Biddle v Miele Australia Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0060

ADRIAN BIDDLE	Applicant
v
MIELE AUSTRALIA PTY LTD & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 October 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 244
JUDGMENT APPEALED FROM:	[2025] VSC 146 (O’Meara J)

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PRACTICE AND PROCEDURE – Appeal – Overarching obligations – Whether respondents breached overarching obligations – Application under s 29 of Civil Procedure Act 2010 for orders against respondents for alleged breaches of overarching obligations – Applicant failing to prove any breach of overarching obligations – Application dismissed by primary judge – Proposed appeal having no prospects of success – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Civil Procedure Act 2010, ss 16, 17, 18, 21 and 29; Supreme Court Act 1986, s 14D.

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Counsel
Applicant:		In person
Respondents:		Mr RT Wodak
Solicitors
Applicant:
Respondents:	MST Lawyers

BEACH JA:

Adrian Biddle (‘the applicant’) is a former employee of Miele Australia Pty Ltd (‘Miele’), his employment having been terminated in April 2023. After his employment was terminated, he commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against Miele and three employees of Miele. In that proceeding, the applicant advances 34 claims of having been treated unfavourably in breach of the Equal Opportunity Act 2010. Central to that proceeding is the applicant’s claim that he suffers from a disability known as ‘functional neurological disorder’ (‘FND’ or ‘the Disability’).
After commencing his proceeding at VCAT, the applicant made an application that Miele make discovery of various identified categories of documents.[1] On 23 July 2024, Senior Member A Smith made orders in favour of the applicant in respect of some categories of documents, adjourned the application in respect of other categories of documents, and dismissed the application in respect of the remaining categories of documents.
[1]As to the power of VCAT to make orders akin to orders for discovery, see s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).
On 19 August 2024, the applicant filed a notice of appeal, in which he sought leave to appeal to the Trial Division, pursuant to s 148 of the VCAT Act, against the orders made in VCAT on 23 July 2024 (‘the first appeal’). Following the filing of that notice of appeal, the parties filed various affidavits and submissions in relation to the first appeal and a second appeal (‘the second appeal’) commenced by the applicant on 6 November 2024.
On 17 December 2024, the applicant filed a summons seeking leave to discontinue the second appeal. On 29 January 2025, he filed a summons (‘the s 29 summons’) in the first appeal, seeking ‘interlocutory relief in this proceeding made under s 29 of the Civil Procedure Act 2010’ (‘CPA’). The s 29 summons was addressed to Jennifer Sung, the solicitor with the carriage of these proceedings for the respondents.
On 18 February 2025, the applicant’s application for leave to discontinue the second appeal and the s 29 summons was heard in the Trial Division by O’Meara J. On 27 March 2025, his Honour dismissed the s 29 summons, but granted the applicant leave to discontinue the second appeal with no order as to the costs of that appeal.[2]
[2]Biddle v Miele Australia Pty Ltd [2025] VSC 146, [215]–[216] (‘Reasons’).
The applicant now seeks leave to appeal against the judge’s orders dismissing the s 29 summons. Ms Sung is the fifth respondent to this application, the first four respondents being the respondents in the first appeal.
For the reasons given below, the applicant’s proposed appeal from the judge’s orders dismissing the s 29 summons has no prospects of success. Indeed, the application for leave to appeal from his Honour’s orders is totally without merit.[3] Leave to appeal must be refused.
[3]As to the consequence of the application being determined to be totally without merit, see s 14D(3) of the Supreme Court Act 1986.

