She v RMIT University
[2021] VSC 2
•19 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00423
| LING YE SHE | Plaintiff |
| - v - | |
| RMIT UNIVERSITY | First Defendant |
| - and - | |
| DANDENONG MAGISTRATES’ COURT | Second Defendant |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2020 |
DATE OF JUDGMENT: | 19 January 2021 |
CASE MAY BE CITED AS: | She v RMIT University & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 2 |
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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.
HUMAN RIGHTS – Right to fair hearing – Self-represented litigants - Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24; Tomasevic v Travaglini & Anor (2007) 17 VR 100 and Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | Not applicable |
| For the First Defendant | Ms M Isobel | KHQ Lawyers |
| For the Second Defendant | No appearance | Not applicable |
HER HONOUR:
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 Charter’) during the hearing.
The plaintiff seeks orders in the nature of certiorari and mandamus pursuant to the inherent jurisdiction of this Court to set aside the order and remit the matter to the Dandenong Magistrates’ Court for a directions hearing.
The proceeding is brought against RMIT University as the first defendant and the Dandenong Magistrates’ Court as the second defendant. The Dandenong Magistrates’ Court has not filed a Notice of Appearance, nor sent any correspondence stating that it does not intend to take an active role in the proceeding in accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors,[2] and did not participate in the hearing before me. Therefore, the reference to ‘defendant’ in this judgment is a reference to the first defendant, RMIT University, unless specified otherwise. Both the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission have elected not to intervene in this proceeding.[3]
[2](1980) 144 CLR 13, 35.
[3]Letter from Victorian Government Solicitor’s Office to Supreme Court of Victoria dated 27 February 2020; Letter from Victorian Equal Opportunity and Human Rights Commission to Supreme Court of Victoria dated 20 August 2020.
The plaintiff relies on the following:
(a) affidavits sworn by the plaintiff on 26 November 2019, 2 April 2020, 3 June 2020 and 10 November 2020, and an unsworn affidavit dated 22 November 2020;
(b) her mother, Ying Liu’s affidavit sworn 10 November 2020; and
(c) written outline of submissions filed 3 June 2020 and 22 September 2020 and a list of authorities.
The defendant relies on:
(a) James Elias Allen’s affidavit sworn 7 May 2020; and
(b) written outline of submissions filed on 7 July 2020.
Background
In 2018 the plaintiff was enrolled in a Graduate Diploma of Early Childhood Education at RMIT University. The course required students to undertake work-integrated learning in the form of a supervised placement at a child care centre. She started a placement at Little Stars childcare centre (‘the Centre’) which was meant to last 20 days, but was terminated early, on or around 7 September 2018.
Her experience of the supervised placement, and the defendant’s termination of that placement, appear to be at the core of her grievances. The plaintiff’s numerous affidavits and lengthy submissions filed in this proceeding traverse in some detail the history of her dispute with the defendant and the Centre. While they certainly have significance to the plaintiff, they are only relevant to this Court and to the task before me to the extent that they contextualise the plaintiff’s Magistrates’ Court complaint.
Procedural history of Magistrates’ Court proceeding
On 25 January 2019, the plaintiff brought a civil claim in Dandenong Magistrates’ Court against RMIT University (‘the Magistrates’ Court proceeding’). The plaintiff was self-represented throughout that proceeding. For present purposes it is sufficient to note that the statement of claim broadly alleges negligence, bullying, libel, improper hearing, unfair marking and delay in investigation of complaints by RMIT University, the Centre and named individuals.
The plaintiff claimed a total of $7,569.28 in ‘damages’, comprising of:
(a) $3,369 to refund the subject course fees plus student amenity fee she paid in Semester 2, 2018;
(b) $1,800 referable to ‘wasted’ 10 x 7.5 hours spent undertaking her placement at the Centre;
(c) the filing fee of $307.80 in the Magistrates’ Court; and
(d) $2,400 for loss of opportunity, income and time.
Prior to the strike out application in the Magistrates’ Court hearing on 30 September 2019, the plaintiff:
(a) applied for, and was denied an order for default judgment;[4] and
(b) was ordered to provide further and better particulars,[5] which she provided.[6]
[4]Notice of Order Made in the Magistrates’ Court of Victoria at Dandenong dated 3 April 2019, exhibited as Exhibit 17 to the affidavit of Ling Ye She sworn 3 June 2020.
[5]Certified Extract (Civil) in the Magistrates’ Court of Victoria at Dandenong dated 13 August 2019, exhibited as Exhibit 3 to the affidavit of Ling Ye She sworn 13 August 2020.
[6]Further and Better Particulars filed by the plaintiff on 3 September 2019, exhibited as Exhibit 4 to the affidavit of Ling Ye She sworn 26 November 2019.
The plaintiff’s further and better particulars ran to fifteen pages and were mostly impenetrable. The defendant did not formally respond to them. Instead, it applied to strike out the plaintiff’s statement of claim. A draft summons was served on the plaintiff by email on 24 September 2019, with the sealed summons served the next day. The summons provided that:
1. Pursuant to Rule 23.02, the Statement of Claim filed 25 January 2019 be struck out on grounds that it:
(a) Does not disclose a cause of action or defence
(b) Is scandalous, frivolous or vexatious;
(c) May prejudice, embarrass or delay the fair hearing of the proceeding; and
(d) Is otherwise an abuse of the process of the Court
2. Alternatively, pursuant to Rule 23.02, paragraphs 1(a)-(e) of the Statement of Claim be struck out on the grounds that they:
(a) Does not disclose a cause of action or defence
(b) Is scandalous, frivolous or vexatious;
(c) May prejudice, embarrass or delay the fair hearing of the proceeding; and
(d) Is otherwise an abuse of the process of the Court.[7]
[7]Form 46A Summons filed by the defendant on 25 September 2019, exhibited as Exhibit 5 to the affidavit of Ling Ye She sworn 26 November 2019.
The summons stated that the application would be heard on 30 September 2019.
It appears that the plaintiff emailed the Dandenong Magistrates’ Court and was told by a staff member of the court in writing, amongst other things, that ‘[i]n accordance with Rule 46.05(1) an Affidavit in Support of the Summons, outlining their reasons for seeking the orders, should be served on you.’[8]
[8]Email from staff member at Dandenong Magistrates’ Court to Ling Ye She sent 26 September 2019, exhibited as Exhibit 5 to the affidavit of Ling Ye She sworn 26 November 2019.
As outlined below, the plaintiff takes issue with what she sees as the defendant’s failure to provide affidavit material in support ahead of the strike out application.
The hearing
I have had the benefit of listening to the audio of the hearing that took place on the 30 September 2019, and reading the transcript of that audio. The parties agree that a section of the hearing was not recorded, and hence not transcribed. The defendant’s evidence is that there is approximately 30 seconds of audio missing at the 4 minute 22 second mark.
The application was heard as part of a list of matters. The Magistrate commenced the hearing by asking ‘What is this matter all about?’[9] The solicitor for the defendant, Mr Allen, indicated that it was a strike out application. The defendant made submissions, which, in summary, were that the plaintiff’s statement of claim:
[9]Transcript of Proceedings, Ling Ye She v RMIT University (Magistrates’ Court of Victoria at Dandenong, K10225113, Magistrate Brear, 30 September 2020) T02.14.
(a) alleges negligence and libel but did not plead the required elements;
(b) pleads against non-parties, namely the Centre; and
(c) alleges bullying seemingly as a cause of action in its own right, although it is not a cause of action.
There were a number of exchanges between the Magistrate and Mr Allen in the course of the defendant’s submissions. Mr Allen handed up to the Magistrate copies of r 23.02, r 23.04, and two cases, Annesley v Westpac[10] (‘Annesley’), Vo v Nguyen[11] (‘Vo’) and another unspecified case. The Magistrate then took some time to consider that material.
[10][2016] VSC 323.
[11][2013] VSC 304.
The plaintiff’s unchallenged evidence was that she did not receive copies of the authorities or the relevant rules on the day.[12] The plaintiff did, however, receive a copy of the summons on 25 September 2019 which outlined the substance of r 23.02.
[12]Affidavit of Ling Ye She sworn 26 November 2019, 3 [1.3].
During his exchange with Mr Allen, the Magistrate appears to interject to address the courtroom generally, saying:
HIS HONOUR: If I can just say that I won’t be taking another matter for at least 20 minutes, 25 minutes. I’m not sure how long this will go, okay. So let’s say not before 10 to 11:00. Okay. Thank you …[13]
[13]Transcript of Proceedings, Ling Ye She v RMIT University (Magistrates’ Court of Victoria at Dandenong, K10225113, Magistrate Brear, 30 September 2020), T05.27-30.
