Dirckze v Holmesglen Institute
[2017] VSC 18
•31 JANUARY 2017 (ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03995
| GRAHAM DIRCKZE | Appellant |
| v | |
| HOLMESGLEN INSTITUTE | Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 31 JANUARY 2017 |
DATE OF JUDGMENT: | 31 JANUARY 2017 (ex tempore) |
CASE MAY BE CITED AS: | Dirckze v Holmesglen Institute |
MEDIUM NEUTRAL CITATION: | [2017] VSC 18 |
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PRACTICE AND PROCEDURE – Appeal from Associate Justice dismissed after Appellant failed to appear on the hearing date – Application to reinstate appeal – Application for adjournment by email – Applicant/Appellant refused to appear to apply for adjournment prior to hearing date of application for reinstatement – No appearance by Applicant/Appellant on the hearing of the reinstatement application – Duty of the Court to self-represented litigants – Communications with the Court with respect to controversial matters by email – Application to reinstate dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | No appearance | — |
| For the Respondent | Mr A D Clements QC with Ms R V Howe | Minter Ellison |
HIS HONOUR:
By notice of appeal filed 5 August 2016, the appellant appeals against a decision of Derham AsJ made on 15 July 2016 pursuant to s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015.
Background
Between 25 January 2013 and 29 May 2014, the appellant was enrolled for a Diploma of Nursing course at the Moorabbin campus of the respondent. On the latter date, he was expelled from the course; and the expulsion was confirmed by the Student Disciplinary Appeals Tribunal on 30 July 2014.
On 22 October 2014, the appellant filed an application in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) alleging that he had been discriminated against by the respondent in respect of education and the provision of services based on his age, employment activity, industrial activity, physical features, race, sex and presumed disability. On 9 January 2015, he filed particulars of his claims and on 20 April 2015, he filed further claims.
The hearing proceeded before the Tribunal on 18 and 19 May 2015. On 10 July 2015, the Tribunal Member found that one of the allegations of discrimination on the basis of race was proven; and the Tribunal ordered the respondent to pay the appellant the sum of $3,000 within 30 days. The Tribunal found the other allegations of contraventions of the Equal Opportunity Act 2010 were not proven and dismissed the claims.
By originating motion filed 3 August 2015, the appellant sought leave to appeal from the Tribunal decision on a question of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. The appellant’s affidavit in support sworn 29 July 2015 exhibited a draft notice of appeal.
On 20 August 2015, the matter came on for a directions hearing before Derham AsJ. The appellant was self-represented and the respondent was represented by its solicitor. His Honour made procedural orders and fixed the hearing of the application for leave to appeal for 25 November 2015. During the directions hearing, the appellant asked whether it was possible to request a pro bono lawyer. His Honour stated that the Court did not have a pro bono service and added: ‘We rely upon assistance provided by the Victorian Bar and the Law Institute of Victoria. I will make some enquiries for you, but you should make your own enquiries of the Law Institute and the Victorian Bar’.
On 25 November 2015, the application for leave to appeal was heard before Derham AsJ. Mr Gronow of counsel appeared on behalf of the appellant as part of the duty barrister scheme. At the commencement of the hearing, Mr Gronow explained:
I’m in a slightly difficult and ambiguous position. I don’t think I can properly put the currently proposed grounds of appeal or make the submissions that have been filed. However, the plaintiff who is here in person has instructed me to that he wishes to proceed with all of them.
The issue was resolved without objection by counsel for the respondent, on the basis that Mr Gronow made submissions with respect to issues raised by a draft notice of appeal drawn by him and the appellant relied upon his written submissions with respect to the matters that Mr Gronow did not argue.
On 14 July 2016, Derham AsJ proposed to hand down judgment in the matter but, on notifying the parties, the appellant sent an email to the Court requesting an adjournment by reason of him having to attend a funeral on 14 July 2016. Derham AsJ adjourned the date for delivering judgment to the following day.
On 15 July 2016, Derham AsJ dismissed the application for leave to appeal and made orders for costs. The appellant did not attend on that day.
On 5 August 2016, the appellant filed the notice of appeal against the decision of Derham AsJ. The grounds may be summarised as follows.
