Drummond v Canberra Institute of Technology (No 2)
[2021] FCCA 556
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Drummond v Canberra Institute of Technology (No 2) [2021] FCCA 556
File number(s): CAG 58 of 2015 Judgment of: JUDGE W J NEVILLE Date of judgment: 25 March 2021 Catchwords: PRACTICE & PROCEDURE – whether to appoint a litigation guardian – whether to strike out lengthy and unreferenced Notice to Admit Facts – very long running proceedings involving multiple claims under the Fair Work Act – role of directly briefed Counsel – litigation guardian not appointed at the present time but the Court’s position reserved for any possible future appointment – Notice to Admit Facts struck out among other things because it did not relevantly and/or sufficiently relate to the details of the claims to be determined by the Court. Legislation: Fair Work Act 2009 (Cth) ss 341, 342, 343 and 345
Federal Court Rules 2011
Federal Circuit Court Rules 2001
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
L v Human Rights and Equal Opportunity Commission (2007) 233 ALR 432
Montgomery v Child Support Registrar [2015] FCA 891
Number of paragraphs: 45 Date of hearing: 12 March 2021 Place: Canberra Counsel for the Applicant: Mr A Duc (direct brief) Solicitor for the Respondent Mr Karcher ORDERS
CAG 58 of 2015 BETWEEN: MARK LEA DRUMMOND
Applicant
AND: CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
25 MARCH 2021
THE COURT ORDERS THAT:
1.All previous procedural Orders (including timetables) be discharged;
2.The Court reserves the right to appoint a litigation guardian if there is non-compliance again with any direction or Orders of the Court by the Applicant.
3.The Notice to Admit Facts (in each of its iterations) filed by the Applicant on 26 February 2021 be struck out.
4.The matter be listed for a 4 day Final Hearing commencing 3 August 2021 at 10:15am in Canberra.
5.Any amended Statement of Agreed Facts is to be filed by 15 April 2021 (noting that the Applicant has confirmed that the 17 October 2017 Statement of Agreed Facts remains apposite).
6.An Agreed List of Issues (absent leave, of no more than 1 page) is to be filed by 29 April 2021.
7.A Case Outline (including trial plan, witness list and schedule of cross examination) is to be filed by 1 July 2021.
8.The Applicant is not permitted to file anything with the Court for the remainder of the litigation unless and until his Counsel notifies the Court that any document to be filed has been prepared or settled by him beforehand.
9.Absent any other reason or direction, only the Applicant’s Counsel is to correspond with Chambers in accordance with proper protocols.
10.If there is failure to comply with the procedural Orders and Directions, the matter will be re-listed as soon as practicable, and subject to evidence and submissions, there may be Orders for costs, and/or that the proceedings be dismissed, among other things, for want of prosecution and/or abuse of process.
11.The Respondent’s costs in relation to the Notice to Admit Facts are reserved.
REASONS FOR JUDGMENT
Introduction
There are two issues to be immediately determined in this unfortunately long-running and regularly suspended proceeding. They are: (a) whether a litigation guardian should be appointed for the Applicant; and (b) whether an unfortunately lengthy and unreferenced to the pleadings Notice to Admit Facts (437 paragraphs; 93 pages), twice filed by the Applicant, should be permitted or otherwise dismissed.
For the reasons that follow, (a) I will not, at the present time, appoint a litigation guardian for the Applicant, and (b) the Notice to Admit Facts (in each of its iterations), filed by the Applicant on 26th February 2021, must be struck out.
Also for the reasons that follow, two additional Orders are appropriate: (a) on the Court’s own motion, I reserve the Respondent’s costs regarding the Notice to Admit Facts; and (b) for the second time, the matter will be listed for final hearing, for four days, commencing on 3rd August. I say “for the second time” because the first trial, in November 2017, could not proceed due to the Applicant’s mental health condition at the time.
Annotated chronology
For current purposes, it is sufficient to note the following factual matters – in effect an annotated recent chronology – that gave rise to the Court considering the appointment of a litigation guardian for the Applicant, and which also provides background for the issue of what to do with the Applicant’s Notice to Admit Facts.
