Thompson v State of Victoria
[2021] VSC 181
•15 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2019 02037
| RICHARD THOMPSON | Plaintiff |
| v | |
| STATE OF VICTORIA & ORS (according to the attached schedule) | Defendants |
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JUDGE: | The Honourable Justice Incerti |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 March 2021 |
DATE OF RULING: | 15 April 2021 |
CASE MAY BE CITED AS: | Thompson v State of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 181 |
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PRACTICE AND PROCEDURE — Application for stay of proceeding – Rules 23.01(1)(b) and 33.04(2) of the Supreme Court (General Civil Procedure) Rules2015 — Abuse of process —Plaintiff’s refusal without reasonable cause to comply with a request for a medical examination.
SELF-REPRESENTED PLAINTIFF — Allegations of personal and psychological injury – Proposed referral to VCAT — Section 179 of the Guardianship and Administration Act 2019 (Vic) — Bahonko v Moorfields Community [2008] VSCA 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the First Defendant | Ms V Harper, solicitor | Victorian Government Solicitors Office |
| For the Second Defendant | Mr G Doran, solicitor | Nevett Ford Melbourne Pty Ltd |
| For the Third Party | Mr A Splatt, solicitor | Taylor Splatt & Partners |
HER HONOUR:
Introduction and summary
The plaintiff, Mr Richard Thompson, commenced this proceeding by writ and statement of claim dated 9 May 2019.
Mr Thompson was initially represented by Carbone Lawyers and named the Victorian State Government and the Salvation Army as defendants to the proceeding. Mr Thompson’s solicitors ceased to act on 6 September 2019 and he has been effectively self-represented since that time.
Mr Thompson alleges that he sustained physical and psychological injuries as a result of being abused whilst a ward of the State and placed at various institutions between 1951 and 1960.
Mr Thompson served an amended writ and statement of claim dated 23 October 2019, which amended the name of the first defendant, the Victorian State Government, to the State of Victoria. On 22 November 2019, the first defendant filed and served a third party notice, which named Menzies Inc as the third party.
The defendants and third party issued a summons dated 24 December 2020 seeking an order that the proceeding be stayed. They rely on an affidavit in support affirmed by Victoria Louise Harper on 24 December 2020 (the ‘Harper affidavit’).
The defendants and third party submit that Mr Thompson’s claim should be stayed as an abuse of process, relying on r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) and/or the Court’s inherent jurisdiction.
The particular limb of r 23.01 that the defendants and third party seek to invoke is that the proceeding is an abuse of the process of the Court.[1] In Avery v Manno,[2] Derham As J comprehensively set out the policy considerations underpinning the rule and the inherent jurisdiction of the Court, and the characteristics which may present in many cases of abuse of process. I adopt his Honour’s summary set out at [31] to [33] of his reasons.[3] I note the application pursuant to the Court’s inherent power to stay a proceeding for abuse of process effectively mirrors the requirements under the Rules.
[1]Supreme Court (General Civil Procedure) Rules 2015 r 23.01(b).
[2][2020] VSC 605.
[3]Ibid [31]-[33].
As the High Court recently confirmed in Victoria International Container Terminal Limited vLunt,[4] the remedy of a stay of proceedings is concerned with:
the protection of the integrity of the court's ability fairly and justly to determine the matter in dispute.[5]
[4][2021] HCA 11.
[5]Ibid [20].
In his separate judgment concurring with the majority’s position, Edelman J noted:
If the integrity of the court can be protected by remedies less drastic than a permanent stay of proceedings then there is no justification for a court to go further than necessary to protect its processes by denying a party the liberty of a fair hearing.[6]
[6]Ibid [43]
The bases upon which it is contended by the defendants and third party that there is an abuse of process by Mr Thompson are as follows:
(a) Mr Thompson’s failure to comply with all or any of the orders made on 4 October 2019 and 31 January 2020;
(b) the need for six directions hearings since the initial timetable was set in the proceeding by order of Clayton JR on 4 October 2019;
(c) the fact that at each directions hearing Mr Thompson has been warned of the consequences of not complying with orders and advised to properly prosecute his claim;
(d) Mr Thompson has been provided significant leeway by the defendants, third party and the Court in order to assist him to address the issues and comply with the orders made;
(e) progress of the claim has been frustrated as a consequence of Mr Thompson’s failure to take any steps to comply with any order; and
(f) the defendants and third party have incurred considerable costs as each party has been legally represented at each hearing and have endeavoured to comply with their obligations to the Court by preparing and filing materials.
