Summary
The patriarch in a Chinese family bought an apartment in Burwood in 1976 and entrusted it to his eldest son George as trustee. The family was steep in Confucius culture, characterised by male dominance, and merits are ranked by age seniority; Father and George kept the arrangement to themselves. After the death of the father in 1981, George claimed to the family that the apartment was his and that he was the one who had bought it in a filial act to provide a home for his parents. Some years later, when the widowed mother moved out, George sold the apartment. He took the rent and sale money and intermingled it with his own.
After George died in 2004, documents surfaced and disclosed some secrets. From among George’s record emerged two affidavits that he had sworn in 1983 in the lead up to his divorce; he swore that the Burwood apartment was a trust asset and that he had no beneficial interest. Documents from the lawyers who conducted the property transaction in 1976 supported the trust arrangement. Two letters from Father to George in 1976 and 1978 outlined the trust arrangement.
George’s two adult children denied the existence of the property trust, wrongly believing it to be a ruse by their Uncle Richard to divert their inheritance. George had nominated Richard as the sole executor of his estate. The issue of the property trust was settled in a court trial in March 2009 when the trial Judge accepted the clear evidence and affirmed the existence of the trust. He found George had breached his various duties as trustee.
Earlier on in 2004, soon after George’s death, the dispute over the trust sparked a family feud. George’s two children commenced proceedings in 2005 for Richard’s removal as executor on grounds of alleged misconduct. The case reached the court for trial in June 2009. The connection between the dispute over the trust and the children’s efforts to remove Richard was not considered by the court in the trial. Richard was grossly under represented by his defence team; a large amount of critical evidence, available at the time, were not presented to the court. In the absence of these critical evidence, the Judge made a number of findings against him. One critical subpoenaed evidence was withheld by the plaintiffs’ lawyers, leaving the Judge with a perception of perjury; he referred Richard to the DPP. The Court of Appeal does not accept as new evidence those that were available at the trial and that should have been submitted and managed properly in the court below. Richard failed in his appeal.
Part I- Introduction
A feud in a Chinese migrant family in Australia took a tragic and costly turn when it was taken for an adversarial contest in the New South Wales Supreme Court. In the adversarial court system, the litigants are responsible for finding the evidence and for presenting it to the court; the judge acts as an umpire, he enforces the rules of combat and selects the winning argument- based on the evidence that is presented to the court. The litigants are out to win the combat and the truth often takes second place. In court, all parties swear ‘to tell the truth, the whole truth, and nothing but the truth’. However, the adversarial system lends itself to a combatant presenting a selection of the truth that suit their cause. The winner chosen by the judge may sometimes be a skilful liar.
The family feud was caught up in seven court cases. I was the defendant in my personal capacity in ‘the Katrina Case’– see below. In the trial of that case, the court did not get to hear about the other six court cases and how these six cases were interlinked with the issues in my trial- the Judge ended the one legal dispute, but the family squabbles live on while other issues remain unresolved. The adversarial court system is hardly suitable for resolving a highly-charged family feud, where the family needed behavioural professionals rather than lawyers, counselling rather than more fights in an adversarial arena.
The feud started after my eldest brother George died in Sydney on 30 January 2004. He was 73 of age and had a stroke over two years earlier. He left behind a daughter Katrina, then age 40 living in Melbourne and a son Lindsay age 37 living in Darwin. In life, George’s relationships with his two children were highly dysfunctional especially after his acrimonious divorce in 1984 when the children, then age 21 and 18, took the side of their mother.
In his last will, George selected me, his youngest brother, as the sole executor to manage his estate. We were twelve years apart and we were both graduates of the University of Sydney in medicine. George conducted a general family practice in Melbourne before retiring in Sydney in 1998; I was a specialist surgeon in NSW North Mid Coast and relocated to Sydney around the same time. George had not nominated either of his two children as executor in any of his previous three wills. Before George died, Katrina and Lindsay enjoyed a very good relationship with my wife and me- I am godfather to Katrina. After George died, there was a sudden change in Katrina’s attitude; and twelve months later, she took the lead in a court action to remove me as executor (referred to in this article as ‘the Katrina Case’)[1].
After more than four years in the legal system, the Katrina Case reached court hearing in June 2009. At the trial, I was represented by a team of two barristers and a solicitor, all of whom were experienced litigators. However, a significant amount of critical evidence, available at the time of the trial, were not presented to the court, while some other evidence though presented, were not argued or included in the submissions. In short, and for some obscure reasons, I was grossly under-represented.
The judgment was delivered twelve months later- with mixed outcomes. There were some skewed publicities in the press; the Sydney Morning Herald reported ‘Doctor used fraud to take over sibling’s estate’. This is wrong when the doctor concerned was the executor who was already in sole charge of the brother’s assets and affairs- I did not even have to take over the estate as asserted in the newspaper let alone using fraud to do so.
In this article, I am putting on record the underlying intertwining family issues that were lost in my trial and overlooked by the press. My account is based on evidence that existed at the time of the trial.
First, I need to debunk the Sydney Morning Herald report of my so-called fraud and an underlying insinuation that I might have misappropriated some money. The court accepted the following evidence:
- No money was missing; my brother’s assets grew from $1.9 million to over $3.6 million gross under my management in the 7 years from the date of his incapacitating stroke to the court hearing in 2009;
- Forensic accounting experts expressed the view that the growth was above the performance benchmarks for professional Australian fund managers; and
- I and my family did not receive any fees or other benefits for managing my brother’s affairs.
