Hingst v Construction Engineering (Aust) Pty Ltd (No 2)
[2017] VSC 700
•20 November 2017
| 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 623 9278 1199) | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2017 |
DATE OF RULING: | 20 November 2017 |
DATE OF WRITTEN REASONS: | 21 November 2017 |
CASE MAY BE CITED AS: | Hingst v Construction Engineering (Aust) Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 700 |
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PRACTICE & PROCEDURE – Self-represented litigant – Application to vacate trial date – Numerous prior applications to vacate – No fresh evidence before the Court – Whether in the interests of justice to vacate – Case management principles – Civil Procedure Act 2010 s 7 – Supreme Court (General Civil Procedure) Rules 2015 O 13.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr D Whiting (solicitor) | Lander & Rogers |
HER HONOUR:
The plaintiff, Mr David Hingst, issued proceedings on 19 May 2016. In his amended statement of claim dated 21 July 2017, he alleges bullying and harassment during his employment with the defendant, Construction Engineering (Aust) Pty Ltd, from May 2008 to April 2009. The plaintiff alleges that the conduct of the defendant’s employees, his work colleagues, caused him to suffer various injuries including psychiatric harm and loss of libido.
The defendant denies the plaintiff’s allegations in its amended defence dated 9 October 2017.
The plaintiff has filed a summons dated 17 November 2017. He seeks orders that:
(i) The trial date of 27 November 2017 be adjourned to early 2018 or to a date to be decided by the Court;
(ii) The defendant provide a proper defence;
(iii) The issues heard by Clayton JR on 6 October 2017 be re-heard/re-evaluated including the issues listed within the supporting affidavit; and
(iv)Further, and in the alternative to (ii) and (iii), the Court direct the plaintiff as to whether he is required to lodge an appeal as to the issues listed within the supporting affidavit.
In support of his application, the plaintiff has filed an affidavit sworn 17 November 2017.
In essence, the plaintiff seeks to:
(a) re-agitate the application he made before Clayton JR on 6 October 2017, which included, amongst other things, that the trial date be vacated;
(b) further and better answers to the plaintiff’s interrogatories from the defendant; and
(c) further discovery from the defendant.
In his affidavit sworn 17 November 2017, the plaintiff asserts that he has been taken by surprise by the defendant’s defence dated 9 October 2017.
Procedural history
Before turning to the specific application before the Court, it is convenient to set out the procedural history of this claim:
· On 19 May 2016 the plaintiff filed a writ and statement of claim.
· On 6 June 2016 the defendant filed its defence.
· On 21 June 2016 the plaintiff filed a summons and affidavit in support of an application for default judgment.
· On 24 June 2016 Ware JR made interlocutory orders to set his timetable. Ware JR dismissed the plaintiff’s application for default judgment.
· On 15 July 2016 Daly AsJ made orders to extend the time for filing and service of affidavit of documents and discovery and fixed the matter for trial on 31 July 2017.
· On 5 September 2016 the plaintiff filed his further and better particulars.
· On 27 September 2016 the defendant filed interrogatories for the examination of the plaintiff.
· On 11 October 2016 the defendant filed its affidavit of documents.
· On 26 October 2016 the defendant filed its further and better particulars of its defence.
· On 28 October 2016 the plaintiff filed his affidavit of documents.
· On 11 November 2016 the defendant and plaintiff filed answers to interrogatories.
· On 16 February 2017 a mediation decision sheet was received by the Court noting that a mediation had been held on 9 February 2017 and the matter had not resolved.
· On 3 March 2017 Zammit J made orders to extend the trial estimate and listed the matter for a final directions hearing in June 2017.
· On 6 March 2017 the plaintiff filed a notice of objection to a subpoena for the production of documents by Cbus Super for Construction and Building (Cbus) and the Melbourne Sexual Health Clinic (MSHC).
· On 28 April 2017 the parties attended a directions hearing before Clayton JR and orders were made confirming the trial date, final directions hearing date, the hearing of the subpoena objection and for any discovery application.
· On 19 May 2017 the defendant filed a summons and an affidavit in support for the plaintiff to provide discovery of the subpoenaed documents from Cbus and MSHC. On the same date the plaintiff filed a summons and affidavit in support for interrogatories to be answered by the defendant, discovery of certain documents and of any surveillance material to be used at trial.
· On 1 June 2017 Clayton JR made an order listing the applications filed on 19 May 2017 for hearing on 16 June 2017 together with the final directions hearing.
· On 15 June 2017 the plaintiff filed a supplementary affidavit.
· On 16 June 2017 Clayton JR heard the parties’ applications filed on 19 May 2017. The plaintiff did not maintain his objection to the Cbus subpoena and requested further time to consider whether he will maintain his objection to the MSHC objection. Orders were made in relation to interrogatories and discovery.