It is submitted that if the Court allows the current situation to continue, it would amount to an abuse of process by reason of the injustice to the defendants and third party.
In the alternative, the defendants and third party submit the proceeding should be stayed pursuant to the provisions of r 33.04(2) by reason of Mr Thompson’s refusal without reasonable cause to comply with a reasonable request for a medical examination by a psychiatrist, Dr Timothy Entwisle. Mr Thompson was requested to attend for medical examination by Dr Entwisle, by notice dated 18 November 2020 sent by the first defendant. The appointment for examination was to have taken place on 8 December 2020. Mr Thompson telephoned Dr Entwisle’s rooms on 7 December 2020 and cancelled the appointment, offering no reason or excuse for doing so. Dr Entwisle’s office advised the first defendant there would be a cancellation fee of approximately $550.[7]
[7]Affidavit in support affirmed by Victoria Louise Harper on 24 December 2020, [17].
In open court on 9 December 2020, Mr Thompson made it clear he would not attend any appointment to be assessed by a medical practitioner. He informed the Court that he had previously seen a psychiatrist organised by his former lawyers for the purpose of this claim and did not see the need to attend any further appointments.[8] He also indicated that he did not need to attend the appointment because he intended to take his claim to the High Court of Australia.[9]
[8]Transcript of proceedings, (Thompson v State of Victoria & Ors, Supreme Court of Victoria, S ECI 2019 02037, Incerti J, 9 December 2020), T06.03-11.
[9]Transcript of proceedings, (Thompson v State of Victoria & Ors, Supreme Court of Victoria, S ECI 2019 02037, Incerti J, 9 December 2020), T08.27-30 – T09.01-04.
This application and the ongoing conduct of the proceeding raises a number of issues. In addition to the defendants’ and third party’s summons seeking a stay, I have concerns as to whether Mr Thompson is capable of managing his affairs in relation to this proceeding. I emphasise from the outset that the circumstances of this case are unique. The unique features of this proceeding include:
(a) the historical nature of the allegations dating back to the period 1951 to 1960 when Mr Thompson was a child;
(b) the difficulty generally in prosecuting and defending historical abuse claims;
(c) the complexity of the issues, including questions of causation and damages; and importantly,
(d) the proceeding involves evidence of sensitive episodes in Mr Thompson’s life which, to date, have had a tendency to give rise to strong emotional responses by him.
In the circumstances of this case, although the Court has been called upon to decide a stay application, and notwithstanding that the defendants and third party may have good reason to seek and be granted a stay, I have determined that matters relating to Mr Thompson’s capacity to conduct this litigation must first be resolved. This is proposed to be achieved by a referral to the Victorian Civil and Administrative Tribunal (‘VCAT’), pursuant to s 179 of the Guardianship and Administration Act 2019 (Vic) (‘G & A Act’).It may be that any decision by this Court to refer this issue to VCAT should have been made at an earlier time in the proceeding, and prior to the stay application being made, but that is not what has in fact occurred. Ultimately, the Court’s current view is that it cannot be satisfied that Mr Thompson can appropriately respond to the defendants’ and third party’s application for a stay.
Chronology
Given this conclusion, it is important that I set out in some detail the conduct of this proceeding to date.
I have compiled the following chronology based on a review of the Court file, my intensive case management of this matter and the Harper affidavit.
The claim was issued by Mr Thompson’s then lawyers on 9 May 2019. Mr Thompson’s solicitors ceased to act on 6 September 2019. On 4 October 2019 the matter was listed for a first directions hearing. At the first directions hearing, Clayton JR made orders, including fixing a timetable for mediation, which was to take place by 8 May 2020.
On 18 December 2019, Mr Thompson filed a one-sentence affidavit, stating that he had decided to put his case on hold whilst he sought advocates from overseas.[10]
[10]Affidavit of Richard Thompson affirmed 18 December 2019, [1].
A further directions hearing was held on 31 January 2020 in response to Mr Thompson’s affidavit of 18 December 2019. At this time, Mr Thompson had the assistance of the Court’s self-represented litigants coordinator (‘SRL coordinator’).
