Mc Vey v Bullard

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2023 02033

BETWEEN:

WILLIAM JAMES MC VEY	Plaintiff
v
ANTHONY BULLARD & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2024
DATE OF RULING:	29 July 2024
CASE MAY BE CITED AS:	Mc Vey v Bullard
MEDIUM NEUTRAL CITATION:	[2024] VSC 442

---

PRACTICE AND PROCEDURE — Application made by each defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) — Whether the plaintiff’s claims have no real prospect of success — Applications, in the alternative, pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Amended Statement of Claim —Whether the plaintiff’s claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process.

---

APPEARANCES:	Representative	Solicitors
The Plaintiff in person
For the First and Second Defendants	Mr G Triantopoulos	GTR Lawyers
For the Third and Fifth Defendants	Mr S Buchanan of counsel	Hall & Wilcox
For the Fourth Defendant	Ms M Mann	Gilchrist Connell Pty Ltd

TABLE OF CONTENTS

A.. The Defendants’ Applications

B.. Procedural Background

C.. Defendants’ Application for Summary Judgment under ss 62 and 63 of the CPA

C.1Sections 62, 63 and 64 of the CPA

D.. Defendants’ Application to Strike Out the ASOC

E... Disposition

HER HONOUR:

A The Defendants’ Applications

In this proceeding, the plaintiff, who is self-represented, sues a number of defendants who he says were charged, in various ways, with professional responsibility for protecting his interests over a period of time during which he pursued a claim for compensation for personal injuries he had sustained in the course of his employment.
Specifically:
(a)the first defendant, Mr Anthony Bullard, was appointed by the County Court of Victoria in 2006 to act as the plaintiff’s litigation guardian and thereafter undertook the plaintiff’s personal injury litigation in that capacity;
(b)the second defendant, Bullards Solicitors, was the firm of solicitors associated with Mr Bullard at the time of, and during, his appointment as the plaintiff’s litigation guardian;
(c)the third defendant is the representative of the estate of Katherine Wilson in circumstances where Ms Wilson (who passed away in 2022) acted as the solicitor for the plaintiff, engaged by his litigation guardian in the personal injury litigation;
(d)the fourth defendant, Richmond and Bennison Lawyers, is the law firm at which Ms Wilson worked prior to leaving and setting up her own firm and so, it was the firm of solicitors engaged by the plaintiff’s litigation guardian whilst Ms Wilson was employed by them;
(e)the fifth defendant, Melbourne Injury Lawyers, was the firm set up by Ms Wilson, and the firm thereafter engaged by the plaintiff’s litigation guardian to act as solicitors for the plaintiff in his personal injury litigation.
The plaintiff alleges that all of the defendants were professionally negligent in the services they rendered to him and seeks a substantial amount of damages, including ‘compensatory damages, nominal damages, punitive damages and special damages’.[1]
[1]Amended writ and statement of claim dated 5 November 2023.
By summonses filed on 1 December 2023,[2] and 8 December 2023,[3] the defendants each apply for summary dismissal of the plaintiff’s claims pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (‘CPA’) and/or the inherent jurisdiction of the Court, or alternatively, for the amended writ and statement of claim dated 5 November 2023 (‘ASOC’) to be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
[2]A summons was filed on 1 December 2023 by the first and second defendants by their solicitors, GTR Lawyers, and a separate summons was filed by the third and fifth defendants on 1 December 2023 by their solicitors, Hall & Wilcox.
[3]A summons was filed on 8 December 2023 by the fourth defendant by their solicitors, Gilchrist Connell Pty Ltd.

