Re Saric; Saric v Vukasovic (No 3) - [2021] VSC 60

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2021 00363

GRGO SARIC	Proposed Plaintiff
v
TANJA VUKASOVIC (who is sued as executrix of the will and estate of DANKA SARIC, deceased)	Proposed Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	16 February 2021
CASE MAY BE CITED AS:	Re Saric; Saric v Vukasovic (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 60

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PRACTICE AND PROCEDURE – Self-represented litigant – Refusal by Prothonotary to seal document as originating process – Plaintiff seeking direction to Prothonotary to accept document – Application refused – No direction given to the Prothonotary to accept the proposed originating process – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 27.06.

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiff	No appearance (the application being referred on the papers by the Prothonotary)

HIS HONOUR:

The plaintiff’s wife died on 1 June 2014 leaving a written will. On 12 September 2016 the Court granted probate to the defendant who is a daughter of the deceased and the plaintiff. The will did not make any provision for the plaintiff but left all of the estate to the deceased’s children. The estate included a half share as tenant in common with the plaintiff of what had been the matrimonial home at 68 Ford Street, Ivanhoe and an investment property at Unit 3, 64 Ford Street, Ivanhoe.

On 24 March 2017 the plaintiff filed a summons by which he sought:

(a) orders that would have the effect of setting aside a previous transfer of the Ford Street properties by the plaintiff and his wife from ownership as joint tenants to ownership as tenants in common; or alternatively
(b) an order under s 91 of the Administration and Probate Act 1958 for an order that provision be made of out the estate for his proper maintenance and support.

That application was heard on 4 September 2017. The plaintiff had retained solicitors and was represented by counsel. No application was made at that time to revoke the grant of probate and indeed the application proceeded on the assumption that the will was valid.

The plaintiff’s application for orders that would have the effect of setting aside a previous transfer of the Ford Street properties by the plaintiff and his wife from ownership as joint tenants to ownership as tenants in common was dismissed but he succeeded in his application that provision be made out of the estate for his proper maintenance and support. On 14 December 2017 the Court ordered, in substance, that the plaintiff have a life interest in the property at Unit 3, 64 Ford Street, Ivanhoe. The plaintiff was unsuccessful in his application to obtain a larger share of the estate and in particular an entitlement to the 68 Ford Street property. The plaintiff applied for leave to appeal to the Court of Appeal. The plaintiff had pro bono assistance at the appeal. The…

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.

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Details

Case: [2021] VSC 60
Decision Date: 16 February 2021

CaseChat Overview and Summary

In the matter of Re Saric; Saric v Vukasovic, the plaintiff, self-represented, sought direction from the court to the Prothonotary to accept a document as an originating process. The Prothonotary had previously refused to seal the document, and the plaintiff was now seeking judicial intervention to compel acceptance. The case was heard in the Supreme Court of Victoria, with the primary focus being on the procedural aspects of the court’s rules concerning the acceptance of originating processes.

The legal issues before the court involved the interpretation and application of Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 27.06. Specifically, the court had to determine whether the plaintiff's document complied with the requirements of an originating process and whether the Prothonotary’s refusal to seal the document was justified under the rules. The court also had to consider the plaintiff's standing and the appropriate remedy, if any, to address the refusal.

The court examined the contents of the plaintiff's document and found that it did not comply with the formal requirements set out in the rules. It was noted that the Prothonotary had the discretion under rule 27.06 to refuse to seal a document that did not meet the necessary criteria. The court held that the Prothonotary's decision to refuse the sealing was justified, and therefore, the plaintiff's application for direction was refused. The court declined to give any direction to the Prothonotary, upholding the Prothonotary's discretion in this matter.

No direction was given to the Prothonotary to accept the proposed originating process. The court dismissed the plaintiff's application, affirming the Prothonotary’s decision and the application of rule 27.06.

Orders