Plaintiff v Defendant

1 The following amendments to the proposed Amended Statement of Claim are allowed:

Paragraphs 5(t)(1), 7, 8(ii), 8(vi), 10(iv) - 10(viii), 11.

2 The Plaintiff is to file and serve an Amended Statement of Claim reflecting order 1 by 21 July 2017.

3 The trial date of 31 July 2017 is vacated and the matter is to be refixed for trial on 16 October 2017.

4 Subject to the Plaintiff obtaining legal representation, the matter be referred to judicial mediation on 19 July 2017.

5 This is an application brought by the Plaintiff, David Hingst, on 30 June 2017:

6 The Defendant, Construction Engineering (Aust) Pty Ltd ("CE"), opposes the application for leave to amend the Statement of Claim and to vacate the trial date.

7 Mr Hingst is a self-represented litigant who issued proceedings on 19 May 2016 alleging that during his employment with CE he suffered bullying and harassment which caused him various injuries, including psychiatric harm and loss of libido.

9 On 24 June 2016, Mr Hingst made an application for default judgment on the grounds that CE was late in serving a sealed copy of its Notice of Appearance. Judicial Registrar Ware dismissed that application as Mr Hingst could not establish any material disadvantage or prejudice he had suffered as a result of the alleged late service of the Notice of Appearance.

10 On 21 June 2016 CE issued subpoenas to CBUS Insurance, Melbourne Sexual Health Centre ("MSHC") and Medicare. Mr Hingst objected to the inspection of his CBUS Insurance and MSHC records on 6 March 2017. I heard those subpoena objections on 16 June 2017 and 30 June 2017. During the hearing on 16 June 2017, Mr Hingst withdrew his objection to CE inspecting the documents from CBUS Insurance, provided that any letters to and from his lawyer within those documents not be available for inspection. CE agreed to this condition. Mr Hingst also requested further time to consider whether he wished to maintain his objection to inspection of the MSHC subpoena. As Mr Hingst does not have legal representation and counsel for CE consented, the hearing of that objection was adjourned to 30 June 2017.

11 On 19 May 2017 Mr Hingst made an application for further and better answers to interrogatories and for further and better discovery and specific discovery. During the hearing of that application on 16 June 2017, it became apparent that some of the matters about which Mr Hingst sought to interrogate CE did not arise on the pleadings. In particular, Mr Hingst sought to interrogate CE in relation to the circumstances in which he had been made redundant and the process by which he had been selected for redundancy. However, the termination of his employment and his selection for redundancy were not matters that had been put in issue by the pleadings.

12 Mr Hingst indicated that he would seek leave to amend his Statement of Claim and the Court made orders that that application would be heard at the same time as the adjourned subpoena objection on 30 June 2017. Mr Hingst was ordered to provide his proposed Amended Statement of Claim to CE by 26 June 2017.

13 On 30 June 2017 Mr Hingst's application for leave to amend his Statement of Claim was heard. At that hearing, Mr Hingst withdrew his objection to the inspection of the MSHC records.

14 Also at that hearing, Mr Hingst made an application from the bar table to vacate the trial date. The Defendant, who opposes that application, nonetheless consented to have it heard at that time.

15 After that hearing, on 6 July 2017, Mr Hingst contacted the Court by email and asked whether he could be given an opportunity to 'reword/re-evaluate' his Proposed Amended Statement of Claim.

16 Mr Hingst handed up a document titled 'Proposed Amended Statement of Claim' in court. This document was not underlined or struck through in the usual way so as to enable the Court to determine what deletions and additions were sought to be made pursuant to r39.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ("the Rules"). Mr Hingst subsequently emailed another version of his Proposed Amended Statement of Claim, which complied with r36.05(4), and which was received on 3 July 2017. I will refer to the version received by the Court on 3 July 2017 in these reasons.

17 There are many ways in which the proposed Amended Statement of Claim does not comply with the requirements of Order 13 of the Rules. As Justice Beach said in Knorr v Commonwealth Scientific and Industrial Research Organisation & Ors:[1]

The ultimate aim of pleading rules is the definition with precision of the issues between the parties. The rules facilitate the just, economic and efficient disposition of litigation: they are no mere technicality.[2]

18 In large part the proposed amendments do not conform to this requirement. Mr Hingst cites sections of legislation without raising a point of law. He does not set out how the alleged breaches of those legislative provisions form the basis of a cause of action nor does he set out how any such breaches have caused him an injury or entitle him to a remedy.

