JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	By written submissions between 16 April and 25 May 2020
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Cappelleri v Cappelleri
MEDIUM NEUTRAL CITATION:	[2020] VSC 306

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PRACTICE AND PROCEDURE – Application to dismiss proceeding for want of prosecution within the inherent jurisdiction of the Court – Application to dismiss proceeding for breach of overarching obligations contained in Civil Procedure Act 2010 (Vic) – Where plaintiffs have changed legal representation five times and delayed the conduct of the proceeding – Where plaintiffs have failed to comply with court orders – No evidence of prejudice to the defendants arising from the plaintiffs delay – The interests of justice in the ‘just’ resolution of the disputes outweighs the speed and efficiency of their resolution – Application refused – Supreme Court (General Civil Procedure) Rules (Vic) r 24.05 – Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Spitfire Nominees Pty Ltd v Ducco [1998] 1 VR 242; Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; Knorr v CSIRO [2014] VSCA 84 – Civil Procedure Act 2010 (Vic) s 29.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	NA	Access Law
For the Defendant	NA	Madgwicks Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Procedural History............................................................................................................................. 4

January 2017 to April 2018........................................................................................................... 4
June 2018 to September 2019....................................................................................................... 6
September to December 2019...................................................................................................... 7
December 2019 to February 2020................................................................................................ 8
February to March 2020............................................................................................................... 9
March to April 2020...................................................................................................................... 9
April 2020 to present................................................................................................................... 10

Relevant Law..................................................................................................................................... 12

Inherent Power of the Court to Dismiss Proceedings............................................................ 12
Dismissal under CPA................................................................................................................. 17

Submissions...................................................................................................................................... 19

Defendants’ Submissions........................................................................................................... 19
Submissions regarding inherent power of the Court................................................... 20
Submissions regarding the CPA..................................................................................... 20

Plaintiff’s Submissions............................................................................................................... 21
Defendants’ response................................................................................................................. 23

Consideration.................................................................................................................................... 24

Conclusion......................................................................................................................................... 28

HIS HONOUR:

Introduction

The first to third defendants, Domenico Cappelleri (Domenico), Mario Cappelleri (Mario) and F & L Pty Ltd (F & L) (collectively the defendants[1]), seek the dismissal or stay of the proceeding, either in whole or in part, on two grounds. First, dismissal of the proceeding for want of prosecution and second, dismissal owing to breach of overarching obligations under the Civil Procedure Act 2010 (Vic) (‘CPA’).[2]
[1]The fourth and fifth defendants are ASIC and the Registrar of Titles and they have not participated in the proceeding.
[2]The application was made by summons filed on 30 March 2020. The summons also seeks the striking out of the amended statement of claim, but no submission was directed to that relief.

The plaintiffs are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cappelleri v Cappelleri

Details

AGLC: Cappelleri v Cappelleri [2020] VSC 306
Case: [2020] VSC 306
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the matter of Cappelleri v Cappelleri, the applicants sought to dismiss the proceedings for want of prosecution and for breach of overarching obligations. The dispute between the parties involved complex financial and property matters, and the case was before the Supreme Court of Victoria. The applicants argued that the plaintiffs had changed their legal representation multiple times and delayed the conduct of the proceeding, which had led to significant costs and delays. The applicants also claimed that the plaintiffs had failed to comply with court orders, which had further exacerbated the situation.

The court had to determine whether the plaintiffs' conduct warranted the dismissal of the proceedings. The court considered the inherent jurisdiction of the court to manage its own processes and the overarching obligations contained in the Civil Procedure Act 2010 (Vic). The court noted that while the plaintiffs had indeed changed legal representation multiple times and delayed the conduct of the proceeding, there was no evidence of prejudice to the defendants arising from the plaintiffs' delay. The court also considered the interests of justice in the ‘just’ resolution of the disputes, which outweighed the speed and efficiency of their resolution.

After careful consideration of the relevant authorities and the facts of the case, the court refused the application to dismiss the proceedings. The court held that the interests of justice in the ‘just’ resolution of the disputes outweighed the need for speed and efficiency. The court found that the applicants had not demonstrated that the delay had caused any prejudice to them, and that the plaintiffs' conduct did not warrant the dismissal of the proceedings. The court also noted that the plaintiffs had taken steps to address the delays and had complied with the court's orders in recent times. The court considered that the proceedings should be allowed to continue, and that the parties should be given an opportunity to resolve their disputes in a fair and just manner.

No specific orders were made in the judgment, and the proceedings were allowed to continue. The court emphasised the importance of the parties taking responsibility for the conduct of their own proceedings and complying with court orders to ensure that the court's resources are used efficiently and effectively.

Orders