Grech and Anor v Deak-Fabrikant [2014] VSC 558

by virtue of the resulting implied or constructive trust in favour of the caveator arising from the contribution made by the caveator towards the acquisition, conservation and improvement of the said land.

2 On 16 June 2009 Ms DeakFabrikant filed and served a counterclaim, which joined to the proceeding Mr Paul Grech, her former de facto partner and the father of Stephen Grech.

3 This proceeding was stayed on 11 February 2011 pending the hearing and determination of charges of rape laid against Paul Grech following allegations made by Ms DeakFabrikant. Shortly prior to the scheduled commencement of the proceeding in the County Court in June 2012, the Director of Public Prosecutions withdrew the charges.

4 This proceeding was relisted before this Court on 18 March 2013, at the request of Paul Grech, who was at that time unrepresented. Both Ms DeakFabrikant and Stephen and Jelvie Grech were represented by solicitors throughout the next few months. By orders made on 4 June 2013, the proceeding was listed for trial on 23 April 2014 on an estimate of eight to 10 days. Ms Deak-Fabrikant's solicitors ceased to act for her on 26 February 2014. The trial date was subsequently vacated in circumstances elaborated upon below, refixed for 21 July 2014, and it commenced on that day.

5 In her counterclaim, Ms Deak-Fabrikant seeks certain declarations regarding the ownership of the five properties over which she lodged caveats, including declarations that Paul Grech held two of the properties concerned (of which he had previously been the registered proprietor) in trust for her, and orders pursuant to section 45 of the Relationships Act 2008 (Vic) for an adjustment of interests in respect of the property and financial resources of Paul Grech in her favour. The List of Agreed Issues circulated by me before trial, and agreed by the parties as being accurate, is set out below in order to provide a flavour of the number and nature of the factual and legal controversies before the Court at trial:

1. Duration of de facto relationship: did it commence in 1991 or 1994?

1. Does Paul Grech and/or Larissa Deak-Fabrikant have or did one or both of them ever have a beneficial interest in the following properties:

• 18 Speakman Street Kensington;

• 17 Errol Street Braybrook;

• 4/233 Ballarat Road, Braybrook?

1. Did Larissa Deak-Fabrikant make contributions to the acquisition, conservation or improvement of the properties referred to in the statement of claim or any of them?
2. Did Larissa Deak-Fabrikant make contributions to the financial resources of:

1. Did Larissa Deak-Fabrikant make contributions to the welfare of Paul Grech and/or his children, including as a homemaker and/or a parent?
2. Did Paul Grech ever promise to Larissa Deak-Fabrikant that he had any or all of the properties referred to in the statement of claim on trust for her as to 50% of their value?
3. Did Paul Grech assault Larissa Deak-Fabrikant, and, if so, what damages is she entitled to as a result?
4. What relevance, if any, do the events which post-dated the separation of Larissa Deak-Fabrikant and Paul Grech have to the Court's determination under s 45 of the Relationships Act 2008 (Vic)?

9. Identification and valuation of the asset pool?

1. Has the value of any of the properties referred to in the statement of claim been diminished by the conduct of any of the parties?

6 For completeness, to this list I would add one further issue which emerged during the course of the trial: whether there was ever an agreement between Ms Deak-Fabrikant and Paul Grech that they would share their assets and income for their common benefit.

7 On 30 October 2014, the twenty-seventh sitting day of the trial, counsel for Paul Grech, supported by Stephen and Jelvie Grech, made an application that the trial proceed in the absence of Ms DeakFabrikant. The application was made after Ms Deak-Fabrikant, on 29 October 2014, after failing to attend Court on 27 and 28 October 2014, sent through a medical certificate from Mt Waverley Clinic stating that she is 'unfit for work' from 29 October 2014 to 7 November 2014. She has, through communications with my associate, refused to comply with my direction, communicated through a letter from my associate dated 28 October 2014, that her treating doctor be available to the Court on 30 October 2014 to explain the events of recent days, to provide an opinion to the Court as to the capacity of Ms Deak-Fabrikant to continue the trial, and as to what measures the Court might adopt to alleviate the stresses the Court processes have upon Ms DeakFabrikant's health, and thus the orderly progress of the trial. The application was granted, and the defendants closed their case that day. During the course of the hearing on 30 October 2014, I indicated I would provide written reasons for acceding to the application.

