Plaintiff v Defendants

2 In a series of nine proceedings in this court, Paul Durney seeks judicial review, pursuant to Order 56, of decisions that have resulted in his exclusion from the law schools at Victoria University and Deakin University. I have set out the detail of the proceedings in an earlier ruling made on 19 November 2015, following Mr Durney's application in October 2015 to vacate his third trial date in February 2016 and these reasons should be read with those reasons (my earlier reasons).[1] There are four proceedings in respect of his exclusion from Deakin University and five proceedings in respect of his exclusion from Victoria University. Mr Durney's application succeeded and all proceedings were fixed for trial commencing on 5 September 2016.

3 Following delivery of those earlier reasons the proceedings were listed on 18 December 2015 for further directions. On that occasion, I directed that certain steps take place to prepare for the trial, and, in particular, to enable assessment of how to manage the hearing of the various proceedings together. I directed that the proceedings were listed for pre-trial directions on 11 July 2016 when those steps would have been completed. By the December order, for reasons that I will explain, some of the steps to be taken by the plaintiff were subject to self-executing orders, and on 11 July 2016, the defendants submitted that each proceeding stood dismissed as the plaintiff had not filed and served documents in breach of self-executing orders.

4 The relevant self-executing orders were to the following effect:

Unless the plaintiff shall have, by 30 June 2016, filed and served on all other parties a document called Points Of Claim, setting out each challenged decision in issue in the [Deakin University/Victoria University] proceedings, who made it, the approximate date of the decision, the reason the decision is challenged, and the paragraphs of the affidavit where the evidence about the decision is contained, the proceeding shall on and from that date stand dismissed.

5 I shall state some background before explaining what occurred at that directions hearing. What follows has largely been drawn from exhibits to Mr Durney's affidavits.

6 In 2006, Victoria University (VU) accepted Mr Durney into its LLB program. In July 2012, two exclusion decisions were made, at least one of which was a two week exclusion, although each exclusion was withdrawn on 13 August 2012. On 14 September 2012, Mr Durney was removed from the VU campus by police following an incident in the library. It appears that on 19 October 2012, Professor Dawkins (Vice-Chancellor and President) communicated to Mr Durney a decision to exclude him from the VU campus indefinitely pursuant to University Regulation 10.2. Professor Dawkins stated by letter that he was excluded from VU until he could provide independent assurance about his behaviour.

7 These matters are no longer relevant. This court, on 11 April, 2014, declared that decision to be invalid and of no effect.[2] However from December 2014, there were a series of incidents involving Mr Durney on the VU campus in the aftermath of this declaration. In particular, there were incidents surrounding Mr Durney's attempts to enrol for the 2015 academic year following the declaration that his exclusion was invalid that resulted in a decision to exclude Mr Durney from VU for period of 28 days pursuant to section 51(1)(b) of the Governance, Academic and Student Affairs Statute 2013. Professor Dawkins informed Mr Durney by letter dated 18 February 2015 that as a result of alleged incidents on 13-17 February 2015 he was excluded from the University for a period of 28 days.

8 Mr Durney promptly applied in the Practice Court for injunctive relief in respect of this decision and certain orders were made by Sloss J. A proposal that Mr Durney be given an off-campus enrolment came to nought. Interlocutory relief was ultimately refused. The procedural history of this application is set out on my earlier reasons.[3]

9 Meanwhile on 13 March 2015, Mr Durney was notified by Susan Young (Dean of Students) that she was considering whether to exclude him from VU pursuant to s 41 of the Statute on the basis of a number of incidents involving his behaviour on campus.

10 On 17 March 2015, Professor Dawkins wrote to Mr Durney providing particulars (with documentation) of eleven incidents from 24 October 2012 to 17 February 2015, and notifying him that he was the proper person to consider whether to restrict Mr Durney's access to VU for an extended period of time pursuant to ss 47 and 51 of the Statute and that he proposed to exercise that power. Professor Dawkins invited Mr Durney to respond by 25 March 2015 and extended the interim exclusion of Mr Durney for a further for 14 days to 1 April 2015.

11 Mr Durney responded to Ms Young and Professor Dawkins respectively on 26 and 29 March 2015.

12 On 31 March 2015, Ms Young informed Mr Durney of her decision to exclude him from VU. Her decision, pursuant to s 41 of the Statute and Regulation 3(e) of the Exclusion for Safety Reasons Regulations excluded Mr Durney from all VU campuses indefinitely; meaning that he ceased to be a student and was permanently barred from re-enrolling in any unit or course indefinitely (the Young exclusion). That decision took immediate effect. It was based on a finding that Mr Durney had engaged in a sustained pattern of behaviour that constituted a health and safety risk to other students and staff on the campus and to Mr Durney. The letter also noted that a previous decision to exclude Mr Durney that permitted him to continue his studies off-campus had been ineffectual. One effect of the decision was to render futile the interlocutory challenge to Mr Durney's interim exclusion.

13 On 1 April, 2015, Professor Dawkins informed Mr Durney of his decision to exclude him from VU indefinitely with immediate effect (the Dawkins exclusion). This decision was made pursuant to ss 47 and 51 of the Statute and the general power pursuant to s 22. This decision was also based on findings made by Professor Dawkins that Mr Durney's behaviour had put the health and safety of students and staff, as well as that of Mr Durney himself, at risk when on campus.

14 In each case, the decision maker stated that the decision could possibly be changed in the future, on satisfactory evidence that Mr Durney no longer posed a threat to the health and safety of students and staff. VU offered to pay for an independent assessment by an appropriately qualified practitioner of the University's choice of Mr Durney's behavioural issues, but that offer has not been taken up.

15 Mr Durney sought to appeal the decision of Ms Young, but his appeal was out of time. It is not clear whether any appeal was initiated against Professor Dawkins' decision of 1 April. However, Mr Durney issued two originating motions seeking judicial review of each of those decisions, being proceedings numbered 02898 of 2015 and 02899 of 2015. I will later explain that one of these proceedings was never served and stands dismissed by the operation of a different self-executing order to that set out above. Mr Durney has not applied for reinstatement.

16 Mr Durney was not ready to proceed to trial on the allocated trial date in February 2016. I have drawn Mr Durney's attention to the significance of delay in seeking judicial review of these decisions.

17 I have not, without the benefit of submissions, identified any other matter that could properly be the subject of O. 56 proceedings. I have not identified the basis for any party other than VU to be a party to proceedings in respect of each of these decisions. Further, it is plainly futile to maintain applications for relief under O. 56 in respect of interim exclusion orders that preceded the principal exclusion orders notified to the plaintiff by Ms Young and Professor Dawkins.

18 After his initial (invalid) exclusion from VU in 2012, Deakin University (DU) accepted Mr Durney into its LLB degree program in 2014 and he enrolled in 1 unit of study for trimester 1 of that academic year.

19 On 11 April 2014, Mr Selway (Vice-President, Enterprise) informed Mr Durney of his exclusion from DU for 14 days due to unacceptable conduct and standard of behaviour on four separate occasions in the University library (Burwood Campus). That exclusion (the Selway exclusion) expired on 26 April, 2014. Mr Durney's application for review of the interim decision (the Selway exclusion) supported by an 18 page submission was considered by Professor den Hollander, who concluded that the decision, an emergency response, was valid and had not been revoked but rather had expired on 25 April 2014.

20 In the meantime, on 16 April 2014, DU notified Mr Durney of three allegations of general misconduct to be considered by the Faculty Student Misconduct Committee on 9 May 2014. Mr Durney neither made a written submission nor attended the hearing and the committee found the allegations of general misconduct proved and excluded Mr Durney from DU for 4 trimesters of study (the Brisdon exclusion). On 2 June 2014, Mr Durney filed an appeal against this decision supported by a written submission. The University Appeals Committee chaired by Professor Kingsbury dismissed the appeal, its reasons communicated to Mr Durney by letter dated 16 June 2014.

21 On 5 June 2014, Dr Brisdon (Chair, Faculty Student Misconduct Committee) notified Mr Durney of further allegations to be considered by the Student Misconduct Committee at a hearing on 23 June 2014. This hearing was later rescheduled to 14 July 2014. As Mr Durney had issued proceedings for judicial review of each of the Selway exclusion and the Brisdon exclusion, the Student Misconduct Committee deferred its consideration of these further allegations until a ruling was given by the Supreme Court in Mr Durney's injunction application in those proceedings. Although interlocutory relief was not refused, Mr Durney was offered a trial on his proceedings in respect of the DU exclusions, fixed for October 2014. Perversely, Mr Durney appealed against the decision of Daly As J to fix an early trial date as had been recommended by several practice court judges. In October 2014, Mr Durney declined to proceed for final relief and pressed his application for interlocutory relief, which McMillan J refused.[4] The trial of the proceedings was re-fixed for May 2015.

