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

New South Wales Court of Appeal

CITATION : GINIOTIS v. FINLAY & ANOR. [2001] NSWCA 169 FILE NUMBER(S) : CA 40669/00 HEARING DATE(S) : 04/06/2001 JUDGMENT DATE : 4 June 2001

STELLA S. GINIOTIS (Appellant) PARTIES : J. FINLAY (1 Respondent) FRANK MANSOUR (2 Respondent) JUDGMENT OF : Powell JA at 1; Stein JA at 20; Rolfe AJA at 21

LOWER COURT JURISDICTION : Supreme Court LOWER COURT CLD 11243/00 FILE NUMBER(S) : LOWER COURT Young J JUDICIAL OFFICER :

COUNSEL : Appellant in person Dr. D. Galbraith (Solicitor) (Respondents) Appellant in person SOLICITORS : I.V. Knight, State Crown Solicitor (Respondent)

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - Probate - Non contentious proceedings - Practice - Role of Registrar - Decisions not receivable ND DECISION : Appeal dismissed

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.