts that he is the father of the deceased - Second Defendant appointed to represent the interests of the siblings of the half blood of the deceased Legislation Cited: Evidence Act 1995 Fair Trading Act 1987 NSW Trustee and Guardian Act 2009 Probate & Administration Act 1898 Public Trustee Act 1913 Succession Act 2006 Succession Amendment (Intestacy) Act 2009 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: A (A Minor); Re (Paternity: Refusal of Blood Test) [1994] 2 Fam Law R 463 Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2), Warner v Hung, in the matter of [2011] FCA 1123 Clarke v Mcfarlane [2008] NSWSC 432 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Goodright v Moss (1777) 2 Cowp 591; (1777) 98 ER 1257 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Moszko v Warshall (Supreme Court of Victoria, 20 February 1995, unreported) Pennington (decd) (No 2), Re [1978] VR 617 Preston-Jones v Preston-Jones [1951] AC 391 Public Trustee v Solah [1999] NSWSC 660 Russell v Russell, [1924] AC 687; [1924] UKHL 1 (HL) Watson v Foxman (1995) 49 NSWLR 315 West v Weston [1998] NSWSC 419 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Zahra v Francica [2009] NSWSC 1206 Texts Cited: Chief Justice J Spigelman 'Truth and the Law' (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011) J H Wigmore, Wigmore On Evidence, 3rd ed, (1940), vol 2 Category: Principal judgment Parties: NSW Trustee & Guardian (Plaintiff) Lance Hull (first Defendant) David Wayne Smith (second Defendant) Representation: Counsel: Mr B Townsend (Plaintiff) Mr J Anderson (first Defendant) Mr A L Hill (second Defendant) Solicitors: NSW Trustee & Guardian (Plaintiff) Farrell Lusher (first Defendant) Bartier Perry (second Defendant) File Number(s): 2011/52466 Judgment Background - Formal Matters 1HIS HONOUR: These proceedings concern the estate of Warren Scott Smith ("the deceased"), who died intestate between 15 and 30 September 2008. 2There was a grant of Letters of Administration, on 22 June 2010, to 'Public Trustee NSW' (sic). The error in the form of the grant is remedied by paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 ('the new Act"), which commenced on 1 July 2009, and which provides that a reference to the Public Trustee or Protective Commissioner is to be read as a reference to the NSW Trustee. 3The Public Trustee, which was established as a corporation sole by s 7 of the now repealed Public Trustee Act 1913, has been dissolved: Paragraph 10(1) of Schedule 1 of the new Act. By Paragraph 11 of Schedule 1, the NSW Trustee & Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. 4The Plaintiff, the NSW Trustee and Guardian, is constituted as a corporation by section 5 of the new Act. 5The deceased's estate, at the date of death, was sworn, for probate purposes, at $609,502. The estate then consisted of moneys in bank ($270,073), cash in house ($600) and superannuation, long service and other leave entitlements ($338,829). (I have omitted the cents and shall continue to do so in these reasons.) 6The gross value of the estate, at the date of hearing, is about $633,068. The estate currently consists solely of money held in the Plaintiff's common fund. There will be interest accrued on, but not yet credited to, the deceased's account, until final distribution. However, the estate's liability to taxation and the burden of costs of these proceedings are yet to be ascertained. 7A notice of intended distribution of the estate pursuant to s 92 Probate & Administration Act 1898 was published in the Sydney Morning Herald on 1 July 2010. Other than the Defendants, no person contacted the NSW Trustee and Guardian asserting a claim as next of kin. Later in these reasons, it will be necessary to refer to events that occurred in July 2011 and the assertion by the younger brother of the first Defendant that he was the father of the deceased. The Nature of the Application 8The Plaintiff's application, commenced by Summons on 17 February 2011, seeks an order for determination, by inquiry, as to the identity of the persons entitled to succeed to the intestate estate of the deceased. Such proceedings may be brought pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3. 9The first Defendant is Lance Hume Hull, who asserts that he is the father of the deceased. There is dispute about this. 10The second Defendant is David Wayne Smith, who was appointed to represent the interests of the siblings of the half blood of the deceased for the purposes of these proceedings. There is no dispute that he is one of only two brothers of the half blood of the deceased. 11UCPR rule 54.3 provides that proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question as to the composition of any class of persons having a beneficial interest in an estate, or any question as to the rights, or interests, of a person who claims to be entitled on the intestacy of a deceased person. 12Master Macready (as his Honour then was) in Public Trustee v Solah [1999] NSWSC 660, said: "In the present proceedings it is necessary to make a finding that the next of kin who are entitled on the intestacy of the deceased consists of those persons who have come in and proved their claim. The proper approach in respect of such an enquiry was referred to in Walsh v Weigall [1887] VicLawRp 88; (1887) 13 VLR 449 at 453. "The object of an administration decree is to enable the estate to be distributed with safety to the executor or administrator who, acting under the direction of the Court, is protected even if other claimants may afterwards come forward and establish their claims. But such distribution, whilst it protects the executor or administrator, in no way precludes the rights of subsequent claimants, who may at any time institute proceedings against the persons amongst whom the estate has been distributed to compel them to refund in whole or in part, as the case may be, what they have received. If the view of the Chief Clerk be correct, then in many cases it would be impossible ever to distribute the estate at all. The mistake into which he has fallen, I think, is that he regards the decree as imposing a duty upon him to report all the possible next-of-kin, and to forbear reporting until it has be demonstrated that there are and can be no others than those he reports; whereas his duty is to take all necessary steps by advertisement or to otherwise to invite claimants, and then to report only such as have proved their claims before him. ... the rights of persons shown by evidence to occupy a certain relationship to the testator or intestate cannot be ignored on the mere surmise that there may possibly be in existence and unheard of, other persons of equal kin or nearer of kin than they. The practice I have stated was that which prevailed before the Judicature Act, and the practice under that Act has not been altered in this respect, . . ." 13In West v Weston [1998] NSWSC 419, Young J (as his Honour then was) gave the following description of the next of kin procedure: "24 Essentially, if the evidence adduced by the parties is insufficient to enable the inquiries to be satisfactorily answered, then an advertisement is placed, prepared by the parties and approved by the Master, fixing a time within which each claimant is to come in and prove his or her claim, appointing a day for adjudicating thereon. Unless otherwise ordered, all persons who do not come in and prove their claims within that time will be excluded from the benefit of the order." 14In this case, that procedure was not followed. 15More recently, in Clarke v Mcfarlane [2008] NSWSC 432, in proceedings which, in substance, though not exactly in form, was a next of kin inquiry, to determine who were the next of kin of the deceased entitled upon intestacy, Brereton J wrote: "[6] Next of kin proceedings traditionally involve strict proof, and I do not think the administrators should be unduly criticised for insisting on strict proof. " 16The parties agree that this requirement means that proof should be by means of admissible evidence that is clear and cogent. 17Evidence took the form of affidavits, documents tendered, oral evidence and cross-examination. No photographs of the deceased were tendered. Matter Arising during Course of Proceedings 18During the first day of the hearing, an affidavit of the second Defendant's solicitor, Mr Philip Davis, was read, for the purpose of obtaining the leave of the Court to issue a subpoena, urgently, for the production of certain documents from the firm of solicitors acting for the brother of the first Defendant. I was informed by Mr A L Hill, counsel for the second Defendant, that he had spoken with a solicitor from that firm who was content for the subpoena to be issued and served; that the solicitor had considered, and had available, a copy of the documents sought in the subpoena; and that he would make those documents available to the Court by 2:00 p.m. on that day. 19Counsel for the first Defendant objected to the grant of leave upon the basis that the contents of the affidavit made it clear that Mr Davis had been aware of the existence of documents to be produced in answer to the subpoena since early August 2011 and that to have the documents produced, and inspected, at this late stage might prejudice the first Defendant. 