Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nobarani v Mariconte [2016] NSWCA 214 Hearing dates: 12 August 2016 Date of orders: 12 August 2016 Decision date: 18 August 2016 Before: Meagher JA at [1]; Simpson JA at [2]; Sackville AJA at [30] Decision: 1. Set aside the stay order numbered 4 made by Emmett AJA on 14 March 2016. 2. Allow the appeal to proceed on the basis of the Notice of Appeal of 4 April 2016. 3. Direct the parties to approach the registrar for directions as to the preparation of the appeal. 4. Dismiss the respondent's notice of motion dated 23 May 2016. 5. Order that the costs of the two motions dated 29 March 2016 and 23 May 2016 be costs in the appeal. Catchwords: PRACTICE AND PROCEDURE – Notice of Motion – stay of proceedings pending payment of costs of interlocutory application – order for stay sought to be set aside – stay order set aside PRACTICE AND PROCEDURE – Notice of Motion – deficiencies in Notice of Appeal – application to strike out Notice of Appeal as incompetent – appeal not incompetent – application for orders under Vexatious Proceedings Act 2008 (NSW) – no basis for orders – application for summary dismissal – whether any arguable grounds of appeal – exclusion of evidence – evidence capable of being relevant to issue of testamentary capacity – exclusion arguably erroneous – inappropriate to order summary dismissal – appeal to proceed on filed Notice of Appeal – Notice of Motion dismissed Legislation Cited: Uniform Civil Procedure 2005 (NSW) rr 13.4, 14.28, 51.1, 51.18 Vexatious Proceedings Act 2008 (NSW), s 8(1) Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Homayoun Nobarani v Teresa Anne Mariconte (NSWCA, 14 December 2015, unreported) Nobarani v Mariconte [2016] NSWCA 175 Re: the Estate of Iris McLaren; Mariconte v Nobarani [2015] NSWSC 667 Category: Principal judgment Parties: Homayoun Nobarani (Appellant) Teresa Anne Mariconte (Respondent) Representation: Counsel: In person (Appellant) C Alexander (Respondent) Solicitors: Not applicable (Appellant) Vizzone Ruggero Twigg Lawyers (Respondent) File Number(s): 2015/180017 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: Re: the Estate of Iris McLaren; Mariconte v Nobarani [2015] NSWSC 667 Date of Decision: 22 May 2015 Before: Slattery J File Number(s): 2014/8282 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MEAGHER JA: My reasons for joining in the orders made on 12 August 2016 are the same as those of Simpson JA. 2. SIMPSON JA: The subject matter of this judgment is two Notices of Motion filed in Court of Appeal proceedings numbered 2015/180017, one filed by the appellant, and one by the respondent. At the conclusion of the hearing, the Court announced the following orders: "1. Set aside the stay order numbered 4 made by Emmett AJA on 14 March 2016. 2. Allow the appeal to proceed on the basis of the Notice of Appeal of 4 April 2016. 3. Direct the parties to approach the registrar for directions as to the preparation of the appeal. 4. Dismiss the respondent's notice of motion dated 23 May 2016. 5. Order that the costs of the two motions dated 29 March 2016 and 23 May 2016 be costs in the appeal. 6. Reasons reserved." These are my reasons for joining in those orders. Background facts 1. On 5 December 2013 Ms Iris McLaren executed her last will and testament. Ms McLaren died one week later, on 12 December 2013. The will named the present respondent, Ms Teresa Mariconte, as sole beneficiary and executor of Ms McLaren's estate. Ms Mariconte applied for probate of the will. The appellant, Mr Homayoun Nobarani, filed a caveat, claiming that he had an interest in Ms McLaren's estate. Another party, the Animal Welfare League ("AWL"), also filed a caveat. The basis of Mr Nobarani's caveat appears to have been that he propounded an earlier will, which he said was made in September 2013, and in which he was named as a beneficiary. (There does not appear to have been any greater specification of the interest he claimed under this alleged will.) The AWL's caveat (it seems) was based on a will made by Ms McLaren on 12 August 2004 (a copy of which was before the court), in which the AWL was named as the principal beneficiary. Mr Nobarani was also named as a beneficiary in this will; as one of seven individuals among whom Ms McLaren's jewellery was to be divided. (There is no indication of the value of the jewellery.) Because Mr Nobarani was named in this will, Slattery J held that he had standing to contest the will of 5 December 2013. 2. By reason of the caveats, Ms Mariconte filed a Statement of Claim seeking a grant of probate in solemn form. She named the AWL and Mr Nobarani as defendants. The AWL is no longer a participant. 3. Mr Nobarani filed a Defence to the Statement of Claim. The Defence filed was not before this Court, but was described by the primary judge as "almost incomprehensible". The primary judge identified a number of matters that Mr Nobarani sought to put in issue. They included: * the execution of the will by Ms McLaren; * Ms McLaren's knowledge that the document she signed was a testamentary instrument; * Ms McLaren's understanding of her affairs for testamentary purposes; * Ms McLaren's testamentary capacity. 