Plaintiff v First Defendant

2 The background to the proceeding is summarised in reasons I delivered on 4 September 2019 ('first reasons') [1] as follows (omitting footnotes):

The plaintiff, Mr Russell is a retired person, and a resident of Yea. He represents himself in this proceeding.

The first defendant, Murrindindi Shire Council ('Council') operates various public services, including a library in the town of Yea ('Yea library'). The second defendant, Mr Lloyd, is the chief executive officer of the Council ('CEO').

There is a history of disputation and litigation between the plaintiff and the defendants. This proceeding concerns the Council's decision to restrict the plaintiff's hours of access to the Yea library. The restriction was imposed by the Council for the purposes of protecting its staff, following an incident on 13 April 2016, where the plaintiff allegedly assaulted Ms Tull, a member of Council staff employed at the Yea library. As a result of this alleged incident, the Council decided to prohibit the plaintiff from entering any Council premises for a period of twelve months ('prohibition'). The Council then reviewed and renewed the prohibition in April 2017 and April 2018.

On 24 October 2018, the CEO invited the plaintiff to make submissions as to whether the prohibition ought to be varied, and the plaintiff did so. On 9 November 2018 the CEO notified the plaintiff that the Council had determined to vary the prohibition.

In his letter of 9 November 2018, the CEO wrote on behalf of the Council to the plaintiff as follows:

I note that your response letters to me on the 24th and 25th of October 2018 made submissions on the following:

1. You indicated that you were generally supportive of any easing of restrictions;
2. You asked for reasoning of why the proposed changes did not include a lifting of restrictions of visiting the Yea Library, and limited access to the Alexandra Library;
3. You asked for consideration of your inability to travel due to being restricted to an electric wheelchair.

In response to the matters you have raised, I provide the following advice.

1. Access to Yea Library - I understand your position related to the end of court orders/restrictions related to a member of or staff, however, and despite the IVO being allowed to lapse, I have an ongoing duty of care towards my staff. I will therefore not allow you to access the library during her hours of work;

2. I acknowledge your advice regarding your inability to travel.

In reviewing your submissions, and following further consideration, I have made determination that with effect from 1 December 2018, the previous restrictions that applied to your access to Council premises be lifted in full, with the exception of the following:

1. Access to the Yea Library and Customer Services Centre is permitted between the hours of 10am and 12pm each Friday;
2. Attendance at Council Meetings will be allowed, including submission of written Questions of Council in accordance with the relevant Local Law, however I will not allow participation in Public Forum at this time.

3. I will review participation in Open Forum again in 6 months.

...

I will continue to review the remaining restrictions.

On 10 January 2019, the plaintiff commenced this proceeding, alleging that the defendants had caused him mental harm resulting from the decision to restrict his access to the Yea library. As can be seen from the following, the plaintiff prepared the statement of claim without the benefit of legal assistance.

3 The first reasons concerned an application by the defendants for summary judgment and/or to strike out the statement of claim, and alternatively, given that Mr Russell says that the defendants' conduct caused him a personal injury, to stay the proceeding until Mr Russell provided a Certificate of Assessment pursuant to s 28LZMA of the Wrongs Act 1958 (Vic) ('significant injury certificate'). In the first reasons, I identified the following deficiencies in the statement of claim (omitting citations):

(a) the plaintiff does not plead any of the factual matters which would establish that the defendants, or either of them, owed the plaintiff a duty of care to avoid causing the plaintiff mental harm.

(b) the plaintiff does not plead sufficient facts to show how the defendants' conduct breached any duty by them to the plaintiff;

(c) the plaintiff does not identify whether he suffers from a recognisable psychiatric or psychological condition;

(d) the plaintiff does not plead how the defendants' conduct caused any psychiatric or psychological condition suffered by him; and

(e) the plaintiff does not plead how the conduct of the defendants gives rise to a claim for aggravated and/or exemplary damages.[2]

The plaintiff's claims against the defendants do not appear to be particularly strong, given the nature of the matters pleaded by the defendants in their defence and the contents of Dr Ingram's report. I also have significant reservations about the plaintiff's ability to properly plead his allegations. However, there are recognisable causes of action discernible from the matters referred to in the statement of claim, the various affidavits and the plaintiffs submissions and materials. The pleading of course is inadequate, but I consider that it would be premature to shut the plaintiff out completely, at least at this stage, given the need for caution when faced with an application for summary judgment. Of course, there may come a point, in the not too distant future, where the inability of the plaintiff to advance a properly pleaded statement of claim will be fatal to his case.