Since its inception in 2015, the procedural course of the matter has been replete with significant delays, obstacles and failures, primarily by the Applicant, to comply with procedural Orders and directions for the filing of documents. For the most part, the Applicant has been self-represented. Regularly, the Applicant explained, at every attempt by the Court to keep the matter vaguely (but regularly vainly) proceeding on a positive course, the myriad number of personal problems that beset his family circumstances, as well as the general opposition (as he saw it) to the litigation by the Respondent and how its lawyers have impeded the progress of the matter.
As earlier noted, the first iteration of the trial was scheduled for November 2017. Due to the Applicant’s mental health it could not then proceed. To speak generally, towards the latter part of the litigation in 2017, the Applicant had retained, by “direct brief”, the services of Counsel from Sydney (Mr Duc).
The following Orders were made by the Court on 28th November 2017. It will be seen that they provided a pathway for the litigation to be resumed upon the Applicant being able to provide, for example, psychiatric evidence of his capacity to reasonably prosecute his case.
THE COURT NOTES THAT:
A. On 24 November 2017 the Court received correspondence from the Applicant requesting an adjournment of the trial listed for 4 days commencing on 28 November 2017;
B. The Applicant provided significant medical evidence in relation to the impact that the proceedings were having on his mental health;
C. The Respondent strongly opposed the request to adjourn the Hearing;
D. There have been multiple adjournments and extensions of time granted in this matter due to, amongst other things, the Applicant’s inability to comply with timetables and provide documents;
E. The Court e-mailed the parties with a proposal to deal with the Applicant’s situation and the future conduct of the matter; accordingly,
THE COURT ORDERS THAT:
1. The Hearing listed for 4 days commencing on 28 November 2017 be vacated.
2. All outstanding Applications be dismissed.
3. The Applicant is at conditional liberty to seek that the matter be re-opened within 6 months of the date of today’s Orders, being by close of business on 28 May 2018.
4. The Applicant may only seek to re-open the matter pursuant to Order 3 should the following occur:
a. At the time of filing the Application to Re-Open, the Applicant is to file detailed medical evidence regarding his ability to conduct the litigation;
b. At intervals of every 3 months for the duration of the litigation, the Applicant is to continue to provide (by way of filing with the Court) medical evidence that he is fit and able to conduct the litigation; and
c. If the foregoing steps are complied with, the Applicant is required to provide the Court with a medical certificate, 5 days prior to any hearing date, demonstrating that he is fit and able to conduct the litigation.
5. Neither party may file anything in relation to this matter during the period stipulated in Order 3, namely until 28 May 2018, without the prior leave of the Court.
6. By consent, the Costs of both sides in relation to the preparation for trial be reserved.
THE COURT FURTHER NOTES THAT:
F. Any Application for Costs pursuant to Order 6 of today’s Orders may only be filed after the expiration of the period stipulated in order 3, namely, after 28 May 2018.
On 20th September 2018, the Court made the following Orders:
THE COURT ORDERS THAT:
1.The Applicant is to file and serve a psychiatric report that provides expert opinion regarding the Applicant’s capacity to prosecute his Application without any delay by 12:00pm on 31st December 2018.
2.If the Applicant does not comply with Order 1 exactly and in its entirety, all extant Applicants in this matter will be immediately dismissed.
On 14th March 2019, the Court made the following, further procedural Orders regarding the conduct of the litigation. The Orders speak for themselves, thus:
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. Within 14 days of the date of these Orders, being by 28 March 2019, the parties are to file and serve:
a. One page of submissions addressing the medical evidence submitted by the Applicant in light of the Orders made on 20 September 2018; and
b. One page of submissions addressing the principles in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (and related cases).
THE COURT NOTES THAT:
2. The Court intends to decide the matter on the basis of the oral submissions made today and the written submissions to be filed on a “Show Cause” basis, with the purpose being to provide the parties the opportunity to establish why the Applicant’s long running Application should not be dismissed.
