Dean v Gruma Oceania Pty Ltd (Ruling)

[2025] VCC 1609

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-03151

ZVONKO DEAN	Plaintiff
v
GRUMA OCEANIA PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2025
DATE OF RULING:	24 October 2025
CASE MAY BE CITED AS:	Dean v Gruma Oceania Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1609

EX TEMPORE
RULING
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Subject:Defendant’s application on summons to dismiss the proceeding   

Catchwords:              Practice and procedure – application on summons to dismiss the proceeding – proceeding has not progressed since the plaintiff’s former solicitors ceased to act in 2022 –– plaintiff’s failure to inform the defendant and the Court as to whether he intends to give evidence and participate at trial – numerous vacated trial dates – obligations under the Civil Procedure Act – where defendant would incur future costs in preparing for and attending trial in circumstances where plaintiff unwilling to participate – interests of justice

Legislation Cited:      Civil Procedure Act 2010 (Vic)

Cases Cited:

Ruling:  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr Glenn Worth	IDP Lawyers

HER HONOUR:

1This is an application by the defendant on summons to dismiss the plaintiff's proceeding in circumstances that have been set out in the affidavits dated 2 October and  23 October 2025, of Sophie Catherine Doyle, solicitor for the defendant. 

2At the directions hearing on 20 August 2025, after some discussion, the plaintiff said, at transcript 35:   "I just want to go ahead with whatever it is in November.  I will come, but I will not defend myself at all.  I'm just going to come.  I want to see what's going to happen, how I'm going to be judged, just for - just for - I want to come, just for the record, I won't defend myself, I won't prepare any papers or something." 

3After making that remark I informed the plaintiff that it was his case to bring and that if he attended, but put on no evidence, there would be no claim for me to decide, and in those circumstances his claim would be bound to fail.

4The plaintiff said that he understood completely, and then went on to reiterate the concern that he had expressed at, I think, at least seven previous directions hearings relating to his former solicitors going off the record.

5The plaintiff has been exhaustively advised and informed that the issue or issues with his former solicitors have no part to play in the hearing, trial and determination of this proceeding. Nevertheless, that appears to remain a fixation. 

6As a result of the plaintiff's statements at that previous directions hearing, counsel for the defendant, Mr Worth, indicated the defendant’s concern that it would prepare for trial, incurring costs, and that it would attend at trial in circumstances where there was no case to meet because the plaintiff did not participate. 

7As a result of Mr Worth's concern I made an order that the plaintiff was to inform the Court and the defendant by 17 September 2025 whether he intended to give evidence at trial and participate in the hearing. 

8There was no correspondence from the plaintiff by that date.  The Court followed up on 19 September 2025 asking the plaintiff to inform it and the defendant whether he intended to participate in the trial.  There was no correspondence from the plaintiff, and indeed there has been no contact from the plaintiff to the Court, or as I understand it, the defendant, since the previous directions hearing.

9In those circumstances the defendant brought this application which has come for hearing today.  There is no attendance by the plaintiff today.  The plaintiff was served with the summons and the details of the service of that summons are as set out in the affidavit of Ms Doyle. 

10There was no attendance at the hearing.  A telephone call was made to the last phone number that the Court had for the plaintiff.  That number was disconnected.  An email was sent to the plaintiff informing him that the matter was proceeding, and that if he was not in attendance it would proceed in his absence.  There has been no response to that email.

11I note as well that the defendant had arranged, at its own expense, for the attendance of an interpreter to assist the plaintiff, as it has done on numerous other occasions.

12I will briefly outline the history of this matter.  This is a matter that was issued in 2020.  It came on for trial in October 2021, and unfortunately on that occasion the trial was not reached by the Court.

13A new trial date was listed for 2 February 2022.  That trial date was adjourned at the request of the plaintiff, due to, as I understand it, amended pleadings having been filed by the defendant, and the provision of additional documents that needed some time for the plaintiff to work through. 

