Caldar v Public Trustee
[2003] NSWCA 187
•7 July 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: CALDAR v PUBLIC TRUSTEE & ORS [2003] NSWCA 187
FILE NUMBER(S):
40345/03
HEARING DATE(S): 7 July 2003
JUDGMENT DATE: 07/07/2003
PARTIES:
Russell Caldar (Estate of the late Mrs Rachel Isabell Gittoes)
v
Public Trustee of New South Wales and
Allan Ramon Gittoes and
Registrar-General, Land and Property Information Office
JUDGMENT OF: Handley JA Ipp JA Tobias JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): ED 121784/02, ED 119481/01
LOWER COURT JUDICIAL OFFICER: Santow JA, Campbell J, Barrett J
COUNSEL:
Appellant: Mr Caldar in person
Respondent 1: I R Rugless, Solicitor, for Public Trustee
Respondent 2: No appearance
Respondent 3: G Channell, Solicitor, for Registrar-General
SOLICITORS:
Appellant: In person
Respondent 1: Gibson Owen Lawyer, Inc
Respondent 2: No appearance
Respondent 3: K C Hall, Solicitor for Registrar-General
CATCHWORDS:
APPEAL - interlocutory judgment or order - refusal to set aside grant of administration in common form interlocutory
LEGISLATION CITED:
Supreme Court Act
DECISION:
Appeal be struck out as incompetent. Opponent pay the claimants' costs of notices of motion of 12 and 16 June
Notice of motion dated 6 June to review the orders of Santow JA dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40345/03
ED 121784/02 ED 119481/01
HANDLEY JA
IPP JA
TOBIAS JA
7 July 2003
RUSSELL CALDAR v PUBLIC TRUSTEE OF NSW & ORS
Judgment
HANDLEY JA: The Court has before it a notice of motion filed on behalf of the Public Trustee on 12 June, and another notice of motion filed on behalf of Land and Property Information New South Wales on 16 June, which seek orders that Mr Caldar’s notice of appeal filed on 29 April from the judgment of Campbell J of 28 April be dismissed as incompetent. Those summonses are supported by the affidavits of Margaret Pringle of 24 June, in support of the notice of motion by the Public Trustee, and of Anna Brann of 27 June, in support of the notice of motion by Land and Property Information.
The Court has also been furnished with a chronology of events since Mr Caldar filed his first probate caveat in December 2001.
The orders sought in the notice of appeal from Campbell J are that the Letters of Administration granted to the Public Trustee be revoked, an order for costs, damages against the Public Trustee and Mr Gittoes and an order that a caveat lodged against the title to the real estate forming the principal asset of the estate of Mr Caldar’s deceased mother be reinstated.
Section 101(2) of the Supreme Court Act provides that an appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from (e) an interlocutory judgment or order in proceedings in the Court; and (r) a final judgment or order in proceedings in the Court other than an appeal that involves a matter at issue amounting to or to the value of $100,000.
A grant of administration in common form is not a final judgment and it is open to a Court exercising probate jurisdiction to revoke that grant at any time upon a proper case being established. It is in the nature of a default or interlocutory judgment. It follows that an order refusing to revoke a grant of administration in common form is also an interlocutory judgment and within the principles established in Carr v Finance Corporation of Australia Limited(No 1) (1981) 147 CLR 246. In that case, the High Court held that the dismissal of an application to set aside a default judgment is interlocutory for the purposes of provisions such as s 101(2)(e) although it may be final in substance.
The order of Campbell J refusing to revoke the grant of Letters of Administration in common form was therefore interlocutory and an appeal only lies by leave of this Court.
The other relief sought in Mr Caldar’s notice of appeal of 29 April relating to costs and reinstatement of a caveat against the real property are also incompetent without leave. Section 101(2)(c) of the Supreme Court Act requires leave to appeal from orders for costs. An order for the restoration of a caveat is also interlocutory as it does not finally decide the rights of the parties.
