Westpac Banking Corporation v Swan (Ruling)

[2025] VCC 1162

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

BANKING AND FINANCE LIST

Case No. CI-23-04017

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)	Plaintiff
v
TANYA VIRGINIA SWAN	Defendant

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JUDGE:	HIS HONOUR JUDGE WISE
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2025
DATE OF RULING:	15 August 2025
CASE MAY BE CITED AS:	Westpac Banking Corporation v Swan (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1162

RULING
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Subject:CIVIL PROCEDURE        

Catchwords:              Application to vacate trial - proximity to trial - principles of Aon - consideration given to nature and timing of application - prejudice and delay – interests of justice.

Legislation Cited:      Civil Procedure Act2010 (Vic)

Cases Cited:Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (Ruling) [2011] VSC 370; Melco Resorts (Macau) Ltd v Wu [2025] VSC 460; UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107;

Ruling:  See paragraph 23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A L Gaber	MinterEllison
For the Defendant	Ms H Aprile	RBK Legal Advisory

HIS HONOUR:

Introduction

1This is an application by the defendant to vacate the trial date fixed for 12 November 2025 and to relist the matter to a date not before 12 May 2026.  The application is supported by affidavits of her solicitor sworn on 5 and 13 August 2025, a further affidavit filed overnight and by written submissions filed on 13 August 2025.  The plaintiff opposes the application and relies on the affidavits of Ms Rouyanian (solicitor for the plaintiff) sworn on 6 and 8 August 2025 and written submissions filed that same day.

2Ms Swan’s evidence and submissions identify three principal grounds for the adjournment:

3First, Mr Hazell (solicitor for Ms Swan) deposes that on 1 April 2025 he notified the plaintiff’s solicitors of the appointment of a manager by the Victorian Legal Services Board to BAT Legal, a firm involved in transactions concerning the properties the subject of this proceeding.  He refers to potentially significant issues arising from those transactions, including the enforceability of certain loans and securities, and notes that BAT Legal is a proposed defendant in separate proceedings which have very recently been commenced by Ms Swan in the Supreme Court of Victoria.

4Second, Mr Hazell deposes that those proceedings have now been issued against multiple parties including Samirco Pty Ltd; BAT Legal; Ian Hone, trading as Hone Legal and Conveyancing; Helen Mastos, trading as Strategic Law Partners; and the Registrar of Titles.  The subject matter of those claims was said by Mr Hazell to relate in some way to the loans and securities over the disputed properties, and he submitted in his affidavit that their resolution may bear materially upon the present case. 

5Ms Aprile of counsel, appearing for Ms Swan today, abandoned any reliance upon the interrelationship in a legal sense between the Supreme Court proceeding and the matters to be determined in this proceeding.  Therefore, Mr Hazell’s argument founded on a “multiplicity of proceedings” is no longer in issue.

6Third, Mr Hazell gave evidence as to Ms Swan’s financial position.  He deposed that she is unable to continue to fund the preparation for and trial of this proceeding.  He deposes that under those circumstances he will be obliged to soon file a notice of solicitor ceasing to act, which will result in her having to prepare for the trial and conduct the trial as a self-represented litigant.  He said that this bears on the question of her ability to effectively manage the trial, and, as submitted by Ms Aprile this morning, that this would affect the duration and conduct of the trial if it were to run.

7Mr Hazell also exhibited to his affidavit confidential medical reports relating to Ms Swan which speak in detail to fairly serious medical issues that she suffers arising from incidents that have occurred in her past.  I do not make any further reference to those in these reasons; however, note that I have considered them and take them into account fully.

8Mr Hazell deposes to, and Ms Aprile submitted, that that medical evidence should lead the Court to infer that Ms Swan’s ability to prepare for the trial and conduct the trial would be deleteriously affected if the trial date were not vacated.

9The evidence filed by the plaintiff is directed to the history and status of the proceeding, the amounts owing under the relevant loan facilities, and valuations of the secured properties. Ms Rouyanian deposes that the proceeding was commenced on 26 July 2023 – which I note is already quite old, that Ms Swan’s defence and counterclaim were filed on 22 January 2025, and that a court-ordered mediation occurred on 27 May 2025.  She gives evidence that the total indebtedness as at 6 August 2025 exceeds $7.4 million and is projected to increase further if the matter were adjourned to May 2026.  The plaintiff maintains that the matter is ready for trial, that further delay would prejudice Westpac’s ability to enforce its security and recover the debt. I infer that the concern is that the debt will increase to beyond the security value of the properties, and therefore the hearing date should be maintained.

