Cockburn v Canberra Institute of Technology - [2022] FedCFamC2G 646

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646

File number(s): CAG 58 of 2015

Judgment of: JUDGE W J NEVILLE

Date of judgment: 4 August 2022

Catchwords: PRACTICE & PROCEDURE – Whether to adjourn the Final Hearing following the self-represented Applicant seeking to vacate the trial on the third morning due to his own mental health concerns – whether to provide a fourth set of final hearing dates – prejudice to the Respondent – reliance on late-filed material and non-compliance with Court Orders – ongoing and history of non-compliance with Court Orders and directions over 7 years indicating that the Applicant does not understand or appreciate the litigation process – appointment of litigation guardian made together with Orders in default of compliance – further hearing dates allocated to conclude part-heard final hearing.

Legislation:
Fair Work Act 2009 ss. 544, 570(2)

Federal Circuit and Family Court of Australia Act 2021 ss. 190 – 192

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Part 10.6, Rule 11.07, 11.09, 11.10, 11.12, 11.13.

Cases cited:
Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175

Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Drummond v Canberra Institute of Technology [2019] FCCA 2612

Drummond v Canberra Institute of Technology [2020] FCAFC 131

Drummond v Canberra Institute of Technology [2021] FCA 376

Drummond v Canberra Institute of Technology [2021] FCCA 556 (No 2)

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303

International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319

John v Rees [1970] Ch 345

L v Human Rights and Equal Opportunity Commission (2007) 233 ALR 432

Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592

Division: Division 2 General Federal Law

Number of paragraphs: 98

Date of hearing: 26 – 28 July 2022

Place: Canberra

Solicitor for the Applicant Self-represented

Counsel for the Applicant Mr A Duc (direct brief)

Solicitor for the Respondent ACT Government Solicitor

Counsel for the Applicant Ms A Costin
ORDERS

CAG 58 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MARK LEA COCKBURN
Applicant

AND:
CANBERRA INSTITUE OF TECHNOLOGY
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

4 AUGUST 2022

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Court makes an Order under Division 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, and in particular, under Rule 11.07(1)(b) and 11.10(1), for the immediate appointment of a litigation guardian for the Applicant. The reasons record that there is a very wide scope for who may be so appointed, including family or friend. Such person does not need to be legally qualified.
2.Within 28 days of the date of these Orders, being by 1 September 2022, the Applicant is to notify the Court and the Respondent of the nomination of (or appropriate steps to secure) a litigation guardian. If there is any impediment to that appointment, which arises from any action from the Applicant, subject to evidence and submissions, it may be necessary to dismiss the proceedings.
3.The Applicant is not permitted to file anything with the Court for the remainder of the litigation. Only his litigation guardian and/or Counsel are permitted to do so.
4.The Applicant is not to communicate directly with Chambers for the remainder of the litigation. Communication may only be made by his litigation guardian or Counsel.
5.The part-heard matter be listed for a further 2 day Final Hearing commencing on 6 October 2022 at 10:00am in CANBERRA.
6.As confirmed by Counsel for both parties at the recent final hearing, for the remainder of the litigation, the Court will only consider claims made by the Applicant in relation to the Fair Work Act 2009 (Cth) and arising under the Collective Agreement.
7.Subject to evidence and submissions, should the conduct of the Applicant in any way constitute an impediment to the conduct of the remainder of the trial, or the Applicant breaches any of these Orders, the Application may be summarily dismissed.
8.If the Application is summarily dismissed pursuant to Order 7, subject to submissions, the Court may award costs pursuant to s.570(2) of the Fair Work Act 2009 (Cth).

AND THE COURT NOTES THAT:
A.Despite previously advising in writing that he would do so, the Applicant did not attend the judgment delivery. This was unfortunate and surprising given how often the Applicant has referred to his keenness to finalise the litigation; and
B.The Transcript from the Final Hearing on 26, 27 and 28 July 2022 will be admitted into evidence as Exhibit B.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

These reasons were given orally in an abbreviated form on 4^th August 2022 and have been revised from the transcript for publication.
They arise from the Applicant being unable to proceed with a final hearing that relates to claims that arise primarily under the Fair Work Act 2009 (Cth) (“the FW Act”). The matter now stands part-heard. The litigation has been on foot since 2015.
Among many other places, the Oxford Classical Dictionary records that on 10^th January 49 BC, Julius Caesar crossed the small river (sometimes called a stream) Rubico, which divided France (then of course called Gaul) and northern Italy. Due to Roman imperial decrees, to cross the Rubicon (as it is more commonly known) with an army was an offence and, by virtue of the decree, it meant that there was a declaration of war on Rome.[1] Having crossed it, there was no going back for Caesar.
[1] In more detail, see Robin Lane Fox’s magisterial The Classical World: An epic history from Homer to Hadrian, (London: Allen Lane, 2005) Chapter 35 “The Spectre of Civil War”, 379 – 391.
This historical event led to the frequently used and well-known saying of “crossing the Rubicon”. This has been taken to mean that a point of no return has been reached.
For the reasons that follow, that similar point of no return was clearly reached on the third morning of a third attempt to run a final hearing in this long-running litigation that commenced in 2015 concerning various claims relating to the Applicant’s employment with the Respondent, particularly in 2008 and 2009.
Put another way, the ongoing assurances of the Applicant over the last 7 years to be able to conduct this litigation remain unfulfilled. The Respondent and its witnesses, and the Court, continue to wait on the Applicant. In consequence, other litigants waiting for Court time for their hearings, must also wait until the Applicant might be ready for a fourth attempt to finalise his hearing regarding events that occurred 13 years ago. The perennial question, “when will the Applicant next be ready to conduct his litigation”, remains unanswered except for more promises and assurances. In reality, however, there is no certain answer, nor can there ever be because of his precarious and fragile mental and psychological state. I hasten to note that no comment regarding the Applicant’s mental, psychological or other aspect of his health and well-being is a criticism in any relevant respect. Such statements simply record the factual circumstances faced by the Applicant, and in consequence, by the Respondent and the Court.
As a consequence of the Rubicon having been crossed in this matter, for the reasons that follow: (a) there must and will be appointed immediately a litigation guardian for the Applicant; (b) the matter will be fixed for a further 2 days on 6^th and 7^th October 2022 (there being no other dates reasonably available until perhaps late 2023 which, to state the obvious, would be an alarming and lamentable circumstance for everyone involved); and (c) notwithstanding the appointment of a litigation guardian, subject to evidence and submissions, should the actions of the Applicant in any way constitute an impediment to the conduct of the remainder of the trial, the Application may be summarily dismissed. For the same or similar reasons, should the Application be dismissed, subject to submissions, there may also be an award of costs, pursuant to s.570(2) FW Act 2009 (Cth).
It must also follow that, if the Court is not notified within 28 days of the nomination of (or appropriate steps to secure) a litigation guardian, or if there is any impediment to that appointment that arises from any action by the Applicant, subject to evidence and submissions, it may be necessary simply to dismiss the Application. As noted later in these reasons, the ambit of such an appointment is very wide; it could be a family member or friend. Especially in the light of High Court authority that has been cited regularly in this litigation, such as Aon Risk Services Ltd v Australian National University (“Aon v ANU”),[2] not least because of (a) the relentless consumption of public resources, (b) the ongoing uncertainty and prejudice to the Respondent and its witnesses (one of whom is now retired), (c) the flow-on effects to other litigants who are waiting for trial dates, and (d) critically, whatever general assurances regularly provided over the years by the Applicant, and by the Applicant’s GP from the relaxed, more comfortable and reassuring confines of the consulting room, the history of this matter has unfortunately but relentlessly shown that there is not, and can never be, any certainty about anything promised or assured by the Applicant regarding the conduct of the litigation.
[2] Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175.
In these circumstances, it is simply impossible (and unconscionable) to continue to attempt to conduct litigation on the completely uncertain and precarious basis of (a) the Applicant’s fragile and regularly uncertain mental health, and (b) his complete inability to comply with any time-table or Court direction for the filing of documents, which are prolix in the extreme and which regularly obfuscate rather than illuminate or clarify his claims.
An example of the Applicant’s complex and obfuscatory approach, doubtless intended to assist, is an explanatory document that he attached to a number of documents. A copy of this document is Annexure B to these reasons. It is entitled “List of Abbreviations used above in the Applicant’s Case Outline.” As is evident on the face of it, and like all of the Applicant’s wide range of documents, it is something akin to a literary kaleidoscope of disparate and discordant references. Not only does it contain a wide range of abbreviations intended to assist in de-ciphering the Applicant’s documents, it also provides various and alarmingly broad assertions of claims against the Respondent, such as this: “DOCTI = there was dishonesty, including fraud and Affidavit perjury, or conspiracy to injure, against the Applicant, at equitable, tort, civil law or criminal level.”
This document begins with the following expansive introduction:
In the following, "breach" means breach or contravention of, or non-compliance with, a workplace law, instrument or determination etc. provision, or a decision or representation inconsistent with a provision, to the Applicant's detriment, or otherwise relevantly, and for laws, instruments etc in the list below, the abbreviations also act as an abbreviation for the law, instrument etc.:
Should it need to be stated, documents in legal proceedings that require a code to assist in deciphering and/or navigating them, do not augur well as examples of clarity and precision (grammatically or legally), least of all such documents claiming “to plead” (a term used very loosely here) very serious claims against the Respondent.
Even when regularly granted extensions of time for the filing of material, there is ongoing non-compliance. As well, without reference to anything, the Applicant regularly provides multiple iterations of various documents, directly to Chambers (also contrary to both protocols and Orders), as he “refines” various documents. In these circumstances he does not seek leave of the Court, and invariably the Respondent properly objects. Such has been the pattern of litigation for years. Cautions, warnings, Orders, directions, or anything else, are of no consequence or relevance to the Applicant.
The latest and perhaps most simple example of delay and non-compliance is the Applicant’s provision of another medical certificate from his long-time GP, Dr Wessell. It is both emblematic and symbolic of the regular kinds of things that constantly beset these proceedings.
On the third day of the hearing, and after having been notified just before it commenced that the Applicant had collapsed exhausted, his Counsel confirmed that the Applicant was able to secure a medical appointment for the Monday of the following week (the earliest then available). He confirmed that the Applicant would provide a copy of a medical certificate immediately after that appointment, or at the latest on “Tuesday morning.” Although dated 1^st August 2022, it was not provided until 6pm on Wednesday 3^rd August directly by the Applicant. It is a small and very modest example but it nonetheless is of a piece with everything else in the proceeding where time-limits or time factors are invariably completely flexible for the Applicant. More on this certificate later regarding the GP’s advocacy on behalf of the Applicant, her complete misunderstanding of legal process, and the unqualified acceptance of the Applicant’s unfortunate but regularly distorted account of legal realities regarding both principle and procedure. I stress immediately that no comments here are any indication of the Court’s view about any of the Applicant’s diverse claims. The point is simply to highlight that litigation, by its nature is invariably a fraught exercise regarding the convoluted process of the determination of facts, only after which legal principle can then be applied. A self-represented litigant, even an experienced one, cannot reasonably be expected to know, or know how to apply, basic legal principles and procedures. To some but quite limited degree here, this explains how consistently discordant the Applicant’s documents and attempts to comply with basic principles and legal procedures.
In the light of (a) the long and alarming history of the Applicant’s failure to comply with Orders, notably to comply with filing directions, (b) the consistent lateness of documents being made available (as well as multiple versions of the same document being sent directly to Chambers), (c) documents still being provided to the Court by the Applicant on the first and second days of the final hearing, (d) other documents promised but still not provided, and (e) a great many documents (over 3000 as stated by Counsel for the Respondent) being regularly unintelligible, and/or needlessly and intolerably verbose, complex, and generally byzantine, with multiple random references to various pieces of legislation that have no obvious connection to the primary claims under the FW Act, the Court further directs that (i) the Applicant is not to communicate directly with Chambers between now and the conclusion of the trial (communication may only be by his Counsel or litigation guardian), and (ii) nothing further may be filed by the Applicant directly with the Court but only by his litigation guardian. Similar Orders were made on 25^th March 2021. Regrettably, and unsurprisingly noting the history of the matter, these Orders were not complied with. Any breach of the non-communication and non-filing Orders, may result in the matter being re-listed and the risk of penalties being imposed. Subject to the nature and extent of the breach of such Orders, this too may otherwise result in the proceeding being dismissed.
I note one matter here, albeit already mentioned. There is some unfortunate irony regarding it. The Applicant, supported by his GP, say that the litigation is negatively impacting his mental and psychological health, yet it is precisely his conduct in the litigation that unfortunately keeps prolonging it. Everyone else keeps accommodating him, which therefore makes it a tad curious, unfortunate and much else, that the Respondent, and/or the Court, keep being blamed for prolonging the litigation. Unfortunately if not almost bizarrely, the Court keeps being beseeched by the Applicant to accommodate his regular non-compliance with Orders and to keep giving him, effectively, “one more chance”. Seven years along this apparently relentless, unending and unyielding litigious track, to be blunt, the constant but unfulfilled promises by the Applicant of light at the end of the road are wearing a little thin.
Procedural and Other Background
Although much detail of the procedural history of the litigation is contained in earlier judgments (referenced here by notation only but which should be taken to be a specific reference point for the chronology and its florid history), for current purposes it is sufficient to note the following.[3]
[3] The citations of the earlier judgments in this Court involving the same parties are: [2019] FCCA 2612 (28^th March 2019) & [2021] FCCA 556 (No 2) (25^th March 2021). The latter judgment considered the appointment of a litigation guardian and listed relevant authorities and the principles from them regarding such an appointment. The former considered a range of the Applicant’s medical evidence then provided to the Court. In the Federal Court of Australia (including relevant Orders), see the following also involving the same parties: [2020] FCAFC 131 (31^st July 2020) (an appeal in which the Full Court said that this Court should have considered the appointment of a litigation guardian prior to any consideration of dismissal arising from repeated non-compliance with Orders); [2021] FCA 376 (16^th April 2021) (this decision of Katzmann J dismissed an appeal by the Applicant regarding a non-suppression Order); and Orders of Bromwich J, dated 30^th July 2021 (ACD 21 of 2021) dismissing by consent an Application for an extension of time and leave to appeal.
This litigation commenced in 2015. It concerns various workplace claims made by the Applicant against certain staff and management at CIT, particularly in 2008 and 2009. As noted in a little detail later, they are not dissimilar to some issues the Applicant has had with colleagues in employment, post his time at CIT, at various High Schools around Canberra.
There have been two prior attempts to bring the matter to final hearing, in 2017 and again in 2021. Throughout the litigation the Applicant’s mental health has been fragile. Indeed, the 2017 final hearing was abandoned by consent because of the Applicant’s collapsed mental state. Orders were then made whereby the matter could only be resumed upon the Applicant providing the Court and the Respondent with relevant medical reports regarding his state of well-being, and notably his mental and psychological capacity to prosecute his diverse and convoluted claims. As noted above, the second attempted trial did not proceed in August 2021 due to an unsuccessful appeal by the Applicant and him withdrawing by consent another Application in the Federal Court of Australia.

