Astorino v Lufi

Judgment EX TEMPORE (REVISED) 1HIS HONOUR: In this matter, the Defendants, today, seek an order dismissing the claim of the second Plaintiff, Felice (also known as Philip) Astorino, who commenced proceedings by Summons filed 9 July 2014. In that Summons, he, with his two siblings, Francesco Astorino and Maria Astorino, each sought a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) out of the estate of their father, Vincenzo Astorino, who died on 14 July 2013. 2The Defendants sought, and leave was granted upon the undertaking of their solicitor to pay the filing fee, to file a notice of motion seeking that relief. 3With the other Plaintiffs, the second Plaintiff, at the time of commencement of the proceedings, was legally represented by Mr John Fisicaro, a solicitor with the firm, John Fisicaro & Co. However, Mr Fisicaro filed a Notice of Ceasing to Act in respect of the first and second Plaintiffs on 15 August 2014. On 15 September 2014, a Notice of Removal of Solicitor was filed in respect of the third Plaintiff. 4On 23 October 2014, with the consent of the Defendants, I granted leave to the first, and the third, Plaintiff to discontinue the whole of his, and her, proceedings. I also made directions and orders in accordance with a signed Notice of Discontinuance filed in court on behalf of those parties. That, of course, left only the claim of the second Plaintiff remaining. 5As stated, the Summons was filed on 9 July 2014. Whilst an affidavit in support of the Summons, subsequently, was filed by the third Plaintiff, at no stage has there been any affidavit in support of the second Plaintiff's claim. In this regard, he has failed to comply with Practice Note SC Eq 7, Paragraph 6, which identifies the documents that a plaintiff must file and serve with the Summons, which documents include "the affidavit of the plaintiff adapted from the form in Annexure 1 to this Practice Note". 6The matter has been before the court in the Family Provision List on several occasions, the earliest of which was on 8 August 2014. On that date, I made directions regarding affidavits. I also directed that the third Plaintiff's solicitor inform each of the first and second Plaintiffs, by letter sent no later than 4:00 p.m. on Tuesday, 12 August 2014, of the directions that were made. 7There is evidence read on the notice of motion, being a copy letter dated 12 August 2014 from John Fisicaro & Co, Solicitors, addressed to the first Plaintiff and the second Plaintiff (each at a different address) informing each of the directions that had been made and that the matter was listed again on 17 October 2014. 8There is also evidence that the Defendants' solicitor, Elias Kyriacou, sent a letter dated 10 September 2014, to each of the first and second Plaintiff requesting him to comply with the directions made on 8 August 2014 and repeating the date to which the matter had been adjourned (17 October 2014). 9No reply from the second Plaintiff has been received to either letter and he did not appear when the matter was called on 17 October 2014. 10There is also evidence that, on 20 October 2014, a process server, retained by the Defendants' solicitors, attended at an address identified by the second Plaintiff's solicitor as the second Plaintiff's address, but was unable to locate the number of the second Plaintiff's address on that street. (Correspondence from Mr Fisicaro confirmed that the address at which the process server had attended was the address provided by the second Plaintiff in a telephone conversation with Mr Fisicaro.) 11On 23 October 2014, I granted leave to the Defendants to file a notice of motion seeking an order for dismissal of the proceedings against the second Plaintiff, such notice of motion to be returnable before me today. 12The matter has been called outside the court this morning and, again, there is no appearance by the second Plaintiff. 13The Defendants, in the face of the history I have recounted, thus, seek an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 12.7(1) that the proceedings by the second Plaintiff be dismissed because he has not prosecuted those proceedings with due dispatch. 14The heading of UCPR Part 12 states that it is concerned with "Discontinuance, Withdrawal, Dismissal and Setting Aside of Originating Process". Division 3 is headed "Dismissal of Proceedings... for Lack of Progress". The headings are taken to be part of the Rules, pursuant to s 35 of the Interpretation Act 1987 (NSW), and are an available aid to construction. The heading to Division 3 indicates the purpose of rule 12.7: Reimers v Health Care Complaints Commission [2012] NSWCA 317, per Campbell JA, at [25]. 15The rule upon which the Defendants rely requires the exercise of discretion by the court, which discretion is not rigidly confined. What is "due despatch" depends on all the circumstances of the case. 16In determining the application, the court must determine, in all of the circumstances of the case, whether the dictates of justice require that the proceedings should be dismissed. This necessarily involves striking a balance between the interests of the plaintiff (here, the second Plaintiff) and the interests of the defendant (in this case, the Defendants). In the case of a claim for a family provision order, the rights of beneficiaries may also be relevant. 17There is no element of punishment for a party who does not comply with his obligations. 18In addition, as has been repeated on many occasions, s 56 of the Civil Procedure Act 2005 (NSW) requires the court to act in accordance with the overriding purpose of the Act, which is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings. Section 56(3) requires the party to civil proceedings, which, of course, include proceedings for a family provision order, to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. The court must also seek to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of the court. In addition, the court "must" have regard to the provisions of s 57, which section identifies the objects of case management, namely, (a) the just determination of the proceedings; (b) the efficient disposal of the business of the court; (c) the efficient use of available judicial and administrative resources; and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 19In State of New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA, with whom Beazley JA (as the President then was) and Hoeben JA agreed, wrote, at [17]: "Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act." 20The deceased died on 14 July 2013. The proceedings were commenced almost one year later, (just) within the time prescribed by the Succession Act 2006 (NSW). Some four months has passed since the commencement of the proceedings. There is still no evidence filed, or served, by, or on behalf of, the second Plaintiff in support of the Summons. He has not appeared on any occasion to support his claim and has not complied with Practice Note SC Eq 7, which guides proceedings for a family provision order, or with the other court orders and directions that have been made. No evidence has been advanced to explain, or excuse, the delay. In those circumstances, it is apparent that the second Plaintiff is an inactive plaintiff. 21It is also necessary to refer to costs that the estate has had to bear by the several appearances before the court and the steps taken to inform the second Plaintiff of directions that have been made. 22I should, finally, mention that there is evidence filed by the first Plaintiff and read on the Notice of Motion, that on Monday, 27 October 2014, he telephoned the mobile number of the second Plaintiff and left a message that the matter was "back in court on Thursday, 6 November 2014. If you don't come to court on that day or file paperwork beforehand the judge will dismiss your claim. Me and Maria are not going ahead with the claim and have formally withdrawn. Please call me". The first Plaintiff confirmed that he has not received any return telephone call from the second Plaintiff. 23There is also an affidavit by Caterina Lufi, a sibling of the Plaintiffs, and the wife of the first Defendant that, on 28 October 2014, she, too, left a message, in similar terms, on the mobile telephone number of the second Plaintiff and that she, also, has not received a return call from him. 24It is clear, from all of the evidence, that to maintain the proceedings by the second Plaintiff, who shows no willingness to proceed with the claim, and who appears to be completely uninterested in them, would merely heighten the emotions of the other family members, who have resolved their dispute and who wish, now, to resurrect family relationships. 25In this matter, I am satisfied, bearing in mind all of the evidence I have read, that the second Plaintiff is not prosecuting the proceedings with due dispatch. Every effort has been made by the Defendants, and others, to motivate the inactive second Plaintiff but it appears that he remains uninterested. 26Accordingly, I order that the second Plaintiff's proceedings be dismissed. 27No order for costs has been sought by the Defendants. Accordingly, I make no order as to the Defendants' costs to the intent that they will bear their own costs of the proceedings. I also make no order as to the second Plaintiff's costs.