Nani v Executor of the Estate of Vincent Natalino Nani - [2024] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NANI -v- EXECUTOR OF THE ESTATE OF VINCENT NATALINO NANI [2024] WASC 73
CORAM:   REGISTRAR FATHARLY
HEARD:   5 MARCH 2024
DELIVERED          :   5 MARCH 2024
PUBLISHED           :   15 MARCH 2024
FILE NO/S:   CIV 2245 of 2020
BETWEEN:   PAUL DAMIAN NANI
Plaintiff

AND

YANQING NANI EXECUTOR OF THE ESTATE OF VINCENT NATALINO NANI
First Defendant

YANQING NANI
Second Defendant

Catchwords:

Practice and procedure - Inactive Cases List - Removal from Inactive Cases List

Legislation:

Rules of the Supreme Court 1971 (WA), O 4A r 24, r 27, r 28

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	S Venter
Second Defendant	:	S Venter

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Groven Legal
Second Defendant	:	Groven Legal

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

Hall v Hall (No 2) [2011] WASC 110
Lashansky v the Legal Practice Board (No 2) [2010] WASC 159
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Ormarc Engineering v Downer EDI Mining‑Blasting Services [2020] WASC 7
Swick Nominees Pty Ltd v Norncrop Pty Ltd [2008] WASC 24

REGISTRAR FATHARLY:

(This judgment was delivered extemporaneously on 5 March 2024 and has been edited from the transcript.)

Introduction

These are my reasons on hearing the plaintiff's application, pursuant to O 4A r 27(1) of the Rules of the Supreme Court 1971 (WA) (RSC) to remove these proceedings from the inactive cases list, which I will refer to as the ICL. The application is opposed.
Active steps have not been taken to advance the proceedings since 18 October 2021, resulting in these proceedings being taken to be inactive and the parties being given notice by the Acting Principal Registrar of it being inactive on 14 September 2023, pursuant to O 4A r 24 RSC.
That notice included a statement that if the proceedings remained on the ICL for six continuous months after the date on which notice was given, then pursuant to O 4A r 28, the plaintiff's proceedings would be taken to be dismissed as against the defendants for want of prosecution.
In these reasons, I will refer to the plaintiff as Mr Nani and the defendant in each of her capacities as Mrs Nani.
On 15 December 2023, Mr Nani wrote by email to the Principal Registrar's Associate with an attached statutory declaration seeking to have the matter removed from the ICL. That has been taken to be an application for the removal of the matter from the ICL for the purpose of O 4A r 27(1) RSC.
Following receipt of written objections and provision of time for affidavits and any submissions to be filed in support of the application, Mr Nani's application was listed for hearing before me on 5 March 2024.
Without the court ordering the case be taken off the ICL in the meantime, the action would be deemed to be dismissed on 13 March 2024.

Applicable principles.

Under O 4A r 27(2) and (3) RSC, the court may make an order for a case to be taken off the ICL if satisfied that the case will be conducted in a timely way, or for any other good reason. Such an order may include any conditions to ensure the case is conducted in a timely way.
The making of such an order is in the discretion of the court, provided the court is satisfied the case will be conducted in a timely way, or for any other good reason.
Even if so satisfied, that does not oblige the court to make the order if either condition is met.[1]
[1] Ormarc Engineering v Downer EDI Mining‑Blasting Services [2020] WASC 7 [7].
The principles relevant to an application for removal of a matter from the ICL are set out in a number of cases, which I will summarise:
(1)The ICL should be seen in the light of the rigour of case management, which applies to the efficient disposal of cases and the court being proactive to ensure that a case progresses with reasonable dispatch, with reasonable and self‑executing consequences for a tardy litigant.[2]
(2)An application for removal from the ICL should not be regarded as mechanical. Evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps, backed up by a springing order.[3]
(3)Once a matter is on the ICL, it becomes subject to a special regime and the evident scheme of that regime is that there will be curial supervision of whether the case should be permitted to resume progress and, if not, after six months, the action is effectively dismissed.[4]
(4)It is relevant for the court to inquire whether there is evidence to explain how the case came to be on the ICL and why it should not be expected that the matter would again become inactive if it is removed from the list. Mr Nani should include evidence as to the state of preparation of the case at the time of the application and a program of proposed steps to progress the action with a timetable to bring the matter to a hearing.[5]
(5)It is also relevant to consider when the application to remove the matter from the inactive cases list was made and, if it was at a late stage of the six month period, whether there is an adequate explanation for the delay.[6]
[2]Lashansky v the Legal Practice Board (No 2) [2010] WASC 159 [68]; Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 [12].
[3] Lashansky (No 2) [68]; Swick Nominees Pty Ltd v Norncrop Pty Ltd [2008] WASC 24 [11].
[4] Lashansky (No 2) [72] ‑ [73]; Ormarc Engineering [40].
[5] Lashansky (No 2) [74], [82] ‑ [83]; Ormarc Engineering [40] ‑ [41].
[6] Lashansky (No 2) [80]; Hall v Hall (No 2) [2011] WASC 110 [62]; Ormarc Engineering [42].

