New South Wales Court of Appeal CITATION: Ludwig v The Public Trustee [2008] NSWCA 115 HEARING DATE(S): 17 April 2008 JUDGMENT DATE: 20 June 2008 JUDGMENT OF: Giles JA at 1; Young CJ in Eq at 102; Mathews AJA at 103 DECISION: Appeal dismissed with costs, orders taking effect 21 days after this date and judgment being taken to then to have been pronounced. CATCHWORDS: Negligence - claim by beneficiary of negligence in administration of deceased estate - many allegations of negligence - trial judge not satisfied of negligence - numerous allegations of error in trial judge's determination - no error shown in trial judge's conclusions - no procedural unfairness, bias or other judicial misconduct - appeal failed. CATEGORY: Principal judgment Cachia v Haines (1994) 179 CLR 403; CASES CITED: Hanna v Registrar of the Court of Appeal [2006] NSWSC 564; Sarihaya v Victorian Workcover Authority [1997] FCA 132, (1997) 80 FCR 262. PARTIES: Gunter Ludwig - Appellant The Public Trustee - Respondent FILE NUMBER(S): CA 40722/06 COUNSEL: Appellant in person M Meek & D Laftsidis - Respondent SOLICITORS: Gordon A Salier - Respondent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 2964/05 LOWER COURT JUDICIAL OFFICER: Campbell J LOWER COURT DATE OF DECISION: 17 October 2006, 31 October 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Ludwig v The Public Trustee [2006] NSWSC 890 (Principal judgment - 17 October 2006); Ludwig v The Public Trustee (Campbell J, 31 October 2006, unreported) (costs judgment) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40722/06 ED 2964/05 GILES JA YOUNG CJ in EQ MATHEWS AJA Friday 20 June 2008 LUDWIG v THE PUBLIC TRUSTEE Judgment 1 GILES JA: By a statement of claim filed on 16 June 2005 the appellant alleged that the respondent had been negligent in the administration of the estate of his late brother Klaus-Peter Ludwig ("the deceased"). He claimed damages of $292,381.81, being $89,404.37 as set out in a letter of 13 March 2005 less an adjustment of $22.56, $173,000 for "loss of Plaintiff's home", and $30,000 for "inconvenience and stress". 2 Campbell J heard the proceedings over five days in July-August 2006. His Honour gave judgment on 17 October 2006 (Ludwig v The Public Trustee [2006] NSWSC 890). He ordered that there be judgment for the appellant for $450, the amount of a calculation error acknowledged by the respondent, and that the proceedings be otherwise dismissed. In a subsequent judgment given on 31 October 2006 His Honour ordered that the appellant pay 80 per cent of the respondent's costs of the proceedings and that the $450 be set off against the appellant's liability for those costs. 3 For the reasons which follow, in my opinion the appeal from his Honour's decisions should be dismissed. Background 4 The deceased was murdered on 11 or 12 April 1996. On 24 September 1999 Alexios Spathis and Michael Patsalis were convicted for the murder, and on 23 February 2000 they were sentenced to periods of imprisonment. 5 The deceased owned and lived in a house at Berowra Heights. He had a business involving cigarette vending machines. The appellant stayed at the Berowra Heights house when he was in Sydney, but spent about half his time in Sydney and half his time overseas. 6 The deceased had never married. He had one brother, the appellant, and a child, Jonathan Scaffidi. In 1996 Jonathan was a minor and lived with his mother in Perth. 7 The appellant was overseas when the deceased was murdered. He returned to Australia on 22 April 1996. 8 The appellant applied for letters of administration of the deceased's estate on the basis of intestacy. The respondent applied for letters of administration, also on the basis of intestacy but in the interests of Jonathan as the person entitled on intestacy. The appellant then applied for probate of an informal testamentary document executed by the deceased, which said that the appellant was entitled to the whole of the deceased's estate with the "discretion to pass on some of my assets to other members of my family according to the circumstances prevailing at that time". The appellant and Jonathan both made claims under the Family Provision Act 1982. 9 All the proceedings were settled. Consent orders were made on 4 February 1998 declaring that the testamentary document constituted the deceased's will, granting administration with the will annexed to the respondent, and making provision pursuant to the Family Provision Act in favour of Jonathan "by way of an entitlement to one half (½) of the nett proceeds of the said estate". 10 Letters of administration with the will annexed were granted to the respondent on 18 March 1998. 11 In the period prior to February 1998 the respondent had sought to establish the contents of the Berowra Heights house, including by obtaining a court order permitting inspection. At the end of July 1996 a Mr Weingarth sent to the respondent photographs of the interior of the house said to have been taken on 16 April 1996. In December 1996 a valuer instructed by the respondent produced an inventory and valuation. Some of the contents shown in the photographs were missing. There were a number of exchanges between the appellant and the respondent, in which the appellant's stance was that the photographs had been taken illegally and what was within the house was not the respondent's concern, and declined to comment as to the missing items. 12 In July 1998 the appellant purchased the house from the estate of the deceased, as described in a little more detail later in these reasons. In December 1998 and January 1999 a friend of the appellant, Mr Delves, arranged for some but not all of the house contents to be delivered to a storage facility, and the respondent had them auctioned. The remainder of the contents remained in the house under the control of the appellant. 13 In April 1999 the appellant gave to a Mr Wilson his power of attorney, limited to "dealing with my interest in the estate of Klaus-Peter Ludwig". For some time the appellant was overseas. Mr Wilson wrote numerous letters to, and had many meetings with, officers of the respondent concerning the estate. 14 The respondent sought to collect and realise assets and to settle claims and pay liabilities. Collection and realisation of assets involved, as well as the contents of the Berowra Heights house, cigarettes and cigarette vending machines and income from the business, the car and trailer owned by the deceased, real estate at Arcadia Vale, shares and money in current accounts and on deposit, and banknotes to which I later refer. There were a number of liabilities, in particular a claim against the estate by a car rental company and claims from the appellant concerning the cigarette vending machine business and reimbursement of expenses, as well as the contention between the appellant and the respondent regarding the contents of the Berowra Heights house. A great deal of the respondent's administration involved dispute with the appellant, particularly over the chattels in the Berowra Heights house but also over many other matters, large and small. 15 The respondent made a notional distribution to the appellant in July 1998 as part of his purchase of the Berowra Heights house, and a further distribution on 18 November 2004. At that time there remained outstanding banknotes which had been in the possession of the deceased shortly prior to his death and had been held by the police in connection with his murder. The administration was incomplete in that respect when the appellant brought his proceedings, and at the time of the trial and the judgment below. The proceedings below 16 The appellant conducted the proceedings below without legal representation. The statement of claim alleged that "in breach of his duty of care the Defendant acted negligent" and "caused damage as a result of his negligence". It gave "Particulars of Negligence" in paragraphs from (a) to (ii), some with sub-paragraphs. A Reply to the Defence filed by the respondent added to the complex of allegations. 