The plaintiff may also wish to consider whether a more effective remedy for his grievances lies elsewhere, such as through an application for judicial review of the Council's decision to impose the prohibition (or its decision not to revoke the prohibition entirely). Such an application would be out of time, and would not enable the plaintiff to bring a claim for damages, but as the plaintiff's primary objective appears to be to gain access, or less restrictive access, to the Yea library, then such a proceeding may be a more appropriate vehicle to ventilate his grievances than a claim for personal injury.[3]

4 On 4 September 2019 I made orders setting a timetable for Mr Russell to file and serve a proposed amended statement of claim, and in the following weeks I made orders referring Mr Russell to the Victorian Bar Pro Bono Scheme ('Scheme').

5 Mr Russell was unable to obtain legal assistance from the Scheme, and was unable to comply with the timetable set down on 4 September 2019. To cut a long story short, a hearing was held on 16 March 2020 to hear the parties' submissions regarding the following matters:

(a) whether Mr Russell had complied with the orders made on 4 September 2019, as subsequently varied; and

(b) whether Mr Russell should be permitted to rely upon a document filed on 24 October 2019 ('first draft amended statement of claim').

6 Following the hearing on 16 March 2020, the parties were provided with the opportunity to file further written submissions, which they did.

7 The defendants opposed the application by Mr Russell to rely upon the first draft amended statement of claim. It is not necessary for present purposes to reproduce or summarise in detail the submissions made by the parties with respect to the first draft amended statement of claim. However, in my reasons delivered on 17 August 2020 ('second reasons'),[4] I identified the following issues in the application:

(a) whether Mr Russell has, or may have, a cause of action known to the law;

(b) whether the draft amended statement of claim complies with the rules of pleading;

(c) if not, whether Mr Russell should be given an opportunity to file a further amended statement of claim; and

(d) if so, what assistance should be provided by the Court, given that Mr Russell is self-represented, and struggles with putting forward his claims in a logical and coherent form.[5]

8 I went on further to draw the following conclusions:

(a) based upon the materials in evidence, and without commenting on the prospects of success of any claim, Mr Russell may have a cause of action known to the law, namely, a claim against the defendants for the intentional infliction of economic harm;

(b) however, the material facts upon which Mr Russell's claim was based were not spelt out in a coherent way, in the draft amended statement of claim, or, for that matter, anywhere else; and

(c) I stated as follows (omitting footnotes):

There is no question that the current state of affairs with respect to the articulation and presentation of Mr Russell's case is unacceptable. A statement of claim must be in a single document, and self-contained, such that it is not necessary to refer to other documents (themselves difficult to read, being handwritten, and poorly expressed) in order to determine what the nature of the plaintiff's claim, and the facts the plaintiff relies upon (and will need to prove) in order to obtain relief from the Court. While self-represented litigants are entitled to some latitude, and some assistance from the Court, the rules of pleading must be obeyed, so that the defendant (and the Court) can understand the way in which a plaintiff's case is put. The draft amended statement of claim should not be permitted to proceed in its current form.

I accept that while the Court should exercise caution in dismissing proceedings without a trial simply because of the inability of a plaintiff to produce a comprehensible and coherent statement of claim, the authorities make it clear that, if there is no real prospect of a plaintiff being able to get their case in order, the proceeding should be dismissed, and judgment entered for the defendant.

Mr Russell fully admits that there are limitations on his capacity to get his paperwork in order. I have some reservations as to whether he will be able to prepare a document which will meet the relatively lenient standard that would be required of a litigant in person. Those concerns would support acceding to the defendants' submission that summary judgment be granted, and this proceeding be brought to an end, on the basis that they should not be required to bear the ongoing cost and inconvenience of responding to confusing and deficient documents concerning what they consider to be an unmeritorious claim.[6]

9 However, notwithstanding those reservations, I considered that it was premature to shut Mr Russell out of bringing his claims in the proceeding, and that he should be given "one last opportunity to get his house in order". In order to guide Mr Russell as to what should be included in a further pleading, I gave the following directions in the second reasons:

... a further draft amended statement of claim must include or address the following matters, on the assumption that Mr Russell's core claim is that the defendants have intentionally caused him mental harm:

(a) it must specify the action or actions of the defendants (or either of them) which he says caused him mental harm;

(b) it must specify the nature of the harm said to have been suffered by him as a result of the defendants' actions, including, in particular, any recognised psychiatric illness said to have been suffered by him as a consequence of the defendants' conduct;

(c) it must specify what matters Mr Russell relies upon to support his allegations that the conduct of the defendants (or either of them) was intended to cause him mental harm, noting that r 13.10(3)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) requires that proper particulars of allegations concerning the defendants' state of mind when making allegations that the defendants intentionally caused Mr Russell harm;

(d) it must specify the relief he seeks from the Court; and

(e) if Mr Russell intends to rely upon the Charter, he must identify the section of the Charter upon which he relies, and what actions or conduct of the Council he says breached that section or those sections of the Charter.

