Plaintiff v First Defendant

1 This judgment relates to an appeal by the plaintiff of a ruling of Baker JR dated 3 March 2025, to deny an application to vacate a trial date, despite the consent of all parties. The appeal is a de novo hearing,[1] that is, I am required to determine the application afresh, on the evidence presented at the hearing.

2 The circumstances giving rise to the proceeding and ultimately this appeal are set out in detail in Baker JR's reasons, which read as follows:

1. This ruling concerns an application to vacate an upcoming trial date in unusual circumstances, in a proceeding in the Court's Professional Liability List. The plaintiff, Ms Grimmett, is suing her former lawyers and barrister for damages arising from a previous settlement of an institutional abuse claim, which she says should have been resolved for a higher amount. The case has been running since late 2022. Following a recent mediation, the plaintiff applied to vacate her trial date of 17 March 2025, with the consent of the defendants, on the basis that the parties had agreed that she would commence a new claim against the original tortfeasors involved in her previous claim. The rationale for doing so is that as this proceeding concerns an alleged loss of an opportunity to resolve the prior claim for a higher amount, if the plaintiff can recover further damages from the original tortfeasors it may remove the need for this proceeding entirely, as she will not have suffered any loss.

2 The relevant facts can be stated briefly:

(a) The proceeding was commenced on 21 September 2022 and both defendants filed appearances in November 2022. In her statement of claim,1 the plaintiff alleges that the first and second defendants acted as her solicitor and barrister, respectively, from 2015 onwards, to obtain compensation "in respect of personal injury sustained due to physical and sexual and other child abuse" that occurred while she was the subject of a wardship order and in the care of the State of Victoria from January 1971 onwards, and also while placed at the St John's Home for Boys and Girls, run by Anglicare, between March 1971 and February 1982.2

(b) The plaintiff entered into a settlement with the State of Victoria

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1 As amended on 17 May 2024.

2 Amended statement of claim, [4].

and Anglicare in October 2016,3 and in the present proceeding she alleges that the defendants (that is, her former legal representatives) failed to seek compensation for economic losses and settled for too low an amount in relation to her pain and suffering.4

(c) The defendants deny the plaintiff's allegations, and relevantly both have pleaded since December 2022 that the plaintiff has failed to mitigate her losses by not pursuing civil proceedings against the State of Victoria and Anglicare and applying to set aside her prior settlement deed pursuant to sections 27QD and 27QE of the Limitation of Actions Act 1958 (Vic).5

(d) The issue of mitigation has plainly been live throughout the lifetime of this proceeding. In addition to the defendants' defences, the first defendant filed interrogatories for the examination of the plaintiff in June 2023 asking questions about whether an application to set aside the prior deed had been made, what its status was if so, or why such an application had not been made (and whether one would be made) if not.6 Based on the discussion in the course of the hearing of this application it appears there may have also been other correspondence between the parties about this point that was not before the Court.

(e) The case was originally fixed for trial on 5 August 2024,7 however in July 2024 the plaintiff applied to vacate that trial date on the basis that the plaintiff had recently been granted leave to amend her statement of claim, defences to that pleading were not yet due (but would not be filed in time for the existing trial date), and the plaintiff expected she would not be in a position to mediate until about December 2024.8 As a result of this application, a new trial date of 17 March 2025 was set.

(f) The plaintiff applied by summons filed 17 December 2024 to vacate the trial date again, and list the proceeding for further directions on a date after 1 September 2025 (i.e. the present application). In support of this application, the plaintiff relied on an affidavit of her solicitor, David Thomas, affirmed 18 December 2024. That affidavit states, in full:

1. I am the Legal Practitioner representing the Plaintiff in this matter.
2. I now make this Affidavit in support of the Plaintiff's application to:

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3 Ibid, [14].

4 Ibid, [15]-[17].

5 First defendant's amended defence, [20]; Second defendant's defence, [18].

1. First defendant's interrogatories for the examination of the plaintiff filed 30 June 2023, at [13].
2. Orders of 20 April 2023.
3. Affidavit of David Llewellyn Thomas affirmed 22 July 2024, [3].
   1. vacate the trial date set down for 17 March 2025; and
   2. otherwise have the proceeding listed for a Directions Hearing on a date not before 1 September 2025.
      1. This parties a mediation which was conducted by Emily Dewberry, mediator on 9 December 2024 ('the mediation').
      2. The mediation did not result in a resolution.
      3. However, the parties were able to reach an agreed position with respect to the future conduct of this case.
      4. In particular, the parties were able to reach a mutual agreement that the plaintiff would pursue a claim against the original tortfeasors, through a separate legal proceeding (hereinafter referred to as 'the second proceeding').
      5. The parties agreed therefore that this proceeding be delayed pending the outcome of the proceeding.
      6. The reason for a delayed directions hearing is at least in part due to the uncertainty with respect to how the putative defendants may respond to the foreshadowed "new" proceeding.
      7. The Plaintiff also notes that on the issue of prior deeds, there is a pending High Court hearing with respect to this topic which is a recent development in this area of the law.
      8. At the conclusion of the mediation it was agreed between the parties that by consent, the following orders would be sought from the Supreme Court:

Other matters:

The Plaintiff, through her Counsel undertake to the court to commence a proceeding against one or more of Anglicare Pty Ltd, State of Victoria and/or such other defendants, for damages in respect of the abuse alleged in this proceeding by 14 February 2025.

Orders:

1. Trial date of 17 March 2025 be vacated.

2. No order as to costs.

1. The proceeding be otherwise listed for a Directions Hearing on a date not before 1 September 2025.

(g) The application was originally listed for hearing on 7 February 2025, and was identified to be the subject of consent between all three parties.

(h) In the course of that hearing, I indicated that I was uncertain that a proper basis for vacating a trial date had been established, having regard to the requirements of the Civil Procedure Act 2010 (Vic), where:

(i) the proceeding had been on foot since 2022;

(ii) the proposal to delay this proceeding until a separate proceeding had been commenced and resolved would mean that this claim would likely not resolve for another 15-18 months; and

(iii) the vacation of the trial date was not sought because the parties thought the matter would not be ready to proceed, but rather because they had reached an agreement not to go to trial and instead pursue other action first.

(i) I asked whether there were any authorities the plaintiff wished to rely on in support of the application in these circumstances, or otherwise whether there was any evidence as to whether the matter would not be ready for trial on 17 March 2025 as listed, noting that this would be of particular assistance in dealing with the application. I adjourned the hearing for two weeks "to allow the parties an opportunity to file any further affidavit material or submissions in support of the application, should they wish to do so".9

(j) On 20 February 2025, the plaintiff filed a further affidavit of Mr Thomas, affirmed that day, which contains the following new information (excluding the text identifying the exhibits which follows each paragraph):10

1. On or about 8 November 2024, Anglicare produced documents in response to a Subpoena for Production dated 18 October 2024, issued by the First Defendant. Among the documents produced, specifically the Constitution for the Organization Known as St John's Homes for Boys and Girls, it was revealed that parties other than the State of Victoria and Anglicare (i.e., the original tortfeasors) may also be potentially liable for the Plaintiff's injuries, with specific reference to the Anglican Church, the Anglican Diocese of Melbourne, and the Archbishop.

8. Further, by letter dated 25 November 2024, the First

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9 Orders of 7 February 2025.

1. The remainder of the affidavit addresses legal submissions which are addressed below.

Defendant's legal representatives notified us of the First Defendant's intention to amend its Defence if the matter failed to resolve at mediation on 9 December 2024. In the same letter, they stated that the purpose of the foreshadowed amendment is to clarify the First Defendant's position regarding the applicability of the Ellis defence to the claim against Anglicare Victoria and to assert that the First Defendant will argue at trial that the Plaintiff did not lose any valuable opportunity by entering into the settlement (the proposed amendment).

1. As outlined in paragraph 6 of the previous affidavit, in light of this new information, the parties have reached an agreed position regarding the future conduct of this proceeding.
2. On 17 February 2025, I filed a Supreme Court Writ and Statement of Claim dated 17 February 2025 in the Institutional Liability List bearing case number S ECI 2025 00767 (the new proceeding).
3. The Defendants in the new proceeding are:

a. State of Victoria;

b. Anglicare Victoria;

c. Anglican Diocese of Melbourne;

d. Archbishop Philip Freier.

(collectively 'the Defendants')

1. The Defendants in the new proceeding have been served with the Writ and Statement of Claim dated 17 February 2025 and we are awaiting the filing of their respective Appearances.

(k) The hearing resumed on 21 February 2025, relying on Mr Thomas' two affidavits. No evidence was relied upon to indicate that the proceeding would not be ready to proceed to trial, and my own review of the Court file suggests that the proceeding is well advanced and the interlocutory timetable appears to have now been completed. The amendment to the first defendant's defence foreshadowed in Mr Thomas' second affidavit appears to have not yet eventuated.

1. The plaintiff's argument at the resumed hearing of the application was that, in effect, it was unavoidable that the Court would have to vacate the trial date of this proceeding in the present circumstances, and that it was appropriate to do so where the new Institutional Liability List proceeding commenced by the plaintiff (referred to as the 'new ILL proceeding' for convenience) may obviate the need for this proceeding entirely.

