Russell v Murrindindi Shire Council (No 2)
[2020] VSC 463
•17 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 00061
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| MURRINDINDI SHIRE COUNCIL | First Defendant |
| CRAIG LLOYD | Second Defendant |
--
JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2020, further written submissions filed on 19 March, 24 March and 8 April 2020 |
DATE OF JUDGMENT: | 17 August 2020 |
CASE MAY BE CITED AS: | Russell v Murrindindi Shire Council (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 463 |
---
PRACTICE AND PROCEDURE – Summary judgment sought by defendants pursuant to the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim has any real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, referred to – Plaintiff has cause of action known to law – Wilkinson v Downton [1897] 2 QB 57 referred to – Requirements of pleadings – BFJ Capital Pty Ltd v Financial Ombudsman Service Ltd (in liq) [2019] VSC 71 referred to – Knorr v CSIRO (No 3) [2012] VSC 529 referred to – Assistance to be given to self‑represented litigants – Austin v Dwyer [2018] VSC 770 referred to – Statement of claim struck out, with leave to replead in accordance with reasons.
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendants | Mr I Munt | Maddocks |
HER HONOUR:
This proceeding concerns a dispute between the plaintiff, Mr Jack Russell, and the local government agency responsible for the provision of community services in Yea, the town where Mr Russell lives (‘Council’), including the Yea Library. The Council is the first defendant in this proceeding. The second defendant, Mr Craig Lloyd, is the Chief Executive Officer (‘CEO’) of the Council.
These reasons arose out of a hearing conducted on 16 March 2020, which concerned whether Mr Russell had complied with orders made by me on 4 September 2019 (later amended by orders made by Zammit J on 30 October 2019). On 4 September 2019, I made the following orders in response following an application by the defendants on 27 March 2019 to strike out Mr Russell’s statement of claim and enter judgment in favour of the defendants (‘4 September orders’):
1. The statement of claim be struck out.
2. The plaintiff has leave to file an amended statement of claim which:
a.sets out the facts which the plaintiff says gives rise to a duty of care on the part of the defendants to avoid causing him mental harm;
b.sets out the facts, matters and circumstances by which it is said that the defendants intended to cause him mental harm, and/or had breached any duty to avoid causing him mental harm;
c.identifies a recognised psychological or psychiatric injury suffered by him; and
d.says how the defendants’ conduct caused that psychological or psychiatric condition.
3.In the event no amended statement of claim is filed by 4 November 2019, the proceeding is dismissed.
4.If the plaintiff intends to pursue a claim against the defendants in negligence and/or breach of statutory duty, the amended statement of claim must be accompanied by a significant injury certificate.
5.The defendants’ applications in their summons filed 27 March 2019, and the plaintiff’s applications in his summons filed 14 June 2019 be adjourned to a date to be fixed not before 11 November 2019.
6.The plaintiff pay the defendants’ costs of and incidental to the defendants’ summons filed 27 March 2019 to date.
7. There be liberty to apply.
In my reasons, also delivered on 4 September 2019 (‘first reasons’),[1] I summarised the background to the proceeding, as follows:
[1][2019] VSC 560.
The plaintiff, Mr Russell is a retired person, and a resident of Yea. He represents himself in this proceeding.
The first defendant, Murrindindi Shire Council (‘Council’) operates various public services, including a library in the town of Yea (‘Yea library’). The second defendant, Mr Lloyd, is the chief executive officer of the Council (‘CEO’).
There is a history of disputation and litigation between the plaintiff and the defendants. This proceeding concerns the Council’s decision to restrict the plaintiff’s hours of access to the Yea library. The restriction was imposed by the Council for the purposes of protecting its staff, following an incident on 13 April 2016, where the plaintiff allegedly assaulted Ms Tull, a member of Council staff employed at the Yea library.[2] As a result of this alleged incident, the Council decided to prohibit the plaintiff from entering any Council premises for a period of twelve months (‘prohibition’). The Council then reviewed and renewed the prohibition in April 2017 and April 2018.
[2]On 14 November 2016, a magistrate convicted the plaintiff of unlawful assault and wilfully trespassing in a public place, and imposed fines of $1,500.00. A County Court judge set aside the orders, and imposed a fine of $500.00 without a conviction. On 26 July 2019, while judgment was reserved, McDonald J dismissed an application for judicial review of the County Court judge’s decision.