8 This application was made on the seventh sitting day that Ms DeakFabrikant has failed to attend Court owing to health reasons. At no time has she ever made a formal application to the Court for an adjournment, notwithstanding my remarks in 'Other Matters' in the orders made on 11 April 2014 that any further application for an adjournment on health grounds be supported by an affidavit and medical evidence.

9 These remarks were made in the following context. Just prior to 11 April 2014, the date upon which a final directions hearing was scheduled, Ms DeakFabrikant sent a letter to the Court stating that she could not proceed with the trial listed for 23 April 2014 owing to health reasons, and attached letters from a general practitioner from the Altona Medical Centre, and a letter from Dr Kaplan, a psychiatrist. She did not attend the directions hearing. The trial date was vacated, and re-fixed as a special fixture before me on 21 July 2014 on an estimate of eight to 10 days.

10 The trial commenced on 21 July 2014 and continued for five days. On 28 July 2014, Ms DeakFabrikant failed to appear in Court, faxing through a medical certificate to my associate. When the trial resumed on 30 July 2014, the Court conferred with her treating doctor by telephone, by arrangement with Ms DeakFabrikant. Dr Honigman of the Altona Medical Centre informed the Court that he had diagnosed Ms DeakFabrikant, based upon the symptoms she reported to him, as suffering from trigeminal neuralgia, and that she would need a week to recover. The trial was adjourned to 6 August 2014. The trial then proceeded until 13 August 2014, when the trial was adjourned pending the departure of Stephen Grech and Jelvie Grech overseas and because of Court commitments to resume part-heard matters.

11 The trial recommenced on 24 September 2014, and continued until 1 October 2014, when I delivered my ruling on the admissibility of certain medical evidence, and heard and determined an application by Ms DeakFabrikant that I recuse myself from hearing the trial on the grounds of actual bias. This application was refused. Ms DeakFabrikant failed to attend Court on each of the following two days, and on the morning of 3 October 2014 faxed through a letter from Dr Kaplan, her treating psychiatrist (who had previously given evidence in Court), informing the Court that Ms DeakFabrikant was suffering from 'intense anxiety and feelings of panic', and needed two weeks to recover. The trial was adjourned to 21 October 2014, with 22 October 2014 being a nonsitting day owing to other Court commitments. On or around 21 October 2014, I informed the parties I had been relieved from most of my normal Court duties to conclude the trial during the period up to and including 31 October 2014.

12 On 27 October 2014, Ms DeakFabrikant again failed to attend Court, informing my associate by telephone that she was suffering from acute hypertension and was attending her general practitioner that afternoon. She was sent by a general practitioner at the Mt Waverley Clinic to Monash Medical Centre, and I am satisfied that she was not well enough to attend Court on that day by reason of a certificate provided by a doctor in the emergency department of the Monash Medical Centre.

13 On 28 October 2014, Ms DeakFabrikant failed to attend Court, after telling my associate that she required complete bed-rest for that day, and that she would be attending her general practitioner the following day. On that day, my associate wrote to Ms DeakFabrikant on behalf of the Court, stating, among other things:

At 10:30am today her Honour made orders to adjourn the trial until Thursday 30 October 2014 at 10:30am. At the hearing today, her Honour indicated that she requires your treating general practitioner to attend, or to be available by telephone on 30 October 2014 at or about 10:30am, in order to provide her Honour with an explanation as to what has taken place over the past two days, and, more importantly, his or her opinion of your capacity to proceed further with the trial, given your current state of health, and what measures the Court can take to alleviate, if practicable, the impact of the trial upon your health. Her Honour will explain to your doctor about the steps needed to be undertaken to conclude the trial, the tasks facing you and the time that might be needed to complete the trial. Her Honour also requires that you bring to Court your hospital discharge summary from 27 October 2014.

14 Also on that day, the solicitors for Mr Paul Grech wrote to Ms DeakFabrikant, stating, among other things:

The delays in the hearing of this case, occasioned by your multiple failures to attend Court, are unacceptable. We again warn you that these delays and our client's associated wasted costs will be the subject of a costs application at the conclusion of this matter.

Similarly, as you have been warned by our client's Counsel in open Court, your conduct in pursuing unnecessary and/or irrelevant lines of questioning during cross-examination is objectionable and will also be the subject of a costs application.

