Giniotis v Finlay & Anor [2001] NSWCA 169 (4 June 2001)

Last Updated: 8 June 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: GINIOTIS v. FINLAY & ANOR. [2001] NSWCA 169

FILE NUMBER(S):

40669/00

HEARING DATE(S): 04/06/2001

JUDGMENT DATE: 04/06/2001

PARTIES:

STELLA S. GINIOTIS (Appellant)

J. FINLAY (1 Respondent)

FRANK MANSOUR (2 Respondent)

JUDGMENT OF: Powell JA Stein JA Rolfe AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): CLD 11243/00

LOWER COURT JUDICIAL OFFICER: Young J

COUNSEL:

Appellant in person

Dr. D. Galbraith (Solicitor) (Respondents)

SOLICITORS:

Appellant in person

I.V. Knight, State Crown Solicitor (Respondent)

CATCHWORDS:

WILLS PROBATE AND ADMINISTRATION - Probate - Non contentious proceedings - Practice - Role of Registrar - Decisions not receivable ND

LEGISLATION CITED:

DECISION:

Appeal dismissed

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40669/00

CLD 11243/00

POWELL JA

STEIN JA

ROLFE AJA

4 JUNE 2001

GINIOTIS v. FINLAY & ANOR.

JUDGMENT

1    POWELL JA: Listed for hearing today is what purports to be an appeal as of right from an Order made by Young J, as he then was, on 31 July 2000,on which day, sitting as a judge in the Common Law Division of the Court, he dismissed the proceedings which the Appellant had brought against the two then Defendants. Although I am disposed to think that the appeal is not competent, there having been no objection to competency taken on behalf of the Respondents to the appeal, I set that matter to one side.

2    The Appellant ("Mrs Giniotis") is the widow of Alfonsas Giniotis ("the Deceased") who died on 29 March 1998, having first made and published what is said to have been his last will, which will, although not dated, appears to have been made on 30 April 1982 (as said). By that will, which, being on a Law Stationers will form, bears all the hallmarks of having been drafted by the Deceased himself, the Deceased appointed Mrs Giniotis to be the executrix of his will and, although the will presents difficulties of construction, in the events which have happened, appears to have appointed Mrs Giniotis to be his residuary beneficiary.

3    For reasons which do not appear from the materials which are before the Court, no application for Probate was made until 23 December 1999,when Mrs Giniotis filed a Summons for the grant to her of Probate and an Affidavit in support of that application.

4    Mrs Giniotis's application was defective in a number of respects. Despite the period of almost one year and nine months which had passed since the death of the Deceased, no Notice of Intended Application had been published in a Sydney daily newspaper prior to the filing of the Summons (see Wills Probate and Administration Act ("the Act") s 42(2) and the Supreme Court Rules ("the Rules") Pt 78 r 10; nor did the affidavit explain the delay in the filing of the Summons (see Rules Pt 78 r 11); further, the Affidavit was not accompanied by the original will (see s 30 of the Wills Probate and Administration Act s.30; Rules Pt 78 Rule 24 and form 97); nor was an original, but only a copy, of the Death Certificate annexed to that Affidavit (see Geddes Roland and Studdert, Wills Probate and Administration Law in New South Wales p 755 note (f))

5    Mrs Giniotis's application appears to have come in the first instance before Senior Deputy Registrar Rodden, who, on 10 January 2000 raised the following requisitions: -

"Complete/Correct and re-swear Affidavit of executor replacing annexure A with an original certificate of death of the deceased;

File the original will, duly identified;

Publish a correct notice of this application and in due course file an affidavit thereof."

6    Notwithstanding the passage of a further year and six months those requisitions have still not been complied with, although a rather corrupt form of Notice of Intended Application appears to have been published in "The Weekend Australian" newspaper of the date 8 April 2000.