1. The proceedings took place over two days in May 2015 in the Equity Division of the Supreme Court. Mr Nobarani represented himself, as he has done throughout the course of the proceedings, including in this Court. 2. On 22 May 2015 the primary judge delivered judgment in favour of Ms Mariconte: Re: the Estate of Iris McLaren; Mariconte v Nobarani [2015] NSWSC 667. He granted probate of the will in solemn form, referred the matter to the Registrar to complete the grant, and ordered Mr Nobarani to pay Ms Mariconte's costs of the proceedings. 3. On 21 August 2015 Mr Nobarani filed a Notice of Appeal. On 14 December 2015, on application by Ms Mariconte, Tobias AJA ordered that the Notice of Appeal be struck out for failing to comply with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 51.18(1)(e): Homayoun Nobarani v Teresa Anne Mariconte (NSWCA, 14 December 2015, unreported). His Honour granted leave to Mr Nobarani to refile a Notice of Appeal that complied with the rules. 4. On 2 February 2016 Mr Nobarani filed a further Notice of Appeal. The stated grounds of appeal ran to 14 pages. Annexed to the Notice of Appeal were a number of documents. In all, the Notice of Appeal ran to 51 pages. 5. On 14 March 2016, again on application by Ms Mariconte, Emmett AJA ordered that this Notice of Appeal be struck out: Nobarani v Mariconte [2016] NSWCA 175. His Honour found that the 2 February 2016 Notice of Appeal suffered from the same defects as that of 21 August 2015. He also granted leave to Mr Nobarani to file a further amended Notice of Appeal by 4 April 2016. The orders made by Emmett AJA were: "1. Order that the notice of appeal filed on 2 February 2016 be struck out. 2. Order the appellant to pay the costs thrown away by the two amendments of the notice of appeal and of the notice of motion for striking out of the notices of appeal. 3. Direct that any amended notice of appeal be filed no later than 4 April 2016. 4. Order that the proceedings be stayed, other than for the purposes of filing the second amended notice of appeal or for the purposes of assessing or taxing the costs referred to in Order 2. 5. Grant leave to the appellant, if so disposed, to apply to vary the terms of the stay referred to in Order 4. 6. Order that the respondent's notice of motion be otherwise dismissed." 1. The transcript of the proceedings before Emmett AJA indicates that the reason for Order 5 was to give Mr Nobarani an opportunity to produce evidence to show that a stay of proceedings pending payment of the costs would "stultify" the appeal. 2. On 4 April 2016 Mr Nobarani filed a third Notice of Appeal. It contains 12 sub-headings, which may be taken to raise separate grounds of appeal. The grounds it purports to raise are stated in discursive form. The Notice of Appeal challenges various findings of fact made by the primary judge, and, (although they are pleaded as errors of fact) the wrongful exclusion or admission of evidence. This Notice of Appeal, like its two predecessors, does not comply with the requirements of UCPR r 51.18. Specifically, what purports to be a statement of the grounds of appeal as required by r 51.18(1)(e) is non-compliant in that it fails to state briefly but specifically the grounds relied on in support of the appeal. This is the same defect that caused Tobias AJA and Emmett AJA to strike out the two earlier Notices of Appeal. 3. On 29 March 2016 Mr Nobarani filed a Notice of Motion as permitted by Order 5 of the orders of Emmett AJA, seeking variation of the stay of proceedings made by Order 4. He filed an affidavit in support of the Notice of Motion. The affidavit contains a number of assertions about the conduct of Ms Mariconte, of police, and of Ms Mariconte's solicitor. Nothing in the affidavit supports the proposition that a continuation of the stay would "stultify" the appeal. Mr Nobarani also filed submissions that similarly do not support such a proposition. 4. However, in the joint hearing of the Notices of Motion, Mr Nobarani told the Court that he is without funds to pay the costs, and is in receipt of a pension. It is apparent that if the stay is not removed, he will be unable to proceed with the appeal. Ultimately, the fate of Mr Nobarani's Notice of Motion depended upon whether he could establish any arguable ground or grounds of appeal. If he could, the interests of justice require that he be permitted to pursue the appeal. The only way that could happen is by setting aside the stay ordered by Emmett AJA. 5. Whether Mr Nobarani has pleaded any reasonably arguable grounds of appeal is one of the issues, and the principal issue, raised by Ms Mariconte's Notice of Motion, filed on 23 May 2016, in which she sought the following orders: "1. That the Notice of Appeal dated 4th April, 2016 be struck out as incompetent. 2. That the Appeal be dismissed as having no merit and lack of prosecution. 3. That leave be refused to allow any further Appeals. 4. Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, all of the proceedings in New South Wales already instituted by the appellant be stayed. 