Further, the draft amended statement of claim must be a single, legible document (preferably typed) which spells out Mr Russell's allegations in a logical sequence. There must be no cross-referencing to other documents, with the following exceptions:

(a) the particulars in the draft amended statement of claim may refer to documents which Mr Russell says evidence the conduct of the defendants that he says caused him harm, and documents which he says evidences the defendants' allegedly malicious intentions towards him; and

(b) documents which he says evidences any recognised psychiatric injury suffered by him, such as expert reports.

For the avoidance of doubt, it is only necessary for the draft amended statement of claim to refer to the documents relied upon by Mr Russell. It is not necessary to reproduce or seek to summarise their contents.[7]

For completeness, I do not propose to make orders that Mr Russell be provided with pro-bono legal assistance, as requested in his submissions of 24 March 2020. First, the Court has no power to compel the Victorian Bar to provide Mr Russell with legal assistance. Given that referral orders were made in September 2019, and Mr Russell was unsuccessful in obtaining legal assistance, making further orders to that effect would be futile.

11 Accordingly, on 17 August 2020, I made the following orders:

1. The plaintiff file a further draft amended statement of claim by 2 October 2020.
2. By 4.00pm on 16 October 2020, the solicitors for the defendants notify the plaintiff and the Court whether it objects to the filing of the draft amended statement of claim.
3. Further directions for the conduct of the proceeding (or, as the case may be, for the further hearing of the plaintiff's application to amend his statement of claim) will be made 'on the papers' not before 19 October 2020.
4. The defendants' costs of and incidental to the plaintiff's application to amend his statement of claim be reserved for determination 'on the papers' not before 19 October 2020.
5. If the plaintiff fails to file and serve a draft amended statement of claim by 2 October 2020, the proceeding stand dismissed.

12 Things did not go smoothly thereafter. Again, to cut a long story short, while I will not traverse every step taken and every document provided to the Court between 17 August 2020 and the hearing on 22 February 2021, what transpired can be summarised as follows:

(a) on 2 October 2020 Mr Russell filed a document headed "Further Draft Amended Statement of Claim filed pursuant to the order of ... 17 August 2020", ('proposed amended statement of claim') prepared by a solicitor, Mr Paul Simon;

(b) on 16 October 2020 the solicitor for the defendants filed and served a notice of objection with respect to the proposed amended statement of claim ('objection');

(c) subsequently, there was correspondence between the parties and the Court regarding applications by Mr Russell for extensions of time, and an offer of compromise served by Mr Russell. The date for Mr Russell to respond to the objection was extended to 29 January 2021. This order was also a self-executing order which, upon reflection, turned out to be less than effective in truncating the dispute between the parties, which is unfortunately often the case;

(d) in January and February of 2021 there was further correspondence between the parties and between Mr Russell and the Court. Some of Mr Russell's correspondence was difficult to follow, but essentially, Mr Russell submitted that he should have more time to respond to the objection, notwithstanding that some of the correspondence sent to the Court had already responded to the objection; and

(e) while I made orders providing Mr Russell with a further extension of time, at the request of the defendants, and with the agreement of Mr Russell, a further hearing was listed for 22 February 2021 by telephone in order to:

(i) clarify whether Mr Russell had complied with the self-executing order; and

(ii) confirm which document Mr Russell intended to rely upon as his proposed pleading.

13 The proposed amended statement of claim was prepared by a solicitor, Mr Paul Simon. Apart from the formalities, the proposed amended statement of claim provides as follows:

1. On or about 13 April 2106 an incident occurred where it was alleged by a Mrs. Tull, an employee of the first defendant, that the plaintiff had assaulted her at the library("the incident").
2. As a result of the incident the first and/or second defendant prohibited the plaintiff from entering any council premises for a period of 12 months.
3. In or about April 2017 the defendants reviewed and renewed the prohibition of the plaintiff to about April 2018.
4. On 24 April 2018 the second defendant invited submissions to be provided by the plaintiff as to any variations of the prohibition.
5. On or about 9 November 2018 the defendants informed the plaintiff that there had been variations to the prohibition.