7    On 22 May 2000, Mrs Giniotis filed in the Common Law Division of the Court the Summons which was dealt with by Young J on 31 July 2000, to which Summons there were joined as parties - Defendants Mr J Finlay, the Registrar in charge of the Probate Registry of the Court ("the Registrar") and "The Legal Aid Commission Office" ("the Commission").

8    In that Summons Mrs Giniotis sought the following - not very illuminating - orders:

(1) An Order that the Defendant (sic) in these proceedings comply with the Supreme Court Rules.

(2) An Order that the Defendant accepts a certified copy of the Last Will and Testament of Alfonsas Giniotis made on 30th April 1982 and the copy certified on 24 February 2000 by Joan Margaret Toulmin JP No 9102333 for the purpose of the granting of Probate.

(3) An Order that the Plaintiff be allowed to file an amendment to the original application dated 23 December 1999.

(4) An Order for Cost to recover."

9    In an Affidavit of Service sworn by her on 26 May 2000 Mrs Giniotis claimed to have effected service of the Summons and the Affidavit in support in that application, on the Registrar on that day by leaving copies of them with the then Deputy Chief Executive Officer of the Court, Mr. J.Castellan.

10    Quite apart from the fact that the Summons was inappropriately filed in the Common Law Division of the Court insofar as it sought Orders apparently directed to the Registrar, the Summons was completely misconceived for the following reasons.

(1) In the case of (inter alia) non-contentious applications for Probate - and Mrs Giniotis's application was one - the Registrar acts as, and exercises the powers of the Court (see Rules Pt 78 rr 5(1)(a); 7) and his acts are not subject to review (see Rules Pt 78 r 6, Re Will of Ray Boardman Needham J, 21 December 1988 (unreported); In the Estate of Curtis Alexander Johanson Powell J, 28 August 1992 (unreported); The Estate of Charles Cecil Wheeler Powell J 23 October 1992 (unreported); Applicant of Helen Ann Reed; Estate of Mary Beatrice Harkins Hodgson CJ in Eq. 17 October 1997 (unreported)) although it is open to the Registrar or a Deputy Registrar, if so minded, to refer a matter arising in such a case to the Probate List Judge for determination.

(2) The power conferred on the Court to make a grant of Probate, notwithstanding non-compliance with the rules, is clearly a discretionary one and one the favourable exercise of which cannot be compelled.

11    The reason for the joinder of the Commission as a party-Defendant is not apparent as no relief appears to have been sought against it, and, insofar as it refers to the Commission, the Affidavit filed in support of the Summons is incomprehensible. In any event the Legal Aid Commission Act 1979 s.27 provides:-

"27: No matter or thing done or omitted or suffered to be done by the Commission, a committee established under this Act, the Managing Director or a member of staff of the Commission shall, if the matter or thing was done or omitted or suffered to be done bona fide for the purpose of executing this Act, subject the Commission, the committee, the Managing Director or the member of staff to any action, liability, claim or demand whatsoever."

12    Although the detail of what followed the filing of that Summons is not clear, such little material as is before the Court suggests that the Registrar or Senior Deputy Registrar Rodden referred the Probate application to Young J in his capacity as the then Probate List Judge, and that arrangements were then made to have both Mrs Giniotis's application for Probate and the proceedings in the Common Law Division listed together before Young J on a Monday, that being the day upon which, each week, his Honour as the Probate List Judge was accustomed to deal with interlocutory applications in probate matters.

13    Both matters were listed before Young J on 31 July 2000, on which day a Mr K M Harkness appeared for Mrs Giniotis, while Dr D Galbraith and Miss H D Allison, both solicitors in the employ of the State Crown Solicitor, appeared for the Registrar and the Commission respectively.

14    The transcript record of the proceedings in the Common Law Division matter on 31 July 2000 records as follows.

"HIS HONOUR: I dismiss the proceedings CLD 11243/00 and the probate matter is referred to the Registrar on the basis that he may grant probate of a copy of the will provided he sees the original."

This notwithstanding Mrs Giniotis seems to assert that Mr Harkness acted contrary to her instructions in informing Young J as he is recorded as having done.

