FEDERAL COURT OF AUSTRALIA

Bellou v Victoria University (No 3) [2019] FCA 940

ORDERS

THE COURT ORDERS THAT:

1.    Order 9 of the orders made herein on 29 May 2019—and the hearing dates that were, thereby, set for the trial of this proceeding—be vacated.

2.    The matter be listed for a case management hearing at 10:15am on Friday, 13 December 2019.

3.    On, or within three business days either side of, each of:

a.    Friday, 9 August 2019;

b.    Friday, 11 October 2019; and

c.    Friday, 6 December 2019,

the applicant file and serve evidence concerning:

(i)    the status or state of her medical condition at that time;

(i)    her fitness at that time to resume her preparations for and/or engagement in the proceeding (including, in particular, by way of the filing of the evidence upon which she intends to rely at trial); and

(ii)    in the event that the evidence provided in compliance with (ii) above is to the effect that she remains, at that time, unfit to so resume, the timeframe within which it is then expected that she will be able to do so.

4.    On or before Thursday, 20 June 2019, the applicant serve, either personally or by ordinary pre-paid mail, a copy of these orders upon Dr Anthony Diamantaras of Moonee Ponds Medical Clinic.

5.    The applicant’s interlocutory application dated 12 June 2019 be otherwise dismissed, with no order as to costs.

6.    The costs of and relating to the respondent’s interlocutory application of 7 June 2019 be reserved for resolution at the time that the court publishes reasons for these orders.

7.    The respondent’s interlocutory application of 7 June 2019 be otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Orders 4, 5, 6, 7 and 8 of the orders made herein on Wednesday, 29 May 2019 be vacated.

2.    There be no order as to the costs of and relating to the respondent’s interlocutory application of 7 June 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    The following are the reasons for which the court made the orders that it did herein on Thursday, 13 June 2019.

2    By an originating application filed on 27 September 2017, the applicant, Dr Bellou, alleges that her former employer, the respondent, subjected her to various forms of adverse action (within the meaning attributed to that phrase by s 342 of the Fair Work Act 2009 (Cth)—hereafter, the “FW Act”).

3    On 13 June 2018, the matter was set down for a five-day trial to commence on Monday, 17 June 2019. On 19 March 2019, the matter was the subject of case management orders, by which the parties were required to file evidence and submissions ahead of the trial. In the applicant’s case, that requirement was that she file and serve any affidavits or documents upon which she intended to rely at trial by no later than 16 May 2019, and an outline of written submissions as to why her application ought to succeed by no later than 30 May 2019.

4    By an application dated 24 May 2019, Dr Bellou sought to amend those orders and to vacate the trial dates. That application was heard on Wednesday, 29 May 2019. Dr Bellou represented herself at that hearing. She claimed to be labouring under severe back pain, which, she said, precluded her from preparing for the impending trial (including by means of the provision of evidence and other documents upon which she proposed to rely). In support of the orders that she sought, she produced a four-line, pro forma medical certificate from her doctor, Dr Anthony Diamantaras.

5    Save for making some modest alterations to the existing directions, the court declined Dr Bellou’s application: Bellou v Victoria University [2019] FCA 812 (Snaden J). Amongst other orders, the court directed that Dr Bellou file the evidence (or, if she wished, witness statements) and documents upon which she intended to rely at trial by no later than Friday, 7 June 2019. The trial duration was revised from five days to three, and it was set down to commence on Wednesday, 19 June 2019.

6    By email correspondence of Thursday, 6 June 2019, sent to the court and copied to the respondent’s advisers, Dr Bellou indicated that she was unable—again, she said, on account of her physical condition—to comply with the court’s orders. She sought advice from the court “…as to the process/es [that she] need[ed] to follow and [the] implications of each”. On Friday, 7 June 2019, the court responded by reply email, declining to provide advice as sought but indicating all the same that Dr Bellou could, if she wished, make an application under rule 17.01 of the Federal Court Rules 2011 (Cth). Later that day, Dr Bellou indicated (again by email) that she would make an application in light of the default that she had foreshadowed, and would provide further evidence of what she described as her “health issues”.

7    Nearly two hours later, the respondent filed and served an interlocutory application of its own, by which it sought orders dismissing or staying the proceeding on account of Dr Bellou’s default of the court’s orders. It also sought an order for costs in the fixed sum of $1,800. That application was supported by an affidavit of the respondent’s solicitor, to which was attached a printout of the whole of the email exchange described above. It was listed for a hearing to commence at 10:15am on Thursday, 13 June 2019.