The proceedings

These proceedings were commenced by originating summons on 18 December 2020 by solicitors for Mr Nani seeking provision out of the estate of his father Vincent Nani for Mr Nani's proper maintenance, support, education and advancement in life under the Family Provision Act 1972 (WA). Mrs Nani is a defendant as both executor and beneficiary entitled under the will.
On 26 February 2021 Mr Nani's affidavit sworn 18 December 2020 was filed in support of his claim. As this affidavit makes clear:
(a)probate of the last will and testament dated 12 November 2018 of Vincent Natalino Nani, who I will refer to as Vincent Nani, who died on 4 June 2020, was granted to Mrs Nani, the executor appointed under the will, on 30 July 2020;
(b)Mrs Nani is Vincent Nani's wife from 22 July 2006 and the beneficiary of the whole of the estate under the will. Mrs Nani also had a child with the deceased on 26 July 2010;
(c)Mr Nani was born in 1978 and claims to have need for provision based on unemployment, having at the time his own dependent son who was then 17, depression and anxiety issues and very limited income or assets and often having to sleep rough.
Mrs Nani filed appearances in her capacity as an executor on 8 February 2021 and as beneficiary on 18 January 2021 both through her solicitor.
On 29 March 2021 Mrs Nani filed her own affidavit opposing the claim and referring to the assets and liabilities of the estate as at the date of Vincent Nani's death. The two most significant items were a house in Bunbury worth $367,000 in which Mrs Nani resided with her then 10 year old daughter and liabilities including funeral costs of almost $11,000.
Her affidavit makes reference to her own difficult financial position and limited ability to earn, as well as her own mental health issues.
Initially, both parties were represented by solicitors.
The originating summons was amended on 20 April 2021 to articulate the claim in accordance with the Consolidated Practice Directions.
The matter was not resolved through mediation.
In particular, the originating summons was amended to specify the requirement that the plaintiff be provided for, in effect, by having one‑third of the estate provided for him. In the application today Mr Nani has made it clear that he would be seeking in excess of half of the estate, not one‑third of the estate, although that is not the subject of a further amended originating summons.
On 25 August 2021 Mr Nani filed a notice of intending to act in person.
Subsequently both parties have been representing themselves for a substantial period of time and for that reason the court has taken that fact into consideration in the orders made and the approach to case management of this matter.
I held a case management conference after Mr Nani filed his notice to act in person on 7 September 2021, 26 October 2021, 9 November 2021, 14 June 2022, 28 June 2022, 1 August 2022 and 12 September 2023 in an effort to have the proceedings advanced as the case manager of the proceedings. The matter has not advanced in any significant way during that period.
The 7 September 2021 orders required Mr Nani to file any further affidavits in support of his claim by 21 September 2021 and any further affidavits by the defendants to be filed by 5 October 2021. The parties were then to confer about readiness for trial and file a case evaluation conference checklist. The matter was adjourned to a case evaluation conference on 26 October 2021.
On 8 September 2021 Mr Nani emailed the court and sought assistance as he found the hearing confusing. He was provided with a list of community solicitors for legal advice. No documents were filed by Mr Nani pursuant to the orders. The orders also made reference to the Consolidated Practice Directions that were relevant to the orders that had been made.
On 8 October 2021 Mr Nani wrote, in his words, by email wondering if we could 'extend the date' as he had tried to do what I had told him, without success, and he was trying to get free legal representation which was proving difficult.
On 18 October 2021 Mrs Nani filed a notice of commencing to act in person.
On 26 October 2021 the case management conference was adjourned to 9 November 2021. Mr Nani did not appear. On 9 November 2021 the case management conference was adjourned sine die.
On 14 June 2022 I made case management orders that Mr Nani was to provide my associate in writing an explanation as to his non‑attendance at the case management conference and non‑compliance with order 1 of the orders made on 7 September 2021 and requiring him to file any further affidavit in support of the claim by 21 September 2021.
That explanation was not forthcoming. Mr Nani was not present on 28 June 2022. On 28 June 2022 the matter was again adjourned sine die. Mr Nani was not present.
On 27 April 2022 Mr Nani emailed what purported to be a statement of claim in the matter. The statement of claim was not appropriate for filing in these proceedings, which were commenced by originating summons, and was not accepted for filing. In any event, it did not advance the matter.
On 1 August 2023 the case management conference was adjourned to 12 September 2023. On 12 September I ordered that as no active steps had been taken to advance the matter since 2021, the matter be referred to the Principal Registrar for consideration as to the appropriateness of the placement into the ICL.
The Acting Principal Registrar's notice of 14 September 2023 was then issued. It was sent to the parties setting out the relevant RSC, the effect of the RSC and the consequences of the matter not being removed from the ICL within the period of six months from that date.