The s 29 summons at first instance

In support of the s 29 summons, the applicant relied upon an affidavit sworn by him on 28 January 2025. In that affidavit, the applicant deposed that the ‘adverse manner in which the respondents and their legal representatives have misrepresented arguments taken from [his] submissions and made misleading or deceptive statements’ had caused ‘an unjustifiable detriment to [his] case … especially without supplying material facts or legal principles’, which demonstrated that they had ‘not complied with the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in this proceeding’. In support of that proposition, the applicant referred to ss 16, 17, 18 and 21 of the CPA.
Additionally, in his affidavit in support, the applicant identified two bases upon which the s 29 summons was brought:
(1)First, the applicant asserted that ‘the respondents and their legal representatives have knowingly attacked and diminished the existence and limitations of [his] disability without justification, and in doing so have breached s 8(3) of the Charter of Human Rights and Responsibilities Act 2006’ (‘the Charter’).
(2)Secondly, the applicant asserted that, in an affidavit affirmed by Ms Sung on 25 November 2024 (referred to as Ms Sung’s second affidavit), the respondents breached the implied undertaking referred to by the High Court in Hearne v Street,[4] by exhibiting the applicant’s witness statement filed in the VCAT proceeding on 24 November 2024.
[4](2008) 235 CLR 125 (‘Hearne’). See also Harman v Secretary of State for the Home Department [1983] 1 AC 280.
At the conclusion of his 28 January 2025 affidavit, the applicant asserted that there was sufficient evidence for the Court to be satisfied that the respondents and their legal representatives had ‘contravened various overarching obligations in the CPA’. The applicant invited the Court to ‘make any order it considers appropriate in the interests of justice’.
In his written submissions[5] in support of the s 29 summons, the applicant grouped the ‘alleged breaches, or incidents’ as occurring in, or relating to:
(a)Ms Sung’s first affidavit affirmed on 25 November 2024;
(b)the exhibiting of the applicant’s VCAT witness statement and evidence to Ms Sung’s second affidavit;
(c)the respondents’ written submissions dated 25 November 2024;
(d)oral submissions made by the respondents’ counsel at a directions hearing on 27 November 2024;
(e)an affidavit affirmed by Ms Sung on 23 January 2025; and
(f)the respondents’ written submissions dated 23 January 2025.
[5]Subsequently adopted by the applicant in oral argument.
At the conclusion of his written submissions, the applicant invited the Court to make orders prohibiting the respondents and their legal representatives from participating further in the proceeding. Specifically, the applicant submitted:
It should be evident to the Court that when the ‘objectionable’ statements in affidavit form and submissions are excluded, there is nothing remaining that justifies the appearance of the respondents and their legal representatives in this proceeding.
In light of the alleged breaches, and potential damage to the prospects of my case if further breaches occurred during the hearing, the Court should accept that it is highly improbable that the proper administration of justice could occur in the hearing if the respondents and their legal representatives were still allowed to participate.
Evidence of the Disability
As the existence of the Disability is central to the applicant’s case, it is now necessary to describe the Disability in a little detail.
In the Trial Division, the evidence that the applicant suffers from FND came solely from the applicant. He described the condition in a number of his affidavits and submissions. For present purposes, it is sufficient to refer to the evidence he gave about the matter in his affidavit sworn on 9 December 2024. In that affidavit, the applicant deposed to having been diagnosed with FND by a neurologist on 19 September 2024. He then said:
The diagnosis of FND is not accompanied by any medical information that can identify or confirm the manifestations or limitations associated with my medical condition.
I have not provided evidence of my diagnosis in this affidavit because it was not filed with VCAT until 24 November 2024.
The diagnosis of FND is a self-reported hidden and complex medical condition/injury, which is the result of a car accident on 3 November 2021, that is not easily observable during objective testing. I am not able to adequately describe my symptoms to anyone, whether medical professionals or family and friends.
My disability includes a mystery persistent ‘brain fog’ …
The applicant described his disability as comprising of, but not being limited to: ‘reduced attention to detail’; ‘reduced ability to act promptly and efficiently’; ‘diminished ability to process and manage excessive stimuli’; ‘diminished ability to accurately and succinctly interact with others in writing or verbally’; and ‘diminished self-regulation and self-awareness’.
While no medical evidence was placed before the judge, it appears from the material filed by the applicant at first instance and in this Court that a medical report dated 19 September 2024, written by Associate Professor Peter Hand, exists and is exhibited to the applicant’s witness statement exhibited to Ms Sung’s second affidavit of 25 November 2024.
It seems that the parties were content to proceed at first instance on the basis that, notwithstanding that both sides had copies of Associate Professor Hand’s report of 19 September 2024, in determining the s 29 summons, the judge was to be deprived of whatever benefit he might have gained from reading that report.