· On 30 June 2017 the plaintiff filed a Notice of Trial and indicated that the matter was not ready for trial.
· On 30 June 2017 Clayton JR heard the plaintiff’s application for leave to amend his statement of claim and to vacate the trial date of 30 July 2017. The defendant opposed the application. Clayton JR made orders allowing some amendments to a proposed amended statement of claim, vacated the trial date of 31 July 2017, re-fixed it for trial on 16 October 2017 and referred the matter (subject to the plaintiff obtaining legal representation) to judicial mediation on 19 July 2017.[1]
[1]Hingst v Construction Engineering (Aust) Pty Ltd [2017] VSC 407.
· On 22 September 2017 the parties attended a final directions hearing before Keogh J. His Honour made the usual final directions orders and the defendant provided the Court and the plaintiff with a proposed witness list.
· On 26 September 2017 the plaintiff filed a summons and affidavit in support for further specific discovery, an appointment of an independent IT expert, further and better answers to the plaintiff’s interrogatories and to vacate the trial date. The application was dismissed and the trial date of 16 October 2017 was confirmed.
· On 6 October 2017 the plaintiff’s summons filed 26 September 2017 was heard by Clayton JR. The application was dismissed and the trial date of 16 October 2017 was confirmed.
· On 9 October 2017 the defendant filed an amended defence.
· On 13 October 2017 the parties appeared before Zammit J. The plaintiff made an application to vacate the trial date on medical grounds. The trial date of 16 October 2017 was vacated and re-listed for hearing on 27 November 2017. Further interlocutory orders were made, referring the matter to judicial mediation on 23 October 2017, and requiring that any further application to adjourn the trial date be made by 17 November 2017 and be returnable on 20 November 2017.
· On 17 November 2017 the parties attended a final directions hearing before Clayton JR. The trial date was confirmed. The plaintiff indicated that he would file an application to vacate the trial date and seek leave to further amend his statement of claim.
· On 17 November 2017 the plaintiff filed the present summons and affidavit in support.
The plaintiff’s summons dated 17 November 2017
The plaintiff has exhibited the transcript of the hearing before Clayton JR on 6 October 2017.
The plaintiff at that hearing sought orders to vacate the trial date, for further and better answers from the defendant as to the plaintiff’s interrogatories, and further discovery of documents.[2]
[2]T1, LL6–10.
Clayton JR stated that she had heard the plaintiff’s application in relation to further and better interrogatories earlier in 2017. She had gone through it in great detail and worked out which interrogatories she would allow and the form in which she would allow them.[3] Her Honour said:
So it did seem to me from your material Mr Hingst and from the defendant’s material that there’s nothing that’s really specifically changed in what you say as between that application that I heard back in June and today. You’re really sort of having a second go at trying to get what you want and I’ve already made a decision about that and said what the defendants had to do and they’ve now done it. So I don’t want to go back through all of those interrogatories again.[4]
[3]T1, LL18–20.
[4]T2, LL3–11.
After hearing submissions from the parties, Clayton JR said:
I don’t think that it’s going to benefit the parties or the court, particularly, to continue to try to push for additional answers or amendments to the manner in which the interrogatories are pleaded, so, I think that the interrogatories are as they stand and that part of your application doesn’t go any further, all right?[5]
[5]T12, LL25–31.
In response to the plaintiff’s application for discovery, Clayton JR commented as follows:
[T]he defendants have provided an affidavit of documents, a sworn affidavit, and said that they’ve provided the documents to you. Now the court is not going to make an order that an IT expert be obtained or appointed. If you determine that it’s appropriate in the running of your case to engage an expert in the field to give evidence about this document or any other documents, that’s a matter for you in the way that you run your case. But the defendants have said this is everything that we’ve got and your view is that it’s not everything.
I’ve made an order that they provide the information that you requested last time. They purport to have done so. I can’t see what further order I can make because I’ve already made the order and they say they’ve complied with it.[6]
[6]T21, LL4–20.
Clayton JR went on to say:
Well, I think all I can do, then, because I don’t know whether this email exists or not, the defendants certainly have an obligation and understand that obligation to make proper discovery and all I think that I can do is remind them of that obligation and, perhaps, encourage them to have a further look and see if this particular email does exist, that you say exists, but, beyond that, there are already obligations that they are under and that they say they have complied with. I can’t order them to discover a specific thing if it doesn’t exist.[7]
[7]T28, LL17–27.
As to the plaintiff’s complaints about the amended defence, Clayton JR said:
[T]he defendants are denying that’s what happened and that’s the way that they’ll run their case. It’s your case to positively make out. You will say what you say happened. You’ll be cross-examined on that. They’ll call witnesses. You’re entitled to cross-examine those witnesses.[8]
[8]T36, LL4-9.
