Gao v Zhang
[2002] VSC 173
•8 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5934 of 2001
| PENG YUAN GAO | Appellant |
| v | |
| YAN ZHANG | Respondent |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 May 2002 | |
DATE OF JUDGMENT: | 8 May 2002 | |
CASE MAY BE CITED AS: | Gao v Zhang | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 173 | |
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Appeal – appeal from Master’s order on pleading summons – defective statement of claim – order on appeal that objectionable parts but not entire statement of claim be stuck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms L. Hannon | Clayton Utz |
HIS HONOUR:
Before me is an appeal from a Master’s order made on 16 April this year upon the defendant’s summons filed 12 March. By her summons the defendant sought an order pursuant to Rule 23.02 of Chapter 1 and in the Court's inherent jurisdiction that the plaintiff's statement of claim filed on 24 May 2001 be struck out as not disclosing a cause of action; as being scandalous, frivolous or vexatious; as being such as might prejudice, embarrass or delay the fair trial of the proceeding; or otherwise being an abuse of the process of the Court.
The learned Master did not accede to the defendant's application. Rather, he granted leave to the plaintiff to file and serve an amended statement of claim; and granted leave to the defendant to file and serve a notice requiring the plaintiff both to specify material facts on which allegations in the statement of claim were based and to provide further and better particulars of that pleading.
It is from the Master's order, not wholly favourable to either party, that the plaintiff now appeals. The plaintiff contends that the defendant's summons should be dismissed and that the defendant should pay his costs.
This matter has an extraordinarily unfortunate history.
The plaintiff, who has at all times been unrepresented, filed his writ on 24 May 2001. His statement of claim was filed on the same day. He made several applications in the next few weeks, one of which was for a Mareva injunction, and another which simply sought disclosure of the defendant's assets.
The plaintiff was generally unsuccessful with his applications. On 14 June last year, Beach, J. struck the proceeding out. The "other matters" section of that order noted that -
"The applications this applicant continues to make to the Court are misconceived and without merit."
The plaintiff sought and obtained leave to appeal. The appeal was heard and determined in February this year. It was allowed and the order made by Beach J. was set aside. In lieu thereof the Court ordered that an application made by the plaintiff by summons filed on 31 May 2001 be dismissed. It further ordered that the time for serving a defence be extended until 4.00 p.m. on Monday 18 March 2002.[1]
[1]It will be noted that it was on 12 March, that is prior to the time when the defence was last due for delivery, that the defendant instituted the summons now under consideration.
When referring to the substantive proceeding, Phillips, J.A., with whose reasons Batt and Vincent, JJ.A. concurred, observed inter alia that -
"A detailed Statement of Claim was also filed on 24 May 2001, alleging some sort of business arrangement between the appellant and the respondent and deliberate dishonesty on the part of the respondent involving the transfer of considerable sums of money between the two."[2]
His Honour went on to say -
"In some respects it is difficult to reconcile the wording of the endorsement on the writ with the wording on the statement claim (sic), but I pass that by."[3]
[2]Paragraph 3.
[3]Paragraph 3.
Later, in an addendum to his reasons, Phillips, J.A. said this -
"Mr Gao has mentioned the possibility, too, that he might wish to mend his hand by amending the writ or the statement of claim and I suppose that on the material so far filed there is even the possibility that he might wish to add a party."
It is I think perfectly clear that at no point did his Honour suggest, nor indeed was he invited to consider, whether the statement of claim was in a form that complied with the Rules. What his Honour said in passing about the statement of claim and the prospect of amendment rather reflects obvious difficulties with the statement of claim in its present form, albeit that the form of the pleading did not require analysis by the Court of Appeal.
The present appeal is by way re-hearing. It was therefore open to counsel for the defendant to submit, and she did submit, that the statement of claim ought to be struck out. Mr Gao for his part submitted that there was nothing wrong with the statement of claim.
It cannot be said that the matter before me was very satisfactorily argued by Mr Gao. He repeatedly declined to answer questions that I asked him. He insisted upon addressing an issue concerning a solicitor who acted for him in another proceeding and who had some slight connection at one stage with the present proceeding. He declined my invitation, made on a number of occasions, to explain to me in short compass the substance of his claim against the defendant. He baldly asserted that the statement of claim existed and the defendant could simply deny allegations there made. He argued the defendant could say, where some allegation was made which was not an allegation of material fact, simply that the allegation was not one of fact. In the event, as I said a few moments ago, I was not much assisted by Mr Gao's presentation today.
There is a natural sympathy for a litigant in person. I would readily accept that pleading rules may be difficult for a layman to understand, perhaps the more so in the case of a layman whose first language is not English. That said, the rules exist, and they do so for a number of very good reasons. A party against whom allegations are raised should know what those allegations are – spelled out as a series of assertions of material facts. A party should not be faced with allegations which are irrelevant or scandalous. When allegations of serious misconduct are made against a party, the material facts said to support the allegations should be clearly stated.