19 For example, at paragraph 5 of his proposed Amended Statement of Claim, Mr Hingst alleges that the Defendant breached its duty in that it failed to provide a proper and safe place of work for the Plaintiff. He seeks to now add numerous other particulars of alleged breaches of duty including 'failing to comply with the provisions of the Corporations Act 2001.' He cites numerous sections of the Corporations Act 2001 (Cth) ("Corporations Act") he alleges have been breached, including s206B(1)(a)(i) which deals with automatic disqualification from managing a corporation if a person has been convicted on indictment of an offence. There is nothing in the pleading to explain how any alleged breach of this, or the other sections of the Corporations Act he cites, is or could be a breach of the duty of care that he alleges is owed to him, nor how it has or could have caused him an injury. Further, even if there had been a breach of this section of the Corporations Act, of which there is no evidence at all, such a breach would not entitle Mr Hingst to a remedy in the form of damages which he seeks.

20 I am not convinced that allowing Mr Hingst to re-plead his amendments would substantially assist the parties or the Court to narrow the issues in dispute or otherwise understand the case that is put. Accordingly the Court refused to allow him a further opportunity after the hearing to 'reword/re-evaluate' his proposed amendments.

21 Mr Hingst has provided voluminous further and better particulars which set out in enormous detail the specific incidents which he alleges were negligent and caused his injuries. It is clear from these further and better particulars, Mr Hingst's correspondence with CE, his statements in court, his interrogatories and his application for further and better answers to those interrogatories, what case, at least in a general sense, CE will have to meet.

22 In exceptional circumstances, the Court has shown itself to be prepared to waive the usual requirements of the rules in relation to pleadings.[3]

23 The Court also has a general power to waive compliance with any of the Rules.[4] In determining when a discretion to waive compliance ought to be exercised, the Court must have regard to the overarching purpose of the Civil Procedure Act 2010 (Vic) ("the Act")[5] and in particular, the case management principles and the need to narrow issues in dispute and resolve the matter in a just, timely and cost efficient manner.[6]

24 The proposed amendments are not comparable to the pleadings produced in Re Klement,[7] however this is also a case where a plaintiff without legal representation is seeking to draft pleadings that deal with complex matters. In the present case I am not convinced that strict compliance with the Rules will assist in achieving the overarching purpose of the Act.

25 Where the pleading is capable of being reasonably understood by the parties and the Court, and where CE is reasonably able to respond to it, I will allow the amendment.[8]

26 Where the proposed amendments depart from the substance of the case that Mr Hingst seeks to make, and appear to be nothing more than a recitation of legislative provisions, or wholly new allegations without any foundation or pleaded material facts to support the allegations, I will not allow those amendments.

27 I will deal briefly with each of the proposed amendments:

(a) 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 s34, 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.

(b) At paragraphs 5(t)(2) - 5(t)(7) he adds further particulars of breach of duty including failure to comply with various provisions of the Equal Opportunity Act 2010 (Vic), the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Racial and Religious Tolerance Act 2001 (Vic), the Australian Human Rights Commission Act 1986 (Cth); and the Corporations Act 2001 (Cth). These amendments are not allowed.

(c) At paragraph 6 he cites 'Written documentation of and between the Defendant's employees, both by voluntary submission and under the statute of WorkCover investigations' and lists five names that appear to represent employees of CE who have given written statements in other proceedings. This pleading is nonsensical, appears to recount evidence and, in any event, is not a material fact and is not allowed.

(d) At paragraph 7 he adds a new allegation that CE failed to comply with the required formal procedures in terminating his employment and in particular, failed to warn him, provide him with a right of reply, or to consult with him. This amendment is allowed.

(e) At paragraph 8(ii), he adds a particular of negligence that CE failed to implement or have in place adequate 'Human Resource Policies' and 'OH & S' policies to protect him from harm in the workplace and to ensure a safe working environment. This amendment is allowed.

(f) At paragraph 8(iii) he adds a particular of negligence: 'The Defendant conspired to cause harm on the Plaintiff. Particulars pursuant to statements made by the Defendant, as noted in item 6 above.' The particulars referred to at item 6 are not allowed. To allege that CE conspired to cause Mr Hingst harm significantly changes the case previously made in the Statement of Claim[9] and the Further and Better Particulars.[10] This is a wholly new allegation that would substantially alter the way in which the case was to be run and the defence that CE would be required to mount. There is nothing in the material before me or the submissions made by Mr Hingst to suggest that a claim of conspiracy has any real prospects of success. Given the late stage at which this amendment is sought to be made, the amendment is not allowed.

(g) At paragraph 8(iv) he adds 'The Defendant communicated electronic information within its internal e-mail system regarding the Plaintiff'. It is almost certainly true that CE would have, during the course of Mr Hingst's employment, communicated some form of electronic information about him by email but this in itself is not a material fact. The allegation he seeks to make in relation to CE's use of and supervision of email is sufficiently pleaded at 8(vi). The amendment is not allowed.

