Re Klement [2011] VSCA 40 (4 February 2011)

1 This is an application by Reverend Jiri Klement for leave to appeal from a decision of Dixon J. On 1 November 2010, his Honour considered under r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2005 ('Supreme Court Rules') whether to direct the Prothonotary to seal and accept for filing documents which Reverend Klement had sought to file. The documents are sought to be filed to commence a proceeding to have his mother's will revoked.

2 Last year in this Court, leave to appeal was refused in proceedings concerning the applicant's endeavours to remove the executor of the will.[1] Reverend Klement foreshadowed then that, if he failed to remove or replace the executor, he would seek to have the will revoked. These documents relate to that foreshadowed proceeding.

3 The Prothonotary refused to accept the documents for filing, as he was authorised to do by r 27.06(1) of the Supreme Court Rules. The Prothonotary gave the following written reasons for rejecting the documents:

1. The Originating Motion, dated 10 July 2009 appears to have already been submitted to and rejected by the Prothonotary and the Court. Notwithstanding this fact, the document is illegible to the point that a Defendant could not be expected to respond to its content, nor could a court be expected to make assessments on its merits.

2. The document titled "Originating Motion to Revoke Will" is also rejected. Notwithstanding that this document has, in various forms, been used on prior occasions to attempt to initiate a proceeding, it is inherently irregular or an abuse of process of the court. The document meanders through many and varied issues including religion, psychiatry, society and notably issues surrounding the will of Ludmilla Klement. It is impossible to ascertain whether there is a genuine claim in relation to the testation and distribution of said will because the information in this document is not in a logical and coherent form. Furthermore, the form of the document is manifestly contrary to the requirements under 27.02 of the Supreme Court (general Civil Procedure) Rules 2010.

4 The matter was then referred to the judge. It appears that the matter was determined on the papers in chambers, without notice to Reverend Klement. The judge declined to direct the Prothonotary to accept the documents.

5 For reasons which follow, we have come to the conclusion that, in these quite exceptional circumstances, we should set aside the judge's order declining to make a direction and substitute an order directing the Prothonotary to accept the documents for filing.

6 As will become apparent, we have come to this conclusion not because we consider that there was any error in the decision of either the Prothonotary or of the learned judge. On the contrary, there was a perfectly proper basis for the Prothonotary's refusal to accept the documents for filing and for his Honour's refusal to direct the Prothonotary to receive the documents. Had we been in his Honour's position, we would almost certainly have come to the same conclusion. The documents are very difficult to read and very difficult to understand and, to the extent that they can be understood, it is very difficult to discern what ground is relied on relevant to the claim which Reverend Klement wishes to make.

7 Nevertheless, it appears to us that were the judge's order to stand, this could be productive of only one thing, that is, the prolongation of this pre-litigation phase. It is apparent from what Reverend Klement has said orally and in writing that he is adamant that the will should be revoked. It is quite plain - and we are satisfied - that a refusal to accept these documents for filing would not deter him from pursuing that claim.

8 Indeed, it is inevitable that, if these documents were rejected, further documents would be prepared to replace them, and there is every likelihood that those further documents would be in much the same condition. Part of the problem lies with the nature of the issues being ventilated, which are unusual and difficult to understand - for example, the notion of the 'secularisation' of the applicant's mother's will. It is difficult to understand what is meant by that, let alone what consequences it might be said to have for the application to revoke. Moreover, there are practical difficulties. We have been told this morning that Reverend Klement has no glasses, has been unable to replace his lost glasses, has very poor eyesight and has permanent chilblains, all of which make it more than usually difficult for him to prepare legible written material.

9 If, as we anticipate would occur, further documents were filed and were again rejected, then on the basis of what has occurred this time, the matter would come back before this Court on another application for leave to appeal. The same process might be repeated time without number. Given the fixed nature of the applicant's determination to prosecute these claims, it seems to us that we should make orders designed to expedite the litigation, for the sake of the applicant personally, for the sake of the (putative) respondent executor, who has already been brought into much litigation, and for the sake of the effective use of court time.

10 The course we propose is as follows. The 'originating motion', as so described by the applicant, should be referred to an Associate Justice of the Court, with the supplement which we will direct be filed by a date 14 days from now. At that point it will be a matter for the Associate Justice to decide how the matter should be dealt with. At least two possibilities suggest themselves.

11 The first is that the Associate Justice would convene a mediation of the matter. It would, of course, be quite exceptional to have a mediation of a matter where there were no pleadings but, as the putative respondent is well aware, this is a most unusual matter and any formality by way of court documents is not likely to assist. It would also be unusual to have a mediation where one party was represented by counsel - as the executor is likely to be - and the other, the applicant, appeared for himself. We raised that matter with the applicant in the course of argument, in response to his having raised the suggestion of mediation. He has indicated that he would positively prefer the opportunity to ventilate his grievances in a mediation, his view being that this would afford him a better opportunity for the ventilation of those grievances than argument in court. That is a matter for the Associate Justice.

12 The alternative is as follows. To the extent that the judicial officer considers that the originating motion is not in proper form, any further obligation to comply with the rules could be dispensed with. The applicant would be given the opportunity during one, and one only, court hearing to articulate the matters upon which he relies for the revocation of the will. Of course this would be on notice to the respondent, who might or might not choose to appear.

13 This latter course, it seems to us, would enable the grievances to be ventilated and articulated, and a judicial officer to decide whether Reverend Klement raises any cognisable ground in law. From what we have been able to discern from the material, and from the nature of the grievances ventilated in the executor proceeding, we have very real doubts where there is any legally cognisable ground for the revocation of the will. But we have not heard argument on the matter and we have not given Reverend Klement an opportunity here to speak to the written material.

14 In short, it seems to us that, one way or another, there should be an early trial or mediation of these issues, without further documentation being required or accepted (apart from the supplement already mentioned). If that can be done, subject of course to other business of the court, that would seem to be in the best interests of all concerned.

15 For these reasons we make the following orders. There be an extension of time to this day for application to be made for leave to appeal from the order of Dixon J made 1 November 2010. Leave to appeal is granted. The appeal is treated as having been heard instanter and allowed and the order of his Honour is set aside. In lieu of that order we order pursuant to r 27.06(3) of the Supreme Court Rules that the Prothonotary be directed to accept for filing the documents which were refused to be filed.

16 We order that any supplement to the originating motion be filed with the Prothonotary, and accepted by the Prothonotary for filing, on or before 18 February 2011.

17 We will note in 'Other Matters' that, because of the connection between this application and the matters involving the executor, Mr Randles, disposed of last year, a copy of the reasons for decision today will be provided by the Court to the solicitor for the executor.

[1] Klement v Randles [2010] VSCA 160 (the 'executor proceeding').