On 15^th December 2021, the matter was listed, for the third time, for final hearing over 4 days to commence on 26^th July 2022. An abbreviated chronology was set out in a Memorandum sent by the Court to the parties dated 15^th February 2022. That document became Exhibit A; because of the important summaries it provides of the history of the Applicant’s various and ongoing defaults, it is Annexure A to these reasons.
That document also lists summarily the remarkable number of extensions of time granted to the Applicant for the filing of documents, which invariably arrived after the relevant end date of those extensions, and equally invariably in unhelpfully prolix and highly complicated form.
On 4^th March 2022, at a lengthy directions hearing, among other things canvassed was whether a litigation guardian should be appointed.[4] The Respondent urged the Court to make such an appointment. As he had done over the years, the Applicant assured the Court that he did not need such a guardian. As noted further below, the issue of a litigation guardian had been raised multiple times in the past. As on earlier occasions, when brief oral reasons were delivered on 6^th May 2022, I did not make the appointment but reserved the Court’s position to do so in the future should such be warranted.
[4] This was also the subject of submissions at an interlocutory hearing on 11^th April 2022.
As already noted, on the third occasion, the final hearing actually commenced. After many and varied preliminary skirmishes, the Applicant (who has a history of depressive, anxiety and other mental health issues according to his own evidence) was in the witness box for approximately 1½ days. From time to time he became agitated and somewhat upset. He was regularly assured by me that the cross examination was not a personal attack but a testing of the evidence. His distress was often, on the Applicant’s own evidence, because he could not understand or conceive that there was any possible or alternative account of events other than his own account, or his interpretation of them and/or of documents. This led him to state that he did not understand how or why so many of his claims were being challenged by the Respondent because, in his view, the documents he relied upon (including some that he had still not yet produced) were irrefutable. This necessarily involved the Court, according to the Applicant’s view of things, accepting his version of events and his submissions regarding what certain documents meant. As already noted, notwithstanding him being advised that cross examination was simply a testing of the evidence, and that such was not a personal attack on him, somewhat regularly he exclaimed his concern, and obvious distress, at the challenges to his account of events and his interpretation of documents. His claims of perjury, lies and much else against most of the Respondent’s witnesses, often became quite voluble. He was clearly quite agitated at such times.
On this third attempt at a final hearing, the matter lasted 2 of its 4 listed days. Just before the resumption of the hearing on day 3, the Applicant sent an email to the Court and the Respondent’s lawyers advising as follows:
Dear Registry and Associates,
I hereby notify that I currently feel in a state of complete exhaustion and burnout, to an extent that I'm unable to continue in the Court Hearing today or tomorrow, or participate in this matter to instruct Mr Duc or otherwise – other than to communicate my current condition as I do here, though I feel sure that if two or three Hearing Days were set in August or October as was spoken of as possibilities in Court yesterday, then I feel sure I would be fine for that, because the causes of my burnout are Court tasks which I have spent an enormous amount of time on in recent weeks and months, which have now been done.
Earlier this morning I was able to make a long 45 minutes booking with my GP Dr Helen Wessell starting at 3.00 pm next Monday 1 August, and I intend to file an Affidavit with a letter from Dr Wessell at the earliest opportunity after next Monday.
Mr Duc will be appearing for me today in Court in relation to the above.
I apologise to all concerned for any inconvenience caused, without believing that in a big picture sense I should be viewed as at fault for my current condition or the situation with this matter generally in relation to adjournments being required.
Please note that even after a good night of sleep last night, I still feel an urgent need for more sleep now, so do not intend to check my emails again until much later today and probably tonight, though will be contactable by phone on XXXX XXX X49 and I will be in contact with Mr Duc by text / phone.
Your sincerely,
Mark Cockburn
In the light of the Applicant’s inability to complete this latest attempt at a final hearing, and his “request”, somewhat blithely if not presumptuously made, that the Court find two more days later in the year by which time, he assured the Court and the Respondent (as he has done many times in the past), that he will be well and able to carry on with the final hearing, the issues now to be determined are twofold. They are (a) should a litigation guardian be appointed, and (b) should yet further final hearing dates be fixed, thereby again giving priority to a matter now 7 years old concerning events 13 years ago, after a number of false starts in attempted earlier hearings, while other litigants wait trial dates. Before dealing with them, the following should be observed.
First, as the Applicant’s email to the Court on day 3 of the trial makes plain, while he apologises to all “for any inconvenience caused”, that statement alone, together with the remainder of the email, (a) makes no reference to any history of similar breakdowns he has suffered over the long course of the litigation, and (b) seems to indicate his lack of appreciation of the actual (not possible or potential) ongoing “inconvenience” perhaps most particularly to the Respondent and its witnesses. On the third day of the trial, 4 of its witnesses were scheduled to give evidence. I understand that they were already in attendance in the Court building, as would usually be the case, prior to the resumption of the hearing. Thus ensued, again, a waste of their time, and the waste of two more days of the Court’s time, which could otherwise have been allocated to other litigants waiting for a hearing. I should also note that the Applicant’s request that the Court should or will find dates for him “in August or October”, presumptuous as it is framed, again showed his lack of appreciation that this matter continues to consume so many resources, and similarly to impact other litigants waiting for hearing dates.
The email also confirms that the Applicant takes no responsibility for the current (and presumably any historical and/or ongoing) difficulties regarding the conduct of the litigation. True it is that it may be that no formal responsibility can arise for delays and the like due to the Applicant’s regular and/or ongoing medical condition(s). However, he is responsible for any circumstances that arise, for example, by not undertaking therapeutic counselling or psychological assistance/support for which there is scant, if any, evidence, apart from a single passing reference in March 2019. In Dr Clark’s Reports in 2017 and 2018, there is reference to the Applicant undertaking counselling. As well, in 2018 and even in January this year, the Applicant’s GP confirmed (see medical certificate dated 31^st January 2022, which provided for the Applicant to be on reduced hours and that he have 15 hours off per week) that he is prescribed temazepam, and that he should undertake “psychotherapy every 2 to 3 weeks.” There is no evidence before the Court that any of this psychotherapy has ever been undertaken. If that is the case, the obvious question must be “why has this medical recommendation not been undertaken?”
During the recent hearing, the Applicant’s focus, in many ways understandable, was to attribute all fault and responsibility, in every relevant respect, to the Respondent because it is the Respondent’s “fault” not to have resolved his claims. As noted elsewhere in these reasons, as an observation only and not as any “finding”, he seemed incapable of considering any context, document, or factual circumstance that did not accord with his own view.
Secondly, the Applicant’s email stated: “… I feel sure that if two or three hearing days were set in August or October … then I feel sure I would be fine for that …” In the course of the hearing in late July, there was brief discussion about when any other date might be found to accommodate one of the Respondent’s witnesses who was on leave and who had a medical certificate that prevented her being available for the then currently listed hearing dates. From this very brief and limited discussion, the Applicant has presumed (or indeed “cherry-picked”) and extrapolated that the Court can expand a few hours to accommodate one witness to allowing a further two days to accommodate his various needs and litigious wishes.
Final hearing dates were fixed in 2017 which could not be used because of the Applicant’s psychological and mental breakdown. As noted earlier, a second set of final hearing dates were fixed in 2021, but they were not used because of various appeals filed by the Applicant but which ultimately were either not prosecuted or which were dismissed.
Everyone faced a third final hearing, based upon the Applicant’s assurances in March (by the Applicant’s Counsel who insisted on medical evidence), and again in April, this year in open Court that he did not need or require a litigation guardian, and conversely that he would be able to cope with the stresses and strains of the hearing. The Court again acceded to his request, relying obviously upon his regularly given assurance, but reserved its position regarding the appointment of a litigation guardian should other events occur that would warrant such an appointment. Unfortunately, again, notwithstanding the Applicant’s undoubted belief and best intentions, his assurances have proven to be completely unreliable.
Even if there is medical evidence provided (as is proposed), for example, by his long-time GP (Dr Wessel) again assuring the Court that with rest or whatever else is necessary to enable the Applicant to recover and face the stresses and anxieties of a resumed trial, the now long experience of the Court is that the final hearing brings its own levels of stress and anxiety, including especially the reality of the Applicant hearing evidence from a range of witnesses on behalf of the Respondent who challenge very directly the Applicant’s account of events, a number of whom he called in his recent cross examination a “triad of psychopaths.” This was slightly revised the following day to distinguish between those who were, in his view, psychopaths and those who were narcissists. The Applicant is a well-credentialed mathematics teacher; he is not a psychologist.
The promised further medical certificate from the Applicant’s GP, which was promised by the Applicant’s Counsel to be provided by Monday 1^st August, as earlier remarked, did not materialise until 6pm on Wednesday, 3^rdAugust 2022. Clearly the Applicant, who sent it, considers the Court to be open “all hours.”
Overview of Evidence
Much of the Applicant’s medical evidence was set out in my judgment of March 2019. I will not repeat what was set out there. For current purposes, I need only note the following, by way of “sample” only, which covers various medical issues and other matters.
An undated document provided to the Court by the Applicant by email dated 1^st February 2022 confirms that since March 2009 until mid-2021, he has obtained approximately 64 medical certificates, most of which relate to “workplace stress” and “adjustment disorder”. Between 2015 and mid-2021, the number of medical certificates applied for by the Applicant total 39. There have been a number of additional medical certificates obtained by the Applicant since mid-2021.
Among other things, subject to what is set out later in these reasons, there is a regular and unfortunate (as well as illogical or at least inconsistent) approach by the Applicant regarding the use of medical evidence. On the one hand, he has regularly used medical evidence to support or seek his need for extensions of time to comply with filing and other directions. This occurred as recently as January 2022 when his GP provided a medical certificate to indicate the difficulties the Applicant was having in preparing his documents to comply with a previously agreed timetable. On the other hand, he consistently says that he is medically fit so as to be able to continue to conduct the litigation. The unfortunate and inconsistent dichotomy is plain. Respectfully, to speak somewhat colloquially, “you can’t have it both ways.”
On 24^th November 2017, the Applicant’s GP provided a medical certificate which stated, in part: “This stress and anxiety is exacerbated by the trauma of reading witness statements, provided only very recently.” It is unclear if the stress and anxiety was related to (i) the trauma of reading witness statements by themselves, (ii) by their lateness, and or (iii) by both – the statements and the lateness. Given the Applicant’s “stress and anxiety” and general agitation during the recent hearing, this clearly arose from reading and being asked questions about documents and witness statements from 2017 and earlier. “Lateness” was clearly not the issue in 2022, but the stress and anxiety diagnosed in 2017 was still palpable in 2022.
In late 2017 and early 2018, the Applicant underwent two psychiatric examinations with Dr Clark. Copies of these Reports were annexed to the Applicant’s Affidavit, filed 14^th September 2018. In that Affidavit, for example at par.7, the Applicant stated that he considered there to be “significant inaccuracies” in the material filed by the Respondent. He deposed that “I found the inaccuracies as I perceived them and the quantities of the inaccuracies acutely painful, re-traumatising and debilitating, and beyond not just my own coping capacity, but I believe any normal human coping capacity …” At par.9, he continued:
… as a result of significant preparation work I’ve been able to do in recent months I now believe the fraction of work I would need to do to be fully prepared for a Final Hearing has reduced to a point where I could definitely cope satisfactorily with a Final Hearing and other late stage preparation for such a Hearing, especially if final Hearing dates were set for times such as late November or early December this year [2018], or February onward next year.
In par.12 of the same 14^th September 2018 Affidavit, the Applicant assured the Court that: “I hereby state that I feel extremely confident that I can attend and cope with a Final Hearing …”
His assurances in 2018 proved to be untrue and unreliable.
Annexed to the September 2018 Affidavit, as noted above, were the two Reports of psychiatrist, Dr Clark. These Reports were obviously obtained as a result of the Applicant’s more recent workplace difficulties. In the first of them, dated 6^th September 2017, which seems to have arisen out of the Applicant’s inability to work as a teacher at a local High School as a result of various bullying and similar claims. In this Report, Dr Clark found (p.7 of the Report) that, as a result of “the severity of [the Applicant’s] current psychological symptoms and the risk of further exacerbation in the context of ongoing stressors makes him not psychiatrically fit for usual duties at this time.”
Dr Clark’s second Report, dated 9^th February 2018, noted the following matters. It might be observed – nothing more – that quite a number of matters raised by Dr Clark regarding more recent employment of the Applicant resemble a number of matters that he raised regarding his employment with CIT. I do not suggest that anything necessarily turns on this apparent coincidence. Dr Clark recorded (emphasis added):
(a)The Applicant remained taking some relaxant medication; he was also seeing an EAP counsellor every one or two months;
(b)The Applicant was assessed at this time to be fit to return to work;
(c)At p.5 of the Report, Dr Clark stated: “I note that [the Applicant] remains concerned about strict adherence of his employer to principles, rules, and guidelines for the workplace. It appears he has ongoing concerns about perceived irregularities or inequitable responses to his situation, and these tend to become an inordinate focus of attention for him – he loses sight of the forest for the trees, as it were. This mindset is influenced by stressors such as preparing for his court proceedings. In my opinion these reactions arise as part of his personality style and can be exacerbated when he is stressed. There is an obsessional quality to his concerns and it is likely this will continue to be a factor for his workplace behaviour. It is likely that these are enduring personality characteristics for Mr Cockburn and it is unlikely they will significantly change in the future.
…
In consultation with his general practitioner, we agreed that referral to a psychologist for assistance in managing interpersonal difficulties as they may arise during the transition back to the workplace would be of potential value.
Finally, another but undesignated Annexure to the Applicant’s September 2018 Affidavit, signed by Dr Wessell dated 28^th August 2018 recommended that in addition to specified medication, to assist his return to work on “modified duties” he undertake “psychotherapy every 3-4 weeks.” As already noted, there is no evidence before the Court of this therapy at that time, or since.
On 8^th March 2019, the Applicant filed another Affidavit attached to which were further medical certificates, this time by psychiatrist Dr Blanch. He confirmed that he was also scheduled to see his GP, Dr Wessell later that same month, and that he was having “monthly or so appointments with a psychologist Ms Megan Webster.” It is unclear whether the Applicant has seen Ms Webster, or any other psychologist, on a regular or other basis since March 2019. Certainly since that time, he has never mentioned any such professional support
At par.5 of this Affidavit, he stated (emphasis added): “I feel better able to partake in this Federal Circuit Court matter this year than in all previous years since my original 2015 Application…” He set out various family pressures he said he no longer had. He said he hoped that his directly-briefed Counsel could advocate to work out a timetable again “working backwards from July this year [2019].” And at par.7 he provided a progress report of some sort in which he outlined the work he had been able to do on the litigation since November 2017. He indicated a possible course if the Court could fix a final hearing date for on or after August 2019, and stated that if such dates could be set “I feel sure I could be prepared and able to soundly partake in the final hearing …”
These assurances, like many others, were unfulfilled and proved again to be unreliable.
On 21^st March 2019, Dr Wessell wrote again on behalf of the Applicant with a long, two-page letter setting out some history of his medical and family issues.[5] In the course of her long letter, the GP recounted a number of the Applicant’s claims, including that “he was overlooked for permanent appointment ….” Then she stated (emphasis added): “[as a result of the matters that give rise to his claims] he suffered severe anxiety and mental distress which persisted and was exacerbated by the difficulty he has encountered ever since in trying to get these wrongs redressed.” Plainly and unfortunately, it appears that no “reality check” has been given to the Applicant by anyone, including his GP, regarding any possibility that he might not be successful in the litigation. One might reasonably assume that such important counsel would be given to him, but which, thus far, has not, or perhaps that it has not relevantly registered with him. To anyone who is vaguely familiar with litigation, it can be notoriously unpredictable in its results, and conversely, being overly optimistic let alone utterly certain of one’s position and equally the certainty of a favourable outcome, can be a very imprudent disposition to adopt. These basic insights have been noted by Courts at the highest levels.
[5] This letter is annexed to the Applicant’s Affidavit filed in the Federal Court of Australia on 13^th April 2021. A second medical certificate, dated 8^th April 2021, was annexed to this Affidavit.

