Re Klement
[2013] VSC 683
•10 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
IN THE MATTER of three applications by Jiri Klement for directions under Rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2005
---
JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Not applicable. Matters referred to Practice Court on 3 December 2013 and determined in chambers | |
DATE OF JUDGMENT: | 10 December 2013 | |
CASE MAY BE CITED AS: | Re Klement | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 683 | |
---
PRACTICE AND PROCEDURE – Unrepresented litigant – Beneficiary of deceased estate – Proposed proceedings against executor/trustee - Refusal by Prothonotary to seal documents as originating process – Beneficiary seeking directions to Prothonotary to accept documents – Documents unacceptable – Inappropriate to direct Prothonotary to seal documents – Supreme Court (General Civil Procedure) Rules 2005 rule 27.06.
---
APPEARANCES: | Counsel | Solicitors |
| For the Proposed Plaintiff | Not applicable | Not applicable |
| For the Proposed Defendant | Not applicable | Not applicable |
HIS HONOUR:
Jiri Klement, who calls himself Reverend Klement and who is also known as George Klement, seeks directions from the Court, under Rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2005, to the Prothonotary to seal as originating motions each of three documents prepared by him, being documents dated “6/13”, “24/9/13” and “26/9/3” respectively.
The Prothonotary or a Deputy Prothonotary has refused to seal the documents on the basis that, in each case, if the document were to be sealed, the proceeding so commenced would be irregular or an abuse of the process of the court. It is said by or on behalf of the decision-maker that the documents are “unclear and somewhat illegible”; that Reverend Klement is a well known litigant bordering on the vexatious; and that it is unclear whether he is trying to re-agitate matters that have already been heard.
In Sheen v Burke[1], Beach J held that, by virtue of the provisions of Rule 27.06, if an originating process presented for sealing shows on its face that it is irregular, the Prothonotary is justified in refusing to seal it until such time as the defect has been remedied or until the Court has directed him to seal it.
[1][1993] 1 VR 584.
In the present case, there is no doubt that each of the documents prepared by Reverend Klement is irregular in form.
In the first place, each document is mainly handwritten. In that respect, each fails to comply with Rule 27.03(3) which requires, among other things, that the text of a document shall be printed or typewritten.
Rule 27.03(3) further provides that the text of a Court document “shall be clear, sharp, legible and permanent”. Much of the handwriting on Reverend Klement’s documents is far from being clear or sharp or legible.
Moreover, to the extent that the handwriting on the documents can be deciphered at all, the language is obscure, prolix and rambling. It is very difficult, and often impossible, to discern the nature of Reverend Klement’s multiple allegations and claims for relief. Further, the documents seem to make allegations and claims for relief against a variety of persons and institutions who are insufficiently identified in the body of the documents and who are not named at all as proposed defendants in the headings to the documents. The only person named as a proposed defendant is Peter James Randles.
Each of the documents seems to assume that the reader will have knowledge of past disputes and litigation involving Reverend Klement and Mr Randles, although there is no proper cross-referencing to previous litigation. In any event, in an effort to try to understand as far as possible the allegations and claims sought to be made now by Reverend Klement, I have obtained and read all five of the published previous judgments of this Court relating to disputes between him and Mr Randles.[2] The most recent of these was a matter in the Court of Appeal on which I sat as an Acting Justice of Appeal with Mandie JA, namely Klement v Randles[3]. In that case Reverend Klement applied by summons for an extension of time in which to file and serve a notice of appeal against an order of Lansdowne AsJ in a proceeding which Reverend Klement had earlier been permitted to commence by virtue of a substantial indulgence granted to him by the Court of Appeal with respect to the form of his then proposed originating process. For the reasons stated in my judgment, Mandie JA and I refused to grant the extension of time and dismissed the summons with costs.
[2]Klement v Randles [2009] VSC 320 (Davies J) (8 July 2009); Klement v Randles [2010] VSCA 160 (Maxwell P and Emerton AJA) (25 June 2010); Klement v Randles (No 2) [2010] VSCA 336 (Maxwell P and Emerton AJA) (17 December 2010); Re Klement [2011] VSCA 40 (Maxwell P and Buchanan JA) (4 February 2011); Klement v Randles [2012] VSCA 73 (Mandie JA and Cavanough AJA) (26 March 2012).
[3][2012] VSCA 73.
It is convenient for present purposes to reproduce here the summary of the history of the disputes between Reverend Klement and Mr Randles contained in paragraphs 3 to 12 (inclusive) of my judgment in Klement v Randles[4], to wit:
[4][2012] VSCA 73.