Despite George’s estate being in very good financial order, in early 2007 his children added a claim for $1.6M of damages, alleging that their father’s estate would have further grown by this amount had I invested all of the assets in the Australian share markets. There is inherently no substance whatsoever in this claim, and, despite the GFC in 2007-8, they persisted in prosecuting this claim right through to the second last day of the trial in 2009, when their lawyers withdrew the claim because they simply could not make up the numbers.
Part II- The Family Feud
A claim made by Katrina’s grandmother (who was George’s and my Mum) against George’s deceased estate takes on centre-stage in the family feud and it is the driver behind the Katrina Case as well as five other courts cases. ‘The Grandmother’s Claim’[2] relates to some money that belonged to our late father- Katrina’s grandfather, money which, as the Supreme Court later confirmed, George had misappropriated. Katrina’s grandmother sought the return of the money- which in essence had been stolen from her. Her claim was opposed by Katrina and Lindsay who rejected the overwhelming underlying evidence- the Grandmother’s Claim drove them to take court action against me in a false belief that I had invented the evidence and the claim, and that I was out to deprive them of their inheritance.
The Claim reached Judge Palmer’s court in March 2009; the Judge had no trouble in accepting the clear and unequivocal evidence and found George the wrongdoer (see below). Three months later in 2009, the Katrina Case against me reached the same court for trial, but Judge Palmer did not get to hear the connection between the Grandmother’s Claim with my trial or about other court cases and the intertwining issues.
Besides the Grandmother’s Claim and the Katrina Case, the Supreme Court heard five other court cases between 2004 and 2009, chronologically listed as follows: ‘Elizabeth Smith’s Application’[3],’Richard Tjiong v Kevin Reeves’[4], ‘Katrina’s Injunction Case’[5], and ‘The Chang’s Probate Application’[6]and ‘Elizabeth Smith v Soei Chang’[7]. Several different judges were involved in the seven cases; and the presiding judges seemed to have treated the legal issues in each case in relative isolation; they were driven to resolve the instant dispute in their respective court. The courts did not consider the bigger picture of related events and interconnected issues; the system missed the wood for the trees. The media made no reference to the intertwining cases or the underlying family feud, let alone the real fraud committed in the family and the plights of George and my Mother- being Katrina’s grandmother.
The Nature of the Real Fraud in the Family
In 1976, our father bought an apartment in Burwood, a Sydney suburb, and registered it in the name of his eldest son George as trustee- a fact confirmed by Judge Palmer in the trial. In a male-dominated and age-oriented Chinese family tradition, the trust arrangement was kept exclusively confidential between Father and his Number One Son. After Father died in 1981 and around the time George’s divorce was brewing, George started claiming in the family that he had bought the property with his own money in a filial act to provide a home for our parents. In our family, seniority by age continued its dominance to feudal extreme; the family took the words of Number One Son at face value and applauded big brother for his generosity- until after his death when certain documents surfaced and revealed the truth.
After Father died, Mum continued to live alone in the apartment for 13 years. After a series of burglaries in the building and in her apartment in 1994, she moved out and lived with a daughter. George rented the unit for three years and then sold the property. He took the rental income and the sale proceeds and treated them as his own, thereby depriving Mum of her rightful legacy. In 1994, she was then a very healthy 86 years old. Without her legacy, Mum lived on for another 12 on age pension and support from her children.
Two weeks after George’s funeral in 2004, Katrina faxed me a list of George’s past assets in a leaf out of an affidavit that George had sworn for his divorce. She inadvertently drew attention to the Burwood apartment on that list. George in fact swore two affidavits in 1983 for his divorce; and in both, he stated under oath that Father was the purchaser of the Burwood property and George was holding it in trust for his parents.
In the few months after George’s funeral, some other documents of our father surfaced; they had been lost in the homes of my sisters and my brother. These documents included some original letters from the lawyers who had carried out the property transaction in 1976- there were separate letters to Father as the purchaser and to George as the proposed registered holder in the title. There were also two letters from Father to George around the time of the purchase, outlining the trust arrangement. These documents provide further proof of the existence of the trust property beyond George’s sworn declarations in his divorce affidavits.
Mr P. Thornton, a senior lawyer from Ebsworth & Ebsworth, assisted me in managing George’s estate. He found the evidence to be compelling. He advised me that as the executor of George’s estate, I succeeded George as trustee of Father’s Burwood Property Trust. I hold both legal and moral duties to manage the Trust and return the money to the one beneficiary of the Trust- Father’s widow and Katrina’s grandmother.
The Family Feud- George’s Children Opposed Their Grandmother
George’s Family Background
George married an Australian-born nurse in 1962. The marriage was turbulent, marked with frequent squabbles and physical violence. After at least two prolonged periods of separation, it ended in a rancorous divorce in 1984. George was mean in his affection for his older child Katrina. In 1969, Katrina’s mother wrote to my wife and me and described six years old Katrina as a “very disturbed little girl”. After the divorce, George treated her in the image of her mother; he often described her with hostile words unfit for any father to have used. In 1996 when George was in hospital in Melbourne with his first stroke, a social worker from Austin General Hospital described Katrina as the estranged daughter. Her brother Lindsay suffered mild brain impairment after a car accident in his youth.
My Relationship with George’s Children
Before George died, his two adult children shared a very good relationship with my wife and me. I have been Katrina’s godfather, and we treated Katrina as our own – second – daughter. Katrina lives in Melbourne; she had complete freedom to our home in Sydney and she made liberal use of that freedom- as well as our kinship. After George died, I heard from three separate sources in the family that Katrina was painfully aggrieved over her father not having chosen her as executor to manage his estate. Thereafter, it seems that she looked at me as replacing the grudging scrooge that she had viewed in her father. Katrina expressly mistook my efforts as executor to return her grandfather’s stolen money as a charade to steal her inheritance (and that of her brother). Their opposition took on a vicious and vile attack on me personally.