22 On the afternoon of 23 June 2015, the DU Student Misconduct Committee reconvened to deal with the deferred further misconduct allegations. On 23 June 2015, I refused Mr Durney's application to restrain that committee from dealing with those allegations. The Student Misconduct Committee met and determined to exclude Mr Durney (the Ferrer exclusion) and an appeal hearing was apparently refused. However, there are no documents exhibited to any of Mr Durney's affidavits in respect of either the 23 June 2015 exclusion decision or the subsequent attempt to appeal it.

23 Again, I have not, without the benefit of submissions, identified any other matter that could properly be the subject of O. 56 proceedings. I have not identified the basis for any party other than Deakin University to be a party to each of these proceedings. Further, it is plainly futile to maintain applications for relief under O. 56 in respect of interim exclusion orders, such as the Selway exclusion, that preceded the principal exclusion orders notified to the plaintiff.

24 It appears that applications for judicial review of four decisions are all that could, subject to other considerations, be permitted to proceed to trial. Those decisions are:

(c) The Brisdon exclusion (proceeding 4260); and,

25 Initially on 24 March 2015, points of claim were ordered in some proceedings. Points of claim were necessary to identify decisions properly subject to judicial review and the evidence and submissions that related to such decisions from the morass of irrelevant material found in the plaintiff's supporting affidavits. That order also provided, with the consent of the defendants, that Mr Durney could, in formulating his points of claim, challenge any decision of a defendant made after the issue of the originating motion, but prior to 30 June 2015. Had Mr Durney adhered to this direction, the multiplicity of proceedings would have been avoided and his application may have been confined to the substantive decisions that superseded temporary or short-term exclusions.

26 There were four proceedings that Mr Durney had issued but not served during 2015. His reasons for doing so were unsatisfactory and compromised case management of his disputes with the two universities. On 3 September 2015, I ordered in proceedings 01700, 02501, 02898 and 02899 that unless Mr Durney served the originating motion and the affidavit in support by 25 September 2015, or filed an affidavit identifying what reasonable steps had been taken to effect such service, those proceedings would, on and from that date, each stand dismissed.

27 I was not persuaded that there was any good reason for the court to do other than determine Mr Durney's challenges to all decisions at the one time or in consecutive hearings. I intended that all proceedings, or such of them that remained extant, were to be managed together before the same judge at the same time, and were to be managed as two sets of challenged decisions (referable to each university). I proposed that, subject to further review once the issues were clear, the trial of proceedings would involve two hearings to take place consecutively before the same judge, one in respect of all challenged decisions made by one university and the second hearing in respect of the other university.

28 Mr Durney failed to serve those proceedings in breach of that self-executing order made and the four proceedings stood dismissed from 25 September 2015. When the proceedings next returned for directions on 14 October 2015, I offered to re-instate the proceedings if Mr Durney undertook to serve them. He debated the proposed requirement that he give an undertaking as a condition of reinstatement. The following exchange occurred.

HIS HONOUR: What I want to discuss at this stage is what we're going to do about the proceedings that have not been served. If you give me an undertaking that you will serve those proceedings by next [...] Thursday, I will reinstate them.

MR DURNEY: I'm not able to serve it this week.

HIS HONOUR: Why not?

MR DURNEY: I have other commitments and I certainly will not be giving an undertaking. I'm more than happy to give my word that it will be served, but I'm certainly not gunna give an undertaking unless the defendants are also held to an undertaking to serve all documents.

HIS HONOUR: It's - -

MR DURNEY: I mean, we have to have a level playing field.

HIS HONOUR: It's not going to occur on that basis. If you do not give me an undertaking to serve them, then they will remain dismissed.

MR DURNEY: So, we're going to fuck around in the Court of Appeal. I mean, that's - -

HIS HONOUR: We're going to what, sorry?

MR DURNEY: We're going to fuck around in the Court of Appeal then.

HIS HONOUR: Mr Durney - -

MR DURNEY: This has just been - -

HIS HONOUR: This - -

MR DURNEY: - - - arrogant and stubborn.

HIS HONOUR: This is not a pub. If you can't use proper language, you won't participate in any further hearing, I'll just make appropriate orders and - -

MR DURNEY: Well, you make all your orders - -

HIS HONOUR: You - -

MR DURNEY: - - - behind the scenes without allowing me any opportunity to make submissions.

HIS HONOUR: Mr Durney - -

MR DURNEY: So, why would it be any different?

HIS HONOUR: - - - there are reasons that explained why that occurred. All that happened on that prior occasion was that you decided it didn't suit you to turn up.

29 That exchange was not untypical of what has occurred at prior directions hearings. A different approach was then tried.

HIS HONOUR: All right, let's approach it in a different way. You pick a date when could you serve these documents by.

MR DURNEY: I would certainly say within, given the Christmas break, within the month.

HIS HONOUR: So, say by 18 January?

...

HIS HONOUR: From 4 January, so from 4 January to 18th there will be an opportunity?

MR CLARKE: Yes.

HIS HONOUR: Is that convenient for you Mr Durney?

MR DURNEY: Um I can make it convenient.

HIS HONOUR: Yes. So you will serve those documents within that time?

MR DURNEY: I will. If I can do it this week I will. If I can't find a gap to do it this week I'll certainly do it before the 18th.

HIS HONOUR: Well, in that case I will make an order setting aside the earlier orders that dismissed those proceedings and reinstating them. And I will make a second order that if they have not been served by 18 January, 2016, then they will stand dismissed.

30 The next issue was trial preparation, and Mr Durney was again asked about points of claim that set out each of the impugned decisions. The initial order for points of claim made on 24 March 2015 required that they be served by 31 August 2015. A further order was made on 3 September 2015, at Mr Durney's request, extending the time for preparation of his points of claim to 12 October 2015. Mr Durney did not attend court on 3 September 2015 and the consequences of his non-attendance were argued on 14 October 2015 and dealt with in the manner explained in my earlier decision. I reminded Mr Durney that at the preceding directions hearing he had said that he would be able to work out a timetable whereby, within his own capabilities, he could complete this document. As the trials had been rescheduled for 4 September 2016, Mr Durney had ample opportunity to attend to this task.

31 It is convenient to repeat what I had earlier explained was required.

Mr Durney's points of claim should identify following information, separately for each University, and each decision. The document must be organised chronologically by reference to the decision that he challenges. His points of claim should:

(i) identify the challenged decision;

(ii) identify the decision makers;

(iii) state the grounds upon which the decision is challenged;

(iv) identify both the affidavit, and the particular paragraphs within it, that set out the material facts in respect of that particular decision; and,

(v) where Mr Durney has already filed a submission in respect of a particular decision, identify that submission and the particular paragraphs with in it that state his submissions in respect of that decision.

32 Mr Durney now stated that anticipated criminal proceedings that were in some way related to the exclusion decisions would delay his capacity to serve his points of claim. Why that would be so was unclear as the criminal charges against Mr Durney were, possibly, predicated on his status as a trespasser on a university campus by reason of an exclusion order. Again, Mr Durney was invited to identify a timetable for preparation that accommodated the limitations of his disability and his other commitments. Yet again the purpose and form of the points of claim was explained to Mr Durney to demonstrate that the document would serve as a summary and index to the affidavits that he had filed and was neither intended to be, nor ought be, a complex task.

33 Mr Durney insisted 'It's all abundantly clear'. However, he nominated 30 June 2016 as the date by which he could prepare further affidavits and the points of claim. Although six months appeared to be an inordinately long time for the task, the defendants were prepared to respond in the period remaining before the trial commenced and, because of Mr Durney's past failures to comply with directions for points of claim, the orders were self-executing.

34 It can fairly be said that my decision about trial management, particularly that all proceedings in respect of both universities would be determined following consecutive hearings, expanded the scope of the points of claim, but I made due allowance for the enlarged task when setting the deadline of 30 June 2016. Mr Durney was permitted adequate opportunity to ensure that the timetable was within his capacities because the deadline set was his choice. Mr Durney stated:

MR DURNEY: It's listed for September. That was what I said I was capable of achieving and I remain of that view. I'm not going to shy away from that. If I can't be ready by that time, that's my problem.