(a) Actual bias and/or apprehended bias of Derham AsJ.
(b) Errors ‘in siding with the Tribunal’ with respect to the use by Tribunal of a report of Ms Gec.
(c) Failing to take into account the appellant’s request to the Tribunal to cross-examine Ms Faraone.
(d) Failing to find the Tribunal transcript had been tampered with.
(e) An allegation that there was perjury by the respondent’s witnesses.
On 9 August 2016, Daly AsJ fixed the hearing of the appeal for 16 November 2016. On 4 November 2016, the appellant telephoned the respondent’s solicitors and requested an adjournment of the hearing date fixed for 16 November 2016 on the basis that he had laboratory assessments on that day. The respondent’s solicitors did not consent to the adjournment of the hearing. However, a short time prior to 16 November 2016, the parties were advised that there was no judge available to hear the appeal on that day, and accordingly it was adjourned for hearing before me on 7 December 2016.
Shortly prior to 10:00 am on 7 December 2016, my Associate was telephoned by a person who said that she was the appellant’s sister and that the appellant would not be attending court today as the result of an illness, which she did not specify. In response to a request whether anybody would be attending on the appellant’s behalf, she said that she did not believe so but that she was not sure.
When the matter was called on at 10:30 am on 7 December 2016, there was no appearance by or on behalf of the appellant and accordingly I stood the matter down until 11:00 am to ensure that anybody who was proposing to attend would have an opportunity to attend on behalf of the appellant; and to allow the respondent’s counsel to have the opportunity of getting instructions.
On resumption at 11:00 am, there was still no appearance on behalf of the appellant and the respondent sought that the application be dismissed. Counsel for the respondent communicated that he had no objection to the Court reserving liberty to apply on terms which I had earlier proposed. Accordingly, I made the following orders:
1. The appeal be dismissed.
2. The Appellant pay the Respondent’s costs of the appeal.
3.The Appellant is granted liberty to apply for the reinstatement of this appeal by filing and serving, by 4:00 pm on Friday 9 December 2016, an affidavit in support of the application for reinstatement together with a detailed medical report setting out the Appellant's medical condition that prevented him from:
(a) appearing at the hearing; and
(b) giving earlier notice of his inability to attend.
4.If the Appellant does apply for reinstatement of the appeal pursuant to Order 3, the Respondent file and serve any response to the material by 4:00 pm on Tuesday 13 December 2016.
On the same day, my Associate sent an email, attaching a copy of the order made to a Gmail account, which had been used by the Court for the purpose of communicating the date of the hearing to the appellant.
At about 5:05 pm on Friday 16 December 2016 (9 days after the orders), my Associate received a telephone call from the appellant, the contents of which were recorded in the following email sent by my Associate to the parties on 19 December 2016:
Dear Parties and Practitioners
Please note that at about 5.05 pm on Friday 16 December 2016 I received a telephone call from Mr Dirckze who inquired what had been the outcome of the hearing on 7 December 2016. He said he had not received the orders sent on the day. I said the orders had been sent to [a Gmail account]; and Mr Dirckze said that his email was [a Hotmail account].
Our chambers emailed a copy of the orders to [the Hotmail account] and have received the following two emails (attached) from Mr Dirckze.
In future, please ensure that all correspondence with Associates is sent simultaneously to all other parties.[1]
[1]This email and all later emails referred to in these reasons were distributed to the Court and both parties.
The two attached emails from the appellant read as follows:
1) Regards to our phone conversation, as you are aware I am only now aware of the Judge’s orders, as it was sent to a wrong e-mail.
Please let me know how to proceed with my appeal.
2) Following our telephone conversation this morning regards to the e-mail error. This is to inform the Honourable judge that on the 7th December I attended the Springvale medical centre as I was unwell. My doctor also referred me for a chest X-ray which was done the next day – I am currently also suffering from a range of medical conditions: Diabetics, High blood pressure, Cholesterol, Thyroid dysfunction to which I am taking medication.
I have a medical certificate for the day on the 7th and also of my x-ray. I am happy to provide and state all these in an affidavit if it pleases the Court.
I also wish to inform his honour that the Springvale medical centre is currently closed until the 9th of January 2017.
