Plaintiff v Defendant

2 On 9 December 2025, I heard argument in respect of preliminary questions stated for determination by orders of Daly AsJ made on 2 October 2025.

3 At the conclusion of that hearing, I indicated that I was indebted to the parties for the efficient manner in which the matter had been presented and argued, but that I was unable to indicate when the judgment would be able to be delivered. I said that I was hopeful that judgment could be delivered in either late January or early February 2026, although I could not make any promises owing to what I described as 'a bit of a logjam, unfortunately'.

4 It will be implicit from the exchange to which I have referred that, in recent times, the pressure of business in the Common Law Division of the Court has been, to say the least, very considerable.

5 No counsel indicated any difficulty with the course proposed. Indeed, I was informed that there was 'no other date that's pressing'.

6 At 9:46am on 4 March 2026, the solicitors for the plaintiff sent an email to my associates in the following relevant terms -

We are mindful that the trial in the above proceeding is listed for 14 April 2026.

On this basis, we kindly request, if possible, an indication of when his Honour, Justice O'Meara, will hand down his ruling for the interlocutory hearing held on 9 December 2025.

The defendant is copied into this email.

(a) no reference had earlier been made to the listing of the matter for trial commencing on 14 April 2026;

(b) a reasonable reading of the email would suggest that a determination of the preliminary questions was required in order that the trial might be able to proceed on the listed date; and

(c) that was, in fact, what I understood the email to be saying.

8 Later the same day, my associates responded by email to the effect that I had not been aware of the listed trial date and would be unable to deliver judgment prior to 'either late in the penultimate week of March 2026, or on the following Monday, 30 March 2026'. It was said that the parties would be advised when a precise date was able to be identified.

9 At 10:13am on 5 March 2026, the solicitor for the plaintiff responded with brief thanks for what was described as an 'update'.

10 At 10.32am on Friday, 20 March 2026, my associates emailed the solicitors for the parties to indicate that judgment would be delivered at 9:30am on Thursday, 26 March 2026.

11 At 4:25pm on Tuesday, 24 March 2026, the solicitors for the plaintiff emailed my associates attaching a solicitor's affidavit in support of what was described as 'the Plaintiff's application to vacate the current trial date'. Among other things, the email stated -

We note that the application is made with the consent of the Defendant.

Will His Honour be in a position to deal with the matter at the judgment hearing on Thursday?

12 In that general connection, the solicitor's affidavit referred to aspects of the history of the matter and, thereafter, under the heading 'Reasons for the orders sought', stated -

16. On 17 March 2026, consultant psychiatrist, Dr Alex Apler, at the Defendant's request, re-examined the Plaintiff. The Defendant has outstanding medical evidence that will need to be reconsidered by the Plaintiff's consultant psychiatrist, Dr Matthew Tagkalidis. A re-examination appointment is currently scheduled for 25 May 2026.

17. As noted above, on 26 March 2026 his Honour, Justice O'Meara will deliver his judgment in the Plaintiff's summons filed 14 August 2025. The period to file a 'Notice of Appeal' will expire on 23 April 2026, after the present trial date of 14 April 2026.

18. Due to the outstanding medical evidence and the pending appeal period, the plaintiff believes that the current trial date of 14 April 2026 is not realistically maintainable, should be vacated and relisted.

13 The affidavit did not refer to the email sent on 4 March 2026.

14 There are a significant number of troubling features of the affidavit as well as the present application. At the very least -

(a) the deponent did not identify when it was that it had become known that the defendant might request that the plaintiff attend for further medical assessment, particularly by Dr Apler on 17 March 2026;

(b) in the ordinary course, that could be expected to have been known or suspected considerably earlier than 17 March 2026.

15 Fundamentally, however, the deponent did not explain why it was that it had taken until several days after the parties had been advised that judgment would be delivered and, indeed, a little over a day prior to that event occurring, for the Court to be advised that, contrary to the impression conveyed by the solicitor's email dated 4 March 2026, the parties would in fact be seeking, by consent, that the listed trial date be vacated and the matter re-listed for trial at a later date.

16 At 2:35pm on 25 March 2026, my associates emailed the parties referring to the solicitor's affidavit and stating that the application seeking an adjournment of the listed trial date may be made by summons filed by 4.00pm that day and returnable at 9:30am the following day.

