Re Lazarides

[2023] VSC 242

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT DIARY

S ECI 2023 00150

IN THE MATTER of a proposed proceeding
BETWEEN
BILL LAZARIDES	Proposed Plaintiff
-and-
GEORGE LAZARIDES, THOMAS LAZARIDES AND RENA GLENNON	Proposed Defendants

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 May 2023
CASE MAY BE CITED AS:	Re Lazarides
MEDIUM NEUTRAL CITATION:	[2023] VSC 242

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PRACTICE AND PROCEDURE – Self-represented litigant – Refusal by Prothonotary to seal documents as originating process – Plaintiff seeking direction to Prothonotary to accept documents – Documents irregular in form and substance – Application refused – No direction given to the Prothonotary to accept the proposed originating process – Supreme Court (General Civil Procedure) Rules 2015, r 27.06.

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HER HONOUR:

1. Bill and George Lazarides are brothers; Rena Glennon is their sister.[1] Bill wants to commence a proceeding by Writ and Statement of Claim that ventilates a number of disputes within the Lazarides family.  George and George’s son Thomas are named as defendants. Rena is named as a ‘stakeholder’.

   [1]I will use first names for clarity and ease of reading meaning no disrespect to the parties.  I will refer to George’s son Thomas as Thomas Jnr to distinguish him from Bill, George and Rena’s father who is also Thomas and whom I will refer to as Thomas Snr.

1. On 17 January 2023, Bill attended the Registry Service counter at this Court and sought to file his claim. The Prothonotary refused to accept the originating process for filing without direction from the Court pursuant to r 27.06(1) of Supreme Court (General Civil Procedure) Rules2015 (the Rules), as the document was irregular. 

1. The originating document was a handwritten Writ and Statement of Claim dated 24 February 2022 comprising 27 numbered items over 18 pages.  The originating process was accompanied by a certification under the Civil Procedure Act 2010 also dated 24 February 2022 and an affidavit sworn by Bill on 17 January 2023. Bill also provided a number of Victorian Civil and Administrative Tribunal (VCAT) orders in Guardianship List matters.

1. The letter setting out the reasons for refusing to accept the document for filing said:

Attempting to file a Writ seeking that the Supreme Court make an order which effectively overturns an order of the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) without attempting to quash the original order is inherently irregular. If successful, there would be two competing orders and no clear legal path to reconcile the differences. The only way to seek an order overturning a standing order of VCAT is to appeal that decision pursuant to s 148 of the VCAT Act or to commence a judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.

…

Further, nothing in the orders of VCAT provided by Mr Bill Lazarides indicates that he is unable to make a fresh application to VCAT for appointment as a power of attorney or to seek amendment to the current terms of the existing powers.

1. Bill now seeks direction from the Court under r 27.06(3) of the Rules that the Prothonotary seal or accept the document for filing in its present form.

1. For the reasons that follow I will not direct the Prothonotary to accept the document for filing.

Family Background

1. Bill, George and Rena’s parents, are Thomas Snr and Despina Lazarides. They separated in approximately 2003. Despina continued to live with Bill in the family home at Cleve Rd, and Thomas Snr relocated elsewhere.

1. According to the VCAT orders that were provided to registry, both Thomas Snr and Despina gave an enduring power of attorney for financial matters to George and to Thomas Jnr as alternate – Thomas Snr on 12 August 2013 and Despina on 14 February 2014.

1. In September 2019 Rena applied to VCAT to vary the power of attorney in relation to Thomas Snr and Despina. VCAT dismissed the applications. In April 2020 Bill sought leave for a re-hearing in both matters. Leave was refused to re-hear the applications on the ground that Bill was not a party to the applications made by Rena.

1. Despina died on 28 August 2021. Shortly after her death Thomas Snr was moved to a nursing home where he continues to reside. There is a possible diagnosis of Alzheimer’s disease and apparently some assessment arranged in a VCAT proceeding was inconclusive as to the diagnosis. Bill disputes the need for Thomas Snr to live in a nursing home.

1. At the heart of the dispute over the enduring powers of attorney is a dispute over whether George and Thomas Jnr have acted in accordance with their obligations under those powers of attorney.

1. The first and principal relief sought is that George and Thomas Jnr both be removed as attorney for financial matters for Thomas Snr. The reasons for the removal allege a raft of reasons why each is unsuitable to perform the role, including allegations of financial impropriety regarding Thomas Snr’s assets. The power of attorney provided by Despina lapsed on her death and so no question of removal remains.