The Magistrate then gave the plaintiff an opportunity to address the Court. The plaintiff began by referring to her further and better particulars. Shortly after the plaintiff commenced her submissions, the Magistrate interjected to request a copy of the particulars, which she handed up. The Magistrate then allowed her to speak uninterrupted for a period before interjecting. His Honour cautioned a woman in the body of the Court who can be heard on the audio recording speaking in the background. The plaintiff says this was her mother.
The subsequent exchange between the Magistrate and the plaintiff is outlined in full below, as it reflects the brevity of interaction with the plaintiff, and the content of the Magistrate’s ruling.
MS SHE: You should read the 15 pages of further and better particulars.
HIS HONOUR: I have looked at them. The point is this, that this Court, when it looks at your statement of claim has difficulty understanding whether you are alleging negligence and breach of duty, or breach of contract of employment, or breach or unfair dismissal which would go to some other place. On the material before me, the law, it seems, if I look at your three page statement of claim, it is not clear to me exactly what – to the Court – you may know in your mind what you’re alleging. But the Court has difficulty understanding exactly what you are claiming. Apart from, it would seem, breach of – breach of contract. On the material that I am looking at, at the moment, it is difficult for the Court to see from this document, from this three page document precisely what negligence you are alleging against the University.
You haven’t alleged, in your material, exactly what your contract was. It doesn’t give a narrative of what your contract was with the University. It doesn’t set out in a summary form, 1, 2, 3, 4, 5 the particular things that you are alleging. What you are alleging here is argument and the further and better particulars are so verbose, so large that they condescend to evidence that you intend to give, rather than the precise particulars of what your claim is. You should see a lawyer to help you. Have you done that?
MS SHE:I have seen a lawyer. And everyone finds my case really clear - - -
HIS HONOUR: Right. Okay. All right, thank you.
MS SHE:- - - apart from today.
HIS HONOUR: Is there anything else you wish to say?
MS SHE:Well, I am going to say that if today this application gets struck out, I will be appealing. That’s all I can say. If you don’t want to read my claim and you don’t want to read my further and better particulars and you just want to apply some legal jargon or legal games, because I am not from the law profession, there is nothing I can do. But I do – I will appeal.
HIS HONOUR: On the material that is before the Court and having regard to the cases ….. the claim that has been provided is of such a nature that it may “prejudice, embarrass or delay the fair hearing of the proceeding[“]. Without setting out clearly exact what the – what the allegations are and how they are connected to a cause of action, the allegations of bullying – would you please hold your peace and show some courtesy? This is not a McDonald’s restaurant.
UNIDENTIFIED FEMALE: …..
HIS HONOUR: No, Madame. You will maintain your peace. All right. I am not presiding over an argument. I am giving my decision. The statement of claim alleges bullying which is not, as submitted, a cause of action. The way the material is presented, principally, may “prejudice and embarrass or delay the fair hearing of the proceeding.” And in its present form and having regard to the copious further and better particulars which do not - do not – amplify the matter with some clarity on the essential points, I find the application is proven. Accordingly, the statement of claim is struck out.
You may file another statement of claim. You may seek legal advice and assistance. But on the material before the Court, the matter is one where the Court is not clear, precisely, what is being alleged and how it is being alleged in a concise and effective way. I direct that these judgments that have been tendered remain on the Court file. Yes, you may leave the Court.
MR ALLEN:As the Court pleases.
ADJOURNED[14]
[14]Ibid, T09.23-T10.38, emphasis added.
During oral submissions before me there was a dispute about the relative time allotted to the parties during the Magistrates’ Court hearing. The plaintiff submitted that she was given five minutes to speak during the hearing while the ‘exclusive conversation between His Honour and Mr Allen’ lasted five pages of transcript.[15] Counsel for the defendant submitted that the defendant was given 15 or 16 minutes and the balance of the approximately 30 minute hearing was devoted to the plaintiff.[16]
[15]Transcript of Proceedings, She, Ling Ye v RMIT University (Supreme Court of Victoria, S ECI 2020 00423, Incerti J, 1 December 2020), T32.10-11 (‘T’).
[16]Ibid, T54.05-14.
It is clear to me from the audio that the plaintiff’s uninterrupted submissions lasted approximately five minutes, and then the Magistrate interjected. As will be discussed below, the subsequent interaction between the plaintiff and the Magistrate was not comparable in time or depth to the exchange in which the Magistrate engaged with Mr Allen. The audio and transcript show that Mr Allen was given approximately 13 minutes to present his submissions, compared with the plaintiff’s five.
The orders made
Following the hearing, the Magistrates’ Court issued two Notices of Order Made on 1 October 2019. One of the Notices of Order Made reads:
ORDERS
RMIT UNIVERSITY – V – LING YE SHE
INTERLOC APPLICATION
Application order: GRANTED
Order that:
STATEMENT OF CLAIM STRUCK OUT ON BASIS OF RULE 23.02.
NO APPLICATION FOR COSTS.
Magistrate / Registrar : L. Brear
REMARKS
MR ALLEN FOR DEFENDANT/APPLICANT
THE PLAINTIFF/RESPONDENT APPEARED IN PERSON
DATE: 01/10/2019[17]
[17]Notice 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 (‘first order;).
The other reads:
ORDERS
LING YE SHE – V – RMIT UNIVERSITY
DEFENCE TO CLAIM
Claim order: STRUCK OUT
Magistrate / Registrar : L. Brear
REMARKS
THE PLAINTIFF APPEARED IN PERSON
MR ALLEN FOR THE DEFENDANT
DATE: 01/10/2019[18]
[18]Notice 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 (‘second order’).
The precise effect of those orders, and the extent to which they give effect to the ex tempore decision handed down by the Magistrate on 30 September 2020 is unclear.
The plaintiff was confused about their effect, and on 1 October 2020 wrote to the Dandenong Magistrates’ Court asking:
…does the court order from Mr Brear strike out my entire complaint? The order says statement of claim? What claim has been strike [sic] out?[19]
[19]Email from Ling Ye She to Dandenong Magistrates’ Court dated 1 October 2019, exhibited as Exhibit 1 to the affidavit of Ling Ye She sworn 26 November 2019.
She received a response from a staff member of the Magistrates’ Court that day stating:
I can confirm that Mr Brear’s order strikes out your entire complaint.
The Statement of Claim is the numbered paragraphs in your Complaint document. If these have been struck out, then you no longer have a Complaint.[20]
[20]Email from staff member of Dandenong Magistrates’ Court to Ling Ye She dated 1 October 2019, exhibited as Exhibit 1 to the affidavit of Ling Ye She sworn 26 November 2019, emphasis added.
On 21 October 2019 the plaintiff replied and, amongst other things, noted:
Also, the order from Magistrate Brear is unclear. It says on the final page of the Order under Ling Ye She v RMIT University, the Defence to claim is struck out. Then on the second page of the order under RMIT University v Ling Ye She it says the statement of claim is struck out using Rule 23.02.
Can you confirm that the court has dismissed my case?[21]
[21]Email from Ling Ye She to Dandenong Magistrates’ Court dated 21 October 2019, exhibited as Exhibit 1 to the affidavit of Ling Ye She sworn 26 November 2019.
On 23 October 2019 a staff member responded to that question on behalf of the Dandenong Magistrates’ Court noting:
I can confirm that the Court has dismissed your case.[22]
[22]Email from staff member of Dandenong Magistrates’ Court to Ling Ye She dated 23 October 2019, exhibited as Exhibit 1 to the affidavit of Ling Ye She sworn 26 November 2019, emphasis added.
At the hearing before me on 1 December 2020, I raised the question of the effect of the orders with counsel for the defendant. My question, in essence, was whether the defendant understood His Honour to have dismissed the entire proceeding or struck out the statement of claim with a right to re-plead.
Counsel for the defendant noted that the effect was ‘not entirely clear’,[23] although it had not caused the defendant any concern because His Honour had expressly stated that the plaintiff could file a new statement of claim. Counsel indicated that she understood the Magistrate struck out ‘[the applicant’s] entire claim’, while the door to a new complaint (with a revised statement of claim) remained open.[24]
[23]T63.17.
[24]Ibid, T63.31-T64.05.
