Kittelty v Pontifex

[2013] WASC 414

KITTELTY -v- PONTIFEX [2013] WASC 414

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 414
Case No:	CIV:2259/2012	Heard:	12 SEPTEMBER 2013
Coram:	MASTER SANDERSON	Delivered:	19/11/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	SHANE BURNETT KITTELTY SUZANNE CLAIRE PONTIFEX
Catchwords:	Practice and procedure Application to extend time to appeal from decision of registrar Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KITTELTY -v- PONTIFEX [2013] WASC 414 CORAM : MASTER SANDERSON HEARD : 12 SEPTEMBER 2013 DELIVERED : 19 NOVEMBER 2013 FILE NO/S : CIV 2259 of 2012 BETWEEN : SHANE BURNETT KITTELTY

Plaintiff

AND

SUZANNE CLAIRE PONTIFEX
Defendant

Catchwords:

Practice and procedure - Application to extend time to appeal from decision of registrar - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : In person
Defendant : Mr N D Billington

Solicitors:

Plaintiff : In person
Defendant : Jarman McKenna

Case(s) referred to in judgment(s):

Nil


1 MASTER SANDERSON: On 30 July 2013 at Status Conference No 9 Registrar Dixon made the following orders:

1. Unless by 20 August 2013 the plaintiff provide to the defendant a copy of the report or the substance of the evidence of any expert witness whose evidence is to be adduced by the plaintiff, the plaintiff not be at liberty to adduce expert evidence at trial.

2. Unless by 20 August 2013 the plaintiff file and serve his witness statements, the statement of claim be struck out and the action dismissed with costs.

3. The Status Conference be adjourned to a date to be fixed.

4. The plaintiff pay the defendant costs of today fixed in the sum of $420.00 and payable by 13 August 2013.

2 The plaintiff did not comply with orders 1 and 2. On 13 August 2013 the plaintiff filed what he described as a 'Summons for Directions'. In that summons he sought the following orders:

1. Orders 1,2,3,4, made by Registrar Dixon on the 30^th July 2013, be revocated.

2. The Plaintiff is not required to file and serve any attesting witness statements for the later Will dated 16^th March 2010, and on proceeding to trail [sic], no party can produce or refer to any evidence relating in any way to any attesting witnesses of the later Will, without prejudice, this does not exclude the Plaintiff from proving the later Will and receiving a grant in solemn form of law.

3. The Plaintiff is entitled from the estate an equal monetary sum as the Defendant, for any expenditures relating to this matter to be capped by the Court, if the parties can't agree, on a capped sum, and the capped sum for both parties are to be costs in administration, and are to be paid out of the estate.

4. Leave is given to renew the application for further directions.

3 The matter was called on for mention on 22 August 2013. The plaintiff was self represented. Counsel for the defendant pointed out the 'Summons for Directions' was incompetent. It appeared what the plaintiff was seeking to do was appeal from the orders made by Registrar Dixon. That seemed to be the case. I pointed out to the plaintiff he would need to file an application for an extension of time within which to appeal against the orders of the registrar and he would need to file an affidavit in support of his application and submissions. Counsel for the defendant had already filed submissions in opposition to an extension of time within which to appeal being granted and in opposition to any appeal.

4 On 4 September 2013 the plaintiff filed what he described as 'Amended Summons of Notice of Appeal and Directions Amended Pursuant to Orders of Master Sanderson made on 22 August 2013'. What that document did not do was seek an extension of time within which to appeal. What it did do is say that leave to appeal had been granted by me on 22 August 2013. No such leave was granted. There were no substantive orders made on 22 August 2013. Once again counsel for the defendant pointed out there was no application for an extension of time and no evidence to support such an application being granted.

5 In fact on 13 August 2013 the plaintiff filed an affidavit. The affidavit really takes the matter no further. It does not provide any explanation for the delay in appealing the registrar's decision nor does it provide any grounds upon which any appeal could succeed. The proper course is simply to dismiss the plaintiff's application and allow the orders of Registrar Dixon to take effect.

6 A self represented litigant will always be at a disadvantage when dealing with matters of procedure. The position is exacerbated when tight timeframes are involved as they are on appeals from a registrar. It is inappropriate for me as matters stand to deal with the merits of any appeal which might be raised. While I have carefully considered the submissions of both parties I have not made this decision upon the merits. It is the fact the plaintiff has not followed the correct procedure. The defendant as she is entitled to do takes the point and the present application should be dismissed. The plaintiff should pay the defendant's costs of the applications including the reserved costs.