Plaintiff v Defendants

Supreme Court of Victoria|2014-12-03|Before: DIXON J

PRACTICE AND PROCEDURE - Adjournment of trial on a second occasion by the plaintiff - Trial to commence in 5 days - Application for recusal for bias following an interlocutory ruling - Failure to seek timely leave to appeal interlocutory ruling - Other failures to comply with trial management directions - Discretionary considerations - Whether immediate taxation and enforcement of costs orders appropriate if trial adjourned.

1 The plaintiff applies by summons filed on 25 November 2014 to adjourn the trial, which is scheduled to commence next Monday, following on my ruling of 21 November 2014 that his application to amend his statement of claim be refused. There are a number of applications before the court. The plaintiff also seeks an order that I recuse myself for bias. In this proceeding the plaintiff claims damages for defamation. During the course of this proceeding at various times, the plaintiff has both represented himself and been represented by legal practitioners.

2 On this application Mr Trkulja was assisted by counsel provided by the Victorian Bar's Pro Bono scheme at the court's request. However, he was self-represented on 21 November 2014 when most of the relevant events unfolded.

3 The defendant opposes adjournment of the trial and seeks an order against Mr Trkulja under s 10 of the Vexatious Proceedings Act 2014, which Act has just commenced operation. The defendants also seek costs orders, including that, should the plaintiff succeed on his application for an adjournment of the trial, I should revisit my refusal, on the grounds that the trial was imminent, to order immediate taxation and recovery of certain interlocutory costs orders under r 63.20.1.

4 On 23 October 2014, I refused the defendants' application for summary dismissal of the plaintiff's claim based on an incident of a defamatory publication described in my reasons as the 'tree incident'. This claim was pleaded by paragraphs 6A and 6B of the plaintiff's amended statement of claim. The plaintiff sought an extension of the limitation period in order to maintain that claim. Further, because this was not the only proceeding in which allegations in respect of that particular incident had been raised as a basis for a claim for damages for defamation, there was an issue whether the plaintiff required leave pursuant to s 23 of the Defamation Act 2005 to bring the claim. I ruled that the issue of whether the plaintiff was bringing further defamation proceedings against the same defendant in relation to the same or a similar publication could not be precisely determined because of ambiguity and imprecision in the pleadings.

5 The plaintiff stated to the court his desire to amend the pleadings before proceeding further with those applications, in particular, the s 23 application for leave. I ordered that paragraphs 6A and 6B of the amended statement of claim dated 3 June 2013 be struck out and gave the plaintiff leave to serve a proposed further amended statement of claim for further consideration by the defendants. Leave to re-plead was not constrained in any respect as to what the plaintiff might further allege, because the plaintiff informed me he intended to retain experienced senior counsel to re-plead his claims and appear at the trial. However, the plaintiff, largely ignoring some assistance provided by a barrister in Sydney, produced a further proposed amended statement of claim that he served on the defendants. The defendants opposed leave to amend.

6 On 21 November 2014, in Trkulja v Dobrijevic & Ors (No 2),[1] I refused the plaintiff leave to amend in the form of the proposed statement of claim on three grounds. First, the amendment sought to raise a new claim against the first defendant that was statute barred. There was no reason to extend the limitation period. Secondly, the amendments were embarrassing in form. Thirdly, there were other discretionary grounds that persuaded me that it was not appropriate to grant leave to amend. Those grounds are further explained in those reasons and I need not repeat them. I also recorded that both parties opposed any further adjournment of the proceeding and each expressed keenness for their day in court.

7 The plaintiff has stated that he is aggrieved in my decision and intends to seek leave to appeal. It is for that reason that he applies to vacate the trial date. Before dealing with the plaintiff's application, I will first rule on the plaintiff's application that I recuse myself for bias. This allegation flows events surrounding my ruling on 21 November 2014.

8 The plaintiff alleged that I was biased in the manner in which I dealt with his application to enjoin the defendant's senior counsel from being retained by the defendants as trial counsel. It was not clearly suggested that I was biased in dealing with the application to amend the statement of claim, although the plaintiff's submissions were not consistent on this issue and it may be the case that the plaintiff feels aggrieved in that regard as well. It is unhelpful that the plaintiff has not filed an application for leave to appeal that decision, as he has foreshadowed, because that application would identified the grounds of error for which he contends.

9 Insofar as it is possible to determine the grounds upon which my earlier ruling might be subject to challenge, he stated written submissions:

Bias to word the plaintiff as from the plaintiff application against the defendant's solicitor has breached the Victoria Bar Practice Rules and the clause 62 to 67 is clear. I was advised by Mr Cawthorn personally that Ms Schoff cannot act or should not take any brief against former client who had disclosed to Ms Schoff his personal information.

His Honour Justice Dixon stated that they are no - precedent in the Supreme Court that the plaintiff have to base his allegation against the defendant's barrister.

The plaintiff stated in his affidavit sworn 25 November 2014 that he is appealing to the Court of Appeal against the orders of 21 November 2014 because I made

a jurisdictional error of a denial of procedural fairness and a denial of natural justice to the appellant.

His Honour prevented the plaintiff to proceed to the trial with the amending statement of claim dated 3 June 2013.

