This is the return of the plaintiff's summons seeking to have the proceedings reinstated following their dismissal by His Honour Judge Pillay on 2 June 2023.
The application for reinstatement is supported by an affidavit of Patricia Faye Westray Toop sworn on 12 December 2025, together with two affidavits from Brendan Herbert James sworn on 16 January 2026 and 21 January 2026. Undated written submissions of the plaintiff have also been filed with the Court, together with an affidavit from the plaintiff sworn on 22 January 2026.
The application is opposed by the defendant, with an affidavit of Natalie Anne Attard sworn on 20 January 2026 being filed with the Court, together with Written Submissions dated 21 January 2026.
[2]
The plaintiff was a serving police officer who sought to locate and arrest James Gargasoulas following the alleged stabbing of his brother in the early hours of January 20, 2017. Gargasoulas avoided capture and the plaintiff finished his shift that day. Tragically, hours later, Gargasoulas went on a rampage driving his motor vehicle through the Melbourne CBD resulting in multiple fatalities and countless injuries. That day remains etched in the memory of all Australians, particularly those residing in Victoria.
Following the successful lodgement of his Workcover claim, the plaintiff's then lawyers requested a Serious Injury Certificate from the defendant. That request was denied by the defendant by letter dated 22 January 2020 on the basis that the plaintiff's injuries were not directly caused by the driving of a motor vehicle.
Notwithstanding the defendant's denial of his claim as being a transport accident, and the plaintiff electing not to issue an Application for Review at the Victorian Civil and Administrative Tribunal, the plaintiff instead commenced proceedings in the County Court by way of Originating Motion seeking leave to commence common law proceedings arising from Gargasoulas's driving of a motor vehicle. With the consent of both parties, these proceedings were put on-hold whilst the plaintiff investigated his entitlements with WorkSafe, and in March 2021, the plaintiff informed the defendant that a Serious Injury Certificate had been granted by WorkSafe. Again by consent, the County Court made orders adjourning the matter to an administrative mention on 6 September 2021.
As the parties failed to respond to the administrative mention on 6 September 2021, the Court listed the matter for a warning administrative mention on 10 March 2023. As the parties again failed to respond, His Honour Judge Pillay (on 2 June 2023) made orders dismissing the proceedings.
It is well understood from relevant authorities[1] that the Court in exercising its discretion must balance the prejudice to the party adversely affected by the operation of the Order previously made, against any prejudice to be suffered by the opposing party if the order is set aside.
Such considerations include: -
[4]
(a) the reason for the delay;
(b) the prejudice to the plaintiff;
(c) the prejudice to the defendant;
(d) the prospects of success.
[5]
The plaintiff claims that the delay in seeking a reinstatement of the proceedings is reasonable as the defendant was placed on notice of the serious injury application in January 2020. Further, that the plaintiff's concurrent Workcover proceedings were the primary focus of his previous lawyer's attention and that since coming onto the record as acting in November 2025, the new lawyers have acted swiftly in bringing the reinstatement application.
On the other hand, the defendant claims that the plaintiff's explanation for the delay is unsatisfactory, and that the plaintiff himself was responsible for not seeking to prosecute his alleged TAC entitlements until now.
[6]
The plaintiff claims that he only has one opportunity to pursue a serious injury application against the defendant and that not reinstating the proceedings will result in him suffering profound and fatal prejudice.
The defendant on the other hand argues that the plaintiff will only suffer prejudice if he is able to establish that he has reasonable prospects of success; that he has a viable cause of action against Gargasoulas; or if he doesn't obtain an award of damages in his worker's compensation common law proceedings against the State of Victoria.
In that regard, the defendant claims that the plaintiff has no reasonable prospect of succeeding in his serious injury application; that he has limited prospects in succeeding in a TAC common law claim against Gargasoulas; and that his claim against the State of Victoria is still ongoing. As a result of this, the defendant claims there is no material prejudice to the plaintiff.
[7]
The plaintiff claims that there is no real, substantial or lasting prejudice to the defendant in its defence to the serious injury application and/or the defence to any common law claim for damages, as there are voluminous amounts of material already in existence regarding the incident that is the subject of the proceedings, including the Coronial Brief of Evidence and the investigation by Victoria Police, including a taskforce report.
On the other hand, whilst the defendant does not assert any specific prejudice, they do claim that there is a general prejudice that arises by reason of the lapse of time since the occurrence of the events in question.
[8]
The plaintiff claims that he has a strong case for establishing that he satisfies the requisite test for serious injury classification against the defendant, given that WorkSafe has already granted such a certificate due to the plaintiff's post-traumatic stress disorder diagnosis and his ill-health retirement from Victoria Police. Further, that the plaintiff has a viable common law claim against Gargasoulas.
The defendant on the other hand claims that the plaintiff has no reasonable prospect of succeeding in his serious injury application; that he has limited prospects in succeeding in a TAC common law claim against Gargasoulas; and that his claim against the State of Victoria is still ongoing.
[9]
As always, there are competing interests before me for my consideration.
The Court of Appeal in Northern Health v Kuipers[2] made it clear that at an interlocutory hearing, I have an obligation under s8 of the Civil Procedure Act to seek to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.
[10]
Having carefully considered the contents of the affidavits and the written submissions of both parties, together with the additional oral submissions made to me at the summons hearing, I have, as the authorities require of me, exercised a balancing act between the competing interests of each party; considered any prejudice to either party, and taken into account the Court's obligations under the Civil Procedure Act.
I am satisfied that the plaintiff has provided a reasonable explanation for the delay in seeking to set aside the orders of His Honour Judge Pillay on 2 June 2023. The causes of action against the TAC, WorkSafe, and the State of Victoria whilst interrelated, are nevertheless separate and distinct, and it is understandable that the plaintiff's former lawyers were focussed on the common law claim against the State of Victoria, given that WorkSafe had already granted the plaintiff a serious injury certificate under that scheme. It is also noted that the claim against the State of Victoria is ongoing.
I am further satisfied that the prejudice to the plaintiff by the operation of the order previously made outweighs the prejudice to be suffered by the defendant if the order is set aside. Notwithstanding the effluxion of time since the incident in question, the defendant has managed a great many claims involving other victims and their families and has full access to the investigation materials, including from Victoria Police and the Coroner's Court. I find that the defendant will not be materially disadvantaged or taken by surprise by any matters likely to be raised by the plaintiff in the prosecution of his potential claim against them.
Finally, whilst likely to be very challenging, I am satisfied that the plaintiff has arguable causes of action in respect of both the serious injury application against the defendant, and if successful, in his common law claim for damages against Gargasoulas.
[1]Lighthouse Corporation Limited & Anor v Republica Democratica de Timor Leste & Anor (5) [2025] VSC 319; Daimleigh Capital Pty Ltd v CVS Lane Capital Partners[2025] VSCA 320; Jorgensen v Slater & Gordon Pty Ltd[2008] VSCA 110.