Plaintiff v First Defendant

(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.

2 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.

3 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.

4 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 compliance with s.18A of the Oaths and Affirmations Act 2018 (Vic).

5 Mr Dale also deposes as to the swearing of the supplementary affidavit by the plaintiff in the following manner:

The [p]laintiff sat in my car and held a bible I handed to her. She swore the affidavit in the passenger seat... In reciting to her the words of the oath relevant to her signature I pointed to her imprinted signature on the document. She swore using the full and proper words I recited to her. I then signed as having witnessed the [p]laintiff taking the oath.

Mr Dale then filed the supplementary affidavit on 14 November 2024.

6 Having observed the shadow around the plaintiff's signatures on the supplementary affidavit, the first defendant's solicitor, Mr Phelan, emailed Mr Dale on 25 November 2024 asking to inspect the hard copy original of the supplementary affidavit. Having not received any response, Mr Phelan sent further emails on 29 November and 4 December 2024. On 11 December 2024, Mr Dale informed the first defendant's solicitor that he had been indisposed for an operation and had therefore been unable to reply and would do so in 'a day or so'. There was no further response. Mr Phelan sent a further email on 17 December 2024 noting no response had been received. The plaintiff did not make the hard copy original of the supplementary affidavit available for inspection.

7 On 14 February 2025, the first defendant issued a notice to produce the original supplementary affidavit sworn by the plaintiff. Mr Dale deposes that it is not his practice to retain copies of the original documents once they are filed on RedCrest and accordingly, he no longer has the original supplementary affidavit.

8 By this application, the first defendant seeks a declaration that the supplementary affidavit has not been validly sworn, and accordingly, that judgment be entered pursuant to the terms of the October Orders.

9 The basic requirements for affidavits are set out in Part 3 of the Oaths and Affirmations Act 2018 ('O&A Act') which provisions apply unless they are inconsistent with a specific requirement of any other Act. Order 43 of the Rules also sets out requirements for affidavits used in civil proceedings in this Court.

10 Acknowledging that he did not make the submission lightly, the first defendant's Counsel urged the Court to draw the inference that the explanation given by Mr Dale in his affidavit sworn on the eve of this hearing as to the circumstances in which the plaintiff swore the supplementary affidavit was 'simply recent invention' and ought be rejected. I am not satisfied that the Court should draw that inference, which involves a finding that Mr Dale has lied to the Court. Mr Dale is a solicitor and officer of the Court and subject to the duties imposed on him in those capacities. He has explained his honest belief as to the requirements for swearing or affirming an affidavit. Whilst the first defendant might be incredulous that Mr Dale holds that belief despite the clear words of the section and his years of experience as a practitioner, that incredulity is not evidence that the explanation given is of recent invention. The first defendant has not adduced any other evidence to contradict or undermine the explanation that has been given.

11 Notwithstanding the explanation given by Mr Dale, the supplementary affidavit does not comply with the requirements of the O&A Act. It also does not comply with r 43.01(5) of the Rules. The O&A Act, and the Rules, require the deponent to sign their affidavit, and any exhibit certificate, in the presence of the affidavit taker (physical or virtual).[1] An affidavit can be signed or initialled by the deponent by electronic means.[2] This means that an affidavit can be signed by the deponent whereby the deponent takes an image of their signature and applies the image electronically to their affidavit. However, Mr Dale deposes that when he presented the supplementary affidavit to the plaintiff at the time she made her oath, the image of her signature had already been applied by him at his offices from which she was absent. Accordingly, the plaintiff did not 'sign' the supplementary affidavit at all, let alone in his presence (physical or virtual). This non-compliance with the requirements of s 25 of the O&A Act and r 43.01(5) of the Rules means the completion of the jurat by Mr Dale is also non-compliant with s 27 of the O&A Act.

12 An inadvertent non-compliance with the provisions of Part 3 of the O&A Act that does not materially affect the nature of the affidavit will not necessarily affect the validity of the affidavit.[3] The failure of the plaintiff as deponent to sign the affidavit in the presence of the authorised affidavit taker may have been inadvertent on her part, however it is not, in my view, a minor non-compliance. The act of signing the affidavit, which is often drafted by another person, is the physical acknowledgment by the deponent as to their identity and the truth of the contents of the affidavit upon the making of their oath. The failure to sign the affidavit personally undermines that acknowledgment. Accordingly, I am satisfied the supplementary affidavit was not signed and sworn by the plaintiff in compliance with the requirements of the O&A Act and/or the Rules.

Did the filing of an affidavit that had not been properly sworn amount to non-compliance with the October Orders?

