Davies v Ambulance Victoria

1. Ambulance Victoria submits that, overall, the Third SOC suffers from the same deficiencies as the Second SOC.

1. In response to the Application, Ms Davies submitted (among other matters) that she "has, in documents provided, given information sufficient for the cause of action to be understood by the Respondent".
2. Ms Davies' position was also that the parties' dispute ought now to be referred for mediation. I declined to refer the matter for mediation because I regarded the matters in dispute as not sufficiently defined.

PLEADINGS OR NOT - A DOCUMENT MUST GIVE THE OPPOSING PARTY FAIR NOTICE OF THE CASE TO BE MADE AT TRIAL

1. In this Court, proceedings sometimes proceed by way of pleadings and sometimes not. In Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25, a Full Court majority observed at [42] - in a way I continue to regard as apposite despite legislative change since - that this Court's jurisdiction is "broad and includes proceedings which can fairly be conducted with little formality" provided a party is accorded procedural fairness which is "essentially practical".
2. Further, whether there are formal pleadings or not, as the Full Court recognised in Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239; [2021] FCAFC 226 at [140] (approved in Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 at [69]):

In order to engage s 361(1)(a) there must usually be some document in the proceeding by which the applicant makes clear what the case is about, which includes the identification of any particular reason or particular intent that is relied on in order to engage s 361 that relevantly conforms with the guidance given by the Full Court in ABCC v Hall at [13]-[19].

[Emphasis added]

1. The reference to "ABBC v Hall at [13]-[19]" is a reference to Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83 where in terms of the relevant "guidance" at [19], the Full Court approved what French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557; (1991) 217 ALR 171 at 173; [1991] FCA 557 at [6], that:

... Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.

1. By reference to those authorities above, I note at the outset that - regardless of whether a case in this Court proceeds by way of pleadings - the Applicant must make clear to the Respondent as a matter of procedural fairness what the case is about. The issue with the Third SOC (as I will explain) is that it does not.

IF THE CASE PROCEEDS BY WAY OF PLEADINGS, THE RULES OF PLEADINGS APPLY

1. In Sabapathy, the Full Court majority has said that when a case proceeds by way of pleadings, the rules of pleadings apply. The majority said at [42]:

While provision might be made for some level of informality in every case in the Circuit Court [as this Court was formerly known], in this kind of case where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleading should be applied.

THE REPEAL OF THE 2021 RULES AND THE COMMENCEMENT OF THE 2025 RULES

1. An additional issue to be noted in passing in circumstances in which the Respondent seeks that the proceeding be dismissed because of the Applicant's default under the Rules, is that when the Applicant filed and served her Third SOC on 6 May 2025, the 2021 Rules applied and since 1 September 2025, the 2025 Rules have applied. I am determining this application under the 2025 Rules.
2. As of 6 May 2025 - when the Applicant filed and served her Third SOC - the 2021 Rules were silent as to the content of pleadings except to say that r. 1.06 of the 2021 Rules provided that "if in a particular case the rules are insufficient or inappropriate, the court may apply the Federal Court rules ... in whole or in part". Relevantly, r. 16.02 of the Federal Court Rules 2011 (Cth) (FCR Rules) set out the rules as to the content of pleadings: what a pleading "must" and "must not" do. For completeness, I note that (at all times) under s. 174(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) as to general federal law matters which govern the content of the pleadings the FCR Rules apply in this Court "with necessary modifications, so far as they are capable of application".
3. Since the commencement of the 2025 Rules, rr. 13.03(2) and (3) of the 2025 Rules in this Court are now (materially) the same as rr. 16.02(1) and 16.02(2) of the FCR Rules.
4. The Third SOC did not comply with the 2021 Rules and does not comply with the 2025 Rules, namely rr. 13.02 and 13.03.

THE COURT'S POWER AND DISCRETION TO MAKE AN ORDER DISMISSING THE PROCEEDING IF AN APPLICANT IS IN DEFAULT

1. The Court's power and discretion to make orders if an applicant is in default under rr. 5.08 and 5.10 to dismiss a proceeding is distinct from other ways in which a proceeding may come to an end without a trial.
2. The power to dismiss a proceeding because an applicant is in default under r. 5.10 is distinct and separate from the power to strike out a pleading under r. 13.15 of the Rules. The striking out of a pleading leaves the underlying proceeding itself on foot in distinction to the dismissal of a proceeding for default which does not.
3. Further, the power to dismiss a proceeding because an applicant is in default has a different focus from an application for summary judgment under s. 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which requires the Court's satisfaction that a party has "no reasonable prospect of successfully prosecuting the proceeding", a concept the High Court explained in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, [58]-[59]. Such an application would not only permit, but require, a consideration of matters outside the pleadings on the basis that the application would concern "a trial albeit a summary trial" (Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41; [2008] FCA 1920, [6] citing White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511, [50]). In contrast, the particular default the Respondent alleges in this case means I must focus on the pleading.