On 20th September 2019, the Court dismissed all extant Applications. Among other reasons, the Court considered that, in summary, the Applicant had had multiple opportunities to prosecute his claims against the Respondent, but had been unable to bring the matter to any relevant completion. Further, the Court could not be confident that the Applicant would not suffer another re-lapse of his mental health as had happened in late 2017. The Court also recorded the importance of principles set out by the High Court in cases like AON Risk Services Australia Limited v Australian National University, which noted the importance of Courts being “public resources” whose limited resources must be properly used, including taking into account the impact of case management, and other related decisions, in one matter impacting upon other litigants. [1] In the light of the history of the litigation including (among other things) the Applicant’s regular inability to comply with procedural and other directions, I was very concerned about the almost never-ending demands upon the limited resources of this Court with no clear or certain end in sight.
[1] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“AON v ANU”).
The Applicant successfully appealed the judgment that supported the September 2019 Orders. After noting the multiple times the Applicant had sought, with curiously little or no opposition from the Respondent, adjournments and/or extensions of time to comply with Court directions, the appeal was allowed essentially on the ground that this Court had not considered, and put to the Applicant, the utility of appointing a litigation guardian.
The matter next came before this Court on 2nd November 2020. On that occasion, the Court raised with the parties the possibility of the appointment of a litigation guardian for the Applicant. The Applicant denied that such an appointment was necessary, and confirmed that Mr Duc of Counsel would be regularly assisting him in the proceeding. The Court requested that Mr Duc provide a note to the Court to address the issues in Division 11.2 of this Court’s Rules in relation to the possible appointment of a litigation guardian for the Applicant, and to confirm his ongoing involvement in the proceeding assisting the Applicant. That note was duly provided, dated 8th November 2020. On 2nd November 2020, the Court also made Orders directing the parties to consider various other procedural matters, including the time-frame (21 days) within which to advise the Court of matters such as a timetable for a Notice to Admit Facts, and other matters.
Paragraph 7 of Mr Duc’s note to the Court of 8th November 2020 stated: “I will be involved in the litigation to the finality.” As noted and discussed further below, Mr Duc was not “involved” in the preparation of the Applicant’s prodigious Notice to Admit Facts, filed 26th February 2021 (or any of its iterations).
On 24th November 2020, the Court made Orders in Chambers, by consent, which provided for a timetable for the filing of certain documents. Among other directions, a Notice to Admit Facts was to be filed by 12th January 2021, and a Response to that Notice, filed by 2nd February 2021.
On 14th January 2021, the Court made further Orders in Chambers, also by consent, which set out a revised timetable. The consent by the Respondent to this amended timetable was conditional on Mr Duc being made aware of the revised timetable and of his continuing involvement in assisting the Applicant in accordance with his note to the Court. Among other things, these Orders directed that the Notice to Admit Facts now be filed by 27th January 2021 and a Response to it be filed by 17th February 2021.
To state the obvious: the non-compliance with Orders so early in the resumed proceeding was not an auspicious beginning.
The matter came before the Court again on 4th February 2021. Mr Duc appeared on behalf of the Applicant. A second, revised timetable, within such a relative short period of time, in my view, did not augur well for either a felicitous, or a relatively smooth, progression in the procedural course of the litigation. In the event, a further, second revised timetable was agreed and Orders made by consent. Especially in the face of the (respectfully and consistently) almost supine position of the Respondent to any and every request by the Applicant throughout the course of the litigation since its inception in 2015, not only was the conduct of the matter the complete antithesis of modern, case-managed litigation as envisaged by the High Court in AON v ANU, it made (and continues to make) every attempt by the Court to bring some degree of proper order and precision to the proceedings almost farcical. But there was more to come.
As noted above, the Applicant filed (thrice) a very large Notice to Admit Facts. As it happened, it was formally filed one day late (on 26th February 2021), and therefore not in compliance with the latest version of the relevant timetable pursuant to the Orders of 4th February.