2. In response to my questions as to why the plaintiff's current actions could not have been taken sooner, the plaintiff pointed to the rapidly-developing state of the law in relation to institutional abuse claims, including amendments to limitations periods, the nomination of proper defendants, and the setting aside of prior deeds and judgments, as well as more recent jurisprudence concerning the interpretation and application of those legislative provisions. It was submitted that as a result of this series of changes, the capacity to recover damages from the original tortfeasors has advanced far beyond what has been envisaged previously. The plaintiff also noted that the interpretation of "just and reasonable" in the context of applying to set aside a prior deed of settlement was to be considered by the High Court in the near future.

3. In relation to the provisions of the Civil Procedure Act, the plaintiff submitted that it would be a waste of judicial and court resources to require the trial of this proceeding to go ahead when there is another proceeding that is capable of being pursued against the original tortfeasors. Senior Counsel for the plaintiff submitted that, requiring the trial to proceed where the new proceeding is now able to be pursued would be inconsistent with the purpose of the Civil Procedure Act.

4. As noted above, the defendants consented to the plaintiff's application, and accepted that any damages recovered against any defendants in relation to the abuse (whether they were defendants to the original claim or not) may be relevant to the quantification of any damages in this proceeding, if the plaintiff succeeds in establishing that one or both defendants were negligent.

5. There is no question as to the Court's power to make the orders sought in this application: r 48.06 of the Supreme Court (General Civil Procedure) Rules 2015 provides a power to vacate a trial date and give further directions for the conduct of a proceeding. The issue that arises in this application is whether an appropriate basis to do so exists having regard to the available evidence and the requirements of the Civil Procedure Act.

6. As indicated to the parties in the course of the hearing, I am concerned about what has occurred in this proceeding. The claim has been on foot since 2022, and its substance has not changed materially in that time. It has always been focused on whether the previous claim was resolved for too low an amount, or inappropriately excluded particular heads of damages. The defendants' cases in response have always included an argument that the plaintiff has failed to mitigate her losses by reference to the ability to bring an application to set aside the prior settlement deed under the Limitation of Actions Act 1958 (Vic).

7. The arguments raised by the plaintiff in this application would be compelling if the present situation arose before, or early in the life of, this proceeding. It did not, however, and the plaintiff's submissions and evidence do not grapple with the temporal issues that loom large over this application, and the significance of the orders being sought.

8. The timing of what has occurred in this case, the explanations provided, and the course proposed by the parties, combine to cause me to conclude that the application should not be allowed in the present circumstances, on the evidence that has been identified to date. My reasons for this are as follows.

9. First, the timing of the commencement of the new ILL proceeding has not been adequately explained or justified. While it is true that the new ILL proceeding involves claims being made against two new defendants whose identities appear to have been ascertained as a result of the subpoena addressed to Anglicare in November 2024, the other two defendants to the new proceeding are the entities that were involved in the plaintiff's original claim. It is difficult to see why a claim against those parties has not been capable of being brought at any stage during the course of this proceeding.

10. The addressee to the first defendant's subpoena was Anglicare, which is a party that has been known to the plaintiff all throughout this proceeding - it was a defendant to the original claim, and was the addressee of a subpoena issued by the plaintiff herself in April 2024 in this proceeding. If investigations into a new ILL proceeding had been in contemplation at any earlier stage, it clearly would have been within the plaintiff's power to ascertain the identities of any further potential defendants at an early stage by seeking the same kinds of documents that the first defendant eventually did. Otherwise, had a fresh ILL proceeding been commenced at a much earlier point in time, it is likely that any issues concerning the identification of the appropriate tortfeasors would have emerged much earlier than now in the course of that proceeding.

11. If the basis of the request to vacate the trial date is the plaintiff's need to have an opportunity to mitigate her losses, no explanation has been advanced as to why this has not occurred until now. As above, it appears that the plaintiff could have pursued action against the original tortfeasors at any stage, and could have taken steps to identify the two new defendants at any earlier stage. Neither the affidavit material nor the submissions made in the course of the hearing address why such steps were not taken, when the issue of mitigation of loss has been raised in the defendants' defences for at least two years since December 2022.

12. On the question of why the new proceeding was only being pursued now, the submissions made in the course of the hearing focused broadly on the rapid developments in the law concerning institutional abuse claims. A number of points may be made about this:

(a) first, all of the relevant legislative amendments in this space occurred well before the present claim was commenced: the final major reform occurred in 2018 with the enactment of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. Division 5 of Part II of the Limitation of Actions Act 1958 (Vic) (dealing with the removal of limitations periods and setting aside prior settlements and judgments) was introduced prior to this, and all operative amendments to this Division commenced prior to the commencement of this proceeding in December 2022. The legislative landscape was essentially set prior to this proceeding being initiated, and it does not provide any explanation for why it might be said that the commencement of the new ILL claim is now possible in 2025 where previously it was not. The plaintiff has had the same legislative provisions available to her throughout the lifetime of this case.

