Edwards & Anor v Caldwell & Anor [2007] QSC 94

1 [2007] QSC 094 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOUGLAS J No 2650 of 2003 GRAHAM LESLIE EDWARDS and NOEL ARTHUR NAUMANN Plaintiffs and GRAHAM PERCIVAL ANDREW CALDWELL and BRANLEY REGINALD McLENNAN Defendants BRISBANE ..DATE 21/03/2007 JUDGMENT -- 1 of 6 -- 21032007 T4-5/JB(BNE) M/T BRIS15 (Douglas J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application for leave to appeal in respect of the costs order made by me in this matter on 1st March 2007. The costs order was made after a hearing of a day and the consideration of a significant amount of affidavit evidence. I drew certain inferences against the plaintiffs who sought to propound a will allegedly made in 1999, withdrew their application to propound that will but sought a different order in respect of the costs of the application than the one I made. The order that I made was that they should pay the costs of and incidental to the application and the action personally on an indemnity basis and not from the estate of the deceased. They will, of course, be liable for their own costs of their own legal representation. It seems that the amount involved from their point of view will be significant although there was no direct evidence before me from which I could conclude any precise figure but it appears likely to be in excess of $200,000 in respect of their own costs plus the costs they have been ordered to pay. The authorities dealing with section 253 of the Supreme Court Act 1995 make it clear that leave to appeal against an order as to costs is not given as a matter of course. Keane JA said in Morrison v. Hudson [2006] QCA 170 at para [24]: -- 2 of 6 -- 21032007 T4-5/JB(BNE) M/T BRIS15 (Douglas J) 3 JUDGMENT 1 10 20 30 40 50 60 "Whether leave to appeal should be granted will usually depend on the primary Judge's view as to the balance of competing arguments, whether those arguments relate to matters of legal principle or disputed questions of fact, the importance and difficulty of such arguments, and, on occasion, the amount of money involved." The issue sought to be made the basis for a favourable exercise of my discretion by Mr Ambrose, who appeared for the plaintiffs, was that a number of inferences sought to be drawn were not identified properly or at all prior to the hearing and not made the subject of cross-examination. Those inferences were ones unfavourable to his client. In the judgment I had not drawn an inference against his clients that might have been available because Mr Edwards, in particular, had not been cross-examined. See para [32] of my reasons. I sought to rely, however, upon other uncontradicted evidence and some inferences in respect of information available to doctors who had provided reports about the deceased's capacity to the plaintiffs and their solicitors. Mr Ambrose submits that none of the following inferences that I was invited to draw were identified properly or at all prior to the hearing; (a) that Mr Edwards was a party to or at least knew of the alleged misconduct of Mrs Binney; (b) that Mrs Binney told Mr Edwards all of the information she provided to various medical authorities in relation to the deceased; -- 3 of 6 -- 21032007 T4-5/JB(BNE) M/T BRIS15 (Douglas J) 4 JUDGMENT 1 10 20 30 40 50 60 (c) that Mr Naumann was aware of all of the knowledge said to be attributed to Mr Edwards; (d) that neither Dr Keys nor Dr Oliver were made ware of Dr Venugopalan's reports; (e) that Mr Edwards deliberately "filtered" the information given to Dr Keys and Dr Oliver; (f) that Mr Edwards was sufficiently sophisticated to know that Dr Keys and Dr Oliver's reports were or might have been substantially devalued if there was such non- disclosure; (g) that Mr Edwards set out to deliberately mislead Mr Teevan rather than rely upon him; (h) that the fact that Mr Edwards was looking after "the Nobby" imputed knowledge of the deceased's alleged incapacity; (i) that Mr Edwards was a party to the alleged coercion of the deceased created in the 1999 will. Those issues were submitted by Mr Lee to be able to be reduced to two, namely (c) that Mr Naumann was aware of all the knowledge said to be attributed to Mr Edwards and (d) that neither Dr Keys nor Dr Oliver were made aware of Dr Venugopalan's reports. In my reasoning I formed the view that -- 4 of 6 -- 21032007 T4-5/JB(BNE) M/T BRIS15 (Douglas J) 5 JUDGMENT 1 10 20 30 40 50 60 those inferences of knowledge of Mr Naumann and lack of information provided to Dr Keys and Dr Oliver could be drawn. Mr Edwards had in his affidavit material also denied the suggestion that the deceased had been manipulated into executing the 1999 will by him although I found on the inferences available to me that the better view was that the plaintiffs were not seeking to prove the will in a disinterested fashion but rather that they courted a substantial risk in instituting proceedings that they knew or properly advised should have known were bound to fail. The issues raised by Mr Ambrose in this application, namely that inferences sought to be relied upon were not put clearly to his clients in cross-examination or alleged clearly before the hearing, raises a matter which affects the issue whether I should give leave to appeal in respect of costs. In particular he relied upon the discussion of the rule in Browne v. Dunn by Hunt J in Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation [1983] 1 NSWLR 1, 16, where his Honour said: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn." -- 5 of 6 -- 21032007 T4-5/JB(BNE) M/T BRIS15 (Douglas J) 6 JUDGMENT 1 10 20 30 40 50 60 Mr Lee's argument is that the evidence on which he relied in affidavit form and a chronology which he prepared and supplied to his opponents before the hearing sufficiently telegraphed those issues as to preclude the necessity of him cross- examining. He also submitted both before me and at the hearing that the case was so strong against the plaintiffs that there was no need to cross-examine. He may well be right on a proper analysis of the evidence but the issues as to whether proper notice was given or these matters should have been put in cross-examination do seem to me to justify the grant of leave to appeal in respect of costs because of their general importance in respect of the conduct of litigation. Accordingly I shall grant leave to appeal in respect of costs. ... HIS HONOUR: Costs of today's application are reserved to the Court of Appeal. ----- -- 6 of 6 --