1. The relief is described as ‘strip George Lazarides of power of attorney as he is unsuitable…’ and similarly ‘Thomas Lazarides [his son] be stripped of deputy power of attorney’. These orders as sought would be in direct conflict with the orders made by VCAT in respect of Thomas Snr. Appeals to this Court are confined to questions of law in accordance with s 148 of the VCAT Act 1998. The effect of the relief Bill seeks is to relitigate the question of who should hold a power of attorney on its merit. As the Prothonotary’s letter makes clear, there is no barrier to seeking a variation to an existing power of attorney, and such application is made to VCAT. If capacity is not in issue, there is no barrier to a person revoking an existing power of attorney and replacing it. Allegations of elder abuse and the financial management of the affairs through a grant of power of attorney are serious allegations giving rise to a dispute that ought be ventilated in the proper forum.

1. Bill understood this position. His statement of claim includes the following statement:

I was urged by VCAT to apply for power of attorney, but the matters in the Supreme Court are unresolved.

1. There are no identified matters that remain unresolved in this Court. Prior to 24 February 2022, the date on the Writ, Bill had initiated four proceedings in the Trial Division. Three judicial review proceedings arose out of unsuccessful applications for personal safety intervention orders in the Magistrates’ Court against various persons, including some associated with Moreland City Council. Cavanough J dismissed those proceedings in accordance with reasons published on 17 October 2019.[2] Six plaintiffs associated with Moreland City Council brought a further proceeding in which Bill was the second respondent, seeking judicial review of a costs order on an adjournment application made by the Magistrates’ Court in favour of Bill as a self-represented litigant. Gorton J set aside the costs order in accordance with reasons published 9 August 2021.[3]

   [2]See Lazarides v Di Lorenzo & Ors [2019] VSC 693.

   [3]Di Lorenzo v The Magistrates Court of Victoria & Anor [2021] VSC 475.

1. There is no basis for this Court to consider orders regarding an ongoing power of attorney. The proceeding seeking removal of the power of attorney held by the respondents is irregular. The Prothonotary was correct to refuse to accept it for filing.

1. However the Writ and Statement of Claim seeks additional relief and it is desirable to review whether any of the relief sought could, if properly and coherently articulated, be sought in this Court.

1. Bill also seeks to agitate the following matters:

(a)   that the circumstances in which Thomas Snr was placed in a nursing home in August 2021 be investigated and he be released from there where he continues to reside;

(b)  that Thomas Snr was not of sound mind when executing his will;

(c)   suspicion that Despina’s will was fraudulent which impacted upon the VCAT proceedings in 2019 and the application for a rehearing in 2020;

(d)  that George and Thomas Jnr have harassed him while he was a protected person over a long period of time, accompanied by allegations of domestic violence and the deaths of two Maltese terriers belonging to Bill in 2013;

(e)   that George is and has been transferring assets following Judge Tran’s findings adverse to George and seeking unspecified relief in respect of that behaviour. There is no information as to the proceeding before Judge Tran;

(f)    that a property in Roxburgh Park be transferred to Rena because Rena assisted Thomas Snr with VCAT matters in 2010 which ‘saved’ the property. The property does not belong to any of the parties in the proposed proceeding, nor does it appear to be owned by Thomas Snr. 

(g)  theft of various belongings from the property in which Bill lived with Despina after her divorce from Thomas Snr; and

(h)  reinstatement of personal safety intervention orders and damages for breaches of those orders.

1. None of these matters are set out in a way that permits identification of the cause of action relied on so in their present form they are clearly irregular. However, most of the claims could not be regularised in the present proposed proceeding.

1. Questions surrounding Thomas Snr’s capacity to make decisions are, like questions regarding power of attorney, matters to be ventilated before VCAT in the Guardianship List. Questions of capacity regarding the will are premature. Any will has no effect prior to death. Issues regarding the validity of Despina’s will would be ventilated in probate proceedings regarding her estate. Nor does this Court have jurisdiction to transfer real property between persons on subjective notions of ‘fairness’, still less so when neither the registered proprietor nor the intended beneficiary is a party to the action.

1. If there are questions about transfer of assets either in breach of a court order or to avoid payments of a costs order, those are matters of enforcement by the court who that has made the relevant order.  No orders of this Court are said to be relevant.

1. The remaining issues appear related to what Bill describes conduct by George and others in breach of orders that give Bill the status of a protected person.  There is no material to show the basis upon which Bill is a protected person, nor what orders George or others are said to be in breach of by the various conduct alleged. There is nothing in the Statement of Claim to suggest that George or other members of the Lazarides family are subject to any PSIO or other restraining orders for the protection of Bill.

1. In my view the entirety of the claims as presently articulated is irregular. I will not direct the Prothonotary to accept the Writ and Statement of Claim for filing.