On 2nd March 2021, the Respondent sprang into action protesting about the Notice to Admit Facts (the earlier version being filed on 1st February, the second at the end of February) and how it is/they are “are not able to be utilised”. The Respondent sought to have the matter re-listed. The Applicant sent an email, dated 3rd March 2021, setting out in his typical detail, a range of reasons why things were as they were, and the difficulties he would have if the matter was listed on a certain date because of proceedings in another Court involving his son. As he has carefully done over the years, in his guileless but still unhelpful way, he explained in detail, for example, the medication that his son was now taking (and previously taking), and the (understandable) impact the criminal litigation involving his son was having upon him. This, and other things, has been a long-standing issue for the Applicant, and his capacity to deal with more than one thing at a time (his own litigation most particularly) has clearly been compromised. He remained hopeful, as he regularly has done over the last six years or so, that there would be progress to report when we were all together again in Court soon.
The matter was re-listed for Friday 12th March 2021. Mr Duc appeared for the Applicant (by telephone). The Applicant was also “on the line”.
After submissions (noted further below) I reserved my decision on the two matters. Given the history of the matter generally, and the Applicant’s conduct throughout it, at 5.47am on 15th March, the Court received another lengthy email from the Applicant in which he made a range of submissions, notwithstanding the matter being formally “reserved.” On this occasion, the submissions focussed on him being the subject of Victims of Crime legislation in the Australian Capital Territory, which he asked the Court to take into account in the Orders it was proposing to make. He seemed to acknowledge, to a limited degree, that this “supplementary submission” should perhaps involve a formal Application to re-open. Ever trying to be helpful he provided two alternative proposed sets of Orders. Curiously and most unfortunately, not for the first time in the litigation, he did not copy-in his Counsel, Mr Duc. Again, not for the first time, the Court reminded the Applicant (and has done so many times) that it is improper for him to send correspondence of this kind to Chambers, and especially to do so without ensuring that his Counsel is part of the email chain.
Regrettably, the Applicant was still not finished. At 9.23am on 15th March 2021, he sent a further email to Chambers, again not copied to his Counsel Mr Duc. This attached “corrected draft orders”, among other things. The Applicant, his Counsel (who was sent the earlier emails by Chambers), and the Respondent’s lawyer, were advised that the further submissions should have been the subject of an Application rather than (a) another plaintive email, (b) out of business hours and (c) after judgment had been reserved.
In any event, no correspondence should be sent to Chambers without the consent of the other party. This, the Applicant, has steadfastly and consistently failed to do throughout the proceedings. Contrary to the constant advice from the Court over many years, and what seems to be not as close an involvement by the Applicant’s Counsel as envisaged or presumed, respectfully, if there is any way to consume more resources of the Court, which ultimately has the effect (but not the intent) to impede the efficient progress of the litigation, with no malice or mala fides, the Applicant has a singular talent for doing so.
Including his mental health issues, over which he has not always a great degree of control (it would seem), this matter is the longest-running proceeding in my large docket, across a wide range of the Court’s jurisdiction, having commenced in 2015. In many respects, this perhaps speaks loudest and most strongly about the procedural and resource issues facing the Court and the parties. Put another way, the Application (and Form 4) were filed by the Applicant on 31st July 2015. By the time the second trial is ultimately heard, it will have been in the Court’s system for more than 6 years. While not quite in the league and infamy of Dickens’ Jarndyce v Jarndyce in Bleak House, it is nonetheless much too long for the parties to be engaged in litigation without any relevant result or determination of the contest. In addition, as the Respondent has pointed out previously, a number of its witnesses have now retired from the employ of the Respondent Institute. The Court has tried everything to move the matter along only to be regularly, albeit unintentionally, thwarted by the conduct of the parties by one means or another.
Submissions
At different times during the directions hearing, in response to concerns expressed by me about certain noises interfering with the hearing, the Applicant confirmed that he was “texting” Mr Duc about making certain submissions. It was not overly helpful, at least for those trying to listen without “texting”, or trying to listen over the texting.
Summarised, the submissions on behalf of the Applicant were that (a) the Notice to Admit Facts would appreciably reduce hearing time and the issues in dispute and (b) there appeared to be some misunderstanding by the Court (perhaps others too) about the nature or degree of involvement of Mr Duc in the matter. This was so, notwithstanding his note to the Court dated 8th November 2020, and in circumstances where he confirmed that he was not involved in the preparation of the Notice to Admit Facts to which the Respondent objected.
