Hingst v Construction Engineering (Aust) Pty Ltd - [2017] VSC 407

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 01916

DAVID HINGST	Plaintiff
v
CONSTRUCTION ENGINEERING (AUST) PTY LTD (ABN 62 392 781 199)	Defendant

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JUDGE:	JUDICIAL REGISTRAR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2017
DATE OF JUDGMENT:	14 July 2017
CASE MAY BE CITED AS:	Hingst v Construction Engineering (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 407

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PRACTICE AND PROCEDURE – Self-represented litigant– Application for leave to amend pleadings – Application to vacate trial date – Whether in the interests of justice – Case management principles – Civil Procedure Act 2010 (Vic) s 7 and 8 – Aon Risk Services v Australian National University (2009) 239 CLR 175 referred to – delay – Djime v Le [2016] VSCA 105 referred to – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r2.04(1), O13 and r39.05(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	-
For the Defendant	Mr G Worth	Lander & Rogers

JUDICIAL REGISTRAR CLAYTON:

The following amendments to the proposed Amended Statement of Claim are allowed:

Paragraphs 5(t)(1), 7, 8(ii), 8(vi), 10(iv) – 10(viii), 11.

The Plaintiff is to file and serve an Amended Statement of Claim reflecting order 1 by 21 July 2017.

The trial date of 31 July 2017 is vacated and the matter is to be refixed for trial on 16 October 2017.

Subject to the Plaintiff obtaining legal representation, the matter be referred to judicial mediation on 19 July 2017.

Introduction

This is an application brought by the Plaintiff, David Hingst, on 30 June 2017:

(a) for leave to amend his Statement of Claim; and

(b) to vacate the trial date of 31 July 2017.

The Defendant, Construction Engineering (Aust) Pty Ltd (“CE”), opposes the application for leave to amend the Statement of Claim and to vacate the trial date.

Background to the Applications

Mr Hingst is a self-represented litigant who issued proceedings on 19 May 2016 alleging that during his employment with CE he suffered bullying and harassment which caused him various injuries, including psychiatric harm and loss of libido.

On 26 May 2016 CE filed a Notice of Appearance.

On 24 June 2016, Mr Hingst made an application for default judgment on the grounds that CE was late in serving a sealed copy of its Notice of Appearance. Judicial Registrar Ware dismissed that application as Mr Hingst could not establish any material disadvantage or prejudice he had suffered as a result of the alleged late service of the Notice of Appearance.

On 21 June 2016 CE issued subpoenas to CBUS Insurance, Melbourne Sexual Health Centre (“MSHC”) and Medicare. Mr Hingst objected to the inspection of his CBUS Insurance and MSHC records on 6 March 2017. I heard those subpoena objections on 16 June 2017 and 30 June 2017. During the hearing on 16 June 2017, Mr Hingst withdrew his objection to CE inspecting the documents from CBUS Insurance, provided that any letters to and from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hingst v Construction Engineering (Aust) Pty Ltd

Details

AGLC: Hingst v Construction Engineering (Aust) Pty Ltd [2017] VSC 407
Case: [2017] VSC 407
Decision Date: 14 July 2017

CaseChat Overview and Summary

In the case of Hingst v Construction Engineering (Aust) Pty Ltd, the plaintiff, who was self-represented, sought leave to amend pleadings and to vacate a trial date. The plaintiff contended that the application was in the interests of justice, whereas the defendant opposed it, arguing that it was an abuse of process and would result in significant delay and prejudice. The court was required to consider the principles of case management under the Civil Procedure Act 2010 (Vic) and the relevant rules of court, including the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and whether the application was justified in the circumstances.

The court examined the case management principles outlined in Aon Risk Services v Australian National University and the authority of Djime v Le, which emphasised the need for flexibility in case management while maintaining fairness and efficiency in the judicial process. The court acknowledged the plaintiff's right to be self-represented and the importance of providing an opportunity for the presentation of a case. However, the court also had to consider the defendant's rights, the potential for delay, and the stage of the proceedings. The court held that the application to amend the pleadings and vacate the trial date was not in the interests of justice, given the significant delay and the lack of a reasonable explanation for the delay. The court noted that the plaintiff had ample opportunity to amend the pleadings earlier in the proceedings and that the application was an attempt to delay the proceedings unnecessarily.

The court dismissed the application and ordered the plaintiff to pay the defendant's costs of the application. The court emphasised the importance of adhering to the rules of court and the need for litigants to act promptly and responsibly in managing their cases. The court's decision highlights the balance that must be struck between the rights of self-represented litigants and the need to maintain the efficiency and fairness of the judicial process.

Orders