Klement v Randles
[2012] VSCA 73
•26 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0161
| JIRI KLEMENT | Applicant |
| v | |
| PETER JAMES RANDLES | Respondent |
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JUDGES: | MANDIE JA and CAVANOUGH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 and 26 March 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 73 | |
JUDGMENT APPEALED FROM: | Klement v Randles (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 5 September 2011) | |
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PRACTICE AND PROCEDURE – Application for extension of time to file notice of appeal – Previous non-compliance with procedural requirements – No explanation for delay – Prejudice to respondent and others – Desirability of finality – Negligible prospects of success – Application dismissed
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person | ||
| For the Respondent | Mr D Begg (solicitor) | Lennon Mazzeo |
MANDIE JA:
I invite Cavanough AJA to read the first judgment.
CAVANOUGH AJA:
By summons filed on 10 October 2011, the applicant, Jiri Klement, who is also known as George Klement and who prefers to be called Reverend Klement, applies for an extension of time in which to file and serve a notice of appeal against an order of Lansdowne AsJ made on 5 September 2011 in Proceeding No SCI 2011 00743.
History of the matter
This proceeding has a long and complex prior history that need not be referred to in detail. In essence, the dispute between the parties concerns the deceased estate of Reverend Klement’s mother, Ludmilla Klement. By her will executed on 30 May 2002, Mrs Ludmilla Klement appointed the respondent, Mr Randles, who is a solicitor, the executor of her estate. Mrs Klement passed away on 27 December 2005. Mr Randles obtained probate of Ludmilla Klement's will on 8 May 2006.
Under the terms of the will, Reverend Klement was given a life estate in a house at 105 Collier Crescent, West Brunswick on condition that he pay the rates and other outgoings, and that he keep the property in a good state of repair. The will further provided as follows:
… in the event of my Trustee being satisfied that my son GEORGE KLEMENT is not capable of residing in such property my Trustee shall have the power either to rent such property to tenants and to use the net income arising from such letting for the maintenance and advancement in life of my said son GEORGE KLEMENT during his lifetime or to sell such property and to invest the moneys from such sale and to use the income derived from such investment for the maintenance and advancement in life of my said son GEORGE KLEMENT.
Mr Randles formed the view that the applicant was no longer capable of living at the property and commenced proceedings seeking possession of it. The background to those proceedings and the history of the litigation are set out in detail in the decisions of Maxwell P and Emerton AJA dated 25 June 2010 and 17 December 2010 respectively, namely Klement v Randles[1] and Klement v Randles (No 2)[2] respectively. The details I need not repeat.
[1][2010] VSCA 160.
[2][2010] VSCA 336.
Mr Randles obtained default judgment for possession against Reverend Klement on 1 October 2008. On 15 December 2008, Habersberger J dismissed Reverend Klement’s appeal against the default judgment. Leave to appeal from the judgement of Habersberger J was refused by this Court on 25 June 2010.
By originating motion filed 13 March 2009, Reverend Klement sought to remove Mr Randles as executor of Mrs Klement’s will. The originating motion was dismissed by Davies J on 8 July 2009 and leave to appeal was refused by this Court on 25 June 2010.
By a document purporting to be an originating motion dated 10 July 2009, and by certain supplementary material, Reverend Klement attempted to initiate proceedings to have his mother’s will revoked. The Prothonotary initially refused to accept the documents for filing. On 1 November 2010 Dixon J refused to order the Prothonotary to accept the documents for filing. On 4 February 2011, this Court (constituted by Maxwell P and Buchanan JA) heard an appeal from the order of Dixon J. This Court acknowledged that the documents were not in proper form and that there was no error in the decision of the Prothonotary or in the decision of Dixon J. However, the Court determined that, in the exceptional circumstances of the case, it was in the interests of all concerned to permit the proposed litigation to begin. The Court ordered that the appeal be allowed and that the Prothonotary accept the originating motion and any supplementary material for filing within a specified time. The originating motion was consequently filed on 18 February 2011, accompanied by certain supplementary material.
By an order made on 15 June 2011, Habersberger J referred the matter to Lansdowne AsJ for hearing pursuant to rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). On the same day, Lansdowne AsJ conducted a directions hearing. Reverend Klement did not appear, though he had been advised that the matter would be before the Court on that day. He asserts that he believed that there was to be only a mediation on that day, and that he had previously informed the Court that he rejected the proposal for a mediation. Lansdowne AsJ made a series of orders, including an order that the proceedings be listed for trial at a date to be fixed on the preliminary question whether there was any cognisable ground in law for Reverend Klement’s claim. Her Honour also ordered that ‘the plaintiff must attend the trial on the date fixed if he wishes to prosecute his claim’. Her Honour gave leave to each party to make one written submission which was to be typed and no longer than six A4 pages in length. Her Honour ordered that the only other written material that the Court would consider without leave was:
(a) the originating motion dated 10 July 2009 and filed 18 February 2011;
(b) the supplement to that originating motion headed ‘Suppl to Orig. M.’ pp 1-6;
(c) an unfiled document dated 10 February 2011 purporting to be a writ;
(d) the notice of conditional appearance filed by the defendant on 28 February 2011.