20Counsel for the Plaintiff was content for the subpoena to be issued. 21Having heard the submissions, and bearing in mind the contents of the affidavit which was read, as to the nature of the documents that might be available and produced, I formed the view that, upon certain terms, leave to issue the subpoena urgently, should be granted, and if there was no objection to inspection, that the documents produced should be available for inspection by the legal representatives of the parties, after which any question of prejudice suffered by the first Defendant, and if necessary, how to relieve that prejudice, could be considered. 22I came to this view bearing in mind the words of Lord Summer in Russell v Russell [1924] A.C. 687: "... my own view is that, in the administration of justice, nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth ... It is best that truth should out and that truth should prevail." 23I made it clear to the second Defendant's counsel that, in following this course, any costs thrown away, including any costs of an adjournment, if that became necessary, might have to be borne by the second Defendant. 24The second Defendant's counsel, at 2:00 p.m., produced an envelope containing documents, the subject of the subpoena. He informed me that the solicitors who had produced the documents had informed him that they were maintaining a claim of "legal professional privilege" (presumably on behalf of their client). A letter within the envelope, addressed to the second Defendant's solicitors, confirmed this claim. 25In these circumstances, I considered that neither the parties, nor I, should inspect the documents produced until such time as the solicitors producing the documents identified the documents that were the subject of the claim and the basis, or bases, of any such claim. I requested the second Defendant's legal representatives to inform those solicitors that any submissions could be made in writing. 26On the second day of the hearing, the basis of the claim for litigation privilege was adduced. In the light of the correspondence from the solicitors who had produced the copy documents, I was informed that none of the parties sought to inspect the documents produced, as the documents the subject of the claim were likely to be confidential communications made between the client and a lawyer, or confidential documents (whether delivered or not) prepared by the client, in each case, for the dominant purpose of the lawyer providing legal advice to the client, or confidential communications for the purposes of preparing for, or in aid of, the conduct of existing or contemplated legal proceedings. 27In these circumstances, it was unnecessary to consider this aspect further. Subject to any argument about costs, including the amount of any reasonable losses or expenses incurred by the addressee solicitors in complying with the subpoena, the second Defendant should not receive any costs of, and incidental to, the application for the issue of the subpoena. Background Facts 28I am satisfied that the Plaintiff has carried out the necessary and proper investigations to determine the persons who are, or who may be, entitled on intestacy to the deceased's estate. 29I am also satisfied that the following facts are either not in dispute, or have been established in the proceedings. In part, I base these findings upon the extensive searches carried out by the Plaintiff, and the affidavit of the Plaintiff's solicitor that has annexed to it a copy of the documents the subject of these searches. 30The deceased was born on 23 September 1963. As stated, he died on a date between 15 and 30 September 2008. The cause of death was not able to be determined. (An inquest was dispensed with.) 31The deceased was never married, and he was not in a de facto relationship at the time of his death. 32The deceased had no issue. 33The deceased's birth certificate, which is dated 11 October 1963, records his mother as being Carol Ann Goodlock, and that his surname was previously recorded as "Goodlock". The informant is identified on the deceased's birth certificate as "C.A. Goodlock", the deceased's mother, and her address in Wagga Wagga is stated. 34The deceased's birth certificate identified only his mother and contained no information about his biological father. The information omitted includes the family name, the Christian or given name(s), the occupation, age and the place of birth of the father. (Presumably, the information could have been entered on the birth certificate at the joint request, verified by statutory declaration, of the mother and the person acknowledging himself to be the father of the child, or if there was a judgment or order of a court that declared the person to be the father of the child.) 35On the deceased's death certificate, the deceased's father is stated to be "Lance Hull". The informant on the death certificate is recorded as being the second Defendant. There is, however, conflicting evidence about how this information came to be recorded on the death certificate. I shall return to that issue later in these reasons. 36The deceased's mother was born in September 1945, under the name Carol Anne Eldridge. She appears to have taken the surname "Goodlock" from her stepfather. 37In August 1969, the deceased's mother married Ronald Herbert Arthur Smith, a widower. Their marriage certificate records that she was a spinster and that he was a widower. Following their marriage, she took his name and her death certificate records her death, in June 2007, under the name Carol Anne Smith. 38The deceased's mother appears to have had 3 children, namely, the deceased; the second Defendant, who was born in July 1965; and Daryl John Smith, who was born in July 1970. 39It appears that each of these children had a different father. In the case of the second Defendant, also, the name of the father and the information about him is not recorded on the birth certificate. However, in a declaration of kinship provided to the Plaintiff, the second Defendant has stated that his father is John Hamilton. (He is not a candidate for paternity of the deceased.) In the birth certificate of Daryl John Smith, the father is recorded, as it is on the deceased's mother's s 50 Search Certificate, and on the s 50 Search Certificate of Ronald Herbert Arthur Smith, as Ronald Arthur Herbert Smith. 40On the deceased's mother's death certificate, 3 additional children are shown, namely, Vicki Elizabeth, aged 47 years, Sharon Enid aged 46 years and Kerry Margaret aged 45 years. However, each was not a child of the deceased's mother, but the child of Ronald Smith, by a previous marriage. They are identified on his s 50 Search Certificate as the children of Ronald Arthur Herbert Smith and Margaret June Sheather. 41The deceased and the second Defendant assumed the surname "Smith", and both continued to use that surname following their mother's marriage to Ronald Smith. 42Darryl John Smith survived the deceased. He lives alone in a flat at Kooringal (which is near Wagga Wagga), New South Wales. He suffers from a learning disability and is on a disability pension. He lacks capacity to understand, and respond to, written correspondence (in relation to the deceased's estate). The relevance of this information is to explain why the second Defendant has been named as a representative party in the proceedings. 43Ronald Smith died in April 1976. His death certificate lists Vicki, Sharon and Kerry as children of his first marriage. It also lists the deceased's mother's three children as the children of his second marriage to her. However, there is no evidence that he adopted either the deceased or the second Defendant, or that he is the father of either of them. I am satisfied that he was the stepfather of the deceased and the second Defendant. 44The first Defendant was born in May 1940. He was, therefore, 5 years older than the deceased's mother. Entitlement on Intestacy 45Although s 61B of the Probate and Administration Act was repealed by the Succession Amendment (Intestacy) Act 2009, there is no dispute that it continues to apply in the present case since the deceased died intestate before 1 March 2010 (see the savings and transitional provisions of Part 4 Schedule 1 of the Succession Act 2006). Under that section, entitlement to distribution of the estate of a person who dies intestate is determined by a number of rules. 46I mention that, if the intestate leaves a husband or wife but no issue, the estate is held in trust for the husband or wife. That is not the case here. Also, so far as relevant here, where the intestate leaves no husband or wife and no issue, then s 61B(5) applies. 