I stood the matter down briefly at the defendant’s request for counsel to obtain further instructions. Counsel for the defendant later informed me that it was Mr Allen, the instructing solicitor’s belief, that the plaintiff’s Magistrates’ Court complaint remained on foot. In an affidavit sworn on 7 December 2020 Mr Allen deposes that he spoke with a Registrar at the Dandenong Magistrates’ Court at 12:52pm on 1 December 2020 who informed him that:
the Orders of Magistrate Brear dated 30 September 2019 only struck out the statement of claim and not the entire proceeding; and
the further Orders of Magistrate Brear dated 30 September 2019 struck out the Defence to Claim and not the entire proceeding.[25]
[25]Affidavit of James Allen sworn 7 December 2020, [3].
In light of the new information as to the status of the Magistrates’ Court proceeding the defendant submitted that the plaintiff could quite simply ‘go to the Magistrates’ Court tomorrow and seek to file a new statement of claim.’[26]
[26]Ibid, T68.11-13.
The plaintiff indicated that the Supreme Court’s Self Represented Litigant Co-ordinator had previously asked her to confirm the status of the Magistrates’ Court proceeding. The plaintiff provided a further email sent by the Dandenong Magistrates’ Court that was not previously exhibited to her affidavits. The email from the staff member of the Dandenong Magistrates’ Court to the parties on 1 October 2019 states:
…Please find attached a copy of the orders made yesterday.
Also attached is the print out of the Rules used by the defence in support of them not filing an affidavit, as well as copies of the three Supreme Court decisions used to support their application.
The matter was moved from Court 8 to Court 4 due to the business of the Court. The Matter was heard by Magistrate Brear.
To answer your remaining questions would be giving legal advice, which as a Registrar of the Court I am unable to do.
The matter is now finished at this Court. If you wish to appeal the decision you will need to lodge the appeal at the Supreme Court of Victoria within 30 days.[27]
[27]Email from staff member of Dandenong Magistrates’ Court to Ling Ye She dated 1 October 2019, emphasis added.
On 2 December 2020 the defendant’s solicitor received an email from a staff member of the Dandenong Magistrates’ Court which stated:
I confirm the matter has been struck out in its entirety by virtue of the Statement of Claim being struck out and no provisions having been made for the filing of an amended/substitute statement of claim.[28]
[28]Email from staff member of Dandenong Magistrates’ Court to James Allen dated 2 December 2020, exhibited as Exhibit JEA-1 Affidavit of James Allen sworn 7 December 2020.
The plaintiff’s submissions
The plaintiff provided the Court voluminous and unwieldy submissions on a range of topics. As noted by the defendant, it is not the role of the Court nor the defendant to unpack the plaintiff’s legal arguments for her. The plaintiff’s originating motion provides a comparatively better and more legible explanation as to why she brings this application. I have condensed the bases of the plaintiff’s application below, relying primarily on the originating motion, her oral submissions, and assisted by the helpful subdivisions of the plaintiff’s submissions provided by the defendant.
The plaintiff seeks two forms of relief. First, the plaintiff seeks an order of certiorari to set aside the decision of Magistrate and the consequent order granting the defendant’s application to strike out the plaintiff’s statement of claim. Second, the plaintiff seeks an order of mandamus to require Dandenong Magistrates’ Court to ‘make the decision again for restoring the second direction hearing in preparation for a proceeding’ before the plaintiff’s statement of claim was subject to a strike out.[29]
[29]Originating Motion filed 21 January 2020, 1.
The plaintiff’s case is premised upon the contention that the Magistrate’s decision and order were made in jurisdictional error. Although the plaintiff does not say as much, this is the logical consequence of the arguments made by the plaintiff. I will confine my analysis to the plaintiff’s principal arguments.
Breach of natural justice and procedural fairness
The plaintiff contends that the Magistrate breached natural justice through the conduct of the hearing to strike out her statement of claim. This argument has various aspects:
(a) the plaintiff argues that she did not receive adequate notice to prepare for the interlocutory hearing as the defendant presented ‘everything verbally on the day’,[30] without ‘an Affidavit in Support of Summons’ filed to enable her and the Magistrate to understand what was occurring during the hearing.[31] It is submitted that the plaintiff was not given an opportunity to prepare a response to any evidence the defendant was to present at the hearing, and that the Magistrate breached natural justice by not asking the defendant why an affidavit in support of the summons was not provided;
[30]Originating Motion filed 21 January 2020, 1 [1.1].
[31]T29.25.
(b) the plaintiff took issue with what she says was the defendant’s non-compliance with Judicial Registrar Gwynne’s order to respond to her further and better particulars;
(c) it is further contended that the defendant referred to three cases as precedents and she was denied the opportunity to read the cases ahead of the hearing;
(d) the plaintiff argues she did not get a fair hearing. It is contended that the hearing lasted less than 30 minutes and that the plaintiff received only five minutes to speak before she was interrupted. The plaintiff submits that the Magistrate did not allow her to finish talking or to read the materials presented by the defendant. The plaintiff states that she was disadvantaged as a self-represented litigant as His Honour did not explain the applicable legal test for an application under r 23.02;
(e) the plaintiff further contends that the proceeding was unfair because of the way in which her mother was treated. It is submitted that the Magistrate did not allow her mother to talk when she was an important party to the case. The plaintiff contends that His Honour silenced her mother’s request to speak; and
(f) the plaintiff claims His Honour demonstrated apprehended bias through prejudice against her as a self-represented litigant.
The plaintiff relies upon numerous decisions of this Court and the Court of Appeal to support her submissions.[32] I have considered those cases that I consider to be the most relevant to the plaintiff’s application.
[32]Matsoukatidou v Yarra Ranges Council [2017] VSC 61; Tomasevic v Travaglini (2007) 17 VR 100; Annesley v Westpac Banking Corporation [2016] VSC 323; Vo v Nguyen and ors [2013] VSC 304; Ragg v Magistrate Court of Victoria (2008) 18 VR 300; Knight v Wise [2014] VSC 76; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 7; Kioa v West (1985) 159 CLR 550, 585; Plaintiff S15712002 v Commonwealth (2003) 211 CLR 476; Foucher v France (1998) 25 Eur Court HR 234; National Tertiary Education Union v RMIT University [2013] FCA 451; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37; as well as a number of cases whose citations could not be verified.
Error of law
The plaintiff argues that the Magistrate should not have placed any weight on the case law presented by the defendant at the strike out hearing. The plaintiff asserts that the cases are ‘contract cases’,[33] and these were not relevant to her situation and to the application before the Magistrate.[34]
[33]Originating Motion filed 21 January 2020, 4 [2].
[34]Plaintiff’s written outline of submissions filed 3 June 2020, 16.
It is put that the Magistrate’s decision involved an error of law because he failed to accept that bullying was a cause of action.
Failure to take into account relevant consideration
The plaintiff appears to restate or reframe her argument about error of law under the banner of an alleged failure to take into account a relevant consideration. The plaintiff claims that the Magistrate failed to take into account the fact that bullying was a cause of action and a breach of her human rights, which she says were relevant factors he was obliged to consider.
The Charter
The plaintiff alleges a number of breaches of the Charter:
(a) breach of the right to a fair trial under s 24(1) by:
(i) failing to give adequate notice of the hearing;
(ii) allowing the defendant not to file an affidavit in support;
(iii) allowing the defendant not to file a response to her further and better particulars;
(iv) failing to give her an adequate opportunity to review the material on which the defendant relied;
(v) failing to read her materials and devoting less time to her than to the defendant; and
(vi) failing to explain the applicable legal test;
(b) breach of s 8(1) by discriminating against her as a self-represented litigant;
(c) breach of s 10(b) regarding the failure to take into account something that is relevant;
(d) breach of s 13(b) regarding the contended error of law; and
(e) breach of s 15(1) by failing to allow her the freedom to hold and express an opinion.
The defendant’s submissions
The defendant rejects each of the plaintiff’s submissions.
Breach of natural justice
First, the defendant submits that the plaintiff was given sufficient time to prepare for the hearing to strike out her statement of claim. It is submitted that the defendant gave notice to the plaintiff by email of the application to strike out her statement of claim through the provision of a Form 46A Summons on Tuesday 24 September 2019 and by following up the next day with a stamped copy. It is noted that the hearing was not until 30 September 2020. It is contended that the plaintiff was able to attend the hearing and present her case.