1. I repeat r. 5.08 describes when an applicant is in default. Rule 5.10 sets out the Court's discretion as to the orders which may be made when an applicant is in default.
2. Rule 5.08 is as follows:

5.08 When an applicant is in default

For the purposes of rule 5.10, an applicant is in default if the applicant does not:

(a) do an act required to be done, or do an act in the time required, by these Rules; or

(b) comply with an order of the Court in the proceeding; or

(c) attend a hearing in the proceeding; or

(d) prosecute the proceeding with due diligence.

[Emphasis added]

5.10 Orders on default - applicant

If an applicant is in default, the Court may:

(a) stay or dismiss the proceeding for the whole or any part of the relief claimed by the applicant:

1. Ms Davies' Third SOC is 68 pages long and comprises 102 paragraphs. In repleading, the Applicant has done significant work to reduce the length of the Second SOC which ran to 172 pages and 745 paragraphs.
2. It is not the length of the Third SOC per se that frames whether it conforms with the Rules.
3. For the reasons below, the Third SOC does not conform with the Rules. Ambulance Victoria submitted (and I have accepted) that the Third SOC is "embarrassing, confusing, and prejudicial".
4. As a result, Ms Davies has not complied with an order of the Court, namely my order on 6 February 2025, and is in default under r. 5.08 for the purposes of r. 5.10.
5. I have set out my reasons in some more detail below as to why I have concluded that the Third SOC does not conform with the Rules.
6. Ms Davies structures her Third SOC in seven parts: Part A-G, paras. [1]-[102].
7. In Part A ([1]-[9]) Ms Davies notes that she was first employed on 25 August 2003 (Third SOC, [7]). She identifies significant persons (Third SOC, [9]).
8. In Part B Ms Davies identifies that she had workplace rights as an employee (Third SOC, [10]-[16]). The workplace rights she identifies (by and large) are generic rights common to all employees, as contrasted with rights personal to her. Ambulance Victoria calculates that Ms Davies identifies "17 different rights". I accept Ambulance Victoria's submissions that - in identifying workplace rights - Ms Davies does not descend to the level of identifying relevant facts particular to her. Illustratively, Ms Davies pleads in Part B (Third SOC, [10(f)]):

Miss Davies was able to make an inquiry in relation to her employment, so had a workplace right within the meaning of s 341 (1) (c) (ii) FW Act 2009.

1. I also accept that paragraph 10(n) of the Third SOC illustrates a recurrent problem with the pleading of a lack of precision as to the allegations made:

The Respondent actions and omissions; and over protracted periods of time; were done knowingly; and are serious within the meaning of the 557A FW Act 2009.

1. It is not clear to the Respondent (or the Court) which "actions and omissions" are referred to in paragraph 10(n) and which "periods of time" are referred to in paragraph 10(n). The material facts as to why Ms Davies alleges the actions were "done knowingly" are not set out. The Applicant has not given the Respondent fair notice of the case it is to meet in para. 10(n) of the Third SOC.
2. In Part C Ms Davies turns to key events (Third SOC, [16]-[34]).
3. I accept the Respondent's submission that the way in which Ms Davies deals with events "suffer[s] from narrative prolixity, or irrelevancies, to the point that it is not a pleading to which the other party can reasonably be expected to plead to".
4. Illustratively, Ms Davies alleges that on an unidentified date (Third SOC, [25]):

Mr Walker [then CEO] indicated there would be an external examination of all of Miss Davies complaints. Mr Walker advised Miss Davies would remain excluded until the complaint process was completed. Miss Davies made further complaints about ongoing victimisation; and detriments; and her right to return to the workplace while her complaints were examined and, or her right to be compensated for, detriments. Miss Davies requested she be given working from home options during COVID but this was declined and Miss Davies remained as allocated 'Alternate Duties' on her roster and timecard but was, in fact excluded and paid as 'Special Leave' on her payslip. Miss Davies made complaints to Ms Parker that the agenda Ms Parker provided did not reflect the reported issues and further reported the complaint issues further to Ms Parker. Miss Davies made complaints to Ms Hodges by email 14 May 2020; to Mr Walker and Mr Lay by email 13 October 2020; Ms Parker verbally around March 2021.