47So far as is relevant to the present case, s 61B of the Probate and Administration Act 1898 provides: "61B Succession to real and personal property on intestacy (1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section. ... (5) If the intestate leaves no spouse and no issue but one or both of the intestate's parents, the estate shall be held: ... (b) where only one parent survives the intestate, in trust for that parent absolutely. (6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner: (a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then (b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate;" ..." 48There is no definition of "parent" in that Act. However, it is clear, so far as is relevant to this case, the natural meaning of the word is the biological mother or father of the child. 49There is no dispute that the deceased's biological mother did not survive him. It follows that if the first Defendant is the deceased's biological father, he is the only parent who survived and the Plaintiff would hold the whole of the deceased's estate on trust for him absolutely. 50Since each of the brothers of the half blood survived the deceased, it is unnecessary to consider the meaning of "on statutory trust". 51The sole issue in this case is who is entitled on intestacy to the estate of the deceased. A Review of the Evidence 52Before turning to the affidavit evidence read in these proceedings, it is necessary to refer to some of the other evidence relied upon, and which evidence is said to be relevant to the determination of the issue to be determined. 53Importantly, there is nothing, in writing, on the sole issue, by any of the principal characters, which is contemporaneous with the birth of the deceased. Nor is there anything, in writing, by any of the principal characters, which was written between the birth, and the death, of the deceased. 54Nor are there any public documents (e.g. hospital records, court transcripts, judgments and the like) that could assist in determining the sole issue. It seems clear that the deceased's mother made no attempt to formally determine the paternity of the deceased and did not seek any monetary assistance, by way of maintenance payments, for the deceased from the first Defendant or from anyone else. 55Evidence as to conduct after the birth of the deceased would be relevant to confirm parentage at the time of birth. For example, evidence that the first Defendant acknowledged the deceased as his own son before, and at the time of, his birth and, thereafter, treated the deceased as his own son, could have justified a finding that that the first Defendant was a parent of the deceased. 56The first relevant written statement about the deceased's paternity is in the form of an affidavit sworn by the first Defendant on 31 August 2009. So far as is relevant, it states: "I moved back to Wagga about 11 years ago, but was born in Wagga Wagga and Warren Scott Smith was the son of Carol Goodlock of xx Dalton St Wagga Wagga, who used to be my girlfriend in 1962 when Warren was conceived I did not have any other children to Carol Goodlock his mother, I have a daughter to my ex-wife ... ... ... thanking you for informing me of my son's death I have been inquiring about him for years but nobody knew where he lived or what railway station he worked. My mother is also deceased and she use (sic) to support both Warren and her mother Carol Goodlock with money I sent to her for Warren support after he was born, before he was working on the railways." 57The second relevant written statement about the deceased's paternity is a letter, dated 6 February 2011, from the first Defendant to the Plaintiff, in which he writes: "... I will explain why I said he was my son, I went with his mother for about 4 years before he was born, and we never married because I went to Queensland shearing, my mother told me Carol was having my baby so I sent home money to my mother to give to her this continued for years but after I married again to Roslyn Vera Hull and we moved to Victoria where Carol used to ring many times but I stopped sending money because my mother was giving some to her daughters dale (sic) and Leone Hull and I never went back to Wagga for years, but kept in contact with my mother who used to tell me how things were going with Carol and Warren she never named the kid Lance because she named him after a footballer, The only one's still alive who will be able to say it's the truth would be all my brothers who are still alive if there is any more information that you need please contact me at my home address by phone or email." 58Next, there is a letter dated 6 July 2011, from Denniston & Day, Lawyers, addressed to the Plaintiff, which, so far as is relevant, states: "We act for the biological father of Warren Scott Smith - Wayne Hull. We are instructed to intervene in the proceedings. Please confirm nothing of a substantial nature will happen in the proceedings until such time as our client formally intervenes, or 12 August 2011, whichever occurs first." 59This letter was followed by another letter, of the same date, from the same solicitors, addressed to the Plaintiff, which, so far as is relevant, states: "... We note by virtue of section 26 of the Public Health (Disposal of Bodies) Regulation 2002 it is possible for the Director General to give approval to exhume the results of the body of a dead person. The purpose that our client would want to make such an application is so that he and the deceased can be subjected to DNA testing. We should be pleased if you would:- 1. let us have a copy of any Applications, Affidavits and Orders made in the Supreme Court matter 52466 of 2011; and 2. advise whether you would join in the Application to Exhume Remains pursuant to the abovementioned Regulation." 60In a letter dated 22 July 2011 from Bartier Perry, solicitors for the second Defendant, to Denniston & Day, Mr Davis wrote: "In relation to your letter dated 11 July 2011 asking whether we would join in an application to exhume the remains of the deceased, we are instructed to not join in your application." 61There followed some other correspondence from the Plaintiff to those solicitors, which is unnecessary to repeat, but which was followed by a letter dated 26 July 2011, from Denniston & Day, to the Plaintiff, in the following terms: "We are instructed, in writing, that our client will not pursue this matter." 62This was followed by a letter, dated 17 August 2011, addressed to the Plaintiff, from Denniston & Day, which, so far as is relevant, states: "... We confirm that Mr. Wayne Hull will not pursue his claim as the biological Father of the deceased. ... As to the matters set out in the penultimate paragraph of 1st inst, we advise that there is no agreement "either oral or in writing, legally enforceable or not legally enforceable" between Mr. Wayne Hull and his brother, Lance Hull, or with Mr. David Wayne Smith." 63There is a diary note, dated 6 July 2011, of Mr Davis. So far as is relevant, that diary note states: "I rang Graham Burmeister at Denniston & Day Lawyers in response to the facsimile received from him this morning. Graham confirmed that Wayne Hull is Lance Hull's younger brother. ... Graham is checking their position with a view to applying to exhume Warren's remains for the purpose of DNA testing to prove paternity. I asked on what basis Wayne claims to be Warren's father. Graham said that Carol Smith (nee Goodlock) had an affair with Wayne when they were both young. Carol became pregnant to Wayne whilst he was still a minor. They were concerned that Carol would be charged for having sex with a minor and covered the matter up by saying that Lance Hull was the father. Wayne paid money for Warren's maintenance to Carol via an intermediary. Graham could not tell me more as he said he was still getting a grasp on the facts." 64I turn then to the affidavit evidence read in the proceedings. 65The first Defendant swore an affidavit on 15 April 2011. In that affidavit, he stated, amongst other things that he met the deceased's mother when she was about 16 and he was about 20 years of age. He says that they started to go out socially to Hotels, although she did not drink alcohol at the start of the relationship, and only occasionally at the end of their relationship. He said that they also went out socially to the pictures, to the rodeo at Tumbarumba on at least 2 occasions, and to a rodeo at North Wagga Wagga. During the summer, they would go swimming in the river and on picnics. He says that they went out with friends, one of whom was Peter Sheather. They would go out as a group. 66He also says: "16. I remember at the time I had a blue Ford Mainline Utility. After a short time, we became intimate sexually at a number of venues around Wagga Wagga, including both our homes. ... 18. On one occasion, Carol and I met in Sydney for a weekend. It was about the time she told me she was pregnant to me. I think Peter Sheather travelled from Moree to Sydney with me. We were shearing in the Moree area at the time. Carol's pregnancy 19. Carol became pregnant in 1963, although she didn't tell me immediately. 20. We continued to go out socially and have intimate relations and I didn't know she was pregnant until my mother told me in early 1963, at which stage I believe it was in Moree and I later travelled Queensland to improve my shearing. 