Walker v Jones Lang Lasalle

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...

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.[2]

1. Those comments apply equally to all Courts, including the County Court. When this trial was listed on 11 November 2025, another proceeding missed out on that date. It is not possible, on such short notice, to backfill that date. This does not result in an efficient use of the Court's limited resources and has a detrimental effect on all court users.
2. Trial dates do, inevitably, get adjourned from time to time. The guiding principle must always be the interests of justice. Where the interests of justice require an adjournment, an adjournment must be granted.
3. Ms Walker is a self-represented litigant and it has been the general practice, in management of the self-represented litigants, to remove some of the formal procedures ordinarily required for a party wishing to make an application to the Court.
4. Accordingly, rather than requiring a summons to be filed, I requested that the parties provide affidavit evidence and any submissions in support of the application to vacate the trial.
5. On 17 October 2025, Ms Walker provided an affidavit by email. It is apparent from this affidavit that it is Ms Walker, not the defendant, who seeks that the trial date be vacated. Ms Walker sought to vacate the trial date in order to allow her time to obtain legal representation.
6. In her affidavit Ms Walker said she had sought legal advice from a lawyer, who advised her to apply to Justice Connect for pro bono support. In making her application she obtained advice and assistance from an investigative journalist. She uploaded her documents to support her application to a shared drive. On 24 September 2025 she was advised by Justice Connect that they could not assist her with her legal problem.
7. On 26 September 2025 she searched for law firms who might take her case on a no win no fee basis. She said that after she obtained a serious injury certificate she actively sought legal representation but "faced the reluctance of no win no fee legal firms to take on cases already in progress".
8. To date she has not been able to retain lawyers.
9. I note the following history in relation to this matter:

(a) Ms Walker issued an originating motion for a serious injury certificate on 29 June 2021. A serious injury certificate is a threshold requirement for a plaintiff to be able to initiate a common law claim for damages, where that claim arises from injuries alleged to have been caused in the course of employment, as Ms Walker claims.

(b) At that time she was legally represented. The matter was listed for hearing in February 2022. On 25 November 2021, the hearing was vacated as Ms Walker was declared unfit to attend medical examinations arranged by the defendant.

(c) In December 2022, Ms Walker's then solicitors were granted leave to cease to act. Ms Walker's serious injury application was listed for 2 May 2023. Ms Walker obtained new lawyers who were granted leave to cease to act on 2 March 2023.

(d) On 24 March 2023, Ms Walker applied to stay the proceeding. The 2 May 2023 trial date was vacated and the proceeding was stayed for 6 months.

(e) A directions hearing on 27 October 2023 was adjourned at Ms Walker's request.

(f) Six further directions hearings were adjourned.

(g) On 16 April 2024, the Court was informed that the matter had resolved and Ms Walker had been granted a serious injury certificate. On 18 April 2024 the proceeding was dismissed with no order as to costs.

(h) On 29 August 2024 Ms Walker initiated this proceeding, a common law claim for damages.

(i) On 22 November 2024 the matter was listed for trial on 11 November 2025.

(j) On 24 April 2025 the matter was listed for a judicial mediation on 25 June 2025. The Court referred Ms Walker to the Victorian Bar Pro Bono Barristers Court Referral Scheme for the purposes of obtaining a pro bono counsel for the judicial mediation.

(k) The proceeding did not settle at the judicial mediation on 25 June 2025 and on 26 June 2025 the Court made orders confirming the trial date.

(l) On 30 July 2025 the parties appeared before me in relation to inspection of subpoenaed material. Ms Walker informed me that she was seeking legal representation. The trial date was again confirmed.

1. This proceeding has been on foot since November 2024, but the parties have been in related litigation since 2021. The serious injury application was beset by excessive delay. Two firms of lawyers representing Ms Walker sought and were granted leave to cease to act.
2. Ms Walker has indicated, both in Court and in her affidavit, that she has made many attempts to obtain legal representation. Those attempts have not been successful.
3. Ms Walker has given evidence that her current financial situation is a further impediment to her obtaining legal representation.
4. Ms Walker has set out the toll her financial situation has taken on her mental health. Despite this toll, I note that Ms Walker has been able to:

(a) communicate with a lawyer to obtain assistance in preparing an application for Justice Connect;

(b) obtain assistance from a journalist in preparing that application;

(c) prepare that application;

(d) upload documents to a shared drive;

(e) contact the Australian Tax Office to discuss her outstanding tax liability and seek a waiver;

(f) liaise with various organisations including the National Debt Hotline and Elder Rights Australia, Social Security Rights Victoria, Child and Family Services Ballarat and the Victoria University Tax Clinic; and

(g) prepare a detailed and comprehensive affidavit, with appropriate exhibits, in relation to this application.