1. Accurately, the Respondent notes that in the narrative of that "rolled up paragraph" there are no fewer than 15 separate allegations:

(a) Mr Walker indicated there would be an external examination of all of Ms Davies' complaints;

(b) Mr Walker advised Ms Davies would remain excluded until the complaint process was completed;

(c) Ms Davies made further complaints about ongoing victimisation and detriments;

(d) Ms Davies made further complaints about her right to return to the workplace while her complaints were examined;

(e) Ms Davies made further complaints about her right to work in her 'Contracted Role;'

(f) Ms Davies made further complaints about her right to be compensated for detriments;

(g) Ms Davies requested she be given working from home options during COVID;

(h) Ms Davies' request to work from home was declined;

(i) Ms Davies remained as allocated 'Alternate Duties' on her roster and timecard;

(j) Ms Davies was excluded and paid as 'Special Leave' on her payslip;

(k) Ms Davies made complaints to Ms Parker that the agenda Ms Parker provided did not reflect the reported issues;

(l) Ms Davies further reported the complaint issues further to Ms Parker;

(m) Ms Davies made complaints to Ms Hodges by email 14 May 2020;

(n) Ms Davies made complaints to Mr Walker and Mr Lay by email 13 October 2020; and

(o) Ms Davies made complaints to Ms Parker verbally around March 2021.

1. Ms Davies then alleges that she had four different consequences visited upon her as to these 15 matters (Third SOC, [25(a)]):

(1) Ms Davies was excluded on "Special Leave" for protracted periods;

(2) Ms Davies and her complaints were not "managed safely";

(3) Ms Davies and her complaints were "left to languish, with scant management"; and

(4) Ms Davies was not given "any work during this period, including working from home option".

1. Ms Davies then alleges that (Third SOC, [25(b)]):

(b) This contravened Miss Davies' workplace rights within the meaning of s340 and 341 FW Act 2009; and, or was adverse action within the meaning of s342(1)(b)(c)(d) FW Act 2009; and, or was coercion within the meaning of s343 of FW Act 2009 as referred to in PART F2 - ADVERSE ACTION.