It also set out what steps might be taken and the only documents that may be filed in relation to the matter after that notice was issued.
It was on 15 December 2023 that Mr Nani sent his email seeking for the matter to be removed from the ICL. While having been sent by email to the Associate to the Principal Registrar, there was no letter attached to that. It was merely a statutory declaration setting out the circumstances within it as to why the matter had not been advanced.
By way of summary, in that statutory declaration, it explains that the case ended up on the ICL due to 'ongoing mental issues/disability', Mr Nani's inability to meet deadlines set by the Principal Registrar, lack of 'familial support and Legal Aid/similar agencies' refusing to advise on issues which made it increasingly difficult to be able to meet deadlines and digest information in a meaningful way to be able to respond accordingly. The declaration then stated:
Moving forward, I have engageed (sic) the services of a professional psychologist to help guide me through the court issues, and their effect on my metal (sic) health, with more clarify (sic) and focus. I have also sought help with keeping on track for deadlines and lodging responses with the court in a ttimely (sic) manner. I am confident, now that I have been able to secure multiple levels of support myself, that I can meet any requirements set by the Principle (sic) Registrar, so this case does not end up on the Inactive Cases List in the future
After that, Mrs Nani was provided with an opportunity to provide objections which, after an extension was granted, were provided on 12 February 2024 setting out Mrs Nani's objections to the application to remove the matter from the ICL. I am satisfied that those objections were provided to Mr Nani at the time by email.
Further, on 14 February 2024, I wrote to the parties as to the requirements of the application.
There was a request by Mr Nani to have the hearing as a one‑on‑one personal discussion between himself and myself about this application which I had advised was not going to happen. In my response to that request on 27 February 2024, I made clear:
(a)firstly, that any communications with the court should be copied to Mrs Nani who is now represented by Groven Legal;
(b)secondly, that the requested private telephone call between Mr Nani and myself, referring to my asking him questions of the hearing as to why the case should be removed from the ICL, would not happen, and that the proceedings were not an ex‑parte application. It was necessary that justice was to be done between the parties and for justice to be seen to be done. It was not in the interests of justice to deprive Mrs Nani of the opportunity to be heard or to be able to respond to the application and any material relied upon in support of the application;
(c)on that basis, any application that was made, supported by any documents or submissions were to be provided to the defendants, and it was not to be a mere informal or private discussion.
Further, on 14 February 2024, I had provided to both Mr Nani and Mrs Nani:
(a)a copy of the RSC relating to removing a case from the ICL; and
(b)a copy of the case law providing commentary upon those requirements from Civil Procedure Western Australia, so that Mr Nani and Mrs Nani had the ability to fully understand the issues that were to be considered by the Court under the requirements, given that it is no mere mechanical application and required evidence in support.
Apart from the email of 15 December 2023 and the statutory declaration provided with it, no other documents were filed by Mr Nani in support of his application. No affidavit filed, no submissions had been filed and no further documents provided since Mr Nani's request to have the matter removed from the ICL.
In summary, Mrs Nani's position is that the matter was placed on the ICL due to Mr Nani's failure to comply with case management orders to progress the action and his non‑attendance at the various court hearings.
Mrs Nani further says that the history of Mr Nani's conduct in the proceedings is such that the proceedings will not be quickly advanced and Mr Nani does not offer any timetable, steps to be taken to progress the matter, or how the matter will be ready for trial, and the history of tardiness and sluggishness on the side of Mr Nani is a strong indication of his bad intentions. It is therefore not sufficient to assure that the case will be progressed in any substantive way.
At the hearing today, I have been hearing at length from Mr Nani in relation to his application with responses to the many questions that I have put to him about his application and how he might seek to support his application. It is his position that he has no life, he can barely take care of himself, and he can't understand the process or the papers required by the court.
He has indicated to me orally that he has some form of diagnosis as a child of attention deficit disorder, and that within the last year, he has been diagnosed by his general practitioner with post‑traumatic stress disorder and bipolar disorder, albeit that he has no medical report that supports those diagnoses, either originally or more recently.
His affidavit in support of this claim that was filed by his solicitors on 26 February 2021 makes no reference to any of those diagnoses. I have only his statement to me today that those are his conditions that impact his ability and what he refers to in the statutory declaration.
Within his statutory declaration, there is reference to having, moving forward, professional psychologist assistance to help guide him through the court issues and their effect on his mental health with more clarity and focus. It should be noted that it is not the role of a psychologist to guide Mr Nani through a court process, rather to assist him with any psychological matters or mental health issues from which he may suffer or have been diagnosed.
