Hingst v Construction Engineering

COURTS - Duty of judge to ensure a fair hearing where a party is unrepresented at trial - Whether the judge breached duty - Whether the judge failed to afford procedural fairness - No error demonstrated - Leave to appeal refused.

1 David Hingst, the applicant, was employed by the respondent, Construction Engineering (Aust) Pty Ltd (for convenience, 'CE' or 'the respondent'), as a contract administrator from 13 May 2008 to 8 April 2009.

2 The applicant brought proceedings against CE in the Supreme Court. In essence, he claimed he was bullied in the workplace during the relevant period and as a result had developed psychiatric and physical injuries - including fibromyalgia and irritable bowel syndrome - for which he sought damages in the sum of $1,805,138 ('the bullying claim'). The applicant also complained that the respondent unlawfully terminated his employment and that the Deed of Release and Settlement ('the Deed') he signed in settlement of his unfair dismissal proceeding was executed under duress ('the unfair dismissal claim').

3 Following a trial occupying 18 sitting days, during which the applicant was unrepresented,[1] the judge dismissed the applicant's proceeding. Her Honour was not persuaded that the applicant was bullied in the workplace, or that the respondent should have known that he was suffering from a depressive or stress-related condition and negligently failed to intervene. The judge also found that the applicant's unfair dismissal claim was without merit. She found that there had been a genuine redundancy and that the Deed was lawfully executed.[2]

4 The applicant seeks leave to appeal against the dismissal of his proceeding upon the following grounds:

1. Her Honour erred in failing to give weight to the evidence of the Appellant which, if accepted would amount to bullying.
2. On the findings made by Her Honour on the Respondent's evidence, which Her Honour accepted, the Respondent's version amounted to bullying and Her Honour should have found the Respondent negligent.
3. Her Honour erred in law in failing to take into account that the Respondent did not have an Occupational Health and Safety Induction procedure and Human Resources policy that had been brought to the attention of employees which would have prevented the bullying and amounted to negligence.
4. Her Honour erred in finding that the company was not negligent and in finding that the injuries suffered were not reasonably foreseeable.
5. Her Honour failed to give the Appellant a fair and balanced hearing and breached the duty to give a self-represented party a fair and balanced hearing to afford the Appellant procedural fairness.
6. The trial was such that there was not sufficient fairness and balance to the Applicant consistent with Trkulja v Markovic [2015] VSCA 298 at [39].

5 It will be seen that the complaints raised by the grounds of appeal fall into two broad categories. First, grounds 1 to 4 principally challenge the trial judge's factual findings (albeit that ground 3 asserts an error of law in failing to take into account a relevant matter). Secondly, grounds 5 and 6 chiefly assert the trial was unfair because the trial judge breached the duty owed to an unrepresented litigant. We will consider the application under cover of those two broad categories.

6 As will appear, in our opinion there is no substance in any of the grounds. We would refuse leave to appeal.

7 As we have mentioned, the applicant was employed on a full-time basis with CE as a contract administrator from 13 May 2008 to 8 April 2009. The respondent's stance was that his employment was terminated following a downturn in construction work by reason of the Global Financial Crisis ('GFC'), although the applicant maintained that his position had never become redundant.[3] In any event, on 31 August 2009 the applicant executed the Deed[4] referred to above, following a dispute as to the termination of his employment.

8 The applicant commenced a proceeding against CE on 19 May 2016, filing a writ and statement of claim that he himself prepared. As we have said, his proceeding involved a bullying claim in which he sought damages in excess of $1.8 million for psychiatric and physical injuries, together with an unfair dismissal claim.

9 At trial, the applicant's case revolved around his interactions with three other CE employees: first, Luke Pepperell, the applicant's supervisor on the 'Doncaster Village Project' between March or April 2008 and October 2008; secondly, Greg Short, his supervisor on the 'Melbourne Clinic Project' between January 2009 and 8 April 2009; and, thirdly, Simon Barker, his senior manager for the entire time that he worked for CE. Mr Barker was one of the respondent's directors, and Mr Pepperell and Mr Short both were project managers of their respective projects.[5]

10 In essence, the applicant alleged that Mr Barker, Mr Pepperell and Mr Short conspired to marginalise him and have his employment terminated. In particular, the applicant's evidence was that, in the five or six weeks prior to 8 April 2009, Mr Short abused him over the telephone on five occasions, speaking to him in a loud, aggressive, threatening and inappropriate manner about his work performance. Mr Short, the applicant alleged, had told him that he had 'fucked up', was 'not worth shit', 'kept fucking up' and was 'not worth' his salary.[6] The applicant gave evidence that he sincerely believed 'that particularly the last five weeks of really harsh derogatory abusive language', which included being told that he was 'worthless' and 'useless', had an effect on him.[7]

11 The applicant also relied on a number of discrete incidents prior to March 2009 in an endeavour to demonstrate that there was an inappropriate working culture at CE. For convenience, the judge described them as:

• the 'horseplay' around the office and on the worksite; and

• the Christmas luncheon at the Olive Tree hotel.[8]

12 The 'coffee incident' involved an allegation by the applicant that Mr Barker came into his office approximately three months after he commenced working for CE and said that the applicant's brewed coffee was 'shit'. Further, the applicant complained that, while Mr Barker would routinely take employees out for lunch after site meetings, he was never invited. As to the 'exclusion from meetings', the applicant claimed that at the same time Mr Barker criticised his coffee, his project manager, Mr Pepperell, advised him that he would not be required to attend site meetings. The applicant alleged that this was done deliberately to exclude him.

13 So far as the 'allocation of office space' was concerned, the applicant in effect alleged that he had been bullied into changing his office from a communal area to an area occupied by administrative staff because of Mr Short's flatulence. And as to 'the flatulence incident(s)', the applicant claimed that he was unhappy about Mr Short's flatulence and would accordingly protest. The applicant alleged that Mr Short would regularly break wind on him or at him, Mr Short thinking this to be funny.[9]

14 With respect to 'the horseplay around the office and on the worksite', the plaintiff alleged that fellow employees engaged in inappropriate horseplay; and in particular, on the Doncaster Village project they mimicked sexual gestures (although he did not suggest that this activity was directed specifically at him).[10]

15 Finally, 'the Christmas luncheon at the Olive Tree hotel' involved a claim by the applicant that, during a luncheon in 2008 at the Olive Tree hotel, Mr Short asked him if he was 'gay', and, when walking back to head office, called him an 'idiot poofter'.

16 Apart from the bullying claim and unfair dismissal claim, the applicant also alleged that either Mr Short or Mr Barker, the two of them in concert, or someone else employed by or associated with CE, deliberately changed the date of an email dated 26 March 2009 that was sent from Mr Short to Mr Barker concerning the applicant.

17 In her reasons for judgment, the trial judge observed that to make out a 'bullying claim' at common law, a plaintiff must show on the balance of probabilities that there was an established pattern of behaviour in the workplace, which was repeated and unreasonable, and which a reasonable person in all the circumstances of the case would expect to give rise to a recognisable psychiatric illness.[11] She cited a number of authorities, including Brown v Maurice Blackburn Cashman,[12] Swan v Monash Law Book Co-operative,[13] Johnston v Holland,[14] Johnson v Box Hill Institute of TAFE,[15] Tame v New South Wales[16] and Koehler v Cerebos (Aust) Ltd,[17] and observed:[18]

The relevant principles to be drawn from Koehler have been usefully summarised by J Forrest J in Johnson.[19] Most significant, for present purposes, is the requirement - to use the language of the High Court in Koehler - that there be 'evident signs' of an employee's inability to carry out work activities associated with the risk of psychiatric injury. This will be an important consideration in the context of a bullying or harassment claim in which psychiatric injury is pleaded. As the High Court has said, again in Koehler, absent those evident signs 'warning of the possibility of psychiatric injury' an employer is entitled to assume that its employee is capable of performing his or her job. It should be said, however, that 'evident signs' have no role to play in circumstances where it has been established on the balance of probabilities that one employee bullied another employee and so gives rise to vicarious liability on the part of the employer.

18 Early in her reasons, the judge made the point that the applicant's case 'essentially turned on his own viva voce evidence'.[20] She also observed that it was important that she 'state upfront' that she found the applicant 'to be an unreliable and unsatisfactory witness'.[21] Significantly, the judge said:[22]

As I have said, to a large extent, the [applicant's] bullying claim turned upon acceptance of his account of his telephone exchanges with Mr Short in the five to six weeks before his redundancy. The alleged peripheral incidents added context rather than substance to his claim. A positive finding of credit was therefore essential if the [applicant's] case was to succeed.

