Bellou v Victoria University

SNADEN J: 1 On Thursday, 9 March 2023, shortly after the commencement of what was to be a five-day trial, the court made orders dismissing the present matter under r 30.21 of the Federal Court Rules 2011 (Cth) (hereafter, the "FCA Rules"). It did so upon an oral application made by counsel for the respondent in consequence of the applicant's failure to appear at the hearing. 2 The applicant is (or was) self-represented and is known to be in poor health. Given those realities, I indicated that I considered it appropriate to publish written reasons for judgment; and, by what follows, I discharge that undertaking. 3 On 27 September 2017, the applicant, Dr Bellou, filed with the court an originating application by which she moved for orders under the Fair Work Act 2009 (Cth) (hereafter the "FW Act") regarding her former employment with the respondent. In the five-and-a-half years that have followed, the matter has traversed a difficult and convoluted track. Its sorry history has been the subject of several interlocutory judgments and, save for what follows, needn't here be rehearsed. For immediate purposes, it suffices to note that, in November 2022, it was scheduled for trial across five days commencing on Thursday, 9 March 2023. 4 On Tuesday, 28 February - the week prior to the scheduled commencement of the trial - Dr Bellou filed an interlocutory application for orders to vacate the trial. It was not the first time that she had done so, nor the first time that she had done so in the shadows of a looming hearing. Indeed, over the very long history of the matter, Dr Bellou had, to that point, made three similar requests. Two of them succeeded, in each case not long prior to what were substantial parcels of time that had been set aside for the purposes of a trial: see Bellou v Victoria University (No 3) [2019] FCA 940 (Snaden J); Bellou v Victoria University (No 5) [2022] FCA 1408 (hereafter, "Bellou (No 5)"; Snaden J). 5 Following indications received from both parties, the court determined Dr Bellou's 28 February 2023 application on the papers. The application was dismissed and written reasons were published: Bellou v Victoria University (No 6) [2023] FCA 183 ("Bellou (No 6)"; Snaden J). The court made the following observations (at [4]-[9]): It is apparent that Dr Bellou continues to labour under some considerable and very unfortunate physical and neurological ailments. I should be careful not to underestimate the difficulties that they pose for her, nor the extent to which they will adversely impact upon her preparations for and running of the trial. Save for one observation of Dr Diamantaras's, I accept that Dr Bellou's current predicament will compromise the case that she hopes to prosecute. Nonetheless, I do not consider that Dr Bellou's difficulties accumulate to a point that warrants yet further delay in what is already a very old matter. At its core, the matter concerns allegations that the respondent acted in contravention of pt 3-1 of the Fair Work Act 2009 (Cth) (the "FW Act"). Its defence will inevitably require that the respondent lead evidence to substantiate its reasons for acting in the ways that Dr Bellou seeks to impugn (and, more importantly, to establish that none of the conduct about which she complains was taken against her for reasons that are proscribed by that part of the FW Act). The relevant events occurred many years ago and the respondent's ability to defend the proceeding will be very obviously and significantly prejudiced by yet further delay. Further (and with respect), I do not accept Dr Diamantaras's opinion that Dr Bellou "…does not currently have a capacity to undertake the detailed and extensive legal preparations involved in defending [sic] her case and to represent herself in Court". Save for the observations that precede that statement (which concern Dr Bellou's present symptomology), that opinion is unparticularised. Again with due respect, it is not apparent that Dr Diamantaras is apprised of what the present matter entails. I consider that he was at pains, very simply, to impress upon the court the significant and unfortunate medical predicament under which Dr Bellou presently labours. I accept that Dr Bellou's physical (and, no doubt, mental) capacity is currently compromised - no doubt heavily so; but I am confident, nonetheless, that she will be able to prosecute her case with appropriate diligence. To the extent that she might reasonably require them, the court will afford appropriate break times throughout the course of the trial. Moreover, the respondent has, to date, conducted itself in a "patient and model way": Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). I have little doubt that it will continue to do so, which will ameliorate at least some the difficulties under which Dr Bellou will have to proceed. Regardless, the matter is now at a point that I consider that Dr Bellou's medical situation is not sufficient to warrant yet further delay. The sixth anniversary of the commencement of the matter is rapidly approaching. Dr Bellou has now made four applications to vacate the hearing of the substantive matter. All were made at the proverbial eleventh hour; and two succeeded. In Bellou (No 5), that reality prompted the following observations: Although I would stop short of suggesting that no further indulgence will be granted under any circumstance, I should nonetheless wish to impress upon the parties that they should expect that further vacation of the trial will require a particularly compelling basis. From the court's perspective (accounting for the hearing of other matters that are already scheduled), the dates that I propose to reserve in March 2023 are the only dates in 2023 over which the hearing is currently feasible. Indeed, they will intrude upon time that has been set aside to address other matters, and will inevitably and adversely impact upon other litigants. It is appropriate to accommodate the needs of the parties in the way that they have been (and will be); but they should understand that there are limits. In the circumstances, I consider that any further delay of the trial would be contrary to the interests of justice. Dr Bellou's application of 28 February 2023 will be dismissed... 