On 31 January 2020, Clayton JR made fresh orders amending the previous timetable due to non-compliance by Mr Thompson. Importantly, Clayton JR recorded in Other Matters:
A.Mr Thomson [sic] represents himself. He has been open with the Court about his distrust of lawyers. This directions hearing was listed due to non-compliance with previous orders.
B.The defendants would like to progress the matter. This is a case that may be capable of resolution if the defendants are able to obtain sufficient information from the plaintiff about the way he puts his claim.
C.I told Mr Thomson [sic] that I was concerned that his case will be significantly delayed if he is does not [sic] comply with Court orders. I encouraged him to seek legal advice, even just to help him to comply with the orders to obtain medical reports. I also raised with him the possibility that the Court could refer him to the Victorian Bar pro bono scheme for the purposes of arranging a judicial mediation. Mr Thomson [sic] indicated that he might be prepared to have a pro bono representative.
D.I told him that he would need to obtain medical material to support his claim. He indicated that he would go to his general practitioner to obtain a medical report in support of his claim.
E.I explained to him that the defendants could request that he attend an independent expert and have a medico-legal examination.
F.The third party sought an order that the plaintiff’s general practitioner be directed to address the issue of the plaintiff’s capacity to conduct his litigation. I did not make that order, but consider that this may be an issue for the Court to consider in the event that the matter does not progress.[11]
[11]Order of Clayton JR dated 31 January 2020.
Judicial Registrar Clayton made a number of orders including that the defendants were to file any expert material by 29 May 2020.
On 26 June 2020, Mr Thompson appeared before me in person at a directions hearing. In Other Matters I recorded the following:
A.Mr Thompson appeared today without legal representation. I asked Mr Thompson to explain what he wanted to do in relation to the proceeding he has filed in this Court. In particular, I referred to Mr Thompson’s letter which he provided to the Court (undated) in which he says that he wants ‘his case entered into the High Court’.
B.I had a lengthy conversation with Mr Thompson in court about what he wanted to do, and that the claim in this Court was in relation to him establishing that the State of Victoria and the Salvation Army (the first and second defendants) were negligent and that he should be compensated for any harm he has suffered because of their negligence.
C.I explained to Mr Thompson that he has an obligation to inform the Court in due course about whether he wants to proceed with this claim or whether he wants to pursue other avenues. I explained in very simple terms that the type of claim he has in this Court is not one that the High Court would hear at first instance.
D.The defendants’ solicitors informed the court that the interlocutory steps have not been complied with. The defendant’s solicitors informed the court that they have agreed to have Mr Thompson jointly assessed by a psychiatrist. Mr Thompson indicated in Court that he would not agree to being assessed by a psychiatrist. I explained to Mr Thompson the purpose of the examination and that the doctor is an independent expert who will be giving evidence to assist the court.
E.Mr Thompson has been assisted to date by the Court’s self-represented litigant coordinator. I told Mr Thompson that I would allow him another eight weeks to try to get legal advice, though he indicated he did not want a lawyer, and to consider what he wanted to do in relation to this proceeding. Mr Thompson was told that the Court would have to take steps to ensure the proceeding is progressed in a timely manner or, alternatively, that the proceeding should be dismissed if he fails to take any steps.
The proceeding was listed for a directions hearing on 21 August 2020. Due to the COVID-19 pandemic, the directions hearing listed on 21 August 2020 was adjourned to 2 October 2020 to allow time for the easing of COVID-19 restrictions and to enable Mr Thompson to appear in person. On 28 September 2020 that directions hearing was further adjourned until 6 November 2020.
On 6 November 2020, a further directions hearing took place and I made a referral with Mr Thompson’s consent to the Victorian Bar Pro Bono Assistance Scheme (‘Vic Bar Pro Bono Scheme’).[12] The purpose of the request was to assist Mr Thompson to comply with interlocutory orders. The proceeding was subsequently fixed for trial by Clayton JR on 30 November 2021.
[12]See Transcript of proceedings, (Thompson v State of Victoria & Ors, Supreme Court of Victoria, S ECI 2019 02037, Incerti J, 6 November 2020), T08.31 – T10.26.