Mr Trkulja also stated that I 'made a jurisdictional error of a denial of procedural fairness and a denial of natural justice' to the plaintiff in preventing 'the plaintiff to proceed to the trial with the amending statement of claim dated 3 June 2013' and in 'not requiring the defendant's solicitor to produce relevant documents pursuant to a notice to produce'.

10 Neither his affidavits nor his correspondence identified bias on my part as an appeal ground. The plaintiff appears to assert that I appeared to be involved in assisting the defendant's senior counsel in breaching her obligations pursuant to professional practice rules and in using confidential information given to her by the plaintiff. This allegation seemed to confirm that the basis of the recusal application is bias in dealing with the plaintiff's application concerning the defendant's senior counsel, Ms Schoff QC.

11 The applicable principle commonly employed to enjoin a legal practitioner is well understood. The usual basis for enjoining from a legal practitioner acting against a former client is that there is 'a real and sensible possibility of the misuse of confidential information'.[2] Broadly, Mr Trkulja was suggesting that this was his concern. There are differences in emphasis in the authorities as to the degree of risk, the onus of proof and what needs to be shown by the former client before any evidentiary onus shifts to the legal practitioner to show that there is no real risk. I need not trouble myself further with such matters because not only was there no material before the court that would cast such an evidentiary onus on Ms Schoff, but Mr Trkulja had not served a summons or given notice of his application. The application was made orally and it was not supported by any affidavit or any evidence.

12 I did not determine the foreshadowed application. All that occurred on 21 November 2014 was that I declined to deal with the plaintiff's bias application until there was an application before the court by summons seeking to restrain the defendant's senior counsel from acting.

13 The plaintiff's submissions on the application today, which he prepared himself, emphasised the potential use by Ms Schoff of unidentified confidential information against the plaintiff and, from what Mr Trkulja said from the Bar table, that seemed primarily to be the basis of the restraint application. Mr Trkulja referred, when explaining his complaint, to the judgment of Nettle J (as his Honour then was) in Sent v John Fairfax Publications Pty Ltd[3] but his explanation was unhelpful in identifying what, if any, other basis for the application might be relied on. Possibly there was another ground beyond potential misuse of confidential information. Mr Trkulja could not readily and clearly articulate the basis for his oral application. I was informed that Ms Schoff had acted for him and his mother in proceedings many years earlier that did not concern defamation. The confidential information that might be used by Ms Schoff against the plaintiff was not identified. Ms Schoff provided further information about that earlier matter that I need not presently rehearse.

14 I refused to deal with an oral application made by a self-represented litigant from the Bar table without proper notice to either the defendants or to counsel that was unsupported by any evidence or contentions. I did not dismiss the application. I gave directions that would have permitted the plaintiff to make that restraint application to another judge if so advised. I directed that the application be brought on in the Practice Court by 28 November 2014. I directed that the application be brought on in the Practice Court because, although this matter is managed in the Major Torts List, I would not have had an opportunity during that week to deal with the matter. The next Major Torts directions day was 5 December 2014 which was the Friday before the trial was to commence. The plaintiff has not taken the opportunity to bring a restraint application against Ms Schoff in accordance with my earlier direction.

15 Against that background, I return to the application that is made that I recuse myself. In Michael Wilson & Partners Ltd v Robert Colin Nicholls,[4] plurality said (at paragraphs 31-33) and omitting citations,

It has been established by a series of decisions of this court that the test to be applied in Australian in determining whether a judge is disqualified by reason of the appearance of bias (in this case in the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this court or in the courts below to challenge that this was the test to be applied. As the plurality in Johnson v Johnson explained, 'The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues'. Because the test is objective it is important to keep an enquiry about apprehension of bias distinct from any enquiry about actual bias. An enquiry about actual bias in the form of prejudgement would require assessment of the state of mind of the judge in question.

16 Later in the their reasons, the plurality approved of the two step inquiry described in Ebner v Official Trustee in Bankruptcy.[5] In Ebner, the court stated that apprehension of bias principles are applied in two steps. The first is identification of what it is said might lead the judge to decide the case other than on its legal and factual merits. The second step is an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that the bare assertion that a judge (or juror) has an interest in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility with departure from impartial decision making is articulated.

17 Turning to the first of those steps, I cannot identify precisely how apprehension of bias is put and the plaintiff's contentions wavered between asserting actual and apprehended bias. The plaintiff also appeared to allege a continuing general bias as some of the bases put forward for the allegation post dated the allegedly impugned decision. That said, there appeared to be two bases for his allegation and two consequences that he contends followed on those bases.

18 First, there existed a previous professional relationship between senior counsel and the bench. This is most alluded to rather than clearly suggested. In an email communication between the plaintiff and the defendant's solicitors that was copied to my chambers (as well as various media organisations), the plaintiff stated,

On 23 October 2014 the defendant was represented by Mr Bracken, barrister, and his Honour Justice Dixon first allowed that the plaintiff amend statement of claim. On 21 November 2014 the defendant was searching who is close friend of his Honour Justice Dixon and they found new barrister and in process the defendant's solicitor had dropped old barrister Mr Bracken.

The second possible basis concerned the circumstances of email communications between my chambers and the defendant's solicitors about whether the plaintiff had filed an overarching obligation certificate.