The Applicant’s Counsel also noted that very long documents of this kind had been permitted in other litigation he identified from the South Australian Supreme Court, but which I need not traverse.
Counsel also confirmed that the Applicant did not require a litigation guardian, and further that, because of the very significant amount of work done by the Applicant in preparing the Notice under consideration/attack, it should not go to waste. Put another way, and para-phrased, this was that the Applicant’s “effort” should be rewarded, or at least, not go unrewarded. Respectfully, this was a rather novel but, in my view, inapt, submission.
Regarding the Notice to Admit Facts, the Respondent’s basic issue and submission was that, not only was the said Notice extremely long, it did not relevantly refer to the specific claims made by the Applicant as, in effect, “pleaded.” Regarding the possible appointment of a litigation guardian, the Respondent said, somewhat reverting to its “small target strategy” (to speak somewhat colloquially), that it took no formal position, and had no instructions, regarding such an appointment.
Appointment of a litigation guardian – principles
The principles for the appointment of a litigation guardian, under Division 11.2 of the Federal Circuit Court Rules 2001, were set out by the Full Federal Court (Black CJ, Moore and Finkelstein JJ) in L v Human Rights and Equal Opportunity Commission.[2] For current purposes, it is sufficient to note the following from that decision.
[2] L v Human Rights and Equal Opportunity Commission (2007) 233 ALR 432.
First, at [23], the Full Court noted:
The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.
Secondly, at [27], the Court said:
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).
Finally, at [33], the Full Court said:
Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant’s capacity, the court should consider of its own motion the factual issue of ‘need’. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court. Whether, in the absence of medical evidence as to capacity, the court could be satisfied of the ‘need’ such that it should act on its own motion under r 11.11(1) to appoint a litigation guardian will of course depend upon the circumstances of a particular case.
Notice to Admit Facts – background and principle
The Application and Form 4 was filed by the Applicant on 31st July 2015. It sought relief (including pecuniary penalties under the Fair Work Act 2009 (Cth) (“the FW Act”)) for various alleged contraventions that were set out very discursively. Sometimes the Applicant’s narrative includes various digressions in which he seeks to explain various events or circumstances which, on their face, do not seem to have any direct or immediate relevance to the claims made. As then pleaded, some of the matters may (or are likely to be) statute barred. I do not need otherwise to canvass such matters here. The sections of the FW Act claimed to be involved were ss.341, 342, 343 and 345.
In one of the many annexures among the many unpaginated sections attached to the Applicant’s Form 4, in a document headed “Response from CIT to Mr Drummond re Complaints regarding actions of Institute Staff and CIT procedures”, there are 19 complaints raised by the Applicant to which the Respondent replied in an email from Ms Cover (Executive Director, Corporate Governance, Organisational Capability, Canberra Institute of Technology), dated 4th September 2009. For the reasons set out in that “response” the Respondent rejected all of the Applicant’s complaints. Accepting that, at various times during the litigation, the Applicant has refined and revised his Grounds of Complaint against the Respondent, for immediate purposes, the 19 formal complaints identified and responded to by CIT in Ms Cover’s email, sufficiently identify the range of matters that are to be, or are likely to be, determined by the Court as well as any relief that may flow from such determination.
Also attached to the Form 4, in what appears to be Annexure 6 but also unpaginated, is what appears to be an exceedingly long witness statement from the Applicant, dated 24th October 2012. It sets out a significant number of emails between various persons and the Applicant. It is exceedingly difficult to see how much of this correspondence relates specifically to the various, often undifferentiated and/or overlapping, claims made by the Applicant. It is not in contest, according to long-standing authority, that parties must relevantly and clearly define the issues (usually by pleadings) that they seek to have the Court determine.[3] Failure to do so not only impedes the trial but necessarily risks various matters not being either addressed, and/or a party (on either side) potentially failing in her or his claim(s).