6 At approximately 10:45 pm on Wednesday, 8 March 2023, the court received a fifth application from Dr Bellou for orders to vacate the trial. It was supported by an affidavit that she affirmed on that day, which the court received at approximately 2:30 am on Thursday, 9 March 2023. Annexed thereto was correspondence prepared by Dr Bellou's general practitioner, Dr Diamantaras, earlier that day. That correspondence particularised Dr Bellou's ill-health (or some components of it) and culminated in the statement of his "…medical opinion that [Dr Bellou] does not have a capacity to represent herself in Court and prosecute her case currently". 7 By her supporting affidavit, Dr Bellou respectfully requested that the court refrain from detailing in any written reasons for judgment any particulars of her current ill-health. It suffices to note that Dr Diamantaras's latest correspondence, though more specific than prior letters, did not raise for the court's attention any substantive matter not already the subject of prior consideration. At the hearing on Thursday, 9 March 2023 - and despite the late stage at which it was made - I would have entertained such submissions as Dr Bellou might have been minded to advance in support of her most recent attempt to vacate the trial; but, on the strength of her affidavit material (had it stood alone) and for reasons equivalent to those identified in Bellou (No 6), I would not have been minded to vacate the trial. 8 As events transpired, that became somewhat academic. The hearing of Thursday, 9 March 2023 was scheduled to commence at 10:15 am. 10:15 came and went and Dr Bellou was not present in the courtroom. At approximately 10:30 am, the hearing began. Mr Harrington appeared for the respondent but there was no appearance for Dr Bellou. As is customary, the matter was called out in the main foyer of the court building. Still, there was no appearance. 9 In the gallery of the courtroom at the time was a gentleman who has appeared with Dr Bellou at previous hearings. She has identified him previously as her son, and he has assisted her and, on at least one occasion, made submissions to the court on her behalf. I inquired of him whether he could shed any light on Dr Bellou's absence. He politely indicated that he did not wish to advance any information to the court as to Dr Bellou's whereabouts and the matter was taken no further. I did, however, indicate that the matter would be adjourned for ten minutes; and that if, upon resumption, Dr Bellou remained absent, I would entertain any application for judgment that the respondent was minded to make. 10 That is the course that then played out. At 10:45, the matter resumed. Again, there was no appearance for Dr Bellou. Again, the matter was called in the main foyer area of the court building. Again, there remained no appearance. Dr Bellou's son was not present at the point of resumption; but he reappeared in the gallery a few minutes thereafter. 11 Mr Harrington made his oral application for judgment pursuant to r 30.21(1)(a)(i) of the FCA Rules. That rule provides as follows: 30.21 Absence of party at trial (1) If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed… … 12 It is apparent that the court has a broad discretion to grant an application made under that rule. Its exercise is to be informed by such circumstances as to the court appear relevant; but for present purposes at least the following are of obvious significance, namely: (1) the nature and apparent strength of the substantive matter; (2) the reasons for which vacation of the trial was not entertained; (3) the impact that further delay might visit upon the parties, the court and other litigants; and (4) the conduct of the respondent. 13 Also significant are the considerations that partly constitute the "overarching purpose" established by s 37M of the Federal Court of Australia Act 1976 (Cth): Donoghue v Commissioner of Taxation (No 2) [2017] FCA 1241, [39] (Logan J). Amongst them are the need to ensure that judicial and administrative resources are used efficiently and that proceedings be determined in a timely manner. 14 I turn to consider the first of the considerations listed above. As a litigant in person, Dr Bellou has endured more than minor difficulty articulating with requisite precision the case that she hoped to advance. Making due allowances for what must surely be the daunting and foreign process of drawing up a claim in this court with limited or no prior experience or legal training, the claim that Dr Bellou set out in her originating application was unfortunately imprecise. Over the five-and-a-half-year course of the matter, she made a couple of attempts to expand its scope - including, at one stage, by seeking leave to file a 523-paragraph amended statement of claim - but none of those attempts succeeded: Bellou v Victoria University [2018] FCA 1794 (Mortimer J); Bellou v Victoria University (No 4) [2022] FCA 305 (Snaden J). In preparing for the trial, she prepared a mountain of affidavit evidence, a great deal of which appeared to traverse well beyond the observable boundaries of her originating application. 15 For its part, the respondent was content to defend what it perceived was Dr Bellou's case without requiring that she re-plead it with the clarity that litigants in this court are entitled to expect. That was an indulgence well offered in recognition of her status as a litigant in person. It did foreshadow objections, however, to Dr Bellou's apparent attempt to expand through her affidavit material and written submissions the scope of the matters arising for determination by the court. 16 At its core, Dr Bellou's case was one under Pt 3-1 of the FW Act. She alleged that, first, she had been denied her right to return to work after suffering an injury, that, second, she had been "targeted" for redundancy, and that, third and as a result, she had no alternative but to make an application for a voluntary redundancy package (which she did and which the respondent accepted with effect from July 2017). In each case, she maintained that she was subjected to conduct because she had exercised workplace rights (within the meaning given to that concept by s 341 of the FW Act) or that she had been discriminated against on the ground of disability. She also maintained that she had been coerced contrary to s 343 of the FW Act. 17 Plainly, it is difficult to say much about the apparent strength of Dr Bellou's case. From the limited amount that could be deduced from her submissions and evidence, the foundations upon which it rested did not strike as obviously sound. Much of what Dr Bellou advanced appeared conspiratorial and very little was particularised to a degree that afforded clear understanding. There was at least some prospect that, given the vagueness of her originating application (standing, as it did, in place of a more formal pleading), she might not have been able to rely upon the presumption for which s 361(1) of the FW Act provides: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, 355 [14] (Tracey, Reeves and Bromwich JJ). 