17 At 3:45pm that day, the solicitor for the plaintiff responded by email seeking to 'confirm' whether 'we need a summons when the affidavit exhibits proposed consent orders signed by the defendant to vacate the listed trial date'.

18 At 4:35pm that day, one of my associates responded in the affirmative and, at 5:04pm, the solicitors for the plaintiff filed a summons.

19 The application seeking an adjournment of the trial date was heard after reasons had been published in respect of the preliminary questions.

20 At that time, I described several of the above events as 'vexing'.

21 In particular, I expressed concern that the solicitor's email of 4 March 2026 had been 'incomplete, misleading and manipulative' and emphasised that correspondence should not be sent seeking to 'corral the Court ... with incomplete references to what's actually going on in the case'.

22 In response, and appropriately, leading counsel for the plaintiff indicated that my observations were 'taken and accepted' and that no contention was offered other than to express a sincere apology 'on behalf of everybody on this side of the Bar table'.

23 Later, I referred to the more recent solicitor's email in respect of whether a summons was required in order that the plaintiff might make the adjournment application. In that regard, I said that it was 'somewhat vexing' to be interrogated about whether a summons was required when that is part of the procedure of the Court and it had already been said that a summons should be filed.

24 Leading counsel for the plaintiff restated the earlier apology and said that it had been helpful to 'hear those pronouncements' as it would assist 'those of us [who] practise in this area'.

25 In light of the stance ultimately adopted by leading counsel for the plaintiff, I did not consider it to be necessary to further explore the underlying circumstances or to reach any final conclusions concerning whether, in particular, the email of 4 March 2026 had been knowingly or unknowingly incomplete or misleading.

(a) it is never appropriate for an email to be sent to the Court in terms that are knowingly incomplete and misleading;

(b) nor is it ever appropriate for an email to be sent to the Court on a basis that is reasonably suspected of being at imminent risk of displacement;

(c) in that regard, it is not appropriate to send calculatedly manipulative correspondence to the Court; and

(d) it is not appropriate to seek to debate with the Court whether a procedural step should be taken when that step is required by the Rules and the Court has already indicated that such a step should be taken.

27 Notwithstanding the events to which I have referred, further submissions were made by leading counsel for the plaintiff and I accept that -

(a) there are unusual and even unique aspects of the present case;

(b) both parties appeared to be of the view that it is necessary for further medical evidence to be obtained and exchanged prior to the matter going to trial;

(c) the plaintiff also seems to be interested in the matter being mediated; and

(d) both parties appeared to continue to seek, by consent, that the present trial date be vacated and the trial re-listed to commence on a later date.

28 A sequence of recent decisions have considered late applications made in proceedings listed for imminent trial, including an instance in which such an application was made by consent.[1]

29 It will be apparent that there can be significant considerations bearing upon the determination of such applications, including the relevant provisions of the Civil Procedure Act 2010 (Vic).

30 More particularly, Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) concerned an application for adjournment of a trial date that had been made by consent but was nonetheless refused.

31 Among other things, Tsalamandris J confirmed that the application had correctly been refused and emphasised that the conduct of a proceeding must remain firmly in the hands of the Court, not the parties.[2]

32 Even more recently, in Gaskin v The Geelong Revival Centre Pty Ltd, Beach and Kaye JJA confirmed that in respect of such an application it is relevant to consider -

... the public interest in the efficient use of court resources, and the potential effect of an adjournment or a delay in the disposition of the proceeding not only upon the parties to the proceeding, but also on the efficient management of the Court, and thus the timely disposition of other litigation in the Court.[3]

33 In the present instance, I was mindful of those and other such considerations, but was ultimately persuaded that in all the circumstances -

(a) the presently listed trial date should be vacated and the trial re-listed to commence on 18 August 2026; and

(b) a directions hearing should shortly be held at which, subject to the underlying state of the proceeding at that time, the parties should propose a sequence of orders with a view to the matter coming swiftly to trial or other final resolution.

[1] See, for example, Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 ('Grimmett'); Nichols (a pseudonym) v CDC Clinics Pty Ltd & Ors [2025] VSC 489; Gaskin v The Geelong Revival Centre Pty Ltd [2025] VSCA 225 ('Gaskin').

[2] Grimmett (n 1) [15] (citation omitted).

[3] Gaskin (n 1) [20] (citations omitted).