17 The trial judge said - "9 The Statement of Claim contains some 35 particulars of negligence, some of which make several different allegations. Some of the particulars of negligence overlap with each other. Some of them are difficult to follow. In this judgment I will deal with the Plaintiff's allegations by topic, rather than dealing with the particulars of negligence seriatim ." 18 The trial judge's reasons were extensive, occupying some 308 paragraphs over 94 pages, and charted a course through the complexity. The topics were dealt with by his Honour in Parts of his reasons, some with a number of sub-topics. 19 Part B – The Fasemo Claim was concerned with a claim brought against the estate by Fasemo Pty Ltd ("Fasemo"), which traded as Thrifty Car Rentals. The car driven by the deceased at the time he was murdered was hired from Thirfty Car Rentals. It was set on fire. Fasemo claimed in relation to the damage to the car. The respondent sought advice from an external solicitor. On the advice of the solicitor, it settled the claim by paying a sum of money to Fasemo. 20 The trial judge held that the respondent had power to settle the claim, and that it did so in a proper exercise of its power – indeed, that the respondent was "fortunate to be able to settle it for as small a sum as it did" (at [34]). He held that the respondent was entitled to engage the external solicitor, and that the solicitor's fees were a proper charge against the estate. 21 Part C – Banknotes Held By Police was concerned with the banknotes in possession of the deceased. The police took possession of the bank notes as evidence relating to the circumstances of the murder. They told the respondent that the banknotes had been burnt and the majority were covered with blood. For some time the respondent thought that the amount of the banknotes was of the order of $58,000, but in February 2002 the police told the respondent that it was $42,470. At various times the respondent wrote to the police concerning release of the banknotes. The respondent was told that they were to be retained until the trial of Messrs Spathis and Patsalis, and then that they were to be retained until the completion of the appeals process, and then that they were retained because Mr Patsalis was prosecuting Freedom of Information applications. 22 The trial judge held that the police were entitled to retain the banknotes, and that the respondent took reasonable steps to enquire, from time to time whether the police were prepared to release the banknotes; and that there had not been a breach of duty on the part of the respondent in having failed thus far to recover the banknotes. 23 Part D – Claims Concerning Chattels was concerned with the contents of the Berowra Heights house at the time of the deceased's murder. The trial judge described the commencement of what he described at [73] as "a dispute, which has lasted for years, concerning the ownership and value of the chattels in the house". At the heart of the dispute was that the appellant claimed to own some of the chattels in the house, and that the respondent had lost some of his chattels and had denied his ownership of those he had kept. When making the distribution in November 2004, the respondent charged $42,487.50 to the appellant's account concerning the chattels he had kept. 24 The trial judge held that the respondent was entitled to require better evidence than had been provided by the appellant to establish the appellant's ownership of the chattels he had kept. His Honour held as to certain specific chattels to which attention was given that it was open to the respondent, acting reasonably, to reach the view that it had not been satisfied that they were owned by the appellant. He was not satisfied that the appellant had established that the allegedly lost chattels had been lost, or that negligence had been made out in relation to any loss of those chattels. 25 Part E – Reimbursement of Estate Expenses was concerned with the appellant's claim for reimbursement from the estate. The trial judge summarised the expenses as - "Reimbursement of funeral costs 4,615.00 Expenses paid from Commonwealth Bank account (mortgage and utility payments for Berowra, council rates and water rates for both Berowra and Arcadia Vale, his own expenses of returning to Australia) 4,792.80 Payment for hours worked in running the business from the date of the deceased's death until the date of the consent order 41,575.50 Payment for time spent, over the period between the date of death and the consent orders, in connection with his application for administration 12,312.00 Total 63,295.30" 26 The respondent eventually allowed the claim at $25,000. The trial judge held that the $25,000 had been credited to the appellant in the estate accounting; that there had not been a binding agreement to allow $47,000; and (while unsure whether the appellant was so contending) that it had not been established that the respondent should have allowed any greater sum than the $25,000. 27 Part F – The Plaintiff's Claim For Having Lost His Home was concerned with the Berowra Heights house. The respondent transferred the house to the appellant on 10 July 1998, for the expressed consideration of "$117,500 for a one half share and remaining one half share by way of entitlement to the estate of Klaus Peter Ludwig". However, because there were outstanding claims against the estate the respondent required payment from the appellant of $196,350, $78,850 more than the $117,500 purchase price of a one half share in the house, in order that the estate have funds from which it might meet the claims in the further administration of the estate. The $78,850 became estate funds; the trial judge said at [156] that "it was not as though that $78,850 was a sum which the Public Trustee held on deposit for the plaintiff". 28 A solicitor who had acted for the appellant claimed payment of his fees, and lodged a caveat on the title to the Berowra Heights house. In November 1999 Mr Wilson told the respondent that a bankruptcy notice had been served on the appellant by the solicitor, and asked that it pay a little over $25,000 to the solicitor to discharge the appellant's liability to him. The respondent advised Mr Wilson that funds were not available to meet the solicitor's claim. 29 The appellant borrowed money from Mr Delves to pay the solicitor. Mr Delves lodged a caveat on the title to the Berowra Heights house. In March 2000 the appellant sold the house for $327,000. The trial judge said at [180] - "He sold the house to raise money to repay Mr Delves, and because he recognised that a forced sale may well result in a lower sale price, and expenses additional to those which would be incurred if he sold the property himself." 30 The trial judge referred to three bases on which the appellant contended that the negligent failure of the respondent to provide him with enough money to pay the solicitor's fees led to the loss of the house. 31 One was that the funeral costs and rates and mortgage payments, part of the expenses the subject of Part E of the reasons, should have been reimbursed at an earlier time. The trial judge held at [185] that there were "numerous unresolved questions about whether there were amounts which would be required to be offset against those credits in any ultimate taking of accounts", and that the respondent had not been obliged to reimburse those expenses prior to the date of sale of the Berowra Heights house; and as well, that the amount involved was significantly less than the solicitor's fees and it had not been shown that reimbursement would have meant that the house would not have been sold. 32 Another was that the respondent should have paid the $25,000 as a partial distribution in November 1999 when requested by Mr Wilson. The trial judge held that the respondent was not negligent in declining to make a distribution at that time while claims against the estate were outstanding. 