Biddle v Miele Australia Pty Ltd
[2025] VSC 146
•27 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 04343
BETWEEN:
| ADRIAN BIDDLE | Plaintiff |
| and | |
| MIELE AUSTRALIA PTY LTD (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE) | Defendants |
S ECI 2024 05979
| ADRIAN BIDDLE | Plaintiff |
| and | |
| MIELE AUSTRALIA PTY LTD (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE) | Defendants |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2025 |
DATE OF JUDGMENT: | 27 March 2025 |
CASE MAY BE CITED AS: | Biddle v Miele Australia Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2025] VSC 146 |
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CIVIL PROCEDURE ACT – Plaintiff claims neurological disorder arising out of a motor accident in 2021 – Proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’) in which the plaintiff claims to have been discriminated against by his employer – VCAT made orders in respect of the production of documents – Plaintiff applied for leave to appeal to the Supreme Court on a question of law – Subsequent interlocutory hearings in the course of which statements and submissions were made in affidavits, written submissions and by counsel – Plaintiff applies in respect of multiple claimed breaches of ‘overarching obligations’ in the Civil Procedure Act 2010 (Vic) – Plaintiff claims that the defendants and their solicitor breached the implied undertaking applying to documents produced under compulsion – Plaintiff self-represented litigant with claimed disability – Pursuant to s 29 of the Civil Procedure Act 2010 (Vic), the plaintiff seeks an order that the defendants and any legal representative not be permitted to participate any further in the proceeding – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148, Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8(3) and 24(1), Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 10, 11, 16, 17, 18, 21 and 29 – Hearne v Street (2008) 235 CLR 125; Yara Australia Pty Ltd v Oswal (2013) 41 VR 302; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Doughty-Cowell v Kyriazis [2018] VSCA 216; Roberts v Harkness (2018) 57 VR 334; and Hazell-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129 considered and discussed – Application dismissed.
COSTS – Application for leave to appeal on a question of law from order of VCAT refusing an application for adjournment – Plaintiff also applies for a stay at VCAT and the expedition of his application for leave to appeal – Applications and summonses returned before Judicial Registrar – Orders made for management of applications for leave to appeal against a background of underlying proceedings at VCAT – Application for leave to appeal affected by ‘supervening’ event – Whether plaintiff enjoyed a practical success – Plaintiff applies to discontinue application for leave to appeal – Whether Court should ‘otherwise order’ in respect of the costs of the proceeding – Applicable principles – ‘Good reasons’ shown – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.15 – Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; and Soteriadis v Nillumbik Shire Council [2015] VSC 363 considered – Leave granted to discontinue proceeding with no order made as to costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | R T Wodak | MST Lawyers |
HIS HONOUR:
A Introduction
On 24 April 2023, the plaintiff’s employment with the first defendant was terminated, on the grounds of serious misconduct, after he refused to attend a scheduled independent medical examination. Broadly, the plaintiff takes issue with that event, and many others.
The second, third and fourth defendants appear to be employees of the first defendant.
Later in 2023, the plaintiff commenced proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’). The full ambit of the plaintiff’s claims are not clear. That said, he appears to advance 34 claims of having been treated ‘unfavourably’ in breach of the Equal Opportunity Act 2010 (Vic).[1]
[1]The Court Book (‘CB’) extracts four pages from the plaintiff’s amended particulars of claim dated 7 June 2024, which contain a ‘high-level summary’ of the said 34 claims: CB502-505. The full amended particulars of claim document is said to be 208 pages in length: CB 476.
Relevant to the plaintiff’s proceeding at VCAT, as well as the present proceedings, the plaintiff claims to suffer from a ‘disability’, namely ‘functional neurological disorder’ (‘FND’). The plaintiff deposes that his condition arose out of a motor vehicle accident on 3 November 2021 and that, among other things, his symptoms include ‘a mystery persistent “brain fog”’ and an ‘[i]rrational “fight or flight” sensitivity’.[2]
[2]CB 594-5 [4]-[9].
In that general connection, the plaintiff submits that, as a self-represented litigant with a disability, VCAT, and the Court, must afford him ‘reasonable adjustments and accommodations’.[3] That issue, at least as it presently affects the Court, will need to be examined further below.
[3]T2. Cf Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 (‘Matsoukatidou’).
After the commencement of his proceeding at VCAT, the plaintiff sought that the first defendant make ‘discovery’ of various identified categories of documents.[4] A range of documents seem to have been provided by the first defendant; however, the plaintiff applied to VCAT for orders.
[4]Strictly speaking, the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) do not provide for a detailed regime of ‘discovery’ in the sense in which that term is, for example, used in the Supreme Court (General Civil Procedure) Rules 2015 (Vic). That said, s 80(1) of the VCAT Act empowers VCAT to give directions at any time and ‘do whatever is necessary for the expeditious or fair hearing and determination of a proceeding’ and s 80(3) specifically contemplates that VCAT may give directions requiring a party to produce a document or provide information.
On 6 February 2024, that application was dismissed because the plaintiff’s particulars of claim and the defendants’ points of defence had not yet been filed.[5] That said, the plaintiff’s particulars of claim and the defendants’ points of defence seem to have been filed a relatively short time thereafter.
[5]CB 428-9 [17]-[33].
On 21 April 2024, the plaintiff again requested certain categories of ‘discovery’, and, on 2 May 2024, made a further application to VCAT seeking orders.[6] Shortly thereafter, the plaintiff filed the amended particulars of claim to which I have already referred.
[6]CB 36-43. The plaintiff’s application was directed particularly to categories numbered 13, 14, 15, 16 and 17: see CB 41-3. In significant part, categories 13, 14 and 15 seem to have been sought earlier: CB 32-5.
The plaintiff’s ‘discovery’ application came before VCAT substantively on 23 July 2024 (after a compulsory conference, on the same day, failed to resolve the matter). A senior member heard arguments and reserved her decision.[7]
[7]See CB 451-68.
On 25 July 2024, the senior member issued orders dated 23 July 2024.[8] Among other things, it was ordered that –
[8]CB 44-5, 432 [59].
(a) ‘discovery’ categories 13(a), (b), (e), (f), (g), (m) and (n) be ‘adjourned pending the exchange of statements’;
(b) categories 13(k) and (l) be ‘discovered’;
(c) the balance of category 13, as well as categories 16 and 17, be ‘dismissed’ as ‘insufficiently relevant to the proceedings’;
(d) category 14 be ‘dismissed’ as ‘too broad and not relevant to the proceedings’;
(e) category 15 be dismissed, as ‘it relates to material that is subject to legal professional privilege’;
(f) the proceeding be listed for hearing to commence on ‘3 March 2024 [sic: 2025]’ on an estimate of five days; and
(g) the proceeding be listed for directions in ‘early February 2025’ before the member who would preside at the hearing. At directions, the member would determine –
(i) the application by the plaintiff that the defendants should not be legally represented at the hearing;
(ii) ‘[a]ny outstanding discovery issues from the above orders’; and
(iii) ‘[a]ny other applications’.
The plaintiff requested a written statement of reasons for the orders made. On 21 August 2024, VCAT declined to provide written reasons on the ground that the orders were ‘interim’ in nature.[9]
[9]CB 432 [60]-[61]. Cf VCAT Act (n 4) s 117(1).
By notice of appeal filed 19 August 2024, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), the plaintiff sought leave to appeal to the Supreme Court, on a question of law, from all parts of the above order that dismissed aspects of his application for ‘discovery’.[10] That proceeding is numbered S ECI 2024 04343 (‘04343’).
[10]CB 3-5.
At directions on 18 September 2024, Lorenz JR made a timetable of orders, including listing 04343 for hearing on 5 June 2025 on an estimate of one day.[11]
[11]Orders of Lorenz JR in proceeding S ECI 2024 04343 (‘04343’) dated 18 September 2024.
It will be evident that such a listing would see the plaintiff’s application for leave to appeal, on a question of law, heard some months after the then listed date for the trial of his underlying proceeding at VCAT. Albeit that both parties are recorded as having appeared before Lorenz JR on 18 September 2024, it is not apparent that the issue identified above was raised with the Judicial Registrar.
In any event, the plaintiff later applied to VCAT for an adjournment of the then listed hearing date, as well as the variation of certain other orders. That application came to be determined in chambers and on the papers.
In that connection, on 28 October 2024, a senior member[12] refused the plaintiff’s application and confirmed that the hearing ‘continues to be scheduled to commence on 3 March 2025’. In that connection, the senior member stated –
Having considered the exchange of written submissions provided by the applicant and the respondents in relation to the applicant’s request, VCAT is not satisfied there are sufficient grounds for the granting of the adjournment request.[13]
[12]A senior member different to the senior member who had made the orders dated 23 July 2024.
[13]Orders made by VCAT (SM Powles) dated 28 October 2024.
By notice of appeal filed 6 November 2024, pursuant to s 148 of the VCAT Act, the plaintiff sought leave to appeal to the Supreme Court, on a question of law, from the above order.[14] That proceeding is numbered S ECI 2024 05979 (‘05979’).
[14]Notice of Appeal in proceeding S ECI 2024 05979 (‘05979’) filed 6 November 2024.
The plaintiff’s notice of appeal in 05979 states the following purported questions of law and proposed grounds of appeal –
QUESTION OF LAW:
1. When the Senior Member conducted the hearing in chambers, did the Senior Member err by failing to properly exercise discretion and act in accordance, regarding my status as a self-represented applicant with a disability, with section 8(3) of the Charter of Human Rights and Responsibilities Act 2006 (Charter Act) and VCAT’s Fair Hearing Obligation and House v R [1936] HCA 40?
2.When the VCAT Senior Member made the decision that the request for an adjournment and the proposed variation of dates was refused, did the Senior Member err by failing to act in accordance with sections 97, 98, 102 in the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act)?
THE PROPOSED GROUNDS RELIED UPON ARE:
Grounds of appeal relating to Question of law 1.
1. The Senior Member erred by failing to consider how the limitations of my disability substantially contributed to my disadvantage when conducting the hearing in chambers, which resulted in the absence of reasonable adjustments and accommodations without requisite justification for failing to do so. As such, my human right to equality under section 8(3) in the Charter Act was breached.
2. The Senior Member erred by failing to properly exercise discretion when assessing my objection to the hearing being conducted in chambers, on the basis that it would disadvantage my interests because of my disability, because the Senior Member did not take into account the material consideration of how the limitations of my disability affected the basis and wording of my objection. As such, the Senior Member acted upon the wrong principle or misunderstood the correct interpretation of my objection.
3.The Senior Member erred by failing to properly exercise discretion with conducting the hearing in chambers, because they did not ensure that clearly discernible instructions were provided to me as a self-represented applicant with a disability, where one of my limitations is that I have a diminished ability to reliably interpret and respond effectively to vague or confusing instructions. This had the effect that I was confused by the wording of the instructions and subsequently provided a succinct objection that did not contain a detailed explanation so as to allow the Tribunal to be satisfied it was reasonable, which was a denial of procedural fairness.
Grounds of appeal relating to Question of law 2.