PARTICULARS

The said variation was in writing and is constituted by a letter from the second defendant to the plaintiff. A copy of the letter is in the plaintiff's possession and can be provided to the defendants at their request. The defendants maintained the restrictions on the plaintiff in visiting the Yea Library and restricted access to the Alexandra Library. The plaintiff had requested reconsideration of the restrictions on the basis of incapacity and being required to use an electric wheelchair.

1. The continuing prohibition and restriction on access resulted in the plaintiff suffering injury.

(a) Psychiatric injury

(b) Stress, anxiety and depression

(c) Aggravation of pre-existing psychiatric injury

(d) Post traumatic stress disorder

1. The injuries arose due to the intentional conduct of the defendants and/or their servants and/or agents.
2. The conduct of the defendants referred to in paragraph 6 to 8 above contravene the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Act") including section 35 of the Act.

(a) Restrictions on access to council facilities when there was no legal basis to do so.

(b) Discrimination due to restrictions being imposed which did not into account the injuries and medical condition suffered by the plaintiff.

(c) Continuing allegations and restrictions without proper or full explanation or reasons being provided.

1. The second defendant acted without or by exceeding his statutory and legal authority vested in him by virtue of his office.

PARTICULARS

The second defendant acted without authority in the absence of a resolution of the council of the Shire of Murrindindi.

1. As a result of the injuries the plaintiff claims loss and damages. The plaintiff makes no claim for pecuniary loss for loss of earnings or loss of earning capacity. The plaintiff claims past and future medical and like expenses for treatment for his injuries. The plaintiff claims general damages for loss of enjoyment of life and pain and suffering. The plaintiff claims aggravated and exemplary damages as the defendants acted with contumelious disregard for the plaintiff's rights, welfare and wellbeing.

PARTICULARS OF DAMAGE

The plaintiff suffers from mental harm, distress, separation phobia and fear of unwarranted confrontation with the named employee Mrs. Tull. The plaintiff has suffered aggravation and onset of psychiatric injury. Further particulars of pecuniary loss will be provided prior to trial.

14 In the objection, the defendants submitted that Mr Russell should not be given leave to file the proposed amended statement of claim, on the grounds that the proposed amended statement of claim failed to:

1. specify the nature of the harm said to have been suffered by him as a result of the defendants' actions, including, in particular, any recognised psychiatric illness said to have been suffered by him as a consequence of the defendants' conduct;
2. specify what matters the plaintiff relies upon to support his allegations that the conduct of the defendants (or either of them) was intended to cause him mental harm. This also violates r 13.10(3)(b) of the Supreme Court (General Civil Procedure) Rules 2015; and

1. identify the section of the Charter of Human Rights and Responsibilities Act 2006 (Charter) upon which the plaintiff relies, and what actions or conduct of either or both of the defendants he says breached that section or those sections of the Charter.

15 The defendants submitted that the proposed amended statement of claim did not plead that:

1. either or both defendants owed the plaintiff a duty of care, let alone specify the matters upon which the plaintiff would rely in order to make that allegation;
2. the plaintiff was vulnerable to the alleged harm he claims that the defendants have caused him to suffer, let alone specify the matters upon which the plaintiff would rely in order to make that allegation; or

1. the alleged harm the plaintiff is alleged to have suffered was reasonably foreseeable, and reasonably likely to have been caused by the defendant's or defendants' alleged actions, let alone specify the matters upon which the plaintiff would rely in order to make that allegation, and, as a consequence, it is not open to find that either or both of the defendants have wronged the plaintiff.

The plaintiff has now been given three opportunities to plead a statement of claim that is capable of bringing an action in tort against the defendants. He has failed all three times. The latest draft amended statement of claim was prepared by a solicitor, and is still fundamentally defective. The Court should not grant the plaintiff leave to rely on the draft amended statement of claim, with the result that the proceeding be dismissed.

17 While the draft amended statement of claim is much more legible and comprehensible than the original statement of claim, and is in a more conventional form, the criticisms made by the defendants in the objection are largely well‑founded. However, it appears that Mr Russell does not wish to rely upon the draft amended statement of claim to advance his claims in this proceeding, claiming that he was poorly advised by Mr Simons.

18 Subsequently, a document prepared by Mr Russell was received by the Court on or about 28 January 2021 (a typed version was filed on 11 February 2021). This document ('January 2021 document') is reproduced verbatim below:

I, John (Jack) Russell ... make oath & state that the 4 pages of content typed copy of my earlier hand written - 'Further amended - statement of Claim', filed with the Court on the 28th January 2012, is a true & correct verbatim copy for the benefit of all parties.