Clayton JR concluded as follows:
The plaintiff’s application for further answers to interrogatories, further specific discovery and vacation of the trial date is dismissed. The trial date of 16 October [2017] … is confirmed.[9]
[9]T55.
The amended defence
In the course of oral submissions, the plaintiff abandoned any complaint he had in relation to the amended defence. However, I make the following observations. The defendant filed an amended defence dated 9 October 2017 to the plaintiff’s amended statement of claim dated 21 July 2017. The amended defence is not particularly illuminating.
The defendant must respond to every allegation of fact and statement of claim the truth of which the defendant denies, will not admit, or to which there is another answer. A specific denial of an allegation means that only facts that are denied or stated to not be admitted remain for trial. These are the facts which the Court must decide at trial.
A party has the right to determine how their case should be framed. Provided that the party’s pleading gives proper notice of the claim or defence, it is not for the Court, even in a judge-managed list, to impose on the party a manner or form of pleading which the Court considers is better.
The defendant in this case is entitled to deny the allegations. The amended defence responds to the plaintiff’s amended statement of claim.
The defendant denies the serious allegations of negligence made against it while admitting any duty which may be imposed by the Court. It denies the said breaches at paragraph 5 of the amended statement of claim, which include 20 particulars of breach, including 17 sub-particulars of said breaches of the Occupational Health and Safety Act 1985 and Regulations. The defendant denies paragraph 6 of the amended statement of claim which simply states: ‘the incident was caused by the negligence of the defendant, its servants and/or agents’.
The defendant denies paragraph 7 of the amended statement of claim and pleads that sections of the Accident Compensation Act 1985 preclude a plaintiff from recovering damages in respect of the plaintiff’s redundancy. The defendant, not unexpectedly, denies particulars of negligence, the injury claimed and the claim for damage. Finally, the defendant alleges contributory negligence on the plaintiff’s part. As the above procedural history demonstrates, there have been requests by the parties for further and better particulars, discovery and interrogation. Documents have been subpoenaed into court and made available for inspection. A mediation was completed on 9 February 2017.
While on its face the amended defence does not provide much detail of the plaintiff’s case, there are other court documents which flesh out the defendant’s amended defence. Crucially, it is not for the defendant to prove any matter alleged against it; that is for the plaintiff. The defendant is entitled to simply deny the plaintiff’s allegations and put the plaintiff to his proof. I am not of the opinion that the plaintiff is taken by surprise by reason of the bare denials.
There is no evidence before the Court that the amended defence does not comply with Order 13. The plaintiff’s complaints are those very complaints before Clayton JR on 6 October 2017.
It should be noted that the plaintiff’s claim dates back to a period of employment between May 2008 and April 2009. He makes serious allegations of ‘humiliating, threatening and bullying behaviour and conduct by co-workers’ in that period. I consider the defendant has responded adequately in its amended defence in light of the amended statement of claim. I reject the plaintiff’s assertions that the defendant is taking the plaintiff by surprise or that it is conducting trial by ambush.
The plaintiff’s own particulars of breach are put at a very general level and ultimately will be fleshed out at trial by the evidence. The defendant at this stage does not know, on the basis of the amended statement of claim, any real detail of the said breaches and will have to await trial and the evidence given at trial. This situation is less than ideal, but hopefully the parties by virtue of mediation and their communications have a greater sense of the minutiae of the alleged breaches.
Re-hearing of the issues heard on 6 October 2017
The plaintiff seeks a re-hearing of the issues heard and determined before Clayton JR on 6 October 2017. He complains that he did not receive a fair hearing in that he did not have the defendant’s affidavit dated 5 October 2017.
The transcript of the hearing on 6 October 2017 reveals that the plaintiff acknowledged that the affidavit was emailed to him the night before the hearing. The plaintiff reported that he was unable to open the attached document. He complained to Clayton JR that the document was 79 pages in length and that, in essence, he had not had time to consider its contents. Clayton JR observed that, while the document was 79 pages, the bulk of it was made up of exhibits already in the plaintiff’s possession. The affidavit itself was four pages in length.
Clayton JR offered the plaintiff some time to consider the document. Her Honour noted, however, that
all it does is set out what the exhibits are and the history of what’s occurred. I don’t think that there’s anything in it that will take you by surprise and I understand that it came late, but so did your application, so, if you’re going to be complain[ing] about things being done late, then you need to come with clean hands.[10]
[10]T13, LL27–31 and T14, LL1–3.
As I have said, the evidence before the Court is not that Mr Hingst was not served with the affidavit, but that he was unable to open the document on his computer. In any event, he was afforded an opportunity at the hearing to peruse the four-page document and importantly, as noted by Clayton JR, the document itself referred to exhibits already in the plaintiff’s possession.