It is not the role of a layperson to do so as well and there is no person currently who is a legal practitioner assisting Mr Nani with respect to these proceedings.
It is apparent that Mr Nani has no understanding of what steps need to be taken to move the matter forward. He has indicated that he expected that if his application today were successful, that I would write to the parties to tell them what steps were required to be taken to advance the matter. That is not my role in respect of these proceedings, and notwithstanding that I made orders in 2021 which would have had the effect of having this matter readied for trial, had they been complied with, those orders of 7 September 2021 for the filing of further affidavits and conferral as to readiness of the matter for trial have not been complied with and there is no indication that any further affidavits or matters of that type will be attended to, even if I were to grant leave to have this matter removed from the ICL.
I currently have no indication before me of any steps that will be taken by Mr Nani to advance the matter. I currently have no schedule of proposed timeframe within which Mr Nani will take any steps to have this matter brought to a hearing. It is clear from what he has said today, on his own admission, that he simply does not understand the process and the steps that would be required.
I understand it is difficult for parties acting in person to understand what can be complex processes of the court. At the same time I have to balance the position with Mr Nani and Mrs Nani in relation to this matter and do justice as between the parties in relation to the consideration of these issues.
Before I can grant leave in respect of the removal of the matter from the ICL, I must be satisfied of one of two things.
Firstly, that the proceedings will be conducted in a timely way, or for some other good reason. Based on what I have stated so far, I am not satisfied that the proceedings will be conducted in a timely way. On that basis, I am not able to exercise my discretion to remove the matter from the ICL.
Looking to whether there is other good reason for the matter to be removed from the ICL and to exercise my discretion, I am understanding of the position that Mr Nani finds himself in, both as a litigant in person and somebody with difficulties managing proceedings in the context of his mental health issues he has raised. Those are issues which, for the purposes of this application, I have taken into consideration but I make the following comments:
(a)Firstly, I have no evidence properly before me of any of these diagnoses. If such diagnoses have been made, then properly, there should have been before the court in support of the application a medical report or some form of documentation on evidence to show that these are conditions that have been previously diagnosed. There is no GP's report. There is no specialist report. And none of them are the subject of the affidavits filed in support of this claim originally.
(b)If they are so serious as to prevent Mr Nani from having the ability to represent himself because of a lack of mental capacity, then it would have been appropriate for the proceedings to have been brought through a next friend. No such application has previously been made to have a next friend appointed to bring the claim on his behalf. It is notable that he was represented by solicitors who have considered that he has had the ability to instruct them in relation to the matter previously while they were on the record. Mr Nani has sought to represent himself since that time and intends, if leave is granted, to continue to represent himself.
(c)I appreciate further that he has difficulty in finding a solicitor or any person to provide him with legal advice or a legal community centre to understand more fully what steps can be taken in relation to these proceedings. I can't change that position but there are firms within Western Australia who may offer pro bono legal services to a party who lacks the ability to understand the processes and in appropriate cases, may be willing to act if a person is unable to properly act for themselves.

In all of the circumstances, and taking into consideration those factors, I am not satisfied that there is other good reason for the matter to be removed from the ICL.
On that basis, I am unable to exercise my discretion to remove the matter from the ICL.
There is ongoing prejudice to Mrs Nani in these proceedings that the matter has not been advanced for two years and the home in which she lives with her young child is at risk through the claim in these proceedings in which Mr Nani was seeking a third of its value and now, Mr Nani suggests would be over one‑half of the value of that home.
That is not to say that I am deciding the merits of Mr Nani's claim. That is not for me to decide.
It is for me to decide whether or not this matter should be now removed from the ICL in circumstances where it has been on that list since 14 September 2023 with no substantive action taken for over two years prior to that time.
In all the circumstances, the application for the matter to be removed from the ICL should be dismissed. The effect of that order is that the order would be deemed to be dismissed upon the expiry of six months from the time of that letter on 14 September 2023, so that it will expire on 13 March 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Associate to Registrar Fatharly
15 MARCH 2024