The defendant submits that, due to the operation of r 23.04(2), no evidence is admissible during an application to strike out a statement of claim, and that the plaintiff’s submission regarding the necessity for an affidavit in support of the application is incorrect.
The defendant notes that the application to strike out the statement of claim was not brought on the basis that the plaintiff’s case was groundless in substance, which would require an application under r 23.01, but rather on the basis that her pleadings were defective.
Second, the defendant submits that the plaintiff was given sufficient opportunity to present her case at the hearing. The defendant argues that the Magistrate heard oral submissions from the plaintiff, gave the plaintiff ample time and opportunity to hear her case, and that the transcript of the hearing indicates the plaintiff received sufficient opportunity.
Moreover, the defendant submits that His Honour disclosed to the plaintiff the critical issue on which his decision turned and gave her an opportunity to address the issue. The defendant states that the Magistrate directed the plaintiff to the difficulty faced in understanding the statement of claim and further and better particulars, and the Magistrate sought the plaintiff’s response on this issue.
The defendant further submits that the plaintiff’s contention that His Honour should have allowed the plaintiff’s mother to speak is not an appropriate basis for judicial review and is without merit. It is submitted that the Magistrate has the power to regulate his own proceedings and that the plaintiff’s mother was acting inappropriately.
Third, the defendant contends that there is no basis for the apprehended bias claim. The defendant submits that the plaintiff’s originating motion does not go beyond a bald assertion that the Magistrate was prejudiced against the plaintiff for being a self-represented litigant. Further, the defendant contends that the plaintiff’s submissions do not clarify her claim of bias and primarily contain a litany of grievances with the Magistrate, court staff and other judicial officers.
The defendant contends that the assertions of apprehended bias are not supported by an analysis of His Honour’s conduct. It is submitted that the Magistrate reviewed all of the material before him including the relevant Rules, case law provided by the defendant and the plaintiff’s statement of claim and further and better particulars. The Magistrate heard oral submissions from the defendant, and gave the plaintiff ample time and opportunity to present her case. The Magistrate provided assistance by disclosing the critical issue, that is, the difficulty the Magistrate faced in understanding her statement of claim, and by describing the minimum requirements of pleadings to the plaintiff.
No error of law
Fourth, the defendant contends there was no error of law made by the Magistrate. The defendant submits that the plaintiff’s arguments are misconceived as the Magistrate was correct to indicate to the plaintiff that bullying is not a cause of action. This is supported by the Magistrate suggesting possible options for causes of action which might be open to the plaintiff. The defendant also submits that the case law provided to the Magistrate was relevant to the strike out application.
No failure to take into account a relevant consideration
Fifth, the defendant submits that the plaintiff’s argument regarding the failure to take into account relevant considerations is a restatement of the submissions as to a purported error of law, and repeats their submissions on that point.
No breach of the Charter
Sixth, the defendant argues that there was no breach of the Charter, that the plaintiff’s submissions on this point suffer from the same flaws as those pertaining to apprehended bias, and that, in any event, the Magistrate took appropriate steps to ensure a fair trial for the plaintiff. The defendant sought to distinguish the decisions of Bell J in Matsoukatidou v Yarra Ranges Council (‘Matsoukatidou’)[35] and Tomasevic v Travaglini & Anor (‘Tomasevic’)[36] from the present case. The defendant argues that these cases are distinguishable as the plaintiffs in those cases had a significantly diminished capacity to participate, due to disability and language barriers respectively, which is not applicable to the plaintiff in this case.
[35](2017) 51 VR 624.
[36](2007) 17 VR 100.
Applicable principles
Given the interrelated nature of the plaintiff’s various arguments, and their relevance to procedural fairness, I will firstly discuss all the applicable principles, before providing my reasoning for these various strands of argument.
Applicable Rules
Rule 23.02 of the Magistrates’ Court General Civil Procedure Rules 2010 (‘the Rules’), as in force at the time of the decision, provides:
23.02 Striking out pleading
(1) If a statement of claim, defence or reply or any part of a statement of claim, defence or reply—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the statement of claim, defence or reply be struck out or amended.
Rule 23.04(2) of the Rules provides that no evidence is admissible on an application under r 23.02:
On an application under Rule 23.02 no evidence is admissible on the question whether a claim or pleading offends against that Rule.
Rule 23.02 can be contrasted with r 23.01 which provides that:
23.01 Stay or order in proceeding
(1) If a proceeding generally or any claim in a proceeding—
(a) does not disclose a cause of action; or
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court—
the Court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or make an order for the defendant in the proceeding generally or in relation to any claim.
The restrictions around the admissibility of evidence in applications under r 23.02 do not apply to applications to stay or dismiss a proceeding under r 23.01.
Applicable case law
The principles to be applied in the exercise of the power under r 23.02 are well understood.[37]
[37]Environinvest Limited v Pescott & Ors; Environinvest Limited v Blackburne Pty Ltd & Or [2011] VSC 325 [23] (Judd J).
As Weinberg J (as he then was) said in McKellar v Container Terminal Management Services Ltd, the purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet so as to enable them to take the steps necessary to deal with it.[38]
[38][1999] FCA 1101 [21]-[25]; Dare v Pulham (1982) 148 CLR 658, 664.
When an application under r 23.02 is successful, the ‘relief normally granted is that the offending pleading (or portions of it) be struck out or amended, not that the proceeding be brought to an end.’[39] Dismissal of a proceeding is not the ordinary consequence of a successful application to strike out a statement of claim under r 23.02.
[39]Household Financial Services Ltd v Braybrook [1991] 2 VR 577, 585.
If the consequence of a successful application under r 23.02 is that a proceeding will be dismissed unless particular actions are performed by a party, that party ‘should be left in no doubt whatsoever as to the steps which [the party] is to take if [the party] is to avoid his action or application being dismissed.’[40] As Green LJ observed in Abalian v Innous in relation to the equivalent rule in that jurisdiction:
If an order is made in the form that, unless one party or another party does something, the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be specified in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies - which would normally be the plaintiff - to be in no doubt whatsoever as to the steps which he is to take if he is to avoid his action being dismissed.[41]
[40]Household Financial Services Ltd v Braybrook [1991] 2 VR 577, 585.
[41][1936] 2 All ER 834, 838.
This principle is offended if an order leaves a party in doubt as to what steps are required through amendment of its pleadings to avoid that party’s proceeding being dismissed. Further, the necessity to set out the steps required is amplified when an order is made in regard to a self-represented litigant. I will discuss this more below.
The purpose and effect of r 23.02 can be contrasted with that of an application to stay or dismiss a proceeding under r 23.01. In Brinson v Rocla Concrete Pipes Ltd Cross J outlined the differences between the two principles, codified in NSW as Pt 15 r 26 (in relation to striking out pleadings) and Pt 13 r 5 (in relation to staying or dismissing proceedings) respectively.[42] In relation to the equivalent of r 23.01, His Honour said:
It can be seen from the opening words that the power of the court under that rule is limited to cases where there is a defect in the pleadings, ie the statement of claim itself, and does not include cases where, after examining evidence, the court comes to the conclusion that the plaintiff’s case, as opposed to his pleading, is hopeless.
…. It can be seen that the terms of the rule [Pt 13 r 5] are wide enough to enable the court to stay or dismiss the whole of the plaintiff’s claim or one or some only of his various claims. It may also be noted that the power of the court under this rule is not to strike out the whole or part of the statement of claim but to stay or dismiss the whole or part of the statement of claim.[43]
[42][1982] 2 NSWLR 937.
[43]Ibid, 941, 944.
In Hoe v Lennox[44] Forbes J considered an appeal of an order made by a Magistrate on an application to strike out the self-represented appellant’s statement of claim. In that case there was some confusion over the effect of a Magistrate’s order where the original form of the order of 17 November 2017 recorded that the interlocutory application was granted and that:
The proceeding be struck out pursuant to Regulation 23.02 of the Magistrates [sic] Court General Civil Procedure Rules 2010.[45]
[44][2020] VSC 262.
[45]Notice of Order Made, Magistrates’ Court of Victoria at Heidelberg, 17 November 2017, exhibited as Exhibit FH1 to the affidavit of Francis Higgins Hill sworn 23 August 2019 filed in Supreme Court of Victoria proceeding S ECI 2018 03013 Hoe, Alex vs Lennox, Lesley.