By email on 20 December 2016, the respondent’s solicitors stated as follows:
We refer to the emails sent by Mr Dirckze, which you provided to us yesterday.
In the circumstances, our client does not oppose extending the time in Order 3 of the judgment of 7 December 2016 from 4.00 pm on 9 December 2016 to 4.00 pm on 23 January 2017.
Should the time in Order 3 be extended in this way, our client requests that the time in Order 4 of the judgment be extended from 4.00 pm on 13 December 2016 to 4.00 pm on 25 January 2017.
On 22 December 2016, I ordered as follows:
1.The time in Order 3 of the orders of the Honourable Justice Riordan made 7 December 2016 be extended from 4:00 pm on 9 December 2016 to 4:00 pm on 23 January 2017.
2.The time in Order 4 of the orders of the Honourable Justice Riordan made 7 December 2016 be extended from 4:00 pm on 13 December 2016 to 4:00 pm on 25 January 2017.
On 20 January 2017, the appellant filed an affidavit in support of his application to reinstate which exhibited a medical report by Dr Thomas Verghese which stated as follows:
Mr Graham Dirckze was seen on the 7/12/16 for a medical condition. He was unwell at the time and was sent for further investigations. He suffers from diabetes, HT, cholesterol & hypothyroidism.
I was informed by Registry that, at the time of the filing of the affidavit, the appellant requested a date as soon as possible and the matter was listed for Tuesday 31 January 2017; and that he did not raise any concern about the application being listed on that date.
By email dated Monday 23 January 2017, the respondent’s solicitors opposed the reinstatement of the appeal stating as follows:
We refer to the above matter and the Orders made by his Honour on 7 and 22 December 2016. We also refer to the affidavit filed and served by the Appellant, Mr Dirckze, by email on 20 January 2017, which attached a medical certificate, an attendance certificate and a medical report.
The medical report required by the Court’s Orders was to be detailed in setting out the medical condition that is said to have prevented Mr Dirckze appearing for the appeal on 7 December 2016, as well as preventing him from giving earlier notice of his inability to attend.
The medical report provided by Mr Dirckze is not the detailed report required by the Court. It does not set out the medical condition said to have prevented Mr Dirckze attending, nor does it explain the failure to provide earlier notice of his inability to attend.
Accordingly, the Respondent, Holmesglen Institute, opposes the reinstatement of the appeal.
In my opinion, the respondent’s contention that the medical report did not comply with the order of 7 December 2016 had merit. The report did not constitute a detailed medical report setting out the appellant’s medical condition that prevented him from:
(a) appearing at the hearing; and
(b) giving earlier notice of his inability to attend.
In his affidavit, the appellant explained this deficiency as follows:
I requested my medical practitioner to provide me with a more detailed medical report, but he was more concerned about my state of health and privacy and only wanted to use the term unwell because of patient confidentiality. I stressed that I needed it for court purposes.
By email sent at 12:03 pm on 24 January 2017, my Associate stated that:
In light of the opposition to the reinstatement by the respondent, his Honour proposes to seek to make arrangements for Dr T Verghese to be available to give evidence by telephone link at 11:00 am on [31 January 2017]. The making of such arrangements would not affect the parties’ rights to call or subpoena Dr T Verghese.
At 1:15 pm on 24 January 2017, the appellant replied to the email stating:
I would like to know if the Hearing date of my case can be changed to a later date so that there is sufficient time to make arrangements with my doctor and also for a barrister that would be available for on the day, as also due to the long weekend ahead.
By email on 25 January 2017, the respondent’s solicitors advised that their client’s preference was for the matter to proceed on 31 January 2017.
By email at 12:58 pm on 25 January 2017, my Associate stated as follows:
The Court will not accept a request to change the date of a hearing by email. If necessary, the Court will hear an application on Friday 27 January 2017 at 10:30 am to adjourn the application for reinstatement currently listed for Tuesday 31 January 2017 at 10:30 am.
If the appellant wishes to make such an application, please reply as soon as possible so that a courtroom can be arranged.
At 1:02 pm on 25 January 2017, the appellant telephoned my Associate and said that he could not attend on Friday because he is going to Phillip Island with his family and that Tuesday was not enough time to organise a pro bono barrister.