History of the matter
3 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.
4 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.
5 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 [2010] VSCA 160 and Klement v Randles (No 2) [2010] VSCA 336. respectively. The details I need not repeat.
6 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.
7 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.
8 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.
9 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.
10 The trial was subsequently fixed for 5 September 2011.
11 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.
12 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.
Our reasoning and conclusion were summed up in paragraph 28 of the judgment, as follows:
28. 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.
I turn now to the first proposed “Originating Motion” (dated “/6/13”). I note that, in the title of the document, Reverend Klement has inserted in handwriting the expression “Conduct of Executor/Duty of Care” just above the printed expression “Originating Motion Between Parties”. A residential address has been included on the front page, but no telephone, email or fax contact details.
Turning to the main body of the proposed “Originating Motion”, I note that it contains a section headed “Outline of case as pertains to this OM”, a further section entitled “Statement of Claims”, another section headed “Relief/Sought” and finally a further section headed “Remedy/ies sought”. Strictly speaking, the body of an originating motion should be confined to an endorsement complying with Rule 5.05 of the Supreme Court (General Civil Procedure) Rules 2005, which provides:
An originating motion shall specify the relief or remedy sought and the Act, if any, under which the claim is made, and, where it includes any question to be answered, the question shall be stated.
Conventionally, an originating motion is accompanied by an affidavit. Reverend Klement has not provided to the Court an affidavit in support of this or either of the two other proposed originating motions.
In the first two paragraphs of this first document, Reverend Klement appears to complain that he was wrongly “evicted” from the property at 105 Collier Crescent, West Brunswick the subject of his late mother’s will. To that extent, Reverend Klement would be seeking to re-agitate matters that have already been determined against him. Hence, to that extent, at least, the proposed proceeding would be an abuse of the process of the Court.
In other parts of the document, Reverend Klement complains about his post “eviction” accommodation. However, these complaints lead back in substance to the claim he has been making all along, namely that Mr Randles was wrong to form the view that Reverend Klement was unable to live independently in the West Brunswick property. Reverend Klement expresses the desire to be given by Mr Randles the wherewithal to live independently in a house he would wish to see built on vacant land he says he owns at Kalorama or money for the founding of a religious and charitable trust of the kind for which he has called many times in the past and which, he claims, could provide him with a place of residence. Reverend Klement also seeks “finance for my advancement, desirably further university qualification as required, leading to academic employ”.
In effect, Reverend Klement would be seeking relief equivalent to the relief he sought unsuccessfully in this Court in 2009 and 2010, namely a transfer from Mr Randles to himself of complete control over the capital and income of the estate, notwithstanding that, under the will, he became only a conditional life tenant of the West Brunswick property. Indeed, in this document he expressly suggests that the finance he desires can be “drawn from the capital”. To this extent, also, the proposed proceeding would be an abuse of the process of the Court.
I turn to the second document, which Reverend Klement has entitled “Additional Originating Motion Between Parties”.
I note in passing that the address stated on the title page is different from the address stated on the first proposed “originating motion”.
Reverend Klement has inserted the following on the title page of the second document:
re conduct of Executor, & Duty of Care (for the Executor and the Testatrix) (mother).
That endorsement in itself shows that Reverend Klement is still seeking to raise matters – in particular, matters relating to the making of his late mother’s will – that have already been dealt with by this Court and cannot be raised again.
At the bottom of the title page Reverend Klement has written this:
This proforma is to be followed by a typewritten document of c.50p. which is the content of the originating motion – if a proceeding is set.
This statement, without more, shows that it would be inappropriate to seal this document as originating process. By Reverend Klement’s own admission, the “content” of the proposed originating motion lies elsewhere.
Even so, this document is considerably longer than the first one. It includes three and a half pages of small handwriting. Again, it has a section entitled “Outline of Case”, a section entitled “Statement of Claims”, a section entitled “Relief/s Sought”, a section entitled “Remedy/-ies Sought, and, for good measure, a section headed “Orders Sought”.
Again, Reverend Klement seems to be asserting, in substance, that he has been wrongly deprived of control over both the capital and the income of the estate.
In addition, the document expresses a forlorn hope that orders for costs previously made by the Court of Appeal in favour of Mr Randles might somehow be undone by a judge of the Trial Division in this proposed proceeding.