1.The Senior Member erred by failing to recognise that they did not have sufficient information, proportionate to the seriousness and complexity of the issues in dispute in the VCAT proceeding, to evaluate if refusing my application to adjourn the VCAT trial would cause a significant harm to my case in preparing for the VCAT trial and being able to adduce evidence to establish liability of the respondents with one or more claims. This was contrary to sections 97 and 98(1)(a), 102 of the VCAT Act.
2.The Senior Member erred by failing to recognise that they did not have sufficient information to evaluate if there were special or exceptional circumstances associated with the existing Supreme Court proceeding, against part of the orders made by the Tribunal on 23 July 2024, such that the potential impact of vacating the trial dates were balanced against the principle that an arguable substantial wrong by the Tribunal, with the only legal recourse being lodging an application for leave to appeal to the Supreme Court, could constitute special or exceptional circumstances. This was contrary to sections 97 and 98(1)(a) of the VCAT Act.
3.The Senior Member erred by failing to recognise that they did not have sufficient information to evaluate if the respondents were conducting the VCAT proceeding in a way that was unnecessarily disadvantaging my case in the proceeding and impacting consciously or subconsciously on the Senior Member’s consideration of the written submissions. This was despite serious arguments put to the Senior Member that counsel for the respondents provided incorrect and misleading information in an oral submission to the Tribunal on 23 July 2024, and provided incorrect and misleading information in a written submission to the Tribunal on 17 October 2024. Thus, by making an order in the circumstances that had the effect of rendering the existing Supreme Court proceeding nugatory, this was a denial of procedural fairness and a denial of natural justice.
Two days later, on 8 November 2024, the plaintiff filed a summons in 05979 seeking an order for a ‘temporary stay’ of the VCAT proceeding pending the Court’s determination of 05979.[15] That summons was listed to be heard by McCann JR on 27 November 2024.
[15]Summons for interlocutory relief in 05979 (n 14) filed 8 November 2024.
Three further days later, on 11 November 2024, the plaintiff filed another summons in 05979, this time seeking directions including ‘a request to expedite this proceeding’.[16] That summons was also listed to be heard by McCann JR on 27 November 2024.
[16]Summons for directions in 05979 (n 14) filed 11 November 2024.
On about 20 November 2024, the parties were notified that 04343 would also be listed for directions before McCann JR on 27 November 2024.[17]
[17]CB 652 [9].
On 25 November 2024, at 4:04am in 04343, and at 5:46am in 05979, the plaintiff filed written submissions relating to the hearing before McCann JR.[18]
[18]Applicant’s written submission for hearing 27.11.2024 in 04343 (n 11) filed 25 November 2024; Applicant’s written submission for hearing 27.11.2024 in 05979 (n 14) filed 25 November 2024.
In his written submissions in 04343, among other things, the plaintiff –
(a) referred to his ‘diagnosis of FND’;
(b) asserted that the defendants had made ‘misleading statements about the ongoing discovery process’; and
(c) submitted that his VCAT proceeding should be referred to the Court.
For their part, later the same day, in 04343, the defendants filed –
(a) at 10:37am, a first affidavit of the defendants’ solicitor;[19]
(b) also at 10:37am, written submissions of the defendants;[20] and
(c) at 2:24pm, a second affidavit of the defendants’ solicitor.[21]
[19]CB 6-45.
[20]CB 417-25.
[21]CB 46-416. While the making of the second affidavit was not in issue, the plaintiff confirmed that I should not look at the witness statement exhibited to it (CB47-416): T29.
At 10:40am on 25 November 2024, the defendants filed written submissions in 05979.[22]
[22]Submissions of the defendants in 05979 (n 14) filed 25 November 2025.
At the hearing on 27 November 2024, McCann JR heard the submissions of counsel for the defendants as well as those of the plaintiff.[23]
[23]CB 576-92.
In particular, at the outset, counsel for the defendants stated –
There’s been a development in relation to both [applications], I believe. … I filed some submissions in relation to both (indistinct). One of the points I make [sic: made] is that Mr Biddle is yet to file any evidence in the VCAT proceeding. He's now done so on Sunday this week, and in it, one of the things he does file is some medical evidence about a disability, so to that extent, my submissions have been overtaken by that matter.
McCann JR ultimately made orders to the following relevant effect[24] –
[24]Orders of McCann JR in 04343 (n 11) dated 27 November 2024; orders of McCann JR in 05979 (n 14) dated 27 November 2024.
(a) the earlier timetabling and listing orders relating to 04343 were vacated;
(b) the interlocutory steps relating to each application were aligned preparatory to a final hearing of both applications on 18 February 2025;
(c) each application was listed for ‘further directions’ on 29 January 2025.
In light of the above, 04343 and 05979 were each scheduled to be heard on 18 February 2025, and therefore, prior to the then listed trial date for the underlying VCAT proceeding, namely 3 March 2025.[25]
[25]In January 2025, the trial date for the VCAT proceeding was vacated. I was informed that no new hearing date has yet been allocated. It was also intimated that certain applications were on foot in that proceeding and that VCAT may also be awaiting the determination of 04343 (n 11) and 05979 (n 14) before proceeding to allocate a new trial date: T51-2.
Shortly thereafter, the plaintiff appears to have formed the view that the orders sought by him in 05979 were no longer relevant[26] and, on 17 December 2024, filed a summons seeking leave to discontinue that proceeding.[27] That summons was listed to be heard by Lorenz JR on 29 January 2025.
[26]CB 678-9.
[27]Summons for discontinuance of 05979 (n 14) filed 17 December 2024.
Prior to that hearing –
(a) in 04343 –
(iv) at 11:58pm on 16 January 2025, the plaintiff filed a lengthy outline of submissions (which seems to have been filed in accordance with the timetable earlier ordered by McCann JR, and to have been directed to the issues presented on a final hearing of 04343);[28]
[28]Applicant’s outline of submissions in 04343 (n 11) filed 16 January 2025.
(v) at 4:54pm on 23 January 2025, the defendants filed written submissions (which also seem to have been filed in accordance with the timetable earlier ordered by McCann JR, and to have been directed to the issues presented on a final hearing of 04343);[29]
[29]CB 554-61.
(vi) at the same time, the defendants filed an affidavit of the defendants’ solicitor dated 23 January 2025;[30] and
(b) in 05979, at 11:53pm on 27 January 2025, the plaintiff filed an affidavit dated 24 January 2025.[31]
[30]CB 562-6.
[31]CB 651-79.
In addition, at 1:16pm on 28 January 2025, the plaintiff filed an affidavit in 04343 directed to an application proposed to be made by him under s 29 of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’).[32]
[32]CB 594-609.
In that connection, the plaintiff variously referred to the affidavits of the defendants’ solicitor, as well as submissions made to the Court. In particular, the plaintiff stated that –
(a) ‘the respondents [defendants] and their legal representatives have knowingly attacked and diminished the existence and limitations of my disability without justification, and in doing so have breached section 8(3)’ of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’);[33] and
(b) the ‘second affidavit’ of the defendants’ solicitor dated 25 November 2024 breached the ‘implied obligations referred to in Hearne v Street[34]’.[35]
[33]CB 604 [46].
[34](2008) 235 CLR 125 (‘Hearne v Street’).
[35]CB 604 [47].
Ultimately, the plaintiff submitted that –
(a) there was sufficient evidence for the Court to be satisfied that ‘the respondents [defendants] and their legal representatives have contravened various overarching obligations’ in the Civil Procedure Act (particularly, it seems, ss 16, 17, 18 and 21); and
(b) the Court should made ‘any order it considers appropriate in the interests of justice’.[36]
[36]CB 605 [50].
On 29 January 2025, in 04343, among other things, Lorenz JR ordered that the plaintiff file and serve a summons directed to his s 29 application and that the defendants file and serve any affidavits in response.[37]
[37]Orders of Lorenz JR in 04343 (n 11) dated 29 January 2025.
Consequently, at 4:10pm on 29 January 2025, the plaintiff filed a summons in 04343 in respect of his s 29 application (which did not state the specific relief sought).[38]
[38]CB 593.
That said, at 11:45pm on 6 February 2025, the plaintiff filed lengthy written submissions in 04343 which identified six groups of alleged breaches of the ‘overarching obligations’,[39] particularly –
[39]CB 610-648.
(a) the first affidavit of the defendants’ solicitor dated 25 November 2024;
(b) the second affidavit of the defendants’ solicitor dated 25 November 2024;
(c) the defendants’ written submissions dated 25 November 2024;
(d) aspects of the submissions advanced by counsel for the defendants at the hearing before McCann JR on 27 November 2024;
(e) the further affidavit of the defendants’ solicitor dated 23 January 2025; and
(f) the written submissions of the defendants dated 23 January 2025.
In respect of the various alleged breaches, the plaintiff submitted, in conclusion, as follows –
78.The extensive undertakings by Bell J [in Matsoukatidou v Yarra Ranges Council[40] (‘Matsoukatidou’)] and others regarding the equality of arms principle and the relevant procedural and substantive rights specified in the Charter, in conjunction with my status as a self-represented applicant with a relevant disability, provide the Court with little discretion regarding the alleged adverse conduct by the respondents [defendants] and their legal representatives – despite this being a Court proceeding that was commenced by a VCAT interim judicial review application.
79.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.
80.In light of the alleged breaches, and the 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.
81.This is not to suggest anything to the Court about the prospects of success with my application for leave to appeal and, if granted, my appeal. However, I am convinced that my prospects of success will be significantly diminished if the respondents and their legal representatives are allowed to participate in the hearing.
82.Finally, I should not have to be afraid either before or during the hearing that the opposing solicitors and counsel will try to make more misrepresentations - so that I do not succeed in this proceeding - in such a manner that I may not be able to adequately defend myself against.[41]
[40]Matsoukatidou (n 3).
[41]CB 648.
In response, at 3:11pm on 11 February 2025, the defendants’ solicitor filed an affidavit in 04343 dated 7 February 2025.[42]
[42]CB 573-92.
On 14 February 2025, at least 04343 was mentioned before Lorenz JR. In respect of the s 29 application, the defendants were granted leave to file and serve any written submissions by 17 February 2025 (which, in due course, occurred).[43]
[43]Orders of Lorenz JR in 04343 (n 11) dated 14 February 2025; submissions of the respondents and Ms Sung in response to the Applicant’s application for relief pursuant to section 29 of the Civil Procedure Act, filed on 17 February 2025.
In light of the above, in substance, the following came before me on 18 February 2025 –
(a) the plaintiff’s s 29 application in 04343;
(b) the plaintiff’s application for leave to appeal on a question of law in 04343; and
(c) the plaintiff’s summons to discontinue 05979.
In that general connection, at the hearing –
(a) the plaintiff described his s 29 application as –
… the only means available … to highlight the problems that I’ve seen with the quality of the [defendants’] submissions and affidavits affecting my application for leave to appeal …[44]
[44]T7.
(b) the plaintiff confirmed that he did not seek personal orders against the relevant counsel for the defendants;[45]
[45]T20. I should note that counsel concerned was not counsel who appeared for the defendants at the hearing on 18 February 2025.
