Gao v Zhu - [2017] VSC 105

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 1999 6371

PENG YUAN GAO	Plaintiff
v
YU JING ZHU	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2017
DATE OF RULING:	20 March 2017
CASE MAY BE CITED AS:	Gao v Zhu
MEDIUM NEUTRAL CITATION:	[2017] VSC 105

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PRACTICE AND PROCEDURE – Self-represented litigant – Refusal by Prothonotary to accept summons – Plaintiff seeking direction to the Prothonotary to accept the summons – Summons irregular in form – Application refused – No direction given to the Prothonotary to accept the summons – Supreme Court (General Civil Procedure) Rules 2015, rule 27.06 – Jiri Klement v Peter James Randles [2014] VSC 364 – Shaw v Yarranova Pty Ltd & Anor [2012] VSCA 189.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person
For the Defendant	There was no appearance by or on behalf of the Defendant

HER HONOUR:

1 Mr Peng Yuan Gao is a self-represented litigant. Mr Gao seeks to file a summons dated 29 November 2016 (the Summons) supported by three affidavits, sworn 6 September 2016, 8 March 2017 and 13 March 2017.
2 The Prothonotary (via the Senior Deputy Prothonotary) rejected the Summons pursuant to r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The relevant rule states:
The Prothonotary may refuse to seal an originating process without the direction of the Court where the Prothonotary considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.
3 For convenience I will set out the terms of the Summons:
In the Supreme Court of Victoria Common Law Division No. 6371/1999 between Peng Yuan Gao and Yu Jing Zhu defendant
Official Trustee in Bankruptcy as trustee in the state of bankrupt of Yu Jing Zhu non-party
Summons [liberty to apply pursuant to order made by Nathan J on 26/11/2003]
Date of document: 29/11/2016
Filed on behalf of: plaintiff
Prepared by: plaintiff
To: non-party
You are summoned to attend before the Court on the hearing of an application by the plaintiff for orders that:
1. Non-party be made the party in substitution for the defendant of Yu Jing Zhu in proceeding no. 6371/1999 and that the proceeding be carried on.
2.Non-party investigates that bankrupt has, during the course of a bankruptcy, transferred and concealed cash value of $149,614.57 plus $26,741 to her relationship [mother of Wen Ai Chen and husband of George Leslie Grover] to defeat creditor.
3.Plaintiff’s non provable damage as to estate of V10303, F832 and 833 was premeditatedley sold by defendant and etcetera being assessed by the Court.
4.The Court deals with that during the course of the judicial proceedings and examinations, to pervert the course of justice, defendant and non-party have, knowingly, intentionally and wilfully, sworn false testimonies [non-party affidavit filed on…

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 Zhu

Details

AGLC: Gao v Zhu [2017] VSC 105
Case: [2017] VSC 105
Decision Date: 20 March 2017

CaseChat Overview and Summary

The plaintiff, Gao, initiated proceedings against the defendant, Zhu, in the Supreme Court of Victoria. Gao, self-represented, sought direction for the Prothonotary to accept a summons that he had filed, which was allegedly irregular in form. The primary issue before the court was whether the summons was sufficiently compliant with the Supreme Court (General Civil Procedure) Rules 2015 to warrant the Prothonotary’s acceptance. Additionally, the court considered the appropriate procedural steps and remedies available to the plaintiff in light of the alleged irregularity.

The court meticulously examined the summons in question, assessing its compliance with rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2015. The court referred to precedent, including Jiri Klement v Peter James Randles and Shaw v Yarranova Pty Ltd & Anor, to elucidate the standards for the formality of summons. The court determined that the summons contained significant irregularities and did not adhere to the requisite procedural norms. Given these findings, the court concluded that it was not appropriate to direct the Prothonotary to accept the summons. The court also noted that the plaintiff had not demonstrated a compelling reason to warrant an exception to the usual procedural requirements.

Ultimately, the court dismissed the plaintiff's application, finding that the summons was not acceptable in its current form. The court refused to provide the requested direction to the Prothonotary, thereby upholding the procedural integrity of the court. This decision underscores the importance of adhering to procedural rules, particularly when a party represents themselves, and highlights the court's reluctance to override established processes absent compelling justification.

Orders