8    Late in the afternoon of Wednesday, 12 June 2019, Dr Bellou filed an interlocutory application, by which she sought to have the existing directions and trial dates vacated. Supporting that application was an affidavit that she swore earlier that day, to which (amongst other things) was attached a letter from Dr Diamantaras dated 4 June 2019. That letter stated:

Dr Thea Bellou suffered a significant cervical spinal injury during a fall at work on 2nd February 2016. She was transferred by ambulance and was an inpatient in the Royal Melbourne Hospital Acute Trauma ward for 1 week. She has had intensive therapies since including physiotherapy and neurosurgical review. Her condition was deemed inoperable. Over the past 2 months she has developed persistent and at times severe bilateral upper limb pains and numbness that has affected all the digits in her hand. These symptoms escalate with use of her hands and are debilitating. As a result of her deteriorating symptoms an MRI of the cervical spine was ordered (see attached) and confirmed significant multilevel spinal canal stenosis as well as spondylolisthesis. This is in accordance with her current symptomatology.

Dr Bellou has been referred to a neurologist for an EMG (electromyography) to assess the extent of damage to the nerves prior to referral back to the Neurosurgeon for reassessment. Her chronic bilateral upper limb radiculopathy has resulted in significant worsening of her upper limb paraeasthesias and motor weakness preventing her from preparation of required documents and activities related to her current legal proceedings. Although it is difficult to accurately determine the duration of her deteriorating condition at this point in time I would envisage in my opinion that she has a capacity to meet the courts requirements by December 2019.

Attached to Dr Diamantaras’s letter of 4 June 2019 was a two-page magnetic resonance imaging (or “MRI”) report pertaining to Dr Bellou.

9    Dr Bellou’s affidavit of 12 June 2019 contained a number of statements critical of the respondent. She accused it of having, prior to the hearing of 29 May 2019, “…filed at the 11th hour a plethora of documents, while being aware that [she] had no time to read, examine, assess and analyse [them]…” and said that she “…had to attend [that] hearing under duress”. She complained that “…to [her] consternation [the 29 May hearing] was turned by the Respondent into a case management hearing…”, that the respondent’s application of 7 June 2019 was “intend[ed] to circumvent [her own] Interlocutory Application” and that the respondent was “…engaging in trial by ambush.” She accused the respondent of having itself failed to comply with orders of the court, and of inappropriately disregarding (and, thereby, exacerbating) her medical condition.

10    Both applications—the respondent’s application of Friday, 7 June 2019 and Dr Bellou’s application of Wednesday, 12 June 2019—came before the court on the morning of Thursday, 13 June 2019. Early that morning, the respondent provided a written outline of submissions, by which it identified reasons why, so it submitted, the court should dismiss the proceeding. Its submissions made no mention of Dr Bellou’s application, nor the affidavit sworn in support of it. At the hearing on Thursday, 13 June 2019, counsel for the respondent properly acknowledged that the submission had been finalised before he had had an opportunity to consider Dr Bellou’s application, and that her affidavit of Wednesday, 12 June 2019, to a degree, “…change[d] the landscape…”.

11    It is sufficiently clear from Dr Diamantaras’s most recent letter that Dr Bellou’s injuries are such that she cannot properly advance her case in the immediate term. The degree of particularity that was absent in May 2019 is now present. It is sufficient to establish an evidential basis for what Dr Bellou has previously sought merely to assert: namely, that she is unfit to prepare and run her case. Although her physical condition is not, of itself, a circumstance that mandates an eleventh-hour vacation of the existing directions and trial dates, it is an obvious and significant factor that should inform an exercise of the court’s discretion to that end.

12    The impact of vacation upon the respondent is another. The unfortunate position in which it now finds itself should not go unnoticed. Contrary to Dr Bellou’s intemperate and largely (if not entirely) groundless criticisms (about which more is said below), it has conducted itself in a “patient and model way”: Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). The case advanced against it is put with a want of precision under which respondents ought generally not have to labour. Rather than enforce its right to a proper pleading, it has been content to permit Dr Bellou to state her case more particularly by means of the evidence upon which she intends, at trial, to rely. By its approach to the defence of the action, it has made appropriate accommodations of Dr Bellou that reflect her status as a self-represented litigant. Through no fault of its own, it now faces the prospect of defending a civil penalty case commenced nearly two years ago that is still yet to be satisfactorily articulated. That it should now stand accused of “trial by ambush” must be particularly galling. The impact that vacation of the existing directions and trial dates will visit upon it is significant and it is proper to take account of it.