George’s Children Opposed Their Grandmother
Two months after the funeral, Katrina and Lindsay learned of the recent discovery of their grandfather’s trust and how their father George had wrongfully ‘merged’ the grandfather’s trust fund, worth around $340K in 2004, with his own money; George’s estate was then valued at around $2.2M. They rejected outright the affidavits sworn by their own father. My efforts to mediate failed. Within minutes of my disclosure, rancour erupted and rapidly reached crisis. The breakdown in our communication was rendered complete by Katrina’s involvement of lawyers.
Katrina found an immediate champion to her cause in Aunt Elizabeth- George’s (and my) youngest sister. Elizabeth had considered herself as the black sheep in the family and she had held a longstanding self-confessed deep resentment against both her parents and grudge against most of her siblings. Before George died, Elizabeth took little interest in him or his family; after he died, Elizabeth rallied to support Katrina and Lindsay against me.
Together with Aunt Elizabeth and her chosen lawyers, and her own agenda, Katrina and Lindsay did everything they possibly could to prevent the executor in me from returning the stolen money to Katrina’s widowed grandmother- mother to George, Elizabeth and me:
- The morning after my disclosure to Katrina and Lindsay, over the phone and in a monologue Elizabeth drew a battleline in the family- she was angry over Mum’s claim over the Burwood Property Trust; she thought that this was a ruse to take away the inheritance of George’s children.
- Within a few days, Katrina instructed her lawyers to remove me as executor and in the ‘mean time’ (her disjointed spelling), to stop Uncle Richard ‘from shifting the funds around’ in a clear reference to my making payments to her grandmother and George’s carers in the family.
- In an email to her lawyers, she expressed the need to secure her father’s estate and ‘to stop Uncle Richard… before it is too late’; on that same day, I received a phone call ostensibly from the father of one of George’s former patients, heralding a large malpractice claim against George’s estate. This new claim, ‘the Reeves Claim’, in effect froze the estate and indeed stopped me from making any payment out of the estate to anyone- the Reeves Claim served Katrina’s concern to preserve George’s funds as she had expressed to her lawyers in an email on the very same day.
- In the months that followed, aggressive letters streamed from lawyers who had been selected by Aunt Elizabeth but supposedly acting for Katrina and Lindsay, threatening me not to make any payment to the Katrina’s grandmother or anyone else in the family, followed by several new but baseless allegations against me in relation to my management of George’s estate.
- In November that year (2004), when my wife and I bought a house in Strathfield for my mother to live in, Katrina’s lawyers vilely and baselessly accused me of using – stealing – money from George’s estate for the purchase. They made their brazen and offensive accusation despite having in their possession copies of all of George’s financial documents, clearly showing that George’s funds were untouched.
- In December, I as executor received a letter of demand from the lawyers acting for Mum- her daughter Soei acting as her legal representative. Earlier in the year, a family gathering on Mum’s birthday in April was attended by six of her seven living children- Elizabeth being absent. All six unanimously supported Mum’s quest for the return of her money and agreed that Soei should act for Mum- she had been Mum’s unofficial attorney for the previous 18 years. In December, I immediately notified Katrina’s lawyers of Mum’s letter of demand; within eight weeks Katrina and Lindsay started a court action for my removal as executor.
- In March 2005, knowing that her Auntie Soei was behind the Grandmother’s Claim, Katrina’ lawyers wrote a letter directly to Soei, bypassing her lawyers and threatening her with financial retribution if she continue the Grandmother’s Claim.
- In April 2006 and undeterred by Katrina’s threat, Soei commenced formal proceedings to prosecute the Grandmother’s Claim. Within a few weeks, Elizabeth applied to the Supreme Court to remove Soei from being Mum’s legal representative and to replace her with the Protective Commissioner[8]; Katrina followed with an application to the Court to stop the Grandmother’s Claim. The same lawyers were acting for both Elizabeth and Katrina.
- Elizabeth soon added an application for a Public Guardian to take over Mum’s care. Mum was already cared for in the Strathfield home that my wife and I had provided, with a comprehensive care plan that was approved by her specialist doctors. In essence, Elizabeth sought to place her own mother as ward of the State for no reasons other than to benefit Katrina by removing Soei and the rest of the family from Mum.
- Mum was devastated; she plunged into deep depression and soon suffered a silent stroke followed by a fall. She was hospitalised after the fall. Despite Mum’s obvious deterioration especially after her fall, Elizabeth’s lawyers subjected Mum to two punishing medical examinations to prove that Mum’s family of five children conspired to take advantage of a demented old woman- the claim on conspiracy found no support from Mum’s own treating specialists, but of course Mum’s mental state had deteriorated after the stroke and a fall. Deeply depressed, Mum died in late December that year.
- Before Mum died, my lawyers had effectively investigated the Reeves Claim and discovered it to be a bogus claim and a set-up to entrap me. I promptly applied to the court to have the Claim barred[9]. Katrina opposed my application- the only logical reason for such opposition was to keep the Reeves Claim alive, keep George’s estate protected, and to stop the executor from making any payment out of George’s estate to settle the Grandmother’s Claim. Associate Judge Macready dismissed her opposition and barred the Reeves Claim.
- After Mum died, Katrina promptly sought an injunction[10] to stop my wife and me from selling our Strathfield home- where Mum had been staying. With the Reeves Claim gone and in the event I chose to settle the Grandmother’s Claim, they wanted the Strathfield property to remain available to them in the expectation of a successful compensation claim from me. The property was then worth around $1.7M. Judge Hamilton of the Supreme Court summarily dismissed Katrina’s application for an injunction.