Legal principles in relation to adjournment and case management

10The overarching purpose of the Civil Procedure Act 2010 is to facilitate the just, efficient, timely and cost-efficient resolution of the real issues in dispute (Civil Procedure Act 2010 s7). Section 49 of that Act relevantly provides that a court may give any direction it considers appropriate to further the overarching purpose in relation to the conduct of a hearing in a civil proceeding.

11The Court may adjourn a trial on such terms as it thinks fit.[1]  The Court has inherent power to direct that any matter which comes before it should stand over for a period in order to do justice between the parties: see Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32. In deciding whether to adjourn the court or vacate a trial, the Court has regard to a number of factors including the overarching purposes of the Civil Procedure Act as required by legislative changes introduced by that Act.  The landmark decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 establishes the governing case-management principles that have been applied by the Court to interlocutory applications including applications to amend pleadings and adjourn trials.

[1]County Court Civil Procedure Rules 2018, r49.03

12In Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (Ruling) [2011] VSC 370, the Court said at paragraphs [8] and [9]:

“[8]Aon demonstrates that there are a number of factors relevant to an application such as this.  For instance:

(a)   whether there will be a substantial delay caused by the amendment;

(b)   the extent of any wasted costs;

(c)   whether there is an irreparable element of unfair prejudice caused by the amendment;

(d)   concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e)   whether the grant of the amendment will lessen public confidence in the judicial system; and

(f)    whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

[9]It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate?  Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party.”

13Both Ms Aprile and Ms Gaber, who appeared for the plaintiff, referred to the recent decision of Connock J in Melco Resorts (Macau) Ltd v Wu [2025] VSC 460 at paragraphs [17] to [21]. His Honour noted that the principles to be applied in applications to adjourn a trial date include:

(a)   Whilst, in the past, appellate Courts have accepted that an adjournment should be granted if its refusal would prevent a party making out his or her case, that position is now qualified.  The shift reflects the importance that is now accorded to case management principles, particularly following the High Court’s decision in Aon and the subsequent enactment of the Civil Procedure Act which promotes the “overarching purpose” of the efficient and timely resolution of disputes.

(b)   Achieving the purpose of the Civil Procedure Act may require a more robust and proactive approach on the part of the courts.

(c)   The Court’s power to adjourn proceedings or to refuse an application for an adjournment is subject to the Court’s obligation to give effect to the overarching purpose of the Civil Procedure Act.

(d)   Adjournment applications are not to be considered solely by reference to whether any prejudice to the opposing party can be compensated by costs.  Other factors that are relevant include:

(i)the time of the court, as a publicly-funded resource;

(ii)the need to maintain public confidence in the judicial system;

(iii)the need to avoid disruptions in the court lists with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard.

(citations omitted)

14The relevant principles as to what constitutes adequate medical evidence for the purpose of either adjourning proceedings or explaining non-attendance were helpfully summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [42]-[47] as follows:

“[42]While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why – and not just whether – the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone).  It is this nexus that is critical.

[43]    To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant’s participation in a court hearing, the severity of the condition, and its expected duration.  The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.

[44]    Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought.  To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.

[45]    In Bobolas, the appellants appealed against a series of decisions and orders made against them by this Court.  One of the appealed decisions is relevant to the present application, namely, a decision by Pain J in Bobolas v Waverley Council (No 3) [2015] NSWLEC 100 to refuse to set aside orders made against the appellants by Sheahan J… Pain J rejected all of the medical certificates as having no probative value.

[46]    On appeal, McColl JA held that Pain J’s rejection of the certificates was “unexceptionable”.  In doing so, she opined that (at [221]):

221  A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.”

[47]    McColl JA went on to conclude that the appellants’ medical certificates failed to address the “critical question” (at [222]).”

15In substance, the requirement of medical evidence is not simply to set out the nature of the particular condition suffered by the relevant person and the medical professional’s expression of opinion that the relevant person requires the adjournment or special accommodation.  Rather what is necessary is that a condition be identified, its current manifestations be set out, relevant treatments that are being undergone be provided, and then a logical link between each of those things and the asserted inability to either attend the trial or require particular accommodations.  Without that logical link, the Court is left in no position to adequately assess the question and be able to decide whether adjustments sought or adjournments sought ought to be made having regard to the relevant effects on the conduct of the trial and the relevant prejudice to be suffered by the other party.