13    The impact upon other litigants and the court’s own resources is also relevant to whether or not Dr Bellou’s application should succeed. The court’s workload is such that vacation of the trial now will almost certainly mean that it is put off for at least the best part of a year. There is no shortage of authority for the proposition that an indulgence of the kind that Dr Bellou now seeks should, in part, turn upon the impact that it threatens to visit upon the court and other litigants. In DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10, Rangiah J (with whom Reeves and Bromwich JJ agreed), in upholding a decision of a trial judge to not grant an adjournment, observed (at [83]):

An adjournment is not granted merely for the asking. Wider issues are at play, even if they were not expressly referred to by the trial judge. As Toohey and Gaudron JJ observed in Sali v SPC Ltd (1993) 67 ALJR 841 at 636:

The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.

The trial judge must have been conscious that if an adjournment was granted, the time set aside for the hearing would be wasted and another hearing date would have to be found.

To similar effect, see Lamont v University of Queensland (No 1) [2019] FCA 897, [18] (Rangiah J).

14    Not without some hesitation, I am satisfied that the interests of justice require vacation of the existing trial dates and directions. It is not appropriate, however, that the matter be allowed simply to drift off unsupervised until such time as Dr Bellou resuscitates it. Instead, it is to be the subject of a case management hearing in mid-December 2019 (by which time, Dr Diamantaras is hopeful, without guaranteeing, that Dr Bellou will be well enough to reengage with her proceeding). In the interim, the court requires that Dr Bellou take steps periodically to keep the court and the respondent apprised of any changes to her condition or her ability to resume her preparations. To assist to that end, Dr Bellou is required to provide Dr Diamantaras with a copy of the court’s orders.

15    On the question of costs, the respondent contends that Dr Bellou ought to have provided it with Dr Diamantaras’s most recent correspondence far earlier than she did. Her failure to provide it prior to 7 June 2019 was, it says, an unreasonable act or omission, by reason of which the prohibition against an award of costs for which s 570(1) of the FW Act provides does not apply. Had that evidence been provided then (or sooner), the respondent would not, it says, have incurred the costs that it has of making its interlocutory application.

16    In response, Dr Bellou says that she moved as quickly as she was able to to make her application and the affidavit that supported it. As a self-represented litigant, she felt that it was important that she make her application in the appropriate form—that is, by means of an interlocutory application supported by an affidavit—and that, because of the limitations imposed by her injury, she was unable to complete that work before she did. In order to complete it, she required the assistance of her son, who (so she explained from the bar table) took leave from his employment on 12 June 2019 to assist her to file her affidavit, which she swore before a member of the court’s staff (presumably at the time that it was filed).

17    Again not without some hesitation, I am not prepared to characterise Dr Bellou’s want of haste (if it can fairly be described as such) as “unreasonable”. She indicated on Friday, 7 June 2019—after the court’s email correspondence indicating that she could, if she wished, make an interlocutory application under r 17 of the Federal Court Rules 2011 (Cth)—that she intended to provide updated medical evidence. In assessing her subsequent conduct—seen, as it must be, in the light of the physical limitations to which her injury subjects her—she should be afforded the proverbial “benefit of the doubt”. I am not persuaded that her conduct warrants the award of costs that the respondent seeks.

18    Before concluding, two observations bear noting. The first concerns orders 4, 5, 6, 7 and 8 of the orders made on Wednesday, 29 May 2019. Those orders concerned the various steps that the parties were to take in the lead up to the trial that has now been vacated. It is appropriate that those orders should also be vacated and there shall be an order to that effect.

19    The second concerns the criticisms that Dr Bellou, in her affidavit of 12 June 2019, has levelled against the respondent (and, at least implicitly, its representatives—see [9] above). Similar criticisms were made during the hearing on Thursday, 13 June 2019, including that the respondent was deliberately trying to “circumvent” Dr Bellou’s application and that she feared being subjected to “a barrage of interlocutory applications”.

20    It is inevitable that self-represented applicants such as Dr Bellou might be more likely than others to react emotionally to the legitimate defensive efforts of respondents and their lawyers. Courts rightly afford them some latitude in that regard. That latitude, however, does not license unseemly criticism of the kind to which Dr Bellou has resorted, no matter how significant the gulf in size, resources or litigious sophistication that divides the parties.

21    Whether the respondent has subjected Dr Bellou to adverse action as alleged remains to be seen; but, so far as I have been able to observe, the respondent (including through its lawyers) has done nothing, procedurally, that would not normally be done or expected of a respondent seeking to defend itself in proceedings of the present kind. On the contrary, it has shown an appropriate willingness to accommodate the challenges that occasionally arise when applicants self-represent. Dr Bellou’s criticisms are unwarranted.

Associate:

Dated:    17 June 2019