B Procedural Background

On 29 March 2023, the plaintiff commenced this proceeding by filing his writ and statement of claim alleging the defendants caused him loss and damage by reason of their negligent representation of him. The statement of claim was then 29 pages in length, and contained allegations in a series of unnumbered paragraphs interspersed with text seemingly extracted from legal texts, with references to a large number of cases and statutes, and quotes from those sources.
On 26 July 2023, Irving AsJ made orders referring the plaintiff to the Victorian Bar Pro Bono Assistance Scheme. The purpose of the referral is described in paragraph 2 of the orders as being, relevantly, to assist the plaintiff by providing advice on the merits of his statement of claim, and if appropriate, drafting a new or amended statement of claim.
On 20 September 2023, the plaintiff wrote to the defendants by email to inform them that Counsel who had accepted the referral from the Victorian Bar Pro Bono Assistance Scheme had withdrawn. The reason given in the email for the withdrawal was that there was a conflict of interest arising from the barrister’s former employment at a law firm, which firm, Mr Mc Vey says:
(a)had hired a person to shoot him at Kensington railway station; and
(b)previously employed a solicitor who looked after his father’s deceased estate from which assets had gone missing.[4]
[4]Affidavit of Gregory Phillip King affirmed 1 December 2023, Exhibit GPK-1, 4 (‘King Affidavit’).
On 6 October 2023, Gilchrist Connell, the solicitors for the fourth defendant, wrote to the plaintiff on behalf of all defendants to the proceeding identifying deficiencies in the filed statement of claim by reference to the rules of pleading contained in the Rules. The letter invited the plaintiff to address the deficiencies in an amended pleading. It also suggested, in some detail, ways for the pleading to be improved by amendment; including by: breaking down rolled up allegations into separate paragraphs; identifying the parties and the basis of their respective relationships with the plaintiff; identifying the nature and source of the obligations alleged to be owed to the plaintiff by each defendant; identifying the alleged acts or omissions of each defendant in breach of such obligations; and identifying the remedies to which the plaintiff alleged he had become entitled against each defendant.[5]
[5]King Affidavit, [12] and Exhibit GPK-1, 5–10.
Later on 6 October 2023, the plaintiff sent to Gilchrist Connell a long email describing the letter he had received as being designed to be ‘misleading to obtain a [sic] outcome, when the relevant facts have been clearly out lined [sic] in the first 11 pages of the Writ and Statement of claim.’[6] By the email, the plaintiff purports to respond to points raised in the Gilchrist Connell letter, defending the pleading that had been filed as adequate to identify the defendants, the duties owed, the breaches and their liability to the plaintiff. The response is prolix and difficult to follow. It contains additional detail as to the reasons for the conflict of interest, which prevented the accepted referral to the Victorian Bar Pro Bono Assistance Scheme from proceeding.[7]
[6]Affidavit of Marini Nicole Mann sworn on 1 December 2023, Exhibit MNM-1, 11 (‘Mann Affidavit’).
[7]Mann Affidavit, Exhibit MNM-1, 14.
Subsequently, the plaintiff sent the defendants two proposed amended statements of claim, on 10 October 2023 and 17 October 2023 respectively.[8] It is difficult to discern, in the absence of any redlining or similar demarcation, what amendments were made (if any) to the substance of the two proposed amended pleadings beyond the incorporation of paragraph numbering.
[8]Mann Affidavit, Exhibit MNM-1, [13], [16].