Ms Lennox applied to the Costs Court for the costs of the proceeding. Judicial Registrar Gourlay, upon hearing that application 24 April 2018, adjourned the application and sought clarification from the Magistrates’ Court as to the effect of the order, noting in Other Matters that the order:
… is unclear as the application made pursuant to Rule 23.02 is to strike out a statement of claim and this does not dismiss the proceeding. … It is not apparent if the proceeding was dismissed (and thus entitling the applicant to costs of the proceeding) or if the pleading was struck out with a right to the respondent [Mr Hoe] to replead.[46]
[46]Order of Judicial Registrar Gourlay made 27 April 2018 in Supreme Court of Victoria proceeding S CI 2018 01039 Lennox, Lesley Hoe, Alex, emphasis added.
In hearing the appeal, Forbes J noted that the respondent, Ms Lennox, ‘did not make an application to summarily dismiss the proceeding as she might properly have chosen to do so’,[47] and that:
An order under rule 23.02 striking out a claim, removes the pleading but does not conclude the proceeding. A party is free to re-plead in proper form a claim that they wish to bring but which is not disclosed by the statement of claim as it was filed.[48]
[47]Hoe v Lennox [2020] VSC 262, [12], emphasis added.
[48]Ibid, [10], emphasis added.
As such, Her Honour held, and the respondent conceded, that the Magistrate did not have the power to make the order of 28 November 2018 whereby the Magistrate ‘clarified’ the 1 March 2018 order by dismissing the proceeding.
Procedural fairness and a fair hearing
General principles
The principles applicable to procedural fairness in the context of decisions of inferior courts were summarising succinctly by McMillan J in DHHS v Children’s Court of Victoria & Ors:
It is a fundamental rule of natural justice that the parties to a proceeding must enjoy procedural fairness before a decision maker. At its most basic level, procedural fairness requires that all parties to a proceeding have a reasonable opportunity of presenting their case. It is also well settled that, generally, the failure by an inferior Court to afford procedural fairness to the litigants before it constitutes an action beyond that Court’s jurisdiction.[49]
[49][2020] VSC 520 [48] citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (‘Ex Parte Lam’), 36 [114] (Hayne J); Craig v South Australia (1995) 184 CLR 163, 175–6 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 205 [75] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
As is well-known, a decision-maker who fails to comply with the requirements of procedural fairness nature is liable to fall into jurisdictional error,[50] and thereby render their decision a nullity or as no decision at all.[51]
[50]Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
[51]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 616 [53].
The question then, is not whether procedural fairness applies but what it requires, and flowing from that, whether any failure to afford it impacted on the ultimate decision made.[52]
[52]Kioa v West (1985) 159 CLR 550, 585.
As Gleeson CJ explained in Ex parte Lam, when considering questions of procedural fairness the court is concerned with avoiding ‘practical injustice’.[53] For a hearing to be fair and to avoid a practical injustice, each party must be given a ‘reasonable opportunity’ to present its case, to be informed of the opposing party’s case and have an opportunity to respond.[54] Critically, what is reasonable will differ depending on the circumstances, having regard to, amongst other things:
[53](2003) 214 CLR 1, 14 [38].
[54]Condon v Pompano Pty Ltd (2013) 252 CLR 38, 100 [157].
(a) the nature of the decision being made;
(b) the nature and complexity of the dispute;
(c) the significance to a party of an adverse decision;
(d) the competing demands on the time and resources of the court or tribunal; and
(e) whether one or more parties is self-represented.[55]
[55] National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311–2, 319–20; Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156]; Roberts v Harkness (2018) 57 VR 334, 355 [49].
The scope of the duty to afford natural justice and procedural fairness is shaped by the statutory framework under which the power or discretion is exercised.[56]
[56]Roberts v Harkness (2018) 57 VR 334, 355-6 [50]-[53].
The duty to assist self-represented litigants
It is the ‘inherent duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant.’[57] This positive duty to assist self-represented litigants is part of a judge’s overriding obligation to ensure a fair trial. This is because self-represented litigants lack qualities that competent lawyers possess, namely legal skill and ability, and objectivity. The absence of these qualities results in grave disadvantage to a self-represented litigant in legal proceedings.[58]
[57]Tomasevic v Travaglini & anor (2007) 17 VR 100, 115 [76].
[58]Ibid, 115-7 [78]-[83].
In light of the lodestar of a fair trial, and due to the unique disadvantages of a self-represented litigant, the court’s duty ‘requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.’[59] A judge has an obligation:
to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case.[60]
[59]R v Zorad (1990) 19 NSWLR 91, 94-95 cited with approval in Hamod v New South Wales [2011] NSWCA 375 [309] (‘Hamod’) and SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445, 452 (‘SZRUR’).
[60]Hamod [2011] NSWCA 375 [311]; SZRUR (2013) 216 FCR 445, 453; Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 [48].
This duty extends to criminal and civil trials, and includes interlocutory proceedings such as applications to strike out pleadings.[61] This duty applies to magistrates,[62] although the content of the duty takes into account the particular demands of a magistrate.[63]
[61]Tomasevic v Travaglini & anor (2007) 17 VR 100 (‘Tomasevic’); Panagiotopoulos v Rajendram [2005] NSWCA 58 [33], [35]–[36]; Tobin v Dodd [2004] WASCA 288 [13]-[16]; Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497, 513–14; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536; Awan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 120 FCR 1, 17.
[62]Tomasevic (2007) 17 VR 100; Cooling v Steel [1971] 2 SASR 249, 250–1; Black v Smith (1984) 75 FLR 110, 112–13; Nagy v Ryan [2003] SASC 37 [39]–[46]; Pezos v Police (2005) 94 SASR 154 [8]–[20]; KC Nominees Pty Ltd v Arrowsmith (2006) 232 ALR 789, 798, 806; Stock v Anning [2006] WASC 275 [54]–[58].
[63]Tomasevic (2007) 17 VR 100, 119 [89].
Although these principles impose a positive duty on the judge, this duty does not extend to the provision of advice as to how a self-represented litigant’s rights should be exercised. This distinction is important, as ‘the need to preserve the appearance of neutrality should be seen as marking the boundary of judicial intervention.’[64] It is ultimately ‘not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.’[65]
[64]Burwood Municipal Council v Harvey (1995) 86 LGERA 389, 392–6.
[65]Hamod [2011] NSWCA 375 [312]; SZRUR (2013) 216 FCR 445, 453.
In Roberts v Harkness, the Court of Appeal discussed, relatively recently, the nature of the Court’s task in determining the form and content of the duty to assist a self-represented litigant.[66] Their Honours emphasised that the scope of the duty is shaped by ‘the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present’ based on an assessment of the documents they have filed and the quality of their verbal communications with the Court.[67] Where such an assessment reveals that the self-represented litigant may not be capable of adequately canvassing or framing what appears to be a possible claim or legal point, the duty to assist may require the Court to intervene:
In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant. That burden may be ameliorated by facilitating access to pro bono assistance, as regularly occurs in this and other courts.[68]
[66](2018) 57 VR 334.
[67]Roberts v Harkness (2018) 57 VR 334, 356.
[68]Ibid, 356-7, emphasis added.
Their Honours further recognised that the Court’s duty does not operate in a vacuum, and its scope in any particular circumstance is also determined by reference to the actual and expected conduct of the opposing parties’ legal representatives.[69]
[69]Roberts v Harkness (2018) 57 VR 334, 356-7.
Their Honours recognised that the task of affording procedural fairness is one that is balanced, with some complexity, against the management of finite judicial and administrative resources:
The management of cases involving unrepresented litigants is a source of continuing difficulty for judicial officers. They are required to balance the interests of justice in the particular case with the competing public interest in the efficient use of public resources and in access to justice for other litigants waiting to have their cases heard. What is required is a combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing — so that the unrepresented litigant’s case can be fairly presented — and those where the interests of justice call for expeditious disposal.[70]
[70]Ibid, 358-359, emphasis added.
Apprehended bias
In situations where a party alleges apprehended bias of a judicial officer, the question for the Court is whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[71] A lay observer is taken to have knowledge of the context and relevant circumstances in which the decision was made, and be aware that decisions must be made according to law, impartially and with integrity.[72]
[71] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[72] Isbester v Knox City Council (2015) 255 CLR 135, 146 [23] (Kiefel, Bell, Keane and Nettle JJ); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87–88 (Mason CJ and Brennan J); Helljay
The mere expression of a tentative view on issues to be decided during the hearing will not ordinarily suggest the ‘ineradicable apprehension of prejudgment’ of the kind prohibited by the principle.[73] Where, in the course of a hearing, a party takes issue with comments or questioning on the basis of apprehended bias they should ordinarily object at the time, or otherwise risk being considered to have waived their objection.[74]
[73]Vakauta v Kelly (1989) 167 CLR 568, 571 (Brennan, Deane and Gaudron JJ); Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[74]Vakauta v Kelly, Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ).
