Gao v Zhang - [2005] VSC 197

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

PRACTICE COURT

Not Restricted

No. 5934 of 2001

PENG YUAN GAO	Plaintiff
v
YAN ZHANG	Defendant

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 24 May 2005
DATE OF JUDGMENT:	24 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSC 197

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Appeal – appeal from Master’s order staying the proceeding pursuant to r. 63.03(3) – relevant factors – effect of plaintiff’s impecuniosity – appeal dismissed.

Supreme Court (General Civil Procedure) Rules 1996 r. 63.03

Australia & New Zealand Banking Group Ltd v Parker (unreported), Coldrey J, 7 March 1997, applied.
Exell v Exell [1984] VR 1, considered.
Thompson v Ronstan International Pty Ltd [2000] VSC 47, considered.
Valimi Pty Ltd v Maniotis [2001] VSC 157, applied.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In person
For the defendant	Mr B Carew	Clayton Utz

HER HONOUR:

The appeal

This is an appeal from the order of a master made on 28 April 2005. On that day Master Kings ordered pursuant to rule 63.03 of the Supreme Court (General Civil Procedure) Rules 1996 that the proceeding be stayed pending the payment of the defendant's costs taxed in the sum of $8,052.80 (“the Costs”). The master also adjourned sine die a summons filed by Mr Gao on 3 March 2005, in so far as it sought the inspection of certain documents that had been produced on subpoena, and otherwise dismissed his summons.

By notice of appeal dated 29 April 2005, Mr Gao appeals against all orders made by the master. The present appeal is by way of re-hearing. The material which was before me included affidavits sworn by Mr Gao on 4 May 2005, 19 April 2005 and 3 March 2005. Mr Gao also handed up to me a number of other documents, including affidavits, exhibits and judgments from other applications or appeals by him, most of which were irrelevant to this appeal. He also relied upon an affidavit of financial situation (“the financial affidavit”) which was attached to his most recent application to the Prothonotary to waive court fees, dated 3 March 2005, and a letter from Insolvency & Trustee Service Australia, which I will mention again shortly.

The defendant relied upon the affidavit of Tiffany Veschetti affirmed on 23 February 2005, which had been filed in support of her summons of the same day seeking a stay.

Unfortunately, Mr Gao’s appeal proceeded in a very unsatisfactory manner. Mr Gao frequently interrupted me, declined to answer questions that I asked him, spoke too quickly - given his strong accent - to be comprehended and insisted upon addressing me on issues which were irrelevant to the present appeal. His submissions were not of a great deal of assistance. I note from judgments given by other judges of this court that I am not the first judge to experience such problems with Mr Gao.

That said, one has considerable sympathy for a litigant appearing in person, particularly a litigant for whom English…

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 Gao v Zhang

Details

AGLC: Gao v Zhang [2005] VSC 197
Case: [2005] VSC 197
Decision Date: 24 May 2005

CaseChat Overview and Summary

In Gao v Zhang, the plaintiff, Gao, appealed against a Master's order that stayed the proceedings pursuant to rule 63.03(3) of the Supreme Court (General Civil Procedure) Rules 1996. The plaintiff sought to recover money from the defendant, Zhang, for a debt allegedly owed to him. The central issue was whether the Master had correctly exercised their discretion to stay the proceedings due to the plaintiff's financial difficulties.

The court needed to determine whether the Master appropriately considered all relevant factors, particularly the plaintiff's impecuniosity. The court examined whether the plaintiff's inability to pay the costs of the proceedings was a sufficient ground to stay them, in accordance with the cited cases. The court referenced Australia & New Zealand Banking Group Ltd v Parker, Thompson v Ronstan International Pty Ltd, and Valimi Pty Ltd v Maniotis to assess the appropriate exercise of discretion under the rules.

The court found that the Master had considered all relevant factors, including the plaintiff's financial situation, and correctly exercised their discretion in staying the proceedings. The court held that the plaintiff's impecuniosity was a significant factor but not the sole determinant. The court concluded that the Master's decision was not an abuse of discretion. Consequently, the appeal was dismissed, and the stay of proceedings was upheld.

The court did not make any further orders, as the appeal was dismissed on the grounds presented.

Orders