Wickenden v Smith

[2021] QCA 111

[2021] QCA 111

COURT OF APPEAL

FRASER JA
BOND JA
WILSON J

Appeal No 293 of 2021
SC No 11772 of 2020

STEVEN CHARLES WICKENDEN  Applicant/Appellant

v

BEN SMITH  Respondent

BRISBANE

WEDNESDAY, 19 MAY 2021

JUDGMENT

FRASER JA:  Marilyn England, who died in January 2020, left a Will dated 7 March 2014.  The Will appointed as executors the appellant, who is her son, and the respondent, who is her grandson and the appellant’s nephew.  A dispute arose between the appellant and the respondent after they had engaged Nicholsons Solicitors to act in the administration of the deceased’s estate.  The appellant refused to speak to the respondent after 22 February 2020.

The appellant filed an originating application seeking various orders against the respondent and Nicholsons Solicitors.  On 13 November 2020, Crow J dismissed the application against Nicholsons Solicitors.  The application was otherwise adjourned until 7 December 2020.

On 3 December 2020 the respondent applied for various orders.  On 7 December 2020 Crow J made 14 orders.  Only four of those orders appear to be in issue in this appeal.

(a)Order 1: Letters of Administration with the Will of the deceased dated 7 March 2014, issue to Jarrad Andrew Mobbs.  Mr Mobbs is an independent solicitor with relevant expertise, who had duly consented to his appointment.  The limited powers conferred upon him by other orders include taking possession of and preserving the deceased’s estate pending the action between the appellant and the respondent.

(b)Order 10: Any beneficiary considering making an application pursuant to s 18 of the Succession Act in relation to an unsigned document dated 1 May 2019 is to file and serve any application on the Administrator and on the beneficiaries under the Will dated 7 March 2014 and the unsigned document, failing which, the administrator will be entitled to apply for a grant of letters of administration with a copy of the Will annexed in common form.

(c)Orders 13 and 14 are costs orders.

A notice of appeal against the decision of 7 December 2020 was filed by the appellant on 7 January 2021, two days after the expiry of the 28-day time limit in Uniform Civil Procedure Rules, rule 748, for commencing an appeal. The appellant contends that his application was not out of time. The appellant’s affidavit of 19 March 2021 exhibits a poor-quality image of an unidentified express post parcel and a screenshot of Australia Post records tracking a parcel, which was delivered on 30 December 2020 to an unidentified post office box in Brisbane City. The evidence does not justify a finding that the notice of appeal was delivered to a relevant address at that date. More importantly, Uniform Civil Procedure Rules, r 969 deals with filing documents by post. That rule provides that the party does so at their own risk (r 969(9)) and the document is taken to be filed when the registrar records the date of filing on the document and stamps the seal of the Court on it (r 969(5)).

However, the appellant is not legally represented, his delay in appealing is short, and the respondent does not contend that he has been prejudiced by the delay.  For these reasons, an extension of time should be granted if the appeal is reasonably arguable.

The notice of appeal occupies 21 pages, but it does not articulate any coherent ground of appeal.  A 24 page document received at the registry on 10 February 2021 was apparently intended to serve as the appellant’s outline of argument.  It substantially repeats the content of the notice of appeal and suffers from the same kind of defects.

A document lodged in the registry on 17 May 2021 is headed: “Steve Wickenden 17 05 2021 my allegations and assertions Submission – and offer of settlement.”  In this document, the appellant makes serious allegations of wrongdoing in general terms.  He seeks $500,000 from the respondent, $2,500,000 from Nicholsons Solicitors and $100,000 from Mr Mobbs, and he states:

“Upon which I will withdraw all charges, refrain (sic) from speaking, making submission or publishing material or the documentary “Ransom Attack” or other via public media, social media including but not limited to YouTube.”

The document is not in the form of an outline of argument, it does not advance any relevant submission, and it was lodged without the leave of the Court.  For these reasons, it should not be taken into account.

Despite the substantial deficiencies in the appellant’s notice of appeal, it is apparent that the appellant wishes to challenge orders 1, 10, 13, and 14 made by Crow J on 7 December 2020.

The appellant also seeks some orders that were not made by Crow J. The notice of appeal includes a heading, “Seeking an order for damages”, and then there is a reference to s 52 of the Succession Act 1981. That section empowers the court in certain circumstances to make an order for damages if the personal representative neglects to perform his or her duties described in that Act. No such order was sought in the appellant’s originating application. The notice of appeal does not specify the person against whom any such order might be made, any grounds for making such an order, or the proposed content of any such order. It is not appropriate in this appeal to make any order under s 52.

Under another heading, “Seeking orders allegedly ignored”, the notice of appeal includes three paragraphs.

(a)One paragraph seems intended to apply for an order that Nicholsons Solicitors “surrender” materials said to belong to the deceased and the deceased’s estate.  No such application should be considered in this appeal in circumstances in which there is no appeal against the dismissal of the appellant’s application against Nicholsons Solicitors, and it is not a party to this appeal.

(b)Another paragraph states “The applicant or the Public [Trustee] or my late Mother’s solicitor James White to file and serve any application seeking a grant of probate in respect of the testamentary instrument(s) that the applicant contends to be testamentary instrument(s) of” [the deceased].  The application for an order against the public trustee or Mr White should not be considered in this appeal because neither of them was a party to the proceeding in the Trial Division, and neither of them is a party to this appeal.  Nor is there any apparent ground for an order requiring the respondent (referred to as the applicant in the notice of appeal) to apply for probate of the Will or any other document.