- Katrina immediately slapped a new claim against me in the Katrina Case, seeking compensation for $1.6M damages; she made the outrageous allegation that I had mismanaged the investment of her father’s funds because I had not invested all the funds in the share market!
- Within a few days of Mum’s death and unbeknown to Soei and the rest of the family, Katrina’s lawyers put a caveat on Mum’s will to stop Soei from being appointed executrix (as nominated by Mum in her will); they did so to prevent Soei from pursuing the Grandmother’s Claim.
- At law, such caveat operates for only six months and Katrina’s lawyers failed to realise the need for an extension. The court appointed Soei as executrix in November 2007 after Soei had made an innocently late application. In the following year, Elizabeth and Katrina’s lawyers continued to fight[11] to stop the now-official executrix from progressing the Grandmother’s Claim. Their efforts proved fruitless and costly- in June 2008 Associate Judge Macready ordered[12] the Grandmother’s Claim to proceed and it finally reached hearing in March 2009, two years and three months after mother had died.
The Trial of the Grandmother’s Claim
Since the claim was indefensible, I stood aside and left Katrina and Lindsay to take the conduct of defending their father’s estate in the Grandmother’s Claim. In his judgment, Judge Palmer stated that he had no doubt whatever over the evidence and confirmed the factual existence of Katrina’s Grandfather Property Trust dating back to 1976. He found George had breached his duty as trustee when he sold the trust property in 1996 and intermingled the money from the sale with his own assets (in blunt layman’s term, George stole the trust money). The Judge further found that George had breached his duty in not informing the life beneficiary, his Mum, of the existence of the trust. At the time of the judgment, Mum having already passed away, and Judge Palmer, relying on the written instruction given by Father to George, directed the trust money to go to an ongoing Grandfather’s Trust rather than to the Mum’s deceased estate. The Judge foreshadowed that, as the trustee of Grandfather’s Trust, I would need direction from the court on how to manage it; the trust money of course had first to be separated from George’s estate.
Part III- The Katrina Case against Me
The Lost Connection with the Recent Trial over the Grandmother’s Claim
Three months after the trial of the Grandmother’s Claim, the Katrina Case against me reached the same court for a hearing with Judge Palmer presiding. The court heard that the main issues in the Case was about Katrina wanting to remove and replace me as executor of her father’s estate because of some misconducts, about her claim of $1.7 million damages on allegation of misinvestment and about her recouping her legal costs from me.
At the start of their court proceedings four years earlier, Katrina relied firstly on my alleged misconduct over the Grandmother’s Claim in justifying her application to remove me as executor. She claimed compensation from me – they were unwilling to accept that at law I was trustee of the Grandfather Property Trust and that I held certain duties to the beneficiaries of that trust.
By the time we reached my trial in June 2009, they dropped any references to the Grandmother’s Claim- having lost in the trial three months earlier. The court did not get to hear of Katrina’s underlying fervent desire to punish me over her loss in the earlier trial. My defence team also failed to draw the court’s attention to the connection.
Background to My Trial
My barristers were unwilling to be on the offensive and they overlooked a large amount of Katrina’s false evidence. They adopted a purely defensive strategy, but they worked out my defence on their own with little input from me. At the start of the trial, I was assured that they had more than a threshold appreciation of the evidence and that they were well prepared for the trial. As the hearing proceeded, it became increasingly evident that my team was no match to the viciously adversarial approach of the plaintiffs.
The court heard that eight weeks before my trial was due to begin, I suffered an acute Meniere’s attack that completely destroyed the balance organs in my left ear. I was prostrated in St Vincent’s Private Hospital for two weeks and my treatments included an ear operation. Six weeks after discharge from the hospital and far from having recovered, I appeared in the trial of the Katrina Case; I did not present well as a witness. After one and half day in the witness box, I had to be excused with a relapse- two days later I was re-admitted to St Vincent’s. The court was adjourned.
The Issues
While I was in hospital, my lawyers persuaded me to resign as executor and to hand over George’s funds and their administration to Katrina, and I completed the act promptly afterwards. When the trial resumed in December, two issues remained for the court to resolve: (a) Katrina’s allegation of misinvestment- that I should have invested all of her father’s funds in the share markets, and (b) Katrina’s continuing claim of some other misconduct on my part in order to ground her application for costs from me.
The misinvestment claim was self-evidently unmeritorious and mischievous. At law– a trustee is not under any duty to maximise the growth of funds under his management let alone by taking outrageous risks- his prime duty is to preserve the fund capital and secondly make it grow prudently. The facts heard by the court are: I had managed the investments of George’s funds under professional advice and according to proven market disciplines which include appropriate assets spread- ‘assets allocations’, and careful stock selection. In the trial, my management was lauded and supported by financial experts including Perpetual Trustees Limited; and indeed, as common sense would dictate, if I had invested my brother’s money fully in the share markets as Katrina’s lawyers alleged I should have done, his estate would have suffered massive losses following the global financial crisis and share market crash in 2007-8.
Despite the law and these obvious facts, Katrina’s lawyers were permitted to prosecute their unmeritorious claim right through to the second last day of the trial in 2009, when they withdrew the claim simply because they just could not justify let alone prove the numbers in their claim. Katrina and her brother Lindsay were ordered to pay my costs in defending their misinvestment claim.
Essentially, the remaining issues at court relate to all the other costs relating to the drawn-out litigation. And these costs were driven by two strings of events where Katrina alleged misconduct on my part: the bogus medical negligence claim and the setting up of a George Tjiong Family Trust.
Imbalance of Evidence
The court was aware that virtually all of Katrina and Lindsay’s evidence were based on their memory and their supposed recall of events without the support of written notes or other record. In contrast, my evidence was based on a large collection of contemporaneous diary and file notes- as one would naturally expect from a person with professional background; I also relied on emails and other objective documents from third parties including hospital records, medical reports and the affidavits of two lawyers.