HIS HONOUR: Mr Clarke's point is that the prospect of substantial court time being consumed dealing with the way that this case has been prepared by you might be avoided or reduced if you were to go to the effort of producing the points of claim that we've been discussing that identifies how your case is put in relation to each proceeding and each decision.

MR DURNEY: And it can also be assisted by the university actually telling me what all the applications against me are, who made the decisions and when they made those decisions.

HIS HONOUR: Well, it has been done.

MR DURNEY: And I can then add to the ones that they've missed out on.

35 It is common ground that Mr Durney did not file and serve his points of claim by 30 June 2016 and each of his proceedings now stands dismissed. The applicable principle is that at the expiration of the time for compliance fixed by a self-executing order, unless the party in default has complied with the order, the plaintiff's proceedings stand dismissed. Dismissal is automatic on the plaintiff's failure to do what the order requires within the time fixed.

36 At a directions hearing on 11 July 2016, Mr Durney admitted that he had not complied with the self-executing orders in accordance with their terms. He explained that he had prepared, but had not sworn, filed or served an affidavit that explained the reasons for his default. He said that he had a draft of the affidavit in court and would swear to its contents either from the bar table or from the witness box and that an application to reinstate the proceedings could be dealt with immediately.

I sent through an email to your associate informing the court at the earliest possible opportunity that I had a quick onset and extreme anxiety episode which I'm still going through that had me on the verge of jumping off a balcony with the intent of ending my life. I have prepared an affidavit that I've not yet had an opportunity to swear that deals with that. Um, that it was necessary for me to sedate myself heavily over the following days.

Um, as a result of being on Valium for that amount of time one has to withdraw from it, you try and withdraw from Valium, um, cold turkey, you - one of the side effects that I get is basically anxiety attacks and you're back where you started from. Um, I'm still in the process of coming off that Valium which I hope to complete in the next couple of days.

38 Mr Durney has been repeatedly informed that Judge's chambers do not operate as a post box, communications with the judge are to occur in open court and that adjournments must be negotiated with the defendants' solicitors. However, he has consistently refused to deal, let alone cooperate, with the defendants' solicitors. This has been a long-standing problem in case management of these proceedings.

39 Mr Durney was invited to consider how to get his proceedings back on track, but he responded that he was assuming the court was just going to throw it all out because that's what it 'has been doing all the last 18 months, and we're just going to waste time in the Court on Appeal.' I informed Mr Durney that I would give him an opportunity to make an application and that I would hear it on 19 July 2016, with a view to maintaining the trial date of 5 September 2016 if his application was successful. As I have explained to Mr Durney on numerous occasions, relief by judicial review of administrative decisions is discretionary and ongoing delay could be significantly prejudicial to his prospects, affecting the ultimate discretion as to whether to quash the decision and return the matter to the decision maker for reconsideration.

40 On 11 July 2016 Mr Durney orally applied to set aside these judgments to permit his proceedings to go to trial on 5 September 2016, the date currently fixed. Mr Durney submitted that the application could be dealt with immediately without threatening the time remaining for him to concentrate on preparation for his trial.

41 The defendants opposed the application for reinstatement and, plainly, under Mr Durney's proposal they would not have the opportunity to consider, or obtain instructions about, the matters disclosed by the draft affidavit that was yet to be verified and served. I informed Mr Durney that the application could not now be dealt with immediately on that day.

42 That application was adjourned to 19 July 2016 to enable Mr Durney to swear and serve, by 12 July 2016, the affidavit that he stated was prepared and simply needed to be sworn. Service of a summons seeking that relief was dispensed with.

43 Moreover, in argument a factual dispute had emerged about whether the plaintiff had served the originating process for four of the proceedings. A separate self-executing order dismissing those proceedings would also operate if they had not been served by 18 January 2016.

44 Mr Durney stated in a short-served affidavit that he had sent another person to the defendant's solicitors office to effect service and had been informed that she had done so for each of the proceedings. The defendant's counsel's instructions were that not all proceeding had been served but the defendants wished to have time to complete appropriate investigations. In the context of this factual dispute, the question of whether the four proceedings that were subject to that self-executing order stood dismissed could not immediately be determined.

45 I directed that the defendants indicate by an outline of contentions precisely what relief was sought against Mr Durney, and why.

46 Before the directions hearing on 11 July 2016 was completed, the following exchange occurred:

HIS HONOUR: Please sit down Mr Durney, I'm sick of you talking over the top of me.

MR DURNEY: I'm sick of wasting my time.

Mr Durney then left the bar table and moved to the courtroom door.

HIS HONOUR: No you wait I haven't made orders for you.

MR DURNEY: I'm sorry I've got a hanging to attend.

47 Mr Durney then left the courtroom and the hearing continued in his absence. I delivered the following reasons ex tempore.

HIS HONOUR: I will just, in order to complete the transcript, note the following. The court is satisfied by reason of the admissions made by the plaintiff, Mr Durney, that he did not file and serve on all other parties his points of claim by 30 June 2016 as required by paragraph 1 of the order that I made in each proceeding on 18 December 2015. In those circumstances, the prima facie of paragraph 1 of those orders is that the proceeding shall, on and from that date, stand dismissed.

Mr Durney has communicated with the court that he was unable to meet that deadline because on the evening of Wednesday 29 June he suffered a significant anxiety episode while finalising the relevant documents that resulted in a suicidal episode requiring heavy sedation. As a result he had not been able to finalise the relevant documents by 30 June.

He indicated in this email that an affidavit in relation to what he calls the anxiety episode will be filed either on 1 July or early the following week. Mr Durney has indicated that he has prepared that affidavit but it is yet to be filed and served and it appears from submissions that he made that he was seeking to rely on that affidavit in an attempt to reinstate the proceedings that have been struck out pursuant to the orders made on 18 December 2015.

In the circumstances I am prepared to entertain an application from Mr Durney for the reinstatement of the proceedings on the basis of proper material. Accordingly I propose to adjourn the proceedings to Tuesday, 19 July 2016 at 9.30 am to enable Mr Durney to apply to reinstate the proceedings. I waive the necessity for Mr Durney to file a summons but it will be necessary that he file and serves an affidavit in support.

I was proposing and I will direct that he file and serve that affidavit by the close of business tomorrow, 12 July 2016. However as the transcript records Mr Durney elected not to continue to participate in this directions hearing this morning and left court before orders were pronounced. A copy of this order will be forwarded to him by email and by post. Whether he acknowledges receipt of it will remain to be seen.

I will also order that any application by any defendant for dismissal of any proceeding shall be identified by an outline of contentions to be filed and served by 15 July 2016. I take it that Mr Durney still refuses to cooperate with communication by email?

MR CLARKE: I believe that's right Your Honour. I did observe from the most recent affidavits that his residential address appears to have changed to [redacted]. Previously it was an address at [redacted], Your Honour.

HIS HONOUR: Well it may be prudent to arrange for someone to personally serve this document on Mr Durney or at least to serve it on those two addresses in [redacted] and [redacted].

MR CLARKE: We'll do that Your Honour.

HIS HONOUR: We've been through this in the past, where he will not acknowledge receiving things and come along on Tuesday and say he hasn't seen it.

48 The following orders were made in each proceeding:

1. The plaintiff is granted leave to apply for reinstatement of the proceeding.
2. By 5:00PM on 12 July 2016, the plaintiff shall file and serve an affidavit in support of any such application.
3. By 5:00PM on 15 July 2016, any defendant applying, in response, for the dismissal of the proceeding shall file and serve an outline of contentions and any affidavit in support.
4. The proceeding is adjourned to 19 July 2016 at 9:30AM.

49 Between 11 and 19 July 2016, Mr Durney did not file or serve any affidavit or other material. Copies of the authenticated orders, noted in the preceding paragraph, were sent to Mr Durney from my chambers by email and by express post to an address in [redacted], noted as his address for service in originating process, and an address in [redacted] that was revealed by his most recent affidavits. An affidavit in each proceeding sworn on behalf of the defendants by Cameron John Oxley was filed prior to the return date.

50 The court was opened at 9:45 am[5] on 19 July 2016 and Mr Clarke announced his appearance for the defendants in all proceedings. Mr Durney was not present and did not answer when called outside court. The application commenced in his absence and he arrived in the court room a few minutes later.