For the reasons that follow, I found the [applicant] to be an unreliable witness, whose evidence did not substantiate any of the alleged incidents at the [respondent] company. This was not a case where the [applicant] presented as a poor historian; rather, he lacked objectivity, which coloured his evidence. The [applicant's] conviction that he was the subject of a complex conspiracy dominated his evidence-in-chief, his cross-examination of the liability witnesses and, ultimately, became the central focus of his claim.

The [applicant] was a man profoundly hurt by the loss of his employment. It was clear that his position with the [respondent] company was of the utmost importance to him. In my view, the [applicant] reacted in an extreme and unreasonable way to the termination of his employment, which led him to seek revenge against those whom he blames for his loss. ...

Although the [applicant] was not objective about many issues, he conceded from the outset that what I have called the peripheral incidents did not bother him when they occurred, and in closing submissions he did not allege that they constituted bullying. ...

19 The judge found the applicant's evidence to be 'often confusing', and she said that 'he was unable to focus on the issue at hand, wanting constantly to refer to themes of conspiracy and deception'.[23] Her Honour then provided a number of examples demonstrating why she found the applicant to be an unreliable witness,[24] - including his 'unreasonable and relentless attempts to prove a conspiracy against him [which] were a significant feature of his cross-examinations of Messrs Short and Barker'[25] - and she agreed with the respondent that the applicant has not been able to accept that his redundancy was due to a downturn in work brought about by the GFC.[26] Indeed, it was telling that, after his redundancy, the applicant 'stalked his former colleagues, swore at Mr Pepperell and threatened Mr Short'.[27] In the judge's view, the applicant's 'submissions and cross-examinations of Messrs Short and Barker demonstrated his flawed logic and desire to reconstruct events so as to fit his conspiracy theory'.[28] There was 'no cogent objective evidence of any conspiracy against the plaintiff by Messrs Short, Barker and Pepperell', and what was 'perplexing is the plaintiff's conjecture that these three men had "interpersonal reasons" for disliking him and that this was the basis for their conspiracy against him'.[29] And her Honour observed:[30]

It is fanciful to suggest that Messrs Short, Barker and Pepperell each decided to use [the applicant] as a scapegoat, to mask their own deficiencies, mistakes and errors, and ultimately engaged in a concerted plan to ensure that his employment was terminated. The [applicant] did not adduce any evidence to support his theory.

20 The judge said that 'a core part of the [applicant's] case concerned the allegation that either Mr Short, Mr Barker, or the two of them in concert (along with a more technically-minded third party employed by or associated with the defendant) deliberately changed the date of an email dated 26 March 2009 that was sent from Mr Short to Mr Barker concerning the [applicant]'.[31] In the email, Mr Short described the applicant as 'Colonel Hingst', the judge regarding this allusion as being 'inappropriate and unprofessional'.[32] Having heard the technical evidence called on both sides, however, her Honour considered that the applicant had not established on the balance of probabilities that the email was falsified.[33] The judge remarked that the applicant 'refused to accept that the legitimacy of the email, even after the original Lotus Notes server was found with the email still on it, and even after it was established that such a forgery would have required altering the information on hundreds, if not thousands, of archived emails'.[34] Her Honour agreed with the respondent that the applicant's 'persistent and irrational belief that the email was forged indicated the unreliability of his evidence in many respects, especially in light of Messrs Short and Barker's credible denials'.[35]

21 The judge also made a number of pointed comments about the manner in which the applicant ran his case, including the following:[36]

I agree with the [respondent] that the [applicant] treated this proceeding as if it were a 'judicial commission of inquiry' into the way the [respondent] company operated rather than a bullying claim at common law.

As the trial progressed it became evident that the [applicant] was more focused on his grievance about the loss of his employment than any bullying that took place during his time at the [respondent] company. His sense of having been betrayed by the [respondent], and his former colleagues, was palpable. ...

There was a sense in how the [applicant] conducted himself, and in his line of questioning of several witnesses, that he was endeavouring to exact revenge on those whom he blames for his redundancy. His cross-examination traversed all aspects of the [respondent] company's operations in what seemed to be an ill-conceived attempt to blacken the [respondent] generally. The [applicant] asked irrelevant questions such as whether Mr Pepperell was aware that Mr Short or Mr Barker had ever smoked marijuana. And whether pornographic emails were circulated between employees of the [respondent] company during the years of the [applicant's] employment and even prior to his employment. These questions were clearly asked for no purpose other than to damage the witnesses' reputations.

The [applicant] also tried to suggest that his fellow employees were homophobic. Mr Short denied this. The [applicant] asked Mr Pepperell whether he knew that the [applicant] was gay. Mr Pepperell replied that [he] had not known at the time. The [applicant] even went so far as to ask Mr Hodgson, his former treating psychologist, whether the latter was a 'closet gay'. The [applicant] appears to have asked this question because he was frustrated at Mr Hodgson for not giving him the answers he wanted. The question demonstrated his lack of focus and insight into the issues in this case as well as his preparedness to intimidate witnesses.

It was clear from the way the [applicant] ran this trial that he was not intimidated or cowed by any of the witnesses who gave evidence. He was forthright, aggressive and, on occasion, asked inappropriate and demeaning questions of those whom he felt were not helping his case. There is force in the [respondent's] submission that the [applicant's] conduct during the trial, and his management of the trial, 'sits comfortably' with the thesis that he was not bullied at work.

What was concerning, however, was the way that the [applicant] deliberately omitted relevant materials. ...

22 With respect to other witnesses, the judge considered that 'Mr Barker gave his evidence in a measured and thoughtful way', making 'appropriate concessions' and not denying or making excuses for 'matters that reflected badly' on the respondent.[38] Equally, in her Honour's view, 'Mr Short gave his evidence in a straightforward and frank manner',[39] he being 'prepared to make concessions about matters that he could not recall'.[40] On the whole, the judge found Mr Short's evidence to be 'compelling and believable'.[41] Further, her Honour found Mr Pepperell to be a reliable witness.[42] And her Honour observed:[43]

On the whole, where there was a dispute about what was said in conversations or at meetings between Messrs Short and Barker and the [applicant], I consider that the evidence of Messrs Short and Barker should be preferred.

23 As to the applicant's claim that Mr Short abused him over the telephone while he was working on the Melbourne Clinic project, the judge said that Mr Short did not disagree that he was displeased with the applicant's performance during the Melbourne Clinic project, having formed the view that the applicant was not suited to the role of contract administrator.[44] She noted that Mr Short denied that he had, on a weekly basis for five to six weeks, screamed at the plaintiff that he had 'fucked up' and that it 'can't happen again'.[45] Her Honour said that 'Mr Short did not shrink from the fact that he reprimanded the [applicant] about a mistake that the latter had made [but] denied that he was aggressive or in any way disrespectful in doing so'.[46]

24 The judge then discussed the absence of any claim of bullying in the notes of the Melbourne Sexual Health Clinic ('MSHC');[47] the applicant's general practitioner, Dr Belkin;[48] the applicant's clinical psychologist, Mr Hodgson;[49] and a psychiatrist engaged by WorkCover, Dr Rose.[50]

25 Next, her Honour referred to the applicant's statement dated 1 December 2009, prepared for Fair Work Australia, which recorded that the applicant's son's behaviour had had an impact on 'his ability to discharge his work duties and responsibilities'.[51] The statement recorded that the applicant initially believed that he had made the mistakes that Mr Short took him to task for, but that, upon reflection, he realised that they were not mistakes 'but rather sound decisions'.[52] Crucially, however, the statement 'contains no reference to the fact that Mr Short bullied him, nor even that Mr Short used abusive language or spoke to him in an aggressive, menacing or distressing manner that might be considered tantamount to bullying'.[53]

I do not accept that the [applicant] was subjected to bullying behaviour by Mr Short over the telephone in the five to six weeks prior to his redundancy in April 2008.

There are no witnesses to the conversations. The [applicant] and Mr Short both gave evidence about their telephone and email conversations in the relevant period. They agreed that there was some tension between them based on the [applicant's] work performance. The [applicant] admitted that he had made mistakes; Mr Short explained that he was frustrated at the [applicant's] poor performance.