In this context, the reasons for a decision may take on a greater relevance, by either dispelling or confirming an apprehension of prejudgment created during the course of the hearing.[75]
[75]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 446 [67] (Gummow A-CJ, Hayne, Crennan and Bell JJ).
Error of law
The Court’s power to grant certiorari, as sought by the plaintiff, stems from either a finding of jurisdictional error,[76] or an error on the face of the record.[77] It is clear that the application of the wrong legal test amounts to an error of law.[78]
[76]Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[77]See generally discussion in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[78]Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust (1937) AC 898, 917.
Failure to take account of relevant consideration
The principles governing relevant and irrelevant considerations in judicial decision-making are well-established. A judicial officer’s decision can only be rendered void by virtue of failing to take into account a relevant consideration if they were under an obligation to consider that factor. In the absence of enumerated considerations it is the role of the decision-maker, having regard to what material is put before them by the parties, to determine which material is relevant.[79]
[79]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 37 (Mason J).
The Charter
Section 24(1) and a right to a fair hearing
The Charter enshrines the right to a fair hearing in s 24, which relevantly provides:
24Fair hearing
(1)a party to a civil proceeding has the right to have the … proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
It is settled that courts and tribunals are not public authorities and do not have obligations under s 38(1) when acting in a judicial, as distinct from an administrative, capacity. However, courts and tribunals, including the Magistrates’ Court of Victoria, must enforce directly those rights of the Charter to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter. This is because s 6(2)(b) of the Charter provides:
This Charter applies to-
(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;
Thus, when applying s 6(2)(b) ‘it is always necessary to examine whether, in the given case, the court or tribunal is exercising functions involving the application of human rights that “relate to court or tribunal proceedings”.’[80] Section 6(2)(b) therefore requires a court or tribunal to apply or enforce those rights which are protected under Part 2 and Division 3 of Part 3 of the Charter, that is, those rights that relate to legal proceedings. The consequence of this construction of the Charter is that the right to a fair hearing in s 24 ‘apply directly to courts and tribunals, when they exercise their functions.’[81]
[80]Matsoukatidou (2017) 51 VR 624, 636.
[81]De Simone v Bevnol Constructions & Developments Pty Ltd (2009) 25 VR 237, 247.
The Charter is intended to guarantee human rights that are practical and effective, not theoretical or illusory. This means the right to effectively participate in proceedings in courts and tribunals must be applied in a way that is practical and effective. A trial is not fair in human rights terms if ‘the procedures followed do not ensure that all parties can effectively participate and have equality of arms with the opposing side.’[82]
[82]Matsoukatidou (2017) 51 VR 624, 668.
Examples of practical and effective measures a judge can take to fulfil their duty to ensure the human right to a fair hearing, and that common law procedural fairness is accorded for a self-represented litigate include:
(a) recognising a litigant as someone who, as a self-represented litigant, is gravely disadvantaged;
(b) explaining to the litigant the procedures that would be followed in the hearing and determination of the application;
(c) explaining to the litigant the legal requirements that must be satisfied;
(d) encouraging the litigant to make submissions on relevant issues, but to explain to the litigant what is relevant;
(e) discouraging the litigant from making irrelevant issues, but explain to the litigant what is irrelevant;
(f) asking appropriate questions to confirm the litigant is putting forward matters they wish to rely on, and ask for elaboration of any areas apparently not fully covered; and
(g) before deciding the application or concluding the hearing, asking if there is anything else that the litigant wishes to add.[83]
[83]Tomasevic (2007) 17 VR 100, 130-131.
Relationship between common law and right to a fair hearing
The human right to a fair hearing and the common law duty to afford a fair hearing are not interchangeable. However, the obligations imposed by the two are:
…so close and overlapping that a court or tribunal is almost always entitled to proceed upon the basis that advice and assistance which satisfies the common law standard will also represent reasonable adjustments and accommodations under the human rights standard, and vice versa.[84]
[84]Ibid 682.
It follows that where a self-represented party has not been accorded a fair hearing under common law principles of procedural fairness, a court in judicial review will ‘almost always be entitled to find that the failure constitute[s] a breach of the human rights of that party under the Charter.’[85]
[85]Ibid 683.
Section 8 and equality
The relevant components of s 8 of the Charter provides:
8 Recognition and equality before the law
(1)Every person has the right to recognition as a person before the law.
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
Section 8(1) and 8(2) do not, for the purposes of this proceeding, require discussion.
Section 8(3) requires interpretive discussion. The sub-section is comprised of three limbs. The first limb requires equality before the law and contains a right to equal treatment before the law. This right has a general, universal application. Equality before the law ‘proscribes arbitrary treatment, that is, treatment devoid of objective justification, in the application and administration of the law.’[86] The common law obligation of procedural fairness sets a higher standard than the protection this limb affords to not treat self-represented litigants arbitrarily.[87]
[86]Lifestyle Communities (No 3) (2009) 31 VAR 286, 344 [285]–[286].
[87]Matsoukatidou (2017) 51 VR 624, 643.
The second and third limbs of s 8(3) require every person to have equal protection of the law without discrimination and equal and effective protection against discrimination. Section 4(1) of the Charter defines ‘discrimination’ as:
discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act;
Note
Section 6 of the Equal Opportunity Act 2010 lists a number of attributes in respect of which discrimination is prohibited, including age; disability; political belief or activity; race; religious belief or activity; sex; and sexual orientation.
The plaintiff’s submissions were somewhat amorphous in relation to the Charter, in particular those relating to s 8(3). Regrettably the defendant’s submissions did not engage with the substance of s 8(3). The plaintiff’s arguments regarding discrimination were misconceived, and, as will be outlined below are more appropriately considered as part of the arguments on procedural fairness and the right to a fair hearing.
Analysis
I will first address some of the peripheral or marginal arguments made by the plaintiff.
Misconceived arguments as to procedural fairness
The plaintiff asserted a number of breaches of procedural fairness which were misconceived.
In affidavits and submissions to this Court, the plaintiff made much of the fact that she had expected to receive an affidavit in support of the defendant’s application under r 23.02, and did not. Rule 23.04 is unambiguous in its exclusion of r 23.02 from the ordinary principle that evidence is required to support an interlocutory application. Her expectation, based on her own experience of being required to submit an affidavit in support of her application for default judgment, was unfounded in law.
Clearly the plaintiff’s misunderstanding was not corrected, and in fact was reinforced by staff at the Dandenong Magistrates’ Court. However, there is no evidence before me that the Magistrate was aware of that expectation, nor of the erroneous information provided by Registry staff. Nevertheless, the fact that her misunderstanding endured beyond the hearing and formed part of her argument before this Court, is perhaps indicative of the lack of explanation by His Honour of the narrow and technical nature of r 23.02 applications. This goes to the extent to which the plaintiff was afforded procedural fairness and whether her right to a fair hearing was protected under the Charter which I will consider below.
The plaintiff asserted that she was denied procedural fairness when her mother was not permitted to speak on 30 September 2019. I do not accept that her mother, who was not a party to the proceeding, had an entitlement to speak at the hearing.
Apprehended bias
I do not accept the plaintiff’s arguments that the Magistrate’s decision was infected by actual or apprehended bias. There is no evidence before me to suggest that His Honour could be considered, by a fair-minded lay observer, not to bring an impartial mind to the exercise. Her allegations of bias against her as a self-represented litigant more appropriately go to the question of fair hearing, and have informed my decision on that point.
Error of law
I do not consider there was any error of law arising from the Magistrate taking account of what the plaintiff says is an irrelevant consideration. The submissions in relation to the cases of Annesley and Vo being not analogous are simply misconceived. The cases were clearly relevant to the strike out application despite arising out of broader areas of law.
The plaintiff also submitted that the Magistrate made an error law because he did not recognise ‘bullying’ as a cause of action. ‘Bullying’ is not a cause of action and His Honour explained this to the plaintiff.
Failure to take account of relevant consideration
The plaintiff’s ground of review that the Magistrate failed to take account of a relevant consideration is misconceived. I adopt the defendant’s position that the ground, as framed, merely restates other submissions.