On 24 October 2018, the CEO invited the plaintiff to make submissions as to whether the prohibition ought to be varied, and the plaintiff did so. On 9 November 2018 the CEO notified the plaintiff that the Council had determined to vary the prohibition.
In his letter of 9 November 2018, the CEO wrote on behalf of the Council to the plaintiff as follows:
I note that your response letters to me on the 24th and 25th of October 2018 made submissions on the following:
1)You indicated that you were generally supportive of any easing of restrictions;
2)You asked for reasoning of why the proposed changes did not include a lifting of restrictions of visiting the Yea Library, and limited access to the Alexandra Library;
3)You asked for consideration of your inability to travel due to being restricted to an electric wheelchair.
In response to the matters you have raised, I provide the following advice.
1)Access to Yea Library – I understand your position related to the end of court orders/restrictions related to a member of or staff, however, and despite the IVO being allowed to lapse, I have an ongoing duty of care towards my staff. I will therefore not allow you to access the library during her hours of work;
2) I acknowledge your advice regarding your inability to travel.
In reviewing your submissions, and following further consideration, I have made determination that with effect from 1 December 2018, the previous restrictions that applied to your access to Council premises be lifted in full, with the exception of the following:
1)Access to the Yea Library and Customer Services Centre is permitted between the hours of 10am and 12pm each Friday;
2)Attendance at Council Meetings will be allowed, including submission of written Questions of Council in accordance with the relevant Local Law, however I will not allow participation in Public Forum at this time.
3) I will review participation in Open Forum again in 6 months.
...
I will continue to review the remaining restrictions.
On 10 January 2019, the plaintiff commenced this proceeding, alleging that the defendants had caused him mental harm resulting from the decision to restrict his access to the Yea library. As can be seen from the following, the plaintiff prepared the statement of claim without the benefit of legal assistance.[3]
[3]Ibid [1]-[6]. I believe that since the publication of the first reasons, Mr Russell has made an application for leave to appeal the decision of McDonald J.
Later in the first reasons, I stated as follows:
I agree with the submissions advanced on behalf of the defendants that:
(a)the plaintiff does not plead any of the factual matters which would establish that the defendants, or either of them, owed the plaintiff a duty of care to avoid causing the plaintiff mental harm.
(b)the plaintiff does not plead sufficient facts to show how the defendants’ conduct breached any duty by them to the plaintiff;
(c)the plaintiff does not identify whether he suffers from a recognisable psychiatric or psychological condition;
(d)the plaintiff does not plead how the defendants’ conduct caused any psychiatric or psychological condition suffered by him; and
(e)the plaintiff does not plead how the conduct of the defendants gives rise to a claim for aggravated and/or exemplary damages.[4]
And further:
The plaintiff’s claims against the defendants do not appear to be particularly strong, given the nature of the matters pleaded by the defendants in their defence and the contents of Dr Ingram’s report. I also have significant reservations about the plaintiff’s ability to properly plead his allegations. However, there are recognisable causes of action discernible from the matters referred to in the statement of claim, the various affidavits and the plaintiffs submissions and materials. The pleading of course is inadequate, but I consider that it would be premature to shut the plaintiff out completely, at least at this stage, given the need for caution when faced with an application for summary judgment. Of course, there may come a point, in the not too distant future, where the inability of the plaintiff to advance a properly pleaded statement of claim will be fatal to his case.[5]
The plaintiff may also wish to consider whether a more effective remedy for his grievances lies elsewhere, such as through an application for judicial review of the Council’s decision to impose the prohibition (or its decision not to revoke the prohibition entirely). Such an application would be out of time, and would not enable the plaintiff to bring a claim for damages, but as the plaintiff’s primary objective appears to be to gain access, or less restrictive access, to the Yea library, then such a proceeding may be a more appropriate vehicle to ventilate his grievances than a claim for personal injury.
[4]Ibid [34].
[5]See, for example, Knorr v CSIRO (No 3) [2012] VSC 529.
Accordingly, I provided Mr Russell with an opportunity to replead his claim in accordance with the first reasons, and on 26 September 2019 made orders referring Mr Russell to the Victorian Bar Pro Bono Scheme in accordance with the protocols agreed between the Victorian Bar and the Court.