The real issue is not so much the language used over the telephone but the manner in which the conversations were conducted. There is a stark difference between Mr Short's account and the [applicant's] account of the tone and intention of each exchange. Mr Short admitted that he may have used 'the F word' but said that it was always directed to the [applicant's] performance and not at him personally. He further said that it was used in an ordinary, everyday manner, as might be used in the construction industry. Mr Short denied that it was in his nature to treat people in the manner alleged by the [applicant].

As mentioned earlier, Mr Hamilton's evidence was that Mr Short could be 'intimidating', not that he had a tendency to be abusive or to speak in a threatening or menacing tone.

The [applicant] tendered several email conversations he had with Mr Short during the relevant period. The emails show that Mr Short dealt with the [applicant] in an appropriate manner. I am not satisfied that Mr Short ever spoke to the [applicant] in a threatening, abusive or overbearing manner. This is supported by the medical history tendered by the [applicant]. The records from MSHC contain no reference to bullying or work stresses. The notes do, however, contain reference to domestic stressors and to physical problems that he was experiencing.

27 Even if Mr Short did abuse the applicant over the telephone, the judge did not consider that the applicant suffered a reasonably foreseeable psychiatric injury as a result.[55] The judge said that in the five weeks prior to the applicant's redundancy, Mr Short directed his criticisms at the applicant's work performance rather than at him personally, a distinction that the applicant appreciated.[56] In the judge's view, there was no evidence that the applicant behaved in such a way as to put Mr Short, or anyone else for that matter, on notice that he was at risk of suffering psychiatric injury.[57] Her Honour also found:[58]

There is no evidence that the [applicant] made Mr Barker, or anybody else for that matter, aware that he was at risk of developing a psychiatric injury because of Mr Short's conduct. The [applicant] continued to work; he never complained to Mr Barker. Mr Barker was therefore unaware of any distress arising from the [applicant's] relationship with Mr Short. Mr Barker was aware of the [applicant's] personal issues, but it would not have been reasonable for him not to intervene in the circumstances, since that would be tantamount to interfering in an employee's private life. Mr Barker's evidence was that, when Mr Short raised the [applicant's] poor performance with him, he told Mr Short to be patient as the [applicant] had problems at home.

The evidence suggests that the [applicant's] fellow employees, particularly Messrs Short, Barker and Pepperell, were understanding of the issues with his son and allowed him take time off work where necessary. It is likely that the real cause of the plaintiff's mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job. ...

28 With respect to the 'peripheral' incidents - which the applicant accepted did not amount to bullying - the judge said that the applicant 'returned obsessively to some of these issues, most notably the flatulence incident involving Mr Short'.[59] Having discussed the evidence bearing on the various incidents,[60] the judge found that, based on the applicant's own evidence, 'the only thing that amounted to bullying were the conversations that he had with Mr Short over the telephone'.[61] And she said:[62]

For completeness I should state that, while I have rejected the [applicant's] evidence of the peripheral incidents, I do not consider that they could have caused him a psychiatric injury in any event. This is because the medical evidence from the relevant period does not establish the onset of a recognisable psychiatric injury.

29 Turning to the applicant's claim that Mr Barker was aware of the applicant's vulnerable and deteriorating mental capacity and turned a blind eye to it, allowing the applicant's psychiatric injury to develop,[63] the judge found that there was 'no evidence from which it might have been inferred that the plaintiff was during the relevant period at risk of developing a reasonably foreseeable and recognisable psychiatric illness'.[64] The judge said:[65]

The [applicant] had major stressors in his personal life, including those related to his son, which were appropriately handled by his colleagues and superiors. To scrutinise and pry into his private affairs was not the prerogative of a reasonable employer. If anything Mr Pepperell's evidence indicated the level of support that was given to the [applicant]. And, as Mr Barker explained, other employees were asked to be patient in light of the [applicant's] difficulties. Even on the [applicant's] own evidence, since he loved his job and wanted to be reinstated after his redundancy, he would not have wanted the [respondent] to know about any mental health issues that he was experiencing.

30 The judge noted that the applicant had pleaded that the respondent breached the Occupational Health and Safety Act 2004 ('OHSA') and Regulations,[66] but said that whilst a breach of the OHSA 'can be evidence of negligence in a broad sense, the claim is unsustainable in light of s 34 of the [OHSA], which operates to prevent a breach of the [OHSA] from giving rise to a private right of action'.[67] Citing Govic v Boral Australian Gypsum Ltd,[68] her Honour observed that whilst it is not possible to breach the OHSA so as to give rise to a private cause of action,[69] it is possible to breach the Regulations in such a way. The judge then observed that:

In any event, even if the [applicant] had properly pleaded breaches of the Regulations rather than the Act, there is no evidence before the Court that such breaches gave rise to a reasonably foreseeable and recognisable psychiatric injury. The [applicant] makes a general claim of breaches of the [OHSA] and cites 17 sections that the defendant has allegedly breached. It is not pleaded, however, how those breaches are said to be in any way causative.[70]

31 As to the applicant's claim that the Deed had been executed under duress, the judge remarked:[71]

The [applicant] gave evidence that, when he signed the Deed, he was very stressed. He said he only received the eight page version and read it at approximately 12:15pm on 31 August 2009. He recalled 'freaking out'. He felt that he was under time pressure but agreed that he had been given an extension of time until 5:00pm that day.

In my view, the [applicant] was clearly prepared to sign the incomplete Deed, which contained the release to any further claims. He received legal advice from Mr Brewin [a solicitor expert in workplace relations] and requested some changes to the Deed. The [applicant] is educated and speaks and reads English fluently. He was able to pay Mr Andolfatto [a solicitor] for legal advice after he signed the Deed. There was no evidence that the plaintiff was not capable of acting in his own best interests. The emails demonstrate that he knew and understood the terms of the Deed and received legal advice before signing it. I agree with the [respondent] that the [applicant] was not under a special disability evident to the [respondent]. Nor did the [respondent] take unconscionable advantage of him.

32 Her Honour's ultimate conclusions about the Deed were as follows:[72]

I do not consider that the effect of the pressure that was brought to bear on the [applicant] to sign the Deed was in any way wrongful or obviated his ability to assent. The [applicant] had a choice; he could have pursued his application. He had legal advice, which has a bearing on the quality of his assent, in that it was informed. The pressure by way of a time line, while tight, was not unreasonable.

33 The judge summarised her conclusions overall as follows:[73]

The [applicant] has not established any negligence on the part of the [respondent]. He has failed to show that the [respondent] breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury. There was no evidence that the [respondent] knew, or should have known, that the [applicant] was at risk of mental harm.

Mr Short did not bully or harass the [applicant]. Nor did any other employee at the [respondent] company. It follows that the [applicant's] bullying claim must fail. The [applicant's] unfair dismissal claim must also fail as his redundancy was genuine. Nor was the Deed signed under duress.

Grounds 1 to 4 - The trial judge's factual findings

34 In his Amended Written Case, the applicant complained that the trial judge found him to be an unreliable witness, but 'did not provide any transcript or other factual reference'. He submitted that much of his evidence concerned 'the way he was treated in the five or six weeks prior to his redundancy'. CE, he contended, did not deny that telephone calls accusing him of having 'fucked up' were made 'and that his work allegedly was in major of incompetence' (sic). The applicant submitted that Mr Short in his evidence agreed that he was 'dissatisfied' with the applicant's 'conduct', and that 'this culminated in repeated unreasonable behaviour directed towards [him] which a reasonable person would expect to victimise, humiliate, undermine or threaten'.[74]

35 Further, the applicant submitted that the 'peripheral matters',[75] which were 'discounted' by the trial judge, together with the 'main incidents', 'amount to bullying or harassment as consistent with the test of Brown'. This is so, it was argued, 'even accepting the version of events given by Short'.

36 Had CE implemented an Occupation and Health and Safety Induction procedure and a Human Resources Policy, the applicant submitted, 'then complaints would have been made and prevented the bullying'. It was contended that the '[f]ailure to have these policies in place amounts to negligence because it is reasonably foreseeable that if there were employees who had not been inducted and were not aware of the policy then bullying may occur'. Such bullying conduct, the applicant submitted, 'will be reasonably foreseeable consistent with a reasoning of the High Court in Koehler v Cerebos (Australia) Limited',[76] and 'the failure to have an Induction Policy and the failure to have a Human Resources Policy risks psychiatric injury'. Thus, 'the nature of the bullying towards [him] was reasonably foreseeable to amount to psychiatric injury' (sic).