33 The third, dealt with as one of the miscellaneous allegations of negligence (see below), was that the respondent should have accepted offers made by the appellant to purchase chattels from the respondent, on occasion also to give up the appellant's claim to chattels, for a price which proved to be higher than the price obtained by the respondent at auction. Negligence in failing to accept the offers was said to have caused the loss of the house. The trial judge held that the failure to accept the offers did not involve breach of any of the respondent's obligations concerning administration of the estate, in essence because all the offers were parts of packages which it was reasonable for the respondent not to have accepted. His Honour said also that the appellant had not established that if the offers had been accepted the house would not have been sold. 34 The trial judge referred to the correction of some incorrect debits by the respondent, debits totalling $1,685 being corrected in October 1999 and two debits of $195 and $380 being corrected in December 2000 and January 2001. He held that the incorrect debiting had not been shown to have any causal effect on the loss of the house. 35 It should be added that the trial judge's reasons included - "188 The damages which the Plaintiff claims concerning loss of the house he measures by reference to the amount he sold the house for, and the amount he says that it would have been worth on 20 November 2004. That raises a question of whether, in a claim of the type which the Plaintiff makes, consequential loss is recoverable. In light of my conclusion that the Public Trustee has no liability concerning the Plaintiff's loss of the house, it is not necessary to enter into that question." 36 Part G – Miscellaneous Allegations Of Negligence was self-descriptive. The principal miscellaneous allegations, and the trial judge's determinations, were in brief as follows. (i) The allegation was that the respondent should have accepted offers to purchase chattels, see the third basis in relation to failure to provide enough money to pay the solicitor's fees. (ii) The allegation was that the respondent was biased in dealing with the chattels claim, in that it consulted Jonathan's representative and on occasions suggested to the appellant that the appellant accept a way of resolving the disputes concerning the estate which had been proposed by Jonathan's representative. The judge questioned how bias fitted into an action for negligence and any causal consequences. He was not satisfied that the respondent had engaged in any bias; rather, the respondent was entitled to consult beneficiaries and to endeavour to promote agreement amongst them, and ultimately made up its own mind. (iii) The allegation was that the respondent had no right to litigate with a beneficiary or to charge for any such litigation. The trial judge said that the appellant particularly complained about two charges for legal expenses. One was a charge of $10,428.56: and the trial judge pointed out that these were the expenses of the litigation which settled on 4 February 1998 and which the order then made provided could be paid from the estate of the deceased. The other was a charge of $6,246, for advice in relation to the ongoing claims of the appellant including through Mr Wilson. The trial judge said that in appropriate circumstances there could be litigation between the respondent and a beneficiary, and that the appellant had not established that it was inappropriate for the respondent to seek advice about the claims or that the amount charged was inappropriate. (iv) The allegation was that. the respondent had failed to distribute chattels in specie. The trial judge said that it was a matter for the respondent's discretion and no error had been shown, and that the appellant had not established that any failure to distribute chattels in specie had caused him loss. (v) The allegation was that, in the stance it took in relation to the chattels, the respondent had been acting under the dictation of the police and/or other Governmental parties. The trial judge said (at [211]), "There is no shred of evidence to support any such conclusion". (vi) The allegation was that the administration had been delayed. The trial judge said that it was true that it had lasted a long time, but was not satisfied a substantial cause of the delay was any negligence on the part of the respondent. (vii) This allegation, concerned with closing a bank account, was withdrawn. (viii) The allegation was that the appellant's account should not have been debited with amounts of withholding tax. The trial judge found that Mr Wilson had told the respondent that the appellant should be treated as a non-resident for tax purposes. His Honour held that Mr Wilson had authority as the appellant's attorney to give that instruction; that in the absence of assistance from either party he should not determine whether the taxation law had been correctly applied and for that reason he "[did] not find that the first complaint which the Plaintiff makes concerning withholding tax has been made out" (at [226]); but that in any event if the respondent had not charged withholding tax it would have borne the tax itself and the appellant had not shown that he was financially worse off when the tax burden so borne would have flowed through to the distribution to him. His Honour noted that the respondent accepted an overcharge of $450, the calculation error earlier mentioned, and said that the appellant had not demonstrated that there had been any greater overcharge. (ix) The allegation was that the respondent had failed to collect $2,040 said to have been debited to the deceased's Visa account by Thrifty Car Rentals as a deposit. Referring to a note recording the refund by Thrifty Car Rentals of $1,129.40 from a deposit of $2,000, the trial judge said (at [233]) that the appellant had "not demonstrated that any greater refund ought reasonably to have been collected by the Public Trustee". (x) The allegation was that the respondent had negligently failed to provide a list of the items the respondent considered were estate owned chattels. The trial judge said that it was clear that the respondent's position was that all the chattels listed in the valuer's valuation were estate assets, and that there was no occasion to provide some other list. (xi) The trial judge referred to the particular that the respondent had failed to "approach the plaintiff with the respect and compassion pursuant to s 6.1 Victims Rights Act 1996 … ", the failure lying in making the appellant lose his home and not completing the administration at the end of 1998 prior to the appellant's absence from Australia. The trial judge held that, assuming that the Victims Rights Act otherwise applied to the appellant and the respondent, by force of its s 8 any infringement there might have been could not affect the remedies which could be granted in the proceedings. (xii) The allegation was in the particular that the respondent had been negligent in failing to have the Court "release him from his administration duties in a proper way". The trial judge held that there was no legal obligation to obtain a release. 