Equality and Discrimination
I do not consider that s 8 of the Charter applies to the plaintiff’s circumstances. Section 8(1) obviously does not apply.
As to s 8(3), I do not consider that the Magistrate treated the plaintiff in an arbitrary or capricious manner. The plaintiff also argues that she was discriminated against due to her status as a self-represented litigant. Importantly, being a self-represented litigant is not a listed attribute that comes within the purview of the Charter’s protection against discrimination.
Similarly, the plaintiff did not identify any protected attribute which applied to her mother which would have offered her protection against discrimination under the Charter.
I also find the submissions made by the plaintiff in regard to the treatment of her mother by the Magistrate to be without merit.
Further, I do not consider the plaintiff’s submission in relation to ss 10, 13 and 15 to have any application to the plaintiff’s grievances in relation to the conduct of the Magistrates’ Court proceeding, and hence to this proceeding.
Procedural fairness and right to a fair hearing
Whilst the plaintiff raised a number of unmeritorious grounds of review, what I consider to be the core of her complaint, namely that she was denied procedural fairness, has merit.
Due to the interconnectedness of the issues of procedural fairness and the right under the Charter to a fair hearing, I will consider both of these issues together. At some points I will give greater emphasise to procedural fairness and in others to the right to a fair hearing under the Charter; however, in the context of the present proceeding, I do not believe that the issues arising under both can be neatly separated.
On my assessment, the Magistrate failed to provide the plaintiff a reasonable opportunity to oppose the defendant’s application. In all the circumstances His Honour owed the plaintiff a duty to assist her to:
(a) understand the nature of the application being heard, including by:
(i) providing her with an opportunity to read and review the materials handed up by the defendant in support; and
(ii) attempting to elicit and elucidate the legal points (if any) that underpinned her resistance to the defendant’s application, and which lay behind her opposition to the application, as well as her pleadings; and
(b) understand the effect of the orders made.
The duty the Magistrate owed to the plaintiff is shaped by the nature and consequence of the hearing. A successful application under r 23.02 has the effect of striking out most or all of a pleading without any adjudication on the merits. This is a step a court cannot take lightly.
The Magistrate’s duty to provide a fair hearing takes account of the context of the function of Magistrates’ Courts. Magistrates regularly preside over busy courtrooms and long daily lists, often involving interjections and disruptions. They are tasked with focussing on the matter before them at any given time whilst also actively case managing the list of upcoming matters. Magistrates face competing demands to be fair, efficient, promptly resolve disputes, make the optimum use of limited resources and respond proportionately to the nature and complexity of the dispute before them.
The Court of Appeal in Roberts v Harkness made clear that in order to ascertain just what a judicial officer is expected to provide a self-represented in order to afford them a fair hearing, the Court must determine from their written material and verbal presentation what that person’s capabilities are.
It is my assessment that the Magistrate did not make an informed assessment of the plaintiff’s capability ‘to formulate, and communicate, the case which he/she wishes to present’.[88] Had he done so, His Honour would most likely have identified that despite clearly being a confident speaker, self-assured, well educated, and capable of preparing lengthy written material, she was under a number of apparent misapprehensions about court procedure and the legal principles at play, and, as a result, required assistance to respond meaningfully to the application.
[88]Roberts v Harkness (2018) 57 VR 334, 356 [54].
When given an opportunity to address His Honour, the plaintiff spoke exclusively about the termination of her placement and her interaction with the defendant, that is, her narrative of the grievances that are contained in her complaint. When asked if she had received any legal advice she replied that she had, ‘[a]nd everyone finds my case really clear’.[89] That statement does not reasonably assuage any concerns one might have about her level of comprehension of the nature and effect of the application she was facing, and in fact, in its oversimplification suggests the opposite.
[89]Transcript of Proceedings, Ling Ye She v RMIT University (Magistrates’ Court of Victoria at Dandenong, K10225113, Magistrate Brear, 30 September 2020), T09.44.
It was the plaintiff’s evidence that she did not receive copies of the documents submitted by the defendant in support of its application, other than the summons itself, before or during the hearing. The defendant did not dispute this. The Magistrate was only provided those materials during the hearing and took time during the hearing to peruse them. The plaintiff was not given the same opportunity.
In her oral submissions the plaintiff pointed to the practice of this Court, in advance of a trial, of making directions for the filing and service of affidavits and submissions in support, response and reply well ahead of the hearing. In the context of an interlocutory application in the Magistrates’ Court it is not reasonable to demand that parties, or the judicial officer, operate with that kind of lead time.
However, when it became apparent to His Honour that the plaintiff did not appreciate that this was not an assessment of the strength of her case against the defendant, it was open to His Honour, and in the circumstances, His Honour should have provided the plaintiff with the option of standing the matter down or adjourning the hearing until another time or day and allow the plaintiff time to review the defendant’s material, particularly the cases the defendant relied upon which would have provided further explanation of the operation of r 23.02.
The plaintiff was undoubtedly given an opportunity to speak. Much of what she said was not directly relevant to the application being heard. The Magistrate permitted the plaintiff to narrate her story, uninterrupted for a time. The plaintiff was allotted time to, in effect, give a speech, where, in the circumstances it was more appropriate for the Magistrate to intervene. His Honour did not stop to explain the nature of the application, nor prompt her, redirect her, or attempt to elicit information which could have been relevant to the exercise of his discretion. This can be contrasted with His Honour’s many exchanges with Mr Allen for the defendant in which he sought to clarify the argument being put.
When His Honour did interject, it was to express a view on the application. His Honour’s view may be accurate, given the confused and dense character of much of the plaintiff’s pleadings, but that is not the question before me. The question for me is whether the plaintiff was given a meaningful opportunity to respond to that view. The defendant submits that the Magistrate disclosed to the plaintiff the critical issue on which his decision turned, and gave her an opportunity to address that issue. However, when His Honour raised concerns with her pleading he did so by largely restating the submissions made by the defendant, without defining key and technical concepts such as ‘embarrass’ and without giving any concrete examples. His Honour posed only two questions for her input, being:
‘You should see a lawyer to help you. Have you done that?’[90]
‘Is there anything else you wish to say?’[91]
[90]Transcript of Proceedings, Ling Ye She v RMIT University (Magistrates’ Court of Victoria at Dandenong, K10225113, Magistrate Brear, 30 September 2020), T09.41-2.
[91]Ibid, T10.03.
When asked the latter, not unreasonably the plaintiff appears to have understood the Magistrate to have already made a determination and responded that, ‘if today this application gets struck out, I will be appealing. That’s all I can say … there is nothing I can do. But I do – I will appeal.’ I do not consider that the Magistrate, in these circumstances, provided the plaintiff with a meaningful opportunity to respond.
This failure also impacts on the procedural fairness of the grant of leave to file a new statement of claim. I will turn to the question of whether such leave was, in fact, granted considering the ambiguity of the Magistrate’s decision. However, to the extent that the plaintiff was afforded that right, it was coloured by the paucity of explanation of the deficiencies in her pleadings. The plaintiff was arguably in no better position after the hearing to comprehend the key shortfalls in her pleadings. Whilst it was appropriate to recommend that she get legal advice, and it not the role of a judicial officer to give legal advice or act in the interests of one party. His Honour should have provided guidance in relation to the plaintiff’s misapprehensions.
The Magistrate stated that ‘the Court has difficulty understanding what you are claiming’,[92] yet was able to tease out two causes of action, namely negligence and breach of contract, that connected to the assertions contained in her pleadings. Having identified them, it was incumbent upon His Honour to enter into an exchange with the plaintiff about the deficiencies ‘to elicit and elucidate’ the deficiencies in the statement of claim.[93] He was not required to redraft her pleadings for her. But, given the centrality of the allegations of bullying to the plaintiff’s written material and oral submissions on the day, His Honour should have attempted to convey that the plaintiff needed to draw a link between such claims of bullying and the elements of the recognised causes of action. To make the bare statement that bullying is not a cause of action, whilst accurate, belies the fact that is capable, at least in theory, of founding other causes of action.
[92]Transcript of Proceedings, Ling Ye She v RMIT University (Magistrates’ Court of Victoria at Dandenong, K10225113, Magistrate Brear, 30 September 2020, T09.31.
[93]Roberts v Harkness (2018) 57 VR 334, 356-7.
In the context of a Magistrates’ Court proceeding, such explanations need not take the form of an annotated pleading,[94] or detailed written reasons,[95] but must be conveyed to a self-represented litigant in as accessible language as possible.