51 Mr Durney stated that he was unable to swear and serve an affidavit to support his application to set aside the orders because -

MR DURNEY: Given your incorrect claim as to what the legal test was that I had to meet, I had to spend some time making sure that my understanding of the law was correct, ah before I could file that affidavit. In the meantime, I've received orders from you that have thrown it out anyway. Umm, - - -

HIS HONOUR: You've received what?

MR DURNEY: Orders from you that have thrown it all out anyway so I'm just kinda - - -

HIS HONOUR: What do you mean by that?

MR DURNEY: Well I received orders when I got home on Friday night that apparent now I had to have filed the stuff some days before hand, which meant it was all out anyway. So the easiest thing is just to - - -

HIS HONOUR: Well that's because you walked out of the hearing - - -

MR DURNEY: - - - make an application

HIS HONOUR: - - - before it had been completed. That didn't mean we were going to stop.

52 I had earlier suggested that on the application the merits of the various claims might become relevant, as it could possibly be futile to reinstate some or all of the proceedings. Mr Durney asserted that the proper test was whether there was an intervening event that made it impossible for the party in default to meet the deadline. Apparently, his research did not permit him to cite the authorities, of which he said there are 'about eight cases', that supported this submission.

53 Mr Durney then wrongly asserted that he had never made an application to reinstate the proceeding and that the matter had been adjourned to 19 July 2016 to permit the defendants to serve further affidavits, which they had not done. The defendants disputed that the affidavits had not been served but did not have an affidavit of service presently available. The defendants' counsel explained that the defendants' further affidavits had been served at the same places to which the court sent the authenticated orders, except by email and process server rather than by express post. It seems unlikely that Mr Durney would have received the orders from the court on the Friday night but not the affidavits posted by the defendants' solicitors, but I need not resolve this conflict.

54 Mr Durney declined to make the application to reinstate the proceedings or any application to adjourn the application to a time that suited his convenience. Mr Durney stated that he would make an application at a later date because he had other priorities requiring his attention over the next few days. He announced that he will file an further application 'to have all of these orders set aside and get the thing back on track. It's just become a complete mess.'

55 Having noted that Mr Durney did not intend to press any application on the court, I invited the defendants to make any further application and the defendant's applied for the costs of the proceedings. When I indicated that the defendants' could make that application, Mr Durney left the bar table towards the door of the court to leave. The following exchange occurred.

MR DURNEY: I trust the court will send me the transcript, Your Honour.

HIS HONOUR: Let the transcript record that Mr Durney has elected of his own volition to leave the court and not participate in this hearing - - -

MR DURNEY: Because there will be an application made to overturn this- - -

HIS HONOUR: - - - that despite the fact that you're leaving Mr Durney - - -

MR DURNEY: - - - that's a premature decision.

HIS HONOUR: - - - the application will continue to be heard. There's no reason why you can't stay and participate in this application, you're choosing to leave. It is a matter for you.

MR DURNEY: All right, what can I participate in, nothing I say is believed or accepted. We have no affidavit or evidence of Mr Clarke on anything, and yet everything I say just gets to be thrown out.

HIS HONOUR: Mr Durney - - -

MR DURNEY: What's the point? - - -

HIS HONOUR: - - - I think you'll find that anything you say will have difficulty making it to the transcript if you speak from the door. The appropriate place to address the court is from the bar table in front of the microphone - - -

MR DURNEY: And it's also appropriate that Mr Clarke file appearances - - -

HIS HONOUR: - - - it's just for the simple procedure of recording on the transcript what's been said - - -

MR DURNEY: - - - before he appears in matters, but that doesn't seem to be the case, does it? It's also appropriate that Mr Clarke provide affidavit material to support his claims, but that doesn't seem to be the case does it?

HIS HONOUR: Yes, Mr Clarke you were in the middle of making a submission, would you like to continue?

MR CLARKE: I note that Mr Durney has left the court, Your Honour.

56 Following a submission in which Mr Clarke outlined, on the transcript to assist Mr Durney on any future application, the objections that would be taken to any application to reinstate the proceedings, the defendants applied for costs.

57 There being no application to set aside the judgments and each of the proceedings standing dismissed, on the basis that costs ought to follow the event, I ordered that in each proceeding the plaintiff's application to reinstate the proceeding be dismissed without adjudication on its merits and the plaintiff pay the defendants' costs of the proceeding, including reserved costs.

58 Although the proceedings remain dismissed for want of any application to reinstate them, which will result in the trial date being vacated, some further observations may be apposite, particularly as Mr Durney is self-representing and asserting that he suffers from a disability.

59 Plainly enough Mr Durney could suffer great prejudice if these proceedings remain summarily dismissed. However, there are pertinent considerations that affect the assessment of that prejudice. First, as Redlich JA stated in Brakatselos v ABL Nominees Pty Ltd:[6]

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

60 Secondly, it cannot be contended that Mr Durney will suffer great prejudice if these proceedings remain summarily dismissed if there is no real prospect that a court would grant the relief he seeks in each of the proceedings. Whether acting under r 24.06 or the court's inherent jurisdiction, a judge has a broad discretion as to whether or not to set aside or vary orders or a judgment obtained on a procedural self-executing order.[7] Relevant to the discretion is the question of futility. If there is no real prospect that a court would grant the relief Mr Durney seeks in each of the proceedings, it would be futile to set aside the judgments. I use the phrase 'no real prospect' in the sense that applies under s 63 of the Civil Procedure Act.[8]

61 Had Mr Durney applied to set aside the judgments the principles that apply may be simply stated.

62 Rule 24.06 of the Supreme Court (General Civil Procedure Rules) 2015 states:

The Court may set aside or vary -

(a) ...

(b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step.

63 The principles that apply on this application are clear, having recently been restated by Redlich JA, with Nettle JA and Davies AJA agreeing, in Brakatselos.[9] His Honour said:

Where a party is precluded from pursuing its claim or defence by reason of a self-executing order, the court has always had a wide discretion to set aside or vary the self-executing order if injustice flowed from its operation even though no fault was to be found in the making of the order at the time it was made. In Jorgensen v Slater & Gordon Pty Ltd, this court set out the principles governing the discretion to relieve a party of the consequences of non-compliance with self-executing orders:

... We respectfully agree with what was said by Newnes J in the Western Australia Supreme Court in MTQ Holdings Pty Ltd v Lynch as follows:

The authority of the court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a [self-executing] order can be avoided by showing that non-compliance with [that] order came about by the same sort of inattention or laxity that caused the order to be made in the first place.

We would also adopt what Newnes J said regarding the considerations which should ordinarily be brought to bear in considering the exercise of this discretion. The court should have regard at least to the following matters:

(a) the circumstances in which a self-executing order was made;

(b) the reasons for non-compliance with it;

(c) the prejudice to the defaulting party if relief were not granted; and,

(d) the prejudice to the innocent party if relief were granted ...

As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court's order. As Browne-Wilkinson VC said in Re Jokai Tea Holdings Ltd:

The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.

64 Redlich JA also observed, pertinently for Mr Durney's application:[10]

To deny the applicants the opportunity to contest the respondents' claims is a serious thing, but the applicants did not provide anything approaching a satisfactory reason to excuse their disobedience to the orders of the court. Moreover, in addition to the absence of a satisfactory explanation there were other considerations which bore upon the exercise of the discretion to refuse to set aside a self-executing order. Sections 25 and 26 of the Civil Procedure Act 2010 impose overarching obligations on the parties and their legal representatives to act promptly, minimise delay and disclose the existence of documents. Section 28 specifically provides that the court may take account of any contravention of these overarching obligations in exercising any power.

65 In these proceedings, the issue of delay is of particular significance as I have already noted. However, other overarching obligations also have application. Section 20 of the Civil Procedure Act requires that the parties cooperate in a civil proceeding with each other and with the court in connection with the conduct of that proceeding. Section 24 obliges the plaintiff to use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.