On 9 December 2020, Mr Thompson was represented at a directions hearing by Mr Benjamin House of counsel, who had accepted the referral through the Vic Bar Pro Bono Scheme. As noted above, Mr Thomson addressed the Court and indicated he would not attend a medical examination.
In Other Matters I recorded the following:
A.The plaintiff was represented in Court by counsel, Mr Ben House, on a pro bono basis. On 6 November 2020 I made a referral to the Victorian Bar Pro Bono Assistance Scheme to assist Mr Thompson to comply with interlocutory orders. Since the 6 November 2020 orders referring the plaintiff to the Victorian Bar Pro Bono Assistance Scheme, Mr Benjamin House has been engaged on a pro bono basis.
B.At the directions on 6 November 2020 the defendants informed the Court that an appointment had been organised for the plaintiff to be assessed by a psychiatrist, Dr Timothy Entwisle, on 8 December 2020. On that occasion the plaintiff indicated that he would attend the appointment with Dr Entwisle on 8 December 2020.
C. On 7 December 2020 the plaintiff cancelled the appointment.
D.Mr House informed the Court that he has had several discussions with the plaintiff. Mr House has informed the plaintiff of the consequences under the rules of the Supreme Court.
E.The plaintiff asked to address the Court at the directions hearing and told the Court that he did not believe that his claim should be in the Supreme Court but that it should be filed in the High Court of Australia. The plaintiff has expressed this view on numerous occasions in the past. The Court today, and in the past, stressed that the plaintiff’s claim is in the correct jurisdiction and that the plaintiff is misguided in his belief that his claim should be heard in the High Court of Australia.
F.This is the fifth directions hearing in this matter, the first being listed on 4 October 2019 before Judicial Registrar Clayton. At that time Judicial Registrar Clayton made a number of interlocutory orders.
G.On 26 June 2020 I heard a directions hearing and at that time I extended the timetable for various interlocutory steps, including the plaintiff to serve expert reports, discovery, interrogation and mediation.
H.The plaintiff does not have access to technology and can only attend in person hearings. For this reason, subsequent directions hearings were adjourned to allow time for the easing of COVID-19 restrictions.
I.On 6 November 2020 I heard a further directions hearing at which time I extended the timetable for various interlocutory steps.
J.In the orders of Judicial Registrar Clayton made 31 January 2020, the issue of the plaintiff’s capacity to conduct litigation was raised and recorded in other matters. At today’s directions hearing I raised the issue of capacity with Mr House and Mr Thompson. Mr Thompson indicated that he does understand what is happening but has very firm views about the appropriate jurisdiction where his claim should be heard. At the directions hearing today Mr Thompson made it clear that he would not attend any appointment in the future to be assessed by a medical practitioner. He explained that he had been to see a psychiatrist in the past organised by his former lawyers and therefore did not see the necessity to attend any further appointments. More importantly, Mr Thompson maintains that he will not pursue the current proceedings because of his strong belief that the claim should be filed and heard in the High Court of Australia.
K.The Court has listed the matter to a directions hearing on 16 December 2020 so that Mr House can provide the plaintiff with further information and obtain instructions in relation to the future conduct of this proceeding. The defendants will also seek instructions in relation to the future conduct of this matter and any future applications.[13]
[13]Order of Incerti J dated 9 December 2020.
At the directions hearing on 16 December 2020 Mr House appeared on Mr Thompson’s behalf. Mr Thompson did not appear. Relevantly, I recorded the following in Other Matters:
…
E.Benjamin House of counsel appeared today on a pro bono basis. He informed the Court that he has had two conversations with the plaintiff since the 9 December 2020 directions hearing and that the plaintiff has instructed him that he would not appear today as he had a prearranged trip.
F.Mr House raised with the Court the issue of whether the plaintiff had capacity to instruct Mr House about continuing or withdrawing his proceeding. Mr House considered that the plaintiff understood the nature of the proceeding but had a tendency to divert into matters that are not relevant and misconceived. Mr House’s observations are consistent with my observations and interactions with the plaintiff over the past directions.
G.The defendants and third party indicated that they have instructions to make an application to stay the proceeding, and had put the plaintiff on notice in writing of that intent.
…
I.Mr House indicated that he would be prepared to provide the plaintiff with assistance and advice in relation to any future stay application. The Court is indebted to Mr House’s involvement on a pro bono basis.