(c) the plaintiff confirmed that he sought that ‘the respondents [defendants] and their legal team … be prevented from appearing any further in this proceeding’, meaning that –
… they [the defendants] wouldn’t have any right to have counsel [or solicitors] appear for them in the proceeding. They would be removed from the proceeding, so to speak. It would be as if they didn’t appear.[46]
[46]T9.
(d) the plaintiff stated that he had not identified a case in which any such order had previously been made (as did counsel for the defendants);[47]
[47]T10, 66.
(e) nonetheless, the plaintiff and counsel for the defendants each confirmed that the hearing of the s 29 application could proceed, albeit that as a consequence of the complexity of that application, as well as the relief sought by the plaintiff in it, it would be necessary to deal subsequently with the plaintiff’s substantive application for leave to appeal on a question of law in 04343;[48]
[48]T20-5.
(f) thereafter, the plaintiff and counsel for the defendants each addressed the s 29 application;[49] and
(g) in respect of 05979, the parties addressed the plaintiff’s summons seeking leave to discontinue which, in substance, concerned the issue of whether, pursuant to r 63.15 of the Supreme Court (General Civil Procedure) Rules 2015, the Court should ‘otherwise order’ in respect of the costs of discontinuance.[50]
B Relevant ‘overarching obligations’ and s 29 of the Civil Procedure Act
[49]T25-97.
[50]T97-120.
It will be evident that the plaintiff’s s 29 application was broadly directed to alleged breaches of the following ‘overarching obligations’ –[51]
[51]See Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’) pt 2.3.
16 Paramount duty
Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved, including, but not limited to—
(a) any interlocutory application or interlocutory proceeding;
(b) any appeal from an order or a judgment in a civil proceeding;
(c)any appropriate dispute resolution undertaken in relation to a civil proceeding.
17 Overarching obligation to act honestly
A person to whom the overarching obligations apply must act honestly at all times in relation to a civil proceeding.
18 Overarching obligation—requirement of proper basis
A person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that—
(a) is frivolous; or
(b) is vexatious; or
(c) is an abuse of process; or
(d)does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis
…
21 Overarching obligation not to mislead or deceive
A person to whom the overarching obligations apply must not, in respect of a civil proceeding, engage in conduct which is—
(a) misleading or deceptive; or
(b) likely to mislead or deceive.
In that connection, s 29 of the Civil Procedure Act states, relevantly –
29 Court may make certain orders
(1)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—
…
(d)an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;
(e)an order that the person not be permitted to take specified steps in the civil proceeding;
(f)any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
C Self-representation and claimed disability
I have earlier referred to the plaintiff’s appearance self-represented with a claimed disability. That issue presently arises in at least the following two ways –
(a) it appears to bear upon the substance of the plaintiff’s s 29 application, as he contends that the defendants and their legal representatives ‘have knowingly attacked and diminished the existence and limitations of my disability without justification’; and
(b) more immediately, the plaintiff submits that, as a consequence of being self-represented with a disability, the Court must afford him ‘reasonable adjustments and accommodations’.
It is evident that –
(a) the issue has a history that extends back into the VCAT litigation; and
(b) the plaintiff also relies on the issue in his notices of appeal in 04343 and 05979.
The plaintiff says that he notified VCAT of the issue via a ‘private and confidential written submission’ on 29 May 2024.[52] It is unclear whether that document was provided to the defendants.
[52]CB 595 [10].
In any event, the plaintiff advised VCAT that his condition was ‘self-reported’ and ‘hidden, complex and not easily observable during objective testing’. It is apparent that, at that time, the plaintiff had been investigating the matter via the internet, and had experienced ‘ongoing challenges with trying to get a reliable and conclusive diagnosis’. That said, he said that he had ‘been able to make some progress with certain medical specialists’.[53]
[53]CB 472-5 [2], [9], [9.4].
In the present application, the plaintiff says that he was diagnosed with FND by a neurologist on 19 September 2024.[54] However, he also says that –
[54]CB 594 [4].
(a) his diagnosis ‘is not accompanied by any medical information that can identify or confirm the manifestations or limitations associated with [his] medical condition’;
(b) he has not provided evidence of that diagnosis to the Court, although he has ‘filed evidence’ with VCAT; and
(c) he cannot adequately describe his symptoms to ‘anyone’ – although, as I have earlier noted, his various symptoms are said to include a ‘mystery persistent “brain fog”’ as well as an ‘[i]rrational “fight or flight” sensitivity’.[55]
[55]CB 594-5 [5]-[9].
The plaintiff has not provided the Court with any medical material or opinions relevantly obtained by him prior to 19 September 2024, or since.
Nonetheless, it is in that general context that the plaintiff claims that he suffers from a disability which ‘meets the definition … under section 4(1) in the Equal Opportunity Act’[56] and that, as a self-represented litigant with a disability, he should be afforded ‘reasonable adjustments and accommodations’.
[56]CB 594 [4]. Cf Equal Opportunity Act 2010 (Vic) s 4(1), definition of ‘disability’.
At the commencement of the present hearing, the plaintiff explained as follows –
I just wanted to start with something just to do with my disability just so that it’s – it’s something that’s available for the Court. As I’ve mentioned in my affidavits, I’ve been diagnosed with a neurological disorder of functional neurological disorder.
The respondents haven’t mentioned anything in the proceeding that disputes my diagnosis, and they also acknowledge that I filed evidence of my diagnosis in the VCAT proceeding. As the Court may be aware, I’ve claimed to have a disability within the meaning of that term under s 4(1) in the Equal Opportunity Act or the EOA and that I’m a self-represented applicant with a relevant disability that would limit my effective participation today without reasonable adjustments and accommodations being made by the court.
It's unnecessary for the court to consider any of the submissions about - made by the respondents about my disability being a fact in issue, and that’s because, while they’ve acknowledged my assertion about having a disability under the EOA, in Matsoukatidou v Yarra Ranges Council, Bell J reiterates my assertion by setting out that the applicant - applicant in question in that case had the attribute of disability set out in s 6(e) of the EOA, and he goes on to cite the definition of disability in s 4(1) in the EOA.
As such, it - it doesn’t - it doesn’t matter for the purposes of the VCAT or court proceedings if my neurological disorder doesn’t meet certain legal definitions of ‘disability’; for example, as used in the Disability Act 2006. Bell J also held in that same case that persons with a disability are entitled to equal and effective protection against discrimination in the conduct of hearings under procedures followed the court.
‘A judicial officer is required to make reasonable adjustments and accommodations so that such persons are not prevented by reason of their disability from effectively participating in a proceeding, including hearings, and have equality or arms with other parties.’
As my disorder affects the quality of my thoughts and communication, this can lead to challenges and roadblocks that aren’t easily resolved because there are no usual patterns or cues to watch out for and there are no straightforward solutions to any misunderstandings and mistaken impressions that occur. My disorder has been described as where the software in my brain glitches, even though the hardware of my brain is fine.
Problems typically occur because other people form erroneous impressions about what I must mean or what I must be thinking or how I must be reacting. Unfortunately, the more I try to explain something where a misunderstanding or mistaken impression has occurred, the worse the problem becomes. I ask the Court to accept that appearances can be deceiving with my disorder and not to rely on an external assessment about the existence and manifestations/limitations of my disability.
I believe that the written material I have filed with the Court has a strong factual and legal foundation, but that doesn’t mean that I can easily answer all - any questions or reply to any oral submissions made by the respondents because of limitations of my disability. I also ask the Court to make such enquiries with me about any salient facts and legal principles that may appear to be irregular or misconstrued, because I don’t want the matters I want to put forward to be lost in translation before any determinations are made.[57]
[57]T2-4. See also CB 628 [39].
Later, the plaintiff explained further that –
… 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.
…
… It’s over to the respondents to act in a way that doesn’t stop the Court from acting in accordance with the overarching purpose. So if the respondents giving you a response is not made on a proper basis … if they choose to disregard what I’ve said about the EOA [Equal Opportunity Act], and convey the impression to the Court that I don’t have a disability, which undermines the entire basis of … the reasonable accommodations that I’ve asked for, then that would lead the Court to act in a way that was not consistent with the proper administration of justice.[58]
[58]T35-7.
In connection with that overall submission, it will be evident that the plaintiff places reliance upon aspects of the decision of Bell J in Matsoukatidou.[59]
[59]Matsoukatidou (n 3).
It will also be evident, that the plaintiff submits, that it does not matter if his condition does not meet ‘certain legal definitions of “disability”’. He says that his ‘effective participation’ in the hearing is limited and that he should be afforded ‘equality of arms’. In that connection, in particular, he says that the Court should –
(a) not rely on any ‘external assessment about the existence and manifestations/limitations of [his] disability’;
(b) take into account that he cannot ‘easily answer all … questions or reply to any oral submissions’; and
(c) enquire with him about ‘any salient facts and legal principles’ so that nothing is ‘lost in translation’.
Those steps would seem to be the substance of the ‘reasonable adjustments and accommodations’ presently sought.
In Matsoukatidou,[60] two women made application to the County Court for reinstatement of their previously struck out appeals from the Magistrates’ Court. Each woman was self-represented and it was seemingly not in issue, as well as plainly apparent, that one of the women – ‘Maria’ – had a learning disability.[61] In that connection, his Honour stated –
Maria’s disability substantially diminished her capability to participate effectively in the hearing in a number of ways. On the basis of her evidence in this court and the transcript of the hearing before the judge in the County Court, I find that Maria’s disability so diminished her understanding of what the judge said to her, the issues that his Honour was required to consider and the nature of her application and also her ability to communicate with the judge. Therefore, without some advice and assistance from the judge, she could not make fully effective decisions about what to say and what evidence to give.[62]
[60]Matsoukatidou (n 3).
[61]Ibid [3], [48], footnote 38, [61], [101], [107], [114], [116], [141], [143]-[145].
[62]Ibid [146].
The other woman – ‘Betty’ – had English as a second language, although that was not treated as amounting to a disability.
In that context, his Honour surveyed many relevant provisions, principles and authorities, including –
(a) section 8(3) of the Charter, which states –
Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(b) section 24(1) of the Charter, which states –
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(c) the principles relating to the common law obligation of a court to ensure a fair hearing, particularly as earlier identified by his Honour in Tomasevic v Travaglini.[63]
[63](2007) 17 VR 100 (‘Tomasevic’).
In connection with s 8(3) of the Charter, his Honour stated –
… the right to equal and effective protection against discrimination in s 8(3) has operation in respect of persons who, without that protection, could not effectively participate in a court or tribunal proceeding (including in any hearing) by reason of age, race, disability or other protected attribute under the Equal Opportunity Act. The ability of such a person effectively to participate in the proceeding might be due to a number of attribute-related physical, communicative or cognitive capability deficits. Those experiencing the effect of discrimination on a number of intersecting grounds are likely to be in a position of aggravation in this regard. In order to ensure equal protection against such discrimination, the court is required to make such adjustments and accommodations as may be reasonably necessary and available to ensure the effective participation of the individual despite their disability, subject to the fundamental requirements of judicial independence, impartiality and fairness and respect for the human rights of other participants.[64]
[64]Matsoukatidou (n 3) [108] (citations omitted).