On 18 October 2023, Judicial Registrar Baker made orders, amongst others, granting the plaintiff leave to file and serve an amended writ and statement of claim by 15 November 2023. In ‘Other Matters’ to the orders made that day, Judicial Registrar Baker recorded that:
[t]he parties noted that the defendants had written to the plaintiff to raise concerns about the plaintiff’s current statement of claim. The plaintiff noted that he did not accept that his statement of claim was in an improper form.
It was again suggested by the Court at the directions hearing that the plaintiff seek pro bono assistance from the Victorian Bar Pro Bono Assistance Scheme.[9]
[9]Mann Affidavit, Exhibit MNM-1, [19].
On 25 October 2023, the plaintiff sent a 149-page document headed ‘Further Submission of William James Mc Vey’,[10] under cover of an email in which he wrote:
[10]King Affidavit, [22] and Exhibit GPK-1, 84–233.
ATTACHED IS THE DRAFT FILED TO DAY [sic] WITH RED CREST AS TO ANSWERING ALL YOUR CONCERNS AS TO RESPONSIBILITY AND WHAT LIABILITY THE DEFENDANTS ARE REQUIRED TO PROVIDE IN THEIR DUTY OF CARE TO A CLIENT AND TO THE CORPORATE RESPONSIBILITY AND LIABILITY THAT A CONTROLING [sic] PERSON IS ANSWERABLE TO IN LAW.
I HOPE THIS RESOLVES YOUR SHORT COMINGS.[11]
The so-called submission is entirely incoherent. Seemingly, it relates to a claim against the Victorian WorkCover Authority, the Medical Panel and the Magistrates’ Court. For example, paragraph 122 states:
The current Magistrate has abused and victimized me in my common law rights in common law.[12]
And then at paragraph 149:
The Medical Panel has erred once again as in 2007, 2013 and now in 2023, because the Magistrate is subjecting the Plaintiff to unfair judicial procedure.[13]
The so-called submission includes slabs of text pasted from other sources, seemingly legal textbooks and online legal resources.
[11]King Affidavit, Exhibit GPK-1, 84.
[12]King Affidavit, [22] and Exhibit GPK-1, 101.
[13]King Affidavit, [22] and Exhibit GPK-1, 103.
On 5 November 2023, the plaintiff sent the defendants a further proposed amended writ and statement of claim under the cover of an email stating:
hi this is my final amendment [sic] statement of claim
this is what I am declaring!
I have tried so many times to amend it and file it for review and each time the Registry has denied the right to seal the amended statement of claim
I even refiled the original statement of claim and again the register [sic] denied the sealing of the amended original [sic] statement of claim.
so this is it, i [sic] am not amending it any more and i [sic] answered all the relevant questions asked from point 4.2 request to amend the statement of claim.
…
I am still waiting for a barrister to take up the pro bono request [sic] no one had answered the call.
…
but that is, I hope this answers all your questions and I rely upon as you do also from [sic] the CLR cases from our High Court of Australia to enlighten you as to our law and common law and negligence law [sic] tort and contract law in addressing all these matters as to a solicitors [sic] professional negligence liabilities.[14]
[14]King Affidavit, [24] and Exhibit GPK-1, 234–301.
On 29 November 2023, the plaintiff served the defendants by email with a version of the pleading that he had filed on 25 October 2023, being the ASOC.[15] Despite having been filed on 25 October 2023, the ASOC is dated 5 November 2023 and it appears to be the same document as that sent to the defendants by email on 5 November 2023.
[15]King Affidavit, [25] and Exhibit GPK-1, 302–369.
The ASOC filed on 25 October 2023 is 62 pages long and runs to 570 numbered paragraphs. The amendments, or at least some of them, are shown in red text. I say some of them because the amendments as so indicated would not have added 30 pages to the original pleading, and so, I assume there may be other amendments that are not indicated in red text in the ASOC.