37 Part H – Effect Of Service of Statutory Notices was concerned with notices served under s 93 of the Wills Probate and Administration Act 1898 and s 34B of the Public Trustee Act 1913. Those sections provided a machinery by which a claim against an estate could be barred if the claimant upon whom notice had been served did not commence proceedings to enforce the claim. The notices in question were served in 2002, and referred to the appellant's "claim regarding sale of the cigarette business, your claim against the estate for $60,000 and your claim of the chattels in the estate". 38 It appears that the appellant contended that there was no occasion for notices to bar claims, that the notices were invalid and not validly served, and that the expenses relating to them should not have been estate charges. In particular as to the chattels, the trial judge said - "285 The Plaintiff says, in effect, that he owns various of the chattels which were in the house, and that the Public Trustee simply had no right to deal with those chattels. It is implicit in his submissions that what the Public Trustee has done concerning the chattels is tantamount to theft or conversion of his chattels. Further, as the Plaintiff sees it, when he has contended that the Public Trustee has wrongfully asserted a right to deal with all the chattels that were in the house at the time of death, the Plaintiff was not making a claim 'in respect of the assets of the estate of the testator' – he was making a claim in respect of the Plaintiff's own chattels. In the Plaintiff's eyes, it was ludicrous for the Public Trustee to call on him, by the section 93 notice, to bring proceedings to enforce ' your claim of the chattels in the estate ', because he did not claim any of the chattels in the estate – he only claimed his own chattels. If the Public Trustee could not understand that they were his chattels, that was the Public Trustee's problem, not his – nothing could change the fact that they were his chattels." 39 The trial judge held that the appellant's contention that his chattels were not in truth chattels of the estate was a "claim in respect of assets of the estate of the testator" within s 93, that the notices were valid, and that they had been validly served on the appellant. As a result, he said that even if he were wrong in holding that the appellant had not made out a claim of negligence against the respondent concerning the manner in which it had dealt with the chattels or concerning the claim for repayment of expenses, any claim the appellant had concerning the chattels or the repayment of expenses had been barred. 40 The final Part of the reasons was concerned with a number of documents received by the trial judge from the appellant after the conclusion of the hearing. They were listed, and the judge said that he treated them as part of the submissions in the case with the exception of an affidavit dated 14 August 2006. As to that affidavit, he said that pre-trial directions had required the filing of affidavits by a nominated date, and (at [306]) that - "The affidavit in question contains assertions which go to the testamentary intentions of the Deceased. That is not a relevant matter in the present proceedings. I decline leave for that affidavit to be filed and treated as read at this stage of the proceedings." 41 This is necessarily no more than a summary of the trial judge's reasons; many matters were dealt with within the topics. 42 In the costs judgment the trial judge said that the appellant had presented "an itemised list of time spent and various expenses incurred", and noted that Cachia v Haines (1994) 179 CLR 403 presented a "difficulty of principle" in that it excluded compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case. He said that the appellant succeeded in only a very small proportion of the amount claimed, but that it was appropriate that that measure of success produced by the proceedings should be reflected in an order for costs. He arrived at the order on the basis of "the measure of success the respective parties have had", and in making the order for set-off referred to the appellant's position that he was "itinerant" and to the difficulties covered by his findings in recovery of property from the appellant. The appeal 43 The appellant also conducted the proceedings on appeal without legal representation, upon an amended notice of appeal expressing the single ground that the judgment "is wrong in parts; non-substantive; not in discharge of duty; in denial of Natural Justice". The ground was followed by the heading "Particulars (any or all)", and 188 paragraphs asserting errors of a great many kinds. 44 The written submissions filed by the appellant occupied 386 paragraphs over 129 pages, and his written submissions in response to the respondent's outline of submissions occupied a further 184 paragraphs over 76 pages. The overlapping and difficulty in following some of the particulars of negligence to which the trial judge referred were equally evident in the particulars of the ground of appeal, and were magnified in the written submissions by the additional layer of a myriad of complaints, with considerable repetition, as to the trial judge's dealing with the claims. There was much which, other than in the appellant's eyes, had no bearing upon the trial judge's conclusions in the proceedings. 45 The appellant's complaints included that the trial judge had not dealt with his allegations seriatim. His Honour was not required to do so. He had to decide the proceedings and explain why he decided them in the way he did, and he did so. I also deal with the appellant's complaints on appeal by topic. The entirety of the submissions has been considered, but it is neither practicable nor of assistance to set out all the detail of the appellant's complaints, and I endeavour to indicate or explain in short form the appellant's position on each topic. Transcript for the appeal 46 By a notice of motion returnable on the hearing date of the appeal the appellant applied for vacation of the hearing. For reasons then given, the Court declined to vacate the hearing. 47 The Court's reasons included, referring to the grounds relied on for the application - "The focus of those grounds is on the transcript corrections which Mr Ludwig proposed quite some time ago, as listed at pages 19 and following of the orange book. Mr Ludwig has made clear his understanding that transcript corrections cannot be made otherwise than in open court before Campbell J, the judge who heard the proceedings at first instance, and he has contended that until the errors which he puts forward have been corrected in that manner he is unable properly to show that the judgment below was flawed because based on incorrect transcript, or to present his appeal based on the corrected transcript. Whatever may have been the position in the past, the Public Trustee has agreed to the corrections numbers 1 to 82 as proposed by Mr Ludwig. We can act upon that, and it is not uncommon for transcript errors to be corrected by agreement prior to or in the course of an appeal without return to the trial judge. The matters relating to the transcript, which do not always clearly propose corrections, in items 83 to 86 of Mr Ludwig's proposal are not agreed. They are matters on which we can hear the parties as and when it becomes necessary in the course of submissions, in order to appreciate what the error put forward by Mr Ludwig is and what impact it may have on the course of the appeal." 48 None of the corrections numbers 1 to 82 is material to the reasons for dismissing the appeal. In the manner the hearing of the appeal proceeded, there were no submissions in relation to items 83 to 86 additional to any within the written submissions. Only what the appellant asserted as items 83 and 84 had any possible materiality to the appeal. I will return to them at the appropriate point later in these reasons; what he asserted is not accepted. 