Koziol v Gergel
[1999] TASSC 12
•19 February 1999
[1999] TASSC 12
PARTIES: KOZIOL, Nadejda
v
GERGEL, Alexander
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 829/1990
DELIVERED: 19 February 1999
HEARING DATE/S: 12 February 1999
JUDGMENT OF: Wright J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Time - Leave to take fresh proceeding in the action - Delay exceeding six years since last proceeding taken - Factors relevant in the exercise of discretion to grant leave.
Aust Dig Procedure [283]
Rules of the Supreme Court, O79, r11(2), O30, r1.
The Closer Settlement Board v Thomas [1982] Tas SR 179; Appleby & Anor v Mobil Oil Australia Ltd 120/1997, applied.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; Wintle v Nye [1959] 1 All ER 552; Wilson v Bynon [1984] 2 Qd R 83; Dempsey v Dorber [1990] 1 Qd R 418, considered.
REPRESENTATION:
Counsel:
Plaintiff: A M Blow QC
Defendant: N R Readett
Solicitors:
Plaintiff: Wallace Wilkinson & Webster
Defendant: Clerk Walker & Stops
Judgment category classification:
Judgment ID Number: [1999] TASSC 12
Number of pages: 3
Serial No 12/1999
File No 829/1990
NADEJDA KOZIOL v ALEXANDER GERGEL
REASONS FOR JUDGMENT WRIGHT J
19 February 1999
Maria Schew, as executrix of the estate of Nadejda Koziol deceased, has applied for a number of interlocutory orders, including orders that she be substituted as plaintiff and that she then be at liberty to take fresh proceedings in the action, notwithstanding the passage of more than six years since the last proceeding was taken.
The Rules of the Supreme Court, O79, r11(2) provide:
"(2) When six years have elapsed from the time the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a judge, which may be made either ex parte or upon notice."
Similar provisions exist in the High Court Rules and the Rules of the Supreme Court (Qld) (see Appleby & Anor v Mobil Oil Australia Ltd 120/1997 per Underwood J at 1).
In Appleby (supra) Underwood J said:
"The question of whether there is good reason for making the order will, of course, depend upon the circumstances of each case, but generally speaking, relevant factors will be whether there is a reasonable excuse for the delay (Campbell v United Pacific Transport Pty Ltd and Others [1966] Qd R 465) and whether the respondent will suffer prejudice if the order is made."
And at 2, his Honour added:
"A relevant matter may be the nature of the applicant's case. An order will be an exercise in futility if it appears that the applicant will not be successful in the litigation even if an order giving leave to proceed is made. All the relevant circumstances have to be balanced to see whether there is good reason for excepting the proceedings from the general prohibition against taking proceedings after the expiration of six years."
These statements of principle are plainly correct and follow, in general terms, those principles which apply in all cases where delay in taking or instituting proceedings may constitute a bar or impediment to the advancement of litigation to enforce a claimed right. Such principles were discussed recently by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
It may be suggested that those issues which require consideration in determining whether or not to override a statutory limitation period are not necessarily the same as those which arise upon an application such as the present which is necessitated only as the result of an embargo created by a rule of court. In William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, Dixon CJ at 493 - 494 discussed the possibility that such a provision as O79, r11(2) may exceed the Court's power to regulate procedure but he concluded, plainly correctly in my respectful opinion, that as the Rules were originally enacted by Parliament as part of the procedural legislation, no such objection could be sustained. Identical reasoning applies to the equivalent Tasmanian rule.
However, there is one feature which I venture to suggest may well distinguish an application under O79, r11(2) from applications under the Limitation Act 1974, s5(3) and even some applications under the Workers Rehabilitation and Compensation Act 1988, s135(2). When an application is made for leave to commence proceedings under either of these last mentioned Acts, it is often the case that the proposed defendant has not previously been alerted to the prospect of litigation and has not investigated, or had a chance to investigate, the circumstances of the relevant accident or its consequences. Obviously delay in such cases may be highly prejudicial to the defendant.
By contrast, where an application is made for leave to proceed pursuant to O79, r11(2), the defendant will almost invariably have been put on notice as to the nature and extent of the relevant claim by service of the writ and statement of claim. Sometimes, as in the present case, the action will then have proceeded to such an extent that it is almost ready for trial before apathy or some other cause brings it to an unexpected halt. Considerations of this kind may well bear significantly upon the question of delay and prejudice. Furthermore, it cannot be ignored that a defendant who has been prejudiced by a plaintiff's delay in prosecuting his or her case may apply to have the action dismissed for want of prosecution, either under O30, r1, for failure to deliver a statement of claim, or under the more general power discussed and applied in The Closer Settlement Board v Thomas [1982] Tas SR 179.
The action before me was commenced on 28 June 1990 by the widow of Konstanty Koziol who died on 11 April 1990. Probate of a will signed by Mr Koziol and allegedly prepared by the defendant Mr Gergel on 23 May 1980, was granted to Mr Gergel on 31 May 1990 in the Supreme Court of Tasmania. In the statement of claim delivered on 28 June 1990, it was alleged that Mr Koziol had been illiterate in the English language (in which the will was written) and that the will had not been read over or translated to him before execution, contrary to the Probate Rules, r12, and that Mr Koziol had no knowledge of its contents before signing. It was also alleged that the execution of the will was procured by the defendant's fraud or undue influence and that, being the major beneficiary, he took no steps to ensure that Mr Koziol was independently advised. These allegations have all been denied in the defence. Upon the hearing of the present application, counsel for the plaintiff announced that if the case were allowed to proceed, the allegations of fraud, undue influence and failure to ensure that the deceased received independent advice, would be abandoned.