21. Sometime after being told by my mother, I raised it with Carol and she confirmed it saying to the effect "I am having a baby Lance". I accepted that the baby was mine because we were in a relationship and Carol told me that I was the father. 22. Carol and I discussed marriage but I didn't have any money and I had already made plans to go to Queensland to learn how to shear properly. Shearing was a profitable occupation in those days, compared with other rural jobs and other employment and I thought it was best to get some money together." 67After he left for Queensland, the first Defendant says that he made arrangements with his own mother to look after the deceased's mother by sending money to her to give to the deceased's mother. He says his mother kept him informed about the deceased's mother. 68He states: "24. About once a month Mum wrote to me and kept me informed about Carol's welfare and I would send money back to Mum to give to Carol, because I was in Queensland. At one stage before I went to Victoria and when I arrived back in Wagga Wagga, Mum said to me to the effect "Don't go near her because she is getting married to someone else". I think the someone else wasn't Ron Smith, who she later married." 69He returned to Wagga Wagga in about 1963/64. His older brother, Barry, then asked him to go to Victoria. He remained in Victoria for some time. He married. He did not return to Wagga Wagga for about 30 years. He says that during the first "couple of years", he continued to send money to his mother for the deceased. 70In relation to the deceased, he states: "30. On one of my later visits, I made an enquiry at the Railway Station at Wagga Wagga in an attempt to try and find him and was told that he had moved to Sydney to live and was working on the railways there. The person that I spoke to couldn't provide any more detail than that." 71He also says, however, that following his separation from his wife, the deceased's mother telephoned him on a few occasions, suggesting that they resume their relationship "but I didn't follow up those calls. Too much time had past". The first Defendant does not say that he asked the deceased's mother about the deceased on any of those occasions. 72The first Defendant moved back to Wagga Wagga in about 2000. He says that he went back to the Railway Station at Wagga Wagga and spoke to the Station Master and was again told that the deceased was somewhere in Sydney. He does not suggest that he made any other enquiries. 73The first Defendant swore a further affidavit on 19 May 2011, in which he states a specific conversation with the deceased's mother: "3. I refer to paragraph 18 of my first Affidavit. I recall that before the Sydney weekend I was at Moree and Carol telephoned me and we arranged to meet in Sydney. 4. Either on the telephone, or in Sydney, Carol and I had a conversation to the following effect: Carol: "I'm having your baby Lance what are you going to do". Lance: "What the hell's going on, you're having a baby". Carol: "Yes". Lance: "I'll help you with the expenses and money - I can't marry you now because I have to go back to Moree shearing". 7. However before I left for Victoria Carol turned up without the baby at my mother's home. A conversation between us to the following effect took place: Lance: "Where's the baby". Carol: "He's home with mum". Lance: "Why did you name the baby Warren, why didn't you name it Lance or even put Lance in as a second name". Carol: She laughed. Lance: "Who's Warren". Carol: "He's a good footballer in Wagga". 8. During this time back in Wagga Wagga of about two weeks and before moving to Victoria, Carol and I went out socially on at least one or two occasions. " 74There is also evidence from Peter Sheather, the person referred to by the first Defendant as one of the persons with whom he and the deceased's mother went out. 75Mr Sheather corroborates the fact that the first Defendant, when he was 18 or 19, "spent a lot of his spare time with Carol (Goodlock) when not working" and that they would go out "as a couple". I shall refer to Mr Sheather's evidence later in these reasons. 76I have earlier referred to the fact that the death certificate of the deceased refers to the first Defendant as the father of the deceased and that the informant identified on the death certificate is the second Defendant. The circumstances surrounding the obtaining of information that was included in the death certificate is provided in an affidavit, sworn on 18 April 2011, by John Bance, a funeral director. After detailing his 35 years experience as a funeral director, Mr Bance states: "5. Annexed herewith and marked with the letter "A" is a true copy of particulars taken by me in relation to the funeral of Warren Scott Smith held on the 15 October 2008 at the Wagga Wagga Lawn Cemetary. The particulars were supplied by David Smith a day or so before the funeral. 6. The particulars were provided by me asking Dave Smith questions and him supplying the answers to which I wrote onto the original of Annexure "A". 7. As I recall it the answers were given without hesitation." 77There was evidence given by the second Defendant also. In an affidavit sworn 18 May 2011, he stated that he had "no knowledge as to who Warren's biological father was" and that "[T]here was never any father figure around other than Ronald who I knew to be our stepfather". 78In relation to discussions about the identity of his, and the deceased's father, he states: "12. The subject of our fathers' identifies were rarely mentioned in our family. My mother was a Roman Catholic. As a child, I can recall two family conversations which I overheard and which may be considered relevant, they both involved my mother's siblings. One occurred around Christmas one year and the topic was how it was unfair that Warren and I only received presents from one side of the family as no father was around. During that conversation was an argument about my mother not pursuing welfare for Warren and me. Also in that conversation I recall the name "John Hamilton" was mentioned and also the name "Hull", but I do not know in what contexts. 13. As we were growing up, on numerous occasions Warren and I would ask our mother who our fathers were. Her reply to us was always the same, "Just think of Dick as your father". My mother made it clear that we had different fathers but she never told us who our biological fathers were. She never told me who my father was and she never told Warren who his father was in my presence, nor did Warren ever tell me that our mother had told him when I was not present. 14. By the age of about twelve, it became obvious to Warren and me that whoever our fathers were they did not care about us, because we had absolutely no contact with them, and we gave up asking our mother about our fathers. ..." 79He states that he had never met the first Defendant or John Hamilton. 80He explains the circumstances surrounding the giving of the information disclosed on the deceased's death certificate as follows: "19. I organised Warren's funeral. In the course of doing this, the Undertaker, John Dwyer ("John"), required information to complete the Death Certificate, he asked:- John: "Who is Warren's father?". Me: "I don't know for sure". John: "I have to put something on the Death Certificate". Me: "Well, I've heard the names of Lance Hull and John Hamilton mentioned in conversations". John: "Lance Hull will do." 20. John then inserted Lance Hull's name on the form which I subsequently signed. At the time I was very upset about my brother's death and did not think too much about what had gone onto the Death Certificate. I just signed what was put in front of me." 81There is also an affidavit from Elsie McGowan, the sister of the deceased's mother. It is necessary to quote parts of her affidavit also: "8. The night of the day that Lance called to Carol and me from his car, Carol came home crying, very upset and hysterical, she said, "I've been raped by Lance Hull and another man, someone he knew, but I don't know who he was". 9. A complaint of rape was not made to the Police. My father was angry and forbade it. We were a family well known in Wagga and I believe my father was concerned about the family's reputation. My father was injured in the war at Haifa and was subject to fits so we did as my father said. My mother and I bathed Carol and put her to bed. 10. Carol became pregnant after this incident. My father wanted to have the baby adopted out but my mother disagreed. Her view prevailed so Carole (sic) kept the child and raised him with the help of the whole family. The child was given the name of Warren Scott Goodlock ("Warren") and he was born on the 23rd September, 1963." 82The first Defendant objected to Paragraph 8 of the affidavit. I admitted the conversation set out, not as proof of the asserted fact, but as evidence that the conversation occurred: s 136 Evidence Act 1995. 