In the course of oral submissions before me, the plaintiff was unable to demonstrate how the provision of the 5 October 2017 affidavit caught him by surprise and what, if any, prejudice he suffered. The plaintiff informed the Court that he still has not read the affidavit.
The transcript of the hearing on 6 October 2017 reveals that Clayton JR heard and dismissed the plaintiff’s application.
Orders were made on 6 October 2017 giving the defendant leave to file and serve an amended defence by 10 October 2017; dismissing the plaintiff’s application for further answers to interrogatories, further specific discovery and a further vacation of the trial date; and confirming the trial date of 16 October 2017 before a judge and jury on an estimate of 7 to 10 days.
There is no evidence before the Court—and nor has there been an application to this effect—that there has been a failure to comply with the Rules or any irregularity that may have rendered the order in the proceeding a nullity.
The plaintiff’s application for a re-hearing of the issues heard and determined on 6 October 2017 is no more than the plaintiff’s attempt to re-agitate what has been considered and determined. The plaintiff in this instance endeavours to use the Court’s procedures unjustifiably. It is oppressive to the defendant and brings the administration of justice into disrepute.
As I have said, there is no fresh evidence before the Court justifying the plaintiff’s application. The plaintiff’s application was fully heard by Clayton JR and appropriate orders were made. The overall balance of justice and the need for finality on the finding of these issues of discovery and interrogation dictates that the present application must be dismissed.
While not specifically sought in his summons, at paragraph 7 of his affidavit in support the plaintiff seeks to re-agitate his application before Clayton JR on 30 June 2017 for leave to amend his statement of claim. Clayton JR published careful and considered reasons allowing some amendments.[11] The defendant has agreed to consider the proposed further amended statement of claim. The plaintiff was informed that he should avoid re-agitating any amendments that have been considered and determined by Clayton JR. I note also the lateness of any application to amend.
[11]Hingst v Construction Engineering (Aust) Pty Ltd [2017] VSC 407.
The plaintiff also complains at paragraph 5 of his affidavit that the defendant has not subpoenaed any expert medical witnesses and that he is disadvantaged by not being able to cross-examine the defendant’s medical witnesses. As Clayton JR has observed, the defendant is not obliged to call any witnesses. Further, the fact that the witnesses have not been subpoenaed does not mean that the witnesses will not give evidence. The defendant has filed its list of proposed witnesses. It will be a matter for the defendant, after hearing the plaintiff’s case, to determine if it will call any witnesses. It cannot be compelled to call witnesses.
The plaintiff was informed that, in the event the defendant does not call witnesses which it listed in its potential witness list, he will be able to make an application to re-open his case and call any relevant witnesses.
Conclusion
The plaintiff’s current application is no more than an attempt to re-litigate matters already heard and determined by the Court.
There is no fresh evidence that the plaintiff would be in any better state of preparation in one, two or three months from now, or that the defendant has not complied with the orders of this Court or with its obligations under the Civil Procedure Act 2010.
It is trite to say that delay of itself is prejudicial to the parties. What is critical in this case is that the said breaches of negligence occurred between May 2008 and June 2009. The nature of the claim is such that individuals will be required to give evidence about conversations, meetings, emails and so on which took place more than 9 years ago. Not only is there the risk of memories fading but there is the weight and stress of the serious allegations and the delay in the hearing of this matter weighing on all individuals involved in this litigation including the plaintiff and the plaintiff’s co-workers who are alleged to have harassed and bullied him.
This matter must be heard and resolved as soon as possible. The trial date has been vacated twice on the basis of the plaintiff’s application. There is no proper basis for a further vacation of the trial date.
It is understandable that, as a self-represented litigant, the plaintiff will be anxious about the upcoming trial and may have concerns about the running of the trial. It is, however, his decision to bring the claim and it is in the interests of justice that it be heard and that there be finality.
The Court and the parties must comply with their obligations under the Civil Procedure Act 2010. Importantly, as set out in s 25, the parties have an overarching obligation to minimise delay.
There cannot, without proper basis, be any further delay. The cost of this litigation will continue to escalate unless it is brought to a conclusion. The plaintiff has been afforded adequate time to prepare his case. The defendant has complied with its obligations under the rules and there is no evidence of ‘unfair’ conduct by the defendant in the preparation of this litigation. The plaintiff and the defendant have a further opportunity to resolve the claim, or at least narrow the issues in dispute, at a judicial mediation on 23 November 2017 (subject to the plaintiff obtaining legal representation). If the matter does not settle, the parties must be ready to proceed on 27 November 2017. To allow the trial to be vacated again is not in any party’s interest and nor is it in the interests of justice.
I therefore dismiss the plaintiff’s summons dated 17 November 2017.
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