(b) second, the broad references to the developing jurisprudence concerning setting aside prior deeds were, with respect, so generalised as to be of no real assistance. Plainly enough, the law develops over time, however this general proposition does not address the specific issue arising in this application of why the new proceeding is only being commenced now. Common experience in the Court's personal injury lists is that applications to set aside prior deeds have been regularly issued by plaintiffs for a number of years now. If there was a specific decision or point in time that led the plaintiff to determine that it was possible to pursue the new ILL proceeding where it previously was not, it has not been identified. I am not persuaded that I should assume that as a result of some unspecified series of judgments in the past two years, there came a point where the plaintiff determined that the new ILL claim was viable when she had previously considered it was not.

(c) third, the reference to a forthcoming High Court decision is of no assistance to this application: for one thing, it cannot possibly be presumed what, if any, effect such a decision will have on the plaintiff's claim, and for another, it is well established that the task of the Court is to decide cases on the basis of the law as it is, not to delay hearing cases based on changes that might occur.11

(d) fourth, the affidavit material relied upon by the plaintiff is silent as to these questions of timing, other than the references extracted above to the identification of the potential new defendants from the subpoenaed documents received from Anglicare in November 2024. Mr Thomas' second affidavit does not address why the claim against Anglicare and the State of Victoria could not have been brought previously. This is despite the plaintiff being given the opportunity to put on further affidavit material at the first hearing of the application, after hearing the concerns expressed on that occasion.

1. Taken as a whole, I am not persuaded that this is a situation of a plaintiff

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11 See, e.g., Taylor v Trustees of the Christian Brothers [2025] VSC 25.

only now being able to take steps that were previously unavailable to her. By far the more likely interpretation on the evidence available is that the plaintiff has pursued this proceeding since December 2022 without intending to take steps to pursue a separate proceeding in response to the mitigation issues raised in the defences. That is a legitimate course that has been open to the plaintiff to take, however it can only have been a positive choice her lawyers have made or a failure to have considered the issue earlier. In either case, the very late change of course proposed in the present application has not been appropriately justified or explained.

1. Second, the delay that would be created by the proposed adjournment is substantial. As noted above, the proceeding has been on foot since 2022, and is already on its second trial date. Cases currently being issued in the Court's Institutional Liability List are generally being allocated a trial date around 15 months after their commencement. This timing assumes that all interlocutory steps are able to be completed on time and the parties do not encounter any delays. The time to trial is commonly longer if one or more parties issue a particularly time-consuming application - such as an application to set aside a prior deed of settlement - which would be unable to be fully prepared, heard and determined in the time available within a standard timetable.
2. The result here is that even if things go well, the new ILL claim will probably not reach a mediation until the first quarter of 2026 if it has only just been issued, and will likely not be given a trial date until closer to the middle of 2026. If an application concerning the prior settlement deed needs to be heard in full and time is required for a reserved judgment to be prepared, or if there are other substantive delays in the course of the proceeding, it is not inconceivable that the new ILL claim might not reach trial until late 2026 or even early 2027.
3. Third, I am not persuaded by the plaintiff's suggestion that proceeding with the trial as scheduled would lead to an improper result. Plainly enough, the plaintiff was proceeding towards trial up until December 2024 without any prospect of a new ILL proceeding being a hindrance to the trial in this proceeding. The plaintiff would have run her case in the knowledge that she would need to address the defendants' mitigation arguments in a setting in which there would be no amount identified that she would recover from the original tortfeasors.
4. That position remains the same today: there is no real prospect that the new ILL proceeding will result in any settlement, judgment or order that might affect the plaintiff's position in this case by the time the trial is heard. I do not see why proceeding with the trial as scheduled leads to a process that is any more or less problematic than what was already going to be the case prior to December.
5. Moreover, damages are often assessed and claims quantified in circumstances of imperfect or incomplete information. It does not appear to be inevitable that the lack of an outcome from the new ILL claim creates an insurmountable problem for the conduct of the plaintiff's trial in this proceeding.
6. Fourth, I disagree with the plaintiff's submission that the maintenance of the trial date would be wholly inconsistent with the requirements of the Civil Procedure Act.
7. To begin with, I note that sections 7 and 9 of the Civil Procedure Act focus their attention on steps taken in a specific civil proceeding, not across multiple proceedings or in relation to broader disputes between parties at large.12 The Court is required by s 9(1) to further the overarching purpose in s 7 by having regard to a number of factors in making any order, and may have regard to a number of specified matters in doing so:

9. Court's powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects -

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters -

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1. Section 9(1) refers repeatedly to steps "in a" civil proceeding, or the determination of "the" civil proceeding at hand. Section 7(2) refers to the overarching purpose "in relation to civil proceedings", and s 7(2) refers to the determination of "the" proceeding by the court.