Regrettably, Mr Russell was unsuccessful in obtaining legal assistance through the Victorian Bar’s Pro Bono Scheme. He also failed to comply with the timetable set by the 4 September orders.
Mr Russell did not file and serve an amended statement of claim before 13 December 2019, or at all. However, on 24 October 2019, Mr Russell filed a summons seeking an extension of time to file an amended statement of claim. Exhibited to this affidavit was a document headed ‘Draft Amended Statement of Claim – Liberty to Apply’ (‘draft amended statement of claim’). I shall return to the contents of this document later in these reasons. On 30 October 2019 (in Mr Russell’s absence), Zammit J extended the time for compliance with the 4 September orders to 13 December 2019.
On 20 December 2019, the solicitors for the defendants wrote to the Court, as follows (omitting formal parts):
Pursuant to paragraph 3 of the orders of the Honourable Justice Daly dated 4 September 2019 (the Orders), the Plaintiff was given leave to file an amended statement of claim by 4 November 2019, failing which the Proceeding is dismissed.
Pursuant to the orders of the Honourable Justice Zammit dated 30 October 2019, the time for compliance with paragraph 3 of the Orders was extended to 13 December 2019.
The Plaintiff has not filed an amended statement of claim in the Proceeding. Accordingly, we would be grateful if the Court could confirm that the Proceeding is dismissed.
Following further correspondence between the parties and the Court over the course of February 2020,[6] the matter was relisted for hearing on 16 March 2020 in order to hear the parties’ submissions upon the following matters:
(a) whether Mr Russell had complied with the 4 September orders (as varied on 30 October 2019); and
(b) if so, whether Mr Russell should be permitted to rely upon the draft amended statement of claim.
[6]Mr Russell does not have an email address or regular access to a computer, such that all correspondence with the Court is conducted by post and telephone. The fact that most of the documents filed with the Court are handwritten also hampers communication.
The draft amended statement of claim is brief, and is reproduced below in full:
a)That the 2 Defendants are liable for the Plaintiff’s recovery for damages for both Mental & Physical harm (as the Seleque) [sic] arising out of an intentional act that is being done with the intention of causing (continuing) harm & without obtaining a Significant Injury Certificate/s!
i)That the plaintiff relies upon all Psychiatric Reporting filed with the Court.
ii)That the 2 Defendants were notified & previously aware of the plaintiff’s pre‑existing Mental disability (Drs. Strauss & Wiseman Reports) & that of Dr. Ingram of being – “Suffers from a Chronic adjustment Disorder with depressed & anxious mood (but overlooks evaluation for aggravation of pre‑existing injury”
iii)That the mental & Physical Harm continues ie. Not yet stabilised!
iv)That the access to the Yea Library & to Open Forum, Public Participation is still current. (See Exhibit 11)
3)That the plaintiff seeks to obtain the following:
Orders
a)Extension of time (from 4th November 2019) to allow for:
i)Appointment of Pro-Bono Legal Assistance.
ii)Consent for transfer to the County Court List.
iii)Order to require the lifting of all restrictions & for supervision, to attend Yea Library & Council Open Public Participation to allow stabilisation.
4)Facts to be pleaded are at the disadvantage of the Plaintiff at this time due to factors at 2) & 3) above.
5)That the plaintiff is aware of the set time line – hence request for an Extension time.
6)I file this Draft Amended statement & Supporting Affidavit, with the knowledge that to do otherwise, & before November 4th, would bring my default.
Subsequent to the matter being listed for hearing on 16 March 2020, Mr Russell sent a number of documents to the Court, and presented a further annotated handwritten document in Court. On the last business day prior to the hearing on 16 March 2020, Mr Russell filed a summons in the following terms:
‘Request the Order of the Court that:
(a) That the current status stays.
(b)That a further hearing to satisfy this summons to rectify any [illegible] fault - now overcome by sworn affidavit.
Russell states that the Draft Amended S/ment of Claim is filed as separate to exhibit – affidavit in 2019 as a stand alone document.’
On the basis of the correspondence and other material before me, I understood Mr Russell to be seeking the approval of the Court to allow the draft amended statement of claim exhibited to his affidavit of 23 October 2019 to stand as his statement of claim in the proceeding, and otherwise progress the matter towards trial. The defendants resisted this application, on the basis that, even if Mr Russell’s non‑compliance with the 4 September orders could be excused, the draft amended statement of claim was clearly defective, and should not be permitted to stand as a pleading.
