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03/12/2018 5:37 PM | Deleted user

by David J Renfrey on 3 Dec 2018


The issue of procedural fairness, no matter what area of law, always looms as fertile ground for possible appeal. This possibility is perhaps even more heightened when a self-represented party is involved in proceedings.

The recent case of Nobarani v Mariconte [2018] HCA 36 is such an example. It provides compelling circumstances which drew the High Court of Australia (HCA) to unanimously find that the appellant had been denied procedural fairness, concluding a substantial wrong or miscarriage had occurred.

However, this case also highlights other potentially important issues for legal representatives which are worth consideration. In particular, whether or not the respondent’s case was developed in the context of a strategic approach and whether or not the respondent’s counsel had a duty to alert the trial judge to certain matters of process throughout the proceedings.

This matter was originally heard in the Supreme Court of New South Wales during 2015 and subsequently, in the Court of Appeal before ultimately coming before the HCA. The HCA handed down a unanimous judgment in August 2018. Central to the appeal was the question of whether or not a new trial should be ordered because the appellant had been denied procedural fairness in the context of a trial at first instance regarding the respondent’s claim for probate of a will in solemn form.

Pre-Trial Background

The appellant, Mr Nobarani, claimed an interest in the 2013 Will of the late Ms Iris McLaren that had been handwritten. The Will had been drawn up by the deceased’s solicitor and purportedly witnessed by a Ms R Parseghian and Mr C Yuanun.

As a result of the appellant’s challenge, he filed two caveats against a grant of probate. The respondent, Ms Mariconte, subsequently sought orders to have the caveats cease to be in force. Until 15 May 2015, the appellant’s preparation for the upcoming trial on 20 and 21 May 2015 had been limited to those proceedings [2]. Throughout the process, the respondent was represented by senior and junior counsel. The appellant was self-represented.

On 14 May 2015, just 3 business days before the trial, the trial judge held the first directions hearing. For the first time the respondent submitted the appellant’s caveats had lapsed due to time. At this point, the appellant was told the upcoming trial would be of the claim for probate. The judge directed the appellant to file and serve his defence to the statement of claim by 18 May 2015. That was within one clear business day. The judge also directed the appellant to serve any supplementary evidence he wished to rely upon that was in addition to affidavits he filed in his caveat proceeding.

However, the trial judge was not informed prior to making those directions that the appellant was not a party to the probate proceedings, or that the appellant’s affidavits had been filed only in connection with the caveat motion [3]. It is clear that counsel for the respondent did not draw these circumstances to the court’s attention at this point.

The Trial

Nonetheless, on the first day of the trial, 20 May 2015, the appellant was joined as a party to the claim. Having added the appellant as a defendant to her action by amending her statement of claim, she sought costs against him.

The trial judge described the appellant’s defence as “almost incomprehensible”. However, despite requests by the appellant for adjournments to call witnesses, read documents and call expert evidence, no adjournments were granted. Nonetheless, the trial judge proceeded on the basis that the appellant had put in issue by credible evidence: questions of execution, questions of capacity, questions of testamentary intention, knowledge and approval. As a consequence, these matters placed the onus on the respondent to address.

In relation to the caveat motion, respondent’s counsel argued firstly, they had expired, and secondly, the appellant had no interest that could support the caveats because the 2004 Will had not been proved. The trial judge was of a different mind given that the respondent had admitted to the 2004 Will. This in fact gave the appellant an interest in the earlier Will and, in turn, allowed him standing to challenge the 2013 Will.

The trial judge was ultimately satisfied of the respondent’s case, granting probate in solemn form of the 2013 Will and ordering the appellant to pay the costs of the respondent. His decision was handed down on 22 May 2015.

New South Wales Court of Appeal

The court noted that the appellant had a number of grounds on which he appealed but in essence, they boiled down to a denial of procedural fairness. The sub-grounds included: his inability to a long-time friend of the deceased, Mr Lemesle, as a witness or to rely on his affidavit; the trial judge’s failure to allow him an opportunity to cross-examine Ms Parseghian; the trial judge’s failure to allow him to call expert evidence, including his failure to allow the appellant time to issue subpoenas, with respect to the deceased’s eyesight; and the trial judge’s failure to give him an opportunity to be heard in relation to objections to his affidavit evidence.

Simpson JA concluded all but the last sub-ground noted above came about directly as a result of complaints arising from the last minute change to the issue to be decided at the trial held on 20 and 21 May 2015.

This notwithstanding, the majority of the Court of Appeal found in favour of the respondent. Ward JA considered that although procedural fairness had been denied, that denial did not deprive the appellant of the possibility of a successful outcome. Emmett AJA concluded the appellant appeared to have no interest in the validity of the 2013 Will.