(c)The remaining paragraph states that “The applicant” (the respondent to his appeal) “surrender all materials including my late mother’s testamentary document taken by [the respondent] on the day of my late mother’s death from mum’s home, dated 1 May 2019, signed by her hand, “my Will from computer to a USB.”  This document was a focus of the appellant’s arguments.  I will discuss the topic in more detail.

It appears to be uncontroversial that the document, or a copy of the document dated 1 May 2019 was found in a file on the deceased’s computer, and printed copies were found in the deceased’s house.  Copies of the document were exhibited to affidavits filed by the appellant and by the respondent.  One copy contained handwriting in one corner.  The appellant states it is the deceased’s handwriting.  The respondent states he does not know whether it is.  In any case, the handwriting is not in the form required for execution of a will.

The document is headed “TO WHOM IT MAY CONCERN”.  It has a subheading, “SHOULD ANYTHING HAPPEN TO ME HERE ARE MY INSTRUCTIONS.”  It states “my WILL has been lodged with James White”, whose address and telephone number are then given.  Upon the affidavit evidence, that is a reference to the Will dated 7 March 2014.  There follow what may be regarded as lay descriptions of bequests in the deceased’s Will, with two additions.  The first addition is a statement that if the value of the house left to the appellant exceeds the value of what is left to the respondent, “I want a cash adjustment to be made so the share of my property is equal for both parties”.  The second addition is at the end of the document:  “From Steve Wickenden, in the event anything happens, this is my wish:

“This is my Will I leave all my [described property] to my son [described name] for his sole benefit and discretion.”

There follows a description of bank accounts and other details.

If the document was intended to have testamentary effect, it could not have such effect unless the Court accepted it as an informal will under s 18 of the Succession Act.  It appears from the affidavits that the appellant wanted this document to be approved as a will or as a codicil to the deceased’s will.  There was no apparent obstacle to the appellant seeking to prove the document as such a will or codicil.  As a beneficiary, he had standing to do so.  He had a copy of the document.  There is no reason to think that any copy might more readily have been proved than any other copy.  In these circumstances, the appellant did not need an order requiring the respondent to surrender to the appellant any copy of the document.  Crow J did not err by not making any such order.

In relation to Order 1, the notice of appeal refers to “Alleged criminal indictments Compounding an indictable offence but not limited to” and states that the appellant “asked the court ordered administrator to send me a certified copy and to file the document into probate, that request was ignored.” The following text quotes an email exchange between Mr Mobbs and the appellant on 23 December 2020. According to the notice of appeal, Mr Mobbs referred to an earlier email from the appellant of 18 December 2020 and stated he did not have “...an original document dated 1 May 2019 in our possession.”, and the appellant responded, “I acknowledge receipt of alleged confession of a failure to fulfil a moral and legal obligation as to the document three.” The appellant’s email then referred to “alleged theft and fraudulent concealment” and s 61 of the Commonwealth Constitution.

There is no basis in the evidence for the appellant’s allegations against Mr Mobbs.  Order 1 was appropriate in light of the dispute between the executors, the appellant’s apparent wish to prove the document dated 1 May 2019 as a testamentary instrument, the appellant’s expressed intention to seek provision out of the estate, and the absence of any challenge to the independence and expertise of Mr Mobbs.

In relation to Order 10, the notice of appeal supplies a definition of “alleged actual and perceived bias”, but neither the notice of appeal nor the outline of argument articulates the nature of any suggested bias or otherwise explains this heading. Following pages of the notice of appeal include text under headings referring to alleged crimes and frauds, and references to various statutory provisions and miscellaneous topics. There is no evidence that the respondent or anyone else mentioned in the notice of appeal has been guilty of any of the alleged misconduct. Nor do any of the appellant’s allegations have any apparent relevance to order 10, which merely imposed a time limit for any beneficiary – including the appellant – to apply under s 18 of the Succession Act.

Order 13 orders the respondent’s costs of the application to be paid out of the estate of the deceased on the indemnity basis as agreed or assessed.  Order 14 orders the appellant’s and the respondent’s legal costs and outlays incurred with Nicholson Solicitors, of the administration of the estate of the deceased by them as executors, to be paid out of the estate on the indemnity basis.  No comprehensible ground of challenge to the costs orders is articulated in the notice of appeal or the appellant’s arguments.

There being no arguable substance in the proposed appeal, there is no point in granting the extension of time required by the appellant to pursue an appeal.  I would make the following orders:

(a)I direct that the document filed in the registry on 7 January 2021 and described as “Notice of Appeal” be treated as an application to extend time within which to appeal.

(b)Dismiss that application.

BOND JA:  I agree with Justice Fraser.

WILSON J:  I agree.

...

FRASER JA:  Costs ought to follow the event, there being no reason why they should not.  Taking into account the position under which the appellant labours that he does not have the advantage of legal representation, and bearing in mind the absence of proof of the actual costs incurred and what is reasonable in relation to the costs incurred, the Court is not inclined to order that the costs be assessed on the indemnity basis.  The order of the Court is that the appellant pay the respondent’s costs of the appeal.