Finally there are claims for damages against the Public Trustee and Mr Gittoes but no evidence that these involve claims amounting to $100,000, notwithstanding the direction of Registrar Schell that Mr Caldar file an affidavit establishing the competency of the appeal by 12 June and the further direction of Deputy Registrar Wearne on 12 June that such an affidavit be filed prior to 16 June.
In my judgment therefore the appeal from Campbell J initiated by the appellant on 29 April 2003 was incompetent without the leave of this Court and the Court has no option but to order that the appeal be dismissed as incompetent. That of course will not prejudice the right of Mr Caldar, if so advised, to seek leave to appeal from the decision of Campbell J and an extension of time for that purpose. That is not intended to convey any indication to Mr Caldar that there are realistic prospects of obtaining leave to appeal from Campbell J but he is legally free to pursue that remedy. It is not the task of courts to give legal advice to litigants but to decide cases properly brought before them.
The other matter before the Court is the notice of motion by way of appeal lodged by Mr Caldar from a decision of Santow JA. The relief sought by Mr Caldar before Santow JA by his notice of motion of 5 May was an injunction restraining the Public Trustee from administering the estate of Mrs Gittoes, Mr Caldar’s mother, a direction that the Public Trustee provide him with a copy of an unsigned affidavit by his brother, and directions that the Public Trustee provide him with copies of his statutory reports to the Attorney General and Treasury for the years 1999 through to 2002, and copies of the records and minutes of the Probate Users’ Group of the Supreme Court from 1990 to the present.
Santow JA heard the claimant’s Notice of Motion on 19 May and dismissed it with costs. His revised judgment was issued on 2 June. Santow JA was sitting as a single judge of the Court of Appeal under s 46(2) of the Supreme Court Act. Section 46(4) entitles a Full Bench of this Court to discharge or vary a judgment given by a single Judge of Appeal in hearing and determining motions such as Mr Caldar’s motion of 5 May.
Santow JA dealt carefully with each of the orders sought by Mr Caldar and in my judgment no error on his part has been established. I am content to adopt Santow JA’s reasons for dismissing the notice of motion as my own.
Mr Caldar has today handed to the Court an amended notice of motion which seeks additional relief. This includes directions that the Public Trustee provide him with the quarterly reports of the statement of the financial performance of the Public Trust Office made to the Attorney General, the quarterly reports of the statement of financial performance of the Public Trust Office made to the Treasury, and the quarterly reports of the product efficiencies (sic) of the Public Trust Office to the Premier’s Department, in each case for the period of 1990 to 2002. He also again sought orders 2 and 4 which had been sought before Santow JA. In addition, he sought orders that the Public Trustee provide him with all financial records relating to moneys seized or confiscated under the Criminal Assets Recovery Act, Confiscation of Proceeds of Crime Act and transferred to the Public Trust Office between 1990 and 2002. Finally, he sought orders directed to Peter Whitehead, who it seems is the natural person who currently occupies the office of Public Trustee, to explain why he engaged a certain licensed commercial agent, and lapsed the claimant’s caveat against the real estate of the deceased and suspending the exemptions of the Public Trust Office under the Freedom of Information Act.
These applications were not before Santow JA and this Court would not ordinarily entertain applications which had not been properly brought before either the Registrar or a single Judge of this Court. However, it is sufficient to say that the relief sought has no conceivable relevance to any appeal which might ultimately be brought by leave from the decision of Campbell J.
In my judgment therefore the following orders should be made:
(1)On the notices of motion of 12 June and 16 June I order that the appeal No 40345 of 2003 commenced by notice of appeal filed on 29 April 2003 be struck out as incompetent and that the opponent pay the claimants’ costs of those notices of motion.
(2)On the notice of motion of 6 June filed by the claimant, Russell Caldar, to review the orders of Santow JA I order that that notice of motion be dismissed with costs.
IPP JA: I agree.
TOBIAS JA: I also agree.
******
LAST UPDATED: 09/07/2003
113