66 Most importantly, by s 16 of the Act, the plaintiff owes a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved. The court has been exercising its case management jurisdiction in these proceedings with particular regard to the problem of proportionality between costs and the issues in dispute on the one hand, and Mr Durney's status as a self-representing litigant with a disability on the other hand. Mr Durney's particular default impeded the court's ability to identify the key issues to be resolved in the proceedings from the morass of claims and complaints that are advanced in his materials. The orders for Mr Durney to prepare and deliver a summary statement of his points of claim across the proceedings was intended to allow the court, in consultation with the parties, to identify and summarise the key issues in dispute in each proceeding.[11]

67 This approach was required for seven reasons. First, Mr Durney has unnecessarily issued multiple proceedings against multiple parties. Some of the named defendants were not juristic entities. In respect of those against whom Mr Durney can maintain a claim, it is necessary to identify what claims are made against which defendants. Secondly, Mr Durney's material refers to claims that cannot appropriately be brought in the proceeding, for example, defamation claims and anti-discrimination claims. Thirdly, Mr Durney's material may be confusing administrative decisions properly amenable to judicial review with conduct in implementation of those decisions. Fourthly, Mr Durney is a self-representing litigant with a disability and the court, while maintaining its impartiality, ought to provide such assistance as is appropriate to a litigant in Mr Durney's position. Mr Durney is neither sufficiently knowledgeable nor experienced in litigation to be able to properly expose the issues that can legitimately be disputed in this proceeding. His affidavits are a morass of evidence, submission, irrelevancies and repetition. Fifthly, cost-effective management of the court's resources for both the efficient use of judicial and administrative resources and the efficient conduct of the business of the court is required. Sixthly, the timely determination of the proceedings was not being achieved by Mr Durney's management of them, particularly as it appears that his disability may be precluding him from making progress towards resolution of all issues. Finally, the defendants are entitled to know what the issues are that they must meet at a trial. Although I am not in a position to make findings on such matters, it appears to the court that Mr Durney could neither provide security for costs nor satisfy any costs order that he might be required to pay. Forcing Mr Durney to identify the real issues in dispute was required to stem the real prejudice being suffered by the defendants through the cost of continued exposure to their lawyers without progress towards resolution of the dispute.

68 In this context, as I informed Mr Durney on 11 July 2016, consideration of the merits of his proceedings is relevant to the questions of prejudice that inform the exercise of the discretion to reinstate. I reject his submission that he was misled as to the applicable test and consider that submission to be a furphy when what was required was an explanation for his failure to swear and serve the affidavit that he stated on 11 July 2016 had been prepared in support of an application to further adjourn the reinstatement application. These matters will require explanation should Mr Durney seek to file any further application to reinstate the proceedings. He will also need to file an affidavit identifying an address for service that complies with Order 6 of the Rules as the address in [redacted] no longer appears to be genuine.

69 The document headed Points of Claim dated 21 February 2011 that was filed on 7 July 2016, together with 6 full lever-arch folders of material comprising 3 affidavits and exhibits that appear largely repetitive of material already before the court in other affidavits did not, in any event, comply with earlier orders. This further affidavit material and the Points of Claim simply add to the morass of lodestone in which the plaintiff's jewels, if there be any, are to be found. The Points of Claim do not make any serious attempt to either set out the content of the plaintiff's allegations in a summary way as was requested, or provide an index or guide through the materials provided by the plaintiff to identify the issues to be answered by the defendants and decided by the court. Had there been an application for reinstatement, and assuming I was persuaded to reinstate the proceeding, I would not permit the Points of Claim to be filed or used by Mr Durney at trial and the six lever-arch folders of affidavits and exhibits would need to be considered for relevance and admissibility.

I certify that this and the 23 preceding pages, and the following 20 pages comprising Appendix A, are a true copy of the reasons for judgment of John Dixon J of the Supreme Court of Victoria delivered on 25 July 2016.

(according to the schedules attached for each proceeding)

(according to the schedules attached for each proceeding)

DURNEY v DEAKIN UNIVERSITY & ORS; DURNEY v VICTORIA UNIVERSITY & ORS

1 In a series of proceedings in this court, Paul Durney seeks judicial review, pursuant to Order 56 of decisions that have resulted in his exclusion from the Law Schools at Victoria University and Deakin University.

2 It appears that Mr Durney was enrolled at Deakin University in the Law School as a student in 2014. In proceeding S CI 2014 02984 and proceeding S CI 2014 04260, Mr Durney challenges two decisions dated 11 April 2014 and 13 May 2014 respectively to exclude him from the University campus on a number of grounds, including procedural fairness, failure to afford natural justice, bias, failure to consider a relevant factor, consideration of irrelevant factors, and ultra vires.

3 Originally, in proceeding 02984, by summons filed 16 June 2014 with the originating motion, Mr Durney sought declaratory relief, injunctive relief and other interim relief until all avenues of appeal have been exhausted. Before that application was determined, Mr Durney issued proceeding 04260 by summons filed 15 August 2014 with an originating motion that applied for substantially similar relief. The interlocutory relief sought against the defendants was to restrain them from enforcing their decisions to exclude him from the campus and facilities at the University including:

(a) an injunction to restrain the University from enforcing two decisions dated 11 April and 13 May 2014 respectively to exclude him from the University campus and to reinstate his rights as a student at the University and other related orders;

(b) a mandatory injunction to provide him with access to the University campus and access to the University's library collections and facilities; and

(c) an order in the nature of mandamus to compel the University to remove all references to the exclusions from Mr Durney's academic record.

4 After several applications by Mr Durney in the Practice Court for this relief that were not ready to proceed or were otherwise likely to exceed the maximum time limit, the Court expressed the view that it was preferable for an expeditious final determination of Mr Durney's proceedings rather than dealing solely with his interlocutory application. The court offered Mr Durney the opportunity of a trial in October 2014 of both proceedings. On 2 September 2014, Daly As J ordered that the trial of the two proceedings 02984 and 04260 be heard together on 28 October 2014.

5 I dismissed Mr Durney's appeal against the order of the Honourable Associate Justice Daly. He then declined the opportunity for a final hearing and used the hearing on 28 October 2014 to seek an interlocutory injunction to restrain the enforcement of an ongoing exclusion decision. Mr Durney sought orders that he be entitled to special consideration for assessment in respect of his disability needs while the proceedings were on foot. He also sought declaratory relief against the defendants in respect of the legality of the two decisions. This relief was refused by McMillan J,[12] and the proceeding was listed for trial in May 2015. At Mr Durney's request, that trial date was vacated and the trial is now fixed for 10 February 2016.

6 On 19 June 2015, by an application in a further proceeding by originating motion S CI 2015 03206, Mr Durney applied for an interlocutory injunction to restrain the conduct of a hearing of a Deakin University Faculty Student Misconduct Committee, scheduled to take place on 24 June 2015. I refused that application following a hearing on 24 June 2015. The Student Misconduct Committee hearing related to the exclusion orders previously made by Deakin University against Mr Durney, and challenged by judicial review, as I have outlined.

7 However, proceeding 03206 raised two further allegations of misconduct made against Mr Durney since the issue of the earlier proceedings. A letter of 8 June 2015 gave notice of four allegations of misconduct against Mr Durney. The first two allegations were about decisions made by the University in July 2014. The first incident arose from an interaction between Mr Durney and the Burwood Library staff on 6 May 2014, when Mr Durney was alleged to have harassed and intimidated library staff, and police were called. The second incident relates to an interaction between Mr Durney at the Vice Chancellor of the University's office on 7 May 2014, where Mr Durney allegedly refused to leave that office, and police were called.

8 A third allegation arose from events on 14 January 2015, when Mr Durney sent an email which allegedly contained a threat against members of the University Solicitor's Office. The fourth allegation relates to events that occurred on 21 August 2014 and 4 May 2015, when the plaintiff allegedly attended the University's Burwood campus in breach of a decision by the Faculty of Business and Law Faculty Misconduct Committee prohibiting him from doing so.

9 The proper course was for Mr Durney to take his complaints to the Committee and press it to complete its investigations in accordance with law. Mr Durney on 14 October 2015, that is since this application was argued, issued a further proceeding S CI 2015 05366 against 10 defendants in respect of the decision of the Student Misconduct Committee and the decision of the University Appeals Committee. From the court file, it does not appear that as at the date of these reasons that originating motion has been served. In due course I will deal with other proceedings that have not been served and if it be the case that this proceeding remains unserved by Mr Durney those comments will be apposite.

10 The Deakin University defendants in proceedings 03206, 02984 and 04260, by summonses in each proceeding dated 24 August 2015, returnable on 3 September 2015, sought directions that the plaintiff file and serve points of claim that consolidated the issues in those proceedings. I would anticipate that once served with the process, the Deakin University defendants would seek orders including proceeding 05366 in this consolidation process. This course had been adopted in the Victoria University proceedings on 19 March 2015 as I will now explain.