Background

1. I make this Submission in the absence of Legal Advice at this time, as an attempt to satisfy Orders of Justice Daly As @ 17/8/20.
2. That I have made application to the Court for an extension of time on the 18/1/21, due to my current difficulty.
3. That I have demonstrated that I have a viable cause of action.
4. That it known that I have trouble putting forward my claim in a logical & coherent form whilst self-represented (currently).
5. That I rely upon advice - "Russell" prepared 18/1/21 & filed with the Court - as subsequent to the Red Crest - certification sale of same date (18/1/21 @ 3.14 pm, (on file).
6. That the matter will return on 29/1/21 for Compliance, to Order Made.

Outline of Proposed Interim Further Amended Statement of Claim

in a format that would be the basis for my Instruction to a Legal Advisor -Practioner, but now substitute for the benefit of all parties, due to my current difficulty.

1. That I seek to address the following matters & as addressed @ 28 29[8] in that my core claim is that the defendants 'have' intentionally caused myself mental harm :-

1. a. With the indulgence of the Court & for the avoidance of doubt, I say that @ 29 (a) I repeat & stand by all evidence produced, of the conduct of the defendants' that caused (& is causing) myself harm & such documents which I say evidences the defendants 'malicious intentions towards myself & as the attached Summary of exhibits @ I as specific to harm done & lack of 'duty care'.
2. b. Likewise I annece annexe that summary of exhibits @ II as specific to harm done & lack of 'duty of care'.

1. That I further say that to enable all parties to better understand the case prior to trial, - I address the following matters as outlined & detailed @ 28 (a) to (e) inclive inclusive @ (a) That I rely upon my original Writ & Statement of Claim (later amended) & further say - that as a result of the Decision of December 2018 of Murrindindi Shire Council brought by action of Mr Craig Lloyd to prohibit myself from entering the Yea Library, other than for 2 hours on a Friday morning, that I now suffer from permanent mental harm, distress, separation phobia & fear of unwarranted confrontation with employee Tull & as aggravation & onset of further psychiatric injury & as well known to the Defendants', Council & Lloyd & in total disreg disregard as con contumelious of my rights, welfare, wellbeing, free speach & social interaction. I previously enjoyed on a 'day to day' presentation at The Yea Library & as known to Council & Lloyd. That the 2 defendants' failed to give rise (breach) to 'duty of care' & so avoid causing myself mental harm & by their actions, to ignor recognised psychological or psychiatric injury, & that I state that both defendants were negligent and of breach of statutory duty & for which a certificate of a significant injury is avoided, under the Wrongs act @ (528LAM) by reason S28LC(2)(a), as the 2 defendants' denied, myself unimpeded access to the Yea Library, intentionally inflicting emotional harm upon mysef myself & where in the circumstances, where the defendants knew of my un vulnerability & as a result, their conduct & has (at least) exacerbated my known psychiatric disorder & in their breach of Duty of Care & also of breach of the Charter of Human Rights & Responsibility @ 3.39 as a relevant factor.
2. That my difficulty, currently inhibits my formal presentation & by circumstance - is deficient & other than this cause of action, has reduced my mental capacity to summount essential requirement to replead in accordance with Justice Daly's Reasons. I believe that my action is worthy & has every chance of Defendant success at trial in that they have not adequately defended with any substantive evidence to properly argue damages, asserted, nor any objective reasons for the actions of the 2 defendants, Council & Lloyd that currently has no end date & in the face of the my recorded opinions of my specialis Specialists', Strauss, Wiseman & etc & the fact that I am ill & suffering from mental stress.
3. That I seek immediate relief from this current imposition forced upon myself, or an expedient resolve, if possible.
4. That I trust that the above is co-herant - I can read this into a speach transcript device if necessary as new technowledgy provides.

Ends - Summaries regards Jack Russell

I & II etc over follow 21/1/21

1. It is appropriate by my understanding@ Order/Reasons @ 29 @ (a) & @ (b) & by my reference @ (7)
   1. as specific to (the) harm done & lack & duty of care & of malicious intentions towards myself, I state that by the conduct of the defendants' that imposed restrictions, is well in excess of any possible benef benefit expected or achievable, - & that provided no end date, that the Decision document of December 2018 is evidence of the defendants' malicious intent to remove access to the Yea Library & to cause harm I! & in the knowledge that I was vunerable to mental stress disorder & that I relied upon Social interaction on a daily basis.
   2. That at II I rely upon the medical reporting of Drs. Strauss & of Wiseman & of Ingram as their prognosis of long term, permant permanent mental impairment is their comprehensive expert opinion & of my deteriating mental health as known to the 2 defendants. That I seek relief by the nature of my deteriating mental health that would achieve the removal of all restrictions & of access to that Yea Library be upheld. That the Council & Lloyd are liable for personal damages as addressed at above @ 8.