The hearing on 16 March 2020 was brief, and it was not transcribed. However, the hearing was recorded, and I have listened to the recording again while preparing these reasons. Much of the hearing was spent in identifying what documents Mr Russell sought to rely upon in support of his claim. I had not reviewed the voluminous exhibits to Mr Russell’s affidavit of 13 March 2020 (the business day prior to the hearing), through no fault of the parties, and Mr Russell also handed up an annotated document which had not been provided to either the Court or counsel for the defendants prior to the hearing. Essentially, the defendants maintained that the draft amended statement of claim did not cure the deficiencies in the existing pleading, or comply with the 4 September orders. Mr Russell’s submissions were to the effect that he had a good claim, supported by evidence, and that he had done the best he could do given his limitations. Given the additional material to be reviewed, and the uncertain community health situation at the time, I provided the parties with the opportunity to make further written submissions, which they took.
The materials prepared by Mr Russell and considered by me in the course of preparing these reasons include the following:
(a) a memorandum from Mr Russell to my former associated dated 9 September 2019, in the days following the delivery of the first reasons;
(b) a summons filed by Mr Russell on 23 October 2019, seeking an extension of time to file an amended statement of claim;
(c) an affidavit in support, also dated 23 October 2019, which, among other things, annexed the draft amended statement of claim and the memorandum referred to in (a) above;
(d) a memorandum from Mr Russell to Mr Shane Draper (the Court’s Self‑Represented Litigants Coordinator) dated 23 December 2019, in response to the letter from the defendants’ solicitors to the Court dated 20 December 2019 (see paragraph 8 above);
(e) a memorandum from Mr Russell to the Principal Registrar of the Court some time after 16 January 2020, which indicated that Mr Russell wished to appeal against an unspecified decision;
(f) Mr Russell’s further memoranda dated 31 January 2020 and 27 February 2020;
(g) a summons and affidavit in support dated 13 March 2020, the business day prior to the hearing on 16 March 2020, and an annotated version of that document handed up in Court on 16 March 2020;
(h) Mr Russell’s further written submissions dated 24 March 2020 and 8 April 2020.
Essentially, I understand Mr Russell’s claim to be as follows:
(a) the Council knew that Mr Russell was vulnerable, or a ‘person of less than normal fortitude’ given that it had dealt with Mr Russell since 2013 and are well aware of his ‘mental impairment’;
(b) that Mr Russell suffered from a long term mental impairment is evidenced by medico‑legal assessments prepared by Dr Wiseman and Dr Strauss;
(c) the decision of the CEO in December 2018 to limit his access to the Yea Library (along with subsequent refusals to allow him full access to the library, and other incidents involving allegedly malicious and discriminatory conduct on the part of the Council and its officers) was intended to and did cause him distress and aggravated his pre‑existing psychiatric condition;
(d) as he is impecunious, he is unable to afford the psychiatric assessment necessary to obtain a Significant Injury Certificate,[7] and accordingly, he should be excused from being required to produce a Significant Injury Certificate; and
(e) in the absence of legal assistance, he relies upon the draft amended statement of claim and various other affidavits and documents provided to the Court, some of which are enumerated in paragraph 13 above.
[7]Pursuant to s 28LZM of the Wrongs Act 1958 (Vic) (‘Wrongs Act’).
In their written outline of submissions filed on 19 March 2020, the defendants submitted as follows:
The defendants maintain their application from the summons dated 27 March 2019. By virtue of that document the defendants applied for:
a. summary judgment;
b. an order striking out Mr Russell’s claim;
c. an order that the proceeding be permanently stayed; and
d. an order for costs of the summons and the proceeding.
The Draft Amended Statement of Claim and the handwritten annotations to the affidavit – indeed, even including the affidavit as a whole – do not constitute compliance with Order 2 of the Court’s Orders dated 4 September 2019, let alone constitute a claim that complies with the formal and substantive requirements of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
The additional documents do not read as additions to or amendments of the original, struck out claim. They do not remedy any of the manifold defects of the claim, including but not limited to those described in Order 2 of the Court’s Orders dated 4 September 2019.
Indeed, by asking the Court and the defendants to read all three documents together Mr Russell has made the situation worse. It is harder now to discern Mr Russell’s claim than it was before he filed and served the additional documents. This has increased the unfairness to the defendants and the cost of the proceeding for all parties.
