Plaintiff v Defendants

PRACTICE AND PROCEDURE - Plaintiff's application to extend time to serve interrogatories - Application to amend 'at large' - Application opposed by all defendants - Application permitted only to extent that second and fourth defendants prepared to answer - Leave otherwise not granted.

PRACTICE AND PROCEDURE - Third defendant's application to amend defence - Proposed amendment would not change the plaintiff's obligation to prove the duty or cause prejudice - Application to amend granted - Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Rule 36.01 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).

1. Ms Groothius brings a claim for psychiatric injury arising in the course of her employment with the first defendant. Her injuries occurred when she witnessed the death by suicide of a resident who jumped from a viewing platform in a city residential apartment complex (premises). The five defendants are her employer who is also an occupier, the builder, developer, the relevant Owners Corporation and the firm of architects, each with responsibilities for the premises. The proceeding is presently listed for trial on 1 December 2025 before a judge and jury on a 15 day estimate.
2. On 14 November 2025, three summonses were returnable before me:

(a) First, the plaintiff's summons filed 14 October 2025 seeking an extension of time to serve interrogatories for the examination of each defendant by 30 September 2025. The hearing of that summons had been adjourned from 31 October 2025 because the plaintiff, on that day, circulated an affidavit and a proposed summons addressed below;

(b) Second, the plaintiff's second summons circulated on 31 October and subsequently filed, seeking the vacation of the trial date of 1 December 2025 and an extension of time for exchange of expert reports to 18 January 2026; and

(c) Third, the third defendant (the developer) filed a summons on 7 November 2025 seeking leave to file an amended defence and an order pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (the Rules), directing that the mode of trial be without a jury.

1. The chronology of the proceeding is relevant. It was issued on 17 May 2023 and first listed for trial on 18 November 2024. Initially there were four defendants, and two third parties had been joined. This first trial date was vacated at the plaintiff's request and with the consent of all parties on two bases: first that there had been delays in completing interlocutory steps and second the need for joinder of one third party as the fifth defendant. The explanation for the late joinder was incomplete interlocutory steps. The now fifth defendant had participated as a third party since May 2024. The first trial date was vacated by orders of Judicial Registrar Baker made 23 September 2024. On 20 June 2025, Associate Justice Irving made orders by consent refixing the matter for trial on 1 December 2025 as a jury on a 15-day estimate. An interlocutory timetable was agreed. Relevantly it provided:

(a) The date for parties to file and serve interrogatories is extended to 30 July 2025; and

(b) Medical and expert reports are to be served by 8 September 2025.

1. I largely refused the plaintiff's request for a further extension of time to serve interrogatories. Proposed interrogatories had been provided to the defendants on or about 29 September 2025. Before me the plaintiff sought leave 'at large' to interrogate and did not confine the request for the extension of time to the interrogatories for which the defendants were already on notice. All defendants opposed a further extension in those terms. The plaintiff's explanation for failing to comply with the timeline agreed by all practitioners of 30 July 2025, provided in an oral submission made at the post mediation directions hearing on 3 October 2025, was the 'complexity and volume of documents'. The affidavit in support simply repeated this mantra. This is an unenlightening statement. To the extent that further documents had recently been discovered after the interrogatories had been drafted, there had been no effort to provide amended interrogatories or to refine questions.
2. Both the second and fourth defendants indicated a belief that they could, if leave was given, answer the interrogatories that had previously been provided before the present trial date, and I granted an extension of time in relation to those interrogatories only to be answered by the second and fourth defendants by 27 November 2025.

1. The plaintiff's application to vacate the second trial date is supported by two affidavits of the plaintiff's solicitor, dated 31 October 2025[1] and 13 November 2025. In the first affidavit, a lengthy chronology is set out concerning documents obtained via discovery or subpoenas, service of an expert report from a property developer (Mr Pope) by the third defendant on 20 October 2025, and the fact that a mediation occurred on 27 October 2025. Of relevance to the application to vacate and immediately following the mediation on 27 October 2025, proposed consent orders were circulated by email with cover letter by the plaintiff stating:

Our position, after having conferred with Senior Counsel today, is that the parties cannot submit to the Court that the trial will conclude within the 15 day sitting period presently allocated to this proceeding, given the plethora of issues that remain in dispute between the parties, competing expert evidence, and the number of expert and lay witnesses that will be required to give evidence.[2]

The plaintiff's 'more realistic' estimate was 20-25 days.

