Covich v Court Services Victoria & Anor (Ruling)
[2025] VCC 1567
•23 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-05482
| SUSAN COVICH | Plaintiff |
| v | |
| COURT SERVICES VICTORIA | First Defendant |
| and STATE OF VICTORIA | Second Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2023 | |
DATE OF RULING: | 23 October 2023 | |
CASE MAY BE CITED AS: | Covich v Court Services Victoria & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1567 | |
RULING
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Subject:Dismissal of proceeding
Catchwords: Practice and procedure – statement of claim not in compliant form – plaintiff afforded many opportunities to amend statement of claim – plaintiff’s noncompliance with orders – where plaintiff is self-represented and unable to retain lawyers – defendants incurring ongoing costs in circumstances where proceeding is not progressing
Legislation Cited: Civil Procedure Act2010 (Vic)
County Court Civil Procedure Rules 2018 (Vic)
Cases Cited:Elisha v Vision Australia Ltd [2024] HCA 50
Ruling: Proceeding is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the Defendant | Mr S Scully | Wisewould Mahony |
HER HONOUR:
1On 23 October 2025 I dismissed the plaintiff’s proceeding. I provided an explanation for that order at the hearing, and informed the parties I would also provide brief written reasons. These are my reasons.
2The plaintiff issued her proceeding on 19 December 2022. It relates to events that occurred between 2014 and 2016, and injuries alleged to have occurred in 2016. The plaintiff initially proceeded only against Court Services Victoria. Shortly after filing the proceeding, the plaintiff’s lawyers filed a notice of ceasing to act.
3The plaintiff says that Court Services Victoria filed a defence without having been served with the writ and statement of claim, and that this denied her the opportunity to have a “much-needed break” from the stress of litigation. Whether or not this occurred, I note that the plaintiff would have been required, under the County Court Civil Procedure Rules 2018 (Vic) to serve the writ by December 2023 in any event.
4In the usual course, once a matter has been served and an appearance filed, the matter will be listed for a directions hearing so that timetabling orders can be made. By filing an appearance and defence, Court Services Victoria triggered that process. However, numerous listed directions hearings were adjourned to enable the plaintiff to obtain legal representation, including on 21 March 2023, 18 September 2023, 18 December 2023 and 4 April 2024. Despite what appears to have been genuine and determined efforts to obtain legal representation, the plaintiff was unable to retain lawyers. The first directions hearing did not take place until May 2024. It is likely that, even if the plaintiff had delayed serving her writ and statement of claim, the first directions hearing would have taken place by May 2024.
5On 20 May 2024 the plaintiff informed the Court that she continued to make enquiries with respect to engaging alternative legal representation.
6The plaintiff was ordered to provide a proposed amended statement of claim by 11 June 2024. In that proposed amended statement of claim, the plaintiff joined the State of Victoria as a second defendant. On 18 June 2024, the first defendant indicated that it did not consent to the proposed amended statement of claim and informed the plaintiff of deficiencies in the pleading, including that it did not separately identify each defendant and the allegations against each defendant.
7A directions hearing was listed on 8 July 2024. However on 5 July 2024 the plaintiff informed the defendant that she was unwell with Covid-19 and the directions hearing was adjourned by consent to 29 July 2024.
8On 29 July 2024, the Court made orders for the plaintiff to provide a proposed amended writ and statement of claim by 28 August 2024. On 30 August 2024 and 5 September 2024, the Court extended the time for the plaintiff to serve the proposed amended writ and statement of claim to 9 September 2024.
9On 10 September 2024, the plaintiff provided a proposed amended writ and statement of claim, dated 9 September 2024. The proposed amended statement of claim included numerous allegations of contraventions of the Fair Work Act 2009 (Cth) (“the Fair Work Act”), the “Public Service Act” (presumably the Public Service Act 1999 (Cth)), and the Victorian Public Service Enterprise Agreement 2016.
10On 9 October 2024, a directions hearing was held before Judge Tran. At that directions hearing, as recorded in the “Other Matters” of the orders made 2 December 2024, Judge Tran directed that it be recorded that the County Court does not have jurisdiction in relation to the pleaded civil remedy provisions of the Fair Work Act and that if the plaintiff sought to maintain those claims, the proceeding would need to be transferred to the Federal Court or the Federal Circuit and Family Court of Australia.
11At a directions hearing, on 12 December 2024, the plaintiff informed the Court that she was considering whether to apply to transfer her case to a court that had jurisdiction to hear her claims in relation to the Fair Work Act , or whether to abandon those claims.
12On 12 December 2024, the Court made timetabling orders, including for trial, and ordered that the plaintiff file and serve any further amended statement of claim by 30 January 2025. A further amended statement of claim would be necessary to, among other things, remove the claims under the Fair Work Act if the plaintiff did not elect to seek transfer of her proceeding to a different jurisdiction. The proceeding was listed for a case management hearing on 2 June 2025.
13The time for the plaintiff to file any further amended statement of claim was extended on 31 January 2025, 10 February 2025, 11 February 2025, 17 February 2025, 28 February 2025 and 21 March 2025. No further amended statement of claim was filed.
14On 15 April 2025, the Court struck out a number of paragraphs of the plaintiff’s amended statement of claim and granted leave to the defendants to file a request for further and better particulars of certain paragraphs of the amended statement of claim, by 22 April 2025. The plaintiff was ordered to file and serve answers to the request for further and better particulars by 13 June 2025. If the plaintiff failed to provide further and better particulars, her amended statement of claim and all other statements of claim would be struck out and the defendants could apply for dismissal of the proceeding.