As a consequence, there can now be no suggestion that there is any merit to the claim whatsoever. The Court’s powers under r 23.01 of the Rules and ss 62 and 63 of the Civil Procedure Act 2010 exist precisely for this situation. Mr Russell’s claim is hopeless and cannot be saved.
Mr Russell was given an opportunity to obtain legal advice in order to mend his claim and to save this proceeding. He has not taken advantage of that opportunity. There is now no prospect that he can bring the claim and his case up to the minimum standard required by the law in order to pursue it. Continuing this proceeding will only be unfair to the defendants and a waste of the Court’s and the parties’ resources.
Further, Mr Russell has indicated that he refuses to obtain a certificate of assessment, let alone file and serve it, as required by s 28LZM(2)(a) of the Wrongs Act 1958 (W Act), even though he wishes to claim loss for impairment under Part VBA of the W Act. The defendants have not waived this requirement. Accordingly, I submit that if summary judgment is not entered for the defendants or the purported amendments to the claim are not struck out then the proceeding should be stayed until such time as Mr Russell files and serves a certificate of assessment.
Conclusion
For these reasons, the defendants submit that the proceeding should now be brought to an end, with Mr Russell to pay the defendants’ costs.
In his reply submissions dated 24 March 2020 (but filed with the Court in another proceeding[8] on 3 April 2020), Mr Russell submitted, in summary, as follows:
[8]S ECI 2019 00061, being the proceeding before McDonald J.
(a) Mr Russell wishes to re‑apply for pro bono legal assistance;
(b) the draft amended statement of claim complies with the 4 September orders, but is deficient by reason of circumstances beyond Mr Russell’s control;
(c) his claims (based upon the intentional infliction of emotional harm) have strong prospects of success;
(d) as the harm arose out of an intentional act it is not necessary for him to file a significant injury certificate;
(e) the Charter of Human Rights and Responsibilities Act 2006 (Vic) is a relevant factor in this case;
(f) his pleadings are sufficient and supported by evidence; and
(g) Mr Russell not only requires full access to Council facilities to be reinstated, but also wants to clear his name in the small community of Yea.
The issues relevant to the current application include the following:
(a) whether Mr Russell has, or may have, a cause of action known to the law;
(b) whether the draft amended statement of claim complies with the rules of pleading;
(c) if not, whether Mr Russell should be given an opportunity to file a further amended statement of claim; and
(d) if so, what assistance should be provided by the Court, given that Mr Russell is self‑represented, and struggles with putting forward his claims in a logical and coherent form.
When one reads the draft amended statement of claim in combination with his affidavits and submissions, it is evident that Mr Russell, relying to some extent on some of the observations I made in the first reasons, attempted to formulate a claim based upon an allegation that the Council has, in denying him unimpeded access to the Yea Library, intentionally inflicted emotional harm upon him, in circumstances where the Council knew of his vulnerability, and as a result, the Council’s conduct has at least exacerbated his pre‑existing psychiatric disorder. The other conduct of the Council referred to in Mr Russell’s materials is said to evidence both the Council’s knowledge of his vulnerabilities and of its intention to cause him harm. As Mr Russell seeks to bring a claim based upon an intentional tort, there is no need for him to obtain a significant injury certificate under s 28LZM of the Wrongs Act by reason of s28LC(2)(a) of the Wrongs Act. Further, while the usual remedy in tort is damages, in some cases, the Court will grant injunctive relief to prevent further harm being done.[9] Finally, s 39 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) provides that a person who has a pre‑existing claim for relief against a public authority on the grounds that an act or decision of that public authority is unlawful, that person may rely upon the provisions of the Charter to support an allegation that that act or decision was unlawful.
[9]Shelfer v City of London Electric Light Co [1895] 1 Ch 287 (CA).