83Ms McGowan went on in her affidavit: "11. After Warren was born, one day I took Carol and Warren to visit Lance's mother at her home. I went in with Carol and Warren. Carol said to Lance's mother in my presence, "I'm not sure whether Lance is the father of the baby or the other man". During this visit, Lance walked in and said, "I'm not the father of that little bastard", I said to lance (sic), "You're a rotten mongrel and a low life. You wont admit what was done or give us the name of the other man". Lance then stuck his thumb up at me and walked out the back door. Carol was crying and did not say a word. Lance's mother just sat there not saying anything, so we left. 12. As far as I am aware, Lance never acknowledged the paternity of Warren. He never had any contact whatsoever with Warren during Warren's lifetime and never paid maintenance for Warren. He also never contributed in any way to Wayne's upbringing." 84The conversation in Paragraph 11 was not objected to. The parties agreed that the conversation must be read in the light of the conversation in Paragraph 8. 85Finally, without objection, Ms McGowan stated: "13. ... I suspect that Carole (sic) said that Lance was the father because she was ashamed that she did not know who Warren's father was." 86Ms McGowan, in response to the assertions in the first Defendant's affidavit that there was a relationship between the deceased's mother and the first Defendant said that "as far as I know", she only went out with him on one occasion and that "there was no relationship between" the deceased's mother and him. 87The first Defendant swore an affidavit in reply in which he denied that he had raped the deceased's mother or that he had been in the company of another man who did so. He also denied the events at his mother's home about which Ms McGowan gave evidence. He said that she had never been at his mother's home and that "no such conversation took place". The Witnesses 88Bearing in mind that the Court is dealing with events that occurred nearly 50 years ago, in expressing my views on the credit of any witness, I remember what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: "... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." 89I appreciate that in that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987: see the discussion in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10]-[18]. However, the views expressed apply to all types of litigation. 90I also remember what Kirby J, although in dissent, said in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48: "[120] ... Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial ... If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned ... [121] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law." 91Finally, as observed by Chief Justice J Spigelman 'Truth and the Law' (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011): "Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon." 92Unsurprisingly, the evidence in chief of each witness was given by affidavit. 93Neither of the Plaintiff's witnesses was cross-examined. This was not surprising, since, the evidence of each was as to formal matters. Each had no personal knowledge of the matters asserted. There was a copy of each of the formal documents, or the correspondence passing between the party's solicitors and others, annexed to her, or his, affidavit. I have set out most of the facts that are not seriously in dispute or which have been established by the evidence of each. 94The first Defendant was cross-examined by counsel for the second Defendant. In submissions, counsel for the first Defendant accepted that. "on its own", the evidence given by the first Defendant would "not be regarded as strongly reliable". This concession was amply justified, as there were aspects of his evidence that were extremely troubling. I found the first Defendant's evidence inconsistent and, in parts, I thought he was simply answering a question in a way that he thought would best assist his case. 95Some aspects of his evidence that lead me to conclude that I should not accept parts of his evidence were: (a) Despite acknowledging that "it was a very big shock" at the time, he could not remember when, or where, he was, when he was first told that the deceased's mother was pregnant and that he was the father of her child. His evidence on this topic changed several times. (b) Despite his first affidavit, in which he stated that he was told by his mother, and that he "raised it with Carol and she confirmed it", he could not remember who first told him that the deceased's mother was pregnant - whether she did so, or whether it was his mother. He said "they both told me in the finish". (c) In his first affidavit, he stated that the deceased's mother told him "I am having a baby , Lance" and that "I accepted the baby was mine", in his second affidavit, he wrote that she said "I am having your baby , Lance, what are you going to do?" (my emphasis). There is clearly a significant difference between these two versions of the conversation. (d) He gave evidence that he and the deceased's mother had discussed marriage. In answer to a question by me, he stated that he had kept in regular contact with her whilst he was in Queensland. There was nothing in any of his affidavits to suggest that he had kept in direct contact with her after he went back to Moree, or when he went to Queensland (for the purpose of improving his shearing ability and to earn extra income). (e) He stated that he had told Mr Sheather about the pregnancy "when we were shearing together up in Moree" (before the conversation on the way down to Sydney). That was not stated by Mr Sheather in Mr Sheather's evidence and had not been stated in any of the first Defendant's affidavits. Mr Sheather was called before the first Defendant was cross-examined and leave was not sought to ask any questions of Mr Sheather in chief on this topic. (f) His evidence of the amount of money paid, to his mother, for the benefit of the deceased and the deceased's mother, changed from "up to 50 at a time" in his first affidavit, to " 100 every two weeks" in his oral evidence. He had written, in his first affidavit "About once a month Mum wrote to me and kept me informed about Carol's welfare and I would send money back to Mum to give to Carol because I was in Queensland." (g) His evidence about the period of time that he had paid money, to his mother, for the benefit of the deceased and the deceased's mother, changed from "for a couple of years" in his affidavit to "about 3 years after the child was born". (h) He had asserted in the second document forwarded to the Plaintiff that "The only one's (sic) still alive who will be able to say it's the truth would be all my brothers who are still alive", but he said that he had never spoken to them about giving evidence in the proceedings. He admitted that he had been referring to his brothers, Graham, Kerrie, Barry and Wayne, in the affidavit. (i) He had known that his brother, Wayne, asserted, in these proceedings, that he was the father of the deceased, but had not spoken to him about it, or advanced any explanation why his brother would make such an assertion. (j) He said that he had written letters to the deceased's mother whilst he was in Queensland, which letters she "passed on to Carol". He then gave the following evidence: "Q. Is there any reason bearing in mind that your relationship was one where you were talking about marriage why you didn't deal directly with Carol? A. Yes, there is. Because the mail never got to their house half the time. It's up - where they live was up Darlton Street. It was the commission houses. A lot of the mail never got up. I wanted Mum to make sure that Carol got the money." He did not explain why the money could not have been placed in the same envelope, addressed to the deceased's mother, and "passed on" to her by the first Defendant's mother. (k) He saw the deceased's mother "a couple of times" after she had given birth to the deceased, but never saw the deceased. He gave the following evidence: "Q. Did you see the child? A. No. I never seen the child. What happened was, I said to her "where's the baby Carol". She come down home and Carol said "she's with Mum". That's the only time I - I stayed only about 3 days. I was very disappointed. It broke me my heart to hear about losing Carol. I went down to Victoria. I drove down to Victoria. I was wild about it. I couldn't believe it. Carol having another bloke and having a baby to me. Q. When you came back from Queensland and you went out with her a couple of times? A. Yes. Q. Didn't you enquire about the child? A. I did enquire about the baby. She wouldn't show me the baby. Q. Why not? A. I don't know. She wouldn't bring the baby down to Mum's place or anything at all. Q. Did you ever go up to her place and say "I want to see the baby"? A. My mother said to me "if you don't pay maintenance", something like that, she said, "if you don't pay money to Carol, she's going to take you to the welfare". All right I said. I paid her. Every 2 weeks I sent her money. Q. Through your mother. A. Through my mother. Mum made sure she got the money." (l) He gave evidence that following his move to Victoria, and during his marriage to another woman, the deceased's mother contacted him persistently, but when he answered the telephone, the person on the telephone would not speak. Later, he stated that he did not actually know who telephoned him, but that it had been his own mother who had suggested that it might be the deceased's mother. (m) He gave evidence that the deceased's mother had contacted him, following his separation from his wife, in about 1990, but he did not "follow up those calls". He did not give evidence about making any telephone calls to enquire about the deceased or asking her about the deceased when she had called. (n) It was acknowledged that his sworn evidence that he had provided the first affidavit sworn 31 August 2009 to the Plaintiff was wrong. 