18 The contentions advanced by the respondent were, by contrast, evident and straightforward. It was conceded that, following her injuries in 2016, a dispute arose as between Dr Bellou and the respondent regarding her return to work; but that dispute was said to focus upon whether it was proper for her to do so and bore no connection whatsoever with her having exercised or possessed any workplace rights. Insofar as concerns the termination of her employment, it was said, very simply, that that arose at Dr Bellou's initiative, rather than the respondent's; that she applied for a voluntary redundancy package and was given one. The respondent denied that it took any action for reasons that Pt 3-1 of the FW Act proscribes. It denied that Dr Bellou was ever put in a situation where her only choice was to seek a redundancy payout. 19 It cannot be said - and I should not be understood to suggest - that Dr Bellou's case was unsustainable. Ultimately, its resolution would fall (or have fallen) largely upon acceptance or rejection of the oral evidence. Nonetheless, what may be observed is that Dr Bellou's contentions had an air of confusion and conspiracy to them. No doubt that was in part due to her status as a self-represented applicant, for which due allowance should be made. Regardless, the contentions that were advanced did not strike as especially compelling. It is not the case that, by dismissing the application for want of Dr Bellou's attendance at the trial, the court might be thought to have foreclosed upon contentions of clear merit, and thereby visited obvious injustice. 20 As concerns the reasons for which vacation of the trial was rejected, little more need be said. The court's reasons for adopting that course are spelt out in the reasons for judgment in Bellou (No 6) and above (at [7]). In short, the matter is extremely old, involves the very high likelihood that the court would need to make assessments as to witness credit regarding matters that happened a very long time ago, and has already been the subject of two aborted trials. Were it not for those considerations, I would very likely have granted the indulgence for which Dr Bellou moved (including in the face of opposition from the respondent, if any). However, it should hardly need saying that there are (or were) two litigants involved in the matter; and that its proper and efficient management requires (or required) that their competing interests be balanced as equitably as possible. Although I accepted (and still accept) that Dr Bellou would have been prejudiced by her ill health if the hearing proceeded, I did not (and still do not) accept that Dr Bellou lacked any capacity to prosecute her case, either personally or with assistance. Regardless and at the risk of repetition, "…the matter [had come to] a point that I consider[ed] that Dr Bellou's medical situation [was] not sufficient to warrant yet further delay": Bellou (No 6), [8]. 21 That observation leads conveniently into analysis of the impact that further delay would wreak upon the parties, the court and other litigants. The impact upon the respondent is obvious and has already been remarked upon. The impact upon the court and other litigants is worthy of further analysis. In Bellou (No 5), it was noted that the time set aside for the hearing of the trial in March was the only time in 2023 that I could accommodate. A third vacation of the hearing would visit at least a year's further delay upon what was already a scandalously old matter. Indulging that course would have inevitably and adversely affected the very long queue of litigants hopeful of having their own matters heard with appropriate haste. 22 I should say something of the conduct of the respondent. At almost every juncture, it and its representatives have had to abide often inappropriate and intemperate criticism from Dr Bellou, including (in the latter case) as to their professional conduct. So far as has been apparent to the court, none of those criticisms has been remotely warranted. The respondent has assumed far greater administrative responsibility for getting the matter ready for trial than would normally be the case and it has been generous in its leniency toward the imprecision that has attended Dr Bellou's claims. If it can be criticised for anything, it is that it has not insisted upon a more aggressive approach to case management. So far as it has appeared to the court, the respondent's conduct (and that of its representatives) has been consistent with its status as a model litigant. 23 It is, to say the least, regrettable that the matter should end the way that it has and I did not lightly make the orders that were made. It is beyond doubt that Dr Bellou was aware that the matter would proceed at 10:15 am on Thursday, 9 March 2023. Although the medical evidence makes clear that she labours under some significant health concerns, there is nothing to suggest that she was incapable even of attending at the court, or giving notice in advance of her absence. Why her son might attend, yet not offer, when invited, any information that might contextualise her non-attendance only adds to the mystery. Regardless, the circumstances accumulated to warrant judgment in Dr Bellou's absence. 24 Counsel for the respondent indicated that his client might press for costs orders (notwithstanding the hurdles erected on that front by s 570 of the FW Act). That course can play out as it may. Without foreclosing upon anything, it might be noted than an application for costs might lend itself more to delay on account of Dr Bellou's ill health than the substantive application. That can be a matter reserved for consideration when or if it arises. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.