Khan v NEC Australia Pty Ltd (Ruling)
[2025] VCC 738
•2 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-00436
| ABDUL Khan | Plaintiff |
| v | |
| NEC Australia Pty Ltd | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 June 2025 | |
DATE OF RULING: | 2 June 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Khan v NEC Australia Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 738 | |
RULING
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Subject: Application for dismissal of proceedings
Catchwords: Defendant’s application by way of summons for dismissal of proceedings – plaintiff not legally represented – plaintiff’s legal capacity – plaintiff’s previous non-compliance with court orders – general prejudice to the defendant
Legislation Cited: Civil Procedure Act 2010, s29 and s47; County Court Civil Procedure Rules 2018, r25.04
Judgment: Application adjourned
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self represented | |
| For the Defendant | Mr T. Vittorio | Wisewould Mahony |
HIS HONOUR:
1 The defendant in this matter made application by way of summons for a dismissal of the proceedings pursuant to r25.04 of the County Court Civil Procedure Rules 2018 or, in the alternative, s29 and s47 of the Civil Procedure Act 2010. Essentially, the applications came down to a debate about three particular issues.
2 First, as to the plaintiff's legal capacity and in that respect a report of Dr Maher Luka, the treating doctor 21 April 2024, was relevant.
3 Second, as to whether or not relevant witnesses would be called or able to be called by the plaintiff in this matter.
4 Third, the issue of the plaintiff’s legal representation.
5 Surrounding those particular matters, the defendant said that there had been substantial non-compliance with court orders over a five-year period, and as part of that non-compliance with the court orders, there had been repeated poor communication by the plaintiff to the defendant as to the reasons for the non-compliance resulting in significant increases in costs, delay and overall prejudice to the defendant.
6 On that point, the defendant fairly put that it suffered from general prejudice by the effluxion of time rather than any specific prejudice which was caused, for example, by the death of any particular witness.
7 Dealing with each particular matter and for the sake of brevity in oral reasons, firstly, the legal capacity point. While the defendant can point to the evidence of Dr Luka in that letter of 21 April 2024, it does not categorically state that the plaintiff does not have capacity. Rather, it simply states that he suffers from a mental condition which is likely to be worsened by the conduct of trial if he was without representation. Overall, there is no evidence before the Court that the plaintiff lacks legal capacity to bring his claim and prosecute it.
8 As someone with capacity then, he retains the ability to make decisions as to the conduct of litigation. It was put squarely to him that if the conduct of such litigation worsened his mental condition, whether he would continue to pursue the action. He gave a categorical answer that he would continue to pursue his action.
9 Secondly, as to witnesses, it was pointed out to the plaintiff that while the defendant would call two critical witnesses, who the parties agree on Mr Yew, and Mr Ike, it did not have access to Mr Guy Pilens, Mr Danis Christodoulos, Mr James Chan and Mr Darren Causon.
10 In that circumstance, it was put to the plaintiff that he might well have to make efforts to obtain the addresses of each of those former workers and subpoena them to give evidence or call them to come to give evidence.
11 The plaintiff was adamant that he would make attempts to issue subpoenas against them and bring them to Court. He understood clearly that if he could not bring those witnesses to Court, that he still had to run his case. He was adamant that even without these witnesses he would run his case.
12 Thirdly, the issue of legal representation. While the plaintiff has indicated that he has recently made approaches to Greens List to retain Ms Jing Zhu as his barrister, no concrete steps have been taken in this regard. I accept the defendant's submission that it is highly unlikely at this stage that solicitors or counsel will be retained for trial.
13 However, it is often the case that people without legal representation are entitled to bring and prosecute their case in Court. While it does create a level of difficulty, it is not one which the Court is unfamiliar with and has done in the past.
14 Overall then, I consider that the plaintiff has legal capacity to conduct his case. He has indicated he would do so on the papers, as it were, if the witnesses could not be brought to Court, and he has the capacity to represent himself.
15 For those reasons, the trial can proceed. I do however, accept that there has been substantial non-compliance by the plaintiff with court orders. Furthermore, I accept the defendant's submission that that non-compliance has been poorly communicated to the defendant leading to significant increases in costs, delay and overall general prejudice to them caused by the effluxion of time.