11 It appears that Mr Durney was enrolled at Victoria University as a law student in 2012. On 27 January 2015, Mr Durney issued an originating motion S CI 2015 00354 against Victoria University and staff members, contesting the legality of various exclusion decisions that affected him. The specific decisions made by Victoria University are not readily identifiable from the originating motion, which refers to an exclusion decision dated 19 October 2012, and other decisions stated to be current 'expulsion, or exclusion or discontinuance of enrolment or rescission of licence or encumbrance of the plaintiff including those claimed by the defendants to the plaintiff on 28 November 2014 and 01 December 2014 and 23 January 2015'. By summons filed the same day, Mr Durney sought declaratory relief, injunctive relief and other interim relief to restrain Victoria University from expelling or excluding him, and requiring the University to take into account his needs as an individual with a disability.

12 Sloss J, sitting in the Practice Court, heard that summons on 23 February 2015. It appeared the University had provisionally offered to Mr Durney the opportunity of re-enrolment as an off-campus student, if he applied for a waiver of certain fees. Sloss J ordered that Victoria University ascertain before the return of the proceeding what steps it could take to facilitate the return of the plaintiff as an on-campus student, adjourned the proceeding to 19 March 2015, and ordered that Victoria University provide to the plaintiff email copies of certain documents to be completed by the plaintiff to facilitate his re-enrolment.

13 When the proceeding came before me on 19 March 2015, Mr Durney had not filled out the form provided to him in respect of waiver of tuition fee encumbrances to enable him to re-enrol. I set the proceeding 00354 down for trial on 10 February 2016. I directed Mr Durney to prepare points of claim that identified each and every decision that had been made by Victoria University with which he was aggrieved and in respect of it, the decision maker, the basis upon which the decision was challenged and the paragraphs in his affidavit where the evidence in respect of that decision were located. Mr Durney was directed, with the consent of Victoria University, to include in his points of claim all further decisions made by the University that affected his position without issuing further, and separate, proceedings. The purpose of these directions was that all outstanding decisions made by Victoria University affecting Mr Durney be dealt with in the one proceeding and at the one trial. I gave directions for the exchange of affidavit material.

14 I noted at that time that Mr Durney persisted in denying the defendant access to his email address for service of documents and correspondence in connection with the proceeding. Although Mr Durney sought to justify his actions on the basis of limited Internet access, his email communication with my chambers, that were not copied to the defendants solicitors was not consistent with this justification and resulted in improper communications with the court. I ordered that if Mr Durney did not make an email address available, he would be required to show cause why he should not be excluded, pursuant to s 29(1)(e) of the Civil Procedure Act 2010, from taking a further step in the proceeding for failure to observe the overarching obligations to cooperate with the parties and the court in connection with the conduct of the proceeding.

15 Mr Durney has not complied with any of these directions. First, Mr Durney has issued further proceedings against Victoria University and other defendants, none of which have been served. Originating motion, S CI 2015 1700, dated 16 April 2015 challenges, amongst other matters, the 'purported Dawkins exclusion dated 18 February 2015'. Originating motion, S CI 2015 02501, dated 18 May 2015 challenges amongst other matters an exclusion of Mr Durney from the Victoria University campus made on 17 March 2015. Originating motion, S CI 2015 02898, dated 1 June 2015, challenges amongst other matters an exclusion by Victoria University dated 1 April 2015. Originating motion, S CI 2015 02899, dated 1 June 2015 challenges amongst other matters an exclusion decision by Victoria University dated 31 March 2015. The substance of each of these proceedings should have been set out by Mr Durney in his points of claim in accordance with the directions that I gave on 19 March 2015. The intention of those directions was thwarted by the issue of further proceedings, Mr Durney's decision not to serve the originating process, and his failure to serve points of claim that identified all of his disputes concerning his exclusion from the law school at Victoria University.

16 Secondly, Mr Durney has not filed any points of claim or further affidavits.

17 Mr Durney emailed my chambers on 24 August 2015, presumably on becoming aware of the Deakin University summonses, regarding the orders made on 24 March 2105 in proceeding 00354 that he file points of claim and further affidavits by 31 August 2015. The email was not copied to the defendants in proceeding 00354. The email stated that on 31 July 2015 Mr Durney suffered a recurrence of a back problem that left him unable to sit due to significant pain. The affidavit detailed his back problem including that he had been hospitalised on 1 and 11 August 2015 and was withdrawing from pain medication that had been prescribed to him. The email sought an extension of for compliance with the orders of 24 March 2105. Mr Durney attached two medical certificates in relation to the following periods:

(a) Royal Melbourne Hospital from 1 August 2015 to 7 August 2015;

(b) St Vincent's Hospital from 11 August 2015 to 14 August 2015.

18 Pursuant to Mr Durney's request in that email, proceeding 00354 was listed for a further directions hearing on 3 September 2015, on the same date that the Deakin University defendants' summonses in proceedings 03206, 02984 and 04260 were listed before the court. An email was sent from my chambers informing the parties as follows:

The proceeding has been listed at 10.30AM on 3 September 2015, along with S CI 03205, 2014 02984, S CI 2014 04206 which are listed at the request of the respondents. His Honour will consider any request to vary directions at that time.

19 Mr Durney replied, but only to my chambers, on 25 August 2015, stating:

I have an angiogram scheduled for 03 September 2015, and am unable to attend. I am advised that I will also be significantly affected by the medications required to be taken for that angiogram for two days either side of that date.

Given that I am seeking a request for an extension of a date before that date, I require a decision before the expiration of the current date. I require a decision in relation to my request for an extension before that date.

20 I am satisfied that Mr Durney was aware of this directions hearing on 3 September 2015, which he did not attend. However, no medical certificate was provided either to the court or to the defendants and his email was not copied to the defendants, who were unaware of his request for an adjournment. At prior directions hearings, when the issue of a want of cooperation in communication between the parties arose, I made it clear to Mr Durney that the court did not function as a post-box and that correspondence received by my chambers would be ignored unless it was clear on its face that it had been copied to all other parties. For this reason, the following reply, which was the most recent communication in the email chain that was included, was sent to the parties from my chambers on 26 August 2015:

This email has not been copied to the other parties to the proceeding and his Honour is unable to respond to it for that reason. The various proceedings remain listed for directions on 3 September 2015.

If an adjournment of that date is sought it will need to be by negotiation between the parties.

21 Shortly prior to the hearing on 3 September 2015, Mr Durney left an unsworn copy of a proposed affidavit at Registry. The draft affidavit was dated 31 August 2015. The affidavit set out the emails referred to above and stated that the defendants had not initiated or engaged in negotiation with the plaintiff regarding the suitability of the date of 3 September 2015. The draft affidavit mentioned the plaintiff's disability which he stated was depression and anxiety. The draft affidavit was not served upon the defendants.

22 On 3 September 2015, Mr Durney did not appear but the defendants did not oppose an extension of time being granted to him as he requested. I provided a copy of the draft affidavit to counsel for the defendants and informed him that I proposed to treat it as a submission made by Mr Durney in, and about, his absence. For three reasons I determined to proceed in Mr Durney's absence. First, Mr Durney's reasons for adjourning the hearing were not accepted by the defendants and had not been proved. Second, Mr Durney had failed to adopt the correct procedure that had been suggested to him and seek the defendants consent to an adjournment. Third, the defendants did not oppose the relief that Mr Durney sought and otherwise, apart from some matters that were unanswerable, the orders to be made in his absence substantially concerned matters of procedure.

23 As the court was aware that a number of proceedings had been issued by Mr Durney that appeared not to have been served on the defendants, I enquired of counsel for the defendants who confirmed that the defendants had not been served. The defendants submitted that the court should ensure that Mr Durney prepared all proceedings to be heard and determined at the trial set down for February 2016. No explanation was apparent for the want of service. As stated above, the issue of further proceedings by Mr Durney was neither necessary nor contemplated, and was not conducive to the proper management of the resources of the court and of the parties.

24 A number of other procedural matters were dealt with. In several of the proceedings Mr Durney had named, unnecessarily, committees and other bodies that were not juristic entities capable of being sued. In proceedings 02501, 02898, and 02899, the third defendant was described as 'SAT Committee'. In proceeding 00354, the first defendant was the 'Victoria University College of Law and Justice,' and the seventh defendant was 'Securecorp'. In proceeding 03206, the third defendant was the 'Faculty Student Misconduct Committee' and the fourth defendant was the 'Faculty Academic Progress Committee'. In proceeding 04260, the third defendant was the 'Faculty Student Misconduct Committee'. As the court had previously informed Mr Durney that such claims would be summarily dismissed, if not discontinued by him, orders to that effect were made on 3 September 2015. Even though this substantive order was made in Mr Durney's absence, there cannot be an answer to the defendants' submissions in this respect. Indeed, I do not see why any individual needs to be a defendant to any proceeding given that it is not suggested that any individual was acting other than in the course of his or her employment by a university discharging an appropriate university function or that the University did not accept responsibility for the determinations of any of the relevant faculty committees.