49 I am satisfied that the appellant was not disadvantaged in any way in the appeal by his perceived difficulty in having transcript corrections made. Proceedings in the Equity Division 50 It appears that the appellant commenced his proceedings by a summons filed in the Common Law Division, and that the proceedings were transferred to the Equity Division and were continued with the filing of the statement of claim. The appellant took issue with this. He said that equity was to do with trusts, that his proceedings were not to do with trusts but with negligence, and (as stated at one point in his written submissions) that he was "appealing now against the erroneous procedural misguidance being part of my Appeal as this is the first opportunity to appeal it". 51 There is no basis for what the appellant appears to have seen as a detriment in the determination of his proceedings. The proceedings were properly in the Equity Division, and in any event they could be and were fully heard and disposed of by the trial judge as a Judge of the Court regardless of the Division to which they were assigned. The trial judge dealt with the proceedings as the appellant wished, saying at [8] - "The Statement of Claim is pleaded as though the action were a common law action for the tort of negligence, alleging a breach of a duty of care causing damage. I will not pause to consider whether this is the correct way for a beneficiary to bring a claim alleging that the administrator of a deceased estate has mishandled the administration, or whether it is necessary for all parties who would be affected if the mishandling of the administration were made out to be joined to the proceedings. Rather, I will assume without deciding that the alleged duty of care exists, and turn directly to the factual substance of the complaints which the Plaintiff makes." New Evidence 52 The appellant wished to rely on new evidence, as contained in an affidavit sworn by him on 19 March 2008. 53 Through that affidavit he repeated and confirmed the contents of his affidavit of 14 August 2006. The trial judge was correct in his description of that affidavit, and in saying that the testamentary intentions of the deceased were not a relevant matter in the proceedings. They are not a relevant matter on appeal. 54 The affidavit then referred to a letter dated 14 November 2005 to the respondent's solicitor, a copy of which was an annexure, and presented arguments to the effect that the letter was not contradicted and the statements in it were therefore accepted, and that it was thereby shown that there were sufficient funds to pay the solicitor in November 1999. The letter is not new evidence, and no reason appears why it could not have been tendered at the trial. In any event, no admission is to be found in the asserted failure to contradict statements made in it. The letter should not be received into evidence, but I take account of the arguments as if they were submissions so far as they can be founded in the evidence. 55 The affidavit then annexed a letter dated 20 March 2006 from the appellant to the respondent's solicitor and the solicitor's reply dated 29 March 2006. The first letter asked for discovery of certain documents, and said that "[i]n the event that your client choses [sic] not to come up to my expectations in this issue, unfortunately, I will have to engage the Court to enforce my rights in the above interlocutory matter … ". The second letter suggested that the appellant "raise the matters which you seek to raise with me at the Directions Hearing which has been fixed for 20 April 2006". In the affidavit it was said that the response "made it impossible to access the evidence sought in any meaningful way by just filing a Notice to Produce", and that the trial judge knew that the appellant had been denied access as requested and that "the discovery matter was delayed by Registrar Walton by seven weeks and hence brought too close to the trial". 56 Delay and consequent impediment to the conduct of the trial was not otherwise substantiated. It appears from reasons given by the trial judge on 31 July 2006, on an application by the appellant to strike out the respondent's defence, that the appellant had filed a notice of motion seeking discovery in which he complained of inadequacy in production of documents, and that the trial judge had ruled that the fact that items which have been called for in the course of seeking discovery were not produced does not without more show that there had been any impropriety in the failure to produce. The appellant's apparent purpose of showing procedural unfairness was without appropriate foundation, and the two letters should not be admitted into evidence. 57 The affidavit then annexed a letter from the Director of Public Prosecutions advising that an application by Mr Patsalis for special leave to appeal to the High Court was dismissed on 8 November 2007. Argument was presented in the affidavit to the effect that the respondent was negligent in not collecting the banknotes shortly after 8 November 2007, with reference to an annexed letter from the appellant to the respondent dated 13 December 2007 and an annexed reply dated 22 January 2008. The determination of the application for special leave to appeal after the trial and judgment does not assist the appellant upon whether the respondent was negligent prior to the trial. The letter in reply pointed out that the costs order was made against the appellant and said that there will be no distribution of money held by the police to the appellant as "you owe costs to the Public Trustee". This correspondence is not relevant to the appeal, and should not be admitted into evidence. 58 The balance of the affidavit foreshadowed further evidence "to support possible judicial corruption … linked to Australia's alleged cowardly cover-up murder and crimes committed against my family in destruction of same", referring to an annexed letter to the Chief Justice dated 4 March 2008. That letter should not be admitted into evidence. 59 None of the affidavit should be received as new evidence. Striking out the defence 60 At the commencement of the trial the trial judge heard a notice of motion in which, amongst other orders, the appellant applied for an order striking out the respondent's defence. His Honour declined to do so. He described four grounds on which the application was made. One was that the defence did not respond to the lengthy particulars in the statement of claim, as to which his Honour said that there was no obligation specifically to plead to particulars and the failure to do so was not a ground for striking out the defence. The second was that the appellant did not agree with the way in which the respondent's legal representative had described the appellant's case in a callover form submitted to the Registrar when the proceedings were set down for a hearing, as to which the trial judge said that the description was administrative and did not affect the issues to be decided and, even if there had been a misdescription, that was no reason for striking out the defence. The third was described as that the respondent "has not provided responses to various questions which the plaintiff served on it, and which the plaintiff regarded as a request for particulars", as to which the trial judge said "he had already dealt with this on an earlier interlocutory hearing, and declined to require the defendant to answer the questions." The fourth was the alleged inadequacy in production of documents to which I have referred. 