Relevant provisions of the CPA

Section 29(1) of the CPA relevantly provides:
If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to [costs orders, orders for compensation and orders that a person not be permitted to take any specified steps in the proceeding].
The overarching obligations which the applicant alleges have been breached by the respondents are contained in ss 16, 17, 18 and 21 of the CPA. They include: the ‘paramount duty to the court to further the administration of justice’;[6] the obligation to ‘act honestly at all times in relation to [the] proceeding’;[7] the obligation not to make any claim that is ‘frivolous’, ‘vexatious’, ‘an abuse of process’, or which does not ‘have a proper basis’;[8] and the obligation not to engage in conduct which is ‘misleading or deceptive’, or ‘likely to mislead or deceive’.[9]
[6]Section 16 of the CPA.
[7]Section 17 of the CPA.
[8]Section 18 of the CPA.
[9]Section 21 of the CPA.

Reasons for judgment

The judge commenced his reasons for judgment with a detailed description of the background to, and somewhat tortured and complicated history of, the litigation between the parties.[10]
[10]Reasons, [1]–[42].
After setting out the relevant parts of ss 16, 17, 18, 21 and 29 of the CPA, the judge turned to the issue of the applicant appearing ‘self-represented with a claimed disability’. The judge said that this issue arose in two ways. First, it bore upon the substance of the applicant’s s 29 application because the applicant contended that the respondents and their legal representatives had ‘knowingly attacked and diminished the existence and limitations of [his] disability without justification’. More immediately, it was relevant to the applicant’s submission that, as a consequence of being self‑represented with a disability, the Court was required to afford him ‘reasonable adjustments and accommodations’.[11]
[11]Ibid [45].
The judge noted the applicant’s assertion that he (the applicant) had not provided evidence of his FND diagnosis to the Court, although he had ‘filed evidence’ with VCAT.[12]
[12]Ibid [49(b)].
In the course of setting out, at some length, the assertions and submissions of the applicant, the judge referred to the following statements made by the applicant during the course of the hearing of the s 29 summons, namely:
My diagnosis of a functional neurological disorder is actually different to any other diagnosis of a disorder under DSM‑5‑TR. Functional neurological disorder is diagnosed to the exclusion of any other mental or psychological disorder, because there’s actually no proof of FND. FND is actually diagnosed by accepting that there is no medical evidence of it, and it can’t be objectively observed, and therefore the neurologist has accepted that my symptoms are genuine, but he can’t verify those.
Now, the problem that then raises in this particular case … is that my disability is real and it does affect me, so where an assertion is made about a disability that doesn’t line up with what the legal basis of it is, it exposes me to disadvantage which, in effect, is discrimination … that I’m disadvantaged by because I have a disability that people can’t see.
So while it may be that in normal litigation the defendants would have a right to deny … a particular fact, in this particular case, that assertion without evidence puts me at a substantial disadvantage because, which is what I said at the start, appearances can be deceiving. Your Honour might look at my submissions. Look at my appearance, listen to my words and go ‘I agree there doesn’t seem to be a disability there’, but I can assure you that it is real.
So when I’m having to defend myself against an assertion that has no legal basis or factual basis, and I can’t prove otherwise because there is no proof of FND, nobody can prove my limitations, it’s actually substantially different to what a normal diagnosis might be or how a normal diagnosis would be entitled to be challenged.[13]
[13]Ibid [53].
After referring to ss 8(3) and 24(1) of the Charter, and authorities including Matsoukatidou v Yarra Ranges Council,[14] Tomasevic v Travaglini,[15] Doughty‑Cowell v Kyriazis[16] and Roberts v Harkness,[17] the judge noted that the foundation for the applicant’s claims to being self-represented and disabled (and therefore in need of particular or extra assistance) ‘plainly had some unusual features’.[18] In particular, and contrasting the present case with the circumstances in Matsoukatidou, the judge noted that ‘the one medical report apparently advancing a diagnosis of FND was not placed before the Court’.[19] The judge then said:
[H]aving regard to his claim that the condition is ‘hidden’ and that its manifestations are apparently unable to be adequately described or observed during medical testing, it is not obvious how it is that [the applicant] (or, indeed, any neurologist) can be sure that he has it and is relevantly affected by it.[20]
[14](2017) 51 VR 624 (‘Matsoukatidou’).
[15](2007) 17 VR 100.
[16][2018] VSCA 216 (‘Doughty-Cowell’).
[17](2018) 57 VR 334 (‘Roberts’).
[18]Reasons, [81].
[19]Ibid [81(b)].
[20]Ibid [81(e)].