For example, in International Finance Trust Company Limited v New South Wales Crime Commission, Heydon J cited approvingly, at [143], the comments by Megarry J in John v Rees:[6]
… 'When something is obvious', they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change…
[6] International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; John v Rees [1970] Ch 345 at 402.
In the last paragraph of her letter, Dr Wessell said, in terms that are, in my view, both remarkable and grave in almost every respect (emphasis added):
[The Applicant] is keen to have his case addressed, and I believe the delays are detrimental to his health. The delays have been largely caused by the other party’s failure to address the main issues in a timely manner, and the severe mental stress this has caused him. These issues need to be considered and addressed. I believe his mental health depends on his having the case finalised and I believe that his ability to present his case at a hearing is now at its best…
I do not agree with Dr Wessell’s assessment because (i) the Court and the Respondent have each bent over backwards to accommodate the Applicant’s constant failure to comply with filing directions and much else; (ii) it is the Applicant’s conduct, and his ongoing, and constantly fluctuating health that has resulted in astonishing delays; and (iii) Dr Wessell’s contention that the problem of delay rests solely with the Respondent not dealing with the Applicant’s issues in a timely way ignores the factual history of the litigation. It also ignores basic legal principle at every level, both as to the substance of the claims (to the degree that they are legally comprehensible), and in relation to the proper processes of litigation, which are consistently flouted by the Applicant.
The GP’s “assessment” of the legal situation uncritically accepts the Applicant’s contention that if only all of his claims were accepted by the Respondent then all would be well. I should also note for completeness that this medical certificate, dated 21^st March 2019, was annexed to the Applicant’s Affidavit filed in the Federal Court of Australia on 13^th April 2021 by which he was seeking an extension of time to appeal and leave to appeal. Ultimately, by consent, those Applications were abandoned.
Put shortly and directly: the delay in this litigation ultimately rests at the feet of the Applicant. Doubtless some of the delay is directly due to his various and regularly fluctuating mental health. This however does not give him carte blanche to keep litigation running solely according to his wishes and the unfortunate and quite unpredictable vagaries of his health. In this regard, as noted later in these reasons, in my view the observations of Dr Clark give a more objective assessment of a range of matters that are not addressed by the Applicant’s supportive but less objective GP, who regularly trespasses into legal matters that are clearly not within the province of her expertise.
On 31^st January 2022, Dr Wessell again wrote regarding the Applicant’s inability to comply with further directions from the Court regarding the filing of material. Thus the Applicant’s further assurances were again unreliable. This letter commenced as follows: “[The Applicant] has been seeing me for care for 18 years. He has been suffering an adjustment disorder since the incidents at CIT and the subsequent legal procedures for about 13 years. … He is unable to devote as much time to the preparation of his material as is required by the current deadline .…” On his behalf, she sought a further extension of time for the filing of documents where there had already been extensions of time granted.
There are other matters that are canvassed in this medical certificate which, again, uncritically and inappropriately, accept the Applicant’s account of what has happened in the litigation, both during the hearing and beforehand. That certificate is attached as Annexure C to these reasons. To the degree that it traverses matters that are beyond the expertise of the GP, it is again a completely inappropriate certificate in which the comments made are predicated on significantly inaccurate and, in my view, inappropriate, reviews, obviously by the Applicant himself, about the conduct of the litigation. As such, they go well-beyond the province of the GP’s expertise. Moreover, unfortunately, like many other certificates she has provided to the Applicant, very often they seem more to reinforce the Applicant’s regularly disjointed and ill-informed views regarding many quite basic legal matters regarding issues of legal principle, and of legal practice and procedure. To this extent where the GP goes well beyond her relevant expertise, she risks causing further harm to the Applicant because she could be taken to support his views which are often quite misguided, particularly on matters of procedure.
In all of the material filed by the Applicant since early 2019, there is no reference to any ongoing psychological treatment or assistance he has sought, received, or been recommended by Dr Wessel (or anyone else).
Further, to speak in general terms, the claims by the Applicant in the current litigation relate to, and/or arise out of, what the Applicant contends are practices of bullying by then colleagues, and coercion (among other things) by management at his former place of employment at CIT. In an Affidavit of the Applicant filed 29^th June 2018, at par.5 he deposed to experiencing difficulties in his workplace at a school in the ACT (obviously after he left CIT but not dissimilar to those he said he encountered at CIT) arising from conduct towards him by teachers and students, and by the Head of the Mathematics Department. He said that he found certain conduct offensive and clashed with his professional ethos. At par.10, he deposed to not being well enough “to partake in the Court process” due to various family matters. At par.14 he sought that the litigation be “re-opened” and that he “believed” that by August 2018 he could “adequately complete preparatory work required for the case…”
Outline of principle
Although noted in earlier judgments, before proceeding further, a brief outline of principle should be noted here. In addition to setting out relevant Rules regarding a litigation guardian, there are four areas of relevance: (a) the appointment of a litigation guardian, (b) principles of case management, use of public resources and impact upon other litigants, (c) statute-barred claims raised by the Applicant, and (d) “pleadings”.
The most relevant Rules from Division 11.2 of the FCFCOA (Division 2) (General Federal Law) Rules 2021 (Cth), are as follows:[7]
[7] For ease of reference, I have obviously abbreviated the complete and cumbrous title of these Rules that are otherwise referred to in full in the formal parts of these reasons.
11.07 Person who needs a litigation guardian
(1) For the purposes of these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
11.09 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.
11.10 Appointment of litigation guardian
(1) The Court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.
(2) A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
…
In my view, the Applicant’s abject failure to prosecute, expeditiously and satisfactorily, his Application over seven years is testament enough that, either or both, he does not understand the nature and possible consequences of the proceeding, and/or he is clearly not capable of adequately conducting the proceeding.
Litigation Guardian: As noted in my March 2021 judgment, a principal decision regarding relevant principle concerning the appointment of a litigation guardian is the Full Court’s judgment in L v Human Rights and Equal Opportunity Commission.[8]
[8] L v Human Rights and Equal Opportunity Commission (2007) 233 ALR 432.
A more recent outline of relevant principle is the judgment of Rangiah J in Secretary, Department of Health v Southern Cross Directories Pty Ltd at [23] – [27] (emphasis added):[9]
[9] Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592 at [23] – [27].
[23] In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114, a Federal Magistrate had made an order preventing the appellant from taking any further steps until either a litigation guardian was appointed, or the appellant provided a psychiatric opinion indicating that a litigation guardian was not required. The now repealed Federal Magistrates Court Rules 2001 (Cth) prescribed that a person needed a litigation guardian, where the person either did not understand the nature and possible consequences of the proceeding, or was not capable of adequately conducting or giving instruction for the conduct of the proceeding. The Full Court traced the history of the law relating to the appointment of a litigation guardian and drew the following principles from the authorities:
1)The purpose of the power to appoint a litigation guardian is to ensure that litigants who would otherwise be at a disadvantage are properly protected, as well as to protect the processes of the Court: at [25].
2)There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: at [26].
3)When it is alleged that a person is incompetent, the onus of proof is on those so asserting: at [26].
4)The means by which the Court will determine whether a guardian should be appointed can vary from case to case. In almost every case, a Court hearing an application to appoint a litigation representative will need medical evidence: at [27].
5)There are, however, cases in which no medical evidence is available, for example where a litigant refuses to submit to a medical examination. There will also be cases in which the lack of capacity is so clear that medical evidence is not called for. In those cases, the Court is entitled to rely on its own observations to make an assessment about the capacity of a party: at [27].
6)Whether the Court is satisfied of the need for a litigation guardian in the absence of medical evidence will depend upon the circumstances of the particular case: at [33].
[24] The Full Court observed at [28] that the Federal Magistrate had the power, either on application or on the Federal Magistrate’s own motion, to consider whether a party needed a litigation guardian. The Full Court held that the Federal Magistrate had erred, relevantly, by placing an onus upon the appellant to prove her own capacity: at [30]. The Full Court also observed at [33] that where a party is unrepresented and the opponent does not raise any point about the party’s competence, but the Court has serious doubts about that matter, the Court should consider the matter on its own motion.
[25] In Burnett v Browne (No 2) [2021] FCA 373 at [3], O’Callaghan J referred with approval to the principles identified by Derham AsJ in Vishniakov v Lay (2019) 58 VR 375. In addition to the principles identified above, Derham AsJ noted at [30]:
a)The words in the relevant Court rule “in relation to the proceeding” were important as they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.
b)The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.
c)A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer.
[26] In Burnett v Browne, O’Callaghan J observed at [43] that where psychiatric evidence or a diagnosis is relied upon, the evidence must demonstrate why it is that the diagnosis compromises the litigant’s ability to provide instructions, seek advice and to participate, if necessary, in a hearing. His Honour noted that the relevant matters include the litigant’s ability to understand the nature and possible consequences of the proceeding, and ability to instruct an advisor with sufficient clarity to enable the advisor to understand the situation and advise the litigant appropriately.
[27] In Dauguet v Centrelink [2015] FCA 1212, the appellant appealed a decision to refuse the appointment of a litigation guardian. The application was refused at first instance, in part because no medical evidence in relation to capacity was provided and also because the applicant’s behaviour in Court suggested that he understood and could follow the proceedings. In rejecting the appeal, Murphy J considered the following matters to be of relevance:
1)The appellant’s appearance before the primary judge, and his affidavits, indicated that he was not incapable of managing his own affairs in the proceeding. The affidavits in the proceeding which he said were in his own words indicated that he understood the proceeding (both before the primary judge and on appeal): at [23].
2)The appellant understood the nature of the application to appoint a litigation guardian and the basis for the application: at [25].
3)The applicant followed the arguments, went to the relevant paragraphs of the authorities put against him, and he managed to put his case: at [25].
Contrary to the Applicant’s Counsel’s submissions in March 2022 to the effect that the appointment of a litigation guardian is dependent upon medical evidence, which [somehow] was said to bind the Court, the authorities referred to clearly contemplate situations where medical evidence is not required.
In this Court’s March 2021 judgment, I reserved its position to appoint a litigation guardian should there be non-compliance again by the Applicant with any direction or Orders of the Court. Although raised earlier in the proceedings about the potential need to re-visit such an appointment, the Full Court in July 2020 raised specifically the proper course for the Court to consider such an appointment before possibly dismissing the proceeding. The Full Court’s judgment should properly be considered the first formal “caution” (in no punitive sense) to the Applicant regarding the likelihood of the appointment of a litigation guardian.
What might reasonably be recorded as a second, general caution to the Applicant in relation to the possible appointment of a litigation guardian (other than general warnings as long ago as 2016 regarding his non-compliance with Orders and delay in filing material) may be taken from Orders and notations made on 2^nd November 2020, and again on 12^th and 25^th March 2021.
The third caution to the Applicant, and reservation by the Court of the potential or likelihood of such an appointment being re-considered in the event of further delay and non-compliance was following the “show cause” hearing in April 2022. This was noted in Orders and notations made on 6^th May 2022.
Public resources & case management: In the March 2019 judgment of this Court, there is detailed reference to the High Court’s statements of principle in AON v ANU regarding delay, the impact of delay upon other litigants, and the consumption of scarce public resources. I will not repeat comments by the High Court in Aon v ANU. I will, however, note the following from the companion decision of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (“Expense Reduction”) at [51] and [56] – [57] (internal citations omitted):[10]
[51] In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. …
…
[56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance…
[10] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303. Although the circumstances before the High Court were in a different regulatory context, the principles articulated are clearly of wider import.
Fixed time limits: In two detailed outlines of submissions in 2017, the Respondent raised the critical issue that a significant number of the Applicant’s claims were “out of time” because of the operation of s.544 FW Act. In 2017, the only response from the Applicant’s Counsel was that “he would have to think about it.” This “out of time matter” remained unaddressed by the Applicant until the Court raised it at the commencement of the trial. Thus, there was a crucial issue that was not addressed by the Applicant for 5 years until the commencement of the trial in July 2022. Section 544 FW Act provides:
A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:
(a) a civil remedy provision;
(b) a safety net contractual entitlement;
(c) an entitlement arising under subsection 542(1).
In Brisbane South Regional Health Authority v Taylor, McHugh J said (internal citations omitted):[11]
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed…. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. … The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur….
[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, 553 and 555.