Shortly thereafter, his Honour observed that while the obligation of a court or tribunal to ensure equal protection against discrimination is additional to the obligation of a court or tribunal to ensure a fair trial, ‘the two obligations run in the same river of principle’ and are closely connected.[65]
[65]Ibid [111], [113].
His Honour then considered the right to a ‘fair hearing’ stated in s 24(1) of the Charter, particularly in respect of self-represented parties. In that connection, his Honour referred to the risk of unfairness arising from ineffective participation in court proceedings, and the potential need for a judge to make ‘reasonable accommodations’ in order that a party might have ‘equality of arms’, meaning ‘a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent’.[66]
[66]Ibid [119]-[123].
That said, as his Honour explained –
(a) there is a ‘boundary that cannot be crossed by virtue of the judicial nature of the function of the court’;[67] and
(b) any ‘adjustments and accommodations’ must be ‘proportionate’ so as to ensure ‘effective participation and equality of arms’ as distinct from ‘an unjustified advantage’.[68]
[67]Matsoukatidou (n 3) [134].
[68]Ibid [136].
His Honour also explained that while he could not say that the content of the right to a fair hearing and the common law obligation to ensure a fair hearing are ‘conterminous’, the two are ‘so close and overlapping’ that assistance given pursuant to the common law obligation will, ‘almost always’, amount to ‘reasonable adjustments and accommodations under the human rights standard’.[69]
[69]Ibid [180]-[181].
In the circumstances, his Honour concluded, relevantly, as follows –
[184]In relation to the procedures followed in hearings, courts and tribunals must apply the right to equality in s 8(3) and the right to a fair hearing in s 24(1) of the Charter. This obligation applies in relation to self-represented parties generally and it applied specifically in relation to the hearing of the applications made by Maria and Betty in the County Court for reinstatement of their appeals. They have established that the judge hearing those applications did not apply those rights.
[185]Maria is a person with a disability and a disability pensioner. Under s 8(3) of the Charter, the judge was obliged to ensure that she was equally and effectively protected against discrimination by reason of this disability. This required the judge to make certain adjustments and accommodations to the procedures that were adopted, which his Honour did not make. Maria’s inability effectively to participate in the hearing was substantially due to the judge’s failure to do so. Therefore the judge did not apply her right to equality under s 8(3).
[186]Maria and Betty both had the right under s 24(1) of the Charter to a fair hearing of their applications. As they appeared self-represented, the judge was obliged by s 24(1) to give them certain advice and assistance to ensure that they effectively participated in the hearing, which his Honour did not give. Their inability effectively to participate in the hearing was due (in Maria’s case as an additional reason) to the judge’s failure to do so. Therefore the judge did not apply their right to a fair hearing under s 24(1).
[187]In almost all cases, a self-represented party in a case like the present will be entitled to make application for an order for judicial review for breach of the rules of procedural fairness and thereby excess of jurisdiction under the common law when a court or tribunal fails to apply the right to equality under s 8(3) (where relevant) and a fair hearing under s 24(1) of the Charter in respect of that party. This is because the obligations of courts and tribunals under the Charter to apply those human rights in proceedings are very close to, and in almost all cases coextensive with, their obligations under the common law to give self-represented parties such advice and assistance as will ensure that they have a fair trial.
From the different pathways of reasoning in Matsoukatidou, it will be evident that, whether the question is approached by reference to the common law obligation to ensure a fair trial, s 8(3) of the Charter and/or 24(1) of the Charter, the issue will very often come down to whether the litigant can participate effectively in the proceeding and, if not, what ‘reasonable adjustments and accommodations’ might be available and necessary to be made in order to facilitate that participation, and a fair trial, without the judicial officer crossing the ‘boundary’ and conferring an ‘unfair advantage’.
The common law obligation to ensure a fair trial was later considered by the Court of Appeal in Doughty-Cowell v Kyriazis (‘Doughty-Cowell’)[70] and Roberts v Harkness (‘Roberts’).[71]
[70][2018] VSCA 216 (‘Doughty-Cowell’).
[71](2018) 57 VR 334 (‘Roberts’).
In Doughty-Cowell, the respondent, Mr Kyriazis, appeared self-represented in a County Court appeal against two convictions on minor traffic offences.
On judicial review to the Supreme Court, a judge concluded that Mr Kyriazis had been denied procedural fairness and a fair hearing and that the County Court judge had been guilty of ostensible bias.
An appeal to the Court of Appeal was allowed. In summary, the Court of Appeal (Maxwell P, Beach and Niall JJA) –
(a) commenced by observing as follows –
[1]Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong-minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.
[2]The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self-represented litigant.
(b) also observed that Mr Kyriazis had been ‘provocative and confrontational … from the first moment’;[72] and
(c) concluded that it was not a case in which the County Court judge had been obliged to take extra measures to provide assistance to Mr Kyriazis.[73]
[72]Doughty-Cowell (n 70) [3].
[73]Ibid [8].
More broadly, the Court of Appeal referred to its reasons delivered the same day in Roberts and identified the following considerations bearing upon the obligation of a court to ensure a fair hearing –
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
• the nature and complexity of the issues in dispute;
•the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision; and
• the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.[74]
[74]Doughty-Cowell (n 71) [63].
In that general connection, the Court of Appeal observed that ‘nothing in the transcript’ suggested that Mr Kyriazis had been ‘in any way uninformed about the essential elements of the process he was engaged in’.[75]
[75]Ibid [75].
In Roberts, the respondent, Mr Harkness, appeared self-represented in the Magistrates’ Court facing several charges under the Road Safety Act 1986 (Vic). In objecting to jurisdiction, Mr Harkness asserted that the Court had not ‘proven jurisdiction’ and that he had a ‘right to travel pursuant to the Blessing of Almighty God’.
On judicial review to the Supreme Court, a judge concluded that the magistrate had denied Mr Harkness procedural fairness, particularly by failing to provide him with ‘due assistance’ in relation to his objection to jurisdiction.
An appeal to the Court of Appeal was allowed. In that connection, the Court of Appeal (Maxwell P, Beach and Niall JJA) stated that –
(a) Mr Harkness had been afforded, and taken up, a full opportunity to set out his argument in advance, and in writing;[76]
(b) it was ‘readily apparent’ that Mr Harkness had been able to articulate his objection ‘fully and clearly’;[77] and
(c) it was equally apparent that his objection had no foundation in law (and ‘no amount of elaboration could have altered that position’).[78]
[76]Roberts (n 72) [10].
[77]Roberts (n 72) [12].
[78]Ibid.
The Court of Appeal relevantly referred to the judge’s reliance upon parts of the reasoning in Matsoukatidou; particularly to the effect that the ‘purpose and scope of the duty to ensure a fair hearing for self-represented parties’ and the ‘human rights in the Charter’ are ‘very close’.[79]
[79]Ibid [33].
The Court of Appeal thereafter addressed the topic of ‘[u]nrepresented litigants and the right to a fair hearing’;[80] the essential substance of which was summarised in Doughty-Cowell in the terms extracted above.
[80]Ibid [46]-[55].
Of present relevance, the Court of Appeal thereafter stated –
A critical fair hearing question for the judicial officer is whether there is, or may be, an arguable legal point underlying the unrepresented litigant’s arguments but which he/she has not been able to articulate. In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant. …[81]
[81]Ibid [56].
In that context, the Court of Appeal determined that there had been no denial of procedural fairness by the magistrate. In particular –
(a) Mr Harkness had been given the opportunity to set out in writing ‘as fully as he chose, the propositions on which his objection to jurisdiction rested’;[82]
[82]Ibid [59].
(b) his documents demonstrated that he was –
(vii) articulate, fluent and verbally confident;
(viii) familiar with and able to utilise court documents and procedures; and
(ix)able to state his position in clear and definite terms;[83]
(c) it was not a case in which fairness required that he be given assistance with his objection to jurisdiction; and
(d) there had not been any reason for the magistrate to be concerned that there might be some valid legal argument underlying Mr Harkness’ contentions.[84]
[83]Roberts (n 72) Ibid.
[84]Ibid [60].
In the present context, of course, the plaintiff emphasised his ‘disability’ and self-represented status and sought the ‘reasonable adjustments and accommodations’ variously identified.
That said, the foundation for the plaintiff’s claims to being self-represented and disabled, and therefore, in need of particular or extra assistance plainly had some unusual features that put his case in a position quite different to that of ‘Maria’ in Matsoukatidou. In particular –
(a) the plaintiff apparently came to a diagnosis of FND only recently and in circumstances in which there had evidently been at least some controversy about what, and perhaps whether, any such diagnosis was applicable;
(b) the one medical report apparently advancing a diagnosis of FND was not placed before the Court;
(c) accordingly, the Court could not examine the statements and opinions of the said neurologist concerning the extent of any symptoms and consequences of the plaintiff’s condition;
(d) as I have noted, the plaintiff said that his condition was ‘hidden’, unable to be adequately described (indeed, unable to be proved) and that the ‘manifestations or limitations’ of it could not be ‘identif[ied] or confirm[ed]’ – which is, to say the least, a highly unusual situation;
(e) having 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 plaintiff (or, indeed, any neurologist) can be sure that he has it and is relevantly affected by it;
(f) in any event, the plaintiff’s position is very far from that of ‘Maria’ in Matsoukatidou – who had a learning disability which was both, not in issue, and quite plain to the judge;
(g) further, notwithstanding his status as a self-represented litigant with a claimed disability, the plaintiff has repeatedly articulated his arguments in writing – at VCAT, in his affidavits and written submissions in his applications for leave to appeal and in respect of his application under s 29 of the Civil Procedure Act;
(h) all of that material is in highly articulate terms and it is plain that the plaintiff has been able to use documents and procedures in order to state his positions clearly;
(i) the plaintiff’s presentation in Court on the hearing of the present application was no different – he was verbally fluent and articulate and well able to state his positions clearly and in a manner that was broadly consistent with his underlying written material;
(j) he was also able to respond articulately and effectively to my questions, as well as to the submissions of counsel for the defendants; and
(k) in the circumstances, I could not conclude that the plaintiff is affected in any presently relevant or particular way by his claimed recent diagnosis of FND.
In short, while the plaintiff claimed to be disadvantaged by his disability of FND, there was simply no sign in any aspect of his extensive oral submissions that he was hampered by symptoms constituted by a ‘mystery persistent “brain fog”’, ‘[i]rrational fight or flight sensitivity’ or anything else. Indeed –
(a) his written and oral submissions were at least as fluent and clear as those of many legal practitioners; and
(b) I would be astounded if any ordinary, reasonable person sitting in the Court could have thought that the plaintiff was struggling to participate effectively and in need of any extra assistance from the Court in order to do so.
In those circumstances, the plaintiff’s submission that the Court should presently not consider his presentation cannot be accepted. Among other things –
(a) the presentation of the particular self-represented litigant was plainly relevant and important in each of Matsoukatidou, Doughty-Cowell and Roberts;
(b) if there can ever be a case in which, medically, the Court should not give consideration to the presentation of a litigant, the circumstances of the present case do not seem to me to be sufficiently certain that such an important consideration may simply be discarded; and
(c) as I have indicated, there was nothing about the plaintiff’s presentation that, at any point, suggested that he was unable to participate effectively in the hearing.