Before the trial, the gross imbalance of evidence favoured my position as defendant. Any trial judge would found that Katrina and Lindsay had no case against their well-meaning uncle. Worse still for Katrina, there were two documents embedded in the Austin Hospital record that undermined her memory evidence: (a) a report from a social worker describing Katrina as George’s estranged daughter, and (b) her hand-written efforts in making up her evidence over some events where self-evidently she held no memory- see below.
The Opening Battle- Destroying My Document Evidence and My Credibility
At the start of the adversarial trial, their lawyers resorted to finding a way of destroying the integrity of my document evidence and in turn, my credibility- their opening attack relates to some events thirteen years earlier in 1996 which have no relevance to the real issues on trial.
In 1996, George was in hospital in Melbourne after his first stroke; my diary and flight records showed that I flew my own plane from Taree in NSW Mid North Coast – where I lived – to Melbourne on Tuesday the 26th of March 1996 and was with George in the period of around 11:30AM and 2 PM, and flying back to Taree on the same day.
In court in 2009, I was unprepared to deal with some events 13 years before the trial; I had ceased flying as a pilot some 12 years earlier and I had sold my plane. I was no longer instantly familiar with the complexity of a multitude of aviation documentation especially as they relate to my particular licence- I was flying on Class One Instrument Rating (same as airline pilots- the Rating imposed stringent requirements). In court, I was also still affected by the aftermaths of Meniere’s attack which had occurred a short period before the trial- I was far less articulate than usual.
Katrina’s lawyers kept pointing to the court that my every answer was a lie, and my defence team sat silently in the face of the apparent harassment. The Judge was not impressed with my demeanour and Katrina’s lawyers had little difficulty in persuading the Judge to make the findings, based on the recollection of George’s (estranged) daughter, that I had flown to Melbourne on the next day- Wednesday the 27th and that I must have fraudulently altered my pilot logbook and other records. No forensic aviation expert was called to demonstrate the document fraud.
The Judge found that in the course of the few weeks before the court resumed in December, I had re-written the entire second volume of my Pilot Logbook, covering fifteen years and around fifteen hundred flights all for the singular purpose of altering the flights in 1996 on one particular day! Such rewriting in itself is questionably an impossible feat. There was no credible objective evidence that I had accomplished such task let alone committed such document fraud.
Unshakeable Exculpating Alibi Evidence Withheld from the Court
Critical and unshakeable alibi evidence showed that on that Wednesday, 27th March, I was a surgeon operating on a number of patients at Manning [Taree] Base Hospital, NSW Mid North Coast, and therefore I could not possibly have flown anywhere on that day- let alone interstate to Melbourne. This evidence was available at the time, it had in fact been obtained by Katrina’s lawyers by subpoena, but they did not submit this critical evidence to the court. They nevertheless pressed for the case for my flying to Melbourne on the 27th knowing that the withheld subpoenaed alibi would have proved their submission to be false and misleading. All subpoenaed documents are available to litigants from both sides; for unknown reasons, my defence team failed to submit this critical and pivotal evidence to the court. If the 2009 trial had been properly conducted and had the court heard the alibi evidence, the court would have accepted that I did travel to Melbourne on the Tuesday 26 March 1996 as I had recorded in my uncorrupted flights logbook and business diary.
Katrina Plagiarised George’s Hospital Record and Made up Her Evidence
Katrina’s lawyers further reinforced her case – that I had deceptively altered my aviation documents and diary – by convincing the Judge to believe Katrina’s memory recollection that, far back in 1996, she (the estranged daughter) was out with her father all day on the Tuesday 26th March so that I could not possibly have seen him at lunch time in the hospital on that day as demonstrated in my documents.
My defence team failed to draw the Judge’s attention to a critical document embedded in the subpoenaed Austin Hospital record evidencing that Katrina did not resort to memory recall at the trial, but that she had gained prior access to the hospital record as early as in 2004 and plagiarised from it while reconstructing her ‘forgotten information’ by making up her evidence. She had in fact inadvertently left behind her incriminating working notes among the hospital papers, complete with ‘forgotten information’ as the subject heading. Her notes also indicated that she had forgotten even the dates in 1996 when her father was in hospital- she had to copy these information from the hospital record when making up her evidence against me. My defence team also did not draw the Judge’s attention to the social worker’s report that describes Katrina as George’s estranged daughter. It seems that these two critical documents escaped the attention of the trial Judge when preparing his judgment after the trial.
Defence team drew the attention of the trial Judge’s attention to the hospital record which objectively showed that George was present in the ward all morning on the Tuesday 26th March until after 2 PM that day- available to meet me as per my testimony: at 10AM and again at 2PM the nurses took and recorded their readings of George’s body temperature, blood pressure, pulse rate and respiration rate. Furthermore, the three notes written by nurses on the three shifts on the 26th March indicate that George left the ward around the time the morning shift nurse was about to leave at 3PM.
However, Katrina’s lawyers were able to persuade the Judge to prefer the evidence of George’s (estranged) daughter; the Judge dismissed my evidence as a medical expert with professional familiarity on nurses’ charts and notes, and no independent medical expert was called for their forensic opinion on the hospital records on these points.
Two Remaining Issues at the Trial
Two issues – the bogus medical negligence claim and to the setting up of the George Tjiong Family Trust in 2003 – ground Katrina’s claim for costs against me. After convincing the Judge that I had fraudulently altered some documents relating to the 1996 events, it was not difficult to convince the Judge that the rest of documents were not to be believed. In addition, the court did not get to hear some critical rebutting evidence (see below). There were also a number of technical matters on which a court normally seeks the assistance of forensic experts in their fields. Such experts were not called in my trial. Without them, the court misinterpreted a number of important technical issues relating to aviation, medicine and linguistic. The fact that Katrina and Lindsay had colluded and made up much of their evidence eluded the attention of the Judge.