19 The two consequences that are alleged are that I would not deal with the plaintiff's application to restrain counsel from acting, and I refused the plaintiff leave to amend his statement of claim. However, it is clear from another email in which the plaintiff makes statements about engaging a private investigator that, unsurprisingly, he has no evidence to support the assertion of a previous professional relationship. Beyond the fact that many members of counsel are professionally known to judges from their time in practice at the Bar, no material assertion has been made.

20 It is well recognised in the authorities that a fair minded lay observer would be unsurprised that, as former barristers, judges are professionally acquainted with a great many barristers who appear before them and would not, acting reasonably, apprehend from that circumstance that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue.

21 Three further observations may be made about the email communication of 26 November 2014 between the plaintiff and the defendant's solicitors when Mr Trkulja said:

The plaintiff also will engaged private investigator to investigate and research last 10 years all previous connection case and proceeding where the following barristers was involved: (a) William T Horton QC the husband of Ms Schoff, and (b) Mr John Dixon (His Honour Justice Dixon) and Ms Georgina Schoff.

22 The first observation is that the email was sent after the hearing, and my ruling in respect of the amendment of the statement of claim when the restraint application was first mentioned and directions given. It seems that any investigation or research uncovered could not play any part in the events of 21 November, rather it is a response to those events.

23 Second, the evident overreach in that statement did not permit it simply to be interpreted as a statement that the plaintiff was seeking evidence of bias. Unexplained, it appeared that the plaintiff had committed a contempt of court. I invited the plaintiff to explain what he meant by that statement and what he intended to do. Mr Trkulja apologised to the court and to Ms Schoff, stating that if his statement was interpreted as threatening, that was unintended, although he conceded that he made the statement because he was upset with the decision to refuse leave to amend his statement of claim. He stated that he did not have any intention of actually engaging a private investigator. I do not overlook the broad distribution of that email, which is discussed below.

24 I considered Mr Trkulja's statement to be seriously inappropriate. Further, it is evidence supporting the defendant's contention that the plaintiff engaged in behaviour collateral to the real issues in dispute in this proceeding that is not only inappropriate and improper but has cost consequences for the defendants. However, I accept Mr Trkulja's apology as purging his contempt and provided it remains an isolated incident I do not propose to exercise my power under r 75.07.

25 The third observation about the email is that it confirms that the plaintiff was searching for evidence of a possible basis to allege bias, which is consistent with the lack of any specific complaint or specific basis to reasonably apprehend bias. Thus, there is no evidence of the first basis that Mr Trkulja proposed for the reasonable apprehension of bias.

26 The circumstances of email communications between my chambers and the defendant's solicitors about whether an overarching obligation certificate had been filed also occurred after the ruling on 21 November. I accept the explanation given by the defendant's solicitors that such contact occurred in the following circumstances. The solicitor made contact with the registry in order to find out from a registry officer whether an overarching obligation certificate had been filed. As the file was in my chambers, the registry officer contacted my associate who indicated that she would make an enquiry of the file and respond to the solicitor by email. Upon making that response, my associate appreciated the need for Mr Trkulja to be informed of the communication with my chambers and she duly informed him of that contact and the result of the search of the court file.

27 Neither of these matters would persuade a fair minded lay observer acting reasonably to apprehend from these circumstances that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue, whether that be the decision to direct that an application to enjoin Ms Schoff be made to the Practice Court or whether that be to refuse the plaintiff leave to amend his statement of claim. Mr Trkulja did not then know the fate of his amendment application, he was content to proceed in accordance with my direction that his application against Ms Schoff be taken to the Practice Court. When I announced that I proposed to direct that the application be made in the Practice Court before the following Friday, he responded, 'Sure, before next Friday, that is fine. One week, that is all right'. As I said, the application was referred to the Practice Court because of other commitments, however as events transpired it became necessary for me to make my time available on 28 November, 2 December and today to the detriment of the business of other litigants to hear Mr Trkulja's application prior to the imminent trial.

28 As to the second alleged consequence, that of my decision to refuse leave to amend the plaintiff's statement of claim, I published written reasons that I have already identified. Mr Trkulja did not apply to adjourn his application in respect of the statement of claim in order to first deal with the application to enjoin Ms Schoff. An application for recusal for bias cannot be made on the basis that a litigant is unhappy with the result of an application. In the argument on that application, no possible misuse of confidential information was evident and no submission was put to me that my reasons demonstrate bias. It has never been suggested that bias is to be a ground of appeal against that decision.

29 The plaintiff's bare assertion that I appear to be biased, through an unidentified professional association, is of no general assistance in articulating any connection between the events giving rise to the apprehension of bias through, on the one hand, prejudgment or any interest in the affairs of any of the parties to the litigation or their legal representatives and, on the other hand, the possibility of departure from impartial decision making when refusing leave to amend or in giving directions for the restraint application against counsel. The application that I recuse myself on the ground of apprehended bias is refused.

30 The plaintiff seeks to adjourn the trial of the proceeding contending that he is not ready for the trial to proceed for the following reasons.

31 First, the plaintiff wishes to appeal my ruling refusing him leave to amend his statement of claim.

32 Second, the plaintiff still wishes to apply to the court to restrain Ms Schoff QC from acting for the defendants at the trial of the proceeding.