1. Other than the length of the matter, reference was made in the affidavit that as at 31 October 2025 counsel's advice that 'given the number of architectural issues that arise due to lately discovered documents and lately served liability reports that an architectural expert report is required in support of the Plaintiff's case'.[3]
2. The plaintiff's second affidavit sworn 13 November 2025 exhibits correspondence revealing that on 10 November, the solicitors served upon each of the five defendants a request for further and better discovery seeking four things: CCTV footage, pass data of the deceased on the day in question, design and construction drawing of the balustrade on the terrace 'as constructed', and various documents concerning the variation in the height of the balustrade. The affidavit also deposed to service of an expert report of Mr Tiller, an architect, received by the plaintiff and served on 13 November.
3. All defendants expressed some concern about being able to complete the matter as a jury within the 15 sitting days to the end of the term. The first, third and fifth defendants opposed the vacation of the trial date. The second and fourth defendants took a neutral position.
4. The opposition to vacation was at least in part predicated on the third defendant's application to dispense with a jury, an application supported by all defendants. The defendants estimated that as a cause there was every chance that the matter could be completed within the given estimate and if not, there would be no impediment to resuming part heard in the new year.
5. The first defendant relies on an affidavit of its solicitor, Ms Hegedis, affirmed on 12 November 2025 in opposition to the plaintiff's summonses. In opposing vacation of the trial date, it exhibits the earlier affidavit of the plaintiff's solicitor affirmed 29 August 2024 that was relied on to vacate the first trial date. It observes that the 15 day estimate was a position proposed by the plaintiff in orders circulated on 18 June 2025 and agreed to by all parties.
6. The third defendant relies on an affidavit of its solicitor, Ms Nancarrow, affirmed 7 November 2025. Concerning the trial date, the affidavit noted that the third defendant, having given notice that it desired a jury, paid the jury fee on 21 August 2024. Subsequently, the plaintiff paid the jury fee on 3 November 2025.
7. The plaintiff signified trial by Judge alone on the Writ when issued. In accordance with r 47.02, the first, third and fourth defendants filed notices seeking trial by jury. The first defendant paid the jury fees on 21 August 2024 for the first hearing date. The plaintiff purported to seek trial by jury when she filed the amended Writ on 20 June 2025 and paid the first day jury fees on 3 November 2025 for the second hearing date.

1. The Court of Appeal recently set out two fundamental principles for consideration when late application is made for adjournment of a trial date. They are:

First, the decision by the Judge, to refuse the application by the applicant to adjourn the trial of the proceeding and to amend his statement of claim, was made in the exercise of the discretion of the Judge. It is well recognised that an appellate court should hesitate to interfere with the exercise by a Trial Judge of such a discretion, and should only do so where it is clear that the refusal of the adjournment will occasion a significant injustice to a party to the proceeding.

Secondly, in considering the application for leave to appeal against the exercise by the Judge of that discretion, it was relevant for the Judge to take into account the public interest in the efficient use of court resources, and the potential effect of an adjournment or a delay in the disposition of the proceeding not only upon the parties to the proceeding, but also on the efficient management of the Court, and thus the timely disposition of other litigation in the Court.[4]

1. The circumstances in which the request for adjournment has come about is critical in considering the reasons for any late application. The factual chronology of the proceeding and the opportunity of the parties, in particular the party seeking adjournment, to prepare their case for trial are relevant matters.
2. Rule 47.02 of the Rules provides that the present proceeding be tried with a jury as defendants so signified in accordance with r 47.02(1)(a). The prescribed fees in accordance with r 47.02(1)(b) have been paid in accordance with s 24 of the Juries Act.[5]
3. By r 47.02(3), the Court retains a discretion to dispense with a jury notwithstanding this compliance by the parties with r 47.02(1). That sub rule provides:

Notwithstanding any signification under paragraph (1), the Court may direct a trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

1. The principles applicable to determining mode of trial were summarised by J Forrest J in Birti v SPI Electricity [2011] VSC 566. The following principles set out there are of particular relevance for the present case:

(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(g) The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.

(h) Even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time.

(i) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.

(j) Subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:

(i) the complexity of the factual matters that the jury will need to consider;

(ii) the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;

(iii) the complexity of the jury's task in relation to the assessment of damages;

(iv) the potential duration of the trial (although this, of itself, could never be the determining factor); and

(v) the stage at which the proceeding or trial has reached.