Finally, we formally place you on notice that, in the event you do not attend Court on Thursday 30 October 2014 and you have not made an application to adjourn this matter properly supported by medical evidence as per Order 2 of the Orders of 3 October 2014; then we will explore options for moving this case forward. In the absence of appropriate sworn medical evidence, we may make an oral application on behalf of our client for:

1. Leave to proceed undefended; and

2. Your Counter-claim to be struck out; and

3. Judgment to be entered into in your absence; and

1. An Order for you to pay our client's costs incurred since the filing of your Counterclaim, on an indemnity basis

15 Both letters were sent by express post (Ms DeakFabrikant not having any fax or email address), and I am satisfied that Ms DeakFabrikant has received both letters. Indeed, on the afternoon of 29 October 2014, Ms DeakFabrikant telephoned my associate to inform him that she would not be appearing in Court on the following day, and, contrary to the directions set out in the letter of 28 October 2014, would not be making any arrangement for her treating doctor to be available.

16 On the assumption that sending a facsimile of a medical certificate stating baldly that Ms Deak-Fabrikant is unfit for work between 29 October 2014 and 7 November 2014 to the Court amounts to an application for an adjournment of the trial of the period referred to in the certificate, the evidence is patently inadequate. The certificate makes no reference to what condition Ms Deak-Fabrikant is suffering from, and discloses no knowledge on the part of the medical practitioner regarding Ms Deak-Fabrikant's obligations to attend Court. It discloses nothing about how Ms Deak-Fabrikant's medical condition impedes her ability to attend Court and participate in the trial. After all, while I accept that Ms Deak-Fabrikant was suffering from hypertension on 27 October 2014, she was able to travel from Altona to Mt Waverley. She also travelled to and from Mt Waverley again two days later on 29 October 2014, despite being a regular patient at a medical clinic in the same street in Altona she lives in. However, any doubts and concerns about her condition could have easily been resolved by Ms Deak-Fabrikant allowing her treating doctor to discuss her condition with the Court, as she did with Dr Honigman in July 2014.

17 Ms DeakFabrikant's open defiance of my direction is consistent with her conduct of the trial of the proceeding generally. While some allowances have to be made for the fact that she is a self-represented litigant, and that family law disputes are often emotionally charged and acrimonious, Ms DeakFabrikant has conducted her case in a combative and argumentative manner, frequently interrupting witnesses, counsel and me, and regularly seeking to revisit rulings I made that she perceived to be adverse to her. Indeed, while some time was taken up with significant (and legitimately pursued) objections by Ms DeakFabrikant to the admissibility of certain medical evidence, it is noteworthy that Ms DeakFabrikant did not close her case until the twenty-third day of trial, and the Court was on occasion required to rise before the close of business owing to, among other things, the unavailability of witnesses. Ms DeakFabrikant resisted previous attempts by me to speed up the progress of the trial by pointing to her status as a selfrepresented litigant and her poor health, and the obligation imposed upon the Court to make allowances for a disabled litigant to enable a fair trial to take place. However, even making such allowances, the progress of the trial was glacially slow, in part because of my allowing Ms DeakFabrikant to laboriously explain the exhibits to her trial affidavit in the process of her reexamination, and because I allowed Ms DeakFabrikant to admit into evidence a significant number of documents not discovered by her prior to trial. While that of itself would not necessarily give rise to the somewhat draconian remedy sought by the defendants by counterclaim on the morning of 30 October 2014, it does provide a context within which the conduct of Ms DeakFabrikant in refusing to comply with the reasonable requirements of the Court needs to be considered.

18 By the end of the last day Ms DeakFabrikant attended Court, being 24 October 2014, there were few grounds for optimism that the evidence in the trial would be concluded within the allocated time, in that Ms DeakFabrikant's crossexamination of Mr Paul Grech, while not unskilled, traversed a number of matters of tangential relevance to the issues in the proceeding. It appeared to me that if unchecked, it could take at least another ten days to conclude the hearing of the evidence, even if the defendants by counterclaim did not call all of their witnesses, and did not seek to rely upon the entirety of their affidavits, as previously suggested by me. In such circumstances, any further delays caused by the failure of Ms DeakFabrikant to attend Court would impose an even greater burden upon the resources of defendants by counterclaim and the business of the Court, and created the risk that the trial would not be able to conclude this year.

19 The affidavits filed in support of the plaintiffs' summons filed 29 October 2014 seeking the removal of caveats over three of the five properties which are the subject of this proceeding provide a stark illustration of the financial and economic burden of the proceeding upon the defendants by counterclaim. In her affidavit affirmed on 27 October 2014, Ms Kimberley Hunter, a principal of the solicitors for Paul Grech, deposed that Paul Grech has incurred legal fees and disbursements of $143,860.87, which have not been paid, and that her firm may be unable to continue to act if those obligations continue to increase without payment. She estimates that the average cost per sitting day to her client is $6,500 to $7,500.