37 In oral submissions, the applicant put the issue of Mr Short's flatulence to the forefront. He submitted that 'flatulence is substance', not merely peripheral, and that the judge should have so found. The applicant submitted that the flatulence constituted assaults, and challenged the notion that he had accepted that the issue was peripheral.

38 The applicant also contended that the judge was wrong to find that his evidence lacked credibility. He submitted that his credibility was supported by Mr Short's evidence at trial.

39 Further, the applicant submitted orally that he was wrongly criticised by the judge for failing to call a witness, Veronica Noonan, and that the judge should have informed him that his case might be affected adversely by such failure.

40 Finally, we note that in support of his oral submissions, the applicant was permitted to provide 11 separate documents of varying length to the Court. Permitting that course was a considerable indulgence. The documents in many respects expanded the applicant's Amended Written Case and contained hundreds of references to the transcript, exhibits and the judge's reasons for judgment. Included in the bundle of documents - which for convenience only we marked as Exhibit A - were two documents apparently directed to the subject of 'flatulence'; two documents apparently devoted to the subject of abusive telephone calls; a further document relating to the issue of negligence; three documents apparently directed to the issue of the applicant's credibility and the credibility of other witnesses; one document headed 'Additional HH judgements unjustified'; and two documents relating to procedural fairness and a judge's duty to an unrepresented litigant (one of these two documents being a printout of paragraph 47.1 of the Magistrates Court Bench Book, produced by the Judicial College of Victoria, devoted to a judge's dealings with an unrepresented litigant). The late provision of these documents - a course which would not have been tolerated from a represented party - imposed a significant additional burden on the Court.

41 By its written case the respondent submitted that the trial judge was correct to observe that the applicant's case essentially turned on the reliability of his own oral evidence. Whether the applicant's supervisor, Mr Short, abused him in several telephone calls was the central issue. Relevant to that central issue, the trial judge found the applicant to be an unreliable and unsatisfactory witness. This finding was justified.

42 On the other hand, the respondent submitted, the trial judge found that Mr Short gave evidence in a straightforward and frank manner, and his evidence was compelling and believable. The judge also found that Mr Barker, a director of CE, gave his evidence in a measured and thoughtful way, and made appropriate concessions; and she found Mr Pepperell, the applicant's initial supervisor, to be a reliable witness. These findings, the respondent contended, were all justified.

43 It was submitted that, as the trial judge noted, the true contest on the bullying claim was between the competing versions of the applicant and Mr Short. Given her credibility findings, the judge considered that where there was a dispute between Mr Short and Mr Barker and the applicant about what was said, the evidence of Mr Short and Mr Barker should be preferred. The trial judge was not satisfied that the applicant was subjected to bullying behaviour by Mr Short on the telephone in the weeks prior to his redundancy. Her Honour's analysis, the respondent submitted, reveals no error in approach, or in the ultimate conclusions reached. Significantly, the respondent contended, the applicant is unable to point to any evidence (or other basis) on which the judge's findings 'might be shown to be glaringly wrong or contrary to compelling inferences'. Rather, the evidence tended strongly against persuasion on the balance of probabilities of the applicant's allegations.

44 Further, the respondent submitted that the trial judge was also correct to find that, even if Mr Short did use abusive language over the telephone, there was no evidence that the respondent was on notice that the applicant was at risk of suffering psychiatric injury.

45 As to the 'peripheral incidents', the respondent submitted that the trial judge was correct to say that these 'added context rather than substance to his claim'. The applicant did not argue that those incidents (including the 'flatulence incidents') amounted to bullying, simply relying on them as showing an inappropriate workplace culture. In any event, the trial judge did not accept the applicant's version of these incidents. Importantly, the applicant acknowledged that the incidents did not bother him when they occurred, and no medical evidence supported the proposition that they caused him psychiatric injury. Indeed, so the respondent submitted, the judge found that it was likely that the real cause of the applicant's mental state was a combination of domestic stressors and the stress of losing his job. The trial judge was also correct to hold that, even though Mr Barker became aware of stresses to the applicant outside of work, it would have been unreasonable for Mr Barker to intervene in the applicant's private life. Additionally, support was provided to the applicant while at work.

46 In oral submissions, the respondent's counsel relied on the contents of the written case. Counsel also provided a number of transcript references which, it was submitted, demonstrated that the principal focus of the applicant's case at trial was the telephone calls, the issue of flatulence being merely peripheral. Finally, so far as the suggested criticism of the applicant's failure to call Veronica Noonan was concerned - a matter to which we will return - counsel submitted that Ms Noonan had no relevant evidence to give; that the judge did not criticise the applicant for failing to call her; and that, in any event, any supposed criticism could have had no effect on the ultimate result.

47 In Robinson Helicopter Company Inc v McDermott, the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) spelled out the approach that this Court must adopt when a trial judge's findings of fact are impugned:[77]

A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review'[78] of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.[79] But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony',[80] or they are 'glaringly improbable' or 'contrary to compelling inferences'.[81]

48 Having reviewed the evidence in the trial, and the trial judge's reasons, we are not persuaded that the judge made any error of fact. The applicant simply has failed to demonstrate that the judge's findings of fact are wrong. Indeed, we consider that, based on all of the evidence, the judge's findings plainly were correct.

49 It will be remembered that the trial judge observed that the applicant's case turned essentially on his own oral evidence.[82] So much cannot be gainsaid. The judge also observed that to a large extent, the applicant's bullying claim turned upon acceptance of his account of his telephone exchanges with Mr Short in the five to six weeks before his redundancy, so that a positive finding as to his credit was essential if his case was to succeed. Again, so much cannot be gainsaid.

50 Significantly, however, the trial judge found the applicant's credit wanting. Her Honour concluded that the applicant was an unreliable and unsatisfactory witness, and she assigned reasons for those conclusions. The applicant, the judge considered, was not a poor historian. Rather, she determined that the applicant's evidence was coloured by his lack of objectivity. Among other things, the judge relied on the applicant's unreasonable and relentless attempts to prove a conspiracy against him; the fact that he stalked former colleagues, swore at Mr Pepperell and threatened Mr Short; the fact that his cross-examination of Mr Short and Mr Barker demonstrated his flawed logic and desire to reconstruct events so as to fit his conspiracy theory; and the fact that his persistent and irrational belief that the critical email was forged indicated the unreliability of his evidence. Moreover, the judge considered that the applicant's cross-examination of several witnesses constituted an ill-conceived attempt to blacken the respondent, and that he asked questions which were clearly for no purpose other than to damage the witnesses' reputations. Further, he suggested that his fellow employees were homophobic, and asked demeaning questions of those whom he felt were not helping his case.

51 These matters provided a sound basis for the judge's adverse finding as to the applicant's credit.

52 On the other hand, her Honour considered Mr Short's evidence to be compelling and believable. The judge also considered that Mr Barker gave his evidence in a measured and thoughtful way, and found Mr Pepperell to be a reliable witness. Thus, where there was a dispute about what was said in conversations or at meetings between Mr Short and Mr Barker and the applicant, the judge preferred the evidence of Mr Short and Mr Barker.

53 In our view, her Honour's approach cannot be faulted. In particular, the applicant's claim that, in finding him to be an unreliable witness, the judge 'did not provide any transcript or other factual reference' is wholly without substance. Her Honour assiduously analysed the evidence, and provided sound reasons for finding that the applicant was unreliable.

54 Further, the applicant's submission that the 'peripheral matters' - which he asserted were 'discounted' by the trial judge - together with the 'main incidents' amounted to bullying 'consistent with the test of Brown', faces the insurmountable obstacle that the applicant at trial accepted that the peripheral incidents did not amount to bullying. Additionally, as was open to her, the trial judge rejected the applicant's evidence of the peripheral incidents; and considered in any event that they could not have caused him a psychiatric injury, given that the medical evidence from the relevant period did not establish the onset of any recognisable psychiatric injury. In the judge's view, the only thing that could have amounted to bullying were the conversations that the applicant had with Mr Short over the telephone. Given the lack of credibility attending the applicant's evidence, however, and the fact that she considered that Mr Short's evidence to be compelling and believable, there was a sound basis upon which to reject the applicant's claim of bullying.