The trial was subsequently fixed for 5 September 2011.
The Associate to Lansdowne AsJ notified Reverend Klement of the orders and the trial date by letter dated 1 August 2011 sent to his then address at 1 New Street, Hawthorn. A copy of that letter was also handed to Reverend Klement in person at the Supreme Court Registry shortly thereafter and he read it there. Reverend Klement has since acknowledged that he was aware of the hearing date. However, he did not appear. Being satisfied that Reverend Klement had been duly notified of the hearing date, her Honour indicated that she was prepared to dismiss the originating motion on the basis of Reverend Klement’s non-appearance.
However, for the sake of completeness, Her Honour also considered whether the documents filed disclosed any legally cognisable ground for the revocation of Mrs Klement’s will. She concluded that they did not. For all the reasons she had then stated, her Honour ordered that the originating motion be dismissed.
The application for extension of time
Reverend Klement failed to file a notice of appeal against the decision of Lansdowne AsJ within the 14 day period required by rule 64.03(1) of the Rules. He filed a summons seeking an extension of time on 10 October 2011, 12 days out of time.
Whether time should be extended is a matter within the Court’s discretion. The discretion to extend time is guided in part by the question whether justice between the parties is best served by granting or refusing the extension sought.[3] In that regard the Court takes into account the following factors:
· the length of the delay;
· whether there is an explanation for non-compliance;
· prejudice to the respondent if time is granted or to the applicant if an extension is refused; and
· the prospects of success of the proposed appeal.
[3] Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257, 258.
It is also relevant to have regard to the general principles of case management stated in Aon Risk Services Limited v Australian National University[4] and to the overarching obligations of the parties to civil proceedings stated in Part 2.3 of the Civil Procedure Act 2010, including the obligation to use reasonable endeavours to narrow the issues in dispute stated in s 23 and the obligation to act promptly and to minimise delay stated in s 25.
[4](2009) 239 CLR 175.
Explanation for the delay
Reverend Klement has not provided any explanation for the delay. His affidavit in support of 20 October 2011 and the exhibits thereto, including his proposed notice of appeal, are principally handwritten and are very difficult to understand. They deal with several topics including:
(a) his reasons for not attending the hearing on 5 September 2011;
(b) his alleged financial difficulties as a result of not being able to access any proceeds of his mother’s estate;
(c) his dissatisfaction with the way in which Mr Randles is managing the estate; and
(d) his dissatisfaction with his living situation.
The proposed notice of appeal also contains what are described as ‘essential legal points’ that include the following:
(a) that Reverend Klement did not receive natural justice as he was unable to appear at the hearing before Lansdowne AsJ;
(b) that he had understood that the matter on 15 June 2011 would be a mediation;
(c) that the notice of hearing for 5 September 2011 referred to only one ‘preliminary question’ whereas he had raised several questions; and
(d) that he had thought the hearing on 5 September 2011 was to have ‘devolved from the breakdown of the prospective mediation process’ that had been discontinued.
Prejudice to the respondent and others, case management and finality of litigation
I note that whilst a delay of 12 days would not usually be regarded as very long, in the circumstances of this case prejudice to the respondent and others and the orderly and efficient conduct of the Court’s business, are significant factors. Probate was granted over five years ago. Three sets of proceedings have been litigated and numerous interlocutory steps have been undertaken. The estate has been administered to a substantial extent.[5] Mr Randles has already been put to significant trouble and expense and has not at any stage been found to have acted improperly. Although Reverend Klement suffers from peculiar difficulties, this Court has been extremely accommodating, as evidenced by the decision of Maxwell P and Buchanan JA on 4 February 2011. In that decision, the Court indicated that Reverend Klement was to have the opportunity of one, and one only, court hearing to articulate the matters upon which he relies for the revocation of the will. He was afforded that opportunity and did not avail himself of it.
[5]Cf Leahy v Trescowthick [1999] VSC 409, [18] (Warren J).