13 The first defendant submits that the supplementary affidavit filed by the plaintiff was invalid, and so the plaintiff has not complied with the October Orders. The October Orders provided:

1. By 4:00pm on 14 November 2024, the plaintiff is to provide particular discovery as set out in the Court's orders made on 14 May 2024.
2. In the event of default in compliance with order 1, the proceeding will be dismissed and judgment will be entered for the first defendant pursuant to r 24.02(1)(a) of the Rules, with costs.
3. The plaintiff pay the first defendant's costs of and incidental to his summons filed on 9 August 2024, such costs to be paid forthwith and on an indemnity basis.

The first defendant submits that the proceeding should stand dismissed in accordance with order 2 because of the plaintiff's failure to comply with order 1. He further submits that this non-compliance has occurred against the backdrop of repeated failures to comply with the Court's orders as well as contraventions of the Civil Procedure Act 2010 which have led to protracted delays in the prosecution of the proceeding. The first defendant submits that as a consequence, his administration of the estate is in limbo and that the beneficiaries are being unfairly 'kept out of their money'[4] as the litigation drags on, in circumstances where the deceased passed away nearly ten years ago. The first defendant submits that given the circumstances, the interests of justice favour the dismissal.

14 The plaintiff submits that the question whether the proceeding should stand dismissed is one to be approached by first considering whether the non-compliance with the self-executing order by the filing of the supplementary affidavit that had not been properly sworn is one of form or substance. This involves construing the terms of the self-executing order in the October Orders to determine the triggering default. The triggering default may be the time for compliance or the mode of compliance, or both.[5] The October Orders do not refer to the plaintiff filing an affidavit, rather, they refer to the plaintiff making 'particular discovery as set out in the Court's orders made on 14 May 2024'. Necessarily, in construing the terms of the October Orders, the terms of the 14 May 2024 orders are relevant. The terms of that order were as follows:

1. By 4pm on 11 June 2024, the plaintiff make, file and serve an affidavit providing particular discovery, pursuant to r 29.08 of the Rules, of the following classes of documents:

(a) all correspondence whether in hard copy, electronic form or otherwise, between the plaintiff and any other party prior to 27 July 2017 relating to the statement in the plaintiff's further and better particulars dated 25 September 2023 that she was 'able to obtain funding of the "Release Payment" (referred to at paragraph 26 of the defence) through her solicitor';

(b) bank statements for the plaintiff's bank accounts for the 6-month period from 1 January 2017 to 31 July 2017;

(c) any and all loan agreements or correspondence recording or evidencing any advance of funds to the plaintiff by a third party, such as to permit or enable the 'Release Payment' to be made by the plaintiff;

(d) trust account ledgers, trust receipts or transit register records, recording the receipt of funds or transmission of funds referred to in the plaintiff's solicitor's email dated 28 June 2017 at page 6 of exhibit DPP-1 to the affidavit of David Paul Phelan sworn 6 March 2024.

In my view, the terms of the October Orders, incorporating the orders made on 14 May 2024, had both temporal and substantive compliance components. The temporal compliance component of the orders required the doing of a particular act by the plaintiff by a particular time, namely the making, filing and serving of an affidavit, and the substantive compliance component prescribed the particular discovery to be provided by the contents of the affidavit. Whilst either of these components could trigger the self-executing order, the complaint made by the first defendant is in respect of the temporal trigger, that is, the plaintiff did not make, file and serve an affidavit in the time allowed because the affidavit was incorrectly sworn and is invalid. The first defendant has not made any complaint with respect to substantive compliance with the orders, that is, the contents of the document filed and described as a supplementary affidavit (even if not properly sworn) do not conform with the contents of the affidavit ordered to be filed.[6] Considering the supplementary affidavit, it purports to make particular discovery of documents in the classes of documents enumerated in the May 2024 order.

15 The authorities concerning non-compliance with self-executing orders establish that:

(a) where the terms of a self-executing order are directed towards the provision of particular information or documents by a specified time, a document filed within the relevant time which constitutes a good faith attempt to provide that information will comply with the order;

(b) if there is a defect in the information provided, then the Court retains the power to make further orders to rectify the defect (though the substance of the defect and the appropriate orders are not usually considered on that application); and

(c) if the self-executing order has not been complied with substantively, the Court will vary or set aside the order where, in all of the circumstances, it would be unjust to deprive the party adversely affected of the right to a trial on the merits of the proceeding.[7]

Was the supplementary affidavit filed a good faith attempt to comply with the October Orders?

16 In his affidavit, Mr Dale deposes to his honestly held belief that the supplementary affidavit complied with the requirements of the O&A Act. Whilst that belief may be surprising in a solicitor frequently witnessing affidavits as part of a busy litigation practice, in so far as the O&A Act sets out the requirements for the application of electronic signatures, s 18A of the O&A Act and the provisions relating to virtual swearing or affirming of affidavits were only inserted in 2021. Accordingly, owing to their relatively short periods of existence, it may be that these are not provisions with which Mr Dale has gained considerable experience despite his length of time in practice. Mr Dale gives evidence that the plaintiff made her oath using the bible in front of him in his car, and that he then returned to his office and filed the affidavit on the date due for compliance with the October Orders. I do not regard the supplementary affidavit as illusory or a sham, nor do I consider that there was any intention on the part of the plaintiff or her solicitor to flout or ignore the order. They attempted to comply with the order. Accordingly, I am satisfied that there was compliance with the October Orders by reason of the filing of the supplementary affidavit despite it not having been sworn in accordance with the requirements of the O&A Act or the Rules.