The above summary shows that it is possible to glean from the materials that Mr Russell has a cause of action known to the law. In Giles v Jeffrey,[10] I summarised the elements of this cause of action, as follows:
As previously noted, the authorities do recognise the tort of intentional infliction of mental harm. In Wilkinson v Downton,[11] a woman who had been falsely informed that her husband had been severely injured in an accident was able to recover damages for nervous shock. Recovery of damages is available where a person does an act (not necessarily a physical act), which is calculated to cause harm to another and in consequence causes physical harm, including emotional shock. However, there are stringent limitations on liability. First, the actual misconduct must have been reasonably likely to cause harm to a normal person, and secondly:
The plaintiff’s emotional distress must have been accompanied by an objective and substantially harmful physical or psychopathological consequences, such as actual illness.[12]
These requirements have generally been interpreted by the courts in Australia and the United Kingdom to limit liability to cases where the requisite intention of the tortfeasor must relate to not only the act itself, but must extend also to the infliction of harm, and where the harm concerned is a recognised psychiatric illness.[13]
[10][2019] VSC 562.
[11][1897] 2 QB 57. See also Magill v Magill (2006) 226 CLR 551 [20].
[12]Sappiden C and Vines P (eds) ‘Flemings – The Law of Torts’ (10th Ed, 2011, Lawbook Co) p [2-100]
[13]See Tame v New South Wales (2002) 211 CLR 317; Giller v Procopets (No 2) (2008) 24 VR 1. See also Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 and Carter v Walker [2010] VSCA 340 [271].
For present purposes, it is not necessary to comment on the merits of Mr Russell’s claims, or the likelihood of him making good those claims at a trial. The difficulty is that the material facts upon which Mr Russell’s cause of action is based are not spelt out in a coherent way. A concise summary of the requirements for pleadings is set out in the decision of Elliott J in BFJ Capital Pty Ltd v Financial Ombudsman Service Ltd (in liq),[14] as follows:
The elements of an adequate pleading are straightforward. A pleading must comprise a coherent narrative of material facts which set out and frame the elements of a cause of action. It must be pleaded with sufficient clarity, must not be unintelligible, ambiguous or vague and must not raise allegations that are offensive. Where particulars are relied upon, they ought not be used to “fill material gaps” or “cure a bad statement of claim”. Ultimately, the purpose of a proper pleading is to allow, in the interests of fairness, the opposite party to know what is alleged. Where a pleading is deficient in any of these respects, an application striking out the pleading may be warranted.
…
Every pleading is required to contain the necessary particulars of any fact or matter pleaded. This is to ensure that the litigation is conducted fairly, openly and without surprise. The court may order a party to serve particulars or further and better particulars of a party’s pleading.[15]
[14][2019] VSC 71.
[15]Ibid [34], [36].
There is no question that the current state of affairs with respect to the articulation and presentation of Mr Russell’s case is unacceptable. A statement of claim must be in a single document, and self-contained, such that it is not necessary to refer to other documents (themselves difficult to read, being handwritten, and poorly expressed) in order to determine what the nature of the plaintiff’s claim, and the facts the plaintiff relies upon (and will need to prove) in order to obtain relief from the Court. While self-represented litigants are entitled to some latitude, and some assistance from the Court, the rules of pleading must be obeyed, so that the defendant (and the Court) can understand the way in which a plaintiff’s case is put. The draft amended statement of claim should not be permitted to proceed in its current form.
I accept that while the Court should exercise caution in dismissing proceedings without a trial simply because of the inability of a plaintiff to produce a comprehensible and coherent statement of claim, the authorities make it clear that, if there is no real prospect of a plaintiff being able to get their case in order, the proceeding should be dismissed, and judgment entered for the defendant.[16]
[16]See, for example, Knorr v CSIRO & Ors (No 3) [2012] VSC 529, referring to Udowenko & Ors v The Chief Executive Officer of the Board of Directors of St George Bank – a division of Westpac Banking Corporation & Ors (No 2) (’Udowenko’) [2011] NSWSC 1122.
Mr Russell fully admits that there are limitations on his capacity to get his paperwork in order. I have some reservations as to whether he will be able to prepare a document which will meet the relatively lenient standard that would be required of a litigant in person. Those concerns would support acceding to the defendants’ submission that summary judgment be granted, and this proceeding be brought to an end, on the basis that they should not be required to bear the ongoing cost and inconvenience of responding to confusing and deficient documents concerning what they consider to be an unmeritorious claim.
However, in my view, it is still premature to shut Mr Russell out of bringing his claims in the proceeding. While this proceeding has been on foot for some time, a substantial part of the delay has been caused by the length of time these reasons (and the first reasons) have taken to prepare, not through any fault of Mr Russell. Further, it is apparent that from the discussion in paragraph 19 above that Mr Russell has, at least for the purposes of preparing a pleading, a cause of action recognised by law, namely, the intentional infliction of mental harm.