By email at 4:51 pm on 25 January 2017, the appellant stated as follows:
With due respect to the court and all parties. I cannot afford for the application fee for the adjournment of my hearing is one thing. I was not consulted to the date of 31 January 2017 if it was suited for me or not without any due consideration on my side. I believe the times frames given previously and now are unfair and impacting for a fair hearing. As it’s Australia day tomorrow and as it’s very much special to my family and I. We will be away till Sunday 29/1/17 celebrating Australia day.
Due to my financial and medical condition as per my recent affidavit I cannot prosecute my case alone risking my health condition. I have requested for a pro-bona barrister for the day to assist, failing with I give prior notice to the court I will not be appearing unless adequate time is granted for me to find a barrister.
It will be a travesty of justice if my case is dismissed on these grounds considering that all the evidence material I rely upon is with the court and in my notice of appeal.
By email on Friday 27 January 2017, my Associate stated as follows:
The applicant has requested by email that the Court vacate the hearing of this matter on 31 January 2017. The respondent opposes the adjournment. The Court advised that it could hear the application for an adjournment on 27 January 2017. The applicant stated by phone and email that he did not propose to apply for an adjournment on Friday 27 January. Accordingly, the application for reinstatement, and, if reinstatement is granted, the appeal, remain listed for hearing on Tuesday 31 January 2017.
By email at 9:58 am on 31 January 2017, the appellant stated as follows:
This is to inform the court that I am unable to appear today as per my previous email. I kindly request for adjournment of my hearing with enough time provided for a pro-bona counsel to help me. I am still suffering from my medical conditions, particularly this morning my blood pressure is very high, and may need more treatment to correct this in due course.
By further email at 10:17 am on 31 January 2017, the appellant attached a number of PDF documents and stated as follows:
I have attached to this e-mail all of the transcripts of all the hearings: Tribunal 18, 19 May 2015 and Court 20 Aug, 25 Nov 2015, for the court's perusal.
When the matter came on for hearing at 10:30 am on 31 January 2017, the appellant did not appear and nobody appeared on his behalf. Counsel for the respondent sought an order that the application for reinstatement be dismissed.
Disposition
I am mindful of the Court’s obligations with respect to self-represented parties. As Samuel JA explained in in Rajski v Scitec Corporation Pty Ltd:[2]
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored.
However, his Honour continued:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[3]
[2]Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986.
[3]Approved in Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq)(2014) 46 VR 283, 289 [23] (Osborn JA with whom Whelan and Beach JJA agreed at [116] and [121] respectively). In Trkulja v Markovic [2015] VSCA 298 [32]–[33] (Kyrou and Kaye JJA and Ginnane AJA), the Court noted that the obligation was to ensure a fair trial and was not limited to redressing comparative disadvantage. Also see Tomasevic v Travaglini (2007) 17 VR 100, 130 [140]–[142] (Bell J).
In Tomasevic v Travaglini, Bell J noted that the obligation to provide a fair trial to the self-represented litigant should not ‘afford an advantage to the self-represented litigant’.[4]
[4]Tomasevic v Travaglini (2007) 17 VR 100, 130 [142] (Bell J).
Section 8 of the Civil Procedure Act 2010 requires the Court to give effect to the overarching purpose of the Act in relation to civil proceedings, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[5] Aon Risk Services Australia Ltd v Australian National University[6] requires that I give consideration to delays, wasted costs and the effect on court management.
[5]Civil Procedure Act 2010 s 7.
[6](2009) 239 CLR 175, 217 [111]–[114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The appellant has a right to appeal from the refusal of leave to appeal the decision of the Tribunal. However, the respondent has a right to have this matter dealt with with reasonable expedition.
I consider that the Court should not adjourn the hearing of the application for reinstatement of the appeal for the following reasons:
(a)This is the third date fixed for the hearing of this appeal. The appellant has sought an adjournment of each of the hearing dates respectively on the following grounds:
(i) on 16 November 2016, he had a laboratory assessment.[7]
[7]This application did not need to be resolved because the Court was unable to make a judge available.