15The plaintiff was provided with a further opportunity to amend the statement of claim, by providing a proposed further amended statement of claim by 13 June 2025.
16On 22 April 2025, the first defendant sought further and better particulars of the amended statement of claim. The plaintiff did not provide the further and better particulars by 13 June 2025, nor did the plaintiff provide a proposed further amended pleading.
17On 24 June 2025, Judge Tran ordered that the amended statement of claim and all previous versions of the statement of claim be struck out. The plaintiff was afforded yet another opportunity to file an amended pleading. Judge Tran made orders that the plaintiff apply for leave to file and serve an amended statement of claim by 21 July 2025, and provide a draft of the proposed amended statement of claim, which contained full and proper particulars, having regard to the first defendant’s 22 April 2025 request for further and better particulars.
18On 21 July 2025, the plaintiff provided a proposed statement of claim. The proposed statement of claim did not provide the particulars sought by the first defendant.
19The matter was listed on 25 August 2025 to hear the plaintiff’s application for leave to file her amended pleading and the defendant’s application that the proceeding be dismissed pursuant to Order 24 of the County Court Civil Procedure Rules 2018 (Vic).
20At that hearing the plaintiff submitted that the original pleading, prepared by her former lawyer, did not reflect the claim she intended to pursue. She said that the amended pleading – later struck out by Judge Tran following the defendant’s request for further and better particulars – also failed to reflect the claim she wished to make. She said that the particulars sought by the defendant were not relevant to the claim she now sought to bring.
21The proposed statement of claim, provided on 21 July 2025, did not meet the requirements of a proper pleading. It did not plead all the material facts, did not articulate the plaintiff’s claim so that the defendant could plead to it, incorporated extensive irrelevant matters, submissions and opinions, as well as evidence, and pleaded statutory breaches without setting out how the alleged breach could enliven a claim for damages. I refused the plaintiff’s application for leave to file that pleading.
22However, despite the many opportunities already provided to the plaintiff to amend her statement of claim, I considered it was appropriate to provide her with a final further opportunity to provide a pleading that reflected the claim she said she sought to make, that complied with the requirements of a pleading and that provided sufficient particulars. Accordingly, I refused the defendant’s application to dismiss the proceeding and made orders that the plaintiff provide a proposed pleading by 6 October 2025. I listed the matter for further directions, and to hear the plaintiff’s application for leave to file an amended pleading, on 23 October 2025.
23On 7 October 2025 the plaintiff informed the court that she had not been able to serve a proposed pleading by 6 October 2025 but would endeavour to do so by 10 October 2025. No proposed pleading was served. No extension was sought by the plaintiff.
24The proceeding came before me on 23 October 2025. At that hearing the plaintiff informed the court that she had reached the conclusion that the task of drafting a pleading was beyond her. She sought a further opportunity to obtain legal representation. She said she was in a better position to engage lawyers now than she previously had been, because she had a better understanding of the issues in her proceeding. She submitted that the decision of “Elijah”, which I take to be Elisha v Vision Australia Ltd,[1] had changed the law in a way that was favourable to her case, increasing the likelihood that she would obtain lawyers. She said she had been ”researching” options and had a strategy in place which involved retaining a barrister to review the case.
[1] [2024] HCA 50 (“Elisha”)
25The defendant renewed its application to dismiss the proceeding on the basis that the plaintiff had not provided any pleading in accordance with the Court orders, had been afforded numerous extensions of time and indulgences by the Court, and the Court could not be satisfied that there was any reasonable prospect that the plaintiff would retain lawyers or would be able to provide a compliant pleading.
26The Court is required, pursuant to the Civil Procedure Act2010 (Vic), to facilitate the just, timely, efficient and cost effective disposition of the real issues in dispute.
27In addition, the Court is required to ensure that a self-represented litigant has a fair hearing. The content of the obligation will vary depending on the particular capabilities of the litigant. The Court must ensure that a self-represented litigant has a reasonable opportunity to present their case and, if necessary, be informed of what issues need to be addressed. This Court, and particularly Judge Tran, provided the plaintiff numerous opportunities to present her case in her pleading, and explained the issues to her that needed to be addressed. The Court has allowed considerable time for the plaintiff to obtain lawyers.
28Although the plaintiff submits that she is now in a better position to obtain legal representation, I am not persuaded that is the case.
29It is unlikely that the plaintiff’s own understanding of the issues in her case has been the hindrance to her ability to obtain a lawyer. Lawyers are required and trained to assess the issues in a case and would not generally rely on the client’s own understanding of, or views about, those issues. The plaintiff’s ability to explain those issues to a prospective lawyer is unlikely to be relevant. I am not satisfied that her apparent greater understanding of those issues puts her in any better position in relation to obtaining a lawyer.
30I am also not persuaded that Elisha materially affects her position in relation to the likelihood or otherwise of her capacity to obtain a lawyer, noting that the High Court decision was handed down nearly twelve months ago and that she has not obtained legal representation in that time.
31The plaintiff has been afforded numerous opportunities to put her case before the Court. Nearly three years after she commenced proceedings, there is no pleading and no realistic prospect that a pleading will be filed. The Civil Procedure Act2010 (Vic) provides broad powers to the court to deal with a proceeding where there has been a contravention of orders pursuant to section 51. I am satisfied that there has been a contravention of orders, and that it is not in the interests of justice to afford further time to the plaintiff to comply with those orders or to obtain legal representation.
32Accordingly, I dismiss the plaintiff’s proceeding.
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