55 As we have said, in oral submissions in this Court, the applicant submitted that Mr Short's flatulence was not merely peripheral, and that he had never accepted at trial that the issue was peripheral. That submission, however, does not withstand scrutiny. Thus, when cross-examined at trial on what were said to be peripheral issues, the applicant said that they 'never would have been a big issue' if he had not been bullied and lost his job. And in his final submissions to the trial judge, the applicant submitted that although the 'farting' may not have been bullying in the 'legal sense', 'the actual phone calls in the end' were.

56 Turning to the submission made orally by the applicant that the judge had criticised him for failing to call Veronica Noonan to give evidence - a matter which, he thought, had a bearing on his credit - it is necessary to provide a little context. The following passage is found in the applicant's evidence-in-chief:

... What I'd realise and this might be jumping topics a bit, but Veronica Noonan who said - she said [scil, sat] to my right, but she was facing the other way so that if we looked at each other you could see face to face, if you're sitting both in the direction it might be you know it's not as easy to see each other. She had come back on a couple of occasions and she was working in accounts. And I had actually been going down to the gym downstairs and she was too and we sort of became friends. We're sitting there and we became friends. And she had told me on a couple of occasions - - -

[COUNSEL FOR CE]: Your Honour, I object to this.

HER HONOUR: It's not appropriate for you to be saying what conversation she had had with other people?---No, she told me. She told me directly.

[COUNSEL FOR CE]: The point is that if we anticipate there's going to be evidence put that she said a whole lot of bad things about Mr Short?---Not Mr Short, I'm talking about Mr Barker and it's not horrible things.

Mr Barker or someone?---Yeah.

If the [applicant] is relying on this evidence as the truth of its contents, that is in some way he's going to be saying to the court at the end of the day you should inform your evaluation of the evidence by reference to the opinion of what Veronica Noonan or what she had to say and she's not called, we say that would be wrong.

HER HONOUR: Well it would be and it might be a matter for submission in due course in the circumstances [Counsel]. You've heard what [Counsel] said?---So I can't talk about that?

Well it's the weight I can give it or whether I can consider it at all as to its truth when that witness isn't called. Ultimately it's you telling me what somebody has relayed to you and I may or may not accept that. I'm going to allow it but as I said it will be a matter for submission?---So Veronica Noonan came back on two instance - on two times, where I recall and she was visibly upset. And when I asked her what's the matter she said that Simon Barker is not a nice guy. I mean I don't know exactly what she said but she said that she had to confront him for her work and that he was quite rude towards her.

Mr Hingst, the difficulty is unless Ms Noonan is going to come to give evidence, it's not helpful for me to hear this evidence?---Yeah, I understand. I had wanted Veronica Noonan to come - - -

Well don't - - -

[COUNSEL FOR CE]: We'd also object to the relevance. I mean the question is how Mr Hingst was treated, not how Veronica Noonan's been treated.

HER HONOUR: That's right. It's not helpful?---Okay ...

57 It will be observed that at least one of the applicant's purposes in endeavouring to adduce what Veronica Noonan had allegedly said to him was to elicit the opinion that Mr Barker was 'not a nice guy'. Plainly, Ms Noonan's opinion on that topic was irrelevant to any issue in the trial, and was therefore inadmissible. But beyond that, even were it to be assumed that the evidence could have had some relevance, it could not properly have been introduced in the manner attempted by the applicant. Moreover, the judge made it abundantly clear that the applicant's failure to call Ms Noonan would be a matter for submission as to weight.

58 Ultimately, despite the judge's admonition that the failure to call the witness might affect the weight to be given to the evidence, the applicant did not call Ms Noonan. In those circumstances, we consider that the following observation by her Honour - containing the 'criticism' of him about which the applicant complained - was entirely justified:[83]

The [applicant's] evidence was that he told Ms Veronica Noonan, a colleague, about his difficulties with Mr Short. Ms Noonan was not called to give evidence, as mentioned previously, and there was no explanation given by the [applicant] as to why he did not call her. This is in circumstances where the [applicant] issued subpoenas on many witnesses and organised for them to attend court and give evidence.

59 Finally, in our opinion there is nothing in the applicant's contentions that the trial judge erred in failing to find negligence based on the suggested failure of the respondent to have an occupational health and safety induction procedure and a human resources policy, the existence of which 'would have prevented the bullying'. Based on the evidence, as we have said, the judge was not satisfied that the applicant had been bullied. To that extent, the existence (or non-existence) of policies of the kind referred to were irrelevant.

60 Nor is there substance in the assertion that her Honour erred 'in finding that the company was not negligent and in finding that the injuries suffered were not reasonably foreseeable'. The judge's process of reasoning, set out above,[84] was faultless.

61 There is no substance in any of the submissions advanced by the applicant under the cover of grounds 1 to 4.

Grounds 5 and 6 - Claimed breach of duty owed to an unrepresented litigant

62 In his Amended Written Case, the appellant submitted that he 'clearly did not understand the legal process and there are a number of instances in which [the judge] did not give [him] a fair and balanced hearing [which] included rushing [him] and disallowing fair and reasonable questions to be put to witnesses'. By reference to the transcript, he then set out a large number of instances which he contended showed that he was denied procedural fairness.

63 In oral submissions - during which we granted the applicant the indulgence of relying on a host of documents which were additional to his Amended Written Case[85] - the applicant also submitted that the judge should have given him more help with that part of his claim that invoked the OHSA, and that she should have informed him that he needed to plead breaches of specific regulations. Failure to do so was a breach of the duty owed by a trial judge to an unrepresented litigant.

64 In assessing the supposed unfairness alleged by the applicant, the respondent submitted, it was relevant to take into account that:

• first, the trial judge explained an opening address to the applicant and gave him assistance as to the conduct of evidence-in-chief;

• secondly, the respondent gave assistance throughout the trial;[86]

• thirdly, the respondent's counsel did not object to the applicant taking certain notes into the witness box when giving part of his evidence-in-chief and in re-examination;

• fourthly, the applicant was given sufficient time to examine and cross-examine witnesses;

• fifthly, the applicant was allowed to take breaks when needed;

• sixthly, while objections to some of the applicant's questions were properly upheld on various occasions, that did not mean the trial was unfair or imbalanced;

• seventhly, the trial judge afforded the applicant a degree of leeway in asking questions, and allowed him to ask questions notwithstanding that they were repetitive;

• eighthly, the applicant was permitted to have access to the courtroom outside sitting hours to ensure his copies of the exhibits were in order;

• ninthly, the applicant did not complain to the trial judge that he did not understand the process, that he was unable to lead evidence and cross-examine, or that he was being 'rushed'; and

• finally, a judge is not obliged, and indeed should refrain, from giving an unrepresented litigant advice on how to exercise rights.[87]

65 When read as a whole, the respondent contended, the record of the trial demonstrates that the applicant had a tendency to ask irrelevant or unclear questions, and repetitively to ask similar questions. At various times the trial judge properly disallowed such questions. Moreover, the applicant treated the trial as a commission of inquiry into the way the respondent's workplace operated; and, on the whole, he was permitted considerable latitude in the questions he asked. The respondent's trial counsel took an approach whereby there was no objection to many of the irrelevant questions during the 18 day trial, and the tender of irrelevant documents was also not the subject of objection.

66 None of the many passages of transcript cited by the applicant, so the respondent submitted, reveal any erroneous rulings concerning his questions; and, in any case, even if some of those rulings were shown to be in error, there was no substantial miscarriage of justice thereby occasioned. Finally, none of the passages about which the applicant makes complaint reveal that he was denied procedural fairness.

67 It is convenient to turn first to the applicant's submission made orally that the judge should have given him more help with that part of his claim that invoked the OHSA, and should have informed him that he needed to plead breaches of specific regulations. In light of the history of the proceeding, we consider that submission to be somewhat disingenuous.

68 Hence, on 30 June 2017, the applicant made applications to Clayton JR for leave to amend his Statement of Claim and also to vacate the trial date. CE opposed both applications. On 14 July 2017, Clayton JR permitted the applicant to amend his Statement of Claim, and to file and serve an Amended Statement of Claim.[88] (She also vacated the trial date and made a conditional order referring the matter for judicial mediation.) Although Clayton JR permitted the amendment to paragraph '5(t)(1)' of the Amended Statement of Claim, she made clear to the applicant that he would need to specify at trial the regulations said to have been breached:[89]

At paragraph 5(t)(1) Mr Hingst adds various sections of the Occupational Health and Safety Act 2004 (Vic) he alleges were breached. Counsel for CE correctly points out that, pursuant to s 34, a breach of this Act does not found a cause of action in civil proceedings. Mr Hingst does not specify which sections of the Occupational Health and Safety Regulations 2017 he alleges were breached. At the trial of this matter, Mr Hingst will need to set out the regulations he relies upon. However, Mr Hingst alleges that a failure to comply with the Act is one of the ways in which CE breached its duty to him, and he now specifies the sections of that Act that he alleges were breached. That amendment is sufficiently clear to enable CE to plead to it and is allowed.