1. In Sabapathy, the majority said at [23] "the rolled-up way in which the cases against the natural respondents were pleaded... is indefensible". Those observations of the majority in Sabapathy as to the pleading in that case apply with equal force to Ms Davies' pleading at paragraph 25 in her Third SOC. The pleading is indefensible because she does not give the opposing party fair notice of the case to be made against it. The form of paragraph 25 does not comply with r. 13.03(2)(c) of the 2025 Rules [or r. 16.02(1)(a) of the FCR Rules as picked up by the 2021 Rules of this Court] which sets out that a pleading must "be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter" [Emphasis added]. As noted, para. 25 alone traverses approximately 15 matters within a single paragraph.
2. I accept Ambulance Victoria's submission that is not possible for the Respondent to understand or to plead to the content of paragraph 25 of the Third SOC. Aside from the fact that a single paragraph deals with so many matters, it is not possible meaningfully to respond to allegations that complaints were not being "managed safely", were "left to languish" or had "scant management", each of which is a phrase of indeterminate content and no fixed meaning.
3. This is not a matter of mere infelicity of drafting. Overall, the problem with the Third SOC is one of substance not of form. The Respondent does not know the case it has to meet.
4. Paragraph 25 of the Third SOC is not an isolated or aberrant example of the structure of the pleading but reflective of the overall narrative form of the Third SOC.
5. A further example the Respondent gives is paras. 32(b)-(c) of the Third SOC:
   1. Because Miss Davies continued to complain, the Respondent coerced, applied undue pressure and made misrepresentation to try to get Miss Davies to confirm agreement to the 'Offer' when the Respondent knew, or suspected, that Miss Davies would not agree if she knew the facts.
   2. This contravened Miss Davies' workplace rights within the meaning of s340 and 341 FW Act 2009; and, or was adverse action within the meaning of s342(1)(b)(c)(d) FW Act 2009; and, or was coercion within the meaning of s343 of FW Act 2009; and, or was undue pressure within the meaning of s344 FW Act 2009; and, or was misrepresentation within the meaning of s345 FW Act 2009 as referred to in PART F2 - ADVERSE ACTION.
6. I accept the Respondent's submission that it is not possible for the Respondent to plead to paras. 32(b)-(c). The material facts which comprise the continuing complaints are not identified, nor are the material facts which comprise the undue pressure or the misrepresentation. The narrative form of the pleading - rather than each material fact being dealt with in a separate paragraph - does not give Ambulance Victoria fair notice of the case to be made against it and obscures, rather than exposes, the material facts which would need to be resolved at any trial.
7. There are other paragraphs of the pleading that are equally difficult to understand. One example is that Ms Davies pleads that there were "no demonstrated 'signs of life' of Miss Davies ongoing employment" (Third SOC, [51]).
8. In Part D Ms Davies identifies that in the show cause letter and in the dismissal letter Ambulance Victoria asserted that (among other reasons) she was dismissed because she had not confirmed her agreement to Ambulance Victoria's offer of alternate duties (Third SOC, [35]). Ms Davies asserts that Ambulance Victoria's stated reasons were not the "genuine or substantive reasons" for her dismissal (Third SOC, [36]).
9. In Part D1, Ms Davies pleads that the actual reasons for her dismissal (as contrasted with Ambulance Victoria's stated reasons) included that Ambulance Victoria would not provide information about her entitlements (Third SOC, [37]); that Ambulance Victoria "caused the inherent requirement issue in contravention of the FW Act" (Third SOC, [40]) and she disputes that Ambulance Victoria could "demonstrate that [she] would not be able to regain" her authority to practice (Third SOC, [48]).
10. In Part D2, Ms Davies then alleges that "even if the stated reason(s) were genuine, they were prohibited reason(s)" (Third SOC, [56]-[67]).
11. I accept the Respondent's submission that the structure of Part D contains a mixture of "argument and submission". Ms Davies juxtaposes the stated reasons she was given for her dismissal with her arguments or submissions as to why those reasons should not be accepted as the genuine reasons for her dismissal. A pleading ought to set out material facts rather than set out arguments or submissions. The argumentative structure of Part D of the Third SOC is not a permissible structure of a pleading.
12. Part E is constituted by a single paragraph [68] titled "actual reason for dismissal" and the paragraph appears as in bold as follows:

Summary

1. Viewed as a whole, Miss Davies alleges that the Respondent's actions and omissions demonstrate a systemic pattern of coercion, in various forms,
   1. involving protracted exclusions from her 'Contracted Role' and the workplace,
   2. causing substantially less income and other detriments, over several years,

c. that culminated in the Dismissal,

1. that were motivated by the Respondent's intent to avoid investigating serious complaints; distract from; or cover up the complaints;

e. or to force Miss Davies to concede the complaints.

1. When this failed, the Respondent created the reason(s) for Dismissal that would not exist but for the Respondent' actions and omissions in contravention of the FW Act 2009.

2. The Respondent knew, or believed, that Miss Davies would continue to exercise, her workplace rights and gave Miss Davies no option but to concede her workplace rights or suffer detriments or dismissal.

3. The Respondent's acts and omissions are evidence of their unlawful motivations.

[Emphasis in original]

1. Ambulance Victoria characterised this paragraph as "entirely argumentative", I agree. My concern is that the paragraph is pleaded at too great a level of generality for Ambulance Victoria to have fair notice of the case it has to meet. It is not possible for Ambulance Victoria to plead to an allegation that "[t]he Respondent's acts and omissions are evidence of their unlawful motivations" (Third SOC, [68(h)], above). In addition, the Court, as well as the Respondent, needs to be able to understand the allegations. Reading para. [68], the Court cannot know what facts are in contest at any trial.
2. Part F of the Third SOC is titled "contraventions". To illustrate the problems with the pleading the Respondent drew attention to para. 93, which is comprised of 35 subparagraphs [(a) - (ii)]. The problems can be illustrated by the following partial excerpt from the 35 subparagraphs which make up paragraph [93]:

93. By

1. excluding Miss Davies from the workplace; and for protracted periods as referred to in paragraph 85-88; and, or

...

1. concede her workplace right to the benefit of information about her employment and entitlements ; and, or.

aa. Resign.

1. the Respondent gave Miss Davies no option but to concede her entitlements or suffer adverse action; and, or.