That Council & Lloyd refused to consider the Offer of Compromise on the basis that such "was premature".

In closing, I state that I have endeavoured to uphold fair & equitable process but suffer from lack of ability, without legal support at this time.

19 As can be seen from the above, the January 2021 document is not in the form of a pleading, is poorly expressed, and hard to follow. The thrust of the January 2021 document seems to be as follows:

(a) Mr Russell is attempting to respond to the directions in the second reasons, but he has had no legal assistance to do so;

(b) Mr Russell wishes to pursue a claim against the defendants for the intentional infliction of mental harm, and has the evidence to establish the defendants' malicious intent and the specific harm caused to him by the defendants' conduct; and

(c) Mr Russell seeks to rely upon the original statement of claim filed in the proceeding, and says further that the decision made by the CEO in December 2018 to prohibit him from entering the Yea library (save for two hours per week) has caused him permanent distress and mental harm, and has aggravated his pre‑existing psychiatric condition, which was well known to the defendants when they made the decision to restrict his access to the Yea library.

20 The references to Dr Ingram, Dr Wiseman, and Dr Strauss in the January 2021 document are references to reports prepared by them in their capacity as medico-legal experts retained for the purpose of a claim for personal injury brought by Mr Russell against the Melbourne City Council in a County Court proceeding. Mr Russell's contention that he does not need a significant injury certificate for the purpose of pursuing a claim for a personal injury said to have been caused by an intentional tort is correct. However, in order to recover damages for negligence or breach of statutory duty, he would need to obtain a significant injury certificate.

21 I understand from the January 2021 document and the submissions made by Mr Russell during the course of the hearing on 22 February 2021 that Mr Russell:

(a) does not wish to rely upon the proposed amended statement of claim;

(b) seeks a further extension of time to enable him to obtain pro-bono legal assistance, to review documents he expects to shortly obtain from the Council via the Freedom of Information Act 1982 (Vic), and to file and serve a further draft amended statement of claim; and

(c) in the meantime, the Court and the defendants should accept the January 2021 document as providing an adequate explanation as to how Mr Russell intends to put his case at trial.

22 The defendants submitted that Mr Russell has been given ample opportunity to obtain legal assistance and remedy the defects in his pleading, objected to any further time being provided to Mr Russell to enable him to get his pleading in order, and repeated their submissions to the effect that enough is enough, and the proceeding ought be dismissed.

23 Accordingly, the current position is that, more than two years after the issue of this proceeding,[9] there is no statement of claim on foot, Mr Russell seeks further time (not specified, but possibly in the order of months) and pro-bono legal assistance to prepare a further proposed amended statement of claim, and the only document which is said to explain the case Mr Russell wishes to advance is not in the form of a pleading, and does not provide the necessary particulars of the elements of a cause of action based upon the defendants' alleged intentional infliction of emotional harm. The January 2021 document cannot stand as a pleading, Mr Russell expressly disclaims the proposed amended statement of claim, and the original statement of claim was struck out in September 2019. On the last occasion the Court referred Mr Russell to the Scheme, Mr Russell was unsuccessful in obtaining legal assistance, such that I can infer that making any further referral would be unlikely to bear fruit.

24 The question currently before me is whether Mr Russell ought to be given a further indulgence, in circumstances where I have, in the first and second reasons, already given quite detailed instructions to Mr Russell as to how he ought plead his case, and in circumstances where neither the Court or the defendants can have any great confidence that the grant of a further extension of time will result in any substantial improvements in the articulation of Mr Russell's claim. Short of drafting the pleading myself, there is little further the Court can do.[10]

25 As noted above, the defendants objected to the proposed amended statement of claim (prepared by Mr Simon, but disclaimed by Mr Russell) on the basis that the proposed amended statement of claim, among other things:

(a) failed to specify any recognised psychiatric injury said to have been suffered by Mr Russell by reason of the defendants' conduct;

(b) failed to specify what matters Mr Russell relies upon to support the allegation that the defendants (or either of them) intended to cause Mr Russell mental harm;

(c) failed to plead that either or both of the defendants owed the plaintiff a duty of care, or the facts relied upon to support such an allegation;

(d) failed to plead that Mr Russell was vulnerable to the harm he was alleged to have suffered (and, I would add, failed to plead that the defendants were aware of that vulnerability, and the facts relied upon to support such an allegation); and

(e) failed to plead that the harm alleged to have been suffered was reasonably foreseeable, and was reasonably likely to have been caused by the defendants' alleged actions.

