ADMINISTRATIVE LAW – Judicial review – Magistrates’ Court of Victoria decision to strike out plaintiff’s statement of claim – Procedural fairness – Practical content of fairness – Whether Magistrate gave self-represented litigant a reasonable opportunity to respond to the first defendant’s application to strike out – Failure to assist self-represented litigant – Whether error in Magistrate’s failure to grant leave to file another statement of claim – Magistrates’ Court General Civil Procedure Rules 2010 rr 23.01, 23.02, 23.04; Roberts v Harkness (2018) 57 VR 334 applied.
Dr Ling Ye She, (‘the plaintiff’) a self-represented litigant, seeks judicial review of the orders made by a Magistrate of the Dandenong Magistrates’ Court on 30 September 2019 striking out her statement of claim pursuant to r 23.02 of the Magistrates’ Court General Civil Procedure Rules 2010 (‘the orders’).[1]
[1]Notices of Order Made in the Magistrates’ Court of Victoria at Dandenong dated 1 October 2020, exhibited as Exhibit 1 to the affidavit of Ling Ye She sworn 26 November 2019.
In summary, the grounds the plaintiff relies upon are:
(a) a breach of natural justice or procedural fairness by reason of:
(i) being given inadequate time to prepare for the strike out hearing, in light of a purported failure of the first defendant, RMIT University, to produce an affidavit in support of the strike out application;
(ii) the plaintiff not being afforded sufficient time to present her case, and failing to allow her mother to speak during the hearing; and
(iii) apprehended bias, as the Magistrate was prejudiced against the plaintiff who was a self-represented litigant;
(b) an error of law through the application of irrelevant case law, and the failure of the Magistrate to recognise ‘bullying’ as a cause of action;
(c) the Magistrate failing to take into account a relevant consideration, being that ‘bullying’ was a cause of action; and
(d) the Magistrate failing to protect her human right to equality under s 8(3) and to a fair hearing under s 24(1), as well as a number of other rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the
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.
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She v RMIT University [2021] VSC 2
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[2021] VSC 2
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CaseChat Overview and Summary
The case of She v RMIT University was heard in the Supreme Court of Victoria, where the plaintiff, represented without a lawyer, sought judicial review of a Magistrates' Court decision to dismiss her statement of claim against RMIT University. The plaintiff argued that the Magistrates' Court erred in striking out her claim for failing to comply with certain procedural requirements and in not providing her with a fair opportunity to respond to the defendant’s application to dismiss the claim. The core legal issues revolved around the procedural fairness afforded to a self-represented litigant in the context of striking out a statement of claim and whether the court’s failure to assist her amounted to a denial of her right to a fair hearing under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
The court examined whether the procedural steps taken by the Magistrate complied with the practical content of procedural fairness, particularly in relation to the assistance that should be provided to self-represented litigants. It considered the application of the relevant rules under the Magistrates’ Court General Civil Procedure Rules 2010 and the principles established in cases such as Roberts v Harkness and Tomasevic v Travaglini. The court held that the Magistrate failed to provide the plaintiff with a reasonable opportunity to respond to the application to strike out and did not offer sufficient assistance to enable her to address the issues raised. This failure was deemed to breach the principles of procedural fairness and the right to a fair hearing under the Charter.
Ultimately, the Supreme Court quashed the Magistrates' Court decision and remitted the matter for reconsideration. The court found that the procedural errors significantly affected the fairness of the proceedings and that the plaintiff's right to a fair hearing was compromised. The orders included setting aside the Magistrates' Court's decision to strike out the plaintiff's statement of claim and remitting the matter for a fresh determination, with specific directions to ensure that the plaintiff is provided with adequate procedural assistance.