(a) the extent to which the parties have complied with any mandatory or voluntary pre litigation processes;

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h) the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not -

(a) limit any other power of a court to make orders or give directions; or

(b) preclude the court from considering any other matters when making any order or giving any direction.

1. Central to the required approach is a consideration of what is required to facilitate the "just" determination or resolution of the proceeding or the real issues in dispute. Commonly understood in the present context, this at least requires all parties with an interest in the proceeding to be afforded an adequate opportunity to prepare their case for hearing. The arguments made in the plaintiff's affidavit material appear to accord with this view.13
2. The difficulty that arises is that, on the basis of the evidence available, it appears that the plaintiff has had ample opportunity to take steps to seek to mitigate her losses since the commencement of the proceedings. The plaintiff is only taking steps to pursue this course now, however. As above, that is either a choice or an omission, but in either case the amount of time that has now passed without any steps being taken in

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13 E.g., second Thomas affidavit, [14].

this regard weighs against the contention that proceeding to trial would be less likely to lead to a just outcome.

1. As against this point, however, refusing the application in circumstances where all parties have consented to it would mean that the defendants are also put to the expense and inconvenience of a trial which could prove to be avoidable. I accept that proceeding to trial against the parties' wishes is at the very least likely to be inconvenient, and on one view may be less cost-effective than taking the proposed 'wait and see' approach to the scheduling of the trial. This is a point in favour of the plaintiff's proposed course.

2. There are a number of considerations in s 9(1) of the Civil Procedure Act which in my view also weigh against the plaintiff's preferred outcome, however, contrary to the submissions made and the affidavit material filed. In particular, there are a number of provisions indicating the high value placed on the efficient conduct of litigation, the progression of claims without delay, and the responsible use of court resources - see sections 9(c) (the efficient conduct of the business of the court), (d) (the efficient use of judicial and administrative resources), (e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for (i) the fair and just determination of the real issues in dispute; and (ii) the preparation of a case for trial), and (f) (the timely determination of the civil proceeding).

3. Contrary to the plaintiff's submissions, I do not consider that most of the matters in s 9 support the argument that the trial date should be vacated. Addressing those considerations in turn:

(a) The "just determination of the civil proceeding" is plainly to be achieved by a trial of this proceeding. The 'proceeding' in this context is defined by the plaintiff's decisions: she has commenced a claim arguing that she has suffered a loss of opportunity and has pursued it until very close to trial with the defendants' mitigation arguments remaining in place. As above, I am not persuaded that a trial in the circumstances would lead to an unjust (or less just) determination of the proceeding: the parties have had two years to prepare the claim at this stage, and all involved in the proceeding must have understood clearly what the live issues between them were.

(b) The "public interest in the early settlement of disputes" also reflects the Act's interest in the timely resolution of claims. While the present circumstances could probably not be described as "early", the substantial delay that would be introduced if the proposed orders are made would clearly be further from the object described in this sub-section than would the maintenance of the trial date.

(c) The "efficient conduct of the business of the court" was relied on by the plaintiff to support the adjournment, as the trial of the proceeding may be unnecessary if the new ILL claim resolves in a particular way. I think the difficulty with that proposition is that, firstly, the plaintiff's proposed course of action leaves both this proceeding and the new ILL proceeding unresolved for potentially 1-2 more years, rather than having this proceeding at least determined relatively soon, and secondly, as expanded on below, this proceeding already has a trial date allocated to it that will go to waste if the matter is adjourned. On balance I do not consider the vacation of the trial date would further the efficient conduct of the business of the court.

(d) The "efficient use of judicial and administrative resources" was pointed to in a similar fashion by the plaintiff. There is an argument in the plaintiff's favour that the proposed vacation of the trial date would mean a judge's time would not need to be taken up with hearing the trial and preparing a judgment, although again, the trial date has already been allocated and will go to waste if the application is allowed. Contrary to the plaintiff's position, I do not think the adjournment of the trial leads to a more efficient use of the Court's administrative resources, however. If the proceeding is adjourned for a lengthy period it will still occupy administrative resources in the ongoing management of the court, and will require further time and attention at an unspecified point in the future to re-list the matter for further directions and allocate a new trial date, and then to have preparations made for a new trial. Overall I consider this sub-section to be a neutral consideration, therefore.