20 In his affidavit sworn on 28 October 2014, Mr Stephen Grech deposed, in summary, as follows:

(a) he owns and operates a bathroom, kitchen and laundry renovation business, and as a consequence of the increased length of and frequent interruptions to the trial he has turned away and lost a substantial amount of business;

(b) he and his wife Jelvie have paid $7,606.13 in transcript fees, and are facing a bill of $30,692.80 for daily hearing fees; and

(c) given their current financial position, which Mr Grech describes as 'dire', Jelvie Grech has been attending her work office after hours on the days she has been attending Court to make up lost hours.

21 The financial and emotional impact of the protracted nature of this trial, and the prospect of future interruptions and delays was powerfully and eloquently stated by Ms Jelvie Grech in her submissions to the Court, which are reproduced in edited form below:

Your Honour, first of all I want to thank you for extending the offer for me not to have to attend today but it is Day 27 and I just can't sit back without expressing my views.

It is clear from Mr Moran's email yesterday that Ms Deak-Fabrikant refused to comply with your request in regards to the medical treatment and information on that. This is not the first time Ms Deak-Fabrikant has delayed court proceedings and although she has had some sort of medical certificate, I believe they were not enough to meet the requirements that Your Honour has set some months ago.

Ms Deak-Fabrikant has nothing to lose by not appearing in court whilst we are required to pay daily court fees, which continue to increase the more days we spend in court. We also have to pay for my father-in-law's legal representation.

The days we are in court, Stephen is unable to run his business which means no income and I have to work late which means I don't have any time at all to spend with our young children. The days we are in court, I have to work until 7.00 pm and continue to work at home. I can't bear to continue telling my children that I have to work late again and again.

It is also placing my employment at risk because I'm not contributing as efficiently and effectively to my team's workload. People need me during business hours and I am unable to get back to them until after hours. I don't know how much longer my employer will be able to put up with the uncertainty and my absence during business hours.

I cannot afford to lose my job. At this stage, it is our only source of income. Your Honour, this matter has been going on for over six years now. That is six years we've had to live with the stress that comes along with it whilst trying to raise our children in a healthy environment. We've had to put up with the police knocking at our doors at early hours of the morning.

My father-in-law has been accused of rape. My husband has been accused of threatening to kill Ms Deak-Fabrikant. We thought by starting these proceedings that the end is in sight. However, now I fail to see that that will happen.

During these proceedings, our eldest son has had to spend two lots of school holidays in childcare with his brothers. Usually we would take some time off work to spend time with him but we could not due to us having to attend court. How many more school holidays will be like that, Your Honour?

I don't know how long Ms Deak-Fabrikant will be able to delay these proceedings. Surely there is some justice for us. At the end, she has nothing to lose by delaying these proceedings. It seems now she is not willing to participate at all yet she is not being held accountable for her actions. What more does Ms Deak-Fabrikant have to do to show that she is not cooperating and not fulfilling her obligations?

I appeal to Your Honour, please let this case run without Ms Deak-Fabrikant. We are here. We want this to end. Our children need both their parents present physically, mentally and emotionally. They are innocent bystanders in all this. Thank you, Your Honour.

22 In situations such as this, which are fortunately rare, the Court is faced with a difficult dilemma. Ms Deak-Fabrikant, while she has been legally represented in the past, is unlikely to be able to secure legal representation to pursue what is a legitimate claim arising out of her lengthy de facto relationship with Paul Grech. While I am not satisfied on the evidence that she is currently incapacitated from participating in the trial, I accept that she is not a young woman, that from time to time she suffers from ill health, and the rigours of the trial impose a burden upon her health. In part, the exhausting nature of the trial is contributed to by the manner in which she conducts the trial, and the manner in which she reacts when matters do not go well for her. However, this is not a case such as Slaveski v State of Victoria,[1] where Kyrou J adjourned the proceeding for a number of months to enable a psychiatric assessment to be made of a self-represented plaintiff to prosecute his claims. First, here the issue is primarily one of Ms Deak-Fabrikant's physical health, rather than her mental health. Secondly, Mr Slaveski had a willing and capable person, his wife, who was able to act as a litigation guardian. Finally, in the current circumstances, a further delay in the proceeding to allow a medical examination to take place would be extremely prejudicial to the defendants by counterclaim.

