Procedural Fairness in Estate Law - Recent High Court of Australia Case - Nobarani v Mariconte
It has been some time since there was a High Court decision concerning estates and succession law. Earlier this month the High Court of Australia considered whether procedural fairness was afforded to a self-represented litigant, Mr Nobarani during a trial in the New South Wales Supreme Court.
Mr Nobarani was a friend of the late Iris McLaren (‘the deceased’). In December 2013, the deceased made her last Will which named her friend Ms Mariconte as her executrix and sole beneficiary of her estate.
Mr Nobarani was named as a beneficiary of an earlier Will of the deceased. He claimed that the deceased’s 2013 Will was invalid for a number of reasons – he claimed that the deceased’s signature was forged at the time of making her Will, that she lacked testamentary capacity and that she had been under the influence of medication.
Mr Nobarani proceeded to file 2 caveats against a Grant of Probate for the 2013 Will. The executrix then brought proceedings seeking orders that the caveats cease to be in force. The executrix also sought probate of the 2013 Will and also filed a Statement of Claim in which Mr Nobarani was not named as the defendant (and therefore, was not party to the case concerning the validity of the 2013 Will).
NSW Supreme Court decision
Less than a week before the trial concerning the validity of the caveats, Justice Slattery was called upon to determine an issue raised by the executrix, which was to point out that the caveats filed by Mr Nobarani had in fact expired.
The executrix sought that the trial be held as a final probate hearing and the Court accepted. It should be noted that:
- the Court made the decision to change the nature of the proceedings on the 14th May, noting that the trial was set down a few days afterwards on 18th May;
- throughout the matter, Mr Nobarani was not a defendant in the executrix’s Statement of Claim concerning the validity of the 2013 Will, and as such, had only filed evidence in relation to the opposition of the caveat motion. The preparation of his case was limited therefore only to the caveat motion and nothing else; and
- at the Trial, the executrix was represented by solicitors, junior counsel and senior counsel while Mr Nobarani remained unrepresented.
At the trial Mr Nobarani advised the Court that he required more time to prepare for the hearing, that he had been denied an opportunity to issue subpoenas, cross examine witnesses and prepare an adequate defence.
Ultimately, the Supreme Court held that the 2013 Will was valid, granted probate to the named executrix and ordered Mr Nobarani to pay costs.
Court of Appeal
Mr Nobarani appealed to the Court of Appeal on the basis that he had been denied procedural fairness.
The Court of Appeal unanimously held that Mr Nobarani had been denied procedural fairness, but what happens next was important.
Justice Ward and acting Justice Emmett held that although Mr Nobarani had been denied procedural fairness, that the miscarriage of justice was not so substantial to warrant a retrial, and that the denial of procedural fairness did not deprive Mr Nobarani of the possibility of a successful outcome.
Justice Simpson had a different opinion and found that there was a possibility that retrial would have resulted in a different outcome and therefore there had been a miscarriage of justice.
As the Court was divided, the majority decision took precedence and Mr Nobarani’s appeal was dismissed. A retrial was not ordered.
High Court of Australia
Mr Nobarani then appealed to the High Court of Australia.
The High Court unanimously allowed Mr Nobarani’s appeal from the Court of Appeal and held that a new trial should be granted on the basis that Mr Nobarani was denied procedural fairness.
Some of the notable points made by the High Court included the following:
- Denial of Procedural Fairness
Citing Stead v State Government Insurance Commission, the High Court stated that ‘[a]ll the Appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome’. The High Court confirmed that there were several denials of procedural fairness through the course of the trial however they mostly arose from the last minute change of the issue to be decided during the hearing. Ultimately, this was determined to be sufficient enough to deny the appellant ‘the possibility a successful outcome’.
- Insufficient Time for the Appellant to Prepare a Defence
The High Court held that contrary to the assertions of the trial judge, the appellant did not have sufficient time to prepare for his matter.
Mr Nobarani only had 3 clear business days to:
- consider the statement of claim;
- prepare and serve a defence;
- issue any subpoenas with an abbreviated return date before trial; and
- locate any witness and secure them for the trial.
The trial judge had made this assertion of the basis that the matter had been set down for some time. However, the trial judge had not taken into account that the trial date was set for the issues surrounding the appellant’s caveats and not the substantive Will challenge. In fact, no directions had been given in relation to the substantive Will challenge.
- Issues surrounding self-represented litigants generally
Mr Nobarani had a limited understanding of court procedure and evidence rules. In addition, his command of the English language was lacking.
The High Court found it unsurprising therefore that his case was vague and disordered but was careful not to give the appellant a privileged status as a self-represented litigant. The fact that Mr Nobarani was a self-represented litigant did play a factor in the High Court’s decision.
Unfortunately for the parties involved, due to the procedural irregularity, the matter remains unresolved and is now set for a new trial at the New South Wales Supreme Court. Interestingly, Mr Nobarani does not stand to benefit significantly under the earlier Will of the deceased, and receives only some specific items of the deceased jewellery. Given the matter has now spanned over 2 years, one wonders whether the parties (and particularly Mr Nobarani who may continue to be unrepresented and is due to receive little from the earlier Will) still have the ‘stamina’ to continue with the re-trial.
This case will serve as a warning to all practitioners (and judges alike) of the importance of affording sufficient time to both sides of a case in order to allow adequate case preparation and therefore afford each party procedural fairness.
 (1986) 161 CLR 141 at 147.