[94]See Schedule to Derham As J’s Ruling in Vo v Nguyen and ors [2013] VSC 304.
[95]Vo v Nguyen and ors [2013] VSC 304; Annesley v Westpac [2016] VSC 323.
Whilst it did not form part of the plaintiff’s grounds of review, the question of the ambiguity of the scope and effect of the Magistrates decision and order was one that was apparent to me on the materials filed, and one that I put to parties at the hearing on 1 December 2020. The Magistrate’s orders refer to variously to the plaintiff’s statement of claim and her claim having been ‘struck out’. They do not refer to leave to re-plead.
There are two possible interpretations of the effect of those orders, when read together with the transcript of the hearing and considered in light of the nature of the application made by the defendant. The Magistrate either:
(a) struck out her statement of claim and granted leave to file and serve a new statement of claim; or
(b) dismissed her complaint, and by indicating that she may file another statement of claim, was noting only that she may issue a new proceeding.
The evil of the first interpretation is that the orders remain ambiguous on their face, and were therefore difficult to implement, and impossible in practice for the plaintiff to comply with. The court staff of Dandenong Magistrates’ Court stymied the plaintiff’s continued engagement and questioning based upon this first interpretation of the orders. Any action which the plaintiff was required to take to avoid dismissal of her claim should have been specified in the clearest and most precise language possible. The ambiguity of the orders on their face, the contradictory directions given by the court staff at the court, and the confusion of the defendants’ lawyers as to the nature of the orders, demonstrates that the plaintiff had no practical way in which to comply with the orders in order to avoid a dismissal of her claim.
The second interpretation of the orders also presents difficulties. As the Court of Appeal made clear in Household Financial Services Ltd v Braybrook it is the ordinary course to facilitate a party to re-plead pleadings that have been struck out.[96] This is not only the best construction of the Rules, a matter that I address below. It also speaks to the importance the common law as traditionally provided in facilitating access to justice for parties in the judicial system. Moreover, the normative weight of the Charter’s values in this context cannot be underestimated. As Vickery J stated in Namberry Craft Pty Ltd v Watson, the ‘just resolution’ of proceedings that is protected by s 24 of the Charter includes:
a proper opportunity being given to the parties to plead and re-plead their respective cases, should that need arise and the circumstances are present to warrant the discretion being exercised in favour of the grant of the amendment.[97]
[96]Household Financial Services Ltd v Braybrook [1991] 2 VR 577.
[97]Namberry Craft Pty Ltd v Watson [2011] VSC 136 [37], emphasis added.
The difficulties that pleadings present to self-represented litigants amplifies the importance that a self-represented litigant is given the opportunity to re-plead if their pleadings are struck out. Many self-represented litigants will not present their claim in a manner ordinarily seen in the context of pleadings drafted by lawyers. Many self-represented litigants, particularly on the first iteration of their proceeding, will use pleadings as an opportunity to narrate their story or grievance. The opportunity to re-plead thus provides a self-represented litigant with the ability to hone their narrative within legally recognised categories and facilitates the defendant’s ability to understand what claim is on foot against them.
Of course, courts cannot be expected to facilitate self-represented litigants, or any litigants for that matter, receiving an indefinite opportunities to re-plead their case if their pleadings are inadequate. Considerations ranging from the delay that re-pleading may cause, the extent of wasted costs incurred, prejudice caused to a party by extensive re-pleading, case management concerns at the stage in a proceeding when re-pleading is sought, any capacity for re-pleading to lesson public confidence in the judicial system or the administration of justice, and whether a satisfactory explanation for re-pleading can be sought all militate against an unlimited right to re-plead a case. However, it is difficult to consider a situation where a party, and especially a self-represented litigant, can be denied a right to re-plead their case early in a proceeding without their right to a fair hearing under the Charter being violated.
Error of law
Whilst the plaintiff did not raise it in her grounds of review, I have the broad discretion under the inherent jurisdiction of the Court to look beyond the grounds in her originating motion to identify grounds apparent on the material before me. I consider the relationship between sub-rules 23.01 and 23.02 particularly important in this case.
If His Honour in fact intended to deny the plaintiff any opportunity to re-plead, His Honour made a more fundamental error of law by applying the legal test under r 23.02 rather than engaging in the merits assessment required by r 23.01. Rule 23.02 should not be used by a court to conclude that a claim or defence of a party is so lacking in foundation that it cannot be saved by any legitimate amendment of pleading and that the proceeding should be brought to an end. If the claim was so lacking in foundation, r 23.01 would be the appropriate Rule to employ to apply for a dismissal of a proceeding.[98]
[98]Neil J Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 314) [23.02.1]; Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.
Conclusion
In conclusion and considering the issues discussed as a whole, the Magistrate’s failure to provide the requisite level of assistance to the plaintiff, as a self-represented litigant, the lack of time provided to the plaintiff to understand the hearing, the failure to facilitate an opportunity to advance her case, the ambiguity of His Honour’s decision and orders, and His Honour’s application of r 23.02 was a denial of procedural fairness and natural justice, and constituted a breach of the plaintiff’s right to a fair trial under s 24 of the Charter.
I do not accept the defendant’s submissions that the decisions in Tomasevic and Matsoukatidou are distinguishable. While the plaintiff’s diminished capacity to participate may been more pronounced in Matsoukatidou, the plaintiff here still lacked an understanding of the applicable legal test and court process, which hampered her ability to oppose the application. Tomasevic and Matsoukatidou, although factually distinct from the present case, enunciate generally applicable principles relevant to all self-represented litigants.
Relief
Where a decision-maker makes a decision in jurisdictional error, this Court has broad discretion to grant relief, including an order in the nature of certiorari quashing the decision affected by such error,[99] and an order in the nature of mandamus requiring the fulfilment of a duty that remains unperformed.
[99]Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Although I have found that His Honour failed to provide the plaintiff with procedural fairness and give effect to the plaintiff’s human right to a fair trial, a further question is whether such errors nullify His Honour’s decision to strike out her pleadings, and whether an order in the nature of certiorari should lie to quash that decision.
Notwithstanding the breach of procedural fairness, natural justice and the Charter that occurred in the strike out application, given the condition of the plaintiff’s pleadings, it is difficult to see what submissions she could have made that would have rectified the deficiencies on the face of the documents. As a consequence, an order in the nature of certiorari quashing the orders striking out the plaintiff’s statement of claim would in all the circumstances be futile as it would likely engender a fresh application to strike out her pleadings and result in those pleadings being struck out. The finality of this relief would therefore be limited.
The plaintiff’s pleadings were capable of being rectified had leave been granted. It was not due to any fault of the plaintiff that she did not avail herself of the opportunity to remedy these deficiencies. As the plaintiff’s pleadings are patently defective and liable to be struck out on another application under r 23.02, I consider it appropriate to make the following orders:
(a) a declaration issue that in proceeding K10225113 at the Dandenong Magistrates’ Court, the plaintiff was denied procedural fairness and natural justice, and that her right to a fair hearing under s 24 of the Charter was violated;
(b) an order in the nature of certiorari issue quashing the orders of Magistrate Brear in proceeding K10225113 in the Dandenong Magistrates’ Court dated 1 October 2019;
(c) the plaintiff’s statement of claim filed in proceeding K10225113 in the Dandenong Magistrates’ Court on 25 January 2019 is struck out;
(d) the plaintiff is granted leave to file a statement of claim in proceeding K10225113 in the Dandenong Magistrates’ Court;
(e) a declaration issue that proceeding K10225113 in the Dandenong Magistrates’ Court is active;
(f) proceeding K10225113 is remitted to the Dandenong Magistrates’ Court for a directions hearing before a differently constituted court to set a timeframe for the filing and service of the statement of claim.
Subject to any submissions, I consider an appropriate costs order to be that the first defendant, RMIT University, pay the plaintiff’s costs.
As the defendant noted during proceedings, Dandenong Magistrates’ Court are a party to this proceeding, and has elected not to appear. The Magistrate and the court staff at Dandenong Magistrates’ Court are ultimately responsible in part for the breaches of procedural fairness and the Charter experienced by the plaintiff. This is through a combination of the hearing itself and the implementation of the Magistrate’s orders by the court staff.
However, without further submissions as to costs, I am not prepared to order that the second defendant should pay costs in this proceeding.
Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68, 72 [12]; Ronan v ANZ Banking
Group Ltd (2000) 2 VR 531, 546 [43] (Ormiston and Batt JJA).
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