15    On 28 August 2000, Mrs Giniotis filed the Notice of Appeal in this matter in which appeal there were joined as parties-Respondents the Registrar, but most irregularly, not the Commission, but one Frank Mansour who appears to be a solicitor employed by the Commission at its Parramatta branch.

16    In that Notice of Appeal Mrs Giniotis took the following - not very illuminating Grounds of Appeal:

"Grounds

1. Appeal basis - Get access to Justice because fundamental Law Rule it is breached by Administration.

2. Reason for Appeal - To stop discrimination and abuse Appellant and a family Australian Citizen Legal Rights.

3. Grounds of appeal Basic - Get Justice in to effect for decease (Alfonsas Giniotis Appellants a [?] husband) the Last Will and Testament date 30th April, 1982 Published in News Paper The Australian on 4.11.99 and 8.4.2000."

and sought the following - less than clearly expressed - Orders:

"Order(s) Sought:

4. (a) The Orders dated 31st July, 2000 made by Court to be setaside.

(b) The Probate Division file 119908/99 to expel from the Court all records.

(c) Judgment in favour of two Appellant Because his Honour erred in dismissing the Appellant Summons dated 22nd May, 2000.

(d) All costs incurred in the matter be reinstated."

17    When the appeal was called on for hearing this morning, Mrs Giniotis appeared in person and Dr Galbraith appeared on this occasion for the Registrar, and, as I assume, for Mr Mansour.

18    Even if one proceeds upon the basis that it is open to Mrs Giniotis to assert that, on the hearing before Young J, Mr Harkness acted contrary to her instructions, it seems to me that the appeal should be dismissed upon the simple basis that, if her proceedings at first instance had proceeded to trial, they, for the reasons which I have set out above, were bound to fail.

19    For these reasons I would propose that the appeal be dismissed.

20    STEIN JA: I agree with Powell JA. I just wish to add some further comments of my own. The appeal is undoubtedly misconceived. Mrs Giniotis says that she wants to obtain probate of the will of her late husband, Alfonsas Giniotis. She says that she has the original will. It ought be a simple matter for her to produce the original to the Probate Office and wait a short time while it is checked and copied and returned to her. The other outstanding requisitions appear to be minor ones and capable of being complied with without too much difficulty. If these things occur, Mrs Giniotis will obtain probate of the will. I agree with the orders proposed by the presiding judge.

21    ROLFE AJA: I agree with Mr Justice Powell and Mr Justice Stein.

22    POWELL JA: Do you seek an order for costs Dr Galbraith?

GALBRAITH: Yes your Honour, I am instructed to seek an order for costs.

POWELL JA: Mrs Giniotis I am afraid that the general rule is that costs follow the event.

APPLICANT: I agree what was decision, what only I'll not agree what honourable judgment mention that Deceased husband will mention ninety-two. Not ninety-two--

STEIN JA: Eighty-two.

APPLICANT: Eighty-two.

POWELL JA: If I said ninety-two it will be corrected to eighty-two, which is the correct date.

23    The formal orders of the Court thus are the appeal will be dismissed with costs.

APPELLANT: And what Mrs Giniotis should do in this situation?

POWELL JA: Mrs Giniotis we've tried to make that clear. We do wish you would take the original will to the Probate Registry, hand it over for such time, which we would think would not be long, as is necessary for it to be copied and then returned to you.

APPELLANT: But I can't copy it in front me.

POWELL JA: Please, Mrs Giniotis, you just will not listen to people who are trying to help you. That is the first thing. The other thing is to hand over the original Death Certificate from the Registrar of Births Deaths and Marriages.

APPELLANT: But they reject me. They just try reject me.

POWELL JA: I'm sorry Mrs Giniotis.

APPELLANT: And took only copy, and make in office. How I can explain to Court.

POWELL JA: We will adjourn briefly so that the Court can reconstitute for the next matter.

APPELLANT: Thank you.

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LAST UPDATED: 08/06/2001