It is not disputed that, in addition to never having addressed the Respondent’s claims and submissions that a number of the Applicant’s claims are out of time, the Applicant has never applied for any extension of time.
Pleadings: Although already noted, and discussed at some length at the outset of the final hearing, the final matter to record here relates to the fact that the Applicant has never prepared or filed a properly pleaded Statement of Claim. The Respondent and the Court have simply been required to attempt to decipher the detail and particulars of his claim by reference to the various iterations of the Agreed List of Issues and the last form of the Statement of Agreed Facts.
In this regard, it is sufficient to record the High Court’s clear statements regarding pleadings. Banque Commerciale SA (en liq) v Akhil Holdings Ltd, plainly stated that each party should have adequate notice of the case that will have to be met at trial.[12] The history of this litigation has been replete with attempts by the Court, and by the Respondent, to have the Applicant properly and plainly plead his case, and to give relevant and comprehensible particulars of it. Invariably, very complex but unhelpful documents keep being produced, a number of them with some glossary of abbreviations to help the reader through the various complications of claims and assertions. In the Applicant’s mind, based on his correspondence, the documents make sense to him. In legal terms, they are regularly obscure if not obtuse, needlessly complex, and generally unhelpful to anyone trying to work out the nature and the “metes and bounds” of his various but opaque and legally imprecise claims. I remind myself again that he is a self-represented litigant. That said, this does not give a completely free hand to any such litigant to wander, without restraint, in the making of claims and providing evidence to support them. This is especially so here where pleas for assistance, corrections by the Court, and having his own directly briefed Counsel, have regularly failed to shed the clarity and certainty so earnestly sought over many years in the quite relentless barrage of documents filed, albeit regularly late.
[12] Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 – 287.
For completeness, I should also note one further High Court authority, which is noted in the Aide-Memoire that is Annexure A to these reasons. It concerns “abuse of process.” In Batistatos v Roads and Traffic Authority of NSW, the High Court stated (at [9]) that “… the counterpoint of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.”[13] The relevance of this important decision should be self-evident. The Court’s processes have been “set in motion” for many years, albeit that they are regularly stalled as a result of the Applicant’s multiple and ongoing difficulties.
[13] Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256.
Consideration & Disposition - Submissions
On the third day of the recent hearing, in the light of the Applicant’s notification to the Court of his inability to continue with it, Counsel for both parties put submissions to the Court regarding (a) the appointment of a litigation guardian, and (b) the future conduct of the hearing.
Put shortly, the Respondent strongly supported the appointment of a litigation guardian, not least because of the long and ongoing history of the Applicant’s non-compliance with any Orders and directions, the ongoing imprecision of his claims, and the ongoing prejudice to the Respondent and its witnesses.
Counsel for the Applicant was obviously in a difficult position (not for the first time) because the Applicant was so incapacitated to give instructions. He advised however that the Applicant had made an appointment with his GP for the following Monday (the earliest appointment he could obtain), after which he would immediately provide the Court and the Respondent with a medical certificate. As already noted, this certificate did not arrive until several days later. Because Counsel was not able to get instructions, the Court requested that the Applicant provide any further submissions by close of business on that day regarding the primary procedural issues again brought to the fore. This did not occur until the following day, perhaps for understandable reasons.
On 29^th July 2022, Counsel for the Applicant provided brief submissions by email that recorded the Applicant’s “views” or contentions opposing the appointment of a litigation guardian. Those submissions should be taken to be incorporated into these reasons. In short, among other things, they pay no regard to the history of non-compliance by him with directions and Orders. Again, as he has consistently done over the years, he asks the Court to rely upon his assurance of being able to conduct the litigation in the future. The Respondent’s very short response, by email also dated 29^th July 2022, which rejected the Applicant’s contentions, should also be taken to be incorporated into these reasons. Those two emails were as follows:
Dear Associate
I apologise for the delay in informing Chambers.
Dr Cockburn has instructed that he objects to the appointment of a litigation guardian for four reasons:
1.The time that it would take for him to bring another person up to speed on the content of the documentation and the nature of the claims, and for that guardian to properly instruct counsel;
2.The medical event that he suffered was of a temporary nature, due to his dual role as applicant and instructor, particularly the effort he had made to prepare for the hearing in the weeks leading up to its commencement;
3.The ability to instruct on cross examination of the witnesses is a different task to that of being a witness himself, and he feels capable of instructing counsel in that position at the bar table.
4.Dr Cockburn relies on his previous arguments and submissions about why a litigation guardian should not be appointed, and that he has demonstrated his ability in the witness box to properly participate in the proceedings, and give counsel instructions.
Yours sincerely
Anton Duc
Dear Associates,
If it’s of assistance, I understand the court only has the 4 October 2022 available this year to hear the balance of this matter. I suspect we may need a maximum of 2 days to move through the cross examination of the respondent’s remaining 4 witnesses, and to also have closing submissions heard.
I would anticipate all other available dates outside the 4 October will take us well into 2023.
Without holding instructions, I suspect the respondent would strongly disagree with the applicant’s position that he would not have enough time to update a litigation guardian if the matter were listed for 2023. Between now and 2023, there is at least a few months to provide a sufficient update to a guardian.
With respect to the applicant and to this court, given the reverse onus, the respondent continues to be prejudiced as this matter continues to drag on.
Kind regards,
Blade Sanchez
Given the history of the matter and the unfortunate but ongoing delays and non-compliance, and the history also of the Applicant’s psychological collapse shortly before or during final hearings, whatever his assurance (or that given by his GP) of getting better and being able to cope in the future, there can be no guarantee at all that, if dates are able to be found, he will not collapse again, especially in the face of the range of the Respondent’s witnesses, each of whom in Affidavits (albeit prepared and filed in 2017 in expectation of the first final hearing proceeding) categorically deny the various claims and contentions made by the Applicant in his voluminous material.
It was the confrontation and challenge to the Applicant’s account of this event or that conversation, and a different interpretation of various documents, that caused him obvious and significant distress during the hearing. It is almost inconceivable that such factual and evidentiary confrontation, challenge and refutation of the Applicant’s claims at any resumed hearing will not again lead to his psychological distress and likely collapse. This is so whatever any medical (or personal) evidence again assures the Court that the Applicant is sufficiently well to continue to prosecute his long-outstanding claims.
His wish and desire to proceed with the litigation is patent. His basic ability to prosecute it, and to withstand the standard process of trial, contest and challenge to his claims, is the nub of the present conundrum. To be terribly repetitious: this has been the problem at least since 2016 when the issue of the Applicant’s non-compliance, and the extensive and ongoing extension of time requests, even in the face of Orders confirming that no further extensions of time would be granted, were raised.[14] The same problems of non-compliance, delay and the Applicant’s fundamentally flawed capacity to cope with the litigation continue to beset the proceedings. Patiently, the Respondent and its witnesses continue to mark time. The prejudice to all is at least unfortunate if not now very alarming. The various annexures to these reasons that list the delays, extensions of time, and ongoing non-compliance with directions, Orders and timetables, unfortunately makes plain the abject inability of the Applicant to conduct the litigation satisfactorily as prescribed in Rule 11.07. As set out above, Rule 11.07(1)(b) states: “a person needs a litigation guardian in relation to a proceeding if the person … is not capable of adequately conducting, or giving adequate instruction, for the conduct of the proceedings.”[15]
[14] See, for example, the Orders dated 6^th June 2016 and 1^st August 2016 in this regard.
[15] Rules 11.09 and 11.10 provide for who may be a litigation guardian and the circumstances regarding the appointment of such guardian. Other formalities are set out in Rules 11.12 and 11.13.
As the authorities referred to make plain, it is not necessary that there be medical evidence to support the Court’s intervention to appoint a litigation guardian. In such matters, it is usually the history of the [mis]-conduct of the litigant that is determinative. So too are the length of time, without determination, the litigation has been on foot, plus the rambling, stop-start nature of the litigation. Everyone (including other litigants) is in “limbo”, so to speak, captive to the well-being, and all else, of the Applicant.
I need only record that the breadth of the Rules, for example, regarding who may be a litigation guardian, gives the Applicant here very wide scope to nominate and appoint, for example, a member of his family, or a friend. It does not need to be someone legally qualified. Any such person will doubtless be well acquainted with the litigation and who will likely be in regular touch with the Applicant anyway. As stated many times, the appointment of such a guardian is not a punishment; it is a protection and is intended to be of assistance.
There is almost a disregard (and presumption, if not almost an entitlement) for the litigation to continue forever, if need be. There is simply no end point on the Applicant’s evidence and conduct of the litigation. It is just whenever not only he feels he is able to run it and therefore everyone else has simply to accommodate that, but as and when he runs into further hiccups/problems, the Court and the Respondent are simply meant to accommodate him. That is not how litigation is run, even though that is the way that it has been run for the last seven years in this matter. Equally or alternatively, there is at least an inability, by the Applicant, to consider anyone or anything else other than his own interests, despite having stated in open Court multiple times, and in various judgments, the range of considerations the Court must properly balance in using scarce public resources and considering the interests of other litigants, as well as the ongoing risks to the Respondent and its witnesses. Time limits and directions are so constantly flouted that, as stated in Court multiple times, there is one rule that applies to all other litigants, and a separate one that applies to the Applicant. That rule presumed by him alone, is simply that there are no rules that apply to him. Equally, there is never any risk of relevant punishment or general consequence regarding the Applicant’s regular defaults.
There has never been a properly and clearly pleaded Statement of Claim that sets out the Applicant’s diverse claims. The Respondent and the Court, doing the best that could be done in the circumstances, adopted the Agreed List of Issues, together with the Statement of Agreed Facts, to try to discern the detail of the claims asserted by the Applicant. The former contained 12 issues; in the latter, these 12 issues morphed into 37 claims. In the course of the attenuated hearing, the 12 claims became 11. This occurred when the Applicant finally conceded, after attempting to file various other iterations of the List of Issues during the week prior to the hearing, that he would not or could not expand the List of Issues to 18.
I note in particular, the following samples of assurance given by the Applicant over the years to the Court that he was able and capable to conduct the litigation (these matters have been recorded earlier in these reasons; they are collected and repeated here primarily for convenience):
(a)In June 2018, the Applicant stated that he was “not well enough to partake in the Court process” but that by August 2018, he “believed” that he could “adequately complete preparatory work for the case …”;
(b)In March 2019, the Applicant said: “I feel better able to partake in this Federal Circuit Court matter this year than in all previous years …”;
(c)In March 2022, in the course of a “show cause” hearing that dealt with (among other things), and provided detailed evidence of a long history by the Applicant of non-compliance with directions and Orders, the appointment of a litigation guardian. Again the Court was assured by the Applicant that he could conduct the litigation without further delay or any other interruption;
(d)On 28^th July 2022, following his incapacity to continue with the hearing, which by then had run for 2 days, the Applicant stated by email that he felt sure that “if two or three hearing days were set in August or October … then I feel sure I would be fine for that …”
The Applicant’s assurances have been regularly supported by a certificate from his long-time GP.
In my view, what is more objective is the assessment of the Applicant in 2017 and 2018 of Dr Clark, where he spoke (as recorded above) of the Applicant’s “obsessional traits” and his focus upon, for example, his then current employers or managers being compliant with regulations and the like. From his conduct of the litigation since those assessments, the Applicant’s obsessional traits plainly remain evident and dictate in many respects the conduct of the litigation. It would seem, based on Dr Clark’s assessment, that the Applicant is not able to control them, thus there cannot be undue criticism. What is curious, however, is that, according to the observations of Dr Clark, the Applicant requires almost strict compliance with guidelines and various matters from his employer and superiors. This was in 2017. He makes similar claims against the Respondent in the current matter. However, while he requires strict compliance by others, strict compliance with directions and Orders of the Court do not receive the same attention. It is as if he is exempt from the standard to which he holds others.
Conclusion
In my view, the brief history recorded here (and in earlier judgments) provides no confidence at all that the Applicant’s well-meaning assurances will bear any lasting or appropriate fruit. His litigious conduct and compliance has been very poor throughout the litigation over 7 years. It remains very poor. His consistent and constant failure to adhere to any time-table or Order or direction of the Court is a complete litany of failure and broken promises. His regular inability to cope with the stress of the litigation, and the never-ending delays that have ensued, (a) have consistently been wrongly placed at the feet of the Respondent, and (b) with no responsibility taken by the Applicant for them.
The ongoing prejudice to the Respondent and its witnesses has never been addressed, or addressed satisfactorily, by the Applicant. Likewise, despite repeated attention being drawn to it, there has been not the slightest attention paid to the relentless demand upon Court resources as if they are almost exclusively and unquestioningly to be available to him. The flow-on effects to other litigants is immeasurable but of no interest or regard to the Applicant.
Regrettably, this matter flouts every principle set out by the High Court in AON v ANU (and later cases. Over the years, it has become almost legion, or a by-word, for non-compliance with time-tables, Orders and directions, and for this to occur with impunity (and conversely, without penalty, despite so many warnings as to make the Court appear utterly ineffectual in policing its Orders and directions), as well as the ongoing inability for the Respondent to know either the case it is facing and/or when any documents from the Applicant will arrive. Then there remains the prolixity and regularly opaque nature of those documents whenever they do arrive. Some documents promised during the trial have still not been provided. It is difficult to conceive of a case that has run for so long, that has had so many attempted “starts”, that has had so many Orders and directions flouted – usually not intentionally but primarily because of the Applicant’s incapacity of one kind or another. Among other things, as the lamentable history of the matter shows, it is the abject lack of capacity of the Applicant that brings the Court and himself to the current situation. The Court has tried everything, and provided every possible concession to the Applicant: alas, all to no avail. He always seeks “more”. The Respondent remains long-suffering but equally, from its submissions on day 3 of the trial, at its wits end.
For the reasons given, the Orders set out earlier must be made in the hope, however vain, that the litigation might come to an end for everyone’s sake. While-ever the Applicant remains unrestrained to attempt to conduct his own litigation, the history of the matter since 2015, regarding events in 2008 and 2009, confirms that it will never end without much more direct intervention by the Court. Should it need to be stated, of course, any action taken between now and October that threatens potentially or actually those hearing dates, everyone will again have to park the litigation until sometime next year, so that all of the concerns expressed by the applicant, all of the ongoing concerns expressed by his GP and others about how detrimental to his wellbeing is the litigation, all must fall at the feet of the applicant if he does anything to jeopardise those final hearing dates.
In the light of the various but consistent failure by the Applicant to comply with Orders and directions, I note the comments of Bryson J from the NSW Supreme Court, cited approvingly in AON v ANU at [133] (internal references omitted; emphasis added):[16]
… I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty...
[16] Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 at [133].