25 Further, an order was made in proceedings 01700, 02501, 02898 and 02899 that unless the plaintiff served the originating motion and the affidavit of the plaintiff filed in support on the defendants by 25 September 2015, or filed an affidavit identifying what reasonable steps had been taken to effect such service, those proceedings shall, on and from that date, each stand dismissed.

26 The court's intention in making the directions that were made that day was that the decisions that are challenged in the proceedings identified in the preceding paragraph, together with proceeding 00354, were to be managed together, or with such of them that remain extant, and were to be tried before the same judge at the same time. These proceedings may be collectively referred to as the Victoria University proceedings. The same order of collective management was made in relation to proceedings 04260, 03206, and 02984, to be collectively known as the Deakin University proceedings. It remains the case that I have was not persuaded that there was any good reason for the court to do other than determine Mr Durney's challenges to all decisions at the one time or in consecutive hearings.

27 To implement this intention, order were made in proceedings 00354, 03206, 02984, 04206 and in the proceedings that had not been served or such of them that remained extant, that the plaintiff file and serve points of claim by 12 October 2015. Orders were also made for the filing of further affidavits and outlines. All proceedings collectively comprising the Victoria University proceedings and the Deakin University proceedings were set down for trial on 10 February 2016.

28 I also ordered in proceeding 00354 and in the Deakin University proceedings that the Mr Durney show cause why he should not be excluded pursuant to s 29(1)(e) of the Civil Procedure Act 2010, from taking a further step in the proceeding for failure to observe the overarching obligations to cooperate with the parties and the court in connection with the conduct of the proceeding by refusing to make an email address available to the defendants' solicitors for the purpose of receiving documents and correspondence, and for failure to desist in email communications with chambers of the managing judge that had not been copied to the defendants.

29 At the hearing on 3 September 2015, it seemed clear that what Mr Durney sought was an extension of time for compliance with prior directions in proceeding 00354. As stated above, such an extension was not opposed by the defendants. I extended the time for compliance with those directions in proceeding 00354. However, I acknowledge that the orders that I made setting down all the proceedings against both universities to be heard and determined in February 2016 had the effect of requiring Mr Durney to be in a position to proceed with all of his claims.

30 It was assumed in Mr Durney's absence, given the number of occasions on which he had sought urgent interlocutory relief, that he would prefer to have all claims determined by the court before the start of the 2016 academic year. It later became clear that this assumption was misplaced. Further, I considered it to be fair to the defendants and proportionate to the complexity or importance of the issues in dispute in the various proceedings that they be determined together. Precisely how that would occur procedurally could be sorted out prior to the commencement of the trials. Further, given the significant number of proceedings, interlocutory applications and directions hearings arising out of similar or related circumstances, joint or consecutive trials of all proceedings maximised the opportunity for the efficient use of judicial and administrative resources and the efficient conduct of the business of the court. Finally, I was conscious that the defendants faced significant legal costs that they are unlikely to recover in the event that they are successful which would be significantly increased by multiple directions hearings and separate trials.

31 Copies of the transcript and of the orders made by the court on 3 September 2015 were sent to Mr Durney. The proceedings were listed for further directions on 14 October 2015. Mr Durney acknowledged that fact on 13 October 2015, when he issued a summons in each proceeding seeking to set aside the orders made on 3 September 2015. These summonses and Mr Durney's affidavit in support were served on the defendants.

32 In his affidavit, Mr Durney confirmed that he was informed on 25 August 2015 of the hearing on 3 September 2015. Mr Durney stated that he was scheduled for a medical procedure on that day and he sought an adjournment of the directions hearing by way of a request sent to my chambers by email that had not been copied to the defendants' solicitors. As set out above, Mr Durney was informed that any request for an adjournment should be put to the defendants' solicitors and not the court but that did not occur. Mr Durney has a history of refusing to communicate with the defendants' solicitors and expecting that court hearings will be rescheduled by the court at his convenience and without notice to the defendants. Later in these reasons, I will return to this question of communications between the parties and service of documents. It has become a recurring theme.

33 There were a number of unsatisfactory aspects of Mr Durney's application on 14 October 2015 to set these various orders and directions aside. First, there was no explanation as to why the application was not made promptly. The application had been made at the last possible moment before the return of the matter before the court. Secondly, Mr Durney had not provided any proper evidence in explanation or justification of his failure to attend court on 3 September 2015. Thirdly, Mr Durney explained that the proceedings that had not been served were being held back by him on the basis that he was only required to serve the originating motion within one year after its issue. Mr Durney suggested that he might determine, after the existing proceedings had been resolved, whether it was necessary to continue with the unserved proceedings.

34 At the hearing on 14 October 2015, I informed Mr Durney that this approach was not satisfactory to the court and that those proceedings had been struck out effective from 25 September 2015. I also informed Mr Durney that if he undertook to promptly serve those proceedings I would consider revoking my earlier orders. If it was appropriate to do so, Mr Durney could make an application that the proceedings be stayed pending the outcome of earlier proceedings but that such an order would only be considered after the court had heard from the defendants as to whether that course was appropriate.

35 Counsel for the defendants suggested that there were at least two reasons why that course might not be appropriate. The first was that it was likely that the proceedings that were yet to be served raised issues that were related to or common with the issues in earlier proceedings, such that it might be just and convenient that all proceedings be determined together, as was envisaged in March 2015. Secondly, there may be some common witnesses with issues of credit and given the likely overlap in the evidence, the various proceedings would be better managed if they were heard and determined at the same time or consecutively by the same judge. I would add that excessive delay in seeking judicial review of administrative decisions can result in an adverse exercise of the discretion to grant relief.

36 Mr Durney submitted that fixing all of the proceedings for trial in February 2016 imposed a workload on him in preparation for those trials that he would be unable to discharge. Notwithstanding that the trial date is approximately four months away, Mr Durney asserted, on the basis of his disability, that he has a limited capacity to concentrate for extended periods, and would be physically unable to undertake the necessary preparation in the suggested timeframe. For present purposes I accept this assertion at face value.

37 Mr Durney has described his disability in numerous affidavits in the Deakin University and Victoria University proceedings. In his affidavit dated 22 June 2015 in 03206 he provided a general description of his disability. He stated that he has a form of depression/anxiety disorder that is manageable with minor assistance and flexibility. He has been prescribed drugs however he takes them sparingly owing to their addictive qualities. By engaging in stress management to minimize the risk of anxiety attacks, he can use these medications once or twice a month. The drugs have a sedative effect impeding his ability to concentrate. Concentration difficulties are part of his ongoing depression and anxiety and he takes longer to meet productivity targets when studying. Owing to this disability he asserts he requires accommodation in the University in the form of, amongst other requirements, a quiet study space owing to his reduced ability to concentrate. Mr Durney goes into further detail of his disability in his affidavit dated 16 June 2014 in proceeding 02984, where he describes a past suicide attempt, and difficulties with his housing situation that have exacerbated his anxiety and distractions.

38 The defendants submitted that the Deakin University proceedings are logically the first in time and should be heard and determined in February 2016. The suggestion was resisted by Mr Durney on the basis that it was only some of the Victoria University proceedings that had been set down for trial and that he had organised his personal schedule to prepare only for those trials. The thrust of Mr Durney's submission was that he could not change tack to prepare the Deakin University proceedings for trial when he had been directing his efforts to preparing proceeding 00354. This submission was somewhat disingenuous given what had transpired in March at the directions hearing and Mr Durney's failure to comply with those directions. I had not seen any evidence that Mr Durney had done any preparation for the trial of any of the proceedings.

39 Mr Durney raised concerns that he lacked the resources to comply with orders that all of the Deakin University proceedings and the Victoria University proceedings be tried in February 2016. He said he did not have the time, capacity and resources to have all proceedings dealt with at the same time. Mr Durney stated he was in contact with a legal service that may be able to advise him and assist him with trial preparation. Mr Durney asserted that the proceedings involved a specialist area of law concerning disability discrimination, and he did not presently have the knowledge to run the proceedings himself in February 2016.