The Bogus Medical Negligence Claim
The Reeves’ Claim, a bogus medical negligence claim against George’s estate, had the immediate effect of stopping me from returning the stolen money embedded within George estate to my mother; and yet the Judge was persuaded to believe that I was the author of the bogus claim. In a set-up to entrap and castigate me, the author of this claim implicated my sporting coach from interstate as conspirator. Evidence in my favour did not get presented to the court – these include my sport dairy, notes on telephone contacts with my coach and the affidavits sworn by my coach and his assistant that had been obtained by Katrina’s lawyers and available at the trial. To this date I am at a loss over the forensic wisdom behind my defence lawyers withholding such a collection of important evidence, especially the two affidavits from my coach and his off-sider, which Katrina’s lawyers themselves had refrained from submitting to the court.
Furthermore, the court did not get to hear three crucial evidence, available at the time of the trial, pointing to Katrina or someone in her camp being responsible for the bogus claim: (a) Her email to her lawyers to freeze the estate funds in order to stop Uncle Richard from settling her grandmother’s claim- the email was sent on the same day the Reeves Claim surfaced (see above); (b) Her opposition to my court application for the Reeves Claim to be barred, inherently reflecting on her desire to keep the Reeves Claim alive; and (c) Katrina’s postal connection with a number of letters from Reeves. There is also some stylistic similarity between Katrina’s documents and the Reeve’s letters- the compound word ‘mean time’ appears in a disjointed fashion. If my defence team had submitted these evidences to the court, Katrina would have had an uphill battle to convince the Judge that I had committed such serious a fraud- the court might even have found the real culprit on Katrina’s side.
The George Tjiong Trust Issue
The second issue relates to the GT Family Trust. The court heard that the Trust was set up on the advice of a senior lawyer Mr Thornton, for the benefits of George’s two children before George died. The Trust was rendered relatively urgent because of Katrina’s oft-repeated requests for an early access to her future inheritance. She needed the money for an impending career change- she was close to completing her tertiary study in psychology and she wanted to change career and start a practice as a clinical psychologist in lieu of her secure job as assistant financial officer, second in charge at the Victorian Education Department.
She could not wait until her father died. When the Trust was set up, George was still alive and his health was seemingly stable. The Trust also followed George’s concern over Lindsay’s mental impairment and the likelihood of his dissipating a lump sum inheritance- I had recorded George’s concern in a contemporaneous file note. Lindsay was also living with a de facto partner; he ran the risks of losing half of his incoming inheritance in the event of a separation- an issue of great concern to George.
Both Katrina and Lindsay were involved in setting up the Trust in late 2003; they made a special trip to Sydney for the purpose. They had an exhaustive discussion with me and they consulted lawyer Mr Thornton. In his presence, they happily and freely signed their request for the Trust to be set up, explicitly acknowledging their full comprehension of the trust arrangement and their instruction for me to use my power of attorney to establish the Trust Fund from a portion of George’s assets. As financial officer second in charge in the Education Department, Katrina was well versed in financial matters including what constituted a trust. I recorded every step; and our joint meetings were minuted and signed by them as true and correct records.
In the trial, Katrina denied her intention to change career- she was contradicted by Lindsay on this point. They also claimed that, at the earlier time when they rallied to set up the trust, they had been deceived by me on some issues about a need to avoid death duty and that, they claimed, the trust was hurriedly set up because George was terminally ill and death was imminent. In fact George was stable and well enough to go for a drive with Katrina as late as the end of January 2004; George fell acutely ill four days after the outing and died two days later. George was far from facing imminent death at the time Katrina and Lindsay enthusiastically and gratefully sought to set up the Trust.
There was no proof of their allegation of my misrepresentation relating to death duty- in fact there was an email I sent to Katrina and Lindsay about death duty not being applicable, and that email was overlooked in the judgment. To be abundantly clear, the two would not have gone along with the setting of the trust in circumstances when they knew that they had been factually deceived by me. Their protests were made long after the event- George’s so called “imminent death” and “death duty” were fictions created by the two children to castigate me. This point was lost in the trial.
The court heard all of the above evidence, some of which were poorly argued by my defence team. The plaintiffs’ lawyers argued successfully against the written and verbal testimony of Mr Thornton who had set up the Trust, against the very documents Katrina and Lindsay had freely signed and against my file notes and contemporaneous records. In contrast, Katrina relied on her reconstructed memory and made no contemporary notes about the setting up of the trust, while some notes she produced in court were in fact and self-evidently made-up by a third party long after the event. The court overlooked the fact that I had no vested interest in the Trust, and that I had emailed an advice to Katrina and Lindsay about death duty having ceased to apply for many years. There is no evidence from a forensic expert to show that I had fudged my documents- or that Mr Thornton’s record were unreliable!
The Appeal
The trial Judge’s adverse findings were made on circumstantial evidence- there being no direct proof of document fraud on my part; he preferred to believe Katrina in part because a number of critical evidence, including my alibi evidence, were not formally presented to the court although they were available. Soon after the trial, my solicitor died from a medical illness- I had not even been told during the trial that she was ill. My senior barrister at the trial had moved to the Supreme Court where he had been appointed as a judge.