69 In light of the above, it is plain that the applicant was apprised well in advance of trial of the need to specify the regulations, the breach of which he relied upon in support of his claim. He had been warned of that need by Clayton JR.

70 Moreover, it is also plain that the applicant had understood what Clayton JR had said. So much is apparent from what he told the trial judge early in the trial.

71 To put the matter in context, the trial judge had advised the applicant that he would need to 'open' his case, and she had asked the applicant to provide her with a document on the first day of the trial which set out the 'instances' which established that he was 'bullied at work'. On the second day of the trial, shortly before the applicant was to open, in the course of discussion relating to trial management issues - including the Amended Statement of Claim and Amended Defence, subpoenas and the availability of witnesses - the applicant said that he knew that he 'should prepare something' and that he had 'started on it'. He then said:[90]

I haven't completed it. And this is why I wrote to the defendant asking that we would today do [scil, delay doing?] my opening, we'd do the subpoenas, we'd do the issue of the pleadings and defence. I thought I need to particularise the regulations that I'm referring to and to actually stipulate in detail why - which OH&S regulation I am arguing as to which grounds. ...

72 Based on what the applicant told the trial judge - which betrays a clear understanding on his part that he needed to 'particularise' any regulations upon which he sought to rely - his submission to this Court that the judge should have informed him that he needed to plead breaches of specific regulations rings hollow.

73 Turning to the applicant's other complaints about his treatment at the hands of the trial judge, we consider that the trial judge gave the applicant a trial that was perspicuously fair. The applicant's complaints that the judge failed to give the applicant 'a fair and balanced hearing and breached the duty to give a self-represented party'; failed to afford the applicant procedural fairness; and failed to afford 'sufficient fairness and balance to the applicant' consistently with Trkulja; are totally devoid of substance.

74 In Trkulja, upon which both parties rely, the Court (Kyrou and Kaye JJA and Ginnane AJA) observed:[91]

Whatever the rationale for the judge's duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial.[92] It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.[93]

In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[95] In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.[96] It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[97]

The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[98] Similarly, this Court has endorsed the proposition that '[c]oncealed in the lay rhetoric and inefficient presentation may be a just case'.[99]

It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties.[100] Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.[101]

75 More recently, in the course of discussing unrepresented litigants and the right to a fair hearing, in Roberts v Harkness[102] the Court (Maxwell P, Beach and Niall JJA) said:[103]

[T]he fundamental obligation of every court to ensure a fair hearing for the parties before it. The High Court recently affirmed, in Condon v Pompano Pty Ltd, that procedural fairness is 'an essential attribute of a court's procedure'.[104] The correlative right of each party to a fair hearing is firmly established at common law ...

The existence of the fair hearing right being uncontroversial, the critical question is: 'What does the duty to act fairly require in the circumstances of the particular case?'[105] Natural justice is 'fair play in action'.[106] As Gleeson CJ said in Lam:[107]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

It is an essential requirement of a fair hearing that each party be given a 'reasonable opportunity' of presenting its case,[108] whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.[109]

Axiomatically, what is 'reasonable' for this purpose will depend on the circumstances of the case.[110] Matters to be taken into account in determining the practical content of fairness in the particular case will include

• the nature of the decision to be made;
• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision ('what is at stake'[111]); and
• the competing demands on the time and resources of the court or tribunal.[112]

76 In our view, a balanced, objective and complete review of the record of the trial demonstrates that the judge conducted the proceeding in an exemplary manner and afforded the applicant (and, for that matter, the respondent) a trial that was, as we have said, perspicuously fair. The applicant's contrary assertions are without substance.

77 It is impractical to set out all of the examples upon which the applicant seeks to rely under cover of grounds 5 and 6 - his Amended Written Case, and the additional documents that he was permitted to rely on in the course of the hearing in this Court, literally refer to many dozens of transcript references - but we will refer to a few to give the flavour of the applicant's complaints, and so as to demonstrate their general lack of merit.

78 Thus, in the course of an extensive and searching cross-examination of Mr Pepperell, the following exchange took place:[113]

MR HINGST: ... If you had three words to describe your personality ---

HER HONOUR: Mr Hingst, again it's not about Mr Pepperell's personality.

MR HINGST: I apologise Your Honour. Do you regret at all having made any statements as you've shown about me ---

[COUNSEL FOR CE]: I object, Your Honour.

MR HINGST: I'm just asking ---

HER HONOUR: Well you've asked Mr Pepperell about the statements. You've asked him about the accuracy. You've asked him if there are contradictions.

MR HINGST: I'm just trying to conclude whether there is any - in the end of it whether he would like to say something and then I'll finish Your Honour.

HER HONOUR: Well you've asked Mr Pepperell about the contents of it and whether he stands by the content of it, what he doesn't. That's what is relevant.

MR HINGST: Yes, I understand, Your Honour. I understand that this has been stressful for Mr Pepperell ---

HER HONOUR: No, no, that's not your concern.

MR HINGST: Okay.

HER HONOUR: The questions need to be relevant and pointed to the issues in this case.

79 And in a lengthy cross-examination of Mr Short, the following occurred:

Did I ever argue with you about the issues that you brought to me?---I think - I think I can recall one discussion we had that you believed that I said you'd made a mistake but you believed you didn't.

On one occasion?---Yeah, I can remember that, yeah.

And how do you come to remember that, because it was only the one occasion?---Yeah, I think so, because I was just trying to remember, David. It's quite a few years ago. It wasn't yesterday. It wasn't the year before that. It was nine years ago. So I'm trying to remember. I can't - I'm not - I haven't got a photographic memory of such. So I'm trying to remember. I can remember having a conversation about that. Yeah, but it wasn't - and again it wasn't aggressive, David. You know I wasn't aggressive towards you so ---

I know, do I?---Yeah, well, you ---

I put to you, I do know. These are my allegations to you?---Okay, yeah, okay. That's fine, David.

Right. That's why we are here today?---Yeah.

All right, Mr Short. So do you want to make any comment? Do you want to say anything towards me, before we start or - - -

HER HONOUR: No, Mr Hingst.

MR HINGST: Sorry.

HER HONOUR: Again this isn't an opportunity for you to give a speech, nor for Mr Short to give a speech.

MR HINGST: Yeah.

HER HONOUR: Ask him some questions.

MR HINGST: All right. Sorry, Your Honour, one second.

HER HONOUR: No, that's all right. Get yourself organised.

MR HINGST: All right, Mr Short. Just let us run through this once more?---Yeah.

80 In his Amended Written Case, the applicant complained that, by 'disallowing fair and reasonable questions' seeking to have witnesses make comments - including having Mr Pepperell describe his personality in three words - the judge denied him a fair and balanced hearing. Quite plainly, these contentions are untenable. Whether in the hands of a trained legal practitioner or those of an unrepresented litigant, the cross-examination was improper, and what it sought to elicit was inadmissible. There can have been no denial of procedural fairness, or any breach of the duty that a judge has to an unrepresented litigant, in the judge controlling improper cross-examination. Moreover, several other things may also be gleaned from these passages, including: first, the tone of the cross-examination (insofar as that may be divined from the bare transcript); secondly, the patience exercised by the judge; and, thirdly, the judge's forbearance and solicitude.

81 The applicant also complained that at different times during the trial he was put under pressure to proceed with, and finish with, aspects of the case. As an example of the supposed pressure to which he was subjected, he referred to something that occurred towards the end of the day on Tuesday, 5 December 2017. The applicant had been cross-examining Mr Pepperell for a deal of the afternoon. When it came time for the trial to be adjourned for the evening, and Mr Pepperell was about to withdraw - he was to return the following day so that the applicant could continue to cross-examine him - the judge (not unreasonably) inquired of the applicant 'how much longer' he had for the witness. The applicant indicated he had about an 'hour, hour and a half'. After Mr Pepperell withdrew, there was the following exchange between the judge and the applicant, during which the judge - quite properly - urged the applicant to try and focus on what was relevant:

HER HONOUR: Mr Hingst, I appreciate that you've probably got lots of things that you want to ask a number of the witnesses coming up and you've indicated to me that you've got about another hour, hour and a half_. I'm going to ask you again to think very carefully about the things you ask about in terms of how they are relevant, all right._ And how they are relevant to what you've alleged in your claim and evidence that you've given for example that you might want him to corroborate with or whatever it might be.