J.The Court is satisfied that it is in the public interest for the due administration of justice to refer a further request for pro bono assistance by a barrister to the Victorian Bar Pro Bono Assistance Scheme (‘the scheme’).
K.The plaintiff consents to the Supreme Court of Victoria Self-Represented Litigants Coordinator providing their name, contact details, information about the proposed proceeding and copies of all documents relevant to the proposed proceeding to any member of the scheme that agrees to provide assistance to the [plaintiff].
…[14]
[14]Order of Incerti J dated 16 December 2020.
On 24 December 2020, the defendants and third party filed the summons seeking a stay.
The matter was adjourned to a directions hearing on 18 February 2021. On 17 February 2021, Mr House wrote to the Court indicating that he would seek leave to cease to act given his inability to contact Mr Thompson.
On 18 February 2021, Mr House was granted leave to cease to act for Mr Thompson. Mr Thompson did not attend the directions hearing. The defendants’ and third party’s summons was listed for hearing on 18 March 2021.
On 16 March 2021, the Court on its own motion informed the parties that the hearing would be converted into a directions hearing as the Court, via the SRL coordinator, had had some recent contact with Mr Thompson and his relatives.
On 17 March 2021, Mr Thompson contacted the Court via the SRL coordinator and said he would appear on 18 March 2021 and the hearing of the summons was relisted to that date.
On 18 March 2021, the defendants’ and third party’s summons was heard. Mr Thompson was self-represented. He provided the Court with two documents. The first was dated 5 March 2021 and the second was undated.
I will not go through the contents of the documents, save to say that they are impenetrable and difficult to follow. The documents are not responsive to the Harper affidavit or the joint written submissions.
At the hearing of the stay application, Mr Thompson informed the Court that he had changed his mind - he no longer wanted his matter to be heard in the High Court and wanted it to be heard in the Supreme Court.[15]
[15]Transcript of proceedings. Thompson v State of Victoria & Ors (Supreme Court of Victoria), Incerti J, 18 March 2021, T13.13-17.
Mr Thompson then told the Court that he had an expert report and, in essence, that was the reason why he would not attend the appointment with the defendants’ and third party’s independent psychiatric expert. Mr Thompson also told the Court about his difficulty getting his medical records.
The exchange with Mr Thompson did not assist in the progress of the matter and did not assist the Court in terms of any response on his behalf to the defendants’ and third party’s submissions and the orders that they sought to stay the proceeding.
It was not clear if Mr Thompson understood his obligations and, in particular, the reason why he needed to attend an appointment to be assessed by the defendants’ medical expert. Based on the numerous times Mr Thompson has appeared before me, I have concerns whether he is capable of advancing the litigation. After a lengthy exchange, I directly raised with Mr Thompson my concerns in relation to his capacity to make informed decisions about the conduct of the litigation. Mr Thompson said that he considered that he did have the capacity but he just didn’t have the proper support.[16] Mr Thompson agreed that the conduct of the litigation was not ‘easy for someone who doesn’t have a lawyer’.[17]
[16]Transcript of proceedings. Thompson v State of Victoria & Ors (Supreme Court of Victoria), Incerti J, 18 March 2021, T28.13-24.
[17]Ibid, T32.05-16.
Analysis
Concerns about capacity
Underlying the defendants’ and third party’s stay application is the issue of whether Mr Thompson is capable of managing his affairs as they relate to this proceeding. The Court is routinely required to make decisions concerning a litigant’s capability to manage their affairs in relation to a proceeding. More often than not, when required to make such an assessment, medical, psychological and psychiatric evidence will be considered, but the final decision rests with the Court - not with the doctors, the lawyers or the parties.[18]
[18]Ahmet v Jardine [2014] VSCA 52, [29], citing Goddard Elliott v Fritsch [2012] VSC 87, 562.
In determining what course to take, if any, the Court has a number of options. Order 15 of the Rules provides for the appointment of a litigation guardian to a person under a disability. In Pistorino v Connell,[19] John Dixon J stated that the means by which the Court will determine whether a guardian should be appointed pursuant to Order 15 can vary from case to case.[20]
[19][2012] VSC 438.
[20]Pistorino v Connell [2012] VSC 438, [17].
