Hingst v Construction Engineering (Aust) Pty Ltd (No 2) - [2017] VSC 700

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 01916

DAVID HINGST

Plaintiff

CONSTRUCTION ENGINEERING (AUST) PTY LTD

(ABN 623 9278 1199)

Defendant

---

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

---

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.

---

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…

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 (No 2)

Details

AGLC: Hingst v Construction Engineering (Aust) Pty Ltd (No 2) [2017] VSC 700
Case: [2017] VSC 700
Decision Date: 20 November 2017

CaseChat Overview and Summary

The plaintiff, Hingst, self-represented, filed an application to vacate the trial date in a matter against Construction Engineering (Aust) Pty Ltd. The dispute pertained to a personal injury claim. The application was heard in the Supreme Court of New South Wales. The defendant opposed the application, citing the plaintiff's numerous prior attempts to vacate the trial date without success and the absence of any new evidence presented to the Court.

The central legal issue was whether it was in the interests of justice to vacate the trial date, considering the plaintiff's history of seeking adjournments and the lack of fresh evidence. The Court also had to consider the principles of case management and relevant statutory and rule provisions, specifically section 7 of the Civil Procedure Act 2010 and Order 13 of the Supreme Court (General Civil Procedure) Rules 2015. The Court needed to balance the plaintiff's right to a fair trial against the defendant's right to have the matter heard and the interests of efficient case management.

The Court concluded that it was not in the interests of justice to vacate the trial date. The plaintiff had made multiple unsuccessful applications to adjourn, and there was no new evidence presented. The Court emphasised the importance of adhering to case management principles and the need to ensure that the judicial process is not unduly prolonged. The application was dismissed, and the trial proceeded as scheduled. The Court further noted the importance of self-represented litigants understanding and complying with procedural rules to avoid potential adverse consequences.

The final orders included the dismissal of the plaintiff's application to vacate the trial date and the direction that the trial proceed as scheduled. The Court warned the plaintiff about the potential for costs orders if the matter was further adjourned without just cause.

Orders