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Sarto v Sarto

Sarto v Sarto

Case [2021] VSC 295 25 May 2021

Appeal

Admissibility of Evidence

Specific Performance

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 02887

MARCUS SARTO	Plaintiff
v
LIA SARTO	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021 (further written submissions filed 1 April 2021)
DATE OF JUDGMENT:	25 May 2021
CASE MAY BE CITED AS:	Sarto v Sarto
MEDIUM NEUTRAL CITATION:	[2021] VSC 295

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PRACTICE AND PROCEDURE — Pleadings summons — Application to strike out parts of a statement of claim — Applicable principles — Pleading material facts in particulars—Parts of the statement of claim lacking clarity — Offending paragraphs struck out with leave to amend — Wheelahan v City of Casey (No 12) [2012] VSC 316; Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186 referred to.

EVIDENCE — Without prejudice privilege — Whether it is appropriate in an interlocutory application to determine that a letter claimed by the defendant to be subject to without prejudice privilege under s 131 of the Evidence Act 2008 (Vic), or at common law, being a letter referred to in particulars to the statement of claim, is or is not subject to that privilege and, if so, to strike it out of the particulars — Insufficient evidence before the court, and inappropriate, to determine the issue in this interlocutory application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C R Northrop	Harwood Andrews
For the Defendant	Mr J P Carney	Whiting Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Summary of claims............................................................................................................................ 2

Pleadings.............................................................................................................................................. 3

Defendant’s submissions................................................................................................................. 8

First issue........................................................................................................................................ 8
Second Issue................................................................................................................................. 10
Third Issue - Reliance on privileged document...................................................................... 10

Plaintiff’s submissions................................................................................................................... 14

First issue...................................................................................................................................... 14
Second issue................................................................................................................................. 15
Third issue - Reliance on privileged document...................................................................... 15

Consideration.................................................................................................................................... 19

Rule 23.02..................................................................................................................................... 19
Order 13 and the principles of pleading.................................................................................. 21
First issue...................................................................................................................................... 24
Second issue................................................................................................................................. 26
Third issue.................................................................................................................................... 27

Costs.................................................................................................................................................... 29

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

The defendant applies by summons filed on 23 December 2020 for the following orders:

(a) That paragraphs (g) and (h) of the particulars to paragraph 17 of the Statement of Claim be struck out pursuant to the inherent jurisdiction of the Court as an abuse of the process.

(b) That paragraphs (d), (e) and (f) of the particulars to paragraph 17 of the Statement of Claim be struck out pursuant rr 23.02 (c) and (d).

(c) That paragraphs 15 and 16 of the Statement of Claim be struck out pursuant to rr 23.02 (a) to (d).

(d) That the Plaintiff pay the Defendant’s costs of this application.

The proceeding was commenced on 9 July 2020. The defendant filed a defence on 14 August 2020. Both plaintiff and defendant have made and answered a request for further particulars. On 3 September 2020 an order was made by consent for discovery of documents and for mediation. In October 2020 each party provided an affidavit of documents and a mediation was conducted on 28 October 2020. The proceeding did not settle. After the mediation the defendant changed his…

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 Sarto v Sarto

Details

AGLC: Sarto v Sarto [2021] VSC 295
Case: [2021] VSC 295
Decision Date: 25 May 2021

CaseChat Overview and Summary

The proceedings in the matter of Sarto v Sarto involved a summons to strike out parts of a statement of claim filed by the plaintiff against the defendant. The defendant sought to have certain paragraphs of the plaintiff's statement of claim struck out on the basis of lack of clarity and on the basis that they included evidence that was subject to without prejudice privilege. The case was heard in the County Court of Victoria.

The central legal issues before the court were whether the defendant's application to strike out parts of the statement of claim was justified due to a lack of clarity and whether it was appropriate for the court to determine the question of whether a particular letter was subject to without prejudice privilege in an interlocutory application. The court had to consider the principles governing pleadings, particularly the requirement that material facts be pleaded in particulars, and the rules surrounding the determination of without prejudice privilege.

The court found that certain paragraphs of the statement of claim were lacking in clarity and therefore struck them out, with leave to amend. However, the court declined to determine the question of whether the letter in question was subject to without prejudice privilege. The court held that it was not appropriate to make such a determination in an interlocutory application and that there was insufficient evidence before the court to make such a determination. The court noted that it would be inappropriate to determine the issue of privilege in this context, as doing so would involve making a substantive determination on the merits of the case.

The final orders of the court were that certain paragraphs of the statement of claim were struck out with leave to amend, and that the defendant's application to strike out the letter on the basis of without prejudice privilege was dismissed.

Orders