Leonardo Michael Appellant v Kim Giao Vu First Respondent Trevor Archibald Price Second Respondent Valeria Nora Astorga Perez Third Respondent

[2022] QCA 66

[2022] QCA 66

COURT OF APPEAL

MULLINS JA

Appeal No 2882 of 2022
SC No 2576 of 2021

LEONARDO MICHAEL   Appellant

v

KIM GIAO VU  First Respondent

TREVOR ARCHIBALD PRICE  Second Respondent

VALERIA NORA ASTORGA PEREZ  Third Respondent

BRISBANE

FRIDAY, 6 MAY 2022

JUDGMENT

MULLINS JA: Ms Vu, who is the first respondent, applies pursuant to rule 775 of the Uniform Civil Procedure Rules 1999 for the dismissal of the appeal filed by Mr Michael for want of prosecution, or in the alternative, for an order for security for costs.  Mr Michael was seeking to propound two informal wills of Zung Rosita Vu (the deceased), who died on 5 December 2020.  Ms Vu is the mother of the deceased.  Ms Vu was seeking to propound a will made on 24 November 1994.

Mr Michael had failed to comply with orders in the trial division relating to the filing of material in advance of the trial which was listed to commence on 11 April 2022.  Ms Vu applied for an order dismissing Mr Michael’s application for want of prosecution.  That application was heard on 11 February 2022, when the primary judge dismissed the proceeding brought by Mr Michael and ordered that Mr Michael pay the first and second respondents’ costs of the application on the indemnity basis.  The primary judge ordered that a grant of a copy of the deceased’s will, dated 24 November 1994, be granted to the named executor, who was the second respondent, until the original or more authenticated evidence of it be brought into the Registry.

Before the primary judge, Mr Michael had relied on his evidence filed on 11 February 2022.  But that affidavit did not attempt to explain his failure to comply with Court orders and, apart from his assertions, did not to point to evidence available from others that would be relevant to proving the deceased had testamentary capacity when either of the documents were alleged to be signed on 1 and 2 November 2020, that Mr Michael sought to propound as informal wills of the deceased.

According to the pleadings filed in respect of Mr Michael’s claim, testamentary capacity was a real issue because the death certificate of the deceased showed she died from lignocaine toxicity.  In disposing of the application to dismiss the proceeding for want of prosecution, the primary judge stated:

“In the circumstances, even having been given many opportunities, the applicant is now in a situation where he has a hopeless case in relation to advancing a claim that either of the documents represents the informal will of the deceased.”

The primary judge stated further:

“I am satisfied in the present case that the applicant has engaged in contumelious disregard of Court orders, having incurred significant expense for the other parties in circumstances where there plainly is little prospect of recovery in relation to those costs.  There is no reason in the interests of justice that the applicant ought to be given a further time to be able to produce evidence in this proceeding.”

Mr Michael filed the notice of appeal on 11 March 2022 but did not serve the notice.  Ms Vu’s solicitors discovered the notice of appeal by a court search, on 17 March 2022, and obtained a copy from the Registry.  The first respondent’s solicitor wrote to Mr Michael, on 17 and 18 March 2022, providing him with a copy of the practice direction and pointing out his obligation to provide an outline and draft appeal book index.  All parties received a communication from the Registry, on 23 March 2022, to confer and advise of dates and estimated duration of the appeal by 13 April 2022 and that the appellant’s outline and draft appeal book index were due by 19 April 2022.  There was no compliance or response by Mr Michael.

The application to dismiss the appeal was filed on 21 April 2022.  It is relevant to interpose in the chronology another application made by Ms Vu in the trial division, on 17 March 2022, of which notice was not given to Mr Michael.  He was not strictly entitled to notice because his claim to prove the informal wills had been dismissed.  The fact that he had a notice of appeal of which Ms Vu’s lawyers were aware when they proceeded in the trial division, on 17 March 2022, did raise the issue in my mind of whether as a matter of prudence, Mr Michael should have been served.