But going on an excursion on some of the more remote issues such as what you were doing with the regulations is just not helpful for me. At the end of the day the evidence has got to assist me in determining (a) making a number of findings of fact, but then making findings of law as well. I know this is probably not all that helpful for you but keeping your questions on point is important and that might also save a bit of time as well.

MR HINGST: Yes.

HER HONOUR: That's better for everybody all round.

MR HINGST: Your Honour, the majority of the following questions are in regards to factual documents that have been - - -

HER HONOUR: I know but again the documents need to be relevant. They need to be relevant to issues in dispute in this case.

MR HINGST: Yes, well they are directly being made in regards to my departure from Construction Engineering.

HER HONOUR: All right, as I said I don't know what you're going to ask and nor is it appropriate. I'm not going to sit here and go through it with you. But as I said it needs to be relevant I know that you probably want a lot of background information because this is one of the first witnesses that you've worked directly with, but I'm just putting it to you, that's all. Were there any matters?

82 There was then a discussion between the judge and counsel for the respondent about the availability of witnesses in the coming days, during which there was the following harmless exchange. We mention it only because the applicant made the unrealistic submission in writing that it shows that the judge 'appears to be identifying with Counsel!'. Immediately after the passage above when the judge asked if there were 'any matters', there was the following discussion:

[COUNSEL]: No, except for as we understand it there's Mr Pepperell tomorrow and it looks like we'll have an early finish.

HER HONOUR: I think so.

[COUNSEL]: If Your Honour's content with that we're all content with it.

HER HONOUR: I haven't been told there's anyone lined up and I make no criticism again.

MR HINGST: Mr Barker, were now - - -

[COUNSEL]: We've put Mr Barker off.

HER HONOUR: We've parked him.

MR HINGST: Yes and you are informing him, is that correct?

[COUNSEL]: Yes, Mr Whiting is.

MR HINGST: Yes, I understand, okay.

HER HONOUR: All right, that's fine. Can I just ask then that's Wednesday and Thursday what is the situation?

83 Assuming that the transcript accurately records her Honour as having said 'We've' rather than 'You've' - a matter not free from doubt given the accuracy of transcripts generally - the applicant's insinuation that this innocuous remark by the judge betrays bias towards the respondent is without merit. In any event, discussion continued about the availability of witnesses, the production of an expert's report and the further course of the trial, during which there was the following exchange, which the applicant claimed in this Court demonstrated that the judge was putting him under undue pressure:

MR HINGST: Thank you, yes. May I just confirm. So when are we looking at Simon Barker and Greg Short? When next week?

[COUNSEL]: We would hope - - -

MR HINGST: Monday, Tuesday?

HER HONOUR: Just one moment, Mr Hingst.

[COUNSEL]: Essentially next week but I'm conscious that we all want to get this expert report before a commitment is made as to what day they come, but we're hoping that they're around next week to get the evidence finished in the course of next week.

HER HONOUR: So, Mr Hingst, my understanding from what I've been told, and I'm not locking anyone in, is that the expert report might come Friday, it might come Monday. Unfortunately that's not a guarantee, it's an indication. Obviously if it comes Friday or Monday you need time to read it and think about it and prepare your questions, and then it will be Mr Barker, Mr Short, I don't know in that order, and of the expert that's produced the report, and that will be sometime next week. But it seems to me your evidence is going to finish by Friday.

Friday Mr Hodgson the psychologist will be called, but other than that your evidence will be finished by Thursday at this stage and so then it's really just a matter of waiting (a) to know when Mr Short arrives. But I will be saying to the defendant come next week, you've got to get this evidence going. And that's the expert, in particular. And Mr Short, and then Mr Barker, assuming he's called by the defendants as their witness. All right?

MR HINGST: Thank you, Your Honour.

HER HONOUR: And then, when everyone has finished their evidence, and I don't know if any medical evidence is being called by the defendants or not. But, I'm not asking you to confirm that - - -

[COUNSEL]: Yes.

HER HONOUR: - - - in writing now. But, once the defendant's finished all of the evidence that they intend to call you will have to make submissions to me. And my intention is to give you a day, or a day and a half to prepare that. All right?

MR HINGST: Yes.

HER HONOUR: Now, I won't be asking you do it on the spot. But, you're not going to have a week. You won't have a week off to go and do that.

MR HINGST: No.

HER HONOUR: If we're lucky it'll - you'll finish up on Thursday, or something like that, and then you have Friday and the weekend, and you come back for the submissions the following Monday. But, I want this finished in this calendar - before the court finishes. I don't want this going over. It would be too difficult for everybody to come back to it.

MR HINGST: Sure.

HER HONOUR: Now, you won't get a response from me, or a decision from me until well after the break. But, your job, at least, and the defendant's job will be finished by that stage. All right?

MR HINGST: I understand.

84 Rather than the above passage demonstrating that the judge was subjecting the applicant to undue pressure, we consider that it establishes the opposite. The extract shows that the judge endeavoured to work out a further timetable for the trial (part of which involved the respondent making witnesses available for the applicant's benefit). Her Honour then explained to the applicant that he needed to make submissions at the close of the evidence, but reassured him that he would not have to make those submissions 'on the spot'. Indeed, the judge went out of her way to ensure that the applicant understood that he would be given adequate time to prepare. Moreover, it is significant that the applicant - who is educated, intelligent and outspoken - gave no indication that the proposed timetable posed any difficulty for him.

85 One final excerpt from the transcript will suffice to show the lack of substance in the applicant's complaints advanced under cover of grounds 5 and 6. In his Amended Written Case, the applicant submitted that the passage extracted immediately below shows: '[Her Honour] and [counsel] deliberating about what I can ask! [Counsel] is directing the issues in questioning of the witness'. The context is that the applicant was in the course of cross-examining Mr Short as to whether he had had a 'fart off' at work with another employee:

And the two of you actually did a fart off. You came over to him and dropped your guts, and he then went over to you and dropped his guts?---Yeah.

And I walked out?---Okay.

And that was it for that three or four day period that I was there?---Okay. So I was - - -

Because you were only there sporadically?---Yeah.

And Phil was only there (indistinct)?---Okay.

Now I was going to 206 Bourke Street?---Yeah.

For four weeks?---Yeah.

And then when I came back around about 7 November, somewhere around that, early November, I was in that office then, in the communal office with my back seated to the door, right, straight when you went in front, and you were sitting to the right. You - - -

[COUNSEL]: Your Honour, before the question can - can I ask, a suggestion has been put as to an event.

HER HONOUR: Well, and no evidence has been given.

[COUNSEL]: Yes.

HER HONOUR: And so at the end of the day, nothing more than an allegation has been put, [Counsel].

[COUNSEL]: Perhaps just Mr - that first bit about the three to four days and the fart off should be asked whether - - -

HER HONOUR: Well, it should be, but if it's not, there is no evidence on it at the end of the day.

[COUNSEL]: No, no.

HER HONOUR: You are quite right.

[COUNSEL]: I'm just concerned about the length of the question [and the] number of events.

HER HONOUR: Yes, well, Mr Hingst - - -

[COUNSEL]: And if he's got a question, he should break it up.

HER HONOUR: Thank you. Mr Hingst, again there is no point you saying what you think happened unless there is a question in it that you are asking this witness about, and this witness gives an answer, because what you say is not evidence. I've told you that.

MR HINGST: Okay. All right.

HER HONOUR: So you've just put to him a fair bit of detail about something that you say happened in October 2008.

MR HINGST: M'mm.

HER HONOUR: In the three to four day period you were there. If there's a question put the question to the witness.

MR HINGST: Do you recall at all having some type of fart off with Phil Hamilton?---No, I don't recall that sorry David.

Are you saying Phil Hamilton is lying?---No, I'm not saying he's lying, I said I don't recall it David.

HER HONOUR: Again Mr Hingst - - -

[COUNSEL]: Mr Hamilton didn't give evidence of a fart off.