The judge said that, while the applicant claimed to be disadvantaged by his disability of FND, there was ‘simply no sign [of it] in any aspect of his extensive oral submissions’.[21] The judge concluded that, in the circumstances, he was unable to accept that, in the hearing of the s 29 summons, it was reasonably necessary or appropriate to afford the applicant any of the various special or extra ‘adjustments and accommodations’ which he sought.[22]
[21]Ibid [82]–[84].
[22]Ibid [88].
The judge then gave detailed reasons for his conclusion that none of the affidavits or submissions about which the applicant made complaint evidenced any contravention of any of the overarching obligations in ss 16, 17, 18 and 21 of the CPA.[23] In the course of doing so, his Honour said:
More generally, of course, statements and submissions made in adversarial litigation are often contested; and, regularly enough, the origins of such a contest lie in differing perspectives concerning the same events or legal principles.
The Civil Procedure Act did not abolish the adversary system or the intrinsically contested process by which truth stands to be discerned and correct legal principle applied. If anything, the overarching purpose and various overarching obligations stated in the Civil Procedure Act are intended to augment and protect that process.
In that context, it would not assist the health and legitimacy of that system if the Court should be thought to be eager to unleash a rather rigid application of the provisions of the Civil Procedure Act upon the common and unexceptional heart of the process that they are plainly intended to advance and protect.
For those reasons, the very proper caution identified and referred to in relevant authority seems to me to be even more important to observe when the arguments concerned are directed to matters such as mere submissions and statements that are contradicted in opposing statements or material, and which did not ultimately give rise to any palpable prejudice or other outcome plainly adverse to the interests of the party concerned.[24]
[23]Ibid [93]–[186].
[24]Ibid [122]–[125].
In rejecting the applicant’s contentions that the respondents (or, more particularly, Ms Sung) breached a Harman undertaking attaching to documents produced under compulsion, the judge made the following observations and conclusions:
(1)It may be accepted that the applicant’s witness statement was filed pursuant to an order of VCAT, and that the underlying proceeding at VCAT and the first appeal ‘are technically separate’.[25]
(2)That said, the applicant’s application for leave to appeal on a question of law (the first appeal) arises directly out of interlocutory orders made in the VCAT proceeding in which the applicant’s witness statement was later filed.[26] Further, the fact that he had filed the witness statement in the underlying proceeding at VCAT was relied on by the applicant in his own written submissions filed in connection with the directions hearing heard on 27 November 2024.[27]
(3)More specifically, the application for leave to appeal on a question of law (the first appeal) was legitimately connected with the underlying VCAT proceeding, such that it was not a breach of the implied undertaking for Ms Sung to produce the applicant’s witness statement as an exhibit to her second affidavit of 25 November 2024.[28] Even if there were a breach of the implied undertaking, it would amount to a breach of the most inconsequential kind, not giving rise to any need to censure or punish the respondents.[29]
(4)Moreover, it was ‘not obvious how any breach of the implied undertaking could be said to have amounted to a breach of any, and if so, which of the various overarching obligations’.[30]
[25]Ibid [128].
[26]Ibid [133].
[27]Ibid [134].
[28]Ibid [137].
[29]Ibid [138].
[30]Ibid [139].
Finally, under the heading, ‘Addendum’, the judge said that even if he had accepted that the respondents and their solicitor had breached the overarching obligations ‘in any or even all of the ways complained of’, he would not have ordered the relief sought.[31] As to the relief sought by the applicant in his written submissions, the judge said:
Whilst it might be said, of course, that the terms of s 29 are exceptionally wide and clearly allow the Court to craft relief that is ‘appropriate in the interests of justice’, the fact remains that none of the specified kinds of orders identified in the sub‑paragraphs of that section suggest that it would ordinarily be appropriate to order that a party, and any legal representatives of that party, be excluded from any further participation in a proceeding.
When so stated, the exceptional character of the relief sought by the plaintiff is plain. It is not simply unprecedented, as the parties each acknowledged, but extreme.
In that regard, without excluding the presently unimaginable, it is difficult to contemplate that it could be ‘appropriate in the interests of justice’ to make orders that would entirely remove a party, as well as any representative of that party, from Supreme Court proceedings in order to facilitate the hearing and determination of that proceeding in the presence of only the judicial officer concerned and the plaintiff.[32]
[31]Ibid [179].
[32]Ibid [180]–[182].