Although made in the context of “amendment”, the comments of Bryson J clearly have wider application.
There was one small bright spot that arose at the partial end to the trial on day three: Counsel for the Applicant agreed with the Court’s direction that any future conduct of the matter will be confined only to the Applicant’s claims under the FW Act and the Collective Agreement. This was a concession properly made. Had it been made earlier, it would have shortened a great many documents, not to mention the energy and resources lavishly but needlessly expended on the matter over the years.
The last thing I will come back to briefly is the most recent medical certificate from Dr Wessell. With all due respect, her comments in this certificate dated 1^st August 2022 should not have been made. A copy of this certificate is Annexure D to these reasons. Paragraph 2, in particular, it is extremely concerning. She wrote:
[The Applicant] had weathered an intense grilling over the issues in his legal case following several weeks of work finalising his response to numerous objections from CIT over documents for the case. These objections were presented just weeks before the hearing, necessitating long hours of work up to and into the first two days of the hearing.
Clearly, the GP has no idea how the litigation has been conducted, or has little or no appreciation of its multiple contours and all else. This is perhaps perfectly understandable given that she is not legally qualified, as far as I am aware. She is a local GP who has been supporting the Applicant for a long time. But it clearly means, and shows on the face of it, as she has consistently done for years that she uncritically adopts everything that she is told by her patient. She takes no account of the fact that (a) these proceedings have been on foot for seven years, (b) almost every single document that the Applicant has filed has been late, even after further extensions, and (c) any attempt by the Respondent to seek clarification regarding the Applicant’s opaque, wide-ranging claims, carries no weight and is largely treated as irrelevant. Even the language that Dr Wessell uses, especially in paragraph 3, mirrors almost exactly what is in the email sent by Mr Duc on behalf of the Applicant, which obviously the Applicant had crafted. The contention that the appointment of a litigation guardian would constitute a re-traumatisation is simply another bare, incomplete, incorrect and unsubstantiated assertion. She should not be meddling in or making legal submissions on behalf of the Applicant that are outside her medical competence. Among other things, unfortunately, by reinforcing his contentions and beliefs about certain highly contested facts, and equally potentially difficult legal principle applied to various events many years ago, rather than caution him about keeping expectations and all else under control, and having proper regard to the clear assessments by Dr Clark in 2017 and 2018, she could unwittingly be leading or encouraging him down the wrong legal path(s). In the light of the Court’s comments and findings, the Applicant’s Counsel may wish to raise these matters with Dr Wessell.
In conclusion: in the light of the Applicant’s own medical evidence regarding the damage the litigation is doing to his mental health, the solution is quite straight-forward: the litigation must end. There can be no more delays. The Applicant must attend to his mental, psychological and any other aspect of his health. Any further delay will likely result in either the Application being dismissed, and/or that his mental health will suffer further. He has to stop blaming the Respondent for everything, who is simply trying to meet the Applicant’s regularly changing documentation, which invariably arrives only after much delay. The case throughout its history has been built on quick-sand, while the Respondent (its witnesses), and the Court, try each year to accommodate whatever the latest crisis, trauma or difficulty is for the Applicant. He is the Applicant. His conduct, in almost every respect, shapes (and has shaped) the litigation. For seven years, everyone has accommodated him, notwithstanding the curious and regularly erroneous legal views and assertions to the contrary by his GP.
The contest is adversarial. That is the nature of the beast; it is not a personal attack. It is simply a testing of the evidence. Providing redress for his claims, as urged by the Applicant’s GP, is not the Court’s function. It is solely to determine the issues according to law, in the light of all the evidence of all witnesses, and according to proper process. The law in this regard applies equally to both sides, and the Court will decide the issues, assuming that they are further clarified and refined, according to proper practice, procedure and principle.
“I note that [the Applicant] remains concerned about strict adherence of his employer to principles, rules, and guidelines for the workplace. It appears he has ongoing concerns about perceived irregularities or inequitable responses to his situation, and these tend to become an inordinate focus of attention for him – he loses sight of the forest for the trees, as it were. This mindset is influenced by stressors such as preparing for his court proceedings. In my opinion these reactions arise as part of his personality style and can be exacerbated when he is stressed. There is an obsessional quality to his concerns and it is likely this will continue to be a factor for his workplace behaviour. It is likely that these are enduring personality characteristics for Mr Cockburn and it is unlikely they will significantly change in the future.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated:       11 August 2022
ANNEXURE A– AIDE MEMOIR SENT TO PARTIES FEBURARY 2022
Note to:          Dr Cockburn, Counsel & practitioners
Date:              16^th February 2022
Re:Ongoing procedural matters & lack of compliance with Orders in the matter of Cockburn v Canberra Institute of Technology (CAG 58/2015)