23 It was in this context of this dilemma that Ms Deak-Fabrikant was directed to bring her treating doctor to Court to explain, not only the reasons for her absence over the previous days, but also to provide an opinion to the Court as to whether Ms Deak-Fabrikant has the physical capacity to continue to proceed with the trial, and what ameliorative measures could be adopted by the Court to alleviate the impact of the trial upon Ms Deak-Fabrikant, and thus avoid further delays. The purpose of this direction was clearly explained in the Court's letter of 28 October 2014.

24 In these circumstances, Ms Deak-Fabrikant's conduct in directly disobeying a direction of the Court is particularly egregious. It has long been firmly held by the Court, well prior to the advent of the Civil Procedure Act 2010 (Vic) ('Act'), that a proceeding may be dismissed if the Court is satisfied that a default has been intentional and contumelious,[2] with no need for the other party to demonstrate any material prejudice by reason of that conduct.

25 Similarly, in the context of whether a party against whom a self-executing order has been made ought to be excused from their failure to comply with that order, the Court of Appeal in Jorgenson v Slater & Gordon[3] stated:

As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, reflective of deliberate disregard of, or indifference to, the court's order.

26 It is well recognised by the Court that the consequences of a failure to comply with an order of the Court may well be serious. In Brakatselos v ABL Nominees Pty Ltd & Ors,[4] the Court of Appeal stated as follows:

Plainly enough the applicants risked a great prejudice if these proceedings were undefended. While the seriousness of the consequences flowing from non-compliance with a court order may in some circumstances affect how severely the court should treat that non-compliance, it will not of itself excuse such disobedience. The nature of the non-compliance may be of such a serious order that its consequences cannot be mitigated. That outcome is even more likely where no satisfactory explanation is provided for the non-compliance. Failure to comply with a self-executing order which will result in the proceedings becoming undefended and where no adequate explanation for the failure to comply is provided falls into this category. So to say is to recognise that a litigant who disregards the dire natural consequences of disobedience to a court order does so at their peril.

27 Of course, Ms Deak-Fabrikant's failure to attend Court on 30 October 2014 or to make arrangements for her doctor to attend at Court on that day was not a breach of a self-executing order. But Ms Deak-Fabrikant was well aware, by reason of the remarks made in 'Other Matters' on 11 April 2014, and the explanation provided in my ruling on 1 October 2014 (rejecting the application that I recuse myself on the grounds of bias) as to why the Court imposes such requirements upon litigants and of the importance of putting proper material before the Court when seeking an adjournment. Indeed, she has on two previous occasions authorised her doctors to provide an explanation to the Court for the reasons for her non-attendance at Court. She was well aware, by reasons of the letters of the solicitors for Paul Grech of 31 July 2014 and 28 October 2014, of what application might be made if she failed to attend Court on the next sitting day.

28 In any event, while I accept that Ms Deak-Fabrikant will suffer some prejudice by reason of her inability to cross-examine the witnesses called by the defendants by counterclaim, she has not by reason of the ruling made on 30 October 2014 suffered the severe consequences usually imposed upon those who fail to persuade a Court to set aside a self-executing order, or have a proceeding dismissed for want of prosecution. Her claim has not been struck out. She has called a number of witnesses, some twelve witnesses in addition to herself, tendered large volumes of documents, and she has closed her case. On a number of occasions she has expressed satisfaction and confidence about the value of her witnesses' evidence to her contentions in the proceeding. My orders of 30 October 2014 provide her with the opportunity to tender into evidence, along with an explanatory document, the bank statements of Paul Grech and Stephen Grech which she says will demonstrate how Paul Grech's funds financed the acquisition by Stephen and Jelvie Grech of the properties at Braybrook and Kensington. The evidence in the affidavits relied upon by the defendants by counterclaim will still have to be evaluated in the light of the evidence of the witnesses called by Ms Deak-Fabrikant, and in the light of the fact that the evidence has not been tested by cross-examination.

29 Finally, it should be noted that the authorities referred to above were either decided before the advent of the Act, or were decided without apparent reference to the provisions of the Act. The provisions of the Act, in particular, the overarching obligations of the Act, and the duties of the parties and the Court to conduct themselves in such a way as to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, provides an appropriate framework within which to determine the application by the defendants to counterclaim on 30 October 2014, and within which to assess Ms Deak-Fabrikant's conduct.