1. Having set out 35 subparagraphs in para. [93], the paragraph lacks any conclusory allegations as to what Ms Davies alleges Ambulance Victoria did. I accept the Respondent's submission that the form and content of para. [93] and the absence of any conclusion to it means the paragraph lacks coherence.
2. Part G is entitled "loss and damage remedy sought". In Part G, Ms Davies seeks compensation totalling millions of dollars. Ms Davies seeks compensation including "past earnings and associated costs estimated approximately $450,000" [102(a)]; "opportunity costs estimated approximately $1,400,000" [102(d)]; and "forward wages loss estimated approximately $2,200,000" [102(e)].
3. The magnitude of the relief that Ms Davies seeks, underlines the importance of a pleading which conforms with the Rules so that Ms Davies gives Ambulance Victoria fair notice of the case it has to meet.

IS MS DAVIES IN DEFAULT OF THE ORDERS OF THE COURT?

1. As I have said, it inhered in the order I made on 6 February 2025 that any amended statement of claim be in conformity with the Rules.
2. Rules 13.02(2) and (3) of the 2025 Rules (and rr. 16.02(1) and (2) of the FCR Rules as picked up by the 2021 Rules as of 6 May 2023 when Ms Davies filed her pleading were materially the same) prescribe what a pleading "must" and "must not" do:

13.03 Content of pleadings - general

(1) A pleading must be as brief as the nature of the case permits.

Note: The overarching purpose of these Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (see section 190 of the Act and rule 1.05).

(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b) identify the issues that the party wants the Court to resolve; and

(c) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(d) state the provisions of any statute relied on; and

(e) state the specific relief sought or claimed.

(a) contain any scandalous material; or

(b) contain any frivolous or vexatious material; or

(c) be evasive or ambiguous; or

(d) be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f) otherwise be an abuse of the process of the Court.

1. The Third SOC is not in conformity with rr. 13.02(2) and (3) of the 2025 Rules.
2. I repeat the issue is not length of the Third SOC per se. The issue is that the Third SOC does not give the opposing party fair notice of the case to be made against that party at trial under r. 13.03(2)(c). Each paragraph of it does not as far as practicable deal with a separate matter under r. 13.03(2)(a). It contravenes r. 13.03(3)(d) because it is prolix and its narrative form is a mixture of argument, submission and cross-reference and is therefore "likely to cause "prejudice, embarrassment or delay in the proceeding".
3. I accept the Respondent's characterisation of the Third SOC as embarrassing, confusing and prejudicial.
4. In my Strike Out Judgment, I referred to Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 in which Barker J said of the pleading in that case at [80]:

... the pleading overall suffers fatally from narrative, prolixity, irrelevancies and in this sense is legally "embarrassing" in that it is not easy to draft a pleading in defence.

1. I also referred to Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 in which Bromberg J observed at [48]:

A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome.

1. And I repeat the observations of Flick J in Sabapathy that a pleading ought not to "require an atlas to expose it" (at [87]; Strike Out Judgement, [24]).
2. Despite being shorter than the Second SOC, Ms Davies' Third SOC continues to suffer fatally from "narrative, prolixity, and irrelevancies" (Cf Fuller). It proceeds on the basis that Ms Davies' case is a broad enquiry as to whether the applicant has been procedurally or substantively unfairly treated (Cf Ermel). It requires an "atlas to expose" the claims advanced (Cf Sabapathy). Crucially, it does not give the opposing party fair notice of the case to be made against it in accordance with r. 13.03(2)(c) which is an essential function of a pleading. It is not (reasonably) possible for Ambulance Victoria to draft a pleading in defence to it.
3. For these reasons, Ms Davies is in default of my order made to file an amended statement of claim on 6 May 2025, not because she missed the deadline but because she has filed a document which does not conform with the rules of pleading. Ms Davies is therefore in default under r. 5.08 of the 2025 Rules.

WHAT ORDERS SHOULD BE MADE BECAUSE MS DAVIES IS IN DEFAULT?

1. The default power under r. 5.10 is enlivened because Ms Davies has not filed a pleading (a statement of claim) which conforms with the Rules and therefore is in default of my order made on 6 February 2025.
2. If an applicant is in default, my power to dismiss the proceeding under r. 5.10(a) is discretionary.