The proposed appeal

In his amended application for leave to appeal, the applicant advanced the following proposed grounds of appeal:
1. The trial judge erred by failing to identify and apply the relevant principles and proper test for determining if I was a person with a ‘disability’ under s 4(1) of the EOA.
2. The trial judge erred by acting on the wrong principles when assessing my request for reasonable adjustments and accommodations.
3. The trial judge erred by failing to conduct a fair hearing of my s 29 application in compliance with the overarching purpose and my rights under the Charter.
4. The trial judge erred by applying the wrong principles associated with s 140 of the Evidence Act and Briginshaw in an adverse manner regarding my s 29 application.
5. The trial judge erred by failing to identify and apply the relevant principles and proper test for any of ss 16, 17, 18 or 21 of the CPA in relation to my s 29 application.
6. The trial judge erred by failing to properly assess my complaints in the first alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
7. The trial judge erred by failing to properly assess my complaint in the second alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
8. The trial judge erred by failing to properly assess my complaints in the third alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
9. The trial judge erred by failing to properly assess my complaints in the fourth alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
10. The trial judge erred by failing to properly assess my complaints in the fifth alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
11. The trial judge erred by failing to properly assess my complaints in the sixth alleged breach against the principles applicable to ss 16, 17, 18 and 21 of the CPA.
12. The trial judge erred by failing to correctly interpret and apply the principles associated with s 29 of the CPA.
In support of his proposed appeal, the applicant filed a 70-page written case, a notice under s 35 of the Charter, and a letter addressed to the Registrar of the Court of Appeal containing ‘a request for special variations to the usual pre‑trial procedures, and the trial procedures and conduct of the hearing [of the application for leave to appeal]’.[33] Subsequent to the service of the Charter notice on the Attorney‑General and the Victorian Equal Opportunity & Human Rights Commission, letters were received by the Court advising that neither of them would be intervening in the proceeding.
[33]This letter was sent under cover of an email from the applicant to the registry on 26 May 2025, with later follow up letters being sent under cover of emails dated 25 August and 29 September 2025, and an additional follow up by an email sent on 1 October 2025.
Over the 285 paragraphs in his written case, the applicant makes numerous assertions of error on the part of the judge. In relation to some of the grounds of appeal, the applicant identifies two or three ‘main errors’.[34] Errors referred to as ‘main errors’ are described at a high level of generality, and include assertions that the judge erred by:
(a)not identifying relevant principles;
(b)relying on the applicant’s presentation and his submissions to determine if he appeared to be affected by a disability;
(c)failing to ensure the applicant’s right under s 8(3) of the Charter were protected;
(d)failing to ensure that the applicant’s rights under s 24(1) of the Charter were protected;
(e)misconstruing and/or failing to have proper regard to material facts;
(f)relying on ‘a misconstrued version of the Briginshaw[35] principle instead of taking into account relevant matters under s 140(2) [of the Evidence Act 2008] subject to the overarching purpose and the Charter’;
(g)‘incorrectly forming his own deductions in support of [the respondents’] case despite the absence of supporting evidence and submissions by [the respondents]’; and
(h)failing to consider ‘the intended nature’ of each of the alleged breaches committed by the respondents.
[34]For example: in relation to proposed ground 1, the applicant identifies ‘three main errors’; in relation to proposed ground 2, the applicant identifies two main errors; in relation to proposed ground 3, the applicant identifies three main errors; in relation to proposed ground 4, the applicant identifies two main errors; in relation to proposed ground 6, the applicant identifies two main errors; in relation to proposed ground 8, the applicant identifies two main errors; in relation to proposed ground 10, the applicant identifies three main errors; and in relation to proposed ground 11, the applicant identifies two main errors.
[35]Briginshaw v Briginshaw (1938) 60 CLR 336.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2025, the Registrar of the Court of Appeal referred the applicant’s application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[36]
[36]See rr 64.15(2) and (5), and s 14D(1) of the Supreme Court Act.