96Furthermore, despite, apparently, wanting to marry the deceased's mother, he made little, or no, effort, in 1963, on his return to Wagga Wagga, to resurrect their relationship. He said that it "broke his heart" but he does not appear to have made any real effort to see the deceased's mother or the deceased following his return. 97Overall, I am not satisfied that the first Defendant was as he described himself at the time of, and before, the birth of the deceased. For reasons to which I shall come, I also do not accept that he acknowledged that he was the biological father of the deceased. To the contrary, I am satisfied that he did not accept his parental status or biological responsibility and that, otherwise, he had no other connection with the deceased. 98However, there is an aspect of his evidence that I do accept. That evidence is that the deceased's mother asserted that he was the father of the deceased. 99Importantly, that assertion by the deceased's mother appears to have been, at least financially, motiveless. She must have known he was working but she made no claim for maintenance for herself or for the deceased. It may have been based on emotional factors but not on financial considerations. It is an important matter that I shall bear in mind in considering the probabilities. 100In stating her assertion, it should be remembered that it is one of her opinion made before the commencement of any actual controversy upon the matter in issue. 101In relation to Mr Sheather, it is fair to say that the passage of time had dimmed his memory somewhat about some matters the subject of cross-examination (e.g. the name of the pubs that he said that he had been to with the first Defendant and the deceased's mother; whether he had been to the movies with them; how many times he had seen them together; when the first Defendant had owned a sedan as opposed to a utility; the identity of the female companion that he had taken when he went out with the first Defendant and the deceased's mother; and the time when he went to work in Wagga Wagga for the first time). 102He acknowledged that he first had to recollect the events about which he gave evidence in March 2011. A little surprisingly, he said that whilst he knew that the deceased's mother had been pregnant, he did not know that she had had the child later in 1963. 103Importantly, he maintained that: (a) the conversation with the first Defendant referred to in his affidavit had occurred in 1962 (whether it was early, or late, in that year, he was unable to say); (b) on the occasion when he had accompanied the first Defendant to Sydney to meet the deceased's mother, he had been told on the "trip down" that she was pregnant; (c) on the trip back to Moree, the first Defendant acknowledged that he was the father of her child; (d) he had seen the first Defendant on only three occasions since the first Defendant had attended his wedding in May 1965, once at the races about 10 years ago, once in a doctor's surgery, and on the occasion, at the end of March 2011, when the first Defendant had asked him to provide information about the relationship with the deceased's mother. 104I have considered Mr Sheather's evidence carefully. Despite my view that the conversation to which he referred with the first Defendant did not occur in 1962 (because the deceased's mother would not have known that she was pregnant then), and despite his memory being imperfect about what, undoubtedly, would have been, fairly mundane matters that had occurred almost 50 years ago, I am unable to find any basis to disbelieve his evidence as to his conversation with the first Defendant "on the trip down" to Sydney. (I am entitled to take judicial notice that the period of normal gestation is about 270 to 280 days; Preston-Jones v Preston-Jones [1951] AC 391.) I have doubt, however, about his recollection of what occurred on the way back from Sydney to Moree. 105Mr Sheather does not give any evidence of any conversation that he had with the deceased's mother in Sydney, despite the fact that he said that she had slept in the front seat of the car with the first Defendant and that he had slept in the back seat on the one night that he and the first Defendant were in Sydney. This is a very surprising, and unexplained, omission, from his evidence. 106Apart from one matter to which I shall refer later in these reasons, I do not accept the Plaintiff's submission that there is an inherent improbability in the facts that Mr Sheather asserted. In particular, I am satisfied, despite the evidence of Ms McGowan, that the trip to Sydney, and the conversation with the first Defendant "on the trip down", did occur. 107Ms McGowan was not cross-examined. I have earlier indicated the basis that I admitted the conversation she had with the deceased that was objected to. In the circumstances, whilst I accept the conversation occurred, I do not express any view on whether the events described, in fact, happened. I do, however, accept that the deceased's mother asserted that they happened. 108Also, I do accept the event that Ms McGowan described in Paragraph 11 of her affidavit, which corroborates the version of the events having been repeated in the presence of the first Defendant. (I note that the first Defendant denies any such conduct on his part and says that he was not present when any other man was involved in such conduct.) 109There are several other aspects of Ms McGowan's evidence that I consider to be of some importance. The first is her evidence in paragraph 13 of her affidavit, which states: "I suspect that Carole (sic) said Lance was the father because she was ashamed that she did not know who Warren's father was." 110There was no objection taken to any part of the sentence quoted. I do not give great weight to the suspicion that Ms McGowan held. As stated, what is significant in the passage quoted is her statement that the deceased's mother had said that the first Defendant was the deceased's father. As I have said, also, this can only be regarded as a statement of the deceased's mother's opinion, not that the first Defendant was the deceased's father. 111In relation to the second Defendant, he was tested, principally, on the events that occurred when he spoke to Mr Bance, who completed the deceased's death certificate. He frankly conceded, that he did not remember very well what had occurred at the meeting. He said he was very distressed at having to bury his brother. He maintained, however, that he did mention two names to Mr Bance, being that of the first Defendant and John Hamilton, who he "surmised" was his father. 112In circumstances where Mr Bance has not been cross-examined and where the second Defendant acknowledged being distressed and unable to remember very clearly what occurred in the discussions, I accept the evidence of Mr Bance that the second Defendant gave the name of the first Defendant as the father of the deceased to him. 113I do not treat this as an admission by the second Defendant that the first Defendant is, in fact, the father of the deceased. I accept the second Defendant's evidence that he had no conversation with his mother about the identity of his own father, or of the deceased's father, and that his "knowledge" was based on conversations that he overheard and from which he "surmised" certain things. That is the sort of evidence identified as potentially "unreliable" in s 165(1)(g) of the Evidence Act . 114This seems to accord with the second Defendant's evidence in relation to what he had overheard on the topic of fathers, namely that the only names mentioned between his mother, his aunties, and uncles were "Lance Hull" and "John Hamilton" and that he surmised, from such conversations that John Hamilton was his father. This means that he had overheard conversations that led him to surmise that the first Defendant was named as the deceased's father. 