(e) I consider that the object in sub-section 9(1)(e), 'minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for (i) the fair and just determination of the real issues in dispute; and (ii) the preparation of the case for trial', clearly supports the maintenance of the existing trial date. As above, I am not persuaded that the trial date does not facilitate a fair and just determination of the real issues in dispute, and further, despite being asked about this at the conclusion of the first hearing of this application, no party put on any evidence (or made any submission at the second hearing) suggesting that the matter would not be ready for trial. In the circumstances, I consider that minimising delay would require the maintenance of the previously-listed trial date, rather than vacating the trial-date and relisting it at an unspecified time in the future.

1. Ultimately, the Court is required to seek to give effect to the overarching purpose of the Civil Procedure Act, "to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute".14 A delay of the trial may result in the proceeding no longer being pursued, and if that occurs the parties would not incur the expense and inconvenience of proceeding to trial in this proceeding (although that inconvenience would necessarily bring about a conclusion to the proceeding much sooner, with the determination of the issues in dispute by the Court). It would also result in a significant waste of public resources, through the loss of a trial date and requiring the ongoing resources of the Court to manage a proceeding commenced in 2022 until potentially mid to late 2026 or even 2027. There is also the possibility that the new ILL claim does not remove the need for this proceeding (for instance, if the plaintiff does not succeed in setting aside her prior settlement), in which case the delay will have brought about no actual benefit. Although I do not think it is entirely clear-cut, in the unusual circumstances of this application, I consider the overarching purpose is best advanced by having the proceeding continue to trial.

2. Fourth, there appear to be parallels that can be drawn with other situations of late-breaking developments putting a trial date at risk (admittedly occurring within the confines of one civil proceeding rather than being driven by events in a different proceeding). Following Aon Risk Services Australia Ltd v Australian National University,15 it is well understood that case-management considerations and the efficient use of public court resources are significant factors in determining late applications that might affect a trial date. The interests of the parties, or the relative prejudices or benefits each might experience, are not the only factors a court must bear in mind.

3. Had the present application arisen solely within this proceeding (such as an amendment to a pleading, for instance), for reasons set out above, I expect the applying party would have faced some difficulty in obtaining leave to take a very late step that would have disrupted the trial date, absent an adequate explanation for the delay. The situation that arises in this application is somewhat unusual as it arose because of a step that the plaintiff is entitled to take without the involvement of

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1. Civil Procedure Act 2010 (Vic), s 7.

2. [2009] HCA 27; (2009) 239 CLR 175.

the Court or other parties, being the commencement of a new civil proceeding.

1. In a setting where broader case-management considerations, the responsible and efficient use of court resources, and the maintenance of public confidence in the judicial system are of growing importance in the operation of courts with increasing case loads and proportionately fewer resources, I have difficulty with the plaintiff's position that the commencement of the new ILL claim leaves the Court with no choice but to vacate a trial date. This perspective reverts to focusing squarely on the positions of the parties without regard to the broader considerations referred to above. It also suggests that the Court is left without the ability to control its own processes and operations in this respect, which is an unacceptable outcome.16

2. In those circumstances, I do not think there is anything inconsistent or inappropriate about the outcome of the present application being equivalent to any other application that arose solely within a proceeding, where a late development that would jeopardise a trial date may not be permitted without an adequate explanation.

3. Finally, I do not think the application really grappled with the nature of a trial date and the significance of what is being sought.

4. Trial dates are set by the Court. To vacate a trial date, a proper basis must be demonstrated: mere consent amongst the parties is relevant, but it is not enough. Trial dates are not items that parties can expect to bargain over or use as part of a negotiation. The best they might hope for are to agree on 'not before' dates for proposed listings, or to consent to applications that might be made regarding trial dates, however trial dates are ultimately matters within the Court's control. They can, and often are, vacated as the interests of justice require - usually when it is apparent that a proceeding will not be ready for trial on the date fixed. They are not typically characterised as being negotiable or optional, however.

5. Most importantly, trial dates are public resources. They represent a commitment by the Court that resources, including judicial and other staff time, will be available to facilitate the trial of a specific proceeding at a specific time. They are finite and in high demand, as the Court can only guarantee the availability of its resources for so many proceedings each week given the numbers of judges, court staff and other resources that are available.