(k) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.[6]

1. The third defendant submits that the factual complexity and legal complexity both point to trial without a jury as the appropriate option. As to the legal complexity it submits that the trial judge will have to determine the existence, nature and scope of any duty of care owed by four of five defendants, and in all likelihood the nature and scope of the duty owed by the first defendant. The existence of a duty of care is denied by three defendants and the third defendant seeks to amend its non-admission of duty to a denial. The first defendant has not admitted a more orthodox duty as employer and occupier hence the scope for legal argument as to the content of the duty. Given the psychiatric injury and the events giving rise to it, the circumstances in which any duty of care arises is not a straightforward matter.
2. In addition to the legal complexity, any duty owed by each of the interrelated entities involved in the design, construction and management of the building has factual complexity and is informed by a number of contractual agreements that have been pleaded. The fact of multiple defendants and nuance and variation in the nature of any legal duty owed by any one of them is also relied on as a basis for directing a trial without a jury, as is the plea by all defendants of contributory negligence on the part of the plaintiff by failing to report certain matters. Contribution notices as between defendants are also on foot.
3. The third defendant also submits that the factual overlap between matters of duty and those of breach and causation presents a risk of inconsistent findings.
4. Separately, but also relevant, is that the 15-day estimate is unlikely to be a realistic jury estimate and the 'loss of an impending trial date for six parties will incur significant wasted costs and an element of inherent prejudice'. In light of this the third defendant observes that both modes of trial are fair.
5. The other defendants adopted the submissions of the third defendant as to mode of trial.
6. The plaintiff submits that her entitlement to trial by a jury is neither factually nor legally so complex that it could not be tried in this way with rulings by the trial judge as to the existence of the duty of care of those defendants who have denied, or not admitted, that matter. Dispensation with her entitlement to a jury trial ought not be made lightly. However, the plaintiff maintains that a trial conducted in this mode could not be completed within the 15 sitting days before the end of the year, thus necessitating the adjournment of the trial.

E.1 Mode of trial and adjournment application

1. I would be inclined to refuse an application to vacate the trial date, if such an application were considered in isolation. The 15-day estimate was provided by all parties at a time when the pleadings in their current form were known. Timely service of expert reports as to both liability and damages was extended to 8 September 2025. As I understand the position, the expert report of Mr Pope has been late served by the third defendant, although no party raises any issue with this concerning the readiness for trial. Otherwise the plaintiff's late service of Mr Tiller's report on 13 November, may be objected to by some defendants and no explanation is provided as to its lateness. Leave to rely on it will remain an issue for the trial judge. The Tiller report and any outstanding discovery do not add any weight to the application.
2. The only explanation for the longer trial estimate in the affidavit in support was that it was Counsel's advice following the mediation. There was a dearth of relevant information to assess a basis for this estimate. Those advising the plaintiff clearly turned their mind to this when paying jury fees after the proposed summons to adjourn the hearing was circulated for consent.
3. That said, as all parties accepted, a jury trial that could conclude within a 15-day estimate is clearly an ambitious target. This begs the question of why the application was made so late in the piece.
4. It is also relevant that this would be the second trial date that the plaintiff seeks to adjourn. The new date sought is one not before 7 April 2026 with further extension for service of expert reports. In effect the plaintiff is proposing an adjournment of at least five months, in a matter that has already lost 12 months due to relisting. As the revised estimate was not raised by the plaintiff prior to 31 October 2025, it has deprived the Court of an opportunity to make listing arrangements that could accommodate a trial by jury that could conclude before the end of the year. Again, the absence of a sufficient explanation for the lateness of the application weighs against granting an adjournment.
5. As to the application for trial before a judge alone, it is apparent that the dispute about the existence of a duty of care owed by each of the second to fifth defendants to persons including the plaintiff will require ruling by the trial judge. In respect of all of these defendants the duty is pleaded as:

a duty to ensure that the viewing platform at the premises was safely [constructed / developed / maintained] and in particular that sufficient safety precautions were installed to prevent persons from obtaining entry thereto for the purpose of committing suicide by jumping from the viewing platform of the premises.[7]

1. The claims against each defendant are brought only in negligence. Although breach of statutory duty was raised in argument as to legal complexity, it is pleaded only as a particular of negligence. Even then it is only raised in a way that gives no particulars as to what regulations are relied on providing as the last particular in respect of negligence alleged against all defendants:

Failing to comply with the regulations made pursuant to the Occupational Health and Safety Act 2004.[8]

Notwithstanding a single cause of action is relied on, I accept that there is a complexity concerning any duty of care owed by the defendants as it has been expressed in the pleadings concerning the negligence claims.