61 In the particulars in the amended notice of appeal and at various times in the written submissions the appellant complained of failure to strike out the defence. The appeal papers did not include the trial judge's reasons for declining to require the respondent to answer the various questions regarded by the appellant as a request for particulars. In my opinion, no error has been shown in the trial judge's refusal to strike out the defence. So far as it was part of the complaint that the appellant had been disadvantaged in the presentation of his case because he did not have detailed responses to his particulars, it is evident that the appellant had full opportunity to present his case and it has not been shown that he was disadvantaged by the form of the defence or by the failure of the request for particulars. Cross-examination of Mr Wilson 62 A direction was given for evidence on affidavit in the proceedings. The appellant filed an affidavit sworn by Mr Wilson on 13 October 2005, which was read but with some parts rejected. The appellant said during the trial that he wished to cross-examine Mr Wilson - "Because I need to establish as much evidence as I can and the questions which I intend to bring to him will confirm my evidence which I have brought and – I mean reinforce the evidence I have already supplied to the Court because it is not only referring to the affidavit of Mr Richard Wilson but also to letters and events which has happened in his relation or contact during the years of his assistance to the administration of the Estate which is the defendant. I believe its relevant." 63 The trial judge asked counsel for the respondent what he said about "in substance supplementary oral evidence-in-chief". Counsel opposed it, saying that much of the affidavit evidence had been rejected and - "I don't know what Mr Wilson is going to say. I am prepared to cross-examine him on the basis of his affidavit. I have not prepared to cross-examine him on supplementary material." 64 The trial judge gave a short judgment in which he declined the application to permit Mr Wilson to be cross-examined by the appellant. He said that no reason had been advanced why the material sought to be adduced could not have been put on as evidence in chief. He referred in short form to what the appellant had said in support of asking questions of Mr Wilson and to what counsel for the respondent had said in opposition, and said that "[i]n all the circumstances I decline the application to permit Mr Wilson to be cross-examined by the plaintiff". 65 This was a discretionary decision, and it was well open to the trial judge to conclude that, in balancing the difficulty in which counsel for the respondent would be placed against the reinforcement which the appellant had in mind, particularly when there had been the earlier direction for evidence on affidavit, it was not appropriate to permit the appellant to ask further questions of Mr Wilson. No error has been shown in the exercise of discretion. The Fasemo claim 66 The appellant's position, as best I understand it, was that the respondent should not have paid Fasemo anything because the car was set on fire by the murderers after the deceased had been murdered, therefore the damage to the car was not the deceased's responsibility but was the responsibility of the murderers or the respondent; and further, that the respondent should not have obtained outside legal advice because the respondent had legal expertise within the Public Trustee organisation. The appellant said also that the trial judge failed to take into account that he claimed damages of only $5,000 in relation to the respondent's dealing with the Fasemo claim. The trial judge correctly said that there was no substance in a similar argument about responsibility for the damage to the car, and it was open to the respondent to seek outside legal advice. There is nothing in these complaints. Banknotes Held by Police 67 The appellant's position was that Messrs Spathis and Patsalis had exhausted the appeals process in November 2002 when Mr Spathis was refused special leave to appeal to the High Court, and that the respondent neglectfully allowed itself to be misled when the police told it in March 2003 that there was a current application for special leave to appeal; further, that it was irrelevant that the respondent was told that Mr Patsalis "had exercised the provisions of Freedom of Information legislation to assist in his ongoing defence". Thus, according to the appellant, the respondent should have got in the banknotes or their value at the end of 2002. 68 The trial judge set out in some detail the enquiries made by the respondent and the responses of the police. Mr Patsalis did apply for special leave to appeal, albeit late, and the trial judge said that the respondent was told shortly prior to the trial that the application was pending in the High Court. The Freedom of Information applications were relevant to continuing steps by Mr Patsalis to overturn his conviction, not strictly part of the appeals process but reasonably seen by the police as warranting retention by them of the banknotes in case of an inquiry or new trial; this was evidently seen by the police as appeal process. The police consistently refused to return the banknotes, the respondent was not obliged to do more than it did with a view to recovering them, and the trial judge was correct in finding that there was no breach of duty on the part of the respondent. Claims Concerning Chattels 69 Pervading the appellant's submissions was that there was no occasion for dispute over the chattels because his chattels in the Berowra Heights house were his and that was an end to it; and the respondent was at fault in not accepting that position. The central complaint was that the respondent should have been satisfied that the chattels for which the $42,487.50 was ultimately charged to the appellant's account were his. The submissions extended over many pages, and included asserting a myriad of factual and other errors in the trial judge's reasons. They are sometimes particularly difficult to understand. Some prominence is given to an argument, which the trial judge declined to accept, to the effect that the appellant had lived in a "common household" with the deceased for very many years and therefore chattels in the Berowra Heights house were his shared property. The submissions included that refusal to permit the appellant to cross-examine Mr Wilson prevented him from proving in court his ownership of chattels, although no basis for Mr Wilson being able to give material evidence was shown. 70 The question was the reasonableness of the respondent's conduct in treating all the chattels in the Berowra Heights house as estate property, in the face of the appellant's stance that his chattels were his and such support for that stance as he provided. The trial judge dealt with the question comprehensively, and the appellant's submissions do not in my opinion make out that his conclusions were not open to him or were incorrect. In particular, while accepting that the respondent ought to have come to the conclusion "that the appellant often (but not continually) shared accommodation with the deceased and that they were emotionally close", the trial judge was correct in saying that the existence of a common household did not of itself give rise to a proprietary right in the appellant in any chattel used in any household they shared and that the respondent "was not failing to exercise reasonable care when it declined to accept the Plaintiff's argument that a common household proved he had title to chattels". 71 At this point I return to the items 83 and 84 transcript corrections. They have possible materiality to the appeal because of the significance attached by the trial judge to an admission by the appellant in cross-examination. 