Would the discretion under r 24.06 be exercised if there was non-compliance with the October Orders?

17 If I am wrong in my conclusion and there was non-compliance with the October Orders, then the proceeding must stand dismissed. However, in that event, I would nevertheless find that justice favours the setting aside of the judgment entered on the dismissal. I have reached that view taking into account the criteria identified in Jorgensen v Slater & Gordon Pty Ltd,[8] namely:

(a) the circumstances in which the self-executing order was made;

(b) the reasons for non-compliance with it;

(c) the prejudice to the defaulting party if the relief were not granted; and

(d) the prejudice to the innocent party if the relief were granted.

18 It is certainly true that the self-executing orders were made in circumstances of re-peated non-compliance by the plaintiff with the Court's orders. However, the cause of the non-compliance in this particular instance (if there is non-compliance) is Mr Dale's erroneous belief as to the requirements of the provisions of the O&A Act. As I have noted above, the non-compliance was not deliberate or intentional. The failure to properly swear the affidavit was the fault of the plaintiff's solicitor. I do not accept the submission that the plaintiff, by dint of her involvement in other proceedings, would have been aware of the technical requirements for the swearing or affirming of affidavits under the O&A Act or the Rules. Therefore, the blame for the non-compliance ought not be laid at the feet of the plaintiff.

19 It is beyond question though that the plaintiff has been unacceptably slow in prosecuting these proceedings and delinquent in complying with the Court's orders. Accordingly, I am satisfied that there must be some prejudice to the beneficiaries of the estate who are waiting for the determination of these proceedings, for the estate to be administered and to receive their entitlements. The costs of the proceeding also continue to erode the assets of the estate. However, no evidence has been adduced with respect to any specific prejudice to any particular beneficiaries or otherwise in relation to the first defendant.

20 On the other hand, the plaintiff submits that she will be significantly prejudiced because the events the subject of the proceeding occurred many years ago and therefore, her claims will be time barred if the proceeding stands dismissed. The first defendant submits that the relief sought in the statement of claim is in the nature of a declaration of constructive trust to which no limitations period applies. If that is the case, the plaintiff can pursue the same remedy again, save there may be issues of res judicata. However, if the plaintiff can simply pursue the same remedy again by issuing a new proceeding, then it is not efficient to dismiss the proceeding for it only to be commenced again by the plaintiff, possibly causing even more delay for the beneficiaries of the estate.

21 I am not satisfied, having considered the relevant factors and the particular circumstances of this case, that justice favours the termination of the proceeding without a hearing on the merits. Accordingly, if there was non-compliance with the October Orders and the proceeding stands dismissed, I would set that judgment aside. This conclusion particularly turns upon the fact that the non-compliance (if there were any) was the fault of the solicitor, rather than the plaintiff herself.

22 For the reasons given at paragraphs 13 to 16 above, I am satisfied that there was compliance with the October Orders despite the supplementary affidavit not being correctly sworn. If I am wrong in so concluding, then I am nevertheless satisfied that, in all of the circumstances, it would be unjust to deprive the plaintiff of a trial on the merits by reason of the non-compliance in this instance. Accordingly, I will dismiss the first defendant's summons.

23 The supplementary affidavit ought be re-sworn and filed, or a further affidavit must be filed that has been correctly sworn and which confirms the accuracy of the contents of the supplementary affidavit. I will allow 14 days for this to occur.

24 This proceeding needs close case management to bring it to trial as efficiently and cost effectively as possible. I will list the proceeding for directions to timetable the further interlocutory steps, and to hear from the parties in relation to the question of costs of this application.

[1] Oaths and Affirmations Act 2018, s 25 ('O&A Act').

[4] Transcript of Proceedings, Schweitzer v Vallance (Supreme Court of Victoria, S ECI 2022 00039, Goulden AsJ, 27 March 2025) T14.29, T15.14 ('Transcript').

[5] Khan v The Age Company Pty Ltd & Ors [2019] VSC 839; Freeman v Rabinov [1981] VicRp 52; [1981] VR 539.

[6] A point noted by the Counsel for the plaintiff: Transcript T23.20-T23.23.

[7] Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212, [39]; Pentridge Village Pty Ltd (in liq) v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Self-executing order ruling) [2021] VSC 848, [37].

[8] [2008] VSCA 110.