14If the plaintiff could be considered to have not been at fault or responsible for the first two adjournments, the same cannot be said for the remaining adjournments of the very many trial dates that have been listed.  The plaintiff's solicitors ceased to act in November 2022, and thereafter the trial was adjourned on at least three further occasions, for various reasons, including to enable the plaintiff to get solicitors.

15As far as can be ascertained from the material before the Court, it is not clear to me that the plaintiff has, in fact, ever made any attempts to engage other legal representation, but has instead ventilated his ongoing concerns about the fact that his former solicitors were granted leave to cease to act.

16At the end of 2023, and throughout the early part of 2024, a question was raised as to Mr Dean's capacity, and a referral was made to VCAT by Judge Tran.  That referral did not result in a guardianship order being made.  The trial, which was then listed for August 2024, was vacated.  In March 2025 the trial was fixed for 10 November 2025.

17I understand that the plaintiff has not filed any updated medical material since 2022.  The plaintiff has not filed any updated particulars of special damages, and has done nothing to indicate that he intends to participate in this trial, prepare his case for trial, put on any evidence, or call any witnesses.

18I have obligations pursuant to the Civil Procedure Act 2010 to facilitate the just, timely, cost effective and efficient disposition of the real issues in dispute.[1]  In achieving the obligations that I have under the Civil Procedure Act I am required to provide assistance to a self-represented litigant to ensure a fair trial and a fair opportunity to have his case heard, but I cannot do so at the expense of fairness to the other party to the litigation, in this case, the defendant.

[1] Civil Procedure Act 2010 (Vic), s 7

19I am satisfied on the material before me that the defendant has conducted itself in a manner that has afforded Mr Dean every opportunity to put his case on, to have his case heard fairly, including as I noted already, by providing an interpreter at its expense for hearings, and being what can only be described as extraordinarily patient with the numerous adjournments and directions hearings that have, for one reason or another, been vacated.

20In all of those circumstances I am not able to have any confidence that, if the matter was to remain listed for trial, Mr Dean would attend.  Even if he were to attend, I have no confidence that Mr Dean would be prepared to give evidence, having regard to his comments to this Court, both on the last occasion and on many previous occasions, where it has been clear that his concern is primarily with his previous solicitors. 

21I note his view, ventilated at the last occasion, that evidence in the way of video and audio recordings has been destroyed, or no longer exists, or has been tampered with in some way.

22I note here that there has been nothing put before the Court to support any such a finding, but this seems to be a concern of his, and indeed he expressed on the last occasion that he would be unable to prove his case because of the absence of the material that he believes, or asserts, once existed.

23In those circumstances I consider that this matter must be regarded as having no prospects of success, because Mr Dean appears to be simply unwilling to participate in the process. 

24It would be extremely unfair to require the defendants to nevertheless incur the enormous expense of preparing for what is currently a 10 day trial, but that if it was to proceed would likely go longer, given that Mr Dean does not have legal representation, and my experience is that matters where a party is unrepresented generally take longer than where a party is represented.  It would be an enormous expense.  It would be an imposition.  It would cause unnecessary stress on the proposed witnesses that the defendant would need to confer with and potentially call, and it cannot be in the interests of justice to require them to do so in the circumstances that I have outlined.

25Accordingly, I grant the defendant's application and will dismiss the proceeding.

26I make this further comment.  I do not consider that it is appropriate or in the interests of justice to simply vacate the trial and list it for a further directions hearing.  There have been numerous vacated trials.  There have been tens of directions hearings, many vacated.  The matter has not advanced and we have now come to this point.  There has to be a limit to what this Court requires of a defendant.  We have reached that limit today. 

27I am not minded to make an order that there is liberty to apply.  Mr Dean is, of course, entitled to make whatever application he sees fit, or to seek to appeal my decision as he sees fit, but my orders are that the proceeding be dismissed.

28I note that the defendant does not seek its costs, so accordingly I will make no order as to costs. I do not disturb any previous costs orders. 

29I make this final further comment, for Mr Dean’s benefit. Had the defendant sought its costs, it would have been something that I would certainly have considered and have thought may well be appropriate in these circumstances.