Brian William Shaw v The ANZ Executors and Trustee Company Limited (As the Trustees of the Estate of John William Shaw, Deceased)

[2013] HCASL 179

BRIAN WILLIAM SHAW

v

THE ANZ EXECUTORS AND TRUSTEE COMPANY LIMITED (AS THE TRUSTEES OF THE ESTATE OF JOHN WILLIAM SHAW, DECEASED)

[2013] HCASL 179
M63/2013

1. The applicant was declared to be a vexatious litigant in 2007 under s 21 of the Supreme Court Act 1986 (Vic). In 2008 the applicant was given leave under that Act to commence proceedings against the respondent, which administered his father's estate. The Statement of Claim that the applicant was given leave to file sought orders for the preparation of an administration statement, an audit of the respondent's file and a declaration of various breaches of the Trustee Act 1958 (Vic). The applicant filed his Statement of Claim in 2009.

2. In 2012, the applicant sought leave in the Supreme Court of Victoria to file an amended Statement of Claim.  The proposed amendments contained claims that were not within the terms of the original grant of leave.  The primary Judge (Randall AsJ) refused leave on the basis that those amendments would render the Statement of Claim scandalous, frivolous or vexatious or would prejudice, embarrass or delay the fair trial of the proceedings.

3. On appeal to a single judge of the Supreme Court (Habersberger J), the applicant sought to rely on another amended version of the Statement of Claim, which again contained claims that were not within the terms of the original grant of leave.  Habersberger J refused to allow leave to amend on the basis that those claims could not be made out and that to allow the amendments would be an abuse of process.

4. The Court of Appeal (Nettle and Neave JJA) refused the applicant leave to appeal on the basis that the applicant did not demonstrate that Habersberger J's discretion had miscarried, nor demonstrate any error in the reasons or orders of the primary judge.

5. The application for special leave to this Court does not engage with any aspect of the merits of the decisions below.  No question of principle is raised and the application enjoys no prospect of success.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler