Re Rules of the Supreme Court 1971 (WA)
[2019] WASC 243
•5 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE PRAZMO [2019] WASC 243
CORAM: ACTING JUSTICE STRK
HEARD: 26 JUNE 2019
DELIVERED : 5 JULY 2019
FILE NO/S: CIV 1950 of 2019
EX PARTE
KRZYSZTOF PRAZMO
Plaintiff
Catchwords:
Practice and procedure - Ex parte application for leave to file and issue a writ of summons pursuant to the Rules of the Supreme Court 1971 (WA) O 67 r 5 - Whether leave should be granted to file and issue a writ indorsed with statement of claim by which the applicant appears to seek a decree pronouncing against the validity of the will of a deceased together with an order under the Family Provision Act 1972 (WA) s 6(1)
Legislation:
Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application for leave granted in part
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
Solicitors:
| Plaintiff | : | In Person |
Case(s) referred to in decision(s):
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Clayton v Aust (1993) 9 WAR 364
Daunt v Daunt [2013] VSC 706
Fodor v Simudvarac [2014] VSC 227
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Ives [2019] WASCA 86
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Mataska v Browne [2013] VSC 62
Middleton v The State Western Australia (1992) 8 WAR 256
Paton v Julie Marie Lloyd as executrix of the estate of James Laurence Paton [2018] WASC 273
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Re City of Stirling; Ex Parte Tallot [2012] WASC 33
Re Denis (deceased) [1981] 2 All ER 140
Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
ACTING JUSTICE STRK:
On 3 May 2019, Mr Prazmo attempted to file a writ of summons. A registrar directed that the writ not be accepted for filing without leave of a judge having first been obtained under the Rules of the Supreme Court 1971 (WA) (RSC) O 67 r 5.
The RSC O 67 r 5(1) relevantly provides that if any process which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such process without the leave of a judge first had and obtained by the party seeking to file or issue it.
On 30 May 2019, Mr Prazmo filed an originating motion. The motion states that Mr Prazmo seeks leave to file an application 'contesting the will of Sarah Lee Ameling'.
The originating motion was listed for hearing on 26 June 2019. At the hearing, Mr Prazmo confirmed that by the originating motion, he was seeking leave to file and serve a writ in the form presented for filing on 3 May 2019, by which he seeks to institute proceedings in this court against Simon Elwyn Creek and Murray Noel Thornhill.
While the originating motion names Mr Creek and Mr Thornhill as defendants, the RSC O 67 r 5(3) and (4) provide for an ex parte application for leave to be made to a judge in chambers. Mr Creek and Mr Thornhill were therefore not heard in relation to the application for leave.
At the hearing of the application, Mr Prazmo made oral submissions. No written submissions were filed. Mr Prazmo sought to rely upon his affidavit sworn on 30 May 2019, filed in support of the originating motion.
Factual background
A review of the court record for probate action PRO 6074 of 2018 reveals that on 5 November 2018, probate of the will of Sarah Lee Ameling (Deceased), late of 4 Turner Street, Highgate, dated 13 April 2018 was granted to Mr Thornhill, one of the executors appointed under the will. Leave was reserved to the other executor appointed under the will, Mr Creek, to come in and prove.
A copy of the Deceased's death certificate on probate action PRO 6074 of 2018 reveals that the Deceased died on 4 September 2018. A child, Frits Willem, born on 16 April 2007, predeceased the Deceased.
Mr Prazmo deposes to having met the Deceased in 2005; to having commenced an intimate relationship with her; and to having fathered Frits Willem. He also deposes to the various steps he has taken over time to have the circumstances of Frits Willem's death investigated.
The proposed writ of summons is indorsed with a statement of claim. By par 1 of the statement of claim, Mr Prazmo states that he is the 'ex‑de facto partner to the defendant'. (The Deceased is described as the defendant throughout the pleading.) At the hearing of the application, Mr Prazmo confirmed that he was not married to, nor living as the de facto partner of the Deceased immediately before her death.[1]
[1] ts 8 (26 June 2019).
Mr Prazmo deposes that in 2006, the Deceased had asked him if he wanted to become the Deceased's heir. However, Mr Prazmo is not a beneficiary under the Deceased's will dated 13 April 2018.
Mr Prazmo's claim
Under the heading 'Parties', the statement of claim describes the relationship that had existed as between Mr Prazmo (as plaintiff); the Deceased; and Frits Willem. As noted above, Mr Prazmo pleads to having been the 'ex‑de facto partner' to the Deceased.
Under the heading 'Defendant's vulnerability', some of the Deceased's medical history is summarised.
Under the heading 'Lack of knowledge and approval', the circumstances in which a headstone for Frits Willem was placed is discussed. Mr Prazmo also pleads as follows:
3.In about 2016 the defendant asked the plaintiff if the plaintiff would like to be the heir to the defendant estate.
4.After the defendants death the plaintiff learned from the probate office and the will that I was not included in the will.
5.The defendant was physically enfeebled, suffered reduced mobility and was unable to walk or more without assistance.
6.The defendant suffered from severe cognitive impairment.
Under the heading 'Undue influence', Mr Prazmo pleads as follows:
1.The defendant due to unconscious conduct revoked all previous wills and codicils.
2.On the 13th of April 2018 the defendant gave the residue of her estate to Joan Holman and Diane Dowdell.
Under the heading 'Validity of the will', Mr Prazmo pleads as follows:
1.The validity of the will, will be challenged on the particular grounds including:
2.Lack of mental capacity, the defendant was of unsound mind at the time the instructions were provided for the preparation of the will.
3.Undue influence placed on the deceased in making the will.
4.Fraud, forgery and undue influence matter involves establishing that the testator was in a vulnerable position was manipulated to leave her property in a particular way.
5.Further particulars will be provided following discovery inspection and administering of interrogatories.
Mr Prazmo describes the relief he seeks from the court by the proposed proceedings in the following terms:
AND THE PLAINIFF CLAIMS
(i)A declaration of the transfer was produced by undue influence on the part of the defendant over the plaintiff.
(ii)Further or in the alternative, a declaration that the transfer, by reason of the actions of the defendant, was unconscionable.
(iii)In order pursuant to FAMILY PROVISION ACT 1971 OF WA the transfer of land 1983 (WA) as amended, directing the register of titles to cancel the entry in the register giving effect to the transfer and thereby restore the plaintiff as being the sole registered proprietor of the property.
(iv)The taking of accounts between the plaintiff and the defendant.
(v)Further or in the alternative, equitable compensation.
(vi)Costs.
(vii)Such other orders as this honourable Court thinks fit.
Legal principles
Leave to file or issue the proposed proceeding
The RSC O 67 r 5 provides as follows:
(1)If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(2)In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
The rule reinforces this court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources and to avoid the loss that would otherwise be caused to those who are forced to defend actions which lack any substance.[2]
[2] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 [3].
The RSC O 67 r 5(1) does not set out any criteria to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge should only refuse leave to file or issue the proposed claim if satisfied that the writ would be an abuse of process, or a frivolous or vexatious proceeding.[3]
[3] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [20].
What amounts to an abuse of the court's process is insusceptible to a formulation comprising closed categories.[4] Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,[5] or are plainly unsustainable.[6]
[4] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].
[5] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33.
[6] Perpetual Trustees Victoria Ltd v Allen [23].
The remarks of Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates are also of assistance. At [31], his Honour stated: [7]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)
[7] Gates [31] was referred to with approval in Ives [2019] WASCA 86 [50].
I am cognisant of the fact that the exercise of a power which denies a potential plaintiff the opportunity to have their matter heard is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be astute not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[8]
[8] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264.
Disposition
As to the cause or causes of action sought to be advanced by Mr Prazmo, the submission made by Mr Prazmo made clear that he seeks to challenge the will of the Deceased. Mr Prazmo also appears to seek distribution of the whole of the Deceased's estate in his favour.
By the proposed writ, it may be discerned that Mr Prazmo seeks:
1.a decree pronouncing against the validity of the will of the Deceased; and
2.to have this court grant him relief pursuant to the Family Provision Act 1972 (WA).
I accept that Mr Prazmo genuinely believes that he has a real claim. I also accept that he has no improper motive for seeking to invoke the court's jurisdiction. However, this does not answer whether Mr Prazmo's proposed writ would be an abuse of the process of the court or a frivolous or vexatious proceeding.[9]
Probate action
[9] Gates [24].
The RSC O 73 applies to probate causes and matters, and by RSC O 73 r 1(2), a 'probate action' includes an action for a decree pronouncing against the validity of an alleged will.
A probate action is to be begun by writ.[10] To the extent that, by the writ, Mr Prazmo seeks to commence an action for a decree pronouncing against the validity of an alleged will, the action is in the correct form.
[10] RSC O 73 r 2(1).
There are however many problems with the document. While I do not intend to list all of the problems in these reasons, they include the reference to the Deceased as the defendant throughout the pleading, and the failure to abide by the formal requirements of a pleading.[11] For example, the paragraphs are not numbered consecutively. Further (and more significantly), the statement of claim contains a number of allegations which are scandalous and do not appear to be relevant to any cause of action sought to be pleaded.
[11] As set out in RSC O 20.
A self‑represented litigant is subject to the rules of the court in the same way as all other litigants. The RSC are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources.[12]
[12] Gates [57].
I do not go so far as to suggest how the pleading may be put into proper form. To do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.
While it is appropriate that I record that there are many problems with the form of pleading, having regard to all of the documents before me, I find that the problems are not determinative of the application for leave now pressed.
The statement of claim does make clear that Mr Prazmo seeks to challenge the validity of the will on the ground of incapacity of the Deceased and undue influence. Those contentions are set out specifically, and an attempt has been made to provide particulars of the contentions within the proposed pleading. This is in contrast to the allegations of fraud or forgery (reproduced at [16] above), for which no particulars are provided.
Mr Prazmo's standing to institute the probate action appears to rely upon an 'interest' as distinct from a right in the property of the estate of the Deceased, as a claimant under the Family Provision Act.[13] Mr Prazmo appears to otherwise have no entitlement to participate in distribution of the Deceased's estate in intestacy.[14]
[13] Paton v Julie Marie Lloyd as executrix of the estate of James Laurence Paton [2018] WASC 273 [37].
[14] Administration Act 1903 (WA), s 14, s 15.
Such interest does not vest in Mr Prazmo as an immediate right but is dependent upon a claim which may be dismissed.[15] Whether Mr Prazmo has standing to challenge the will of the Deceased appears likely to turn on whether he proceeds to make an application under the Family Provision Act s 6(1), and has standing to make such an application (which is discussed later in these reasons). However, in the circumstances of this case, it is not possible nor appropriate for the court to engage in a more detailed consideration of the question of standing when determining whether leave should be granted to Mr Prazmo pursuant to RSC O 67 r 5.
[15] Paton v Julie Marie Lloyd as executrix of the estate of James Laurence Paton [39]. See also the observations made by Smith J in Paton v Julie Marie Lloyd as executrix of the estate of James Laurence Paton [38] as to whether such an interest may confer standing, referring to Mataska v Browne [2013] VSC 62; Fodor v Simudvarac [2014] VSC 227; and the discussion in Daunt v Daunt [2013] VSC 706 [40] – [42].
Proceedings will constitute an abuse of process if they are clearly doomed to fail, or are plainly unsustainable. Mr Prazmo's action for a decree pronouncing against the validity of an alleged will on the ground of incapacity and undue influence cannot be said to be clearly doomed to fail, or plainly unsustainable. On the materials before me, the probate action does not appear to be an abuse of process, or so obviously untenable or manifestly groundless to be considered frivolous or vexatious. Nor do they appear to be vexatious due to the motive of Mr Prazmo.
Relief pressed under the Family Provision Act
Form of the proposed originating process
The proposed writ of summons reveals that Mr Prazmo appears to seek distribution of the whole of the Deceased's state in his favour. It appears that he seeks by the proceeding to have this court grant him relief pursuant to the Family Provision Act.
While a probate action is to be begun by writ,[16] an application for an order under the Family Provision Act is to be commenced by originating summons.[17]
[16] RSC O 73 r 2(1).
[17] RSC O 75 r 2(1).
The present case is not, in my view, one where the proposed writ, with appropriate amendment, could be put in a proper form so as to allow Mr Prazmo to pursue an application under the Family Provision Act.
Standing and application for leave
The Family Provision Act is an Act to make provision for the maintenance and support of the family and dependants of deceased persons out of the assets of the deceased's estate, and incidental purposes.[18] The Family Provision Act s 6(1) provides as follows.
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of a deceased's estate effected by his will … is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
[18] Family Provision Act, long title.
Mr Prazmo's affidavit reveals, and Mr Prazmo's oral submissions reinforce, that Mr Prazmo is not a person who under the Family Provision Act s 7(1)(a) has standing to apply for provision from the Deceased's estate. That is, Mr Prazmo is not a person who was married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person.
The only other potential basis on which Mr Prazmo might have standing to make an application under the Family Provision Act s 6(1) is under s 7(1)(b). That is, if Mr Prazmo is a person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased, whether pursuant to an order of any court, or to an agreement or otherwise.
Any application now pressed by Mr Prazmo under the Family Provision Act s 6(1) will be out of time.[19] If following delivery of these reasons Mr Prazmo seeks to pursue an order under the Family Provision Act s 6(1), it will first be necessary for him to secure leave to bring a substantive application out of time. When considering whether the court is satisfied that the justice of the case requires that Mr Prazmo be given leave to file out of time, a relevant question for consideration will be whether Mr Prazmo has an arguable case on the merits,[20] which may in turn require consideration to be given to the question of standing.
[19] Family Provision Act s 7(2).
[20] Clayton v Aust (1993) 9 WAR 364, 366 – 370; Re Denis (deceased) [1981] 2 All ER 140, 145.
Conclusion and order
For these reasons, Mr Prazmo's application is allowed in part. The order of the court will be that the application by ex parte originating motion dated 30 May 2019 for leave to file and issue the proposed writ of summons presented for filing on 3 May 2019 is allowed, but such leave does not extend to allowing the applicant, by the writ of summons, to pursue an application under the Family Provision Act s 6(1), and subject to the striking through of the reference to the Family Provision Act (WA) in the relief claimed.
For completeness, I note that nothing in these reasons precludes the defendants to the probate action from making an application in that action concerning the many problems with the statement of claim; or from seeking to be heard at an early stage on the question of standing in the probate action or in any application made pursuant to the Family Provision Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to the Honourable Acting Justice Strk
5 JULY 2019
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