40 The defendants submitted that there were eleven defendants in the Victoria University proceedings, which commenced in 2015, and that four of those proceedings were still not served. The Deakin University proceedings commenced in 2014, with seven individual defendants. Both universities have numerous staff affected by the litigation. There was no specialist medical evidence as to why the outstanding orders had not been complied with or in support of Mr Durney's contention about the extent of his abilities to prepare for the trials. The defendants did not accept these assertions at face value and were anxious to complete the trials of all proceedings as soon as possible. The defendants submitted that the voluminous affidavit material put forward by Mr Durney was evidence that he must be relatively well prepared for trial in all Victoria University and Deakin University proceedings and that he had the capacity, when it suited him, to undertake necessary preparatory work.

41 Mr Durney then stated that if the trial date were postponed until later in 2016, he would be able to prepare all proceedings for a joint trial or a series of consecutive trials that would resolve all of his outstanding claims against both universities. When I informed Mr Durney that if I vacated the present trial date I would not be in a position to refix the proceedings until August 2016, Mr Durney informed me that he would be ready for a trial of all proceedings in August 2016. In addition Mr Durney stated that he would be prepared to work out a scheduling program to ensure that all necessary preparation was completed in a timely manner.

42 I accept the submission of the defendants that there is likely to be a significant overlap in the issues for determination in the several proceedings and in the evidence to be called at trial. For that reason, the just determination of all of the proceedings will be best achieved by a common trial or a series of consecutive hearings before the same judge. Precisely what procedure should ultimately be adopted is a matter that can be determined at a later point in time prior to the commencement of the first trial. However, I will not accept the defendants suggestion that I list the Deakin University proceedings for separate trial in February 2016. Nor do I accept Mr Durney suggestion that proceeding 00354 against Victoria University should proceed alone at that time.

43 Taking all relevant considerations into account, I am satisfied that the course of action that is most likely to achieve the just, cost effective and efficient disposition of all of the proceedings is to adjourn the trial of those proceedings listed for February 2016 and to list all of the proceedings that Mr Durney has against each University for trial in September 2016. I will vacate the trial date of 10 February 2016 and set all proceedings down to be tried either at the same time or consecutively before the same judge, commencing on 5 September 2016.

44 The proceedings will be scheduled for a case management conference on 18 December 2015 when I expect Mr Durney to present to the court and to the defendants his schedule of when all of the necessary preparation will be completed to enable the trials of all proceedings involving both universities to commence as scheduled. As I have stated on other occasions, Mr Durney is required to do the following:

(a) He must immediately serve all proceedings that he has issued in this court in connection with his challenges to any decisions made by Victoria University or Deakin University;

(b) He must prepare a document entitled 'Points of Claim'. This document should not be complex and will serve, in many respects as an index to the various originating motions and affidavits that Mr Durney has already prepared and served. As a preliminary task, if there is any proceeding in which Mr Durney has not yet filed and served an affidavit in support of the claims that are set out in the originating motion, that affidavit must first be prepared. Mr Durney's points of claim should identify the information set out below, separately for each University, and each decision. The document must be organised chronologically by reference to each of the decisions that he challenges. His points of claim should:

(iii) state the grounds upon which the decision is challenged;

(iv) identify both the affidavit, and the particular paragraphs within it, that set out the material facts in respect of that particular decision; and,

(v) where Mr Durney has already filed a submission in respect of a particular decision, identify that submission and the particular paragraphs within it that state his submissions in respect of that decision.

45 I will give directions for the defendants to respond to this document in order that the parties can clearly understand the issues to be resolved at trial. Once the defendants response has been received, other necessary pre-trial rulings can be made.

46 The purpose of scheduling a case management conference and inviting Mr Durney to identify, in submissions to the court, a proposed schedule for trial preparation that the court might adopt as trial directions, is to permit Mr Durney to assess and take into account his disabilities and their impact upon his preparation for trial. I would add that I propose, once the trials commence, to monitor Mr Durney's capacity to properly conduct his proceeding. What directions might be given for this purpose is not to be prejudged, however, it may be that short adjournments of between an hour and a day might be permitted if required.

47 The orders that I made in each proceeding striking out certain claims because the plaintiff has failed to identify a juristic entity capable of being sued will not be set aside and those claims remain dismissed. Further, I will not set aside the orders dismissing the unserved proceedings until Mr Durney gives an undertaking to the court, punishable by contempt proceedings in the event that he dishonours it, that he will promptly serve those proceedings on the relevant defendants. As I understand it, the defendants solicitors have instructions to accept service. Accordingly, that is not an onerous obligation.

48 Finally, I return to the vexed question of communication between the parties. Since my earlier order, the plaintiff has ceased inappropriate communication with my chambers. I presume that will continue to be the case. Effective communication between the parties would be much improved if Mr Durney removed the block on his email that precludes communications from the defendants' solicitors. The fact that he maintains this impediment to communication stands in the way of accepting his alternative explanation that he does not have permanent continuous Internet access and does not receive emails expeditiously. When Mr Durney was communicating by email with my chambers, there was no sign of such a disadvantage. Another difficulty that Mr Durney raises is the suggestion that he does not regularly receive post addressed to the address for service stated in his originating process. However, that is not the court's problem. It is Mr Durney's problem and if he chooses to provide an address for service that is not readily and regularly accessible to him he runs the risk that he will be deemed to have been served with documents that he has not in fact seen.

49 The defendants may serve all documents on the plaintiff by any method for ordinary service provided by r 6.07 and I direct that the defendants may assume that the proper address for service of the plaintiff is the address provided in the plaintiff's originating process in each case, notwithstanding any contrary statement made by the plaintiff. If the plaintiff wishes that some other or different method of service should be adopted it will be necessary to seek the courts leave. In determining whether the plaintiff has been appropriately served by the defendants, the court will have regard to r 6.07(5).

50 The question of costs is reserved to 18 December 2015. As these reasons have been distributed to the parties, I will stand over to 18 December 2015 making orders to give effect to these reasons. However, notwithstanding that the four most recent Victoria University proceedings have been dismissed for non-compliance with the order made on 3 September 2015, I would encourage Mr Durney to serve the originating process, and supporting affidavits if the same have been prepared, as soon as possible and preferably in advance of 18 December 2015. If that is done, I will regularise those proceedings.

51 Finally, I would add that Mr Durney should not issue any further proceedings in the court in respect of any decisions relating to his exclusion from the law schools at either University. Rather, if there be any other decisions that have not been challenged in the existing proceedings, such decisions, if not time-barred, may be challenged by inclusion in the points of claim and by appropriate amendment of existing proceedings. If any such issue arises, it should be brought before the court at the next directions hearing.

ANONYMOUS MEMBER NUMBER 1 OF FACULTY STUDENT MISCONDUCT COMMITTEE

ANONYMOUS MEMBER NUMBER 2 OF FACULTY STUDENT MISCONDUCT COMMITTEE

ANONYMOUS MEMBER NUMBER 3 OF FACULTY STUDENT MISCONDUCT COMMITTEE

DR DAMIEN KINGSBURY (CHAIR) UNIVERSITY APPEALS COMMITTEE

ANONYMOUS MEMBER NUMBER 1 UNIVERSITY APPEALS COMMITTEE

ANONYMOUS MEMBER NUMBER 2 UNIVERSITY APPEALS COMMITTEE

ANONYMOUS MEMBER NUMBER 3 UNIVERSITY APPEALS COMMITTEE

PROFESSOR PETER DAWKINS, VICE CHANCELLOR & PRESIDENT

[1] Durney v Deakin University & Ors; Durney v Victoria University & Ors, 19 November 2015. These reasons were not published on AUSTLII and are accordingly annexed as Appendix A to these reasons.

[2] Durney v Victoria University and Ors [2014] VSC 161 (Garde J).

[4] Durney v Deakin University [2014] VSC 577.

[5] Habitually, Mr Durney did not attend court at the scheduled time, in this case 9:30 am.

[6] [2012] VSCA 231; (2012) 36 VR 490, 502 [40].

[7] Compare Winn v Garland Hawthorn Brahe (a firm) [2009] VSC 93.

[8] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4.

[9] [2012] VSCA 231; (2012) 36 VR 490, 502 [40] (citations omitted).

[10] [2012] VSCA 231; (2012) 36 VR 490, 503 [45].

[11] See s 50 of the Civil Procedure Act.

[12] Durney v Deakin University [2014] VSC 577.