33 Third, the plaintiff wishes for a trial before a jury. He has not complied with an order I made on 21 November 2014 that the setting down fee and the first day's jury fees be paid by 28 November 2014. However, he claims to be financially embarrassed and that embarrassment was the cause of him being unable to pay.

34 Fourth, the plaintiff wants to be legally represented at his trial. He has made arrangements to retain legal practitioners of which he has informed the court in an affidavit, although I do not need to set them out in these reasons. These arrangements are dependent on appropriate financial security being provided to those legal practitioners in advance of the trial.

35 Fifth, the plaintiff has asserted that he is impecunious and that assertion is consistent with recent decisions made by staff in the registry to waive filing fees in respect of summonses.

36 However, the plaintiff has informed the court that he has settled other proceedings in which he is a party and he asserts that he will be in a financial position to proceed with the trial by 20 January 2015 following completion of the agreements to settle those other proceedings. Details of the expected change in the plaintiff's financial position from and following 20 January 2015 were not shared with the court.

37 Each of the first four reasons for an adjournment presented the plaintiff as standing in a different position to the position he took on 21 November 2014. First, at that hearing the plaintiff stated, 'Your Honour, I definitely don't want to lose trial, I've been fighting to get trial and I've been doing many application. I just don't want to lose my trial date whatever happen'. It can be doubted that this statement was genuinely made as contrary to that statement, first, the plaintiff had not taken the opportunity to file an application for leave to appeal since that ruling was handed down. His explanation was that he was informed by registry staff that he has 28 days in which to do so. Although that is correct there was no impediment to bringing an application prior to the trial date. Second, the plaintiff did not bring an application in the Practice Court to restrain Ms Schoff in accordance with my direction. Rather, he has debated that particular issue in emails, a matter to which I will refer in due course. Third, he has not paid the setting down fees or the jury fees. Fourth, he has not yet engaged solicitors and counsel for a trial and, fifth, he says the trial will take more than 10 days. Ultimately, his final ground for seeking an adjournment is proffered in explanation for each of these matters.

38 The defendants oppose the adjournment of the trial for the following reasons: First, the trial of the proceeding was originally fixed in March 2014 and was adjourned at the plaintiff's request. This would be the second occasion on which a trial of the proceeding would be adjourned at the request of the plaintiff.

39 Second, the only reason that was originally advanced for vacating the trial date was that the plaintiff wished to appeal my earlier ruling. No application for leave to appeal had been filed and no draft of any application had been circulated.

40 Third, of itself a desire to appeal is not a sufficient reason to vacate a trial date. Even when an application for leave to appeal is filed it will not operate as a stay. The plaintiff should have brought an application before the Court of Appeal seeking a stay and vacation of the trial date; otherwise the plaintiff may be constrained to raising the respects in which he feels aggrieved in an appeal after the conclusion of the proceeding.

41 Fourth, the plaintiff's proposed application for leave to appeal was futile. The plaintiff must demonstrate real prospects of success on appeal. No tenable ground of appeal is identified and none was evident.

42 Fifth, the plaintiff's impecuniosity is a recent submission; it was not put to the court on 21 November 2014, yet it appears that settlement was achieved on 20 November 2014 and the plaintiff ought to have anticipated his financial circumstances and their imminent change. It is now too late to argue impecuniosity by reason of the prejudice to the defendants.

43 Sixth, there are numerous outstanding costs orders in favour of the defendants. The court declined to order immediate taxation and enforcement of those orders due to the imminent trial. In the circumstances of an adjournment of the trial this decision should be revisited.

44 Seventh, by failing to pay the jury fees the plaintiff has lost the right to trial by jury. The plaintiff asserts disingenuously that 26 witnesses will give evidence and the trial cannot be completed in 10 days. On 21 November 2014, when the plaintiff was seeking to maintain the trial date, he stated that the number of witnesses could be cut down so that the trial would finish within 10 days. For my part, I considered that the trial ought not take any longer than 5 days. Prospective legal practitioners have not materialised and the plaintiff is likely to ultimately represent himself at trial. The proceeding should be tried as a cause.

45 Eighth, the plaintiff's complaint that it is too late to subpoena the Bishop (the first defendant) was irrelevant, as the Bishop will give evidence for the defendants.

46 Ninth, the proceeding was issued in January 2013 relating to events occurring in early 2012, and the defendants are still waiting for the opportunity to clear their names. The defendants suffer prejudice from denial of the opportunity in open court to refute the allegations that the plaintiff makes against them, from continued exposure to the costs of unmeritorious applications at the hand of an impecunious plaintiff and through ongoing delay. There is much force in the submissions of the plaintiff, and through ongoing delay.

47 There is much force in the submissions of the defendants.

48 Starting with the apparent bone fides of the plaintiff, the defendants contend that the plaintiff is in breach of court orders, in breach of overarching obligations under the Civil Procedure Act and has engaged in collateral attacks on the defendants and their legal representatives. The plaintiff responded that the behaviour to which the defendants direct attention was a consequence either of a misunderstanding on his part or advice from court registry officers. No deponent of any affidavit has been cross-examined on this application. I am prepared to accept that there is some prospect of misunderstanding on the part of the plaintiff of some of his obligations because he is not a lawyer. I do not accept the second part of the explanation. It was put from the Bar Table, not made on oath, and it is inherently improbable that court registry officers would give the advice in the terms for which the plaintiff contends. In particular, unless it was stated on oath, identifying the precise details of the conversation, I do not accept that an official in the Court of Appeal registry would advise Mr Trkulja that there was a period of 28 days to file an application for leave to appeal if that registry official had been informed that within that 28 day period the trial of the proceeding was listed to be heard.

