Procedural Fairness Probate of Will: Nobarani v Mariconte [2018] HCA 36

In Nobarani v Mariconte [2018] HCA 36 (15 August 2018) the High Court of Australia has, in a unanimous decision, allowed an appeal from the NSW Supreme Court of Appeal [see Nobarani v Mariconte (No 2) [2017] NSWCA 124 (5 June 2017)], and held that a new trial should be granted to the appellant on the basis that the appellant was denied procedural fairness in the conduct of a trial involving the respondent's claim for probate of a will in solemn form.


The appellant, who was unrepresented, claimed to have an interest in challenging a will made in 2013 (the 2013 Will), which left the whole of the estate to the respondent.  The appellant filed two caveats against a grant of probate without giving notice to the appellant.  The respondent brought proceedings for orders that the caveats cease to be in force (the caveat motion) and also filed a summons for probate of the 2013 Will, as well as a statement of claim, in which the appellant was not named as a defendant.  Although the appellant was served with the statement of claim and filed an appearance, he was not directed to take any steps in the proceedings and the appellant’s preparation was limited to the caveat motion, which was listed for hearing.  When the directions hearing took place, it was explained to the appellant that the trial would be limited to the determination of the caveat motion. 

After three clear business days and before the trial, at a further directions hearing, the trial judge told the appellant that the trial would be of the claim for probate and directed that the appellant be joined as a defendant.  As a result at trial, the appellant's defence was in disarray and the appellant’s applications for adjournments were refused.  The trial judge delivered an oral judgment which granted probate of the 2013 Will in solemn form and  the appellant was ordered to pay costs.

The NSW Supreme Court of Appeal

In the Court of Appeal [see [2017] NSWCA 124] the majority dismissed the appellant's appeal along different lines of reasoning.  His Honour Ward JA concluded that, although the appellant had been denied procedural fairness, that denial did not deprive him of the possibility of a successful outcome; while Emmett AJA concluded that the appellant did not have an interest in challenging the 2013 Will.

Special Leave and High Court Appeal

The appellant was granted special leave, and appealed to the High Court arguing that the Court of Appeal erred in not ordering a retrial.  For the respondent it was argued that there had been no denial of procedural fairness, and, if there had been, it had caused no substantial miscarriage of justice by “. . . reason of any such denial”.

The High Court in its unanimous decision, found that the appellant had an interest in challenging the 2013 Will and that the appellant was denied procedural fairness.  Such 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 claim for probate.  The denial amounted to a "substantial wrong or miscarriage" because the appellant was denied the possibility of a successful outcome. See paragraphs 46 and 47 of the decision:

46. The case presented by the respondent, with the evidence of the deceased's solicitor at its heart, was strong. But a grant of probate in solemn form was not inevitable. The denial of procedural fairness to the appellant amounted to a "substantial wrong or miscarriage" in the sense that the appellant was denied the possibility of a successful outcome.

47 This conclusion is not based upon reasoning that a litigant in person is entitled to be relieved from rules that would apply to a party who is represented. 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. As Samuels JA said in a passage that has been relied upon on many occasions:

"the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

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Nobarani v Mariconte [2018] HCA 36 (15 August 2018) and High Court transcripts and summaries.
Nobarani v Mariconte (No 2) [2017] NSWCA 124 (5 June 2017)

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