1. Recently, in McCullough v Footscray FC,[9] O'Meara J discussed the complexity surrounding the division of role of judge and jury where a 'novel' duty of care is alleged. His Honour said:
   1. In circumstances of the present kind, authority and practice contemplate that it may be necessary for a trial judge to determine whether, as a matter of law, an alleged duty of care arises before proceeding to charge the jury.
   2. In that regard, in Swain v Waverley Municipal Council ('Swain'), Gleeson CJ explained as follows -

In an action framed in negligence, the judge (if necessary) will decide, as a matter of law, whether the facts alleged by the plaintiff are capable of giving rise to a duty of care in the defendant towards the plaintiff. A legal issue of that kind is often capable of being decided on the pleadings. On the other hand, the alleged duty of care might depend upon contested facts that need to be resolved as part of the trial process. ...

1. In a jury trial, of course, some care is required owing to the delineation of functions between the judge and jury. That is, the judge decides issues of law; the jury decides issues of fact.

2. In that connection, a finding as to the existence of a duty of care in cases that do not involve an established or recognised relationship can depend upon findings being made in respect of some or all of the 'salient features' pertaining to the relationship between the parties. In some cases, that task will be so complex that it cannot be achieved by a combination of judge and jury.

3. However, in practice, there can be multiple avenues or means by which the issue might be determined whilst at the same time observing the delineation between the respective functions of the judge and jury. In that regard -

   a) as contemplated by Gleeson CJ in Swain, the issue may be capable of being determined on the pleadings;

   b) some or all of the relevant evidence may be such that there can really be only one version of the facts relevant to a determination of parts or all of the salient features pertaining to a relationship between the parties;

   c) in that connection, there can be cases in which, for example, the duty is alleged to arise in relation to a statutory provision or provisions and the evidentiary landscape is otherwise such that the question may be determined by the judge;

   d) in that regard, the circumstances and state of the evidence may well be such that responsible counsel would be able to agree upon its effect and so allow the trial judge to consider and determine part or all of the relevant issues;

   e) it might be appropriate to take special verdicts of the jury in respect of parts of the 'salient features' before determining the issues;

   f) in other instances the evidentiary landscape might be such that the jury could be directed that a certain duty of care should be taken to have been owed if it finds one or more facts - for example, that the risk of injury was reasonable foreseeable; and

   g) in an appropriate case, it may be possible to combine parts of one or more of the above, or other, approaches.

1. Again, complexity of the factual and legal issues taken alone are likely to make the trial a complex one to manage. However. I could not say at this stage that that the subject matter would be beyond a jury. The circumstances arise out of a single event. The inter-related nature of the roles or developer, builder, architect and building manager are not beyond the capacity of community members to understand. The legal complexity arising from the nature of the duty of care alleged and denied would no doubt require proactive management by the trial judge and consideration given to the various avenues raised by O'Meara J. On the material before me I could not say that complexity alone would necessarily present a level of difficulty that amounts to good cause to dispense with a jury.
2. The first defendant's affidavit indicated an intention to call up to three lay witnesses and two expert medical witnesses. Having inquired of others at the bar table information about the number of witnesses, a matter that would be known by the final directions hearing shortly, it became apparent that the likely witnesses are not numerous. The plaintiff anticipates 2-3 lay witnesses, 4-5 medical witnesses and three liability witnesses (including Mr Tiller). The remaining 4 defendants presently anticipate up to 5 lay witnesses and 2 liability experts between them.
3. Perhaps by the start of the trial, with identification of preliminary issues, with a joint trial plan provided to the trial judge, with proposed jury questions canvassed before empanelment, and an informed idea about the number of witnesses, the trial judge would be better placed to determine what might be described as a 'line ball call' as to mode of trial.
4. The difficulty is that such a course would inevitably risk adjournment of the proceeding as it could not be commenced and concluded within the sitting time available if before a jury. Since paying the first day jury fees, the plaintiff has not grappled with the complexity of running the matter as a jury trial, whatever the true estimate might be. The longer estimate provided by the plaintiff made no mention of any steps to address how the matter might proceed as a jury trial.
5. This means that the resources of the Court and the preparation of all parties would be disrupted by maintaining the plaintiff's entitlement to a jury trial at the cost of an adjournment of proceeding. This level of disruption is significant. Weighing in the balance is the lack of an adequate explanation for the lateness of the revised trial estimate and the consequent adjournment application.
6. Although not addressed, it should also be borne in mind that an adjournment also affects the plaintiff herself. The fourth defendant raised with the Court information in a medical report in its possession that the plaintiff had recently been hospitalised. Her claim has now been issued for nearly three years, and concerns events occurring in 2017. The matter requires a timely resolution without further delay.
7. This is not a case where the savings in time and cost favour a trial before judge alone. Rather the loss of time and waste of costs that would follow from maintaining the present trial date as a jury trial weigh against the plaintiff's entitlement to a trial by jury. The complexity concerned, the length of time it has taken to have the matter ready for trial, the waste of court resources and the preparation of the parties associated with a late adjournment all weigh in favour of exercising a discretion to dispense with a trial by jury in order to maintain the present trial date.
8. For these reasons, I have concluded that the trial fixed for 1 December 2025 should not be vacated and should not, in all the circumstances, be tried before a jury.