(h) At paragraph 8(v) he adds 'The Defendant communicated electronic communication within its internal e-mail system regarding third parties'. Again, this is undoubtedly true, but goes nowhere and is not allowed.

(i) At paragraph 8(vi) he adds 'The Defendant failed to monitor electronic messages written by the Defendant's employees and warn and or implement measures as required set under the Defendant's own policies'. This amendment is allowed.

(j) At paragraph 10 he cites evidence of his injury obtained during other proceedings. Paragraphs 10(i), 10(ii), 10(iii) are not allowed. Paragraphs 10(iv) - 10(viii) are allowed.

(k) At paragraph 11 he sets out the basis of his calculations of loss of earnings and loss of earning capacity. These amendments are allowed.

(l) At paragraph 12 he seeks to add three additional claims under the heading 'Other Pleadings'. These three matters are not set out in a way to enable to Court to understand what is actually being alleged or how any of those matters form part of Mr Hingst's claim. The construction of the sentences does not make sense. Paragraph 12 is not allowed.

28 Mr Hingst submitted he was not ready for trial at this time. He said that he had been seeking legal representation without success. He was recently advised that lawyers that he had discussed his case with declined to take it on. He said that he had been occupied with drafting his proposed amendments to the pleadings and had not been able to prepare for trial. He had contacted some but not all of the witnesses he proposes to call at trial and was not certain of all his witnesses' availability at trial. He had not approached certain lay witnesses who are employees of CE, as he was unsure whether documents he had signed in another proceeding prevented him from doing so. He intends to obtain an updated report from his treating psychiatrist, whom he will not see until the end of July this year. He has been unwell and stressed and this has caused him difficulty in preparing for trial. He seeks an adjournment of at least three months.

29 Counsel for CE opposed the vacation of the trial date. Counsel assured Mr Hingst that he was entirely at liberty to contact any employees of CE he wished to call to give evidence. Counsel noted that Mr Hingst had been trying for a considerable period of time to obtain legal representation without success, and noted that, if he was successful, his lawyer would most likely apply for a vacation of the trial date and such an application would be difficult to oppose.

30 However, in circumstances where there was no legal representation and no evidence that Mr Hingst would be in any better state of preparation in three months or so, no vacation of the trial date should be granted.

31 Counsel noted that there was no adequate explanation from Mr Hingst as to why he was not ready to proceed. Counsel relied on AON Risk Services v Australian National University[11] and pointed to the irreparable prejudice that flows from the vacation of a trial date. He submitted that it was in the interests of all parties that the matter get on and be dealt with as soon as possible.

32 There is some force in the argument that the matter should be heard and resolved as soon as possible.

33 Mr Hingst claims, amongst other injuries, that he has chronic depression and anxiety, post-traumatic stress disorder, cognitive difficulties including lapses of memory and concentration, panic attacks and hypersensitivity to criticism.

34 Litigation can certainly be a stressful experience for anyone, let alone someone suffering from anxiety. There is something to be said for the proposition that Mr Hingst's best interests are served by having the matter finalised as soon as possible.

35 In his claim, Mr Hingst makes allegations about the conduct of a number of CE employees and they are entitled to defend themselves against those allegations and not have the matter prolonged any further than necessary. It is undoubtedly also stressful for those witnesses to have this matter hanging over their heads, and they are just as entitled as Mr Hingst to have the matter resolved as quickly as possible. I also note that CE has been dealing with claims arising from Mr Hingst's employment in one form or another for a very long time. The Court accepts that there is a degree of irreparable prejudice that can arise when a trial date is vacated and does not vacate trial dates lightly.

36 Having said that, Mr Hingst is not assisted by legal representation. While there was no affidavit evidence before me, I accept that the preparation of a legal claim of this kind could well induce a stress-related illness. I am not persuaded that vacating the trial date and refixing for a later date will necessarily reduce the stress that Mr Hingst suffers, indeed it may merely prolong it.

37 However, Mr Hingst is entitled to prepare his case as best he can and the Court is, in this instance, prepared to allow a relatively short indulgence to enable him to finalise his expert reports and ascertain the availability of witnesses. Subject to any submissions about the availability of counsel or witnesses, the Court proposes to relist this matter for hearing on 16 October 2017.

[1] [2012] VSC 83.

[3] See for example Djime v Le [2016] VSCA 105 in which Beach JA followed the approach in Re Klement [2011] VSCA 40.

[5] S 8 of the Act.

[6] Ibid s 7.

[7] [2011] VSCA 40.

[8] See for example Djime v Le [2016] VSCA 105 [20].