HER HONOUR: I don't have a memory of Mr Hamilton giving evidence about this incident and I'll use it reluctantly, the fart off, that you say occurred in October 2008.

MR HINGST: Sorry, Your Honour. Phil Hamilton didn't say a fart off, I'm calling it that. Phil Hamilton in his evidence he referred to being in the communal office and Greg Short coming over to the printer, dropping - doing a fart there and then Phil would actually go and do the same to him.

HER HONOUR: Well I can't remember the second part of that, I'll be frank. I recall the first part of the evidence but I certainly don't recall the second part. Mr Hingst, you can't put things unless you're absolutely sure that's what a witness has said. Rough enough and good enough isn't enough. That's why it's helpful if you've got the transcript reference so that we can all be sure that that's actually what the witness said. There's so much evidence that's been given it's not fair to expect any one of us to remember precisely what was said.

[COUNSEL]: Your Honour, I'll assist Mr Hingst by taking [him] to the transcript.

HER HONOUR: Thank you.

MR HINGST: Thank you.

[COUNSEL]: [Page numbers], Your Honour.

HER HONOUR: Thank you.

[COUNSEL]: This is when it discussed they both passed wind.

HER HONOUR: All right, Mr Hingst, "You said so there was a period in that", and Mr Hamilton's evidence is, "Well I do recall obviously there were times when you got quite offended by some of the stuff that went on. Obviously there were incidences where Greg had a propensity to walk over to the printer which is next to me and I think David sat behind where the printer was and he would flatulate. He would fart, you know and that would happen quite frequently. Now I mean I would laugh it off or you know or talk out or whatever, but I knew that David took quite offence to it and I to be honest at the time - I didn't understand but then obviously", and then he goes on to say other things which - there's certainly nothing in that passage where he says that he did the same thing at the printer.

MR HINGST: Your Honour - - -

[COUNSEL]: Sorry to be complete Your Honour, because I know I took him to it in re-examination, all he says there was - -

HER HONOUR: What page are you on?

[COUNSEL]: [Page number], Your Honour.

HER HONOUR: Thank you.

[COUNSEL]: [Line number], I put to him - I can remember putting to him, "You also passed wind? Correct, we were as good as each other. As good as each other? Correct", so lines [numbers].

MR HINGST: Yeah.

[COUNSEL]: That's the highest it got to in my recollection Your Honour.

MR HINGST: So Mr Hamilton didn't deny that he also passed wind there. I apologise if I construed it in a way that - - -

HER HONOUR: Well it is construing it very differently. It sounds like there was an incident where they're going backwards and forwards towards the printer and having what you've described as a fart off. Now that's a different matter to what Mr Hamilton has said. So again you can't put things to a witness that aren't accurate. This is a court of law.

MR HINGST: I apologise, Your Honour.

86 As may be discerned, counsel for the respondent sought to intervene when the applicant made assertions of fact - misstating the evidence - clothed as questions, which in any event comprised several propositions. It cannot be gainsaid that the judge was correct to insist that the matters be put accurately in the form of questions. Once more, the judge's patience and forbearance are evident.

87 It would, as we have said, be impractical to set out any more of the large number of tracts that the applicant submitted demonstrated that the judge breached her duty to him and conducted an unfair trial. We think it sufficient to say that, in our opinion, none rise any higher than those we have earlier set out.

90 We will hear the parties on the question of costs.

[1] Or, to use modern parlance, self-represented.

[2] Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136, [4] ('Reasons').

[12] [2013] VSCA 122; (2013) 45 VR 22, 26 [15] ('Brown').

[13] [2013] VSC 326, [150] ('Swan').

[14] [2016] VSC 422, [25] ('Holland').

[15] [2014] VSC 626, [211]-[212] ('Johnson').

[16] [2002] HCA 35; (2002) 211 CLR 317, 331 [12] ('Tame').

[17] [2005] HCA 15; (2005) 222 CLR 44, 57 [33]-[35] ('Koehler').

[18] Reasons, [14] (citations as in original).

[19] [2014] VSC 626, [406].

[22] Ibid [27]-[30] (footnotes omitted).

[58] Ibid [112]-[113] (emphasis added).

[68] [2015] VSCA 130; (2015) 47 VR 430, 472 [166] (Redlich, Osborn and Kyrou JJA).

[69] Section 34 of the OHSA provides:

(a) conferring a right of action in civil proceedings in respect of a contravention of a provision of this Part; or

(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or

(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, with respect to breaches of duties or obligations imposed by the regulations.

[70] Reasons, [145] (emphasis in original).

[74] He referred to Brown, 26 [15].

[75] See [11]-[15] above.

[77] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550, 558 [43] (citations as in original).

[78] [Fox v Percy (2003) 214 CLR 118 197 ALR 201; 38 MVR 1; [2003] HCA 22 ('Fox')] at [25] per Gleeson CJ, Gummow and Kirby JJ.

[79] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-81; [1993] HCA 78; 112 ALR 641 at 646-7 per Deane and Dawson JJ; Fox at [29] per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd (ACN 089 245 465) v BMW Australia Finance Ltd (ACN 007 101 715) (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at [76] (Miller & Associates) per Heydon, Crennan and Bell JJ.

[80] Fox at [28] per Gleeson CJ, Gummow and Kirby JJ.

[81] Fox at [29]. See also Miller & Associates at [76].

[84] See [27]-[29] above.

[87] Trkulja v Markovic [2015] VSCA 298, [39] (Kyrou and Kaye JJA, and Ginnane AJA) ('Trkulja').

[88] Hingst v Construction Engineering (Aust) Pty Ltd [2017] VSC 407.

[91] Trkulja, [37] (citations as in original).

[92] Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446 [29] ('Minogue').

[93] Abram v Bank of New Zealand [1996] ATPR 41-507, 42-347; Minogue [1999] FCA 85; (1999) 84 FCR 438, 445 [27]; Werden [2012] VSCA 278; (2012) 36 VR 637, 651 [57].

[95] McWhinney v Melbourne Health [2011] VSCA 22; (2011) 31 VR 285, 293 [25] ('McWhinney'), quoting Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 [141] ('Tomasevic').

[96] Werden [2012] VSCA 278; (2012) 36 VR 637, 651 [57].

[97] Pamamull v Albrizzi (Sales) Pty Ltd [No 2] [2011] VSCA 260, [102].

[98] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150.

[99] Downes [2014] VSCA 193; (2014) 313 ALR 383, 390 [26], quoting Edwards v Allmen Engineering Pty Ltd (Unreported, New South Wales Court of Appeal, Kirby P, Sheller and Powell JJA, 17 October 1995) 2.

[100] McWhinney [2011] VSCA 22; (2011) 31 VR 285, 293 [25], quoting Tomasevic [2007] VSC 337; (2007) 17 VR 100, 130 [142].

[101] Malouf v Malouf [2006] NSWCA 83, [94].

[102] Roberts v Harkness (2018) 85 MVR 314 ('Roberts').

[103] Ibid 331-2 [46]-[49] (citations as in report). See also Doughty-Cowell v Kyriazis [2018] VSCA 216 (Maxwell P, Beach and Niall JJA).

[104] (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 at [156] (Pompano).

[105] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585; [1985] HCA 81; 62 ALR 321 at 347.

[106] Salemi v Minister for Immigration and Ethnic Affairs (Cth) (No 2) (1977) 137 CLR 396 at 445; [1907] ArgusLawRp 156; 14 ALR 1 at 39.

[107] (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613; [2003] HCA 6 at [38].

[108] Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 (Russell); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; 326 ALR 1; [2015] HCA 40 at [55] (WZARH); Shrestha v Migration Review Tribunal (2015) 229 FCR 301; 321 ALR 356; [2015] FCAFC 87 at [38]-[41] (Shrestha).

[110] Russell at 118; see also National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 311-2, 319-20; [1984] HCA 29; 52 ALR 417 at 427-8; 434-5; [1984] HCA 29; 8 ACLR 843 at 853-4; 859-90; Pompano at [156].

[112] AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30; 338 ALR 551; [2016] FCAFC 68 at [44](e); Shrestha at [53]-[54]; Barratt v Howard (2000) 96 FCR 428; 170 ALR 529; 61 ALD 77; [2000] FCA 190 at [50]-[54]; Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 600-2; [1994] FCA 985; 121 ALR 83 at 92-4; [1994] FCA 985; 33 ALD 441 at 449-51.

[113] Emphasis added to this and following passages.