49 It is apparent from correspondence between the parties and from statements made to me on 21 November 2014, that the plaintiff understood the orders that were made on that day. I refer in particular to the defendants' solicitor's letter to the plaintiff of 26 November 2014, which explained the urgency of any application to vacate the trial date on the basis that the plaintiff intended to appeal my ruling. The solicitors also explained what needed to be established in order to obtain leave from the Court of Appeal. The defendants' solicitors also wrote to the plaintiff at length about his application to enjoin Ms Schoff QC from accepting the defendant's brief at trial.

50 However, rather than initiate an application in accordance with the procedures that were explained by the defendants' solicitors, the plaintiff broadcast an attack on the defendants' counsel by emails that were not confined, in their distribution, to the plaintiff and the defendants' solicitors, but included my chambers, many other persons with no apparent interest in the litigation, and media organisations. Because my chambers are on the distribution list for these communications, which in itself is inappropriate, I am aware that some recipients of these communications consider themselves to have been spammed.

51 Ordinarily the court would give weight to the application of its scarce resources when a second trial date is to vacate in the circumstances that I have described. In this case there are some unusual considerations.

52 There is an appreciable risk that the trial may take longer than 10 days, although that risk may be ameliorated if the trial was by judge alone. I will come back to that issue. Although I entertained some preliminary concern as to whether by reason of the pressure of other business on the court, there would be a judge available to commence this trial on 8 December 2014, I have established that there is a judge so available to hear this trial on that date. There is no issue about a want of resources on the part of the court involved in my decision. The trial date of 8 December 2014 was set to meet the convenience of counsel on both sides, neither of whom are now engaged in the proceeding. The trial date was set at a time of the year when the court does not normally list jury trials. There was and remains a risk that the judge will refuse to commence the trial without a guarantee that the trial would be completed within 10 days. Plainly, the plaintiff will not now give the guarantee that he was prepared to give on 21 November 2014. On this topic the plaintiff has approbated and reprobated. I cannot feel assured that the listed trial date is appropriate for a trial by a jury in this court and that the efficient use of the court's resources can be properly achieved by a trial commencing on this date.

53 On the other hand, as matters presently stand, the plaintiff has lost his right to a trial by jury through his failure to pay the setting fees and jury fees in accordance with my order of 21 November. Of course the plaintiff seeks to vary that order in order to retain his right to trial by jury by delaying the trial until his financial position improved.

54 There is apparent, on the face of the allegations, a close connection alleged between the plaintiff's claim made against the Bishop and the claim against the remaining defendants. Ordinarily such claims would be heard together. I anticipate that this connection would be stressed on an application for leave to appeal. I do not think that the connection is of any relevance because the plaintiff's claim against the Bishop is both untenable and barred for the reasons set out in my earlier ruling. Although it properly is a matter for the Court of Appeal to assess, it has not been asked to do so. The plaintiff has chosen not to seek leave to appeal before the trial date relying on the fact that the time for an application does not expire until late December.

55 I can see no basis for the Court of Appeal to conclude that the plaintiff has a tenable claim against the Bishop and that the amendment should have been allowed. Further, the defendants correctly assert that there is no stay, either of my orders or of the progress of the proceeding to trial. No stay is affected by the making of an application for leave and no stay exists in the present circumstances.

56 As I have noted, the plaintiff's explanation for not filing an application for leave to appeal is simply that he was not required to do so at this stage. Irrespective of what was said to the plaintiff, I do not accept the explanation that the plaintiff, knowing that he faces a trial commencing on 8 December, believed that he was not required to file an appeal against an order refusing an amendment to his statement of claim until after that trial. The days are long gone when litigants and their advisers are permitted to wait until the last moment when any permitted step in a proceeding can be taken irrespective of any countervailing considerations. That is exactly one of the aspects of litigation culture that will not continue in this court.

57 The plaintiff was in breach of his overarching obligation under s 25 of the Civil Procedure Act to use reasonable endeavours to act properly and minimise delay. The plaintiff's explanation - that he should not have acted properly to bring this matter before the Court of Appeal prior to 8 December because in theory under the Rules he has 28 days in which to make an application for leave to appeal - was fatuous. I do not accept it. There was no basis shown to me to accept that there was any realistic chance that leave to appeal would be granted.

58 Rather, the refusal to bring that application constituted evidence that the plaintiff is not using reasonable endeavours to act properly and to minimise delay. Either that be the case or it must be the case that the plaintiff's statement which outlined earlier of his desire to maintain the trial date and to have his date in court on 8 December must have been misleading.

59 Equally, the plaintiff offered no satisfactory explanation for his failure to bring on for prompt determination his application to enjoin Ms Schoff QC.

60 The true explanation must be that the plaintiff is no longer committed to the trial date on 8 December as he was on 21 November, possibly because, as I suggested in my earlier ruling, he sees his true dispute as being with the Bishop who is no longer a party.