I had to instruct a whole new team of lawyers for the appeal from the ground up. The established hierarchy in the legal profession made my job of briefing a new team very difficult. Given the complex issues and a large body of evidence, I found barristers not easily approachable: they sit at the summit and the client has no direct access- an arrangement akin to medical consultations in bygone era, when a patient could not see a Consultant without the presence of the referring general practitioner, and all communications had to be conducted through the GP.
In the Court of Appeal, there are restrictive rules on new evidence- it is admissible on appeal only if it were fresh evidence- evidence not available and could not have been made available at the trial. The rules make it impossible for my appeal team to newly admit evidence that were simply overlooked, mismanaged or lost in the trial- including the pivotal alibi evidence. There are also restrictions on the appellant introducing new arguments.
Nevertheless, I was expecting the Court of Appeal to undertake a review of the judgment from below. However, instead of a process of review, the appeal court found that the trial Judge did have some evidence that supported his findings and was therefore justified in making them. The appeal court would set aside a finding only if it is “glaringly probable” that the finding was wrong. This rule of appeal seems to stand in stark contrast to common sense and to the court practice relating to medical negligence where a court of law actually conducts a review of the conduct of a doctor- but of course with the assistance of medical experts.
In circumstances where a doctor faces a number of differential diagnoses- each being supported by some clinical evidence, and he chooses a diagnosis that turns out to be wrong, the court would still review – rather than simply justify – the doctor’s choice. The court could and would still find the doctor’s decision faulty and the doctor negligent when he could have reasonably made a better diagnosis if had he exercised his judgment differently and reasonably arrived at the right decision, and saved life- the mistake or the better diagnosis does not have to be “glaringly probable”. In my case, the decision of the Court of Appeal suggests a process of justifying the decision from the trial below rather than reviewing it, notwithstanding the proof for fraud is onerous.
In an example of justification, the Court of Appeal took its own initiative in relying on a 1996 medical report by Dr Stuart and made its own interpretation to support and justify the trial Judge’ finding. The appeal court’s interpretation of the 1996 report happens to be at odd with a clarifying affidavit that Dr Stuart himself swore in 2009, of which the appeal court could not have been aware. At the trial, the Judge, probably aware of Dr Stuart’s 2009 affidavit as he should have, correctly did not place any reliance on the 1996 report.
Part IV- Conclusion
What if…
The whole family saga and the ensuing court cases would not have eventuated if Father’s Property Trust and George’s fraud had not been uncovered- or better still, if George had not committed the fraud and had not stolen his parents’ money in the first place; Katrina would not have instructed her lawyers to remove me as the executor; someone in her camp would not have invented the bogus medical negligence claim, effectively freezing the estate funds- and then blaming me for the fraud. I would have been able to carry out my duty as executor- Katrina and Lindsay would have received their legacies and I would have fully distributed, and dissolved, the GT Trust Fund as Katrina expressly wanted me to do after the funeral, by which time the Trust had passed her used-by date; Katrina would not have invented stories about the setting up of the Trust. She would have fulfilled her dream and continued on a new life as a psychologist- a career that would have given her better insights into her past traumas, helped her rid of the demon in her memory, healed her wounds and helped her to find peace. My younger sister Elizabeth would have to find more constructive ways of dealing with her own demons; and I would have stood by her as I had done in all her life.
And if George had not committed the fraud on Father’s Property Trust and had instead carried out his duties as trustee, the Trust would have been settled and resolved in accordance with Father’s written wishes- and Mum would have long ago received her legacy. The malignant and vicious attacks from Katrina and her Aunt Elizabeth would not have started, adversarial lawyers would not have been involved, and all the court proceedings would not have eventuated.
The Reality
However, the reality was that George did commit a fraud and did steal his parents’ money – and the existence of our Father’s Property Trust and George’s fraud did get discovered, and Katrina reacted by getting lawyers into the act instead of accepting the fact and seeking a just solution. When George passed away and his youngest brother stepped in as the manager of the deceased estate, Katrina saw the spectre of her father in me. No longer able to direct her life-long pains, anger and frustrations to her already-departed father, she subconsciously transferred her unresolved emotions to the uncle. A demand from Katrina’s grandmother for the stolen money became a lightning rod that sparked Katrina’s fiery war against me– with the court as her chosen battleground, armed with a Machiavellian bundle of twisted evidence, with Aunt Elizabeth as agent provocateur and her lawyers as her champions.
Hell-bent to win the war no matter what, Katrina and her lawyers convinced the trial Judge into believing that I had fabricated the entire second volume of my pilot logbook relating to some irrelevant flights from a distant past- after they had misled the court by withholding crucial alibi evidence. With my defence team seemingly paralysed, the trial Judge did not get to hear the unshakeable alibi truth- that I was a surgeon operating on some patients on that Wednesday in a hospital far removed from Victoria and I could not have travelled to Melbourne that day as claimed by Katrina’s lawyers, and that I could have travelled only on the previous day as recorded in my unadulterated diary, my pilot logbook and other documents. Thereafter, my reputation shattered, the Judge believed the evidence of George’s estranged daughter in the course of the remaining hearing and found against me- and did so with apparent ire.
The Courts
Be that as it may, with the 1996 events being irrelevant to the real issues at court, the real issues that followed should have been determined on their own merits rather than as a flow-on from some contrived inference relating to my 1996 documents. Instead, I faced a judge whose views on the subsequent evidence had become tainted- however humanly so.
On the bogus medical negligence claim, the trial Judge’ finding was largely due to the fact that he did not get to be presented with the-then available groups of crucial evidence in my favour. Nevertheless, his finding that I was the author flies on the face of logic: the bogus claim stopped me from returning the stolen money to my mother, a legal obligation that I fervently pursued. The bogus claim, however, served Katrina’s vested interests in opposing the claim of her grandmother and in tying up my hands.