Relevant Authorities: a history of non-compliance and continuing non-compliance occasioning unnecessary delay, expense or other prejudice

1. In Lenijamar, Wilcox and Gummow JJ discussed how a court may exercise its discretion to dismiss a proceeding where there was a history of non-compliance by an applicant. Their Honours recognised that "the rules must be administered sensibly" and that there are "likely serious consequences to an applicant of staying or dismissing a claim." Their Honours said (at 396):

... two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

[Emphasis added]

1. The Respondent also referred me to Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 in which Yates J said at [13]:

There is no requirement that the act or acts of default be intentional or amount to contumelious conduct. There is no requirement that the act or acts of default result in inordinate or inexcusable delay. That said, such features, if present, will be relevant to the exercise of the Court's discretion. So too will conduct that persuades the Court that the defaulting party is manifesting an inability or unwillingness to cooperate with the Court and the other party or parties to the proceeding.

The application of the principles to the current case

1. The Applicant has now demonstrated a repeated inability to comply with the Rules by the preparation of a statement of claim in conformity with the Rules. In my assessment, it does not matter that the fact that the Third SOC does not conform with the Rules is a consequence of an inability, rather than any intentional unwillingness, of Ms Davies to comply with the Rules (Chamberlain, above). I accept the fact that the Third SOC does not comply with the Rules is not the result of Ms Davies' intentional conduct or the result of "contumelious conduct" by her.
2. Nonetheless, the matter has proceeded by way of formal pleadings at the Applicant's election. Ms Davies has now filed three statements of claim. I accept the Respondent's submission that the Third SOC is fundamentally deficient. I also note that in the Strike Out Judgment (at [31]) I provided what guidance I could to Ms Davies as to the content of her statement of claim. Ms Davies has not been able to comply with that guidance.
3. Acknowledging that not all of the delay is due to the Applicant, this matter has now been on foot in this Court for approximately 18 months and Ms Davies has not been in a position to file a statement of claim that fairly sets out the case the Respondent is to meet and which enables the timetabling of necessary steps to move the proceeding forward to a trial.

1. Ms Davies has always been self-represented. As Wheelahan J remarked in Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206 at [5] of the self-represented applicant in that case that "she should not be placed at a disadvantage in terms of the court's practice and procedure because she is self-represented". Necessarily, the process of pleading a statement of claim - with the formal rules of pleading - will be challenging for many self-represented litigants. The issue, however, for me with Ms Davies' pleading is one of substance, not form.
2. My discretion to dismiss the proceeding ought to be exercised with caution and restraint, recognising the serious consequences for the defaulting party (Huang v Octec Ltd [2024] FCA 588 at [16]; see also Quall v Native Title Registrar [2021] FCA 865, [25]).
3. Nonetheless, although the Court will always extend some latitude to a self-represented litigant, as McHugh J remarked in Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 at 481 "lack of legal knowledge is a misfortune, not a privilege". Further as Bryson JA said in Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [163], "it is wrong and unjust to turn self-representation into a procedural advantage".

1. An order dismissing the proceeding is the most significant order - in terms of its effect on the defaulting party - of the various orders available to me under r. 5.10 when an applicant is in default under r. 5.08. It seems, however, an order best calibrated to deal with the history of non-compliance and the fact that the non-compliance is ongoing in this case.
2. There is no utility in making an order permitting Ms Davies to file and serve a fourth statement of claim. She did not seek leave to file a further statement of claim. As I have noted, she adopted a position that she had done enough for Ambulance Victoria to understand the case it had to meet.
3. As I have noted, in Lenijamar, Wilcox and Gummow JJ identified two obvious candidates for the exercise of a power to dismiss a proceeding in circumstances of an applicant's default: a history of non-compliance and continuing non-compliance.
4. In this case there is a history of non-compliance. The Applicant at her own initiative rejected an opportunity to proceed other than by formal pleading. She has now pleaded her statement of claim three times. She has had some assistance as to the identification those matters she needed to address to file and serve a statement of claim which conforms with the Rules by corresponding with solicitors for the Respondent and by reference to the content of the Strike Out Judgment (at [31]). She has not been able to prepare a statement of claim that complies with the Rules. The primary issue is that the Third SOC does not give Ambulance Victoria fair notice of the case to be made against it at trial.
5. The non-compliance is continuing. Ms Davies' Third SOC does not comply with the Rules. Its non-compliance with the Rules is a matter of substance, not form. The non-compliance is causing ongoing expense and delay to the Respondent and in the preparation of this matter for trial.
6. I have decided that this is a case in which the Applicant's default means it is appropriate to dismiss the proceeding under r. 5.10, having regard to the history of non-compliance and the continuing non-compliance, even making due allowance for the fact that the Applicant is a self-represented litigant.
7. I will make an order accordingly.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.