61 Each of these considerations also founded possible concerns that the plaintiff breached s 21 of the Civil Procedure Act by misleading the court in expressing his commitment to the trial date and paying court fees, his commitment to briefing counsel and solicitors and his commitment to completing the trial commencing on 8 December 2014 within 10 days, particularly as those expressed commitments persuaded me to reject the defendants' application under r 63.20.1. However, my concerns that the plaintiff may have engaged in misleading conduct were not put directly to the plaintiff or his counsel either in evidence or during submissions, and I make no finding today of a breach of s 21 of the Civil Procedure Act although I will return to the issue of the immediate enforcement of interlocutory costs orders under the rule.

62 There are other considerations that are relevant to the discretion to vacate the trial date. I took into account that the plaintiff has not always been legally represented. Although I am satisfied that he has some access to advice and assistance and that he has some experience as a litigant, Mr Trkulja is not a lawyer, lacking both a lawyer's training and a lawyer's commitment to the proper ethical rules and duties that govern advocacy in the courts. At times he has displayed an attraction for engaging in forensic tactics without appreciating those rules and duties.

63 I entertained concerns that the plaintiff did not fully appreciate the need for available funds in advance of the trial in order to engage and instruct his lawyers. I am also concerned that the plaintiff had not properly appreciated the challenges and the workload involved in preparing for a 10 day plus jury trial in this court. It appears to me that the plaintiff's acceptance of the obligations to pay court fees and to pay lawyers may have been fortified by his settlement of other litigation and his impending receipt of the settlement proceeds without properly appreciating the immediate need for such payments.

64 Although the defendant submitted that the plaintiff knew of these facts from 21 November, with some reservations, I am prepared to give the plaintiff the benefit of the doubt; although he is an experienced self-represented litigant, the fact remains that he is a self-represented litigant. Financing litigation in this court is not always an easy task, especially for an impoverished individual. That said, on the basis set out in my earlier ruling there are some indications that the plaintiff perceived the real dispute in this proceeding to be about his humiliation by the Bishop, and simply sought to avoid the trial in order to chance his arm in the Court of Appeal. The plaintiff appeared to be slow in coming to terms with the consequences of my earlier ruling.

65 The defendants contended that the appeal is yet another futile application that exposed them to further unrecoverable costs, delay, and the sustained ongoing prejudice from exposure to the claims without the opportunity for vindication. The prospect was that the application to the Court of Appeal will cause delay before the trial can be relisted, and the proceeding will wait its turn in the queue before the allocation of a further trial date. The defendants contended that such prejudice simply cannot be relieved by an award of costs because the plaintiff is impecunious and any order for costs will be irrecoverable.

66 However, I consider that immediate payment of all outstanding costs orders, including costs orders that are yet to be taxed, would not completely, but could substantially alleviate the prejudice to the defendants. In reaching that conclusion, I have borne in mind what the High Court of Australia said in Aon about the limitations of costs orders in this context. I am satisfied that if an adjournment of the trial is granted, proper protections for the defendants can be achieved with conditions.

67 Against the considerations that were powerfully advanced on behalf of the defendants, I must balance three key considerations that are advanced for the plaintiff. First, the plaintiff wanted the trial to proceed but not as a cause in which he is self-represented. He was hampered by his financial position, but he now suggests he has a significant opportunity because a change in his financial circumstances is less than two months away. The defendants submit that I should be wary of other demands on the plaintiff's imminent change in financial position and there was merit in exercising caution in that respect.

68 Second, the adjournment of the trial would permit the plaintiff to finance a jury trial in which he is legally represented. An adjournment of the trial would truly cause an unreasonable waste of resources if the plaintiff does not take the present opportunity to obtain representation and ultimately appears unrepresented in a cause at a third trial date late in 2015. If the court is not persuaded that it is in the interests of justice to permit trial by jury because the plaintiff would be unrepresented, that outcome is distinctly possible. Such a trial could be held on 8 December 2014.

69 Third, the plaintiff was entitled to have the real issues in dispute adjudicated in a just and efficacious manner. The court's purpose is to facilitate the overarching purpose of the just, efficient, timely and cost effective resolution of the real issues in dispute between the parties. As part of that entitlement, the plaintiff wished to appeal my earlier ruling and bring the restraint application against the defendants' senior counsel. The crux of the application to vacate the trial date boiled down to the imminent change in financial fortunes that the plaintiff has urged me to accept will be significant.

70 Bearing in mind all of the considerations to which I have referred, on the one hand, I considered that the just determination of the proceeding, the efficient conduct of the business of the court and the efficient use of judicial and administrative resources favoured the plaintiff's application to adjourn the trial. On the other hand, the timely determination of the civil proceeding and dealing with the civil proceeding in a manner that is proportionate to its complexity and importance, and the amount in dispute, particularly from the perspective of the defendants, favoured the refusal of the application. That competing considerations can be balanced by conditions. That brings me to the issue of outstanding costs orders. Should I adjourn the trial, circumstances will have changed since I determined not to permit the defendants to tax and enforce interlocutory costs orders.

71 Balancing all the considerations that I have referred to, I am persuaded to adjourn the trial but I am only able to reach the conclusion that doing so is just to both the plaintiff and the defendants if that adjournment is on conditions. As I have said, it is pointless to inflict on the defendants the wasted costs of an adjourned trial or to require the plaintiff to conduct this trial as a self-represented litigant without the benefit of a jury, if the latter circumstance will simply arise again in the future.