(ii) on 7 December 2016, he was too ill to attend.
(iii)on 31 January 2017, he wanted to obtain the services of a pro bono barrister.
(b)Further, the appellant refused to apply for an adjournment on 27 January 2017, when offered the opportunity to do so on 25 January 2017, because he was planning to take a long weekend with his family at Phillip Island.
(c)The appellant failed to comply with the requirements of the application for reinstatement as set out in the order of 7 December 2016 in that he has failed to provide a detailed medical report.
(d)Paragraph 8.1 of Practice Note 9 of 2015, dated 28 November 2015, provides:
At all stages of the proceeding, communications with the Court should be by email with a copy to all other parties, and should be confined to uncontroversial matters.[8]
[8]The new practice note applies from 30 January 2017, but is in relevantly identical terms: Supreme Court of Victoria, Practice Note SC CL 9 – Judicial Review and Appeals List, 30 January 2017, para 11.1.
The appellant was specifically informed that the Court would not accept a request to change the date of a hearing by email. Each of the emails referred to above that my Associates sent to the parties included a statement that correspondence with the Court ‘must be confined to uncontroversial matters’. Despite being so advised, the appellant not only refused the opportunity to apply to the Court on 27 January 2017; but failed to attend on 31 January 2017 and persisted in seeking an adjournment by email. In my opinion, in most circumstances, a Court cannot fairly determine contested applications by reference solely to untested assertions contained in an email or other communication to the Court.[9]
[9]See R v Fisher (2009) 22 VR 343, 351–2 [38]–[39] (Redlich and Dodds-Streeton JJA) for a discussion about the importance of email communication with the Court being approached with the ‘appropriate protocol’.
(e)The appellant’s failure to attend Court and apply for an adjournment on 7 December 2016, 27 January 2017 and 31 January 2017 has meant that the respondent has been unable to test the grounds put forward in support of the application for adjournments. With respect to the application to adjourn the hearing on 31 January 2017, the appellant relied on his high blood pressure and the desire to obtain a pro bono barrister. In my opinion, in the face of the respondent’s opposition, it would be unfair to the respondent to further adjourn the hearing on these grounds for the following reasons:
(i)There is no evidence that his medical condition prevents him from attending Court, even if only to apply for an adjournment. The evidence does disclose that he has suffered from hypertension since at least February 2014 when a Dr Kipouridis certified that ‘He is currently medically stable and in my opinion, he is fit to attend classes for his nursing course’. However, the condition did not prevent him from attending before VCAT for the contested hearing of his application on 18 and 19 May 2015.
(ii)There is no evidence about what attempts the appellant has made to obtain a pro bono barrister, whether there is a real prospect of him obtaining a duty barrister on an adjourned date; or why a duty barrister has not already been arranged given the matter was listed for trial on two previous occasions.
In these circumstances, in my opinion the respondent, acting in good faith, was entitled to oppose the adjournment of the hearing date.
(f)I do not consider the appellant’s refusal to make an application on Friday 27 January 2017, as offered by the court, was reasonable. Although the appellant may have preferred to incorporate Friday into a long weekend which he was proposing to spend with his family, I consider that, if the appellant wished to press the application for an adjournment, he should have done so on Friday for the following reasons:
(i)The application was for reinstatement of the appellant’s appeal which had been dismissed by reason of his failure to attend on 7 December 2017, in respect of which the respondent had incurred the costs of preparing for and attending the hearing due to the lack of any notice.
(ii)An application made prior to the hearing date could have avoided the incurring of unnecessary costs in the preparation and attendance on 31 January 2017 and could have allowed the court’s resources to be reapplied.
(iii)Philip Island is not so distant that it would be unreasonable to disrupt a holiday for a morning to apply for the adjournment.
(g)The failure of the appellant to attend to prosecute the appeal on two occasions has resulted in the respondent incurring substantial costs, which have been thrown away. I am not satisfied there is any real prospect that the respondent will be reimbursed for these costs thrown away by reason of these vacated hearing dates.
Accordingly, I will not adjourn the hearing of the application to reinstate and I will dismiss the application. I will further order that the appellant pay the respondent's costs of and incidental to the application to reinstate.
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