Ms Vu’s lawyers did bring the fact of Mr Michael’s appeal to the attention of the judge who heard the application on 17 March 2022.  That application sought letters of administration of a later will of the deceased, dated 20 October 2000, be granted to Ms Vu as the administrator with the will annexed, and that the orders made by the primary judge of 11 February 2022 in relation to the will of 24 November 1994 be revoked.

I am satisfied that it is of no consequence for today’s application that Mr Michael did not have notice of the application heard on 17 March 2022.  As Ms Brewer of counsel who appears for Ms Vu submitted, Mr Michael has no standing to challenge the validity of the 2000 will as his only benefit would be if either of the informal documents were admitted to probate.  He therefore had no standing to be heard about whether it should be the 2000 will or the 1994 will that was admitted to probate.  I should note that existence of the 2000 will only came to the attention of the first respondent’s solicitor after the application was heard by the primary judge, on 11 February 2022.

The application to dismiss the appeal for want of prosecution first came on for hearing on 29 April 2022.  There was no appearance by Mr Michael, but a person named Dr Blake, who had known the deceased and had contact the previous day with Mr Michael, sought to appear on Mr Michael’s behalf and explained that Mr Michael was suffering from mental stress and was unable to appear, and sought an adjournment on Mr Michael’s behalf.

It was apparent from Ms Vu’s material that there had been difficulties in serving Mr Michael and giving him notice of the date fixed for the hearing of the application to dismiss the appeal.  I refused to give leave to Dr Blake to appear for Mr Michael but adjourned the application for hearing until 9.30 am, on 6 May 2022, with costs reserved.  Dr Blake had a telephone number for Mr Michael which he provided to the Court and to the first respondent’s solicitors and confirmed the email address which Mr Michael was currently using.  I directed that notice of the adjourned date was given to Mr Michael at that email address.

Notice of the adjourned hearing date did come to the attention of Mr Michael as when the hearing of Ms Vu’s application to dismiss the appeal for want of prosecution resumed, on 6 May 2022, Mr Michael was represented by Mr Garlick of counsel and solicitor, Mr Tull, who had agreed with Mr Michael to act on terms that allowed the matter to progress without the immediate need of funding.

I anticipated that if Mr Michael intended to prosecute the appeal, he would be explaining why he had failed to prosecute his proceeding in the trial division and procure evidence of testamentary capacity of the deceased, why he did not serve the notice of appeal, why he did not comply with the directions of the Registrar in respect of the appeal or respond to the communications from the Registrar and why he did not appear on 29 April 2022.  The only affidavit relied on by Mr Michael today exhibited a copy of the informal document that had been propounded by Mr Michael as a will, dated 1 November 2020, and also referred to the second informal document propounded as a will, dated 2 November 2020, of which Mr Michael said he was aware.

Mr Garlick and his instructing solicitor indicated to the Court that while they continued to act for Mr Michael, that they would take all steps necessary to ensure the appeal was prosecuted.  That is not to the point.  It is Mr Michael’s appeal, and he has not shown any inclination to put before the Court the explanations required from him that would support a view that Mr Michael was serious about prosecuting the appeal.

In the circumstances of Mr Michael’s failure to prosecute the appeal diligently in the various respects that I have outlined in these reasons and in light of the same conduct that he exhibited in relation to his proceeding in the trial division that resulted in that being dismissed for want of prosecution, it is not in the interests of justice for the appeal to remain on foot.  I make orders in terms of the amended draft initialled by me.  Those orders are:

1.   The appeal is dismissed for want of prosecution.

2.   The appellant pay the costs of the first respondent of the appeal.

Thank you for your assistance, but it is apparent from my reasons that it would not be in the interests of justice to let this remain on the books.

MR GARLICK:  Thank you, your Honour.

MULLINS JA:  Thank you.  Thank you for your assistance, Ms Brewer.  We will adjourn.