26 As noted above, the defendants' criticisms of the proposed amended statement of claim were largely valid. However, from my review of the relevant authorities, there is no discussion in those authorities to the effect that it is necessary for a plaintiff claiming damages for the intentional infliction of mental harm to establish that the defendant owed the plaintiff a duty of care to avoid causing such harm.

27 Of course, if Mr Russell seeks to bring a claim against the defendants in negligence or breach of statutory duty (and it seems from the January 2021 document that he does wish to do so), then he would need to plead the existence and content of a duty of care owed by the defendants to him.

28 However, if Mr Russell is happy to confine his claim to one of intentional conflict of mental harm, he would need to show that the defendants had wilfully done an act calculated to cause harm to him and as a consequence causes that harm (including mental harm), without a lawful justification.[11]

29 Further, I have some doubt as to whether it is necessary for a plaintiff in the position of Mr Russell to plead that any harm said to have been caused by the defendants was reasonably foreseeable. Given that the intention of the defendants must have been to cause Mr Russell a particular kind of mental harm, and the defendants must have committed the acts that they did in the knowledge that those acts would, or would probably, cause Mr Russell that particular harm, the focus of this cause of action is on the actual intentions and knowledge of the defendants, not on what a person standing in the shoes of the defendants might reasonably have foreseen would cause harm to Mr Russell. Of course, practically speaking, pleading the facts, matters and circumstances relied upon to support an allegation that the defendants intended to cause harm might well be harder than pleading that harm was, objectively speaking, a reasonably foreseeable consequence of the defendants' conduct, given that Mr Russell would have to provide adequate particulars of the defendants' actual state of mind.

30 Accordingly, while the proposed amended statement of claim has its defects, those defects are not as severe as contended for by the defendants. However, further discussion regarding the proposed amended statement of claim is, strictly speaking, not necessary, as Mr Russell does not wish to rely upon the proposed amended statement of claim. He would prefer to rely upon the original statement of claim, which of course has been struck out.

31 There have been numerous occasions where the courts have, faced with a self‑represented litigant who is unwilling or unable to prepare a pleading in acceptable form, taken the draconian step of dismissing a proceeding.[12] Generally, this step has only been taken after, following numerous attempts, a conclusion has been reached that there was no reasonable prospect of the plaintiff concerned being able to formulate a pleading at least without legal assistance, and the likelihood of the plaintiff obtaining legal assistance was negligible.

32 In Dickens v State of New South Wales,[13] the Court of Appeal upheld a decision to dismiss a proceeding for 'want of despatch and abuse of process'. The plaintiff, a self‑represented litigant, had his statement of claim struck out on two separate occasions, with leave to replead. At a further hearing, Adamson J struck out the third version of the statement of claim, described the pleading as:

... discursive, unparticularised and makes several rolled up allegations. It narrates events, the relevance of which to the causes of action alleged is not expressed.[14]

33 After going into more detail regarding the deficiencies in the pleading, her Honour referred to the statements of the Court of Appeal in Karam v Palmone Shoes Pty Ltd[15] to the effect that a self-represented litigant cannot be allowed to stand behind the shield of ignorance indefinitely, and went on to say as follows:

By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court's function to provide a litigant with legal advice. Nor is the Court to 'settle' a defective pleading so as to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence.[16]

34 Her Honour's statement above was recently referred to by Lonergan J of the New South Wales Supreme Court in Norman v Wall (No 5).[17] While Lonergan J did not disagree with Adamson J regarding the applicable principles in the case before her (where three previous iterations of the statement of claim had been struck out, and the self-represented plaintiffs had previously rebuffed an opportunity to seek pro‑bono legal assistance), she was able to identify material facts to ground a claim against the defendant, and provided the plaintiffs with one further opportunity to prepare a statement of claim limited to a single cause of action, and subsequently reactivated the previous reference to the local equivalent of the Scheme.

