Supreme Court New South Wales Medium Neutral Citation: White! v Sheppard [2022] NSWSC 1755 Hearing dates: 14 December 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Equity Before: Hallen J Decision: The Court: 1 Orders that the Summons filed on 14 February 2022 be dismissed. 2 Orders that the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. Catchwords: PRACTICE & PROCEDURE – Dismissal of proceedings sought in email correspondence addressed to the Court by the Plaintiff, a litigant in person – Court did not act on email correspondence previously sent as it did not appear that the Plaintiff understood potential risk as to costs following dismissal or discontinuance unless otherwise order were made – At directions hearing offer made by Defendant executor of estate, which offer was rejected by Plaintiff who required various things to be done by the Defendant in the administration of the estate – Discussion and proposed orders and directions about additional information to be provided to the Plaintiff who considers proposed orders and directions to be not what he sought and to be of minimal assistance – Plaintiff then repeats request to have proceedings dismissed and rejects any opportunity to withdraw request. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 42.19 and 42.20 Category: Procedural rulings Parties: Marc White! (Plaintiff) Melinda Joanne Sheppard (Defendant) Representation: Counsel: Mr J Brown (Defendant) Solicitors: Owen Hodge Lawyers (Defendant) File Number(s): 2022/48727 Publication restriction: Nil Judgment– EX TEMPORE (Revised) 1. HIS HONOUR: In this matter, I have spent the last 40 minutes going through various matters with the Plaintiff (whose name is Marc White!), a litigant who has appeared in person throughout the proceedings. Some of that time was spent explaining the reasons why the Court did not dismiss his proceedings, by orders made in Chambers, based upon his requests to have the proceedings concluded and his case ended once and for all, made in emails that he had sent to my Chambers. 2. In broad terms, I have informed him of the costs implications that could arise in doing so and that I had not wanted to get to the stage of him discontinuing, or having the Court dismiss the proceedings without him understanding the costs implications of that course being taken: Uniform Civil Procedure Rules 2005 (NSW), r 42.19 and r 42.20. 3. (In the substantive proceedings, the Plaintiff sought relief relating to the administration of his mother's estate. In the course of the proceedings, he has recently received an interim distribution of $450,000 out of the estate.) 4. So as to ascertain the attitude of the Defendant to the dismissal, or discontinuance, of the proceedings, I then asked counsel for the Defendant, who, after obtaining instructions, stated that if the Plaintiff chose to discontinue, or have the proceedings dismissed, today, with the intention that the Plaintiff is prevented from bringing fresh proceedings seeking the same or similar relief, the Defendant would not seek a costs order against him, but would seek an order that her costs be paid from the estate. That was said to be an open offer today. 5. I then explained to the Plaintiff that, effectively, if the proceedings were dismissed on that basis, he would be bearing one-third of the Defendant's costs as he is a residuary beneficiary, with his two siblings. 6. After some further discussion, the Plaintiff indicated that he did not wish to accept the Defendant's offer. Following his rejection of the Defendant's offer, I informed the Plaintiff that there was no alternative but to proceed to the next stage of the case. 7. The Plaintiff then identified a number of issues that cause him concern and requested the Court to make orders, including that the Defendant apply for a tax file number and lodge the 2021/22 tax return and any other necessary tax returns by 5:00 p.m. on 16 December 2022, and advise him thereof by 5:00 p.m. on 19 December 2022 that these things had been done; to advise him of the amount of estate funds remaining and the estimated amount of remaining expenses, excluding CGT, by 5:00 p.m. on 16 December 2022; and that he be provided with individual bank generated PDFs of all estate bank transactions to date, by 5:00 p.m. on 16 December 2022. 