However, there remains the concern that Mr Russell may not be able to, despite his best efforts, prepare an adequate pleading. As observed by Derham AsJ in Austin v Dwyer:[17]
An unrepresented party is as much subject to the rules as any other litigant and, although the Court must be patient in explaining them and may be lenient in the standard of compliance which it exacts, it must see that the rules are obeyed, subject to any proper exceptions.[18]
[17][2018] VSC 770.
[18]Ibid [3].
His Honour’s observations were made in the course of a discussion regarding the duties of the Court towards unrepresented litigants. He summarised the position as follows (omitting footnotes):
It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is ‘an essential attribute of a court’s procedure’. It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.
The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. An unrepresented party is as much subject to the rules as any other litigant and, although the Court must be patient in explaining them and may be lenient in the standard of compliance which it exacts, it must see that the rules are obeyed, subject to any proper exceptions.[19]
[19]Ibid [30]–sai[31]
It is certainly not the function of the Court to draft or settle a pleading.[20] However, in order to guide Mr Russell in preparing a further draft amended statement of claim which would enable the defendants and the Court to better understand the case Mr Russell wishes to take to trial, a further draft amended statement of claim must include or address the following matters, on the assumption that Mr Russell’s core claim is that the defendants have intentionally caused him mental harm:
[20]Udowenko [2011] NSWSC 1122 [109].
(a) it must specify the action or actions of the defendants (or either of them) which he says caused him mental harm;
(b) it must specify the nature of the harm said to have been suffered by him as a result of the defendants’ actions, including, in particular, any recognised psychiatric illness said to have been suffered by him as a consequence of the defendants’ conduct;
(c) it must specify what matters Mr Russell relies upon to support his allegations that the conduct of the defendants (or either of them) was intended to cause him mental harm, noting that r 13.10(3)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) requires that proper particulars of allegations concerning the defendants’ state of mind when making allegations that the defendants intentionally caused Mr Russell harm;
(d) it must specify the relief he seeks from the Court; and
(e) if Mr Russell intends to rely upon the Charter, he must identify the section of the Charter upon which he relies, and what actions or conduct of the Council he says breached that section or those sections of the Charter.
Further, the draft amended statement of claim must be a single, legible document (preferably typed) which spells out Mr Russell’s allegations in a logical sequence. There must be no cross‑referencing to other documents, with the following exceptions:
(a) the particulars in the draft amended statement of claim may refer to documents which Mr Russell says evidence the conduct of the defendants that he says caused him harm, and documents which he says evidences the defendants’ allegedly malicious intentions towards him; and
(b) documents which he says evidences any recognised psychiatric injury suffered by him, such as expert reports.
For the avoidance of doubt, it is only necessary for the draft amended statement of claim to refer to the documents relied upon by Mr Russell. It is not necessary to reproduce or seek to summarise their contents.
Accordingly, Mr Russell will be given one last opportunity to get his house in order. I do so on the basis that, while the statement of claim is not currently in an acceptable form, it is possible to glean from the documents in evidence that it is possible that Mr Russell has a viable cause of action. However, there is a limit to the indulgences to be granted to Mr Russell, and that limit will soon be reached.
Accordingly, I propose to make the following orders:
(a) the plaintiff file a further draft amended statement of claim by 2 October 2020;
(b) by 4.00pm on 16 October 2020, the solicitors for the defendants notify the plaintiff and the Court whether it objects to the draft amended statement of claim;
(c) further directions for the conduct of the proceeding (or, as the case may be, for the further conduct of the plaintiff’s application to amend his statement of claim) will be made ‘on the papers’ not before 19 October 2020;
(d) the defendants’ costs be reserved for determination ‘on the papers’ not before 19 October 2020; and
(e) if the plaintiff fails to file and serve a draft amended statement of claim by 2 October 2020, the proceeding stand dismissed.
For completeness, I do not propose to make orders that Mr Russell be provided with pro-bono legal assistance, as requested in his submissions of 24 March 2020. First, the Court has no power to compel the Victorian Bar to provide Mr Russell with legal assistance. Given that referral orders were made in September 2019, and Mr Russell was unsuccessful in obtaining legal assistance, making further orders to that effect would be futile.
3
0