Schweitzer v Vallance - [2025] VSC 302

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 00039

INGRID SCHWEITZER	Plaintiff
v
LACHLAN JAMES VALLANCE (in his capacity as administrator with the Will and Codicil of the estate of the late MARIA SCHWEITZER)	First Defendant
-and-
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2025
DATE OF RULING:	30 May 2025
CASE MAY BE CITED AS:	Schweitzer v Vallance
MEDIUM NEUTRAL CITATION:	[2025] VSC 302

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PRACTICE AND PROCEDURE – Whether affidavit sworn in accordance with Part 3 of the Oaths and Affirmations Act 2018 – Affidavit not sworn in accordance with statutory requirements – Whether filing an affidavit incorrectly sworn constituted compliance with self-executing orders – Construction of terms of the self-executing orders – Discretion under r 24.06 of the Supreme Court (General Civil Procedure) Rules2015 to set aside judgment where non-compliance with self-executing orders.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Colman	Christopher Dale
For the First Defendant	Mr S Pitt KC and Mr J Acutt	Hicks Oakley Chessell Williams
No appearance for the Second Defendant

HER HONOUR:

By his summons filed on 14 January 2025, the first defendant seeks:

(a) a declaration that the document filed by the plaintiff on 14 November 2024 is not a validly sworn affidavit in accordance with r 43.01(5) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’); and

(b) an order pursuant to r 24.02(1)(a) of the Rules that the plaintiff’s proceeding be dismissed for failing to comply with paragraph 1 of the orders made on 31 October 2024 (‘October Orders’) and that judgment be entered for the first defendant pursuant to r 24.05(b) of the Rules.

The first defendant relied upon the affidavit of David Phelan sworn on 18 December 2024 and written submission filed on 20 March 2025, supplemented orally at the hearing. The plaintiff relied upon the affidavit of her solicitor, Christoper Dale, sworn on 26 March 2025 and brief written submissions filed on 26 March 2025, which were supplemented orally at the hearing.

Background

The October Orders required the plaintiff to make particular discovery by 14 November 2024 failing which the proceeding was to be dismissed and judgment entered for the first defendant.

On 14 November 2024, the plaintiff filed and served a document purporting to be a supplementary affidavit of documents. On inspection, it is evident that the signature of the plaintiff has a shadow around it as if it has been ‘cut’ or ‘imaged’ from another signed document and ‘pasted’ onto the supplementary affidavit. The affidavit of Mr Dale confirms that this is how he prepared the supplementary affidavit. Specifically, he deposes that:

To streamline the process (and make things easier for her) I prepared the affidavit in advance and imaged her signature on it, which I had taken from her affidavit of documents. I believed (and still believe) this approach to be in full…

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: [2025] VSC 302
Decision Date: 30 May 2025

CaseChat Overview and Summary

In the case of Schweitzer v Vallance, the primary issue was whether an affidavit sworn under the Oaths and Affirmations Act 2018 had been correctly administered, and if the failure to do so could lead to a judgment being set aside. The dispute arose in the Supreme Court of Queensland, with the parties being Schweitzer, the plaintiff, and Vallance, the defendant. The central contention was whether the procedural misstep of incorrectly swearing an affidavit resulted in the filing of an affidavit that could be considered compliant with self-executing orders.

The court needed to determine the extent to which the terms of the self-executing orders should be interpreted and whether the failure to swear the affidavit in line with statutory requirements constituted a ground for setting aside a judgment. The legal issues encompassed the interpretation of the statutory requirements for swearing affidavits, the implications of non-compliance with these requirements, and the court’s discretion under rule 24.06 of the Supreme Court (General Civil Procedure) Rules 2015 to set aside a judgment due to non-compliance with procedural mandates.

The Supreme Court examined the statutory framework governing the swearing of affidavits and found that the affidavit in question was not sworn in accordance with the statutory requirements of the Oaths and Affirmations Act 2018. Despite this non-compliance, the court assessed whether the procedural error could be deemed as compliance with the self-executing orders. The court held that the terms of the self-executing orders were not self-executing in a way that would overlook such a fundamental procedural error. Consequently, the court exercised its discretion under rule 24.06 to set aside the judgment, given the significant procedural breach.

The final orders of the court were to set aside the judgment previously entered against Vallance and to allow for the refiling of an affidavit that complied with the statutory requirements. This decision underscores the importance of strict adherence to statutory procedures when swearing affidavits and the court’s willingness to rectify judgments where there has been a material procedural error.

Orders