Gao v Zhu
[2017] VSC 105
•20 March 2017
| 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 06/06/2003 to Supreme Court] as to defendant transfers and conceals assets for defeated creditor, and contest fund in Court.
5.The fund in Court [Court action no. 1999/6371, Ref: 18412] is stayed in Court upon further Court order.
6.The costs are reserved.
7.Any other orders that the Court deems fit.
…
Filed on: 29/11/2016
…
4 The main reasons the Prothonotary rejected the Summons for filing was because it considered:
a.(a) the Summons was sufficiently deficient in clarity as to Mr Gao’s purpose and remedies he was seeking and the powers that the Court was able to exercise;
b.(b) the Summons was considered to be incomprehensible and the affidavit in support at the time, sworn 6 November 2016, incomprehensible and did not advance that matter;
c.(c) it was unclear as to what the Court was being requested to determine in paragraphs 2 and 3 of the summons; and
d.(d) it was considered that Mr Gao may have been seeking to re-litigate matters already decided by this Court.
e.5 On 23 February 2017 at Mr Gao’s request, Justice Ginnane ordered on the papers that Mr Gao’s application for a direction under order 27.06(1) and (3) of the Rules be referred for hearing to the Judge sitting in the Practice Court.
f.6 The following is a brief chronology based on the Court file and documents filed by Mr Gao.
g.7 In 1999 Mr Gao brought the proceeding against the defendant seeking recovery of money allegedly given to the defendant, claiming she breached various obligations. In 2001 Mr Gao obtained judgment against the defendant in the sum of $160,000. The amount did not cover his total claim. He was granted leave to file a further amended statement of claim to claim further damages, which he did. On 6 September 2001, the defendant paid into Court through her Official Trustee in Bankruptcy $85,974.47 which is being held and invested. As at November 2016 the Funds in Court section of the Supreme Court of Victoria holds $101,943.08.
h.8 On 10 April 2002 the defendant was made bankrupt.
9 On 14 June 2002 Mr Gao filed a summons seeking the following relief:
(a)the plaintiff has leave (sic) the said trustees is in lieu of Y Jing Zhu as a defendant in the proceeding;
(b)contract note made by Zhu on 8 February 2002 for selling the property at 168 Hansworth Street, Mulgrave …be set aside; and
(c)the property be sold as soon as possible… and the proceeds of sale be paid to the Court for pending further order of the Court.
a.10 Justice Gillard in Peng Yuan Gao v Official Trustee in Bankruptcy of Yu Jing Zhu noted that Mr Gao appeared to be seeking to join the Official Trustee as a defendant. His Honour held that the application was premature and that Mr Gao should pursue his rights in the bankruptcy. His Honour noted that if Mr Gao failed because his claim is not a provable debt he may return to this Court. The application was dismissed.
b.11 On 27 July 2016 Funds in Court began corresponding with the Australian Financial Security Authority (AFSA) as Official Trustee and Mr Gao, to advise that the funds held will be paid into consolidated funds after 15 years.
c.12 The AFSA advised Funds in Court that upon review the Official Trustee will withdraw its claim in regard to the funds held. Mr Gao has not made an application to claim any of the money held.
d.13 On 5 September 2016 Mr Gao attempted to file the Summons which was rejected. On 29 November 2016 after a number of attendances at the registry of the Supreme Court Mr Gao summoned the Senior Deputy Prothonotary who rejected the Summons and refused to seal it. In paragraph 11 of Mr Gao’s 13 March 2017 affidavit, he deposes that on 29 November 2016 he had the benefit of the assistance of not just the Senior Deputy Prothonotary but also the Prothonotary of this Court in relation to his Summons. I note that Mr Gao takes issue with the explanations provided.