C Defendants’ Application for Summary Judgment under ss 62 and 63 of the CPA

C.1 Sections 62, 63 and 64 of the CPA

The defendants seek summary judgment under s 62 of the CPA. The policy behind Part 4.4 of the CPA (in which s 62 and associated provisions are housed) is to enable the disposition of unmeritorious claims and defences so as to save the costs, time and resources of the courts. Section 62 of the CPA entitles a defendant to apply for summary judgment in a civil proceeding on the ground that the plaintiff’s claim (or part of a claim) has no real prospect of success, and the Court can give judgment summarily under s 63 of the CPA, if it is so satisfied.
In the case of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’),[16] the Victorian Court of Appeal stated that the test of whether a claim ‘has no real prospect of success’:
… should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[17]
[16](2013) 42 VR 27 (‘Lysaght’).
[17]Ibid 39 [29] (Warren CJ & Nettle JA).
Although the changes to the summary judgment regime introduced by Part 4.4 of the CPA liberalised the test for summary judgment, the authorities urge caution, and that regard be paid to the overarching purpose under the CPA, when exercising the power to terminate a proceeding summarily given that, in consequence, the party against whom summary judgment is given will be deprived of the chance to pursue their claim.[18] Courts should, therefore, only exercise the power where it is clear there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that the pleadings do not disclose a reasonable cause of action, and no amendment could cure this defect; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[19]
[18]Ibid 40 [35(d)] (Warren CJ & Nettle JA), 42 [42] (Neave JA).
[19]Ibid 40 [35(d)].
Even where there is no real prospect of success of the case disclosed on the pleadings, and perhaps if there is any doubt about it, under s 64 of the CPA, a court may nevertheless allow a matter to proceed to trial if:
(a)it is not in the interests of justice to summarily dispose of the proceeding; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
Whether the Court should, in accordance with s 64 of the CPA, allow the proceeding to go to a full hearing on the merits, must be determined according to the circumstances of each case.
The defendants submit that as best as they can discern from the ASOC, the plaintiff appears to allege:
(a)the defendants all breached a duty or duties of care when representing him as either solicitor of record, or as his litigation guardian, during a period in which he pursued compensation for workplace injuries against his former employer; and
(b)as a result of the defendants’ negligence, not only did he lose his weekly wage and superannuation entitlements, but he was denied opportunities to obtain a range of financial benefits (such as compensation for other legal wrongs, registration of the rights over intellectual property he had created, and the opportunity to commercialise his inventions).
The defendants complain, quite fairly, that the ASOC fails to disclose the material facts forming the basis of the causes of action that the plaintiff seeks to bring against them. Certainly, one has to search through the pleading to paragraph 34 before there is any pleading concerning how and when any of the defendants was engaged by, or appointed to manage the legal affairs of, the plaintiff. In paragraph 34 of the ASOC, it is alleged that the first defendant was appointed as the plaintiff’s litigation guardian in 2006 by Higgins J of the County Court of Victoria. It is not apparent from the pleading in which proceeding the appointment was made. In paragraph 62, it is alleged that the third defendant, as an employee of the fourth defendant, provided professional legal services to the plaintiff between 2006 to 2007. Beyond mentioning that the third defendant left the employment of the fourth defendant and commenced her own firm, being the fifth defendant,[20] there does not appear to be any pleading in relation to the third defendant having remained engaged by the plaintiff at that time, or to anything done or not done by the fourth or fifth defendants.
[20]ASOC [63].
Although there are high level references to the appointment of the first defendant as the plaintiff’s litigation guardian in other paragraphs of the statement of claim, the next substantive reference to the five named defendants comes in paragraph 441 of the ASOC, as follows:
Defendant 3 Defendant 4 Defendant 5 Ms Kathy Wilson Solicitor acting for Mr. Anthony Bullard solicitor Litigation Guardian and the registered business always registered under the corporation Act, [21] had a required [sic] duty of care and a required [sic] duty to act as a Solicitor firm or employee solicitor Acting under both [sic] the defendants 3,4,& 5 and Mr Anthony Bullard Solicitor and firm as Defendant 1 & 2, have Legal Obligation to provide a standard duty of care and a standard of care and to uphold the Plaintiff’s Legal rights accordingly in a responsible manner as a licensed solicitor practising in the State of Victoria.[22]