In my opinion, the statement of claim in its present form offends basic pleading rules. It does not plead in summary form a statement of material facts upon which the plaintiff relies. It interweaves conclusions of law with statements of fact and details of evidence. It asserts causes of action in the absence of any coherent pleading of material facts. It raises matters of evidence which might be thought to anticipate defences which the plaintiff believes the defendant will raise. It makes serious and irrelevant allegations of misconduct on the part of the defendant, including an allegation that the defendant perjured herself in proceedings in the Magistrates' Court. It is, I think, very difficult to discern in the statement of claim as presently existing an intelligible and expressed train of thought.
In the ordinary case, in the circumstances described, I do not doubt that I should strike out the statement of claim and give the plaintiff leave to re-plead. But it is very clear from my examination of the papers on the court file that the plaintiff has by his statement of claim, by affidavits and in submissions constantly reiterated the various matters which appear in the statement of claim. If I was to strike out this statement of claim and give the plaintiff leave to re-plead, I have not the slightest doubt that what he would do would be to replicate what he has done already. That would serve no good purpose.
Doing the best I can and really unassisted by the plaintiff's oral submissions, I think that the plaintiff wishes to allege that the defendant falsely represented to him that she would marry him; that she held out to him a false representation that they would enter into a business venture; that in consequence of those representations, he, the plaintiff, gave her substantial sums of money; that when neither the marriage nor the business eventuated, he sought repayment of the moneys and that the defendant refused to repay them. So, the plaintiff says, he is entitled to an amount representing the amount which he paid the defendant, together with interest and costs.
It is no part of that case what the defendant in fact did with the money. An allegation that she gave all or some of the moneys to a boyfriend is irrelevant as a matter of pleading. Neither is it in point, for pleading purposes, whether the defendant tricked the plaintiff into signing documents which put the transfer of moneys into a false light, nor whether she falsely gave instructions to a solicitor that the plaintiff was indebted to her. All those matters might arise in the course of a trial of the plaintiff's claim that he has been defrauded out of his moneys by the defendant. But they are not matters that he must plead to make out his case.
I have looked at the statement of claim to see whether it is possible to produce out of it a claim conforming with what I take to be the plaintiff's intended case. I think that it is possible to do so, and that by doing so the most obviously objectionable parts of the statement of claim will be excised.
What I propose to do in the circumstances is to allow the appeal and in lieu of the Orders made by the Master to order that the particulars to paragraph 6 of the statement of claim, paragraphs 7 and 8, the particulars to paragraph 9, paragraphs 10 and 11, paragraph 13, the particulars to paragraph 14, paragraph 15 and paragraph (b) first appearing in the prayer for relief, be struck out. I will grant leave to the defendant to deliver a request for further and better particulars of the statement of claim within 21 days – that is, by 29 May. I will require the plaintiff to provide further and better particulars within 21 days thereafter – that is, by 19 June. I will further extend the time for delivering a defence until 14 days after the last day for provision of further and better particulars – that is, until 3 July.
I am conscious that the orders I propose will not disclose a case that might possibly be raised by the plaintiff: that he agreed to provide and did provide moneys to the defendant upon her agreeing to marry him and to enter into a business partnership with him; that by reason of the defendant’s conduct neither the marriage nor the business venture eventuated; and that he should have relief by reason of the defendant’s breach of agreement. But so far as I can see the plaintiff has never sought to bring a case simply on that basis and the Court can hardly be criticised for not creating a case for him.
I am also conscious of the fact that in the orders I propose the plaintiff's apparent claim for distress damages will be excised. It might be that such damages could be available in a case founded in fraudulent misrepresentation. I generally discussed the availability of damages for distress in Aldersea and Ors v P.T.C. [4]. In the absence of submissions I leave the matter open. It may be that the plaintiff will want to amend his statement of claim to add, but in some more limited form than now appears in paragraph (b) where first appearing in the prayer for relief, a claim for distress damages. That is a matter that he will need to consider.
[4][2001] VSC 169.
I now formally make the orders which I mentioned a few moments ago. That leaves only the question of costs concerning which it might be said that the defendant has had some but incomplete success. I would be inclined to make the costs of the summons, both before the Master and before me, costs in the cause. I will of course hear Mr Gao and counsel on that matter.
(Discussion ensued regarding costs and three affidavits)
I order that the plaintiff's affidavit sworn 23 April and the solicitors’ affidavits sworn 28 April and 1 May be removed from the court file. I further order that costs be in the cause, save that the plaintiff should pay the costs of preparation of the two affidavits, that is the affidavits of the two solicitors. I consider that the allegations that the plaintiff made against the solicitors called for a response, even though they were allegations that were entirely irrelevant to today's proceeding. I do not see why the defendant should be out of pocket in that connection.
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