Simpson JA, on the other hand, would have allowed the appeal as the appellant had been denied procedural fairness and that denial was a substantial miscarriage of justice.

Appeal to the High Court of Australia

The appellant argued the majority of the Court of Appeal erred by not ordering a retrial, concluding that the denial of procedural fairness could not have made a difference to the final result and that the appellant had no interest in the estate sufficient to challenge the 2013 Will.

In contrast, the respondent, by way of notice of contention, argued that there was no denial of procedural fairness, but if there had been, there was no substantial miscarriage of justice by reason of any such denial.

The HCA considered the question of when a new trial should be ordered and referred to s101(1)(a) of the Supreme Court Act 1970 (NSW). This provides the circumstances under which an appeal can be brought from a judgment of the Equity Division. Section 75A(10) provides that powers of the court on appeal include that the:

“Court may make….. any order….. which the nature of the case requires”.

However, this is subject to section 101(1)(a), Uniform Civil Procedure Rules (NSW) and, in particular, Rule 51.53(1) which provides:

“The court must not order a new trial on any of the following grounds:

a. Misdirection, non-direction or other error of law,

b. b. Improper admission or rejection of evidence’

c. c. That the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury’

d. On any other ground, unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned.”

The HCA concluded that a denial of procedural fairness was indeed captured by the last of the circumstances of Rule 51.53(1).

Appellant entitled to new trial

The HCA determined in its reasons that the denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim. Moreover, the appellant’s adjournment applications were attempts to ameliorate those consequences [40].

The trial judge gave two reasons for denying the adjournments. First, he said the matter had been set down for hearing for some time and the applicant had been warned on 14 May 2015 that he needed to have all his evidence ready for the trial on 20 and 21 May 2015. Second, the trial judge said given the vagueness with which the applicant presented many of the procedural issues, and the disorder of his case, the court had no confidence that an adjournment would lead to his case becoming any more precise [41].

However, the HCA also noted the trial judge was unaware that the dates set down for hearing were only to be used for the caveat motion, and no directions had been given to the applicant in relation to take any further steps, including filing or service of documents [42].

The HCA identified 3 issues in the abbreviated timetable prior to trial that had consequential effects on the outcome.

1. The applicant was not able to cross-examine a significant witness as to the deceased’s mental and physical condition because he did not give notice to the other side within the short timeframe. This was compounded by the applicant’s inability to cross-examine a further witness to the 2013 Will whose address appeared to be that of a vacant building site.

2. The trial judge refused to take account of an affidavit from another witness because it was annexed to the applicant’s defence filed in opposition to the caveat motion, nor was the affidavit read and the witness was not subpoenaed or brought before the court.3.

3. Despite objections from senior counsel for the respondent, the appellant was given access to the solicitor’s diary for the period 5 to 10 December 2013. However, the trial judge gave him only “about one minute to decide what you are going to do next” and an application to have the diary considered by an expert was refused.

The HCA concluded that while each of these factors alone may not have amounted to a denial of procedural justice, together, along with the abbreviated timeframe for preparation, such injustice had been done [44].

The respondent’s counsel argued the appellant had known for months of the hearing for the caveat motion but the HCA rejected this saying there is considerably less preparation involved in such a hearing compared to that of a trial. Moreover, it was reasonable for the appellant to proceed on the assumption that he would have success in the caveat hearing and therefore there was no need for him to prepare for a trial [45].

The HCA further concluded that the denial of procedural fairness to the appellant amounted to a “substantial wrong or miscarriage.” The appellant was in fact denied the possibility of a successful outcome [46]. Importantly, the HCA stated that:

“in this case, no legal representative would reasonably have been refused an adjournment if presented with only three clear business days to prepare for a trial of proceedings to which their client had not yet been joined and in which their client had not been the subject of pre-trial orders for preparing and filing a defence, preparing and filing evidence, issuing subpoenas, and locating and confirming availability of witnesses [47].” Counsel for the respondent argued that the HCA ought not to rule in favour of a new trial, despite the denial of procedural fairness, because such a course of action would not make any difference to the result [48]. However, the court did not accept this proposition. Nor did it accept a further argument from counsel based on the conclusion reached by Emmett AJA, NSW Court of Appeal, that the appellant had no interest in challenging the 2013 Will. The HCA said “a person will have a sufficient interest if he or she has a right which will be affected by the grant [49].”


The appeal was therefore allowed, and the matter remitted to the Equity Division of the NSW Supreme Court for a new trial. The respondent was also ordered to pay the appellant’s costs, both for the hearing in the NSW Court of Appeal and the appeal to the HCA. 

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