Despite its opacity, this is actually the clearest allegation in the ASOC to the effect that the five defendants each owed the plaintiff a duty of care. But merely alleging a duty is owed is not enough. There are no material facts pleaded beyond those referred to above (if they can be so described) by which the scope and content of the said duties could be established, nor are there facts pleaded which would establish how and when the duties arose (and indeed ceased). Beyond pleading the connection between the various defendants, there are no material facts pleaded which would tend to establish vicarious liability of the second, fourth or fifth defendants.
[21]This is assumed to be a reference to the Corporations Act 2001 (Cth).
[22]ASOC [441].
Much of the ASOC is devoted to identifying the alleged failures of, or breaches of duty by, the defendants. Hearing from the plaintiff in person during the hearing, and reviewing the ASOC with his oral submissions in mind, the hopelessness of the plaintiff’s case against the defendants became only too apparent. In essence, it is the plaintiff’s complaint in this proceeding that during the period of time (of unspecified duration) that one or more of the defendants acted as his litigation guardian or solicitor in his personal injuries compensation claim, those defendants became duty bound to protect and enforce a litany of legal rights and claims which the plaintiff alleges accrued to him in the three or more decades prior to their involvement.[23] The plaintiff describes the defendants’ failures as follows.
[23]Transcript of Proceedings, William Mc Vey v Anthony Bullard & Ors (Supreme Court of Victoria, S ECI 2023 02033 , Goulden AsJ, 25 March 2024) T50.1 – T51.7, (‘Transcript’).
(a)the first and third defendants’ failure to address defamation claims and breaches of the ‘Race and Religious Intolerance Act 2001’[24] arising out of both the Medical Panel opinions delivered in 2007 and 2013, and their failure to instruct senior counsel to expose those breaches to the Victorian Court of Appeal in 2012 and 2014, and to the High Court of Australia;[25]
[24]This is assumed to be a reference to the Racial and Religious Tolerance Act 2001 (Vic).
[25]ASOC [41].
(b)the failure of all five defendants to address the plaintiff’s rights in relation to other personal injuries, described as:
Lower Spinal Injury left hips injury common law claim
1978-1981(BSC Container Depots)
Left Shoulder injury, Aggravation, Exasperation causing Further Injury of Lower spinal Injury
1986 (Conrail Park) 1981 (Container Depots B.S.C). [Resulting in a loss of] lumps sum claim and weekly wage entitlement and superannuation.[26]
[26]ASOC [70]. See also [264]
(c)the failure of the first defendant to address the ‘Probate Office of Victoria’s’[27] removal and replacement of letters of administration of the plaintiff’s late father, John Mc Vey, causing a loss of his inheritance entitlement.[28] The plaintiff informed the Court at the hearing that his father had died some decades prior to any of the defendants being engaged by him;[29]
(d)the first defendant’s failure to manage the plaintiff’s legal affairs in addressing: the loss of his family home of some 30 years standing; the loss of his ‘freedom, liberty and peace of mind’; the loss of ‘enjoyment of life…from a failed expectancy that failed to occur’;[30] the loss of a property at 144 Development Road, Bolwarrah, Victoria; the loss of a future gold mining development venture; and the loss of one ton of gold;[31]
(e)the failure of all five defendants to address the plaintiff’s legal affairs in securing ‘weekly compensation entitlements, and medical like expenses/loss of assets and enjoyment of life, Duress, Anxiety, nervous shock’;[32]
(f)the first defendant’s failure to address:
the incorrect Court transfer filed into the County Court of Victoria from the Melbourne Magistrate [sic] Court in 2004 and in 2005 was denied from interference by the defendant VWA solicitor Mr Jon Letten to the Master of the Supreme Court Master Kings’.[33]
(g)the failure of the first defendant to uphold the plaintiff’s:
weekly workers compensation entitlements and common law entitlements as too [sic] equity law rights, protection of private property, stolen designs and drawings and graphic designs by companies, Intellectual property, Copyrights, Designer Rights under the W.I.P.O. treaty, Common Law and Equity Law rights.[34]
[27]This is assumed to be a reference to the Victorian Probate Office.
[28]ASOC [71].
[29]Transcript, T21.18, T48.10-.16.
[30]ASOC [72].
[31]ASOC [72].
[32]ASOC [73].
[33]ASOC [82]. See also [271]–[272], [277].
[34]ASOC [83]. See also [87].