To be clear, in the present instance –
(a) the plaintiff was quite able to answer questions and reply, including about the ‘salient facts and legal principles’;
(b) nothing that the plaintiff wanted to say seemed to be at any real risk of being ‘lost in translation’;
(c) that was particularly so in light of the plaintiff’s written material, which was relevantly consistent with his equally articulate oral submissions;
(d) it was not a case in which there appeared to be any arguable underlying legal point which, as a consequence of the plaintiff appearing self-represented or with a claimed disability, the plaintiff was not able to articulate; and
(e) in that regard, it did not seem to be a case in which the plaintiff was at any unreasonable disadvantage such that the Court should be moved to intervene, in any way out of the ordinary, so as to ensure that the hearing would be fair.
In respect of the latter point, I should add that, in my view, it does not follow from the fact that the plaintiff made submissions that ultimately cannot be accepted, that the Court should have been moved to afford him any extra or specific assistance.
In that regard, as I have indicated, the plaintiff was able to participate effectively in the hearing and to advance the points that he sought to make. It follows, in my view, that there was no relevant inequality of ‘arms’.
Further, it is, of course, common for legal practitioners to advance submissions that are rejected – sometimes wholly – and it does not follow from that rejection that the court concerned should have been moved to afford the practitioner any special or extra assistance. To do so would be to cross the ‘boundary’ and, in my view, the position presently pertaining to the plaintiff is little different.
In the circumstances, I am unable to accept that in the hearing of the present applications it was reasonably necessary or appropriate to afford the plaintiff any of the various special or extra ‘adjustments and accommodations’ which he sought.
D 04343: s 29 application
I have earlier referred to the bases upon which the plaintiff’s s 29 application was advanced, as well as the unprecedented relief sought.
It was not in dispute that the Court should take a cautious approach and that an exercise of the discretion conferred by s 29 of the Civil Procedure Act is governed by the principles in Briginshaw v Briginshaw.[85]
[85]See Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1, [103], [108]. Cf Briginshaw v Briginshaw (1938) 60 CLR 336.
In that context, without precisely tethering his argument to any particular stated overarching obligation or obligations (as opposed to a broad combination of ss 16, 17, 18 and 21 of the Civil Procedure Act), it was plain enough that the plaintiff’s central complaints were that various aspects of the material and submissions to which he referred were –
(a) not honestly made; and/or
(b) frivolous or vexatious; and/or
(c) made without a proper basis; and/or
(d) false or misleading, or likely to mislead, particularly by ‘incomplete disclosure’.[86]
[86]In oral address, the plaintiff said that the situation was similar to ‘Bill Clinton’s various defences in 1998 about his improper relationship with Monica Lewinsky’. That is, the defendants and their legal team were said to have ‘used specific syntax to supposedly comply with telling the truth but giving a false impression in the process’: T26.
In that connection, the plaintiff referred to the relevant second reading speech, and sought to emphasise that the Civil Procedure Act was directed to lifting the standards of conduct in litigation and that the Court should, in effect, use it actively in order to ‘hold … parties to account’.[87]
[87]CB 624 [31], 626 [33]. Cf Yara Australia Pty Ltd v Oswal (2013) 41 VR 302.
First affidavit of the defendant’s solicitor filed 25 November 2024
The first of the plaintiff’s group of claimed breaches concerns the affidavit of the defendants’ solicitor dated 25 November 2024.[88]
[88]CB 6-45.
In that regard, the plaintiff points to statements of the solicitor that –
(a) ‘the existence of a disability was contested’;
(b) the plaintiff ‘had never presented medical evidence to the [defendants] to evidence the existence of [his] claimed disability’; and
(c) the plaintiff ‘had not filed any medical evidence in the Tribunal in support of [his] claimed disability’.[89]
[89]CB 629-631 [41]-[44]. Cf CB 6-7 [5].
In that connection, among other things, the plaintiff says that –
(a) as a consequence of his own statements, the solicitor was ‘aware’ of the plaintiff’s diagnosis prior to 25 November 2024;
(b) a copy of what was described as the plaintiff’s ‘diagnosis’ – namely a report of a neurologist – was filed in the VCAT proceeding on 24 November 2024;
(c) the solicitor should have expected that he would file such a report; and
(d) the solicitor’s affidavit does not identify ‘the factual or legal material’ relied on by the defendants to contest the plaintiff’s claim.
As I have earlier noted, the plaintiff attributes his claimed condition of FND to a motor vehicle accident in November 2021. That said, he has acknowledged that –
(a) the motor accident was ‘minor enough’;
(b) he does not recall hitting his head in the accident; and
(c) there does not appear to be ‘a rational explanation for [his] symptoms’.[90]
[90]CB 474 [8.2].
There seems subsequently to have been a period in which the plaintiff had ‘ongoing challenges’ getting a ‘reliable and conclusive diagnosis’. In that regard, he has referred to –
(a) ‘mental fatigue’ – which may not be an injury at all;
(b) ‘an adjustment disorder’ – which is a psychiatric or psychological condition; and
(c) some examinations indicative of ‘a type of functional neurological disorder’ – which is presumably a condition related to the function of the brain.
I interpolate to observe that such a presentation can typically give rise to nearly as many diagnoses (and, indeed, non-diagnoses) as there are examiners. Very often, there is nothing approaching a medical consensus.
The plaintiff’s employment with the first defendant was terminated in April 2023 in circumstances which he seems to have taken issue with, including, in particular, his refusal to attend an independent medical examination.
Notwithstanding the reference to ‘some examinations’ indicative of FND, the only such diagnosis seems to have been obtained from a neurologist in September 2024. Even then –
(a) somewhat curiously, the plaintiff deposes that –
The diagnosis of FND is not accompanied by any medical information that can identify or confirm the manifestations or limitations associated with my condition.
(b) the plaintiff says that he has not provided the report to the Court, although he has filed it among his evidence at VCAT; and
(c) his ‘condition/injury’ is said to remain ‘self-reported hidden and complex’, ‘not easily observable during objective testing’ and unable to be adequately described by him to ‘anyone’.[91]
[91]CB 594-595 [4]-[7]. I note that practically identical statements appear in affidavit material sworn and filed by the plaintiff prior to 25 November 2024: see affidavit of the plaintiff filed 28 October 2024, [5]-[8].
Consistently with the last mentioned feature, as I have noted, the plaintiff presented during the present hearing in a manner that was not indicative of any disability. The above mentioned feature may suggest that he has presented regularly in that manner since the motor accident in November 2021.
Without needing to go any further, there seems to me to have been an ample, and quite proper, basis upon which the defendants could take the position that the existence of the claimed disability is contested.
In argument, the plaintiff sought to submit that the defendants could only properly take such a position if they were armed with medical evidence that might be thought to contradict his preferred ‘diagnosis’. Such a stance is, of course, open to be viewed in light of the plaintiff’s apparent unwillingness to attend a scheduled medical examination, as well as his apparent failure to produce all relevant medical material (at least in the present proceedings).
Whatever else might be said about such a stance, the simple position is that the plaintiff must bear the onus of establishing his condition and, in the whole of the circumstances to which I have referred, it seems to have been quite open for the defendants not to accept his claim.
In the circumstances to which I have referred, I also could not conclude that the defendants’ solicitor should have –
(a) been ‘aware’ of the plaintiff’s ‘disability’ merely because he has claimed to have obtained one supportive diagnosis; and
(b) anticipated that the plaintiff would file the neurologist’s report at VCAT.[92]
[92]Among other things, in his affidavit filed 28 October 2024 (and therefore shortly before 25 November 2024) the plaintiff deposed that he had been diagnosed with FND in September 2024, but that he had ‘not provided evidence of [his] diagnosis in this affidavit’: [6].
The plaintiff’s final point of any real substance was that at the time at which the affidavit of the defendant’s solicitor was filed he had, in fact, already filed the neurologist’s report together with his witness statement at VCAT.
I have earlier referred to aspects of those events, several of which are explained in the affidavit of the defendant’s solicitor filed 11 February 2025.[93] In that regard –
[93]CB 573-4.
(a) the solicitor’s first affidavit, and the defendant’s written submissions, were settled during the week prior to Monday, 25 November 2024;
(b) the plaintiff filed and served his witness statement at VCAT at 11:34pm on Sunday, 24 November 2024;
(c) the solicitor read the plaintiff’s email attaching his witness statement at 9:45am on Monday, 25 November 2024, but had not then read the attached witness statement (of 369 pages);
(d) the solicitor filed and served her first affidavit together with the defendants’ written submissions at 10:37am on Monday, 25 November 2024 and, at that time, believed the statements made to be true and correct;
(e) the solicitor filed her second affidavit – exhibiting a copy of the plaintiff’s lengthy witness statement from VCAT – at 2:24pm on Monday, 25 November 2024, although she had still not read the witness statement;
(f) the solicitor commenced several weeks of annual leave the following day; and
(g) as I have earlier indicated, at the outset of the hearing before McCann JR on 27 November 2024, counsel for the defendants noted that the plaintiff had filed some medical evidence at VCAT so, to that extent, his submissions had been ‘overtaken’.
I accept the solicitor’s explanation. The situation described is far from an uncommon one (and, I would think, not one that featured heavily in deliberations leading to the enactment of the Civil Procedure Act). In any event, necessarily adopting a cautious approach, I could not possibly conclude that the solicitor had any dishonest intent.
More particularly, however, the plaintiff sought to suggest that the solicitor’s statements had been misleading or deceptive, or likely to mislead and deceive.
I have indicated that the present circumstances are not uncommon: an affidavit is settled and later sworn and filed together with written submissions that are later realised to contain an error. At the point of filing, of course, there is little prospect of any judicial officer being relevantly misled or deceived, because the hearing is still days away.
When the hearing arrives, as in the present instance, the judicial officer is simply informed by counsel of the substance of the error and matters move on. There is almost never a suggestion that anyone has been materially misled or deceived because, in truth, the only person who matters – the judicial officer – has not been misled at the only time which matters – during the relevant hearing.
In such cases, the material involved therefore never acquires any real capacity to mislead or deceive in the only time and place that matters.
In the present instance, I note that the transcript of the hearing does not suggest that McCann JR considered herself to have been misled or deceived and, in the circumstances to which I have referred, I could not conclude that any misleading or deception occurred or was at any real risk of occurring.
The plaintiff otherwise submitted that the relevant statements were ‘frivolous’, ‘mischievous’ and of a kind that ‘may prejudice … the existence and limitations of [his] disability’.
Plainly, in a combined directions hearing of the present kind, it will often be relevant to inform the particular judicial officer of the stance of the defendants in respect of a significant claim or argument advanced in the applications, as well as the state of affairs in the underlying VCAT proceeding. Nothing about that is ‘frivolous’ or ‘mischievous’.
In that regard, in what are, in effect, interlocutory appeals requiring a grant of leave, it will very often be relevant for a court considering the management of those applications to be advised of features that might ultimately bear upon discretionary factors such as the apparent justice of the case and whether a grant of leave might be said to be futile.[94]
[94]Chopra v Department of Education and Training [2019] VSC 488, [22]-[28].