Consideration

The applicant’s contention that the respondents breached the overarching obligations identified in the CPA by putting in issue (whether by denying or diminishing) the existence of the Disability was (and is) devoid of merit. Nothing in the CPA, or any other statutory provision or principle of law, required the respondents to accept the applicant’s assertions that he suffered from the Disability or that he was labouring under any disability.
On the applicant’s own material, a diagnosis of FND is one based upon the self‑reporting of the person who claims to suffer from the condition. No statutory provision or other principle of law prevents an opposite party from not accepting an opposing party’s self‑reporting or assertion that they suffer from a particular medical condition. The issue of whether the applicant suffers from FND (and what, if any, consequences that might entail) was and is one which is quintessentially contestable.
To the extent that the applicant submitted that the existence of FND was ‘impossible’ to prove, and that that impossibility relieved him from any requirement to prove that he suffers from the condition, that submission must be rejected. No principle of law or statutory provision provides any support for the notion that a party may simply assert a fact and then contend that, because that fact is impossible to prove, proof is not required and an opposing party is precluded from denying the existence of that fact.
Nothing in any of the respondents’ affidavits or submissions, in which the respondents took issue with the applicant’s claims to be suffering from a relevant disability, was improper or involved any breach of any of the overarching obligations set out in the CPA. Moreover, nothing in ss 8(3) or 24(1) in the Charter (or indeed in any other provision of the Charter) prevented or prevents the respondents from putting in issue the applicant’s assertions that he suffers from the Disability or any other relevant disability.
In addition to his principal complaint about the respondent’s denial or diminishment of the existence of the Disability, the applicant made numerous complaints about particular statements in the respondents’ affidavits and submissions, describing them variously as ‘adverse’, ‘frivolous’, ‘vexatious’, ‘mischievous’, ‘distorted’, ‘reconstructed’, ‘prejudicial’ or, more broadly, wrong. The following observations may be made in relation to these submissions:
(1)It is relatively common in hard fought litigation for each side to disagree with some aspect of an affidavit (or affidavit evidence) relied upon by their opponent. The same may be said of submissions. It is the very nature of adversarial litigation that there will be competing contestable positions taken by parties, as well as statements which are the subject of dispute between the parties, and which require resolution by a court.
(2)The mere fact that one party is able to identify a statement made in an affidavit or in a submission (or multiple such statements) which a court, after a hearing, might determine to have been not well founded, misleading, incorrect, or plainly wrong does not, without more, mean that there has been misconduct by a party, or that there has been some breach of an overarching obligation.
(3)That is not to say that there cannot be cases where affidavits or submissions relied upon by one party are so bad (e.g. because they can be shown to contain deliberate falsehoods or otherwise are clearly calculated to obfuscate or delay) that a breach of an overarching obligation can be shown to exist, justifying an application under s 29 of the CPA being made while the proceeding is still pending.
(4)Questions of fact and degree are plainly involved in determining whether or not one party should make an application under s 29 of the CPA against another party in a pending proceeding. Given the ability of such an application to derail the efficient progress of the primary litigation, and to add to its cost, such applications should, however, only be made in clear cases.