These allegations are repeated throughout the balance of the ASOC in an increasingly incoherent manner. The allegations are interspersed between complaints about numerous breaches of ‘common law rights and Equity law rights’ and of ‘property rights, copyrights and designer rights’[35] without detailing the particular acts, matters or things alleged to form the foundation of those claims.[36] The ASOC complains about conduct by persons not named as defendants and whose involvement in this case is unclear; it includes quotes from medical reports that are not clearly identified and the relevance of which is not apparent; it refers to a supporting affidavit and exhibit filed with the ASOC,[37] although there is no such affidavit dated at that time; and, it includes quotes from cases and legislation, sometimes without identifying the referenced legislation by the correct name, or at all.
[35]See, eg, ASOC [17].
[36]ASOC.
[37]ASOC [7], [78] and [85].
In terms of his loss and damage, the plaintiff pleads that as a result of the various breaches of duty, he is entitled to damages including in relation to the failure to secure weekly compensation and payment of expenses; and in turn, the loss of intellectual property rights in respect of the plaintiff’s designs and inventions, and the plaintiff’s gold mining rights at a property under which a gold reef had been discovered. The plaintiff seeks to include in his claim for damages ‘a fair weight of loss of one troy weight ton of gold as compensation at current gold bullion exchange rate’.[38] However, no chain of causation is pleaded to connect the alleged losses to the alleged breaches of duty. At the hearing, the plaintiff submitted that the losses of which he complained arose from lost opportunities to pursue his commercial ventures and to assert his legal rights by reason of the defendants’ failures.[39] For example, the plaintiff asserted, he had missed the opportunity to institute and prosecute cases against Qantas, Singapore Airlines and Emirates, in relation to the theft of his design of the business suite in the A380 aircraft; against Coca Cola in relation to a trademark infringement; and against the Australian Defence Force in relation to patented weapons designs.[40] The plaintiff asserted that the defendants should have done all of those things for him whilst they were engaged as either litigation guardian or solicitor in his personal injuries litigation.
[38]ASOC [90].
[39]Transcript, T55.20 – T57.3.
[40]Plaintiff’s Submissions filed on 18 March 2024 in response to the Defendants’ Application, 95 [831]–[833].
In my analysis above, I have attempted to distil as best as I can the claims sought to be advanced by the plaintiff, giving all appropriate leniency to him as a self-represented litigant. However, owing to the ASOC’s incoherency, this has been a difficult exercise. I was not at all assisted by the plaintiff’s 127 page written submissions filed on 18 March 2024, which quite apart from complaining over the first few pages about the alleged conduct of one of the defendant’s solicitors that is peripheral to this application, otherwise extracts entire slabs of text on defamation from Halsbury’s Laws of Australia, as well as quotes from legislation and cases, all of which have no apparent relevance at all to the issues for determination on this application.
The defendants submit, and I accept by reference to the inadequacies and deficiencies identified above, that the ASOC is manifestly defective in that it fails to disclose the material facts forming the basis of the cause or causes of action intended to be brought by the plaintiff against each of the defendants; it fails to identify the key issues for determination by the Court; and it fails to articulate a causal nexus between the alleged cause or causes of action and the losses claimed against each defendant. In this way, the ASOC fails to disclose a case against the defendants that could be said to enjoy any real prospect of success. For these reasons, I conclude that the plaintiff’s claim enjoys no real prospect of success, and ought to be dismissed under s 63 of the CPA.
Before making that order, it is necessary to consider whether, in the circumstances of this case, the discretion in s 64 of the CPA should be exercised to permit the proceeding to move forward in the interests of justice or because only a full hearing on the merits is suitable in this case. I am not satisfied that the circumstances of this case are such as to justify its continuing despite enjoying no real prospect of success.
The Gilchrist Connell letter dated 6 October 2023 suggested in detail the ways in which the deficiencies in the plaintiff’s pleading may be cured. The defendants have also repeatedly encouraged the plaintiff to obtain legal assistance in respect of his claims in the proceeding, and sought to engage the assistance of the Court in making a referral to the Victorian Bar Pro Bono Assistance Scheme. The plaintiff has expressed to the Court and the defendants that he does not regard his pleading to be deficient, and he has stated in his email correspondence that he does not intend to amend the pleading any further.[41] I am, accordingly, satisfied, there is no realistic prospect that the plaintiff will be able to make any further amendments to his pleading such that it articulates a cause of action that enjoys a real prospect of success.
[41]King Affidavit, [24] and Exhibit GPK-1, 234–235.
The proceeding was commenced over a year ago and has not progressed past the filing of the ASOC. The defendants complain about costs they have incurred as a result of the plaintiff’s conduct, and the costs they foresee they will need to incur in dealing with future iterations of his voluminous statement of claim if it is allowed to continue. The proceeding is also absorbing the Court’s time which ought be available to other litigants. As was held by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor,[42] even self-represented litigants cannot be permitted to continue to file new pleadings and attempt to reformulate their claims:
…especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices...[43]
[42][2012] VSCA 97.
[43]Ibid [36] (Nettle and Osborn JJA).
There is nothing else in the submissions of the plaintiff or the circumstances of the case which convinces me to allow the claim to progress under s 64 of the CPA.