5. That Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the Appellant is prohibited from instituting proceedings in New South Wales other than with leave of the court. 6. That the Appellant pay the respondent's costs of the motion." 1. This Court has power to dismiss the appeal, or to take a lesser course (that taken by Tobias AJA and Emmett AJA) and strike out a pleading. By UCPR r 51.1(3) the "other provisions" of the UCPR apply, so far as applicable, to proceedings in this Court. 2. UCPR r 13.4(1) provides: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim." The power conferred by UCPR r 13.4(1) is to be exercised sparingly, and only in a clear case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125. 1. UCPR r 14.28(1) provides as follows: "(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court." 1. Ms Mariconte did not, in her Notice of Motion, seek relief under UCPR r 14.28(1). 2. Ms Mariconte filed an affidavit in which, inter alia, she deposed that the costs of the proceedings before the primary judge had been assessed at $120,190.24; and that the costs of the proceedings on the Notices of Motion (not assessed) were $49,828.77. The escalation of costs is potentially a significant factor in a discretionary judgment for summary dismissal if it can be shown that the appeal is without merit. 3. Ms Mariconte's application for orders under the Vexatious Proceedings Act 2008 (NSW) ought to be dismissed. She has not established, as required by s 8(1) of the Vexatious Proceedings Act, that Mr Nobarani has "frequently instituted or conducted vexatious proceedings in Australia"; nor that he has acted "in concert with a person who is subject to a vexatious proceedings order", or who has instituted or conducted vexatious proceedings in Australia. 4. Emmett AJA was similarly asked, and declined, to make such an order. 5. The application to strike out the appeal as incompetent ought also to be rejected. No basis is specified for concluding that the appeal is incompetent. Tobias AJA reached the same conclusion. The claim for dismissal on the basis of "lack of prosecution" is unsustainable. The real question is whether the appeal is shown to be so unmeritorious as to call for summary dismissal. 6. There are clear deficiencies in the Notice of Appeal. For example, Mr Nobarani purports to challenge a finding of fact "that the 2013 Will was signed by the deceased in two locations, at the foot and the end thereof". There is no such finding of fact in the judgment. (The proposition appears to come from the Statement of Claim as set out in the judgment at [7].) Mr Nobarani asserts that he: "… raised the issue of the validity of the Will given the contentious evidence regarding the conflicting number of times the deceased has actually signed the 2013 Will." The transcript of the proceedings before the primary judge does not confirm that any such issue was raised. 1. Many of the grounds Mr Nobarani purports to raise involve credit findings made by the primary judge. 2. Under headings of "exclusion of relevant evidence", Mr Nobarani complains that the primary judge failed to give appropriate consideration to various arguments advanced by him, and of failure to refer to medical evidence. (There was no medical evidence.) 3. These grounds appear to be untenable. However, one ground of appeal concerns the exclusion of affidavit and documentary evidence of a Mr Daniel Lemesle. 4. It is necessary to say a little more about the circumstances of this rejection. Mr Lemesle swore an affidavit on behalf of the AWL. The affidavit contains material capable of affecting the determination of Ms McLaren's testamentary capacity at the time she executed the will. Mr Nobarani annexed the affidavit to the Defence that he filed. He proposed to read the affidavit in the proceedings before the primary judge. Senior counsel who appeared for Ms Mariconte objected, saying that notice of his intention to rely on the affidavit had not been served on Ms Mariconte's legal representatives in accordance with directions given earlier. The primary judge said that he did not regard attaching the affidavit to a defence as a means of giving notice that he intended to call Mr Lemesle as a witness. He declined to allow Mr Lemesle's affidavit to be read. 5. The issue of testamentary capacity was an important aspect of the proceedings before the primary judge. The evidence contained in Mr Lemesle's affidavit is capable of being seen as significantly relevant to that issue. It is at least arguable that the rejection of the affidavit evidence, in the circumstances of this case, was erroneous. At the very least, I am not prepared to hold that there is no arguable ground of appeal. That being the case it was inappropriate to grant summary dismissal of the appeal. Accordingly, I joined in the orders made by the Court. 6. SACKVILLE AJA: I agree with the reasons given by Simpson JA for the orders made on 12 August 2016. ********** Amendments 19 August 2016 - Correction to representation - coversheet 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: 19 August 2016