Further, to say that the statements of the solicitor had done no more than possibly prejudice the position of the plaintiff (‘may prejudice’) is hardly a firm foundation from which the Court should be invited to do something as unquestionably serious as concluding to the Briginshaw standard that the overarching obligations were breached as a consequence of which unprecedented relief should be ordered.
The plaintiff’s submission that statements in the first affidavit of the defendants’ solicitor breached the ‘overarching obligations’ must be rejected.
Before moving to the plaintiff’s further groups of complaints, I should say that many complaints of the kind to which I have just referred – particularly, that certain statements or submissions of the defendants were, for example, ‘adverse’, ‘frivolous’, ‘vexatious’, ‘mischievous’, ‘distorted’, ‘re-constructed’ or ‘may prejudice’ the plaintiff – are also advanced in respect of many of the plaintiff’s later groups of grounds.
In the interests of economy, those various complaints should be taken to be dealt with here, and rejected globally.
Necessarily taking a cautious approach, in the context in which they were each made, I do not accept that any of those various statements or submissions (which, as articulated in the plaintiff’s written submissions, I have considered individually) were –
(a) improper, irrelevant or not open to be put;
(b) in breach of any of the ‘overarching obligations’ relied upon.
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.
Second affidavit of the defendant’s solicitor filed 25 November 2024
The second of the plaintiff’s claimed breaches concerns the second affidavit of the defendant’s solicitor filed at 2:24pm on Monday, 25 November 2024.[95]
[95]CB 46-416.
In that regard, the plaintiff submits that by exhibiting his witness statement from VCAT to her second affidavit, the solicitor has breached the Harman undertaking attaching to documents produced under compulsion.[96]
[96]CB 631-632 [45]-[50]. Cf Hearne v Street (2008) 235 CLR 125, [96].
It may be accepted that –
(a) the witness statement was filed pursuant to an order of VCAT;[97] and
(b) the underlying proceedings at VCAT, and the present applications for leave to appeal on a question of law (04343 and 05979), are technically separate.
[97]CB 649 [4].
That said, the latter can very often be said about underlying and related appeal proceedings, although it is rarely, if ever, suggested that production of such a document in an application for leave to appeal from the underlying proceeding should be taken to amount to a breach of the implied undertaking.
In a sense, the present issue was addressed indirectly by the Court of Appeal (Tate, McLeish and Hargrave JJA) in Hazell-Wright v 32 Domain Pty Ltd,[98] in which certain affidavits produced in the course of Family Court proceedings were referred to in proposed pleadings in later County Court proceedings.
[98][2020] VSCA 129 (‘Hazell-Wright’).
Albeit that the Court of Appeal did not ultimately need to decide the issue, it observed that there was ‘real merit’ in the contention that the Harman undertaking did not there apply. In that regard, the Court of Appeal referred to other authority and stated –
[19]In our view, these cases provide support for a general proposition that there is a class of subsequent cases between the same parties, or their privies, where the connection between the two cases has the result that the Harman undertaking in the earlier case does not prevent the use of documents or information subject to that undertaking in the subsequent proceeding. …
[20]In our view, there was much force in the applicant’s argument that each of the proposed defences ‘arises directly out of’ or is ‘legitimately’ connected with the property settlement issues concerning the apartment which appear to have been finally resolved by the Family Court proceeding. … In these circumstances, it does not appear that there is any ‘collateral’ or ‘ulterior’ purpose in the proposed use of the documents and information subject to the Harman undertaking in the Family Court in the County Court proceeding. …
The authorities to which the Court of Appeal referred included Findex Group Ltd v iiNet Ltd,[99] in which Ward CJ in Eq referred with approval to the use of documents ‘not only … in the very proceedings … but also uses that can legitimately be regarded as flowing from the purpose of the original proceedings’.[100]
[99][2019] NSWSC 1198.
[100]Ibid [45].
In the present instance, the plaintiff’s applications for leave to appeal on a question of law arise directly out of interlocutory orders made in the VCAT proceeding in which his witness statement was later filed.
Further, the fact that he had filed the witness statement in the underlying proceeding at VCAT was relied on in the plaintiff’s own written submissions filed in connection with the combined directions hearing before McCann JR on 27 November 2024, in which he stated –
I have just filed my witness statement with VCAT (186 pages) along with 56 supporting exhibits. These exhibits are not complete because of the 23 July 2024 orders made by the Tribunal …[101]
[101]Applicant’s written submission for hearing 27.11.2024 in 04343 (n 11) filed 25 November 2024, [17].
As I have earlier indicated, it will very often be relevant for the Court to consider discretionary factors relevant to whether or not leave to appeal should be granted and, in the present instance, the plaintiff’s witness statement could plainly be relevant to that issue. Indeed, it would seem that the plaintiff himself sought to rely upon the fact and content of his witness statement as, presumably, a reason why leave should be granted.
As I have indicated, in a combined directions hearing of both applications for leave to appeal, it was always relevant for McCann JR to be addressed concerning the state of affairs in the underlying proceeding and the degree of any urgency or utility in the present applications. Indeed, it would seem that both sides considered that they might have something to say on that front with reference to the plaintiff’s witness statement.
In the circumstances, I would accept that the present applications for leave to appeal on a question of law are legitimately connected with the underlying VCAT proceeding, such that it was not a breach of the implied undertaking for the solicitor to produce the plaintiff’s witness statement as an exhibit to her second affidavit.
Even if there were a breach of the implied undertaking, it would amount to a breach of the most inconsequential kind. In those circumstances –
(a) rather like what ultimately occurred in Hazell-Wright, I would have been inclined to allow the defendants to make application at VCAT seeking an order that the witness statement be allowed to be used in the present proceedings; and
(b) I would not have accepted that the events to which I have referred should be thought to give rise to any need to censure or punish the defendants.
For completeness, I should say that it is 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’.
In any event, for the reasons outlined, the proposition that there has been such a breach cannot be accepted.
Written submissions of the defendants filed 25 November 2024
The third of the plaintiff’s group of claimed breaches are directed to the written submissions of the defendants dated 25 November 2024.[102]
[102]CB 417-25.
In that regard, the plaintiff points to ‘particular adverse assertions’ of the defendants –
(a) that ‘[t]he existence of a disability was contested’ and that the plaintiff has ‘never presented medical evidence to support [his] claimed disability’;
(b) that ‘substantial discovery’ has already been provided;
(c) in respect of ‘discovery’ categories 16 and 17; and
(d) that there is no realistic prospect of the plaintiff obtaining ‘better discovery’.[103]
[103]CB 633-635 [51]-[55]. Cf CB 417-425 [3], [4], [7], [15]-[16], [18]-[19]
The first complaint has already been dealt with in connection with those made in respect of the solicitor’s first affidavit.
The remaining complaints broadly fall within the ambit of the global observations made earlier.
That said, it would seem to me to be a rare case in which submissions concerning ‘substantial’ and ‘better’ discovery – which necessarily incorporate elements of quality, quantity, estimation and degree – could be concluded to have been dishonest, misleading, frivolous or advanced without a proper basis. In the present instance, the material placed before the Court would not permit any such conclusion to be reached to the necessary standard.
In my view, much the same may be said concerning the plaintiff’s criticisms of the defendants’ submissions in respect of categories 16 and 17. The point seems to be that the defendants’ submissions differ in some way from what the plaintiff considers to be a ‘proper reading’ of those categories. However, debates of that kind commonly occur in court, and it is rarely, if ever, said that there has been any breach of any relevant ‘overarching obligations’. Usually, such a debate is resolved simply by placing the categories in question before the judicial officer for consideration.
In the present instance, is it not apparent that the matters complained of led to any debate before McCann JR concerning the expression of the said categories, let alone to the judicial registrar being misled in any material way.[104]
[104]Cf CB 576-92.
It follows that the plaintiff’s contentions that certain statements in the defendants’ written submissions breached the ‘overarching obligations’ must be rejected.
Oral submissions before McCann JR on 27 November 2024
The fourth of the plaintiff’s group of claimed breaches concerns submissions made by counsel for the defendants before McCann JR at the hearing on 27 November 2024.[105]
[105]CB 576-92.
In that regard, the plaintiff complains about submissions made by defendants’ counsel to the effect that –
(a) the ‘proceeding’ was ‘no longer necessary’ because the plaintiff had filed his evidence at VCAT; and
(b) the plaintiff’s application for leave to appeal in respect of ‘discovery’ was ‘too early’ because there was a ‘substantial chance’ that evidence filed by the defendants at VCAT might make it unnecessary.[106]
[106]CB 635-7 [56]-[59]. Cf CB 576-92.
In my view –
(a) as I have earlier indicated, such submissions were relevant to a consideration by McCann JR of the significance, likely breadth and management of the issues arising and ultimately to be determined in the plaintiff’s two applications for leave to appeal, in circumstances where those applications were proceeding ‘in tandem’ with the underlying proceedings at VCAT;
(b) in a general sense, such submissions involved significant elements of estimation and prediction and seem to have been plainly open to be made;
(c) the transcript of the hearing before McCann JR does not suggest that the plaintiff had any difficulty at all in either comprehending the submissions made or subsequently responding to them;[107]
(d) it would be a very rare case indeed in which the making of such submissions could be said to be in breach of any ‘overarching obligations’; and
(e) to the extent to which the plaintiff’s complaints are founded in contentions that counsel for the defendants was, or must have been, ‘aware’ of certain matters and things, the material before me is nowhere near allowing me to draw such a conclusion to the required standard.[108]
[107]Indeed, after counsel advanced his submissions, McCann JR sought to explain the position to the plaintiff who twice responded ‘I understand’ and spoke to what he identified as ‘problems’ in the submissions made: CB 584-6.
[108]Among other things, counsel seems to have indicated that he had not seen the written submissions of the plaintiff filed prior to the directions hearing: CB 587.
In that sense, much of what I have earlier said, including globally, presently applies; especially in respect of the plaintiff’s complaints to the effect that the defendants’ submissions caused him to be ‘questioned’ by McCann JR.
It follows that the plaintiff’s complaints concerning the oral submissions advanced before McCann JR must be rejected.
Third affidavit of the defendants’ solicitor filed 23 January 2025
The fifth of the plaintiff’s group of claimed breaches concerns the affidavit of the defendant’s solicitor filed 23 January 2025.[109]
[109]CB 562-6.
The plaintiff presently complains about statements made in that affidavit concerning the production by the first defendant of documents relating to categories 14, 16 and 17, particularly that –
(a) the defendant’s solicitor had been informed that searches had been undertaken ‘in the same manner as would be done pursuant to any coercive order for discovery’;
(b) the solicitor had been informed that the person who undertook the searches had been told ‘about the categories in which searches should be conducted’;
(c) the solicitor believed that ‘all that would be discovered in categories 14, 16 and 17 … had already been produced’; and
(d) the solicitor exhibited a copy of her email to the plaintiff dated 13 January 2025, but not the plaintiff’s email in response dated 14 January 2025.[110]
[110]CB 638-640 [60]-[64]. Cf CB 562-6.
