Bellou v Victoria University

SNADEN J: 1 By an originating application filed on 27 September 2017, the applicant, Dr Bellou, alleges that she was subjected 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") by her former employer, the respondent. On 13 June 2018, the matter was set down for a trial commencing on 17 June 2019, on an estimate of five days. 2 The proceeding has a somewhat unfortunate procedural history. Despite attempts by the Court to secure for her pro bono legal representation, Dr Bellou is and remains self-represented. The claims that she seeks to advance are not as precisely articulated as might ordinarily be preferred. That observation is not meant as a criticism of Dr Bellou, any more than it would be of any other self-represented litigant. Nonetheless, the imprecision in the way that Dr Bellou advances or has sought to advance her case has produced interlocutory unrest, including in the form of a failed application to amend her statement of claim late last year. 3 That notwithstanding, the trial date that was set down in June of last year has survived. 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 intends 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 - the application in respect of whose determination I publish these reasons - Dr Bellou seeks to amend those and other orders, and to vacate the trial dates. That application followed on the heels of email correspondence that she exchanged with the Court on Monday, 13 May 2019 and following (to which, of course, the respondent's representatives were properly copied). Dr Bellou says that adjournment and vacation of the existing directions and trial dates is necessary because, due to medical issues about which more is said below, she is unable to comply with the directions made to date or to properly represent herself at the trial. 5 In support of her application, Dr Bellou filed (and the Court treated as read) an affidavit sworn on 24 May 2019, to which, amongst other things, was attached a medical certificate dated 20 May 2019. The certificate, issued and signed by Dr Anthony Diamantaras, relevantly states as follows: To the presiding judge: Dr Bellou has severe cervical spinal injuries causing cord compression, as evidenced by her most recent MRI in May 2019 due to workplace injuries suffered on 2 February 2016. Due to clinical deterioration she is unable to partake in current legal proceedings and this [is] likely to continue for the forseeable [sic] future. 6 The respondent opposes Dr Bellou's application for vacation of the existing directions and for vacation of the trial date, and does so by means of an affidavit of its solicitor, Ms Coventry (which was also treated as read), and by written submissions directed to that end, both of which were filed and served on that same date. In short compass, the bases for its objection are that the medical certificate upon the strength of which the vacations are sought is "opaque" and not of a quality that justifies vacation, and that vacation at this late stage - after Dr Bellou's default of, and its compliance (for the most part) with, the existing directions - would subject it to prejudice inconsistent with the overarching purpose to which ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) make reference. 7 The medical evidence that Dr Bellou advances in support of her application assumes what might politely be described as a pro forma appearance, which may be consistent with its having been secured after Dr Bellou first foreshadowed her desire to have the trial dates and other directions vacated. The certificate does not identify how Dr Bellou's "clinical deterioration" manifests, nor why it is that it should preclude her from any or all of the activities that her "partak[ing] in current legal proceedings" might entail. It says nothing about whether - and, if so, why - Dr Bellou's condition should prevent her from preparing her evidence and attending at the Court. Other than to indicate that Dr Bellou's predicament will "…continue for the forseeable [sic] future…", it contains no assessment of when it might be that Dr Bellou's engagement with the proceeding might be able to resume. In all of these respects, the medical evidence that Dr Bellou advances in support of her application is unsatisfactory. 8 The circumstances of this case are similar to those that confronted Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. There, his Honour observed: [6] The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing. [7] I do not accept that either of the medical conditions referred to would make the sufferer 'unable to attend court' - apparently each was able to attend upon the medical practitioner. [8] If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect. 9 All too often, medical certificates - often sourced from general practitioners, and often short and pro forma in appearance, are presented to courts as though they are conclusive proof that a procedural indulgence must be granted, including at the proverbial eleventh hour. They are not. Indulgence by way of a vacation of a trial date - particularly an imminent and very long-standing trial date - requires more than simply bald statements on a doctor's letterhead. 10 Dr Bellou has already been the beneficiary of extensive accommodation in this matter. The Court itself has made attempts to secure pro bono legal assistance for her. The respondent has assumed (or has been required to assume) more of the preparation burden than would normally be the case. It faces the prospect of defending a proceeding that, in my opinion, is put with a want of precision and particulars that respondents ought not generally to have to endure. It has conducted itself in a "patient and model way": Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). Given that Dr Bellou is self-represented, these accommodations are appropriate. However, they afford in the present application particular relevance to the absence of specific evidence about how or why it is that the "clinical deterioration" to which Dr Diamantaras's medical certificate refers precludes Dr Bellou's engagement in her own legal proceeding, or when it might be that such engagement might later be possible: see, in that regard, Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, [50] (Collier, Griffiths and Mortimer JJ). 11 Additionally, case management considerations should inform the exercise of the Court's discretion to indulge Dr Bellou in the manner sought. In Hong v Liew [2014] FCA 40, Murphy J observed (at [15]): Case management considerations inform the exercise of my discretion in this matter. My power to manage litigation must be exercised consistently with my duty to do justice so that this dispute is disposed of in a way that is consistent with the overarching purpose in civil procedure and practice: see s 37M(1) of Federal Court of Australia Act 1976 (Cth). 12 I respectfully adopt that observation. In the circumstances that present here, I am not satisfied that it is in the interests of justice, nor that it would be consistent with the overarching purpose in civil procedure and practice, to vacate the trial date and associated orders, at least not in their entirety. Moreover, it would not be appropriate to do so for an indefinite period, as the medical certificate seems to envisage. 13 I will make orders varying the deadlines by which the applicant must file her evidence and submissions, and I will revise the estimated duration of the trial from five days to three. Neither side seeks costs in relation to the interlocutory application. I am conscious of the limitations imposed to that end by s 570 of the FW Act. There will be no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.