72 In the course of explaining the dispute over the chattels the trial judge set out (at [77]) part of a letter dated 27 December 1996 from the appellant to the respondent, in which the appellant said (amongst other things) that his property inside his house should not be the respondent's concern, that the Berowra Heights house contained "Peter's property, my property, family property and other people's property", and - "It is difficult to determine at times what is Peter's property and what is my property… Over the many years I lived in Australia with Peter at Dianne Place we lived as a family unit doing most things together both at work and at play. Our joint efforts provided us both with food and accommodation as well as investments for our old-age, and although we both had specific possessions (i.e. gifts given to each other or direct purchases), on the whole most things went into our joint household and collection. I had investments with Peter. Like in a married couple we did not always keep track of who bought what for our place…. It was understood between the two of us that the survivor in the event of death would automatically inherit of the other. It is for this reason that it is virtually impossible to say that most possessions are either directly Peter's or mine. I believe that in the event of a dispute only the Court system will be able to determine who owns what under this circumstances ." 73 The emphasis was added by the trial judge. His Honour then said - "78 In cross-examination, the Plaintiff accepted that the last two sentences of this quotation are true. I accept that evidence. It is a significant admission about the ability of the Public Trustee, short of court proceedings, to be positively satisfied about who owned the chattels." 74 The evidence of the appellant's acceptance of the last two sentences was recorded in the transcript - "Q. Would you turn to the second page of that letter at page 2 which is marked 38 --- A. Yes. Q. --- in the bundle. A. Yes. Q. Would you read the last paragraph to yourself. A. Which paragraph? Q. The last paragraph on that page. A. The last paragraph., Yes, I read it. Q. The last two sentences on that page -- A. Yes. Q. – were to your belief true at the time that you wrote that letter, correct? A. Yes." 75 The item 83 correction proposed by the appellant was - "page 45 in the lower end of the page somewhere we discussed which paragraph the defendant meant by Q. 'The last paragraph on that page' (45/45). There were a few answers and responses until the defendant pointed out – and I understood – that he was referring to the handwritten footnote of that letter. ALL THAT IS MISSING IN THE TRANSCRIPT." 76 The item 84 correction was difficult to understand, but included that in a subsequent unrecorded answer the appellant said that "I stand by what I said in the footnote of that letter". 77 The appellant's evidence in support of his application to vacate the hearing included a letter from the trial judge's associate stating, in relation to the transcript, that "when his Honour has no recollection of the level of detail, he does not regard it as appropriate to sit in any formal capacity to determine the disputed questions". It is necessary and appropriate that this Court resolve the question of the items 83 and 84 corrections. 78 The letter of 27 December 1996 is a six page letter. The part set out by the trial judge was from the first and second pages, the emphasised words being at the foot of the second page. The only handwritten footnote is on the sixth page, reading "Enclosures: 4(6 pages)". 79 I am not satisfied that the transcript is incorrect. Reimbursement of Estate Expenses 80 The appellant appeared to accept that there had not been a binding agreement to allow $47,000, and to say that the trial judge was in error in thinking that was an issue. His position was that the $25,000 was "NOT having been paid by the Defendant", to which it was added that although $25,000 was an agreed settlement "the erroneousness [of the trial judge] … is not crediting the Plaintiff for his flexibility and not mentioning that the rightful claim of the Plaintiff was, as provided by calculation and backed up by log books, an amount near the $60,000 mark to which the Plaintiff was entitled; … ". 81 I am not persuaded that the trial judge was in error in finding that the $25,000 had been credited to the appellant in the estate accounting. The Plaintiff's Claim for Having Lost His House 82 The appellant's position was that the estate funds and the claims upon them were such that the respondent could and should have distributed money before or in November 1999 to enable the appellant to pay the solicitor's fees. A number of calculations were put forward. They did not provide a rational basis for error in the trial judge's conclusion that the need to provide for unresolved claims meant that funds were not available. As at November 1999 the claim of Thrifty Car Rentals was unresolved, taxation returns were outstanding, and the disputes concerning chattels and in part concerning reimbursement of expenses remained. The calculations were not realistic – for example, one appeared to suggest that on the sale (to the appellant) of the Berowra Heights house the sale price less the mortgage debt divided by two produced an amount available for distribution to the appellant – and did not meet the reasons given by the trial judge. 83 In any event, and further to the trial judge's [188] earlier set out, I do not think the appellant made out a claim for loss suffered on the sale of his house. There was nothing to show that the sale was at an undervalue, and he did not suffer a capital loss. He did not present a case of loss because, for example, he had to rent accommodation rather than live in his own home. Miscellaneous Allegations of Negligence 84 The appellant's position as to miscellaneous allegation (i), involving failure to accept offers to purchase chattels, was that the trial judge had misunderstood the evidence about offers and the offers made were generous and should have been accepted. The course of dealings was properly found by the trial judge, and no error has been shown in this conclusion. 85 The appellant said of miscellaneous allegation (ii) that the trial judge had misunderstood because he (the appellant) was not disputing, only offering his views; and that bias meant negligence and there was extortion in acting at Jonathan's dictation. The trial judge's conclusions were correct. 86 Miscellaneous allegation (iii) is linked with Effect of Service of Statutory Notices, below, in relation to litigation with a beneficiary. The appellant's submissions on that matter are without substance, and the trial judge's conclusions have not been shown to be erroneous. 87 It is sufficient to say of miscellaneous allegations (iv), (v) and (vi) that nothing in the appellant's submissions meets the reasons why the trial judge did not accept them. The appellant complained that the reasons given as to (vi) were conclusory, but they must be understood in the light of the reasons as a whole; and it should be noted that the appellant's submissions included that while the respondent may have seen difficulties in the administration "I did not. His difficulties might be understandable by some but are entirely his problem". The appellant's position was not reasonable. 88 The appellant's position as to miscellaneous allegation (viii) was, as best I understand it, that the respondent should have clarified his tax status by enquiry from his accountant; that he had no tax liability because he was not "owner of the estate" or part of the estate; that he should have been treated in the same manner as Jonathan; and that his loss was obvious because of tax thresholds. Whatever the consequences of absence of assistance, the submissions did not meet the trial judge's ultimate conclusion, which has not been shown to be incorrect. 