The solicitor’s affidavit was filed in anticipation of the directions hearing scheduled for 29 January 2025.
Prior to that hearing, the plaintiff filed his own affidavit entitled ‘Affidavit for Directions Hearing 29.01.2025’, in which he foreshadowed, and to some extent detailed, his application made under s 29 of the Civil Procedure Act.[111]
[111]CB 594-609.
Among other things, that affidavit identified the plaintiff’s complaints in respect of the solicitor’s affidavit filed on 23 January 2025 and exhibited a copy of his responding email dated 14 January 2025.[112] That email includes various assertions, including that the production of documents in respect of categories 14, 16 and 17 was not complete.
[112]CB 600-1 [39], 608.
Such disputes are far from unusual. Experience shows that searches for documents are often undertaken in good faith, but that later investigation might or might not locate further relevant documents. It does not follow that a solicitor’s beliefs concerning the searches undertaken at an earlier point should necessarily be taken to have been in breach of the ‘overarching obligations’.
In that connection, the plaintiff would have it that the persons referred to in the solicitor’s affidavit should have sworn their own affidavits. At least in the present case, such a step seems hardly consistent with the overarching purpose of the Civil Procedure Act.
In any event, on the basis of the material presented, I would not conclude that the failure of those persons to have done so should be taken to amount to some kind of breach of the ‘overarching obligations’.
Perhaps the point at the heart of the plaintiff’s present complaint is that the solicitor did not refer to, or exhibit, his responding email dated 14 January 2025. Again, such an oversight is not unusual.
However, it would not always be the case that the mere fact of such a response should mean that the belief of the solicitor, concerning the adequacy of the searches undertaken, should be taken to have been displaced by such an email. After all, the solicitor says that she was informed about those searches. Further, the solicitor plainly had the opportunity to consider the plaintiff’s email, which may or may not have raised points of substance.
All of the above would serve to underline the difficulty, when adopting a necessarily cautious approach, in being invited to go on and find that in filing her affidavit the solicitor should be taken to have breached the overarching obligations. In the present instance, the material concerned is nowhere near the cogency that would be required in order for me to reach such a conclusion.
I should add, for completeness, that, of course, the solicitor’s affidavit was apparently prepared in connection with the directions hearing scheduled for 29 January 2025, as was the plaintiff’s affidavit which, as I have noted, took issue with that of the solicitor and exhibited his own email in response.
In those circumstances, much like that which I observed earlier in respect of the solicitor’s second affidavit filed on 25 November 2024 –
(a) on 23 January 2025, when the solicitor’s affidavit was filed, there was little real prospect of any judicial officer being relevantly misled or deceived, because the hearing was still days away;
(b) by the time of the hearing on 29 January 2025, the plaintiff had sworn and filed his own affidavit containing his criticisms of the solicitor’s affidavit and exhibiting his own email dated 14 January 2025; and
(c) on the material, it is not evident that, at the hearing on 29 January 2025, Lorenz JR indicated any concern that she might have been misled by the solicitor’s affidavit; and
(d) in the circumstances, it is impossible to imagine that Lorenz JR could have been so misled.
It follows that the plaintiff’s complaints concerning the solicitor’s affidavit filed on 23 January 2025 must be rejected.
Written submissions of the defendants filed 23 January 2025
The plaintiff’s final group of claimed breaches concerns the defendants’ written submissions filed on 23 January 2025.[113]
[113]CB 554-61.
In that regard, the plaintiff essentially points to passages or sentences in those submissions to the effect that –
(a) the existence of any disability is denied;
(b) the plaintiff had been dismissed from employment because he refused to attend an independent medical examination, which was the first step in how the first defendant had sought to ensure a safe return to work, as well as investigate his claims of disability;
(c) the parties had filed evidence at VCAT in anticipation of a final hearing in March 2025, although VCAT had recently informed the parties that the dates had been vacated and that a hearing was unlikely to commence until the second half of 2025;
(d) the defendants had conducted searches and furnished documents in respect of categories 14, 16 and 17;
(e) 05979 was directed to different issues and the plaintiff seeks to discontinue that proceeding without the usual requirement to pay the defendants’ costs;
(f) in respect of 04343, the plaintiff appears to argue that VCAT failed to have regard to the issues in dispute;
(g) the defendants addressed the plaintiff’s arguments concerning category 15 and legal professional privilege;
(h) the plaintiff was well-informed about the nature of the legal process and the legal tests to be applied;
(i) the plaintiff had not proved that he had a disability; and
(j) no injustice would arise if leave to appeal were refused.[114]
[114]CB 640-6 [65]-[75]. Cf CB 554-61.
The written submissions of the defendants were –
(a) filed pursuant to orders made by McCann JR on 27 November 2024; and
(b) directed to the final hearing of the plaintiff’s application for leave to appeal in 04343.
As earlier noted, 04343 and 05979 were both listed to be heard on 18 February 2025 and so ultimately came before me on that date.
In that context –
(a) several of the above criticisms have, in substance, already been dealt with directly or indirectly; and
(b) the balance of the plaintiff’s criticisms fall into the ‘global’ category, as there are many complaints to the effect that the plaintiff’s arguments were ‘distorted’ or ‘misrepresented’ and/or that he ‘may’ be prejudiced.
On those bases alone, the plaintiff’s present complaints cannot be accepted.
Nonetheless, it should be said that –
(a) several of the plaintiff’s criticisms really amount to little more than pointing to further detail. However, none of the submissions concerned are properly to be considered dishonestly made, misleading or deceptive or lacking a proper basis merely because the defendants did not include every conceivable detail;
(b) it is hardly surprising that the defendants would submit that the plaintiff was well-informed about the legal process and the legal tests to be applied. Among other things, of course, the plaintiff has presently developed argument directed to the rules of pleadings as well as the implied undertaking. Such principles are barely within the grasp of some legal practitioners, let alone self-represented litigants who claim to be labouring under a disability;
(c) in that connection, while it may be accepted that the defendants’ submissions refer to the underlying ‘pleadings’, read in proper context there can be no doubt what, in fact, was sought to be referred to and submitted; and
(d) I have earlier referred to considerations that may bear upon whether leave to appeal on a question of law should be granted and, in that context, there seems to me to be nothing at all improper about the following submission made by the defendants and seemingly criticised by the plaintiff –
The proceeding in the Tribunal is essentially “ready for trial”, with substantial discovery having already been provided, substantial evidence having been filed by the applicant [plaintiff] and the whole of the respondents’ [defendants’] written evidence having been filed. In light of the adjournment of the trial date, there is now ample opportunity for the applicant to press further (valid) claims to discovery, having regard to the evidence. That is, the issues in the case are now clear, the details of the respondents’ case is fully set out in the evidence, and if there is somehow relevance to any further discovery request, the Tribunal can deal with it. It is an inefficient use of the resources of the Court to grant leave to appeal, in this circumstance.[115]
[115]CB 561 [20].
In any event, the submissions of the defendant were, of course, directed to a final hearing of the application for leave to appeal in 04343 which did not ultimately unfold as a consequence of the interposition of the plaintiff’s s 29 application.
Further, while I had read those written submissions prior to the hearing on 18 February 2025, there was no prospect of me being misled or anything else, as I had also read the plaintiff’s criticisms.
In short, even if there was anything wrong or misleading in the defendants’ written submissions, in more than one way, the plaintiff’s point is an entirely arid one.
It follows that the plaintiff’s complaints concerning the defendants’ written submissions filed on 23 January 2025 must be rejected.
Addendum
I should add, for completeness, that having examined each of the plaintiff’s complaints in some detail, even if I had accepted that the defendants and their solicitor breached the overarching obligations in any or even all of the ways complained of, I would not have ordered the relief sought.
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.
Further, the plaintiff identified the following premise for the extreme relief sought –
… the overarching obligations and the overarching purpose really layout the guidelines for participation in the proceedings. And if the Court finds that it’s not able to trust the affidavits and submissions that have been filed by the respondents [defendants] to this point, then simply my right to a fair hearing would evaporate, because I would be forced to try to persuade you of a view that’s supported by facts and legal material while trying to contrast that against speculative assertions made by the respondents that have had no facts or legal material in support.[116]
[116]T8.
To say the very least, it is troubling to think that the Court should readily consider itself to be so powerless when faced only by submissions that it is not able to trust, that the answer should be that the party concerned and any representative of that party, regardless of standing, experience and reputation, should be excluded from further participation of any kind.
Much more could obviously be said about the extremity of the relief sought; however, the simple position is as I have indicated: even if I had accepted any or all of the plaintiff’s present complaints, I would not have considered the stated premise to have been made out, or that it would have been ‘appropriate in the interests of justice’ to make orders giving effect to the substance of the relief sought.
For the reasons explained, the plaintiff’s s 29 application must be rejected.
E 05979: costs
As I have earlier indicated, it was common ground that –
(a) the plaintiff should be granted leave to discontinue 05979; and
(b) the only present issue in 05979 is one of costs.
In that connection, both parties relied upon r 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which states –
Unless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.
The plaintiff submitted that the Court should ‘otherwise order’. In particular, he submitted that the defendants should be ordered to pay the Court fee incurred by him when commencing 05979.
In that connection, the plaintiff submitted that –
(a) 05979 had been rendered ‘nugatory’ by a supervening event out of his control, namely the orders of McCann JR on 27 November 2024 pursuant to which 04343 and 05979 had come to be fixed for final hearing on 18 February 2025 (ie, prior to his then listed trial in the underlying VCAT proceeding);
(b) in that regard, he relied on the reasoning of Derham AsJ in Soteriadis v Nillumbik Shire Council (‘Soteriadis’);[117]
[117][2015] VSC 363 (‘Soteriadis’).
(c) as a ‘self-represented applicant with a disability’, it had not been foreseeable to him that 04343 would be ‘expedited forward’ with the effect that ‘suddenly … 05979 wouldn’t achieve anything’;[118]
(d) by letter endorsed ‘without prejudice save as to costs’, he had made an offer to the defendants in respect of 04343 and 05979;[119] and
(e) after the period for acceptance of that offer expired, he had filed a summons seeking leave to discontinue 05979.
[118]Cf T97-108.
[119]Cf CB 657-72.
By contrast, the defendants submitted that the Court should not ‘otherwise order’. Among other things, counsel for the defendants submitted that –
The question for the Court is where these costs lie. The can either lie with the defendants or … Mr Biddle who caused those costs to be incurred. My submission is that there’s no good reason to displace the standard position as provided for in the Rules of Court, that is that discontinuance ought be permitted but on the basis that Mr Biddle pay the respondent’s [defendants’] costs.
Because the alternative path would see the respondents out of pocket with no ability to recover costs they incurred because Mr Biddle chose to commence a proceeding and then chose to discontinue it. I submit that would be an unreasonable outcome, because there were things Mr Biddle could have done but chose not to do, which would have avoided the respondents incurring the costs of this appeal. Most particularly, he could have applied in 04343 for an order expediting the hearing.[120]
[120]T112.
