Re Klement - [2013] VSC 683

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

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Klement

Details

AGLC: Re Klement [2013] VSC 683
Case: [2013] VSC 683
Decision Date: 10 December 2013

CaseChat Overview and Summary

Re Klement is a case involving an unrepresented litigant who is a beneficiary of a deceased estate. The beneficiary sought to commence proceedings against the executor or trustee of the estate. The dispute centred on the refusal by the Prothonotary to seal the documents as originating process. The beneficiary applied to the court for directions to the Prothonotary to accept the documents as originating process. The court was required to determine whether it was appropriate to direct the Prothonotary to seal the documents.

The court examined the Supreme Court (General Civil Procedure) Rules 2005, specifically rule 27.06, which pertains to the sealing of originating process by the Prothonotary. The court noted that the rules are intended to ensure that the court is not inundated with frivolous claims. The court found that the documents submitted by the beneficiary were unacceptable as they did not comply with the requirements of the rules. The court held that it was not appropriate to direct the Prothonotary to seal the documents as they were not in the proper form.

The court held that the Prothonotary had correctly refused to seal the documents as originating process. The court noted that the rules require that documents be in a certain form, and that the Prothonotary is not required to accept documents that do not comply with the rules. The court held that it was not appropriate to direct the Prothonotary to accept the documents as originating process, as they were not in the proper form. The court dismissed the application for directions to the Prothonotary.

The court did not make any orders in relation to the application. The beneficiary was advised that they needed to comply with the rules before any further action could be taken. The court held that it was not appropriate to direct the Prothonotary to accept the documents as originating process, as they were not in the proper form. The court noted that the rules are intended to ensure that the court is not inundated with frivolous claims, and that it is important that all parties comply with the rules.

Orders