Again because of the ongoing default in compliance with Orders regarding filing of material, the matter will be listed for directions on 4^th March 2022 at 3pm. Counsel are requested to appear on this occasion.
Procedural Overview
Over the course of this matter, since the filing of the original Application on 31^st July 2015, based largely and primarily on the Orders made, with very occasional reference to the volumes of correspondence, there have been:
(a)Up until and including December 2021, 15 extensions of time granted to the Applicant. In January-February 2022, based upon 11 emails noted below, there has been one further extension of time permitted;
(b)Formal warnings to the Applicant for non-compliance with Orders dated 6^th June 2016, 1^st August 2016 and 29^th June 2017. On 14^th January 2021, the Applicant consented to a notation to the Orders of that date that confirmed that there were to be no further extensions of time granted to him;
(c)The Respondent has twice sought further and better particulars (12^th May 2016 and 6^th June 2016). On the first occasion the request arose out of the Applicant providing 500 documents, which totalled over 3000 pages;
(d)Strike out or summary dismissal Applications were filed by the Respondent on 6^th June 2016, 24^th October 2016, 19^th June 2017, and 15^th August 2017;
(e)Three listings for final hearing, on 19^th April 2017 (for the final hearing scheduled for November 2017); 25^th March 2021 (for the final hearing scheduled for August 2021); and 15^th December 2021 (for the final hearing scheduled for July 2022);
(f)The Respondent’s witnesses filed trial Affidavits in November 2017. Those Affidavits may no longer be appropriate, assuming that those witnesses are still available. Ongoing prejudice to the Respondent, as noted in AON v ANU, may be a further consideration.