72 Proper compensation to the defendants for their prejudice must be made before the plaintiff is entitled to another trial date, and any failure by the plaintiffs to make that compensation - that is, by the payment of all outstanding costs orders - could properly be regarded as a want of prosecution by the plaintiff of his proceeding. That conclusion must follow because the plaintiff is inviting me to accept that after the completion of the settlement of other proceedings, he will have sufficient resources to allocate to a trial of this proceeding and that he is anxious for his day in court.

73 It is implicit in this submission that the plaintiff intends to make available from whatever proceeds he is to receive under other settlements, sufficient resources for the proper conduct of this trial and will not apply such resources to his other financial needs. If the plaintiff chooses to apply his resources elsewhere, he will be unable to seek a trial date for this proceeding. I will direct that the plaintiff must pay all outstanding costs orders before the matter is refixed for trial. In doing so, I expect that the defendants will expeditiously tax such costs orders. If the plaintiff continues to be unable to seek a trial date, either for want of allocation of his resources to this proceeding, or for any other reason, he will face the prospect of dismissal of his proceeding for want of prosecution, or he will face the prospect that orders can be made against him under s 29 of the Civil Procedure Act.

74 In my earlier ruling I said, (at 44), that I was not persuaded having regard to the imminent trial and likely conclusion of the matter that I should grant leave under r 63.20.1 that those costs may be taxed and recovered immediately. In reaching that conclusion I considered the judgment of Hollingworth J in Dale v Clayton Utz No 3.[6]

75 The relevant rule represents a recent change to the procedure in relation to interlocutory costs orders and the background and circumstances are essayed by her Honour in that judgment. She concluded as follows:

Courts have recognised that the demands of justice may require a departure from the ordinary rule for one or more of three broad reasons; (a) because of the conduct of the unsuccessful party, (b) because of the likely delay before the final completion of the proceeding, and, (c) because the interlocutory application involves a separate or discrete issue.[7]

76 The plaintiff essentially seeks an indulgence that the trial be delayed until he receives the funds that would permit him to retain lawyers and pay for a jury. In my view the appeal and the injunction application are collateral. In the absence of a prompt prosecution of these applications, and in the explanation of their possible merit, they appear tactical. Either way they expose the defendants to further delay and costs that are each somewhat indeterminate.

77 There are two consequences of this change in the plaintiff's position. First, I am no longer satisfied that the plaintiff has conducted or intends to conduct himself in the future reasonably or with competence and diligence. Second, there will now be significant delay that will extend this proceeding into its third year, with the plaintiff still contesting the adequacy of his formulation of his case. By each of these consequences I consider that the proceeding falls squarely within the principles that are discussed in Dale.

78 I will grant leave for costs to be taxed immediately and enforced on or after 20 January 2015 in respect of the following costs orders. First, the costs orders that are stated in the defendants' solicitor's letter of 26 November 2014. That is Exhibit NSD4 to the affidavit of Nicola Sophie Drakeford affirmed 27 November 2014. Secondly, the costs orders in paragraph 6 of my order of 21 November 2014. Thirdly, costs orders made today.

79 I will add one further observation concerning the defendants' claim to the costs of 28 November 2014. The circumstances of the listing of the case for that day appear to be that the plaintiff's summons seeking to vacate the trial date was the subject of enquiries by registry officials as to whether that summons should be issued before Daly AsJ or before me. It appears that there may have been some confusion arising from statements made in a letter written by the defendants' solicitors. If that be the case, such confusion could only flow from the plaintiff's limited grasp of the English language. There is anything inappropriate in the expression of that letter. Nevertheless, the consequence was that the plaintiff's summons was listed for the next Major Torts directions day on 5 December 2014 that was too close to the trial date. It is a common practice for the registry to list applications in proceedings in the Major Torts list on a directions day and it may be that that practice influenced what occurred.

80 In any event, the application needed to be dealt with more urgently, when my chambers were contacted I indicated that I would hear the applications on Friday, 28 November 2014. It is common ground that the plaintiff did not appear and the various summonses were adjourned for hearing yesterday. Later on 28 November 2014, the plaintiff provided an explanation by a facsimile. In substance, the plaintiff explained that he did not learn about the hearing because his computer was not working and he did not receive relevant emails either from the court or the defendants' solicitors. In any event, he had attended a doctor's appointment at 10.15 am that day and that he only found out about the court hearing later in the day through examining his mail. I accept the plaintiff's explanation as to why he did not attend on that day. Subject to further submission from counsel on the question of costs, I will order that the plaintiff pay the defendants' costs thrown away by reason of the adjournment of the trial and the defendants' costs of the summonses before the court, but there will be no order as to the costs of the day on 28 November 2014.