In the present case, the judge was entirely correct, for the reasons he gave, to reject those parts of the applicant’s application, under s 29 of the CPA, which asserted that the respondents and their legal representatives had breached provisions of the Charter and/or the CPA in contesting assertions made by the applicant about his alleged disability and/or in making the statements and arguments with which he disagreed.[37]
[37]Reasons, [93]–[125], [141]–[178].
Additionally, to the extent that the applicant submitted that, because he had filed a medical report supportive of his assertions of disability at VCAT, the respondents were now precluded from contesting the issue of his disability, those submissions must also be rejected. Two points should be made:
(1)First, it is a relatively commonplace thing in litigation for one side to file a medical report, the contents of which are disputed by an opposing party. Generally speaking, one side’s filing of a medical report, does not (without more) preclude an opposing party from contesting or not admitting the matters asserted in that report.
(2)Secondly, and more importantly, as the applicant himself admits, the diagnosis in this case is one that relies upon an acceptance of his self‑reporting. The credibility or reliability of that self-reporting is a matter for the court hearing the dispute between the parties. It does not fall to be determined by the opinion of a medical practitioner such that an opposing party is precluded from contesting the relevant issue. As has been said before, any diagnosis or opinion expressed by a medical practitioner in relation to a medical matter is only as good as the history upon which that opinion or conclusion is based.[38]
[38]See generally, Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60]; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, [27]; Woolworths Ltd v Warfe [2013] VSCA 22, [88]; Veljanovska v Verduci (2014) 42 VR 222, 231–2 [39]–[40]; Haidar v Transport Accident Commission [2016] VSCA 182, [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, [91]; Rowe v Transport Accident Commission [2017] VSCA 377, [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74]; Yilmaz v Specialty Fashion Group Ltd [2019] VSCA 100, [73]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, [66]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, [87]–[88].
Turning to the second specific basis upon which the application under s 29 of the CPA was made (the alleged breach of the implied undertaking referred to by the High Court in Hearne), again the judge was correct, for the reasons he gave, to reject the applicant’s contentions that there had been any breach of the implied undertaking.[39]
[39]Reasons, [126]–[140].
The applicant’s contention that his witness statement, having been produced under compulsion in the principal VCAT proceeding, could not be used in an application for leave to appeal from VCAT’s orders refusing the applicant discovery of particular categories of documents in that proceeding, was manifestly hopeless from the outset. The judge was entirely correct when he concluded that the first appeal (which had arisen out of the underlying VCAT proceeding) was legitimately connected with that underlying proceeding, such that it was not a breach of the implied undertaking to produce the applicant’s witness statement in the first appeal.[40]
[40]Ibid [137].
Next, there was no error in the judge making his own assessment of the applicant’s ability to act for himself in relation to the s 29 summons. That a judge hearing a proceeding involving an unrepresented party has an obligation to assess that party’s ability to engage in the process and to make appropriate submissions, with a view to determining what if any assistance that judge might need to provide to that litigant, was made clear by this Court’s decision in Doughty‑Cowell.[41] His Honour considered and assessed the applicant’s need for assistance entirely in conformity with Doughty-Cowell. The applicant’s assertions of error on this issue are entirely without merit.
[41]Doughty‑Cowell [2018] VSCA 216, [1]–[2], [63(5)]. See also Roberts (2018) 57 VR 334, 356 [55].