16 The most egregious example of that poor communication arises from the most recent trial date adjournment on 1 May 2024 last year. Some eight days prior to the trial, the plaintiff wrote to the Court indicating that he had to travel overseas for a declining state of mental health and as a result could not make the trial date.
17 However, when asked about this in the course of the application, the plaintiff was adamant that he had gone home to Pakistan to attend to funeral services related to the passing of his father. Exhibit D1 was then produced by the defendant which quite clearly indicated that the plaintiff's father had in fact died in 2023. That letter from Dr McIntosh to Dr Maher Luka confirming this was shown to the plaintiff and while he apologised for getting the date wrong in that his father had died in 2023 rather than in April 2024, I formed the distinct view that the plaintiff was not being forthcoming and candid with the Court. I think this reflects poorly on his credit and on this issue I would not accept what he tells me from the Bar table.
18 This obviously has an impact on whether or not the Court can accept his assurances that he will remain in Australia and prosecute his case in October this year. I must say on this issue I consider what was submitted to me to be an egregious example of facts being twisted to suit a particular narrative. As I said, on that issue alone I find that the plaintiff's submission to this Court lacks credit.
19 Despite this finding, I note the following. All interlocutory steps have been completed and the defendant at this stage is in a position to proceed. The matter is pain and suffering only and the issues in respect of the damages' component are limited.
20 Second, the defendant has indicated to the Court that it will call and make available two key witnesses, Mr Yew and Mr Ike. There are no further medical examinations called for by the defendant as it has reasonably up-to-date medical material. I note further that a court book was prepared which seems to be reasonably comprehensive and contains all the interlocutory material that was relevant and that was done only a year ago.
21 Here then, the discovery been completed, the defendant has not sought to interrogate and the plaintiff has interrogated and the defendant has answered. It remains then some four months prior to trial in this matter.
22
In those circumstances, while I have set out above the repeated
non-compliance by the plaintiff with court orders and the most egregious example of that I referred to above, I am prepared to allow the plaintiff to go on to trial and in that circumstance, I will adjourn the defendant's application. I will do so without any order for costs. I think the application was well-brought, it was well-founded and it was brought in a timely manner. The reason for that application lies at the feet of the plaintiff.
23 In those circumstances, as I have said, I consider the defendant's application to be well-based, to be fair and to have been brought in a timely manner.
24 While I will allow the trial date to remain, I will order a number of things, most importantly I will order this matter to a pre-trial directions' hearing one month prior to trial and, I will order the plaintiff to provide to the Court a letter from his treating doctor as to his capacity and the impact the trial will have on his mental state.
25 I do so for two particular reasons, one, is to ensure there is up-to-date material in relation to his mental capacity before the Court, two, because the defendant ought know well in advance that the plaintiff is going to be in a position to conduct the trial from a medical point of view and that is at a time well before it ought to have briefed and likely to have incurred costs.
26 Lastly, it means that the Court at that point will have oversight of the plaintiff's case and it may be at that point that the defendant reagitates its application currently before the Court. Just on that, I wish to say that rather than dismiss the defendant's application at this stage, I will adjourn it simply to one month prior to the trial date.
27 I make it clear that while I am prepared to allow the trial date to proceed, it is the plaintiff's obligation to call the witnesses as I have identified above, being Mr Pilens, Mr Christodoulos, Mr Chan and Mr Causon. It is the plaintiff's obligation to find their details and to approach the Court to obtain subpoenas against those people if necessary. If the plaintiff is not in a position to do that then the plaintiff knows clearly that he will have to proceed to trial without those witnesses and in that circumstance the trial will not be adjourned.
28 Furthermore, I make it plain that I consider the plaintiff has more than ample opportunity to obtain legal representation over the last five years. Similarly, my order will reflect the fact that the plaintiff will not be granted a further adjournment simply because he cannot obtain legal representation. His case will have to go on.
29 The plaintiff has assured me in the most vocal terms that he will not go to Pakistan prior to the directions' hearing or the trial date.
30
Lastly, the plaintiff's claim is as put in his amended pleadings from
March 2024. Those are the pleadings which will govern the trial unless of course there is an application made by the plaintiff to amend that pleading. But in the absence of such application, the pleadings will remain as they are and will govern the relevant issues in the case.
31 As I have said then, I simply propose to make orders confirming the trial date adjourning this application and making ancillary orders in respect of the material which the plaintiff is to provide to the Court.
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