[3] See, for example, the outline of principle by Mason CJ and Gaudron J in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 – 287; and by Brennan J at CLR 287 – 290. As the joint judgment of Mason CJ and Gaudron J succinctly stated (at 286): “The function of pleadings is to state with sufficient clarity the case that must be met.” Of course, there are no pleadings in the current matter, but the essential points of clarity and precisely stated issues remain fundamental. Regrettably, although noted many times over the years, clarity and precisely stated issues, together with efficiency in conduct, have never been a feature of this litigation.
Fortunately, in rather more refined terms, the parties agreed in 2017, and have confirmed very recently, that a Statement of Agreed Facts, filed on 10th October 2017, remains apposite, subject only to some very small “tweaking.”
Between the complaints outlined in Ms Cover’s email noted above, and the Statement of Agreed Facts, although not formally “pleadings” in the strict sense, the scope of the contest has been delineated. This is also to say that as clearly aggrieved as the Applicant is, the Court cannot resolve all manner of outstanding grievances and perceived slights that a party may feel. The Court can only deal with the legal and factual issues that are properly put before it. It only remains, as the Court noted in its Orders of 24th November 2020 and 14th January 2021, for the parties to agree upon and file an “Agreed List ofIissues to be Determined.” Desirably, that list should be no more than a single page.
All of these matters are relevant background to the discussion regarding the Applicant’s Notice to Admit Facts. Relevant principle in relation to such a Notice was set out by Rangiah J in Montgomery v Child Support Registrar.[4] In that case, at [44] and [45], which involved a discussion of the operation of Part 22 of the Federal Court Rules 2011 regarding “Admissions”, his Honour said (emphasis added):
[44] In Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2)[2000] FCA 602, Goldberg J held, in relation to the equivalent provisions under the former Federal Court Rules:
I do not consider that it was either reasonable or appropriate to require the respondents, under the pain of an order for costs pursuant to O18 r2 of the Federal Court Rules, to respond to a notice which substantially reproduced the allegations in the amended statement of claim in a rolled-up way and in a form which required the respondents to make admissions as to matters which were not clearly separated from other matters. Further, in a number of respects it was not possible to sever components of matters, the subject of the notices to admit, without having any consequential effect on other paragraphs in the notices to admit.
[45] The difficulties identified by Goldberg J are, in large part, also evident in relation to the present notice. All of the statements made in the notice consist of matters of law or “rolled up” matters of fact and law. Rule 22.01 allows a party to serve a notice requiring a second party to “admit the truth of any fact...specified in the notice to admit.” Rule 22.01 does not allow the first party to specify matters of law or mixed fact and law in the notice.
[4] Montgomery v Child Support Registrar [2015] FCA 891.
Consideration & disposition
In the light of the facts and submissions outlined, and the principles to which I have referred, I note the following dealing, in order, with (a) the appointment of a litigation guardian and then (b) the Notice to Admit Facts.
Regarding the appointment of a litigation guardian:
(a)The length of the litigation (now just on 6 years), and consistent non-compliance with procedural Directions, of themselves, bespeak the need for some circuit-breaker or vehicle to ensure basic compliance with Orders. Thus far, nothing has worked. These matters alone almost cry out for a litigation guardian to be appointed;
(b)It is no criticism of the Applicant that he has mental health issues. In his Affidavit, filed 14th September 2018, the Applicant annexed various psychiatric reports. They include comments like: “… the severity of Mr Drummond’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.”[5] The same Report lists Mr Drummond’s conditions as: “adjustment disorder with anxiety and depressed mood, and obsessional traits.” Dr Clark’s 2017 Report, and a later, February 2018 Report – part of Annexure F – related to other workplace issues involving the Applicant, which are unrelated to the current proceeding;
(c)It is also no criticism of the Applicant that he has a range of family issues in addition to his mental health issues. However, the Court can clearly take notice of the fact that “life happens” – for good or ill. No one is immune from the vicissitudes and vagaries of life, be they sickness of one kind or another, employment (or lack of it), and all else besides. The Applicant’s latest, detailed missive regarding his involvement in some “victims of crime” aspect of litigation elsewhere, is of a piece with what I call the vagaries of life, which all know range from the trivial to the severe, and all dimensions in between. Moreover, the Applicant has not shown how the information outlined regarding victims of crime relates to any matter or issue the Court is required to determine. Rather, the impression is – nothing more – that it was another exercise of the Applicant seeking some sort of indulgence for the ongoing delay and all else that besets this litigation. Everyone has issues to deal with, every day. Each of us has to cope, as best we can, with them. Actions, and inaction, have consequences.