On the GT Trust issues, in believing Katrina and Lindsay’s uncorroborated memory evidence, the Judge was in effect castigating the very testimony of Mr Peter Thornton, a senior lawyer and ‘one of their own’- an officer of the Supreme Court.
The trial Judge made an unjust and inconsistent inference when he found that I was driven by a sense of superior ego ‘to control and direct the fortunes of [my] entire extended family’. He overlooked the obvious cultural diversity: George the Number One Son nominated his youngest brother as executor in his will; I am eighth in a Chinese family dominated by a feudal culture of meritocracy by age seniority- all the more, I was driven not by ego but, as the youngest son, driven to carry out my family duty and obligations seriously, properly and with an awesome sense of humility. I was guided by proper legal advice before every action in managing George’s estate.
Despite Katrina’s lawyers’ inability to prove their unmeritorious claim on misinvestment, the Judge did not give me credits for my good work in managing George’s money- the prime duty of any trustee. Forensic accounting experts acknowledged that I had carried out this duty with notable merits. I did so under difficult market circumstances during the 2007-8 Global Financial Crisis and for the benefits of George’s children- despite their misguided and relentless hostilities. The Judge did not give due recognition for my pristine financial records which show that I was not a fabricator of documents.
In my trial and unbeknown to the Judge, Katrina was in essence using his court as an instrument to punish me, driven by the very decision the Judge had correctly made three months earlier over their father’s abysmal breach of trust.
The Court of Appeal was bound by the restrictive rules imposed by the system. However, it does have some discretion which it chose not to use. Its treatment of Dr Stuart’s 1996 report demonstrates an overzealous bias to justify the trial Judge.
My Mum- the Worst of Victims
Whatever the legal outcomes of the adversarial court battle in this family, no one among the litigants truly wins; everyone is a victim while the lawyers reap a bonanza. Whatever demon Katrina might have seen in her father before he died, she has now perpetuated its shadow by ascribing the demon to her well-meaning uncle. I became a victim for my efforts in doing the right thing for George’s estate and its beneficiaries, for Father’s Property Trust and for Mum.
And Mum – in her twilight years and very much in need of the money left behind by her husband- was the worst of the victims. She was a victim in the hands of her eldest son. She became a victim twice over when her youngest daughter and two grandchildren mercilessly attacked her for pursuing her rights, and when Elizabeth sought to remove her from the care of her family into the hands of the State- an event that caused immense pain to Mum and that must have contributed to the stroke that led to her death.
Some Unanswered Questions
The legal profession and our justice system serve an extremely important function. In most cases, the outcomes have been fair and justice is served. This does not seem to have been the case in my family saga. I did not get a fair trial in an adversarial contest where the court and the truth turned out to be poles apart. I now live with some unanswered questions on how my defence got to be so inadequate and how Katrina got away with a mountain of questionable evidence. Soon after the judgment was released, a publication Australian Doctor printed an article with the headline “Ex UMP head may face perjury charges”. I have wondered if part of my judicial journey might have something to do with my past life as the head of United Medical Protection- Australia’s largest medical insurance company. UMP was instrumental in achieving some meaningful changes in medical negligence law and in the medical indemnity industry[13]. These changes were of significant public benefits and they were achieved in the face of some stiff and hostile oppositions from powerful sections of the legal and the medical professions; vested interests were compromised as side effects of these reforms. I continue to wonder how a highly developed judicial institution in Australia could have produced injustice of such a scale.
Richard Tjiong,
Revised 8 January 2015.
[1] Katrina Tjiong and Lindsay Tjiong v Richard Tjiong [2010] NSWSC 578. This court case is conveniently referred to in this article as ‘the Katrina Case’– named after the party that took the leading role.
[2] The case is Chang (initially as Tutor, and later as Executrix for Kwat Nio Tjiong- Katrina’s Grandmother) v Richard Tjiong as Executor of the Estate of late George Tjiong & Ors [2009] NSWSC 122, herein conveniently referred to as the Grandmother’s Claim; “Grandmother” is by reference to Katrina and Lindsay who took over the conduct of the defence in that case.
[3] My younger sister Elizabeth’s application for the appointment of Protective Commissioner and Public Guardian over our mother in Elizabeth Smith v [her mother] Kwat Nio Tjiong, NSWSC Case 20/2006- seeking to put mother as ward of the State.
[4] Supreme Court Case 112252/06 (Probate Division), my application to bar the bogus medical negligence claim- the Reeves Claim.
[5] An application by Katrina Tjiong for a Mareva injunction: Katrina Tjiong & Ors v Richard Tjiong [2007] NSWSC 216.
[6] Soei Chang’s Application for appointment as her late mother’s Executrix (NSWSC Probate Division 2007-8).
[7] Elizabeth Smith v Soei Chang NSWSC Equity Division 1451/2008.
[8] Elizabeth Smith v [her mother] Kwat Nio Tjiong, NSWSC Case 20/2006.
[9] Supreme Court Case 112252/06 (Probate Division).
[10] An application by Katrina Tjiong for a Mareva injunction: Katrina Tjiong & Ors v Richard Tjiong [2007] NSWSC 216.
[11] Elizabeth Smith v Soei Chang, Supreme Court Probate Division 109505/2008.
[12] Kwat Nio Tjiong by her Tutor Soei Chang v ‘The Estate of George Tjiong’, 25 June 2008, #2078 of 2006.
[13] These changes are outlined in the two articles- The Centenary Speech and Medical Indemnity Reform.
More
Further Reading
Dr Richard Tjiong : Trustee Misconduct Will Not Be Tolerated
Dr Richard Tjiong The Centenary Speech NSW Medical Defense Union
Dr Richard Tjiong – Medical Indemnity Reform
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