115I raised with counsel the fact that the time when the conversations to which the second Defendant referred were overheard had not been the subject of evidence. There was no dispute that I was entitled to draw the inference that the earliest time the conversations could have been overheard, digested and remembered, was in the 1970's, and thereafter (at which time the second Defendant would have still been a young child - he was born in 1965). They seem to have been made until he was about 14 years of age (about 1979). Failure to Call Evidence 116The first Defendant did not call evidence from any of his brothers. With the exception of Wayne, who, perhaps, he may not have had to call because of the assertion that Wayne made and the application that he threatened but did not pursue, there was no explanation for the failure to call any of his other brothers, who the first Defendant had asserted, "would be able to say it's the truth". 117It was submitted that the Court should draw a " Jones v Dunkel inference", namely that the uncalled evidence would not have assisted the first Defendant's case and that the court should draw, with greater confidence, an inference unfavourable to the first Defendant ( Jones v Dunkel [1959] HCA 8; 101 CLR 298, at 308, 312 and 320-321). 118As was said in J H Wigmore, Wigmore On Evidence, 3rd ed, (1940), vol 2, s 285, p 162): "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." 119More recently, in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Campbell JA has summarised, succinctly, the position as follows: "91 Jones v Dunkel authorises, but does not require, a tribunal of fact to engage in two different types of reasoning. One is to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness. The other is that the tribunal of fact can draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v Byrne [2004] NSWCA 123 at [51]. It is only the first of those courses that the trial judge followed in the present case. 92 Glass JA identified a number of propositions for drawing such an inference in Payne v Parker [1976] 1 NSWLR 191 at 201-202. Among these were the following conditions: "(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. (7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard [1975] VR 916, at 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at 728. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O'Donnell v Reichard [1975] BR 916, at 921." 120In the present case, the first Defendant, under oath, asserted that his brothers would be able to attest to the truth of what he had stated. Thus, he could reasonably have been expected to call each of those persons. The particular matter each brother's evidence would elucidate was not entirely clear, but it was asserted that it would be "to say it's the truth". There was no explanation for the absence of any of his brothers (except, perhaps, Wayne) as a witness. 121I infer that the evidence of each of the brothers, if called, would not have assisted the first Defendant. I also draw, with greater confidence, an inference, unfavourable to the first Defendant, that the circumstance surrounding the first Defendant going to Victoria was not as he alleged. In this regard, it will be remembered that it was the first Defendant's brother, Barry, who suggested that the first Defendant go to Victoria to shear sheep. He, in particular, seems to have been in a position to cast light on what had occurred shortly prior to the first Defendant going to Victoria. Proof of Paternity 122The issue of the deceased's paternity, in this case, is complicated by various difficulties and uncertainties and is one that is shrouded by the mists of time. The death of the mother of the deceased and of the deceased cause these, and other, problems. The issue is also, otherwise, subjected to hearsay statements by the mother of the deceased and by the speculation of others. 123Furthermore, there are no presumptions, including the presumption of parentage arising from marriage, from registration of birth, from findings of a court, from cohabitation, or from an executed instrument acknowledging paternity, available to assist in the determination of the sole issue that has been raised. Nor is this a case where the deceased's paternity can be determined easily, and, for practical purposes, conclusively, by scientific testing. The advantage of scientific truth against uncertainty cannot be achieved in this case. Thus, the Court must find proven forensically what cannot be established scientifically. 124There is no written statement from the mother of the deceased as to the identity of the father of the deceased. It is not a case where they ever cohabited with each other, or where general reputation of a relationship between them existed. The evidence consists essentially of oral conversations and family conduct. That such evidence is admissible and may be used to determine the issue is clear. 125In Re Pennington (decd) (No 2) [1978] VR 617, at 624, it was said: "The next matter of evidence to be dealt with concerns the admissibility of hearsay declarations as to pedigree. The rule is stated in this way in Cross on Evidence (Aust. ed. 1970, 523): "The oral or written declaration of a deceased person, or declarations to be implied from family conduct, are admissible as evidence of pedigree provided the declarant was a blood relation, or the spouse of a blood relation, of the person whose pedigree is in issue, and provided the declaration was made before the dispute arose." There is also a passage to the same effect in Halsbury (4th ed., vol. 17, para. 82) which includes this sentence: "Where the existence of a marriage is in question, evidence of reputation is receivable, not only from blood relatives but also from friends and neighbours to prove the existence of the marriage. The evidence must remain general and not merely be founded on particular assertions." Reference may also be made to Re O'Neil (dec'd) [1972] VR 327. ... Where evidence is admitted on the basis of the pedigree declaration rule, the weight of any declarations still has to be considered." 126In Goodright v Moss (1777) 2 Cowp 591; (1777) 98 ER 1257 Lord Mansfield (at 594) put: "The next question is, whether the declarations of the father and mother in their life-time, can be admitted in evidence after their death? Tradition is sufficient in point of pedigree: circumstances may be proved: for instance: suppose from the hour of one child's birth to the death of its parent, it had always been treated as illegitimate, and another introduced and considered as the heir of the family; that would be good evidence. An entry in a father's family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion (as the Duke of Buckingham's was), are all good evidence. So the declarations of parents in their life-time." 127Section 73 of the Evidence Act relevantly provides: "(1) The hearsay rule does not apply to evidence of reputation concerning: (a) ..., or (b) ..., or (c) ..., or (d) family history or a family relationship." 128The burden of proof of paternity in proceedings of a child born to an unmarried mother, where both the child and the mother are deceased, must lie on the person who asserts that he is the father of the child. In the present case, the first Defendant accepted that he bore the legal onus. The burden of proof will be discharged when the person on whom it rests adduces the evidence available to him and when that evidence tilts the balance of probability in favour of the paternity alleged. 129As was recently said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123: "48... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)." 130In Moszko v Warshall (Supreme Court of Victoria, Smith J, 20 February 1995, unreported), in which declarations were sought as to paternity which would affect the distribution of the estate of the deceased, his Honour, at 14, said: "Claims against the estate of a deceased person must be scrutinised with great care. Further, in cases of this nature, it is common ground between the parties that while the standard of proof is on the balance of probabilities, the Briginshaw v Briginshaw principle must be borne in mind." 131Section 140 Evidence Act 1995, provides: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged." 132A quite useful statement on the issue in this case is to be found in the decision of Waite LJ in R e A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, who said: "(1) the question raised by the issue of paternity is a serious one - more serious in the scale of gravity than, for example, proof of debt or minor negligence; (2) the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue; (3) the weighing process involved in (2) must not however be over-elaborate. The court should not attempt, in a precise, almost mathematical, way to determine precisely what degree of probability is appropriate to the gravity of the case. There is still ample scope for the influence of common sense and the insight gained from first impression." 133I respectfully agree that paternity is a serious and important issue. Although, in this case, the privileges and responsibilities of paternity have ceased, since the relevant "child" is dead, it remains a serious and important issue because of the monetary consequence that would flow from the finding of paternity. If the Court determines that the first Defendant is the father of the deceased, he is entitled to the whole of the deceased's estate on intestacy. 