81 In broad terms, and subject to any further submissions that counsel may make about costs or the form of the orders, I propose to vacate the trial date on 8 December 2014 and return the proceeding to the Major Torts List for further case management. I will extend the dates in paragraph 8, 9 and 11 of my orders of 21 November 2014. I will order that the plaintiff pay the defendants' costs thrown away by reason of the adjournment of the trial and that the defendants recover their costs on the summonses before the court. Subject to submissions in respect of the costs of the day on 28 November, I will order that there be no order as to the costs of the day on 28 November 2014. The summonses before the court are the plaintiff's summons of 25 November 2014 that seeks to vacate the trial date, the plaintiff's summons of 1 December 2014 that seeks that I disqualify myself for bias and the defendants' summons of 28 November 2014. The material relief sought by that summons is the application pursuant to s 10 of the Vexatious Proceedings Act. The defendants no longer press that I fix the costs of that application. Accordingly, as I am adjourning the application by paragraph 2 of that summons for relief under the Vexatious Proceedings Act 2014, I will reserve the costs of that summons.

83 What remains is an application that the basis of taxation for the defendants' costs of the summons of 25 November 2014 and 1 December 2014 be on an indemnity basis. I am conscious of the fact that the plaintiff is a litigant in person and that as a general rule a court will be more reluctant to make an order for indemnity costs against a litigant in person than against a represented litigant. However, that is not invariably the case and the prevailing circumstances may allow the court to overcome this reluctance and exercise its discretion in favour of indemnity costs. It is generally the case that matters that persuade a court towards indemnity costs, such as a lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits in unrepresented litigants. The courts recognise that a person's ability to seek redress should not be dependent upon their advocacy skills or their ability to pay for legal representation.

84 Having stated those matters, it is also the case that litigants in person can cause great hardship and expense to the other party by the way that allegations are made and through claims that are put that lawyers would recognise as being unreasonable or improper. The consequences can be that the other parties to proceedings brought by a self-represented litigant are exposed to greater expense than would ordinarily be the case. That is clearly the case in this litigation.

85 The question is whether the defendants have demonstrated that there are special circumstances here that would entitle me to depart from the usual basis for costs orders and to award costs on an indemnity basis bearing in mind the particular circumstances of Mr Trkulja being a self-represented litigant.

86 In that respect I have today made a number of relevant findings. I was satisfied that the application that I recuse myself on the grounds of apprehended bias should be refused. For the reasons that I expressed it was difficult to identify a clear basis for that application. It was an application that should never have been made and it was borne out of a spiteful response to the strike out of the tree incident claims against the Bishop. The court was assisted by counsel appearing under the Victorian Bar's Pro Bono scheme and, although allowance must be made for the limited opportunity afforded to Mr Mullen to prepare for the issues arising on this application, it was clear that Mr Mullen was respectful of his duties to the court and not attracted to present significant submissions on the bias application.

87 I considered the recusal application to be without any merit whatsoever. Further, I considered it to be an application that appeared to be made for a tactical basis. In my ruling of 21 November 2014, I expressed my reservations that the plaintiff might be seeking tactical advantage for his own personal reasons in pressing his claims against the first defendant. I did not then consider myself to be in a position to make a positive finding that the pleading amendments were pressed to gain a tactical advantage against the first defendant in the litigation. I stated that tactical advantage needed to be achieved in accordance with the rules rather than by an indulgence sought from the court. I was not satisfied that the plaintiff's application to bring the claim against the first defendant was made in good faith.

88 I have today expressed similar concerns that the plaintiff appeared attracted to taking tactical positions in this litigation. My concerns were that taking such positions without properly understanding the rules of conduct, both the ethical rules observed by advocates and the overarching obligations imposed upon litigants by the provisions of the Civil Procedure Act, resulted in conduct by the plaintiff that can be regarded, at the very least, as unreasonable. The significant feature of the conduct is not how it should be characterised from the perspective of the plaintiff. The plaintiff was, as I have already said, constrained by his lack of knowledge, training and experience in the law and it is not for that reason that he should be required to pay indemnity costs.

89 There are, however, significant ongoing expenses created for the defendants by reason of the unreasonable applications that have been brought by the plaintiff against them. The circumstances that now warrant the adjournment of the trial of the proceeding were present on 21 November 2014. Although Mr Trkulja has not sought leave to appeal, it is not on this basis that he has succeeded in adjourning the trial. Rather, it is because I recognise that within a short period of time he expects to be in a financial position to seek to vindicate his rights properly represented before a jury. The circumstances which lead to that conclusion were available and could have been explored before the court on 21 November. In that sense, I consider that the plaintiff's failure to raise those issues on that occasion created an unreasonable need for a further application to vacate the trial date. That further application was encrusted with a recusal application that lacked any identifiable merit, and an unwillingness to prosecute the assertion that counsel should be restrained before a court while pressing that complaint in broadly circulated email.

90 Bearing all of those considerations in mind, I consider that the costs of the two summonses issued since 21 November 2014, together with the costs they have been thrown away since 21 November 2014, have been unnecessarily imposed on the defendants and the defendants have been unreasonably exposed to those costs. The defendants have established special circumstances that entitle departure from the usual basis for taxation and to an award of costs on an indemnity basis, although that order will be confined to the period since 21 November 2014.

[2] Farrow Mortgage Pty Ltd (in liquidation) v Mendall Properties Pty Ltd [1995] VicRp 1; [1995] 1 VR 1, 5; Prince Jefri Bolkiah v. KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222, 237.

[4] [2011] HCA 48, [31]-33] (omitting citations).

[5] (2000) [2000] HCA 63; 205 CLR 337, 345 [8]

Vexatious Proceedings Act 2014

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

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Legislation Cited (8)