6. In the context of the present application, the current trial date has been set since July 2024. As a result of the timing of the application, if the trial date is vacated that spot in the Court's calendar will be wasted. It

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1. There are any number of other situations that might be considered where the problematic nature of this perspective is apparent. What would happen if a hypothetical plaintiff commenced a fresh ILL proceeding while mid-way through a Professional Liability List trial concerning the same subject-matter, for instance, or if they did so after a trial had concluded but before a judgment had been delivered?

will not be possible to fill it with another trial on such short notice. This does not lead to an efficient use of the Court's limited resources, which causes detriment to all court users.

1. Further, every proceeding in the Professional Liability List that has been set down for trial with a later date since that time (which is all such cases other than a very small minority where expedited trials were granted) will have been given a date that was some number of weeks later than it otherwise might have been because 17 March 2025 was reserved for this proceeding. Although a delay of a few weeks may sound like little difference to those who are frequently involved in litigation, it bears observing that it represents additional weeks where individual plaintiffs and defendants in other proceedings may be left facing the stresses, uncertainties and anxieties involved in upcoming hearings that may have significant financial and other consequences for their lives, corporate or institutional parties may be left with uncertainty about outcomes and a lack of finality concerning what are often very significant disputes, and witnesses may be left with the uncertainties and anxieties associated with giving evidence and being cross-examined.
2. In addition, as would be apparent to the parties, the Court is dealing with many lists experiencing unprecedented growth and numbers of pending cases, without equivalent increases in resources. Wasted trial dates only serve to make the Court's operations less efficient.
3. A lost trial date is not an insignificant matter. The consequences it brings for other court users are not acceptable, and the impact on the proper running of the Court for the benefit of all Victorians is not trivial. I do not think the plaintiff's evidence or submissions really grappled with this reality. It is necessary that a late vacation of a trial date be appropriately justified by the circumstances giving rise to the application. In my view, the lack of an adequate explanation and the apparent delay in addressing issues of mitigation in this proceeding, and the agreement reached between the parties at mediation, do not rise to this level.
4. Overall, therefore, the consequence of the above considerations is that I do not consider it is appropriate to make the orders sought. If a valid basis does exist to vacate the trial date, that application can be made to the trial judge in due course on proper material.
5. In the unusual circumstances where the application was refused despite all parties consenting to it, although I appreciate the parties did not make any submissions on this issue, the only appropriate order I can anticipate concerning costs is to order that the costs of the application be costs in the proceeding. I will therefore make an order to that effect.

3 The plaintiff advanced essentially the same submissions which had been relied upon at the hearing before Baker JR. The key submission was that it would be against the overarching purpose of the Civil Procedure Act 2010 (Vic) (the CPA), to require the parties to run a trial, where the new proceeding, against the original tortfeasors, may render this proceeding inutile. The plaintiff also contended that if this proceeding was 'forced' to commence on the current trial date and proceed to judgment, with the possibility of an appeal from such judgment, the new proceeding may come on for trial before this proceeding has been resolved. This too was put as a scenario which would be inimical to the purposes and intent of the CPA.

4 The first and second defendants took a neutral stance in the appeal.

5 At the hearing of the appeal, both defendants foreshadowed seeking leave of the Court to amend their existing defences. Subsequent to the hearing, and by the consent of the parties, I granted each defendant leave to amend.

6 The amendments to each defence included the addition of a sub-pleading in response to paragraph 15 of the plaintiff's amended statement of claim in the following terms:

... on 17 February 2025 the plaintiff commenced proceeding 00767 of 2025 in this Honourable Court against State of Victoria, Anglicare Victoria, the Anglican Diocese of Melbourne and Archbishop Philip Freier (the New Proceeding), by which she claims damages for pain and suffering, loss of earnings and impairment of earning capacity, and medical and like expenses, in respect of the same injuries arising out of the same abuse she alleges in this proceeding, and accordingly the plaintiff has not lost the opportunity to obtain compensation as alleged;

7 In addition, the first defendant amended its particulars in relation to the allegation the plaintiff has failed to mitigate her loss, in the following terms:[2]

20. If, which is denied, the First Defendant is liable to the Plaintiff:

(a) the Plaintiff has unreasonably failed to mitigate her loss and damage; and

(b) the First Defendant's liability (if any) is therefore reduced by 100% or such other proportion as the Court considers just and equitable having regard to the Plaintiff's share in the responsibility for the loss and damage.

(1) The Plaintiff has failed to mitigate her loss by failing, before commencing this proceeding, to make an application to the Court under section 27QD of the Limitation of Actions Act 1958 (Vic) for the deed of release to be set aside under section 27QE of the Limitation of Actions Act 1958 (Vic) on the basis that it is just and reasonable to do so and which application would, if successful, permit the Plaintiff to now bring a civil claim against the State of Victoria and Anglicare.