[5] See Dr Clark’s Report, dated 6th September 2017, Annexure F at p.7.
Certain other submissions, noted below, regarding the Notice to Admit Facts, relating to the limited, further procedural steps to be undertaken prior to any hearing, are relevant here. This is to say that, if the litigation was not as advanced as it is, I would have no hesitation to appoint a litigation guardian for the Applicant. It is not a criticism of him to state, only a factual observation in the light of the course of the litigation, that I have very little confidence that any procedural step will be undertaken by him in accordance with the issued Directions of the Court. Compliance, such as it is, will only occur if Counsel for the Applicant is directly involved in every remaining step in this litigation.
For these reasons:
(a)At the present time, the Court will not appoint a litigation guardian. The Court reserves the right to do so if there is non-compliance again with any direction or Order of the Court by the Applicant;
(b)In the light of this determination, and further to it, the Court directs that the Applicant is not permitted to file anything with the Court for the remainder of the litigation unless and until his Counsel notifies the Court that any document to be filed has been prepared or settled by him beforehand. Further procedural directions are set out later in these reasons.
In relation to the Notice to Admit Facts, in my view, given (a) its prolixity and complexity, and (b) its lack of proper, clear and precise reference to the claims set out in the Application and Form 4, it falls foul of the same issues noted by Rangiah J in Montgomery v Child Support Registrar. His Honour’s comment (noted above), that “All of the statements made in the notice consist of matters of law or “rolled up” matters of fact and law”, in my view, clearly apply to the current Notice. Moreover, it canvasses so many matters over a significant period of time in such fine-grained detail, but which have little or no evidentiary weight or relevance to the issues to be determined other than, apparently, to satisfy or appease the Applicant’s deep sense of grievance, the Notice verges on being an abuse of process. The “obsessional traits” of the Applicant referred to by Dr Clark in his psychiatric report referred to earlier appear patent in the Notice. Further, based on the confirmation given by Counsel last November of his involvement in the litigation, and his more recent confirmation that he was not involved in the preparation or settling of the Notice, it clearly lacks proper legal oversight and clarity, especially by reference to the actual claims for the Court to determine. It obfuscates and impedes, rather than clarifies, the issues in contest. The Respondent’s submissions that many of the matters raised in the Notice do not relate to any of the causes of action, must be accepted. There is no merit in the Applicant’s submission that the lengthy work of the Applicant [without legal oversight] in drafting the Notice. The Notice to Admit Facts, in all of its iterations, must be struck out.
In the light of the history of the matter, and the Court’s comments, decisions and directions in the current aspects of it, the following further procedural Orders are made:
(a)All previous procedural Orders (including timetables) be discharged;
(b)The matter be listed for final hearing for 4 days commencing 3rd August 2021;
(c)Any amended Statement of Agreed Facts is to be filed by 15th April 2021 (noting that the Applicant has confirmed that the 17th October 2017 Statement of Agreed Facts remains apposite);
(d)An Agreed List of Issues (absent leave, of no more than 1 page) is to be filed by 29th April 2021;
(e)Case Outline (including trial plan, witness list and schedule of cross examination) is to be filed by 1st July 2021;
(f)There is no obvious reason for the Applicant to communicate with Chambers for the remainder of the proceedings. Absent any other reason or direction, only the Applicant’s Counsel is to correspond with Chambers in accordance with proper protocols;
(g)If there is failure to comply with the procedural Orders and Directions, the matter will be re-listed as soon as practicable, and subject to evidence and submissions, there may be Orders for costs, and/or that the proceedings be dismissed, among other things, for want of prosecution and/or abuse of process;
(h)The Respondent’s costs in relation to the Notice to Admit Facts are reserved.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 25 March 2021
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