Burnell v Executors of the Estate of Peter Athol Jenson (No 2)

[2024] VSC 544

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 02510

LOUISE BURNELL	Applicant
v
EVA CHIN & BARBARA BELLIN (EXECUTORS OF THE ESTATE OF PETER ATHOL JENSON)	Respondents

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 September 2024
CASE MAY BE CITED AS:	Burnell v Executors of the Estate of Peter Athol Jenson (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 544

---

JUDGMENTS AND ORDERS – General rule that costs follow the event – Final orders made.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the Respondents	No appearance	KCL Law

HIS HONOUR:

1. It is desirable that I outline the complex circumstances that have unfolded since publication of the primary reasons for judgment: Burnell v Executors of the Estate of Peter Athol Jenson [2024] VSC 505.

1. The applicant’s applications for extension of time and leave to appeal were heard on Friday, 2 August 2024.

1. On Monday, 26 August 2024, the parties were advised by email that judgment would be delivered on Thursday, 29 August 2024 at 9.30am.

1. On the morning of Wednesday, 28 August 2024, the applicant emailed the Court to advise that she was at Epworth Hospital arranging a procedure and would be unable to attend Court. 

1. Later that morning, the parties were advised that reasons for judgment would be published by email on 29 August 2024 at 9.30am, together with proposed final orders, and that it would not be necessary for either party to attend Court.  The email stated further as follows –

If either party thereafter wishes to make submissions about the form of orders to be made in final disposition of the matter, they may send a written submission to chambers of no longer than 2 pages in length by 4.00pm on Wednesday, 4 September 2024.

His Honour will thereafter consider any such written submissions and make final orders. Final orders will also be published to the parties by email.

1. The following morning, at 9.33am, the primary reasons for judgment were published by email together with a form of proposed final orders.  In that regard, it was proposed that orders be made that –

(1)       The applications for extension of time and leave to appeal are refused.

(2)       Proceeding dismissed.

1. In the email to which the primary reasons for judgment were attached, the parties were reminded in respect of the filing and service of any written submissions (of no longer than 2 pages in length) concerning the form of final orders.  In addition, the email stated –

If the respondents propose to seek that an order be made for the applicant to pay their costs of the proceeding, they should respond by email to that effect as soon as practicable in order that the applicant can address that prospect in any submissions which she proposes to file and serve in respect to the form of final orders to be made.

1. By email on Saturday, 31 August 2024, at 10.42pm, the applicant sent a document described as ‘Submissions part 1 of 2 S ECI202402510’.  That document is 25 pages in length.  It is closely typed and includes various photographs and extracts from other documents.  Significant parts of the document are directed to what, in the primary reasons for judgment, I have described as the applicant’s ‘underlying narrative’.  Several new claims are introduced, together with contentions to the effect that the applicant has been affected by ‘[j]udicial bias’ and ‘faulty beliefs’.  No discernible part of the document is directed to either the proposed form of final orders or the issue of the costs of the proceeding.

1. On Tuesday, 3 September 2024, the solicitor for the respondents emailed submissions of 2 pages together with a copy of an email dated 31 July 2024 and a proposed form of order.  In substance, the respondents contend that having been successful in the proceeding there is no reason why the Court should depart from the ‘normal rule’ that, in the absence of special circumstances, a successful litigant should receive an order for standard costs.

1. As I have indicated, the respondents’ submissions attach a copy of an email from the respondents’ solicitors to the applicant dated 31 July 2024, in which the solicitors pointed out that the grounds of appeal in the applicant’s notice of appeal had no merit, and that if the applicant would agree to orders dismissing the appeal, the respondents would not seek a costs order against her.  The email was appropriate in both tone and content.

1. A short time later, on Tuesday, 3 September 2024, the applicant emailed the Court purporting to attach a ‘shared document’ titled ‘Application for an Adjournment of hearing 4 SEP, 2024’. 

1. In response, Court staff emailed the applicant to advise that the attachment was unable to be opened and requesting that it be re-sent in a different format.

1. At 10.21pm that evening, the applicant sent another email purporting to attach a different ‘shared document’ titled ‘Part 2 of Submissions SECI202402510’.

1. The following morning, Wednesday, 4 September 2024, Court staff emailed the applicant to advise that they were also unable to access that ‘shared document’ and asked that it be provided in PDF format by 4.00pm that day, being the time submissions were due.

1. A short time later, the applicant emailed to advise that she would be sending the documents to a printing company in order that they could be converted into PDF format.  She also said that she was ‘due for a heart procedure tomorrow’.

1. That afternoon, Wednesday, 4 September 2024, at 3.30pm, the applicant emailed a copy of ‘Part 2 of 2 Submissions SECI202402510’.[1]  That document could be opened.

   [1]I note that in each of two further emails on Wednesday, 4 September 2024, at 3.26pm and 3.32pm respectively, the applicant provided a copy of ‘Submissions Part 1 of 2 S ECI20242510’.

1. The document referred to as ‘Part 2 of 2 Submissions’ is much like the applicant’s earlier document.  It is 31 pages in length and closely typed together with photographs or copies of documents or parts of documents interspersed within it.  Again, much of it relates to the applicant’s underlying narrative together with claims of having been discriminated against and other claims relating to her hearing disability and application to Victoria Legal Aid.  In that regard, it appears that the applicant had dealings with Victoria Legal Aid in August 2013.

1. No discernible part of that document is directed to either the form of orders proposed on 29 August 2024 or the respondents’ submission to the effect that they should have their costs of the proceeding.

1. Finally, on Friday, 6 September 2024, at 1.03am, the applicant emailed the Court to advise that, among other things, she was ‘undergoing a heart procedure’, as well as in the process of addressing a request from Victoria Legal Aid.  The email attached a letter directed to the Victorian Civil and Administrative Tribunal in respect of a proceeding involving the applicant that had been dismissed.  The email seems to have been copied to the applicant, herself, but not to the representatives of the respondents.  Neither the email, nor the document attached to it, addresses any presently relevant issue.

1. Correctly, the respondents state that the general rule is that, absent special or disqualifying circumstances, costs should follow the event.[2]

   [2]Chen v Chan [2009] VSCA 233 [10](1) and Swindells v Victoria (No 2) [2016] VSCA 77 [9].

1. Despite its very great prolixity, no part of the applicant’s material identifies any discernible or cogent reason why, in the present case, the general rule ought not apply.

1. The respondents were successful in the proceeding and there are no special or disqualifying circumstances.  It follows that the respondents should have an order for their standard costs of the proceeding.

1. In light of the above, final orders disposing of the proceeding will be made in the following form –

(1)       The applications for extension of time and leave to appeal are refused.

(2)       Proceeding dismissed.

(3)The applicant pay the respondents’ costs of and incidental to the notice of appeal to be assessed by the Costs Court on the standard basis in default of agreement.

1. A copy of the Court’s orders will be provided to the parties together with a copy of these reasons.

---