8. In an endeavour to assist him to achieve a resolution of his concerns, after hearing a response from the Defendant's counsel, I indicated that I would be prepared to make the following orders and directions, including one, made at his request, to adjourn the proceedings until 7 March 2023, in order to enable him to consider the various documents that I understood he was seeking: "Orders that the Defendant provide an updated document in the form of a Scott Schedule (an earlier form of which has already been provided) covering the period since the last document in the form of a Scott Schedule was provided to the Plaintiff, together with a copy of any supporting documentation corroborating the receipts by and expenditure out of the estate of the deceased, by 4:00 p.m. on 25 January 2023. Directs that the Defendant will inform the Plaintiff within 4 working days of her being advised by the accountant acting for the estate: (a) That a tax file number has been obtained; and (b) The likely date by which tax returns for the estate will be lodged. Stands the matter over for further directions before the Succession List Judge at 9:00 a.m. on Tuesday, 7 March 2023." 1. I indicated that I would provide each of the parties with a copy of the orders and notations that I had proposed for his, and her, consideration. However, before I had the opportunity to do so, the Plaintiff indicated that the orders and directions that I had proposed would not meet his concerns; that they did not meet what he had requested; and that they would be of little assistance to him. 2. The following exchange then occurred (Tcpt, 13 December 2022, p 10(32)-11(12)): "HIS HONOUR: Mr White!, I'm doing the best I can to help you. I've done all I propose to do today, bearing in mind you've asked me for certain things, I've given you the things you've asked for and I've got to allow - you're not the only party in these proceedings. There are two of you-- PLAINTIFF: Yes. HIS HONOUR: --and you're not the only one I have to consider. I have to consider the justice of the case to both parties. PLAINTIFF: Okay, I'm going to end this matter right now, your Honour. You're not dealing with this properly, in my opinion, and you're ignoring the evidence. You've done this right from the start. I've got a huge amount of evidence that you've been doing this. I'm ending these proceedings right now. I, 4.10pm I formally withdraw and finalise these proceedings. HIS HONOUR: Mr White!, you are really doing yourself-- PLAINTIFF: I've, I've just made my decision, your Honour. I've told you my decision. HIS HONOUR: Mr White!, take a deep breath. You are making a decision that is inappropriate in all the circumstances. PLAINTIFF: I have the power to make my own decision, your Honour-- HIS HONOUR: All right.­ PLAINTIFF: --and I've made my decision. HIS HONOUR: Yes, all right, Mr White!, thank you very much." 1. Subsequently, a copy of the proposed orders and directions were provided to the Plaintiff. 2. Even whilst I was delivering these reasons, the Court interrupted itself and offered the Plaintiff an opportunity to recant his decision. I suggested that he read the proposed orders, and that he reconsider his position, whilst I dealt with another matter. More than once, he rejected the suggestion and maintained that he wished the proceedings to be dismissed in the following terms: "HIS HONOUR: Mr White!, what I am going to do is, because you are a litigant in person, I shall have my associate print out what I said to you earlier about the orders and notations for your consideration. If you wish to withdraw what you have told me I will give you the opportunity to do that. If, after reading the orders and notations, you maintain the view that you want the proceedings dismissed I will dismiss the proceedings. Are you happy with that? PLAINTIFF: I have made my decision to withdraw and dismiss the proceedings. HIS HONOUR: I will give you the opportunity to read the-- PLAINTIFF: I don't want an opportunity to withdraw. I've made my decision, your Honour. HIS HONOUR: Mr White!, I will give you one last-- PLAINTIFF: No, I've, I'm not asking for an opportunity. I have made my - I'm a self-determined - self-represented litigant. I'm telling everyone here I have made my decision. I made it at 4.10pm today here in this spot-- HIS HONOUR: All right, thank you. PLAINTIFF: --to withdraw and final these proceedings. HIS HONOUR: Thank you, Mr White!." 1. Despite the rejection of the offer made, the Defendant has, in light of the Plaintiff's decision to have the proceedings dismissed, not sought an order for costs against him personally, but has sought an order that the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. I am prepared to make that order. 2. In all the circumstances, the Court: 1. Orders that the Summons filed on 14 February 2022 be dismissed. 2. Orders that the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2022