Moreover, having read the applicant’s various affidavits and written submissions filed in the proceeding below and in this Court, and the transcript of his oral submissions made to the primary judge, it is plain that whatever disability the applicant might suffer from, it did not affect the applicant’s ability to advance every possible argument that could be made in support of the orders he sought in the s 29 summons. Looking at the spectrum of unrepresented litigants referred to in Doughty‑Cowell,[42] it is clear that the applicant falls at that end of the spectrum described as ‘articulate’ and ‘strong‑minded’.[43] The written material filed by the applicant (both at first instance and in this Court) shows the applicant to be highly intelligent and well-capable of advancing creative and complex arguments — albeit that those arguments might simply be incapable of being accepted on any analysis.
[42]Doughty‑Cowell [2018] VSCA 216, [1].
[43]By way of example, see the extensive quotes from the applicant’s oral submissions set out by the judge at Reasons, [52] and [53].
All of that said, an examination of all of the material to which I have referred shows that the applicant did not require any assistance, over and above that provided by the judge, in order to advance all of his arguments or to say anything and everything that could be said in favour of his application.
What I have said so far does not undermine the obvious proposition that the applicant, as an unrepresented litigant, was at a disadvantage in the proceeding before the primary judge. The disadvantage was the same disadvantage that every unrepresented litigant suffers from: namely, the inherent lack of objectivity and perspective associated with a litigant advancing submissions on his or her own behalf.[44] However, the transcript of the hearing before the judge shows that his Honour did his best to ameliorate this disadvantage. Nothing more could or should have been done.
[44]I do not pause here to reflect on the lack of objectivity or perspective in prosecuting an at best doubtful application under s 29 of the CPA in an application for leave to appeal on a question of law from a VCAT order, refusing discovery of certain categories of documents, made in the principal VCAT proceeding.
The problem for the applicant in relation to the s 29 summons is that his application for orders under s 29 was meritless, not that he laboured under some disability or some disadvantage which prevented him from fully advancing his argument. The application was meritless because there was no proper basis upon which it could sensibly be contended that any of the respondents had breached any of the overarching obligations identified in ss 16, 17, 18 or 21 of the CPA (or indeed any other provision of that Act or the Charter).
Finally, there is no substance in any of the applicant’s complaints that the judge misconstrued and/or failed to have proper regard to material facts; and/or applied ‘wrong principles’; and/or failed to apply relevant principles; and/or failed to conduct a fair hearing. To the contrary, the transcript discloses that the judge conducted an eminently fair hearing of the s 29 summons; and the Reasons disclose the judge’s correct appreciation of the facts and his Honour’s correct application of the relevant principles.
It follows from the above that each of the applicant’s proposed grounds of appeal must be rejected.

Conclusion

The orders made by the judge were plainly correct. The proposed appeal has no prospects of success. Moreover, the application for leave to appeal is totally without merit within the meaning of s 14D(3) of the Supreme Court Act. It must be dismissed.
I will give the parties an opportunity to file any material and submissions they wish to make about the costs of this application.
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SCHEDULE OF PARTIES

ADRIAN BIDDLE Applicant

and

MIELE AUSTRALIA PTY LTD First respondent

RACHAEL LESHINKSY Second respondent

GEORGE EXINTARIS Third respondent

YVES DALCOURT Fourth respondent

JENNIFER SUNG Fifth respondent

ADRIAN BIDDLE	Applicant
and
MIELE AUSTRALIA PTY LTD	First respondent
RACHAEL LESHINKSY	Second respondent
GEORGE EXINTARIS	Third respondent
YVES DALCOURT	Fourth respondent
JENNIFER SUNG	Fifth respondent

[2025] VSCA 244

3 October 2025