89 The appellant's position as to miscellaneous allegation (ix) was that there was gross negligence in not telling Mr Wilson that $1,129.40 had been refunded, whereby the respondent "negligently caused court proceedings". He said that the trial judge's "information" came as a surprise and the trial judge should not have gone ahead with the trial without particulars of the defence which would have prevented surprise. There is no appealable error. 90 Nothing in the appellant's submissions gave any basis for error in relation to miscellaneous allegations (x), (xi) or (xii). Effect of Service of Statutory Notices 91 The appellant's position was that the trial judge failed to recognise that service of the notices was not necessary because there were no claims by the appellant. The respondent should therefore have distributed the estate without delay and without incurring expenses in relation to the notices. 92 The appellant said to the effect that any disagreement was resolved with the consent orders of February 1998, thereafter it was for the respondent to administer the deceased's estate; and since beneficiaries had no say in the administration there could not be litigation with the appellant; therefore there was no question of claims. The appellant also appeared to maintain the position noted by the trial judge at his [285] set out above, to the effect that there was no claim in relation to the chattels because they were his chattels. At one point the written submissions said that the "correct description of the situation" in relation to what chattels were truly chattels of the estate was that the respondent "inexplicably" did not accept the information provided by the appellant. The written submissions included, the upper case in the original - "326 … HIS HONOUR ERRONEOUSLY DID NOT SEE OR ACKNOWLEDGE THAT WHEN THE DEFENDANT WAS ADVISED THERE IS NO CLAIM HE WAS OBLIGED TO DISTRIBUTE THE ESTATE WITHOUT CONSIDERATION OF ANY CLAIM FORTHWITH AND HAS NO RIGHT TO CAUSE DELAY AND COSTS BY PURSUING ACTIONS REFERRING TO A CLAIM. HE WAS GROSSLY NEGLIGENT." 93 In my opinion, the trial judge was correct in holding that the appellant's contention that his chattels were not in truth chattels of the estate was a "claim in respect of the assets of the estate", and no error has otherwise been shown in his Honour's conclusions that the notices were appropriate, valid and validly served. Unfairness and Judicial Misconduct 94 The appellant's submissions included many complaints that the trial judge was unfair because of interlocutory rulings, rulings in the course of the trial (for example, rejection of the affidavit and parts of affidavits and ruling that he could not cross-examine Mr Wilson), and in other respects; and that there was unfairness, bias, incompetence and "possible judicial corruption", the bases for which were in essence the rulings and unfairness and that the trial judge had made numerous errors of fact or errors in failing to state facts and errors in his conclusions. 95 The transcript makes plain that the trial was conducted with every fairness towards the appellant, and with appropriate recognition that he was unrepresented. It is not the case, as the appellant contended, that inadmissible evidence should have been received because he was unrepresented. I have had regard to the entirety of the appellant's submissions, and in my opinion there is no foundation for unfairness or other judicial misconduct in the determination of the proceedings. Costs 96 The appellant said that he should have costs because "a decision was made in favour of the Plaintiff": the reference was to the judgment for $450. He said that he made a single allegation of negligence and "that allegation was confirmed". In my opinion there was no error, in the circumstances of the appellant's extensive allegations and judgment only as to an acknowledged calculation error, in the trial judge's exercise of his discretion whereby the appellant was ordered to pay a substantial proportion of the respondent's costs. 97 The appellant also said that the proceedings were a matter of public interest and he should have costs even if his case failed. The appellant saw the public interest in his beliefs that there had been police criminality in relation to the murder of the deceased and subsequent cover-up, that the respondent had a "linkage" with that criminality, and that the determination of his proceedings had involved procedural unfairness and "[p]ossible Judicial Corruption or bias or incompetence in the Lower Court in view of numerous (estimated app 200 or more) individual judgement errors/ Particulars of errors in one and the same matter." However, the proceedings were concerned with alleged negligence in the administration of the deceased's estate, and no basis for the criminality was made out; there was no unfairness and no basis for judicial misconduct. In my opinion public interest had no place in the disposition of costs. 98 The appellant also said that he should have costs even if his case failed because it was the respondent who "initiated the proceedings". As best I understand it, the submission was that the respondent told the appellant that administration of the deceased's estate had been finalised, whereas it had not because the banknotes were still outstanding; and that the appellant would not have brought the proceedings if the respondent had told him that administration had not been finalised. We were not referred to evidence that the respondent told the appellant that administration had been finalised. In any event, the submission is without substance; the appellant brought the proceedings, and costs were properly disposed of in the exercise of the trial judge's discretion. Orders 99 By a letter dated 5 May 2008 the appellant said that in accordance with "tourist regulations" he had left Australia and asked that delivery of judgment be deferred until his return in mid-September. I do not think delivery of judgment should be deferred for that length of time. The appellant has as his address for service a post office box. This is not a proper address for service, see Sarihaya v Victorian Workcover Authority [1997] FCA 1372, (1997) 80 FCR 262; Hanna v Registrar of the Court of Appeal [20-06] NSWSC 564, but appears to have been tolerated, and it is incumbent on the appellant to have made arrangements whereby notice addressed to him at the post office box comes promptly to his attention. However, I consider it appropriate to endeavour to provide that the appellant shall have longer than the normal period within which to consider whether he wishes to apply for special leave to appeal to the High Court and if he does to file his application. 100 I propose that judgment be given on a day 14 days after the despatch to the post office box address of notice that it will be given. On the assumption that the appellant will not be present when judgment is given, the Registrar should promptly send the Court's reasons to the post office box. The order dismissing the appeal with costs will take effect 21 days after the judgment is given and judgment will be taken then to have been pronounced. The intention is that this will have the effect of providing an additional 21 days within which the appellant may file an application for special leave, but it is not clear to me that it will have that effect under the High Court Rules: the appellant should consider for himself whether he should file any application for special leave within 21 days from the day judgment is in fact given. 101 The orders I propose are - That the appeal be dismissed with costs, these orders taking effect 21 days after this date and judgment being taken then to have been pronounced. 102 YOUNG CJ in EQ: I agree with Giles JA. 103 MATHEWS AJA: I agree with Giles JA. ********** 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.