The following comments have three goals: (a) to provide important context, there is another, somewhat abbreviated, chronology of the litigation, (b) to give notice of the Court preparing its own motion, which will have a number of parts, to deal with the ongoing delays in the conduct of the litigation, which everyone will recall commenced on 31^st July 2015, and (c) to respond to some of the comments provided mainly by Mr Cockburn in his most recent correspondence.
Abbreviated Recent Chronology
1.14^th January 2021: Orders were made in Chambers, by consent, amending a timetable for the filing of material. Those Orders contained a notation, to which the Applicant consented, confirming that no further extensions of time for filing would be granted.
2.4^th February 2021: Orders made for a further amended timetable for filing by consent.
3.12^th March 2021: Court reserved on issues of Notice to Admit Facts & appointment of litigation guardian.
4.25^th March 2021: Orders made – Court struck out the Notice to Admit Facts (Respondent’s costs reserved); reserved the right to appoint a litigation guardian; Final Hearing fixed again for 4 days commencing on 3^rd August 2021; Statement of Agreed Facts from 17^th October 2017 confirmed as appropriate; timetable to file agreed list of issues etc (this Order had been earlier made on 2^nd November 2020); the Applicant was not permitted to file anything with the Court for the remainder of the litigation unless and until his Counsel had confirmed and notified the Court that he had settled the document; and only the Applicant’s Counsel was to correspond with the Court. Not for the first time, there was a notation to the effect that failure to comply with the Court’s Orders could lead to the matter being re-listed, and Orders made for costs and or to dismiss the proceeding.
5.16^th April 2021: Katzmann J dismissed the Applicant’s appeal regarding the non-publication Order sought.
6.18^th June 2021: Due to unknown timing of a different appeal, final hearing dates again vacated.
7.30^th July 2021: Bromwich J dismissed Applicant’s further appeal (extension of time and leave to appeal), by consent. Nobody notified this Court of the outcome of this appeal.
8.15^th December 2021: Final hearing dates fixed again for 4 days commencing on 26^th July 2022; Applicant gives notice of intention to file Application regarding (a) recusal, (b) transfer to Federal Court, (c) non-publication Order; timetable fixed for filing regarding these Applications and hearing of them on 28^th March 2022. Filing deadline was fixed for these Applications by 4^th February 2022. Page limits on documents were also part of these Orders.
9.On 2^nd February 2022, by correspondence to Chambers, the Applicant sought an extension of time for the filing of documents and to change the page limits previously Ordered. On this date (2^nd February 2022) the Court granted the Applicant an extension of one week for filing his documents, until 11^th February 2022. As of the date of this note, nothing has been filed. The ongoing delay in filing prejudices the Respondent and the Court by not knowing the matters that are to be addressed.
10.Between 27^th January 2022 and 9^th February 2022, there have been approximately 11 emails sent, primarily from the Applicant and the Respondent, into which the Court has been copied. The Court has responded on only a few occasions. The reason for the emails is the Applicant’s wish to have the filing timetable extended and the page limit on documents either waived or increased. A letter and medical certificate was provided by the Applicant’s GP who affirms the Applicant’s ongoing stress and related issues that date back to 2009.
11.As recorded earlier, as of the date of this Note, the Applicant has filed nothing in compliance with the Orders of 15^th December 2021, or in accordance with the extension granted on 2^nd February to file by 11^th February 2021.
Foreshadowed motions
12.More detailed information will be provided at the directions hearing on 4^th March 2022. The following simply flags some issues to be addressed.
13.Part 10.6 of this Court’s Rules relate to default generally and failure to comply with Orders in particular. The same part also sets out the range of possible remedies available to the Court, including dismissing the proceedings in part or in full. On 4^th March 2022, the Court will likely rely upon the chronologies and history set out in this note, regarding the regular and ongoing default in compliance with Orders, which are otherwise well-known to the parties.
14.Sections 190 – 192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) detail, among other things, the centrality of ensuring that civil practice is conducted according to law, and as quickly, inexpensively and efficiently as possible. Those same provisions formally authorise the Court (as do the Rules of Court) to place limits on things like the number of witnesses and the length of documents. There are Practice Directions of the Court that seek to ensure that litigants are aware of these and similar responsibilities.
15.It has been noted on multiple occasions the importance of the High Court decision in AON v ANU (and related cases) regarding the proper and efficient use of the public resources of the Court, and that delay in one matter affects other litigants who are waiting for their day in Court. In some cases, delay can amount to an abuse of process. Regarding abuse of process considerations, in Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256, the High Court noted (at [9]) that “.. the counterpoint of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.”
16.It has also been the subject of Application and decision on earlier occasions regarding the appointment of a litigation guardian. In particular, see the Orders dated 25^th March 2021. Given the history of the matter, the history of non-compliance, and notably the Applicant’s most recent medical evidence provided to the Court in January 2022 from his general practitioner, the appointment of a litigation guardian will be conducted on a “show cause” basis – namely, why such a person should not be appointed.
17.As already recorded, matters relating to these issues will be formalised at the directions hearing on 4^th March 2022 with a view to them being considered at the hearing on 28^th March. On 4^th March, a very short timetable will be finalised in consultation with Counsel for the preparation of very brief submissions on the issues raised by the Court. The emphasis on brevity of submissions is primarily because the matter has been on foot for so long, the issues relating to fact are largely matters of record by reference to (a) the Orders of the Court since 2015, and (b) the decisions of this Court and of the Federal Court of Australia.
Correspondence

Without addressing every matter raised, primarily by the Applicant, in the recent round of correspondence, the following may be noted.
(a)Apart from sharing a range of many historical matters, which the Applicant has shared many times over the years (e.g. matters relating to his son from 2010 and more recently, victims of crime etc.), it is not immediately clear from the volume of material and comments what the Applicant was precisely asking of the Court. Although it has been noted a number of times in the past, it remains important again to highlight that this matter has been on foot since 2015. There is no other matter in HH’s docket, in either general federal law or family law, which (a) has been on foot for as long as this matter, (b) has had as many final hearing listings which did not proceed, or (c) has had as many extensions of time for filing on multiple occasions.

(b)It is not otherwise appropriate for the Court to comment on any of the myriad range of matters raised, be they personal, family, or irregularly procedural. If every litigant in the hundreds of matters in HH’s docket sent the volume and frequency of correspondence that regularly is sent in this matter, HH’s docket would quickly grind to a complete standstill. The Court can only properly and fairly deal with the legal issues that are formally put before it in as timely a way as possible. Those legal issues must remain the primary focus of the Court. Further, it is unfair to all other litigants if concessions are regularly granted to one litigant and not to all, plus the ongoing consumption of scarce public resources.

(c)The Court is only ever concerned in this matter, as with all litigants (whatever their personal circumstances, which invariably involve different degrees of difficulty and stress of one kind or another), about the most just, efficient, timely and cost effective resolution/determination of the legal issues that are properly before the Court. As already noted, every litigant has her or his own issues to deal with that arise from the litigation, as well as whatever the personal circumstances in which that person or litigant finds themselves. The Court endeavours to grant such indulgence as is appropriate. The matter almost speaks for itself that is has been running for just on 7 years. Over that time, there have been many indulgences granted. Of course the Court has no control over the personal circumstances at all of any litigant, and each litigant must do as best as she or he can. In relation to the efficient and proper conduct of litigation, the Court is and must be always guided by the High Court’s comments in AON v ANU (2009) 239 CLR 175, which has been noted a number of times on previous occasions in the course of the litigation.

(d)The Court simply notes that the Orders of 25^th March 2021 reserved the Court’s decision/right to re-consider the appointment of a litigation guardian. It did so because (i) of the peripatetic nature and conduct of the litigation and (ii) of the history of personal and other matters that seem so regularly to cause significant impediment to compliance with any timetable on a regular basis.

(e)By way of example of other litigants with significant difficulties, one current litigant had recently been released from prison and called the Court for a directions hearing from a rehabilitation centre. She has ongoing mental health, drug and alcohol issues, which she has had for many years. As noted earlier, every litigant has personal and family issues of one kind or another. They deal with them as best they can. It is a common occurrence of life; not an exceptional one.