In the case of Slaveski v Victoria (‘Slaveski’),[21] Kyrou J was concerned with an unrepresented litigant whose capacity was in doubt after the trial of the proceeding had commenced. His Honour identified a number of factors as relevant considerations in determining whether a self-represented party was relevantly under a disability for the purpose of r 15.01 of the Rules. They were:
(a)Does the plaintiff understand the actual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b)Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
…
(l)Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?[22]
[21](2009) 25 VR 160.
[22]Ibid [32].
As his Honour noted:
Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a ‘capable’ litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.[23]
[23]Ibid [31] (citations omitted).
A difficulty in this case is that Mr Thompson does not readily have a person who could be appointed as litigation guardian. I suspect, given his comments and conduct to date, Mr Thompson will be resistant to a litigation guardian being appointed, even if there were a person prepared to take on the role. Further and importantly, the Court is not assisted by any evidence from a medical practitioner, psychologist, legal practitioner or any other person, to assist in the assessment of whether Mr Thompson is a person under a disability for the purpose s of Order 15.
As such, I consider a better course is to consider making a referral to VCAT pursuant to s 179 of the G & A Act. Section 179 of the G & A Act states that where the Court considers that a party may need a guardian, a supportive guardian, an administrator or a supportive administrator in any civil proceeding before it, the Court may refer the issue to VCAT for determination.[24] This referral is treated as if it were an application to VCAT for the relevant supporter,[25] and the Prothonotary or the principal registrar is taken to be the applicant.[26]
[24]Guardianship and Administration Act 2019 s 179(1).
[25]Ibid s 179(2)(a).
[26]Ibid s 179(2)(b).
Before making such a referral, I note the remarks made by Nettle JA (as he then was) in Bahonko v Moorfields Community:[27]
Equally, however, there can be no dispute that before a judge makes a decision to refer a person to VCAT, he or she ought ordinarily give the person the opportunity to be heard on the point …[28]
[27][2008] VSCA 6.
[28]Ibid [25].
In that decision, the Court of Appeal was considering a decision at first instance to make an order under s 66 of the Guardianship and Administration Act 1986 (Vic), the predecessor to the current G & A Act.
Nettle JA went on to say:
The imperative audi alteram partem, or fair hearing rule, is a fundamental principle of procedural fairness that each party be given the opportunity to contradict evidence and submissions offered by their opponent. An order referring the issue of appointment of a guardian or administrator to VCAT may have a profound effect on the interests of a litigant, regardless of whether VCAT appoints a guardian or administrator. Consequently, the litigant is ordinarily entitled to be heard.[29]
[29]Ibid (citations omitted).
In this case, it is important Mr Thompson be given an opportunity to make submissions and adduce evidence as to whether a referral to VCAT is warranted. While the Court might be assisted by medical evidence in relation to the decision to make a referral to VCAT, the decision can be made based on other evidence and the Court’s own assessment of Mr Thompson’s capability to conduct the litigation.
Before taking any step to refer this matter to VCAT, I will provide Mr Thompson with an opportunity to make submissions and present evidence to the Court in relation to the issue of referral.
Stay of proceedings for abuse of process
This now brings me to the defendants’ and third party’s stay application. In relation to the application for a stay pursuant to r 23.01 of the Rules, the situation is complicated. As Mr Thompson pointed out during submissions, from approximately March 2020 until recently compliance with orders has been difficult due to the COVID-19 restrictions that have been in place. Mr Thompson has only recently had access to the internet and previously all communication has been limited to landline and postal communication. In the context of the COVID-19 restrictions, this has made matters even more difficult for Mr Thompson to comply with orders or advance his litigation generally. The matters to which I have just referred do not provide a reasonable basis for Mr Thompson refusing to attend the appointment with Dr Entwisle.
It is not clear what degree of assistance was provided by Mr House or, more importantly, whether Mr Thompson was prepared to listen and act on any advice given by Mr House.
Given Mr Thompson’s presentation and the material before the Court, I am not satisfied that his non-compliance amounts to an abuse of process for the purposes of r 23.01. As such, I do not consider it appropriate to stay the proceeding either pursuant to r 23.01 or the inherent power of the Court.