E.2 Amendment of the third defendant's defence

1. The third defendant, the developer, has filed a defence that does not admit that it owes the pleaded duty of care. It seeks to amend the defence to deny the existence of the duty.
2. The third defendant requires leave as it did not have the consent of the plaintiff. Although prior to the hearing the plaintiff's attitude was unknown, at hearing she opposed the amendment as she would face prejudice by the third defendant being able to lead evidence in opposition, rather than the plaintiff simply being put to her proof.
3. The third defendant submits that in considering the AON factors[10] concerning late amendment of a pleading; the amendment will not cause any substantial delay or irreparable unfair prejudice, and gives rise to no case-management concerns. The plaintiff is already put to her proof on the existence, nature and scope of the alleged duty and the issues of duty are already generally contested in the proceeding. The pleaded duty of the builder, manager and architect in similar but not identical terms, are all denied. The amendment, if permitted, will bring consideration of the developer's duty in line with these other defendants. The explanation for the late amendment is a view formed after conferral with senior counsel briefed in the trial as to the amendment best reflecting the case the developer wished to present.
4. The power to amend in Rule 36.01 is exercisable for the purposes stated in the rule including determining the real issue in controversy between the parties. The question of duty of care owed by the defendants to the plaintiff is an issue already raised by the defences filed. The proposed amendment would not change the plaintiff's obligation to prove the duty she alleges, but it may require her to respond to evidence led by the third defendant is opposition. In the fact-specific circumstances likely to be necessary to determine whether a duty of care exists, and if so whether it has been breached, it is somewhat unclear at a practical level what additional evidentiary burden may be faced by the plaintiff if leave was granted. It is not said that any prejudice is necessarily unfair or irreparable. The opposition to the amendment application raised no specific difficulty.
5. In these circumstances, despite the lateness of the amendment, I am satisfied that to permit it will cause no delay, no unfair prejudice and will more clearly expose the disputed legal issues that underpin the rights and liabilities of the parties.
6. Accompanying these reasons are orders refusing the adjournment application, granting leave to the third defendant to file and serve an amended defence in the form of the document annexed to the affidavit of Ms Nancarrow, and directing pursuant to rule 47.02(3) that the trial of the proceeding should not be tried before a jury.

FAR EAST CONSORTIUM (AUSTRALIA) PTY LTD (ACN 006 166 034)

[1] This affidavit incorporates reference to the earlier affidavit in support of the extension of time to serve interrogatories that was affirmed on 9 October 2025.

[2] Plaintiff, 'Further Affidavit Of Maria Di Battista In Support Of Interlocutory Application', affirmed 31 October 2025, 20.

[4] Gaskin v The Geelong Revival Centre [2025] VSCA 225 [19]-[20], footnotes omitted.

[5] See Trevor Roller Shutter Service Pty Ltd v Duane Alex Crowe [2011] VSCA 16.

[6] Birti v SPI Electricity [2011] VSC 566 [15].

[7] Plaintiff, 'Further Amended Writ' filed 20 June 2025, relevantly by paragraphs 7, 10, 10C and 10F.

[9] [2025] VSC 443.

[10] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.