(f)Again to state the obvious; it would be a travesty and a tragedy for everyone, not to mention the further, prodigious consumption of resources, and impact upon other litigants, if the final hearing dates in July 2022 were [again] placed in jeopardy. A matter that has been running, off and on, since 2015, cannot be permitted to continue indefinitely and unchecked. It must come to an end by one means or another. The ongoing nature and features of this litigation are the complete antithesis of what was plainly prescribed, and cautioned against, by the High Court in AON v ANU.

ANNEXURE B – LIST OF ABBREVIATIONS USED ABOVE IN THE APPLICANT’S CASE OUTLINE
List of Abbreviations used above in the Applicant's Case Outline above.
In the following, "breach" means breach or contravention of, or non-compliance with, a workplace law, instrument or determination etc. provision, or a decision or representation inconsistent with a provision, to the Applicant's detriment, or otherwise relevantly, and for laws, instruments etc in the list below, the abbreviations also act as an abbreviation for the law, instrument etc.:

131.11 = there was a breach of the document referred to in cl 131.11 of the CIT Teachers' Collective Agreement 2006-2009.
A6N = Applicant's 6 November 2017 Affidavit.
AA = there was adverse action as defined by s342(1) Item 1 taken by the Respondent against the Applicant for a prohibited reason in contravention of s340(1) of the Fair Work Act 2009, and there may also have been contraventions of s346, s362, s550 and s557A of the Fair Work Act 2009.
AW = there was a breach of the CIT (or ACT Technical and Further Education) Teachers' Award 1999, effective from 8 July 1999 till 6 June 2016, and a breach of s45 of the Fair Work Act 2009.
BAR = there was a breach of Barristers rules.
BC = there was a breach of the Applicant's contract of employment with the Respondent.
BRFW = there was a breach by the Respondent of the enterprise bargaining provisions of the Fair Work Act 2009 against the Applicant, including s228(1).
CA = there was a breach of the CIT Teachers' Collective Agreement 2006-2009, effective from 24 November 2006 till 12 November 2009, and a breach of the predecessor of s50 of the Fair Work Act 2009 in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 16 Item 2(2).
CA0306 = there was improper application to the Applicant of cl 124.6 of the CIT Teachers' Certified Agreement 2003-2006, effective from 20 August 2004 till 23 November 2006.
CASLWCs = there was a breach of the CAS local working conditions Ms Tomaras gave the Applicant a paper version of in April 2009 and sent Ms Cover an email version of on 5 June 2009 (E108).
CC = there was an offence to the Applicant's detriment under the ACT Criminal Code 2002, especially within Chapter 3 (Parts 3.3, 3.4 and 3.7) and 7 (Parts 7.2 and 7.3).
CR = there was an offence under the ACT Crimes Act 1900, especially s60.
CITA = there was a breach of the Canberra Institute of Technology Act 1987, s16.
CITPOL = there was a breach of a CIT Agency Policy.
COER = was their coercion against the Applicant in contravention of s343 of the Fair Work Act 2009, and, if so, were there also contraventions of s355, s362, s550 and s557A of the Fair Work Act 2009.
CORP = there was a breach of the Commonwealth Corporations Act 2001, esp. ss 180-182 and 184.
DISA = there was a breach of the ACT Discrimination Act 1991.
DISC-P = there was a breach of the ACT Discrimination Act 1991, or of s351 of the Fair Work Act 2009, based on the Applicant's parental role.
DISC-U = there was a breach of the ACT Discrimination Act 1991, or of s351 of the Fair Work Act 2009, based on the fact that the Applicant was not a member of an industrial union.
DISM = was the applicant dismissed by the Respondent in contravention of ss 385-386 or s342(1) Item 1(a) of the Fair Work Act 2009.
DOCTI = there was dishonesty including fraud and Affidavit perjury, or conspiracy to injure, against the Applicant, at equitable, tort, civil law or criminal level.
E1, E2 etc. = Exhibits numbered E1, E2 etc in the Applicant's 18 April 2016 Affidavit
EA0911 = there was a breach of the CIT Teachers' Enterprise Agreement 2009-2011, effective from 13 November 2009 till 3 April 2012, or a denial of its provisions.
EA1113 = there was a breach of the CIT Teachers' Enterprise Agreement 2011-2013, effective from 3 April 2012 till 19 October 2014, or till July 2013 for the Applicant, or a denial of its provisions.
EC = there was a breach of the Applicant's employment contract ending on 30 September 2009, by virtue of any breaches of the CA,AW, PSMA and PSMS;
FOA = there was a breach by the Respondent of freedom of association and industrial activity provisions of the Fair Work Act 2009, including ss 346-348 in view of definition (b) of industrial association in the Dictionary.
FTA = there was a breach of the ACT Fair Trading Act 1992, s16.
FW = there was a breach of the Fair Work Act 2009.
IIED = there was action by the Respondent against the Applicant amounting to the tort of intentional infliction of emotional distress or mental health harm.
MLG = there was a breach of model litigation requirements, according to common law.
MPO = there was action by the Respondent to the Applicant's detriment amounting to the tort of misfeasance of public office.
MR = there was misrepresentation about the Applicant's rights or their exercise in contravention of s345 of the Fair Work Act 2009, and, if so, were there also contraventions of s362, s550 and s557A of the Fair Work Act 2009.
OHSA = there was a breach of the ACT Occupational Health and Safety Act 1989.
PIDA = there was a breach of the Public Interest Disclosure Act 1994.
PSMA = there was a breach of the ACT Public Sector Management Act 1994.
PSMS = there was a breach of the ACT Public Sector Management Standards 2006.
S67C70 = there was a breach of cl 70 of the CIT Teachers' Collective Agreement 2006-2009, in the form of a lack of support required by cl 67 and a lack of recognition, commendation or support required under cl70.
S9Q = the Applicant complied with obligations under s9(q) of the ACT Public Sector Management Act 1994.
SOL = there was a breach of Solicitors rules.
UGF = there was an obligation of the Respondent to respond with utmost good faith, akin to the uberrimae fidei principle, and did the Respondent fulfil this obligation or not.
ULR = there was unlawful reprisal, as defined in the ACT Public Interest Disclosure Act 1994, esp. ss 3 and 25.
WD98 = there was a breach of the 22 December 1998 workplace determination Q9597 by Commissioner Larkin of the Australian Industrial Relations Commission (AIRC), and a breach of s280 of the Fair Work Act 2009.
WD16 = the 6 December 2016 decision by Fair Work Commission (FWC) President His Honour Justice Ross for the matter of Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2016] FWC 8759 (U2016/8466), esp. paras 3 and 8.
WD17 = the 8 December 2017 FWC Full Bench decision in the matter of Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, esp. para 75.
ANNEXURE C – LETTER FROM DR WESSELL
31 Jan 2022
TO WHOM IT MAY CONCERN
FEDER AL CIRCUIT AND FAMILY COURT
RE: Dr Mark Cockburn DOB: 27/12/66
Mark Cockburn has been seeing me for care for 18 years. He has been suffering an adjustment disorder since the incidents at CIT and the subsequent legal procedures for about 13 years. His cognitive ability remains high. I understand that he is required to submit an application, submissions and an affidavit by 4th Feb 2022. Since this requires the condensation of an enormous amount of very complex material into a concise form, it represents a lot of work. Dr Cockburn is a teacher and his work demands his full attention especially in this first week of school with special needs classes. There are also continuing family circumstances which demand his time and attention and limit his progress on this matter. In addition the prolonged strain of attending to this material adds to its traumatising effect. It is important that Dr Cockburn avoid the burn-out which would very likely occur if this deadline were not extended.
He is unable to devote as much time to the preparation of his material as is required by the current deadline. I believe he would need an extra 10 to 14 days, working with his barrister, to complete his submissions. This would give him 2 weekends to allow time to finalise his submissions without affecting the 28th March 2022 hearing date. I am confident that with a little extra time he can complete the required tasks to an acceptable standard. I recommend a new deadline between 14th and 18th Feb 2022.
Thank you for your assistance.

ANNEXURE D – CERTIFICATE FROM DR WESSELL
1 August 2022
TO WHOM IT MAY CONCERN
In my opinion Mark Cockburn was unfit to continue participation in the court hearing from 28/07/2022 to 29/07/2022 due to exhaustion.
He had weathered an intense grilling over the issues in his legal case following several weeks of work finalising his response to numerous objections from CIT over documents for the case. These objections were presented just weeks before the hearing, necessitating long hours of work up to and into the first 2 days of the hearing.
He would benefit from a couple of weeks mental rest and recuperation but I believe he is well able to continue the hearing to its conclusion when the court resumes. He is well prepared to cross-examine the CIT witnesses with his barrister as he has ample documentation. I feel appointment of a litigation guardian would occasion a significant extra workload and would constitute a re-traumatisation. This would be detrimental to his health.
Thank you for your assistance.
Dr Helen Wessell

File number(s):	CAG 58 of 2015
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	4 August 2022
Catchwords:	PRACTICE & PROCEDURE – Whether to adjourn the Final Hearing following the self-represented Applicant seeking to vacate the trial on the third morning due to his own mental health concerns – whether to provide a fourth set of final hearing dates – prejudice to the Respondent – reliance on late-filed material and non-compliance with Court Orders – ongoing and history of non-compliance with Court Orders and directions over 7 years indicating that the Applicant does not understand or appreciate the litigation process – appointment of litigation guardian made together with Orders in default of compliance – further hearing dates allocated to conclude part-heard final hearing.
Legislation:	Fair Work Act 2009 ss. 544, 570(2) Federal Circuit and Family Court of Australia Act 2021 ss. 190 – 192 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Part 10.6, Rule 11.07, 11.09, 11.10, 11.12, 11.13.
Cases cited:	Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Drummond v Canberra Institute of Technology [2019] FCCA 2612 Drummond v Canberra Institute of Technology [2020] FCAFC 131 Drummond v Canberra Institute of Technology [2021] FCA 376 Drummond v Canberra Institute of Technology [2021] FCCA 556 (No 2) Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 John v Rees [1970] Ch 345 L v Human Rights and Equal Opportunity Commission (2007) 233 ALR 432 Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592
Division:	Division 2 General Federal Law
Number of paragraphs:	98
Date of hearing:	26 – 28 July 2022
Place:	Canberra
Solicitor for the Applicant	Self-represented
Counsel for the Applicant	Mr A Duc (direct brief)
Solicitor for the Respondent	ACT Government Solicitor
Counsel for the Applicant	Ms A Costin

CAG 58 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MARK LEA COCKBURN Applicant
AND:	CANBERRA INSTITUE OF TECHNOLOGY Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	4 AUGUST 2022