D Defendants’ Application to Strike Out the ASOC

In the alternative to orders for summary dismissal, the defendants seek orders striking out the ASOC under r 23.02 of the Rules. Given my findings in relation to the applications for summary dismissal, there is no need to consider the strike out, however, I have set out my findings under this rule for completeness.
Under r 23.02, the objection taken by an applicant is to the manner of expression of the pleading. That is, the statement of claim does not disclose a cause of action or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.[44]
[44]In Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, Derham AsJ provided a useful explanation of the terms ‘scandalous’, and ‘frivolous or vexatious’ (at [12]), which may not be words immediately understood by the plaintiff given he is not legal trained and represents himself: ‘(a) Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous …; (b) Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.’ The terms ‘prejudice, embarrass or delay’ describe the circumstances where a pleading places the opposite party in the position that they do not know what is alleged against them, usually because it is vague, unintelligible or ambiguous.
Here, the defendants submit that the ASOC should be struck out because it does not disclose a cause of action against any of them. The considerations that are relevant on this ground overlap with those which apply in respect of the application for summary dismissal. The defendants must ‘establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being “fanciful”’.[45]
[45]Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580,594 [35] (Niall, Hargrave and Emerton JJA). See also 5 Boroughs NY Pty Ltd v State of Victoria & Ors; Roberts v State of Victoria & Ors [2021] VSC 785 at [10] per J Dixon J.
It is not necessary to set out all the rules of pleading in this case. However, I mention the following pleading principles as summarised by Dixon J in Wheelahan v City of Casey (No 12) (‘Wheelahan’),[46] in order to provide context for the grounds on which the defendants seek to impugn the sufficiency of the plaintiff’s pleading. Relevantly:
(a)the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial;
(b)a pleading must state all the material facts to establish a reasonable cause of action (or defence), but not the evidence by which the facts are to be proved;
(c)the pleading must be presented in an intelligible form, that is, it must not be vague, ambiguous or inconsistent, so as to enable the opposite party to understand the case against it and respond;
(d)a pleading that contains irrelevant allegations may be embarrassing;
(e)it is not sufficient to simply plead a conclusion from unstated facts and a pleading which does so is usually embarrassing; and
(f)a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.
[46][2013] VSC 316, [25] (‘Wheelahan’), approved by the Court of Appeal in Uber Australia Pty Ltd v Adrianakis (2020) 61 VR 580, 599 [50].
The power to strike out a pleading is discretionary, and will only be exercised where there is a substantial objection to the pleading that is complained of, or some real embarrassment is shown. Where the objectionable part or parts of a pleading are so intertwined with the rest of it, then it may be appropriate to strike out the whole of the pleading.[47]
[47]Wheelahan [25(p)].
Fundamentally, the ASOC, despite running to over 60 pages and 570 paragraphs, does not contain, in summary form, allegations of the material facts related to the claims sought to be brought by the plaintiff. For example:
(a)the ASOC does not identify the precise duty owed by any of the defendants, the scope of any retainer, the acts and omissions alleged to constitute breach of any duty, the facts establishing a causal nexus between the breach and loss suffered, or the substantial damages claimed against each defendant;
(b)the ASOC does not identify the material facts necessary to make out any other cause of action that the plaintiff may intend to pursue such as the asserted breaches of his common law, equitable, property, intellectual property and other rights;
(c)there is a general failure throughout the ASOC to identify specific dates (including most critically, the dates on which each duty is said to arise and/or cease) or any acts or omissions with sufficient particularity;
(d)the ASOC improperly includes information and material that appears to have been extracted from unidentified source documents.
The ASOC contains submissions, conclusions, commentary and references to evidence. It refers to an affidavit and an exhibit which do not appear to exist.[48] The ASOC also refers to various legislative provisions under different statutes, however, it is unclear whether any claim is intended to be made against any particular defendant in reliance on those provisions. For example, there are references to the provisions of the Privacy Act 1988 (Cth),[49] provisions of the ‘Administration Law Act [sic]’,[50] and the United Nations Declaration of Human Rights.[51] The ASOC also pleads that the proceeding involves a ‘matter’ arising under the Australian Constitution within the meaning of s 78B of the Judiciary Act 1903 (Cth).[52] However, from the pleading, it is not apparent which aspect of the claim is said to raise a ‘matter’ under the Constitution.
[48]ASOC [7], [78], [85].
[49]ASOC [123]–[125], [160]–[161].
[50]ASOC [243]–[244]. This is assumed to be a reference to the Administrative Law Act 1978 (Vic).
[51]ASOC [411]–[415].
[52]ASOC [15]–[16], [104].
The ASOC also makes a series of serious allegations about unidentified persons engaging in criminal conduct including: the ‘editing, deletion and tampering with the Court Audio file’;[53] interference by a legal practitioner with the decision making of a judicial officer;[54] and the false filing of claims by the first defendant without the plaintiff’s knowledge or signature.[55] None of these serious allegations is particularised.
[53]ASOC [26].
[54]ASOC [82], [218], [277], [494].
[55]ASOC [527].
For the reasons above, and because the ASOC fails to disclose a cause of action for the reasons considered in relation to the applications for summary dismissal; and because the deficient parts of the pleading are so intertwined with the whole, I would make orders under r 23.02 that the ASOC be struck out in its entirety.
I would not grant leave to re-plead, having regard to the opportunities the plaintiff has had to rectify the deficiencies in his pleading. It would also be unfair and contrary to the overarching purpose under the CPA to permit the plaintiff to continue to subject the defendants to significant cost, time and inconvenience in having to respond to numerous iterations of a voluminous and incoherent pleading.

E Disposition

Having regard to the above reasons, I will dismiss the proceeding.
I will order that the plaintiff pay the defendants’ costs of the proceeding on a standard basis.

SCHEDULE OF PARTIES

S ECI 2023 02033
BETWEEN:
WILLIAM JAMES MC VEY	Plaintiff
- v -
ANTHONY BULLARD	First Defendant
BULLARDS SOLICITORS	Second Defendant
MATTHEW RAWLINGS (IN HIS CAPACITY AS REPRESENTATIVE OF THE ESTATE OF KATHERINE WILSON)	Third Defendant
RICHMOND AND BENNISON LAWYERS	Fourth Defendant
MELBOURNE INJURY LAWYERS	Fifth Defendant

[2024] VSC 442

29 July 2024