30 Before I turn to the specific provisions of the Act, and the breaches by Ms Deak-Fabrikant of the provisions of the Act, it is worth noting that it is now well accepted that, notwithstanding the long standing inherent jurisdiction of the Court to regulate its own procedures, the introduction of the Act amounts to, and was intended to amount to, a 'sea change' in the practice of civil litigation in this State. An early warning of this was made by Kyrou J (as he then was) in Kuek v Devflan Pty Ltd and Anor,[5] where he stated:

The Act does not contain generalities and rhetoric. Nor does it deal with abstract concepts of justice. The Act imposes specific statutory obligations on the Court, the parties to civil litigation, the lawyers acting in civil litigation and other persons involved in litigation such as expert witnesses. It seeks to ensure that civil litigation is conducted in a just, efficient, timely and cost effective manner and it gives the Court wide powers to make orders limiting the rights and remedies that are otherwise available to a party if that party breaches its obligations under the Act.

The Act must be taken seriously by litigants and their lawyers. In an appropriate case, the Court is entitled to - and will - say to a party seeking to enforce its rights in a manner that is antithetical to the overarching purpose and to that party's overarching obligations that 'enough is enough', and will act to curtail those rights in the interests of the administration of justice.

31 Similarly, in Yara Australia Pty Ltd v Oswal,[6] the Court of Appeal emphasised the ground breaking nature of the reforms introduced by the legislation, and, while not using precisely these words, intimated that judicial officers should not be shy in deploying their powers under the Act. The Court stated:[7]

The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.

32 Of course, there is some tension between the principles of efficient case management and the right to a fair hearing. These tensions are more evident in proceedings involving self-represented litigants, where lack of knowledge of court processes and procedures, and a lack of detachment from the dispute often means that allowances need to be made where a party takes longer than necessary to examine or cross-examine a witness, or focuses on issues which are only of tangential relevance to the real issues in dispute. Often in such cases a judicial officer will take a pragmatic approach, based upon an assessment that allowing a self-represented litigant to pursue such matters will take less time than hearing argument about whether certain lines of questioning ought be pursued. That has certainly happened from time to time in this trial.

33 However, there comes a point where making allowances and granting indulgences imposes an undue burden upon the other parties and the Court. This point has well and truly been reached in this proceeding. Accordingly, I have determined that I would no longer excuse Ms Deak-Fabrikant from the obligation to make a proper application to the Court for an adjournment of the trial, supported by affidavit, with the consequence that the trial proceeded in her absence.

34 For completeness, I am empowered to take that course under rule 49.02 of the Supreme Court (General Civil Procedure) Rules 2005. Rule 49.02 provides as follows:

(1) If, when the trial of a proceeding is called on, any party is absent, the Court may -

(a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;

(b) proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

(c) adjourn the trial.

In exercising any power in relation to a civil proceeding, a court may take into account any contravention of the overarching obligations.

36 In my view, in frequently failing to attend Court without making an application for an adjournment, supported by proper material, and refusing to comply with my direction that she make her treating doctor available to the Court, Ms Deak-Fabrikant has breached the following obligations imposed upon her by the Act:

(a) the obligation to cooperate with the parties to a civil proceeding and the Court in connection with the conduct of the proceeding (section 20 of the Act);

(b) the obligation to use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute (section 24 of the Act); and

(c) the obligation to use reasonable endeavours to act promptly and to minimise delay (section 25 of the Act).

37 The question of whether Ms Deak-Fabrikant has breached other obligations of the Act in her conduct of the trial up until her failure to attend Court in the week commencing 27 October 2014 may well be relevant to the ultimate question of costs. But that is for another day. What I am directly concerned with in the current instance is her failure to attend Court on 30 October 2014, and her refusal to comply with my direction that she make available her treating doctor to attend Court. My determination to proceed in her absence, thus denying her the opportunity to further cross-examine the witnesses called by the other parties, may seem to some to be unduly harsh. However, the clear message of the authorities is that litigants disobey court orders at their peril, and that the Court must be pro-active in promoting the overarching purpose of the Act. Ms Deak-Fabrikant has been warned that Paul Grech might well make the application that he did. The evidence about the financial and personal burdens imposed upon the other parties by reason of the protracted and interrupted manner in which this trial has been conducted is compelling. I am myself well aware of the impact upon the business of the Court. In those circumstances, the fairest and most just outcome on 30 October 2014 was to proceed with the trial.

[1] [2009] VSC 423.

[2] See Department of Transport v Chris Smalter (Transport) Ltd [1989] AC 1197 at 1203, adopted by the Victorian Full Court in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 [28].

[3] [2008] VSCA 110 [72].

[4] [2012] VSCA 231 [43].

[5] [2012] VSC 571 [78]-[79].

[6] [2013] VSCA 337.