Re Cappelleri (Ruling No 1) - [2022] VSC 561

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2017 00286

LEONIE CAPPELLERI (by her Litigation Guardian VINCENZO NICOLA CAPPELLERI)	First Plaintiff
VINCENZO NICOLA CAPPELLERI (as the Administrator of the Estate of FRANK CAPPELLERI, deceased)	Second Plaintiff
VINCENZO NICOLA CAPPELLERI	Third Plaintiff
v
DOMENICO CAPPELLERI	First Defendant
MARIO CAPPELLERI	Second Defendant
F&L PTY LTD (ACN 006187873)	Third Defendant
REGISTRAR OF TITLES	Fourth Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed on 15 August 2022, 2 September 2022 and 15 September 2022
DATE OF RULING:	21 September 2022
CASE MAY BE CITED AS:	Re Cappelleri (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2022] VSC 561

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EVIDENCE – Admissibility of affidavit – Where plaintiffs seek to rely upon affidavit sworn prior to loss of deponent’s capacity – Lack of availability for cross-examination by defendants – Where defendants allege creation of affidavit was irregular or anticipatory to loss of capacity and constituted an abuse of process – s 192A Evidence Act 2008 – rr 40.02, 40.03 Supreme Court (General Civil Procedure) Rules 2015 – Re O’Neil, deceased [1972] VR 327 – Goddard Elliot v Fritsch [2012] VSC 87.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Justin O’Bryan	Madgwicks
For the Defendants	Gerard Nash K.C.	Access Law

HIS HONOUR:

By summons dated 7 July 2022, the plaintiffs seek directions about the reception at trial of evidence from Leonie Cappelleri, the first-named plaintiff in the proceeding.[1] On 30 August 2021, the Court appointed Vincenzo Cappelleri as Leonie’s litigation guardian as Leonie had lost legal capacity. Vincenzo is Leonie’s son and the third plaintiff in the proceeding. He is also the second named plaintiff in his capacity as the administrator of the estate of his father and Leonie’s husband,[2] Frank Cappelleri, who died on 18 October 2014.
[1]In the interests of clarity and without intending any disrespect, in this ruling I generally refer to the parties by their first names.
[2]Leonie and Frank separated in 2005.

The subject matter of the plaintiffs’ summons is an affidavit sworn by Leonie Cappelleri on 9 November 2020 (Leonie’s affidavit). The plaintiffs submitted that, given that Leonie had become incapacitated, it was appropriate for the Court to make orders pursuant to r 40.03(1)(b) and r 40.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) that Leonie’s evidence at trial be given by her affidavit dated 9 November 2020 and that her attendance at Court be dispensed with. It is anticipated that the proceeding will shortly be fixed for trial.[3]
[3]The trial was initially fixed for trial on 8 June 2021 but was adjourned for the reasons generally outlined in [4].

The plaintiffs’ application was opposed by the defendants who are Frank’s brothers, Domenico Cappelleri and Mario Cappelleri, and a company, F&L Pty Ltd.

Background

The background to this proceeding, the nature of the parties’ claims and aspects of the procedural history were summarised by McMillan J…

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 Re Cappelleri (Ruling No 1)

Details

AGLC: Re Cappelleri (Ruling No 1) [2022] VSC 561
Case: [2022] VSC 561
Decision Date: 21 September 2022

CaseChat Overview and Summary

The proceedings, Re Cappelleri, involved an application by the plaintiffs to admit an affidavit sworn by a deponent who subsequently lost capacity. The dispute was heard in the Supreme Court of Victoria. The central issue before the court was whether the affidavit, sworn by a person who later lost their capacity to provide evidence, could be admitted despite the deponent's unavailability for cross-examination. The defendants argued that the creation of the affidavit was irregular, anticipatory of the deponent's loss of capacity, and constituted an abuse of process. The court had to consider the statutory provisions under section 192A of the Evidence Act 2008 and the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015.

The court examined the circumstances under which the affidavit was sworn and the nature of the deponent's loss of capacity. It considered whether the affidavit was created in anticipation of the deponent's incapacity, and if so, whether this rendered the affidavit inadmissible. The court referenced previous cases such as Re O’Neil, deceased and Goddard Elliot v Fritsch to understand the scope of admitting evidence under such circumstances. The analysis focused on whether the affidavit's admissibility would be justified by the balance of justice and fairness in the proceedings. The court also weighed the potential prejudice to the defendants if the affidavit were admitted against the public interest in admitting reliable evidence.

The court concluded that the affidavit could be admitted as it was not created in anticipation of the deponent's loss of capacity, and its admission would not result in an unfair trial. The court found that the balance of justice favoured admitting the evidence, as the deponent had provided a detailed and consistent account before losing capacity. The court's decision emphasised the importance of ensuring that the evidence was reliable and that the defendants' right to a fair trial was not compromised. The court ultimately ruled in favour of the plaintiffs, allowing the affidavit to be admitted as evidence in the proceedings.

Orders