Application to the facts

The nature of the application

16The defendant applies to vacate a trial fixed for 12 November 2025.  The first issue she relies upon relates to the regulatory action being taken against BAT Legal.  Second is the Supreme Court proceedings which have been now commenced (although that matter has now been abandoned by her counsel today).  The third is her current inability, by reason of financial position, to fund the preparation and conduct of the trial.  The final matter is her medical condition as it affects her ability to prepare for and conduct the trial.

17It is difficult dealing with her impecuniosity.  Mr Hazell deposes that it is his view that the Supreme Court proceeding that has just now been commenced is likely to reach a resolution which will provide Ms Swan with funds that will allow her to conduct this litigation using lawyers rather than as a self-represented litigant.  I confess to being in no position to assess the likelihood that that proceeding will settle in the time frame that Mr Hazell indicates, nor whether it might produce payment of a settlement sum to Ms Swan.  As a matter of ordinary experience of litigators conducting litigation in the courts in this State, it is extremely difficult to predict the outcome of a proceeding whether at judgment or as to whether it will indeed settle along the way and result in an outcome.  I am unpersuaded that Mr Hazell’s opinion on this matter is likely to be correct.  I am really not in any position to assess whether that is likely to come to pass or not.

18That leaves me in the position of noting that Mr Hazell has deposed that he will seek to file a notice of solicitor ceasing to act in the event that the trial is not adjourned, as Ms Swan will be unable to fund the proceeding.  Whether he will be granted leave to cease acting or not is a matter for another judge to deal with on another day.  However, I do note, as pointed out by Ms Gaber, that Mr Hazell has indicated that he is prepared to act for Ms Swan in the Supreme Court proceeding at reduced rates.  That rather suggests that Ms Swan or he is making a choice as to the deployment of such funds as Ms Swan does have to devote to litigation.  It may well be that a choice is being made to privilege the conduct of that proceeding rather than this.  I do not enter into that question any further, except to note that those issues may arise in respect of an application, if made, by Mr Hazell to seek leave to cease acting, given the proximity of this matter to trial.

19In the end, while the Court always sympathises with litigants who are unable to fund their litigation and have to conduct it as a self-represented litigant, the courts cannot adjourn trials simply on that basis.  A plaintiff is entitled to invoke the jurisdiction of the Court in respect of any proper dispute, and the Court must hear those matters, and generally should do so in the ordinary course.  This proceeding was issued in July 2023.  It is now August 2025, and a trial has been set for quite some time.  Under those circumstances, the fact that Ms Swan may need to manage the matter as a self-represented litigant is not a sufficient reason to vacate the trial.

20Ms Aprile noted that if Ms Swan were required to conduct the matter as a self-represented litigant, that would in and of itself produce a certain level of prejudice to both herself and to the plaintiff as it will result in the trial being longer than might have been the case if she were represented.  While that is also true, I do not regard that as a sufficient reason to cause the trial to be vacated.  The Court must entertain cases, even if parties are self-represented, with whatever additional burden both in time and effort that that causes both to the Court and to the other party.

21As to Ms Swan’s medical issues and the extent to which they may impact on her ability to prepare for and conduct the trial, the medical evidence produced does not condescend to provide sufficient detail and to draw the link between her condition and those things.  While the Court has sympathy for the condition that Ms Swan suffers from, without a detailed understanding of how that may impact on her ability to prepare for and conduct the trial, I cannot reach any firm conclusion any way.  However, I do note that nothing is said about how her condition might improve or otherwise with time.  Under those circumstances I can have no confidence that if the trial were vacated she would be in any better position to prepare for and conduct the trial having regard to her medical condition on the adjourned date.

22Ms Aprile submits that, based on Mr Hazell’s expectation that the Supreme Court proceeding may settle early and produce a sum of money which may result in Ms Swan not needing to conduct the matter as a self-represented litigant, I consider that to be pure conjecture.  It is not a matter that I can firmly rely upon in reaching a conclusion as to whether it is appropriate to adjourn the trial.

23Ms Gaber rightly submits that her client may well suffer prejudice as time goes on with the accrual of further interest, presumably at default rates, such that it may find itself unable to be fully paid out from the security properties if it is successful in its conduct of the proceeding.  This is a prejudice that cannot be ignored.

24Under all those circumstances, and weighing the relative prejudices against each other, it is my view that it would be inappropriate to adjourn the trial, and I will therefore dismiss the defendant’s application.

25I will hear the parties on costs.

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Certificate

I certify that these 10 pages are a true copy of the ruling of His Honour Judge Wise delivered on 15 August 2025.

Dated: 20 August 2025.

Liam Crough

Associate to His Honour Judge Wise.