The document also contains an old theme of Reverend Klement’s, namely a concern that Mr Randles and various other persons (not all identified clearly) may be thinking of applying to VCAT for guardianship and administration orders to be made in relation to him. The document asserts that this Court should “investigate my circumstances, allowing me natural justice, incl by my written and verbal submissions – I’ve diligently prepared a 120 p of materials for up to 4 further originating motions incl the present”.
Again, the document records that Reverend Klement desires “independent living”. Again, he would seek finance from the capital of the estate.
Further, old complaints about social security payments are repeated. A complaint about the actions of State Trustees in 2004-2005 is also repeated.
Claims are made that the Court should require Mr Randles to take up various complaints that Reverend Klement seems to have with providers of accommodation in which he has been staying in more recent years. However, these complaints are very difficult to understand and, it seems, they would be impossible for the Court to satisfy.
I turn to the third document (dated “26/9/3”).
No address at all for the proposed plaintiff is given this time.
The document is endorsed “duty of care incumbent on executor – ‘maintenance and advancement’ of beneficiary – accessibility of income of investment relative to costs”.
In this document, the handwritten part extends for 7 pages. It is even harder to follow than the previous two documents. However, once again, old themes are present – loss of possession of the West Brunswick property, feared or actual “institutionalisation” as a result, dissatisfaction with orders for costs made in favour of Mr Randles in past cases, rejection (by Reverend Klement) of the work of psychiatrists, and a claim for the release of capital from the estate to enable Reverend Klement to live independently.
There is also a new complaint to the effect that Mr Randles is seeking to have Reverend Klement declared bankrupt. If there is any truth in that suggestion, it is nonetheless a federal matter and not a matter that can be complained of in an originating motion in this Court.
Overall, enough has been said to show that each of the three documents is embarrassing in the legal sense and would, if filed and served, be liable to be struck out under Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005. It would be oppressive to call on Mr Randles to respond to the proposed documents or any of them.
Nor is there anything to suggest that there is any justification for Reverend Klement’s proposal to issue three (or four) originating motions covering similar territory, instead of one.
Nevertheless, the question arises whether I should take some course comparable to that taken by the Court of Appeal in its abovementioned decision of 4 February 2011.[5] On that occasion, though satisfied that there was a perfectly proper basis for the Prothonotary’s refusal to accept Reverend Klement’s documents for filing at that time, and for the refusal by Dixon J to direct the Prothonotary to accept the document, the Court of Appeal extended to Reverend Klement an unusual indulgence. He was spared all of the requirements that normally apply in relation to the identification in writing of claims to be made in this Court. On the other hand, the Court of Appeal said that Reverend Klement was to be given “the opportunity during one, and one only, court hearing to articulate the matters upon which he relies for the revocation of the will”. He failed to take advantage of the opportunities he was given in that regard. As indicated above, his claim was wholly dismissed. Undaunted, he applied for leave to appeal to the Court of Appeal. He failed again. Through all of this, Mr Randles was put to considerable trouble and expense. Some of the expense was no doubt irrecoverable.
[5]Re Klement [2011] VSCA 40.
It is true that the documents with which I am presently concerned do not in terms seek again the revocation of the will or the removal of Mr Randles as executor. However, in substance, they do appear to seek equivalent remedies. In addition, to the extent that the documents contain complaints about particular discretionary decisions of Mr Randles as trustee of the estate, the challenges are mystifyingly expressed and are not confined within proper limits.[6] Further, insofar as Reverend Klement would seek access to the capital of the estate, his claim would be hopeless. In short, there is nothing to suggest that Reverend Klement has a valid claim or even an arguable claim in law against Mr Randles.
[6]See Karger v Paul [1984] VR 161.
Accordingly, I do not think that I should exercise in Reverend Klement’s favour, in the present matters, any discretion I may have to absolve him from the normal obligations imposed by the Rules in relation to the preparation of originating process. If, contrary to present indications, a cognisable claim in law exists against Mr Randles and can be identified by Reverend Klement, Reverend Klement could seek, and would almost certainly obtain, assistance in the written articulation of such a claim from one or other of the various free legal services available in this State. He has declined to seek free legal assistance in the past. He may wish to reconsider that attitude. In any event, having regard to the relevant history overall and notwithstanding that Reverend Klement may be determined to return to the Court in one way or another time and time again, I do not consider that it would be a proper exercise of discretion to permit Reverend Klement to commence a proceeding against Mr Randles by means of any or all of the documents that have been referred to me for consideration.
For the reasons I have stated, I will make an order in each case under Rule 27.06 declining to direct the Prothonotary to accept the document for sealing.
3
5
0