Reasons
a.14 Mr Gao made further oral submissions before me at the hearing of this matter on 14 March 2017. It is fair to say that Mr Gao is difficult to understand and the Court and Mr Gao may be assisted in the future if Mr Gao has a translator. Having said that, his written documents show a reasonable command of English and I was able to understand the key aspects of Mr Gao’s oral submissions.
b.15 Mr Gao understands that there were deficiencies in the Summons and in particular with paragraph 4. He submitted that paragraph 4 could be removed. He also submitted that he required at least two months to prepare a more detailed affidavit in support of his application. Mr Gao said the further affidavit would be complex and lengthy, and appears to go to the substance of Mr Gao’s grievance, albeit it is difficult to know the precise nature of his grievance. The difficulty is that the Summons, even absent paragraph 4 and even with a further affidavit in support, is still on the whole incomprehensible and an impenetrable document.
c.16 The affidavits in support regrettably are difficult to follow and are on the whole incomprehensible. The affidavit sworn 6 September 2016 sets out a series of facts in a disconnected manner. The affidavit makes submissions, assertions and allegations against the defendant and the non-party. It goes beyond facts which Mr Gao is able to state from his own knowledge, and it is not clear whether such statements are based on information and belief and if so, the grounds for same. The same defects are found in the 8 March 2017 and 13 March 2017 affidavits. The two later affidavits also make serious allegations and assertions against former Judges of this Court and the Federal Court, and the Prothonotary and Senior Deputy Prothonotary of this Court.
d.17 In relation to the Summons, while it is on the whole an impenetrable document, of most concern is the fact that the Official Trustee in Bankruptcy has been named in the heading of the proceeding as a non-party. It is not clear whether Mr Gao is seeking to join the Official Trustee as a party, or to substitute the Official Trustee in place of the defendant, as sought in order 1 of the Summons. Due to this lack of clarity, it is not clear whether Mr Gao is seeking to re-agitate a matter that has already been dealt with by Justice Gillard such that the Summons is the same or a variant of a claim previously made unsuccessfully, and therefore an abuse of process.
e.18 The relief sought by Mr Gao lacks clarity and is on that basis irregular. It appears that Mr Gao would like:
f.(a) the Official Trustee to investigate the transfer of monies by the defendant to her mother to defeat a creditor;
g.(b) the Court to ‘assess’ the non-provable damage suffered by Mr Gao as to the property which was premeditatedly sold by the defendant ‘and etcetera’;
h.(c) the Court to deal with the fact (as alleged by Mr Gao) that the defendant and the Official Trustee have perverted the course of justice by knowingly, wilfully and intentionally swearing false testimony; and
i.(d) it is unclear whether the reference to paragraph 4 to ‘and contest fund in court’ is what Mr Gao seeks from the Court, or whether it is an allegation against the defendant and the Official Trustee.
j.19 As Justice Almond noted in Jiri Klement v Peter James Randles:
Accordingly, the proposed claim may well be an abuse of process. In the circumstances, precision in identifying the nature of any claim and the relief or remedy sought will be especially important (SCR 5.05). Granting Mr Klement an indulgence by relieving him from compliance with the Rules would not achieve that end. Allowing a document in this form to be sealed as an originating process would also be oppressive to the proposed defendant, Mr Randles.
a.20 In the circumstances I consider that allowing the Summons in its current form to be sealed would be oppressive to the defendant and in this case the non-party in whatever capacity it is Mr Gao seeks to have them involved in the proceeding.
b.21 I note also that part of the registry’s role is to provide a service to the profession and to the community. While it is unnecessary to embark on enquiry into whether in this case the service provided by the registry was in some way deficient, I note that on Mr Gao’s own affidavit he was attended to by not just the Senior Deputy Prothonotary but also the Prothonotary of this Court and provided with some preliminary guidance in relation to his summons which he has refused up until the hearing of this matter to abide by. I note, however, as did the Court of Appeal in Shaw v Yarranova Pty Ltd & Anor that while the registry tries to assist self-represented litigants, there are limits to how far it can go. The registry is not there to provide legal advice. Nor can it become a partisan or be seen to do so.
c.22 Further, I note that in this instance there can be no suggestion that Mr Gao was not provided with assistance by the registry.
d.23 I decline to direct the Prothonotary to seal the document as an originating process or to accept the document for filing.
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