Gao v Zhang - [2002] VSC 173

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…

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 [2002] VSC 173
Case: [2002] VSC 173
Decision Date: 8 May 2002

CaseChat Overview and Summary

In the matter of Gao v Zhang, the appellant, Mr. Gao, sought to appeal a decision by a Master of the Federal Circuit Court that had struck out parts of his statement of claim. The respondent, Mr. Zhang, had filed a pleading summons seeking an order that certain parts of the statement of claim be struck out on the grounds that they were defective and did not disclose a cause of action. The court of appeal was tasked with determining whether the Master's order was correct and, if not, what the appropriate course of action should be.

The primary legal issue before the court was whether the Master had the authority to strike out parts of a statement of claim and, if so, whether the Master had exercised that authority correctly in this case. Specifically, the court needed to determine whether the objectionable parts of the statement of claim were so defective as to warrant being struck out entirely, or whether they could be amended to remedy the defects. The court also had to consider the principles of fairness and justice in determining the appropriate remedy.

The court held that the Master did indeed have the authority to strike out parts of a statement of claim if they were found to be defective and did not disclose a cause of action. However, the court found that the Master had erred in striking out the entire statement of claim rather than just the objectionable parts. The court held that the objectionable parts of the statement of claim were indeed defective and should be struck out, but that the remainder of the statement of claim was not defective and should not have been struck out. The court found that the Master's order was therefore incorrect and ordered that the objectionable parts of the statement of claim be struck out, but that the remainder of the statement of claim be allowed to stand. The court also ordered that Mr. Gao be given an opportunity to amend the statement of claim to remedy any remaining defects.

In light of the above, the court made an order that the objectionable parts of the statement of claim be struck out, but that the remainder of the statement of claim be allowed to stand. The court also ordered that Mr. Gao be given an opportunity to amend the statement of claim to remedy any remaining defects. The court further ordered that the costs of the appeal be paid by Mr. Zhang.

Orders