The affidavit of assets and liabilities, presumably filed in respect of the deceased's estate, was not placed before me, but it appeared to be common ground that the former matrimonial home of Mr and Mrs Koziol at 1 Valley Road, West Hobart, together with its contents and a block of land at Risdon Road, which were all owned by Mr Koziol and which were devised and bequeathed by the will to Mr Gergel, constituted the bulk of Mr Koziol's estate.
Affidavits filed on behalf of the applicant who is Mrs Koziol's daughter by a previous marriage, suggest that if the action goes to trial, evidence will be available from the two gentlemen who witnessed Mr Koziol's will and that they will say that they did so at the request of the defendant and that they will also depose to certain facts highly relevant to, and supportive of, the plaintiff's case. There will also be evidence available from Mrs Schew confirming that her deceased step-father was illiterate in English. It is clear, too, that the defendant vigorously contests the plaintiff's claims, alleging (inter alia) that Mrs Koziol and her husband had lived separately and apart, he in Hobart, and she in Sydney, for some years before the execution of the will and continuously thereafter until his death. No doubt it will be suggested that in these circumstances a gift of valuable property to Mr Gergel, a trusted friend, was not such a remarkable occurrence as it may otherwise appear. Other bases for the defence of the action were also referred to during the hearing of the application, but need not be discussed in detail.
An affidavit by Neil Readett, solicitor for the defendant, deposed to the fact that three potential witnesses who knew Mr Koziol and could speak of his habits and his relationship with the defendant, had died since the action was commenced and that a further such witness could not now be located. Their proofs of evidence were annexed to Mr Readett's affidavit. All are silent as to the deceased's knowledge or understanding of English and are also silent as to the circumstances surrounding the creation or execution of the will which was admitted to probate. Because of the limited basis on which it is now intended to prosecute the action, I am unable to conclude that the evidence of these witnesses would be likely to have a significant bearing on the outcome of a trial.
The evidence before me satisfies me that if the case proceeds, the plaintiff has a reasonably good prospect of success. This, of course, is not to prejudge the merits of the defence. It may be going too far to say that there is a presumption in favour of the plaintiff's success if it is proved only that the defendant wrote out the will and was a significant beneficiary under its terms, but the following words of Viscount Simonds in Wintle v Nye [1959] 1 All ER 552 at 557 provide support for the plaintiff's contention that there is a heavy evidentiary burden to justify a grant of probate which lies upon any defendant who is similarly placed to Mr Gergel:
"My Lords, the relevant law is not, I think, in doubt. It was, as the Court of Appeal were unanimously of opinion, correctly stated by the learned judge by reference in particular to the judgment of Parke, B, in Barry v Butlin (1838), 2 Moo PCC 480 at P 482). It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."
A major factor raised by the defence as a barrier to the plaintiff's application was the claim that there had been inordinate delay in the prosecution of the case, initially by Mrs Koziol and more recently since her death, by Mrs Schew. Indisputably there has been substantial delay, using that term in a neutral and non-pejorative sense. That delay can be traced back to the time when the plaintiff's solicitors realised that it was necessary to apply for a citation to issue requiring the defendant to bring the probate into court before the action could proceed. Thereafter, they appear to have proceeded at a somewhat leisurely pace but, added to that, there were substantial complications caused by Mrs Koziol's language difficulties which impinged on her ability to communicate effectively with her solicitors, her chronic illness resulting in her substantial incapacitation, her old age and her justifiable concerns as to the potential costs of the litigation, all of which caused her to hesitate in pushing the matter forward. The fact that she lived in Sydney and was thus geographically remote from her solicitors and the Court seems to have further compounded these matters. There is, however, no justification for the conclusion that she decided at any time to abandon her claim or had lost faith in its validity and merit.
Mrs Koziol died on 1 February 1996. Mrs Schew was granted probate of her mother's will in Tasmania on 9 June 1998. I cannot say there has been significant delay in this matter since that time. Mrs Schew, herself, is no longer young and was grieving over her mother's death for some months thereafter. This circumstance tends to explain her initial pause before bracing herself to press on and "see justice done".
Whilst excusable delay does not necessarily overcome the disentitling effect of prejudice caused to a blameless defendant, as was pointed out in the powerful judgment of McHugh J in Brisbane Regional Health Authority (supra) at 551 - 555, even inexcusable delay does not, per se, preclude a tardy plaintiff from proceeding (see Wilson v Bynon [1984] 2 Qd R 83, per Thomas J at 86, and Dempsey v Dorber [1990] 1 Qd R 418 per Connolly J at 420).
That there may be some general prejudice to the defendant as the result of the passage of time cannot be ignored, but no specific prejudice has been shown and any claim of general prejudice must be substantially tempered by the consideration that the defendant himself appears to have been at least the amanuensis, if not the author, of the disputed will. It has not been claimed or demonstrated that his memory is defective. If the claim proceeds, it will do so on a much narrower basis than that advanced by the original statement of claim and the defendant will be in a position to give direct evidence himself as to all disputed issues. The real prejudice appears to me to have been suffered by the plaintiff as a consequence of Mrs Koziol having died before being able to give evidence.
Overall, I have little hesitation in concluding that the interests of justice are properly served in the present circumstances by allowing the action to proceed.
I therefore propose to make the following orders:
1That Maria Schew as executrix of the estate of Nadejda Koziol be substituted as the plaintiff in this action.
2That the plaintiff be at liberty to take a fresh proceeding in this action.
3That the plaintiff be permitted to amend the statement of claim in a ccordance with Annexure "A" to the application dated 16 November 1998 and to serve the same upon the defendant's solicitor within 7 days.
4That a citation be issued and served on Juzefa Niedzwiedz or her executors.
5That the plaintiff pay the costs of this application and the costs occasioned by the aforesaid amendment to the statement of claim, in any event.
I certify for counsel.
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