35 The dilemma currently facing me is difficult to resolve. On the one hand, Mr Russell has a claim against the defendants which is capable of being formulated, although I suspect that the prospects of him obtaining meaningful relief from the Court are less than stellar. He is of advanced years, has a number of health problems, and frankly concedes that he does not have the skill and ability to prepare a properly formulated statement of claim: the January 2021 document merely contains the instructions he would provide to a lawyer to enable the preparation of an amended statement of claim. And, while on occasion Mr Russell's correspondence and presentation reflects his personal investment in doggedly pursuing his strongly felt grievances against the defendants, in my experience at least he does not appear to be trying to be difficult, or to be deliberately contravening the rules and protocols surrounding litigation. And finally, he has only had one statement of claim struck out, not four or five.

36 On the other hand, this proceeding is not progressing at an acceptable pace, and the best that Mr Russell can do is to promise to attempt to find pro-bono legal assistance (in circumstances where a prior application to the Scheme has been unsuccessful) to draw a further proposed amended statement of claim. In putting forward this proposal, he has in effect conceded that any further efforts by him personally will not progress the matter any further.

37 The defendants have not put on any evidence of specific prejudice, and given the nature of the factual matters underpinning Mr Russell's potential claims, there is likely to be a comprehensive documentary record of the relevant matters and communications. However, I can infer without direct evidence that there is some prejudice to the defendants of being exposed to allegations of this nature, and that prejudice will increase as time passes. In particular, the second defendant, being an individual with a career in local government, and who is no longer employed by the Council for no doubt unrelated reasons, can be assumed to be suffering some ongoing prejudice while this proceeding is on foot. At the very least, the defendants are having to incur the expense and inconvenience of being required to review and respond to the various iterations of the statement of claim, along with requests for extensions and other correspondence, and have had to come to Court (at least virtually) on at least four occasions. And of course, while this matter remains on foot, the proceeding continues to consume the resources of the Court, although that concern is not determinative of itself.

38 What I propose to do is to stay the proceeding, at least for the time being. Making an order that the proceeding be stayed does not preclude Mr Russell applying to lift the stay. The success of such an application will no doubt be dependent upon Mr Russell being in a position to put forward a proposed amended statement of claim in a form acceptable to the defendants and the Court. I will not set a deadline for any application to lift the stay to be made, although if an application was not made within a reasonable period of time, I would anticipate that the defendants would make an application to dismiss the proceeding for want of prosecution, and such an application may well have good prospects of success. However, in the meantime, the defendants (and the Court) will be spared from having to deal with requests for extensions of time and excessive correspondence which fails to advance the matter any further.

(a) save for the reservation of costs, the orders made on 14 December 2020 be vacated;

(b) the proceeding be stayed;

(c) any application by the parties to lift the stay and/or dismiss the proceeding for want of prosecution or otherwise be made by summons with fourteen days' notice to the other party or parties and the Court;

(d) the applications in all outstanding summonses be otherwise dismissed; and

(e) the parties' costs be reserved.

[1] [2019] VSC 560.

[4] [2020] VSC 463.

[8] The reference to "@ 28 29" appears to be the observations I made in paragraphs 28 and 29 of the second reasons. These paragraphs are reproduced under paragraph 9 above.

[9] Part of the delay has been caused by delays on my part in delivering the first reasons and the second reasons. Adding together these periods of delays, and making an allowance for the period leading up to the hearing of the parties' applications and Court vacation periods, there have been approximately twelve months of delay which probably cannot be sheeted home to Mr Russell's dilatory prosecution of this proceeding.

[10] See Austin v Dwyer [2018] VSC 770 for the limitations upon the capacity of judicial officers to assist self‑represented litigants.

[11] Wilkinson v Downton [1897] EWHC 1; [1897] 2 QB 57.

[12] See, for example, Karam v Palmone Shoes Pty Ltd [2012] VSCA 97; Knorr v CSIRO (No 3) [2012] VSC 529 (upheld by the Court of Appeal in Knorr v CSIRO [2014] VSCA 84; Sheehan v Brett Young (No 2) VSC [2015] 651; MacFadyen & Ellis v Bank of Queensland (No 2) [2014] VSC 653; Norman v Wall (No 5) [2020] NSWSC 1062; Karlsson v Griffith University [2020] NSWSC 365; Dickens v State of New South Wales (No 3) [2018] NSWSC 485 upheld by the New South Wales Court of Appeal in [2018] NSWCA 222.

[13] [2018] NSWCA 222.

[14] [2018] NSWSC 485 [11].

[15] [2012] VSCA 97.

[16] [2018] NSWSC 455 [46].

[17] [2020] NSWCA 1062.