134I also note that the claim by the first Defendant is really a claim against the deceased's estate. Bryson AJ in Zahra v Francica [2009] NSWSC 1206 said: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]: "... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available." 2 A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson , see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities." 135Accordingly, I shall, in this case, take into account the matters referred to in s 140 in reaching my conclusion remembering, of course, that I am to determine the issue by reference to the balance of probabilities: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22] - [24]. In the absence of determinative, or any, scientific, evidence, I approach the issue from a common sense point of view having regard to the evidence available and in the light of the relevant circumstances. Determination 136I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties. These will be retained in the Court file. 137In determining the sole issue, I highlight the following matters: (a) The failure of the first Defendant to adduce any evidence from any of his brothers or other family members. This consideration may not have been important but for two matters. The first is the first Defendant's statement that "the only one's (sic) still alive who will be able to say it's the truth would be all my brothers who are still alive". The second is that the first Defendant gave evidence that he had a conversation with his brother, Barry, prior to going to Victoria and at a time when he "was irritated and upset" about events involving the deceased's mother. One might think that what the first Defendant had said at the time would be important. (b) The evidence of Ms McGowan as to the denial of paternity by the first Defendant. Ms McGowan was not cross-examined and whilst the first Defendant denied the conversation, he has every reason to do so, whilst Ms McGowan does not have any reason to assert it. If I accept that the conversation occurred, this is direct evidence of a denial, by the first Defendant, of paternity. (c) Paternity and maternity is a matter of status. In this case, the status of paternity conflicts with the factual reality of what occurred. The first Defendant's conduct, following his return to Wagga Wagga, from Queensland, and for 40 years thereafter, in relation to the deceased, is inconsistent with his acceptance of paternity. At no time, did he treat the deceased as his son. Additionally, there is no corroboration of his assertions that he attempted to locate the deceased and it is clear that he did not, ever, locate the deceased. That he made no enquiry of the deceased's mother, on the occasions that she is said to have telephoned him, is also inconsistent with his acceptance that he was the deceased's father. (d) The contents of the birth certificate of the deceased do not support the acceptance of paternity by the first Defendant. If, as he alleges, he accepted that he was the father of the deceased prior to, and after, the birth, and told the deceased's mother that he did, and if their relationship prior to him leaving to go to Queensland was as he alleges, there would have been no need to omit his identity, and other details about him, as the father, on the deceased's birth certificate. (e) In addition, there would have also been no need for the deceased's mother to avoid discussing the deceased's paternity with the deceased. To the contrary, there would have been every reason to inform the deceased of the identity of his father. (f) The first Defendant gave evidence of the alleged acts of sexual intercourse, and of the social relations, of the deceased's mother and him prior to the birth of the deceased. He did not identify any specific dates of any act of intercourse. His evidence is not uncontradicted. There is some evidence from Ms McGowan on this topic. More importantly, the conversation at the home of the first Defendant's mother, following the birth of the deceased, seems inconsistent with the version of events put forward by the first Defendant. If I accept the evidence of Ms McGowan about that conversation, a different picture about the relationship of the deceased's mother and the first Defendant is painted. 138The matters set out above, taken with the lack of any executed instrument acknowledging paternity by the first Defendant, lead me to conclude that his assertion that he admitted that he was the father of the deceased prior to, or at any time after, the birth of the deceased, and before his death, should not be accepted. I find that aspect of Mr Sheather's, or the first Defendant's, evidence on this aspect to be improbable and I do not accept it. 139In my view, the first Defendant's conduct is more consistent with repudiating paternity than acknowledging it. He has only sought to formally establish his status, as the deceased's father, following the death of the deceased, and at a time when it would be to his financial advantage to do so. In my view, his evidence was animated by self- interest. 140I have taken into account that the deceased's mother said that the first Defendant was the father of the deceased. I bear in mind also that this is not a case where she could be said to have seen the attribution of paternity to the first Defendant as the means of procuring a maintenance order during the deceased's infancy. She never sought a maintenance order from, or even made a request to, the first Defendant, for monetary, or other, support of the deceased or herself. In other words, her allegation that the first Defendant was the father of the deceased appears to have been, at least financially, motiveless. 141Ultimately, however, I find the allegation to be one that is no more than a statement of the deceased's mother's untested opinion. 142As I am not satisfied that the first Defendant accepted biological responsibility at the time, merely establishing that the deceased's mother alleged that the first Defendant was the father, does not establish that he was. 143Similarly, if there had been sexual relations between the first Defendant and the deceased's mother that does not establish that any acts of intercourse between them resulted in the pregnancy of the deceased's mother. The sexual encounters to which the first Defendant refers are incapable of any corroboration. The first Defendant identified no specific dates of any acts of sexual intercourse with the deceased's mother. 144In addition, there is evidence of an assertion by the deceased's mother of sexual intercourse (albeit said to be without consent) with another man. Also, there is an allegation, not pursued, that the first Defendant's brother, Wayne, had "an affair" with the deceased's mother when they were both young as a result of which she became pregnant. These are matters that I must also bear in mind. 145I have tested my ultimate conclusions in another way. Had the deceased's mother been alive at the date of this hearing, she could have alleged, and the first Defendant could have admitted, that he was the father of the deceased. There would have been, then, an acknowledgement of the deceased's paternity, which might have been sufficient to establish the deceased's paternity. 146But if, as I have found in this case, there was no attempt by her, during the lifetime of the deceased, to formally establish paternity, no attempt to seek maintenance for the deceased, no contact between the deceased and the first Defendant at any time, a denial, or even a non-admission, by the first Defendant, when confronted, of paternity, no scientific evidence, no presumptions, evidence of an allegation of the type referred to, contemporaneously made by the deceased's mother (namely that she had been raped by two men, one of whom was the first Defendant), and evidence of an assertion by Wayne Hull that he was the father of the deceased, even if that assertion, subsequently, was not pursued, would the allegation by her, be enough to satisfy a Court, on the balance of probabilities, that the first Defendant was, in fact, the deceased's father? 147In my view the answer to that question must be negative. 148In all the circumstances, I am not satisfied that the first Defendant has established, on the balance of probabilities, that he is the father of the deceased. 149Accordingly, the appropriate principal orders are: "1. Upon enquiry, it is determined the persons entitled on intestacy to succeed to the estate of Warren Scott Smith who died between 15 and 30 September 2008, are the second Defendant David Wayne Smith and his half brother, Daryl John Smith. 2. The Plaintiff is authorised to distribute his estate accordingly." 150I shall hear the parties on what order should be made as to the costs of the proceedings in circumstances where the first Defendant has not established that he is the father of the deceased. Unless the parties are able to agree, I stand the matter over to a convenient date to argue how the burden of the costs of the proceedings is to be borne. ********** 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. Decision last updated: 12 October 2011