In the documents exhibited to his affidavit, Reverend Klement makes clear that he was aware of the hearing on 5 September 2011. His assertion that he thought that the hearing was to be a mediation and a ‘non-event’ is difficult to understand. First, by the ‘other matters’ noted in the authenticated form of order of Lansdowne AsJ of 15 June 2011, and also by [1] of that order, it is made patently clear that there was to be no mediation. Copies of that order were delivered to Reverend Klement by post and by hand. Second, Reverend Klement states that he understood that the hearing was to concern what he terms the ‘constitutional question’, which he describes as an essential part of his claim. It seems therefore that his understanding must have been that the hearing was to concern substantive issues in the proceeding.
Reverend Klement gives several other reasons for his failure to attend. These include that he did not have money for the transport fare and that he was ‘perplexed’ by advertisements on public transport depicting liquor and women in suggestive attire. He states that he is unable to use public transport as he is ‘perplexed’ by noise and because, on a previous occasion, his hearing had been ‘impaired’ by a young child who was yelling on a tram. He also complains about ‘misbehaviour’. He states that he is able to walk from his home to the Court and has done so several times, but states that his ability to walk is impaired by pollution and by a ‘complex nervous disorder of the eyes etc which disturbs my walking, caused mainly by psychiatric issues’. He states that:
It all perplexed me up to 8am on hearing day. Then I decided not to go, even to walk.
Reverend Klement has essentially confirmed, in his oral submissions before us today, the matters to which I have just referred.
It is clear that Reverend Klement suffers from significant difficulties in his life. Nonetheless, he has been given every opportunity to prosecute his claim. He was aware of the hearing on 5 September 2011 and elected not to attend. This dispute cannot drag on forever. There must be an end to litigation. Reverend Klement is apparently impecunious and unable to meet any costs orders from his own resources. Previously, costs orders in favour of Mr Randles have been made against the estate.[6] Apparently there are other potential or contingent beneficiaries of the estate apart from Reverend Klements. The prejudice to Mr Randles and to the estate if an extension of time were granted is significant.
[6]See Klement v Randles (No 2) [2010] VSCA 336. Lansdowne AsJ did likewise.
Further, the case management principles stated in Aon and the overarching obligations stated in the Civil Procedure Act 2010 tend strongly against granting an extension of time in the present circumstances.
Prospects of success
Further, in my view, any appeal from Lansdowne AsJ’s order would have negligible prospects of success. Given Reverend Klements’ non-attendance, Lansdowne AsJ was fully entitled to exercise her discretion as she did. Further, I agree with her Honour’s conclusion that neither the originating motion nor the other documents placed before her Honour raises any legally cognisable ground for revocation of the will.
The originating motion is handwritten and to a large extent illegible. The grounds articulated are difficult to understand. The writ dated 10 February 2011 and the supplementary document filed on 18 February 2011 are typed but they are somewhat rambling and difficult to follow. The matters dealt with in those documents principally concern grievances with respect to the contents of the will, the actions of Mr Randles, the medical treatment Mrs Klement received before her death and Reverend Klement’s own current living situation. The documents also deal at some length with Reverend Klement’s beliefs about the inadequacies of psychiatric medicine.
Lansdowne AsJ noted that it was possible that Ground 5 of the originating motion seeks to claim that Mrs Klement lacked testamentary capacity. That ground appears to read:[7]
My mother was testate after imposition of 'guardian' in administration.
[7]The handwriting is difficult to decipher.
Lansdowne AsJ found that the ground was not articulated with sufficient clarity in any of the material to make it a legally cognizable claim. After reading the material and after hearing Reverend Klement this morning, it appears to me that Reverend Klement was not and is not claiming testamentary incapacity at the time of the making of the will, but the very opposite. Reverend Klement complains that Mr Randles did not comply with Reverend Klement’s demands that Mr Randles should ‘review’ Ludmilla Klement’s will because she had a guardian.[8] Reverend Klement seems to be insisting that despite the appointment of a guardian, Mrs Klement had had testamentary capacity and should have been allowed to make her own decisions about her residence, treatment, financial and legal affairs. In particular, he seemed to be arguing that Mrs Klement should have made a new will that reflected his plans for a Slavic aged-care retreat. He asserted that Mrs Klement endorsed these plans.
[8]It seems that the legal firm of which Mr Randles was a principal had drawn Ludmilla Klement’s will and may have been acting as her solicitor in relation to other matters prior to her death.
None of this material appears to me to reveal a legally cognizable basis for revocation of the will.
Conclusion
Given the lack of explanation for the delay, prejudice to the respondent and others if this matter is allowed to continue, the negligible prospects of success, and the need for efficiency and ultimately finality in litigation, I would refuse the application for an extension of time and dismiss the summons.
MANDIE JA:
I agree with Cavanough AJA.
The order of the Court will be that:
1. The summons is dismissed.
(Discussion re costs)
2. The Court will make orders as to costs as sought by the respondent.
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