In Soteriadis, the applicant sought leave to appeal from an order of VCAT relating to a dog named ‘Buddy’. At that time, ‘Buddy’ was in the custody of the respondent. However, before the proceeding came on for hearing, ‘Buddy’ was removed by persons unknown.
The applicant said that the disappearance of ‘Buddy’ was a ‘supervening event’ beyond her control and sought relevantly to discontinue the proceeding with no order as to costs. On the other hand, the respondent submitted, among other things, that the removal of the dog was not due to any fault of the respondent.
Derham AsJ referred to applicable provisions, rules and authority, including r 63.15, and stated as follows –
By these rules the wide discretion of the Court as to costs is modified. The modification is that the onus is on the party seeking to discontinue the proceeding (in this case the applicant) to satisfy the Court that the costs should not be paid by her. The principles and factors that the authorities outline on these, and other similar rules in other jurisdictions, have been collected and summarised by Hallen AsJ (as he then was) in Johnson & Anor v Clancy & Anor. My summary of them is as follows:
(a)The rule does not give rise to a presumption that costs will be ordered against the discontinuing party;
(b)However, the rule does create a starting position for the plaintiff or discontinuing party to pay the defendant’s costs, subject to a contrary order;
(c)The contrary order itself involves a discretionary decision to be exercised judicially. If there is to be a departure from the starting position, it should be done in a particularised, and principled way. The Court is required to make such order as it thinks just in the particular circumstances of the case;
(d)The burden is on the party who seeks to persuade the Court that a contrary order should be made. If facts are to be relied upon to found the Court making a different order, the plaintiff will bear the onus of proving the relevant facts;
(e)All the relevant circumstances, and not just the fact of discontinuance, should be considered. This may include a consideration of the whole of the proceedings. Generally the discretion will be exercised on the basis of the objective circumstances established on the evidence and not involve the subjective considerations of one party;
(f)A relevant consideration is whether the plaintiff acted reasonably in commencing the proceedings and whether the defendant acted reasonably in defending them. It might also be appropriate for the Court to consider the conduct of the defendant prior to the commencement of the proceedings where such conduct may have precipitated the litigation;
(g)Generally there must be some proper justification, sound positive ground, or a good reason, for departing from the star[t]ing position. The reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs, so for example, it may be appropriate to make a contrary order:
(i)Where the proceedings have been rendered unnecessary by circumstances beyond the plaintiff’s control;
(ii)Where the plaintiff achieved practical success in the proceedings;
(iii)Where costs have been significantly increased by the unreasonable conduct of the defendant;
(h)Where the proceedings are discontinued prior to any hearing on the merits, usually it will be impracticable to assess the eventual prospects of success in the action and the Court cannot try a hypothetical action between the parties to determine the question of costs;
(i)There is a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event, or settlement, so removes, or modifies, the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case that usually creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs; and
(j)Where the proceedings are discontinued after interlocutory relief has been granted, the Court may take into account the fact that that interlocutory relief has been granted.[121]
[121]Soteriadis (n 118) [12] (citations omitted).
His Honour also referred to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin,[122] in which, in a similar but not identical context, McHugh J stated –
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the Court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.[123]
[122](1997) 186 CLR 622 (‘Lai Qin’). See also Ringwood Plus Pty Ltd v Commissioner of State Revenue [2004] VSC 494.
[123]Ibid 625 (citations omitted).
In that overall context, among other things, Derham AsJ stated –
In my view, this is a case where a supervening event has modified the subject of the dispute. The fact of removal of the dog from the Council’s custody, through no one’s proven fault, has an analogous effect to a change in the substratum for the decision sought, such as where the law changes. This justifies a contrary order, but not one casting the costs onto the Council in the absence of evidence that demonstrates it was at fault.[124]
[124]Soteriadis (n 118) [47].
Thereafter, his Honour relevantly ordered that there should be no order as to costs.
In the present instance, the ‘starting position’ must be that the plaintiff should pay the costs of the proceeding unless he demonstrates a ‘good reason’ to order otherwise. That said, assuming that such a reason is shown, the Court should make the order which it thinks is just in all the circumstances.
As I have noted at various earlier points –
(a) on 28 October 2024, a senior member at VCAT refused the plaintiff’s application for an adjournment of the VCAT proceeding and confirmed the trial date of 3 March 2025;
(b) on 6 November 2024, the plaintiff commenced 05979, by which he sought leave to appeal on stated questions of law;
(c) on 8 November 2024, the plaintiff filed a summons in 05979 by which he sought a temporary stay of the VCAT proceeding – which summons was made returnable before McCann JR on 27 November 2024;
(d) on 11 November 2024, the plaintiff filed a further summons in 05979 by which he sought expedition of 05979 – which summons was also made returnable before McCann JR on 27 November 2024;
(e) on about 20 November 2024, the parties were notified by the Court that 04343 would also be listed for directions before McCann JR on 27 November 2024;
(f) the parties subsequently exchanged written submissions relevant to the hearing before McCann JR;
(g) on 27 November 2024, McCann JR, in substance, vacated and brought forward the hearing date for 04343 and expedited the hearing date for 05979 such that both would come on for hearing prior to the then prevailing trial date for the proceeding at VCAT;
(h) it was not in dispute that the orders of McCann JR rendered the relief sought in 05979 ‘no longer relevant’;[125]
(i) on 29 November 2024, by letter endorsed ‘without prejudice save as to costs’, the plaintiff made an offer to the defendants in respect of 04343 and 05979;[126] and
(j) after that offer expired without having been accepted, the plaintiff filed a summons seeking leave to discontinue 05979.
[125]CB 678.
[126]CB 657-72.
In that context, it is relevant to consider the reasonableness of the conduct of the plaintiff and defendant.
In that regard, the plaintiff commenced 05979 which, of course, is, in substance, an application for leave to appeal on a question of law from an interlocutory order made in respect of a matter of practice and procedure.
That said, the plaintiff’s notice of appeal states purported questions of law that include assertions concerning his self-represented status and ‘disability’. However, it is evident that he also takes issue with the circumstances in which the orders concerned were made on the papers ‘in chambers’. In that regard, he appears to claim that he was denied procedural fairness – which, of course, is capable of amounting to a question of law. In that sense, the materials may reveal an arguable basis for the plaintiff’s contention that the senior member relevantly erred in connection with a question of law.
That said, the written submissions of the parties that were evidently before the senior member are not presently before the Court and, more broadly, the authorities indicate that the Court should not embark upon a hypothetical evaluation of the plaintiff’s prospects of success. Consequently, in the present case, rather like the position that ultimately faced Derham AsJ in Soteriadis –
That is as far as one can go without further materials and argument. Whether or not it had a likelihood of success or failure is really not possible, or appropriate, in the absence of further evidence and argument, to predict. It is therefore not possible to characterise the case as a weak or a strong case.[127]
[127]Soteriadis (n 118) [50].
It follows that I could not say that the plaintiff acted other than reasonably in commencing 05979. Equally, however, I could not say that the defendants acted other than reasonably in defending 05979.
In argument, a related issue arose concerning whether, in light of the relief sought by the plaintiff in 05979, together with his summonses issued after the commencement of those proceedings, it was, or should have been, foreseeable to him that McCann JR might make orders of the kind ultimately made.
As I have noted, the plaintiff denied any such foresight, and in fairness to him –
(a) his written submissions prior to the hearing on 27 November 2024 betray no such foresight[128] – and nor do the written submissions of the defendants;[129]
(b) the transcript of the hearing on 27 November 2024 does not suggest that either side anticipated such a development prior to it occurring;[130] and
(c) indeed, the course ultimately taken by McCann JR did not reveal itself until a little over midway through the hearing on 27 November 2024.[131]
[128]Applicant’s written submission for hearing 27.11.2024 in 04343 (n 11) filed 25 November 2024. In that document, the plaintiff said that his case would benefit from ‘centralised case management by a single judicial officer’ and submitted that he should be allowed to make an application seeking that the VCAT proceeding be ‘referred’ to the Supreme Court. At the subsequent hearing before McCann JR, counsel for the defendants tentatively doubted that such an order could be made: CB 587-8.
[129]CB 417-25.
[130]CB 576-92.
[131]CB 588-9.
Further, while an experienced practitioner might have anticipated a possibility that McCann JR might take the course ultimately adopted, the plaintiff is not realistically to be viewed as falling within that category of persons (despite his evident abilities in advancing complicated arguments).
In the circumstances, I accept the plaintiff’s assurances that he did not foresee that the Court would, in a practical sense, align and expedite both matters and, in so doing, render 05979 nugatory.
In that context, it seems to me to be relevant that the plaintiff’s underlying application for an adjournment of the trial date at VCAT, that in turn led to 05979, was pretty plainly inspired by his desire to protect the utility of a determination in 04343 prior to a hearing of his trial at VCAT. In that regard, while the course taken by the Court on 27 November 2024 might strictly be said to have rendered 05979 nugatory, it also handed the plaintiff a practical success in respect of the utility of 04343 – which was the original point of the application that led to 05979.
Further, upon achieving that practical success, the plaintiff promptly made a without prejudice offer to the defendants and then issued a summons when that offer was not accepted. In a general sense, those actions seem to have been calculated to avoiding the incurring of unnecessary costs.
That said, the plaintiff’s offer seems initially to have proceeded upon a misconception that McCann JR had ‘merged’ the two proceedings and, in any event, to have been directed primarily to a resolution of 04343.
In that sense, while I would not consider any self-represented litigant in the position of the plaintiff to have been unreasonable in advancing such an offer, I can quite understand how, reasonably, the defendants might not have accepted it.
In the circumstances, a little like Soteriadis itself, I accept that the plaintiff has shown good reasons why he should not pay the costs of the proceeding (particularly, the supervening event constituted by the orders made by McCann JR on 27 November 2024, and also, in the present case, the plaintiff’s practical success). On the other hand, the defendants seem to have acted reasonably and also to have been affected by the supervening event.
In light of the above, I am satisfied that it is just for the Court to ‘otherwise order’ that there be no order as to the costs of 05979.[132]
[132]Cf Lai Qin (n 123) 625.
E Conclusion
The plaintiff’s application pursuant to s 29 of the Civil Procedure Act must be dismissed.
On the other hand, I will grant leave to the plaintiff to discontinue 05979, but will order that there be no order as to the costs of that proceeding.
I will hear from the parties concerning the form of appropriate orders, including in respect of the costs of the s 29 application.
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SCHEDULE OF PARTIES
S ECI 2024 04343
| ADRIAN BIDDLE | Plaintiff |
| v | |
| MIELE AUSTRALIA PTY LTD | First Defendant |
| and | |
| RACHAEL LESHINSKY | Second Defendant |
| and | |
| GEORGE EXINTARIS | Third Defendant |
| and | |
| YVES DALCOURT | Fourth Defendant |
S ECI 2024 05979
| ADRIAN BIDDLE | Plaintiff |
| v | |
| MIELE AUSTRALIA PTY LTD | First Defendant |
| and | |
| RACHAEL LESHINSKY | Second Defendant |
| and | |
| GEORGE EXINTARIS | Third Defendant |
| and | |
| YVES DALCOURT | Fourth Defendant |
2
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