Stay of proceedings for refusing to attend medical examination
While I have concerns about whether Mr Thompson is capable of managing his legal affairs for this proceeding, there is no doubt that the request by the defendants and third party to have Mr Thompson assessed by Dr Entwisle was reasonable, as contemplated by r 33.04(2). Given the nature of Mr Thompson’s claim and the alleged injuries, the defendants and third party cannot, as matters stand, make an assessment of Mr Thompson’s injuries or any potential assessment of damages. To date, Mr Thompson has not provided a rational or reasonable explanation as to why he has refused to attend the appointment, other than to say he had already attended an appointment organised by his solicitors in this case. The defendants and third party have not been provided with any medical material or expert report from Mr Thompson.
Rule 33.04(1) permits a defendant to request a plaintiff submit to appropriate examinations by a medical expert or experts at specified times and places. Rule 33.04(2) states that where a plaintiff refuses or neglects, without reasonable cause, to comply with the request under r 33.04(1), the Court may, if the request was on reasonable terms, stay the proceeding. The relevant principles were set out in Pyman v Whitefriars College Inc[30] by Forbes J:
The application of a stay of proceedings sought by the defendant requires the exercise of discretion by the Court. I must be satisfied of two things:
(a)that the plaintiff’s refusal to attend was without reasonable grounds, and
(b)that the defendant’s request to attend the examination was reasonable.[31]
[30][2019] VSC 361.
[31]Ibid [11]. See also the discussion at [12], citing Stace v Commonwealth (1989) 51 SASR 391.
The decision whether or not to grant a stay involves the exercise of discretion and in exercising the discretion it is necessary for the Court to balance the right of the plaintiff to personal liberty against the right of the defendant to prepare a defence in the litigation as it sees fit. For the reasons set out above, I consider the defendants’ and third party’s request was more than reasonable and to date there has been no reasonable explanation offered by Mr Thompson for his refusal to attend. There is of course the issue of whether Mr Thompson appreciates the consequences of failing to attend the appointment giving rise to a stay in the proceeding.
Determining the unreasonableness or otherwise of Mr Thompson’s refusal to attend the appointment with Dr Entwisle is difficult in the current circumstances, given the concerns I have raised about whether he is capable of managing his legal affairs in this proceeding due to some infirmity, disability or mental health issue. It seems to me that while I do consider the request reasonable and, on the limited evidence before the Court, the refusal unreasonable, in the circumstances of this case I do not consider it appropriate to exercise the Court’s discretion to order a stay until the issue in relation to a potential referral to VCAT pursuant to s 179 of the G & A Act is determined. In the event that a referral is made, it is only after that process is complete that this Court will be in a position to make an informed decision in relation to any potential stay on the proceeding.
I am fortified in my view that the exercise of discretion to refer the matter to VCAT is appropriate (subject to submissions to be made by the parties) by the fact that the merits of this case have not been determined and there has been no suggestion by the defendants or third party that the plaintiff has no cause of action or that the claim is not capable of successful prosecution.[32]
[32]Cf Zhong v Melbourne Health [2015] VSCA 165, [81].
It is regrettable that there has been delay in this matter. The delay has been compounded by the COVID-19 restrictions and Mr Thompson’s failure to comply with any orders despite having had the benefit of Mr House’s assistance for a short period. I accept that the delay in and of itself impacts on the defendants and third party. However, there is no evidence of actual prejudice to the defendants or third party. It is important that I note that the defendants and third party have behaved in a very professional, patient and cooperative manner and there can be no criticism of their conduct of the litigation. As I have said, this is a complex matter whereby Mr Thompson’s conduct of the litigation may be affected by other issues and it is in the interests of justice that the Court is satisfied as best it can be about Mr Thompson’s capability to conduct the litigation.
Orders
I make the following orders:
1. The defendants’ and third party’s summons dated 24 December 2020 is dismissed.
2. The proceeding is listed for hearing on 3 May 2021 at which time Mr Thompson will be invited to make submissions as to a referral pursuant to s 179 of the Guardianship and Administration Act 2019 (Vic).
3. The costs of the defendants’ and third party’s summons are reserved.
SCHEDULE OF PARTIES
S ECI 2019 02037
| RICHARD THOMPSON | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| THE SALVATION ARMY (VICTORIA) | Second Defendant |
| MENZIES INC | Third Party |
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