(2) Further:

(a) SJH [ST John's Home for Boys and Girls] operated Hindson House under the auspices of the Anglican Church of Australia within the Diocese of Melbourne, operated Hindson House in furtherance of the objects of the Church and was recognized as an approved agency of the Church in carrying out the objects of SJH;

(b) before commencing this proceeding, the Plaintiff could have claimed, but did not claim, damages in respect of the abuse she allegedly suffered whilst accommodated at Hindson House from the Anglican Diocese of Melbourne and/or the Anglican Church of Australia, as NGOs who may be sued pursuant to the provisions of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018;

(c) the Plaintiff's failure to claim damages against the Anglican Diocese of Melbourne and the Anglican Church of Australia pursuant to the provisions of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 in respect of their responsibility for Hindson House was unreasonable, as is demonstrated by the plaintiff commencing the New Proceeding in February 2025;

(d) in the premises, the Plaintiff has failed to mitigate any loss she allegedly suffered as a consequence of entering into the settlement agreement and executing the deed in October 2016.[3]

8 The plaintiff submitted that these amendments constituted a significant change in this proceeding, namely that each defendant now alleged that the plaintiff had not suffered any loss of some right, right of value, or chose in action, being the alleged loss of opportunity to recover damages against the original tortfeasors or their nominated representative.[4] It was said that this was a further justification for the adjournment to be granted, as it was not possible to determine the correctness of the defendants' pleadings until the proceeding against the original tortfeasors or their nominated representatives had been further advanced.

9 The JR's reasons are comprehensive, and disclose a carefully considered weighing up of the competing considerations in the plaintiff's application to vacate the trial date. I agree with the reasons in their entirety.

10 The new amendments to the defences do not provide a good excuse to justify a vacation of the trial date. The original defences, filed 2 years and 3 months ago, expressly pleaded the plaintiff's failure to mitigate, and that any liability by either defendant for losses suffered by the plaintiff, was reduced by as much as 100% as a result. Those defences also pleaded that the plaintiff had not lost a valuable chance of receiving a greater amount of compensation. The new amendments, which go to loss of chance and failure to mitigate, are a further particularisation of the same issues, and are in response to the plaintiff issuing the new proceeding.

11 There is an additional reason which further supports the Court's refusal to vacate the trial date.

12 The plaintiff's solicitors' unexplained failure to issue the new proceedings at an earlier point in time can be fairly described as a blatant failure to comply with the overarching obligations of the CPA. If the Court was to grant the adjournment on the material before it, there is a risk that other practitioners could perceive this as the Court condoning, or at least, tolerating inordinate inaction by a party to a civil proceeding. This could inadvertently have flow on effects in other proceedings, and would undermine the overarching purpose of the CPA as it applies to all civil proceedings in Victoria.[5]

13 Plaintiff's counsel was unable to offer a satisfactory answer to the questions posed by Baker JR in footnote 16 of the reasons. These were:

What would happen if a hypothetical plaintiff commenced a fresh ILL proceeding while mid-way through a Professional Liability List trial concerning the same subject-matter, for instance, or if they did so after a trial had concluded but before a judgment had been delivered?

14 The plaintiff, in essence, appears to be seeking that the trial date be vacated as a result of her having only very recently taken responsive steps to the defendants' pleading that she has failed to mitigate her loss, in circumstances where this issue has been apparent since December 2022 and no good excuse has been provided for the delay. Such prolonged inaction cannot be sanctioned by the Court.

15 The conduct of a proceeding must firmly remain in the hands of the Court, not the parties.[6]

16 For those reasons, I dismiss the appeal, and confirm the trial date of 28 April 2025.[7]

[1] Supreme Court (General Civil Procedure) Rules 2015 r 84.05(4).

[2] The first defendant's amendments also included an additional pleading that any proceedings filed by the plaintiff at the time of the October 2016 settlement in which she sought damages from Anglicare Victoria in respect of the abuse allegedly perpetrated against her whilst she was under its care was doomed to fail, as the St John's Home was an unincorporated defendant and was incapable of being sued. As a result, the first defendant pleads that the plaintiff has not lost any opportunity of any value as a result of entering into a settlement agreement with Anglicare.

[3] The new particulars the subject of the amendment are underlined.

[4] Citing Kitchen v Royal Airforce Association [1958] 1 WLR 563, 574-575.

[5] See, generally, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361; (2013) 42 VR 635.

[6] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at 323 [56].

[7] On 14 March 2025, I heard a summons filed by the second defendant to vacate the trial date of 17 March 2025 on the basis that he had recently undergone surgery and would not be well enough to give evidence or participate in the trial. At the hearing of that application, I vacated the 17 March 2025 trial date and relisted the trial for 28 April 2025.