1. On the basis of the affidavit and exhibits, I was not persuaded that it was in the interests of justice to vacate the trial date because:

(a) There was no evidence that Ms Walker would be likely to obtain legal representation, given her unsuccessful attempts to date; and

(b) There was no evidence, despite the stress and anxiety Ms Walker alleged, that she lacked capacity to manage her litigation.

1. Accordingly I informed the parties that I was not prepared to make the orders "on the papers" and that I would list the application for a hearing, to give Ms Walker the opportunity to make any submissions in support and to file any further material to support her application. Given that the trial is listed on 11 November 2025, there was some urgency in hearing and determining the application. I therefore listed the hearing of the application on 22 October 2025.
2. Ms Walker did not appear at the application. On 21 October 2025 she sent an email to the court at 5.10pm as follows:

"Dear Judge Clayton Chambers, Ms Dossis and Ms Henderson,

Please find attached the medical certificate from Dr Fernando. I understand my psychologist will have a statement available for me to share with you tomorrow.

On 12 February 2024 the Defendant provided a number of medical reports to the Court, including the Medical Panel Certificate of Opinion of Dr Veda Chang, Specialist Psychiatrist, and Prof Malcolm Sim, Specialist Occupational and Environmental Physician, dated 24 January 2019.

Dr Chang and Professor Sim detailed the symptoms of my psychological disability, and detailed the many ways these symptoms cause "significant impairment of functioning."

My understanding that as a self-represented litigant with a psychological disability, my access to a fair trial relies on my disability not impairing my ability to do so.

The impairments of my functioning due to my psychological disability, as detailed by Dr Chang and Professor Sim, reduce my ability to adequately understand and act on complex legal rules, prepare a defense and arguments, and perform in a courtroom. Preventing my access to a fair trial.

The impacts of my significant impairment of functioning as described by Dr Chang and Professor Sim, resulted in my requiring hospital treatment on 10/10/2023, in the Urgent Care Centre of the Ararat Hospital.

I am happy to share the relevant details of the employment that led to my hospitalisation, and the hospital records, with the Court."

1. The email attached a medical certificate from Dr Ayomi Fernando which said that Ms Walker was unfit to attend court on 22 October 2025 "due to recent mental stressors specifically related to upcoming court hearing leading to panic attacks and anxiety". Dr Fernando referred Ms Walker to mental health support teams with which she had previously engaged and said that she would review her in two weeks to see how she progresses and whether she is recovering and is mentally stable.
2. The hearing on 22 October 2025 proceeded in Ms Walker's absence. The defendant indicated that it did not oppose the application to vacate the trial, but that if the application was not successful, it was ready to proceed to trial.
3. As Ms Walker had indicated she intended to rely on a further medical report which would be provided on 22 October 2025, I reserved my decision on the application to vacate, to enable her an opportunity to provide that report.
4. On 22 October 2025 at 3.20pm Ms Walker provided a report of her treating general practitioner Dr Pieter Pretorius, dated 22 October 2025. Dr Pretorius wrote:

"Ms Walker is currently experiencing significant psychological distress that has substantially impaired her capacity to effectively represent herself in legal proceedings. Based on my clinical assessment, she is not currently able to adequately participate in court proceedings or represent herself in legal matters ...

Her current mental state and level of psychological distress severely compromise her ability to:

- Process and respond to complex legal information

-Manage the emotional demands of legal proceedings

-Make clear and rational decisions under pressure

Given her current condition, I have adjusted her treatment plan today, including medication modifications and a referral for specialist psychiatric review. It is my professional opinion that requiring Ms Walker to represent herself in legal proceedings at this time would be detrimental to her mental health and would significantly compromise her right to a fair trial.

I strongly recommend that consideration be given to allowing Ms Walker additional time to secure appropriate legal representation to ensure her interests are properly protected."

Is it appropriate to vacate the trial date to allow Ms Walker to obtain legal representation?

1. There is no doubt that Ms Walker, the defendant and the Court are likely to be assisted if Ms Walker is able to obtain legal representation. This is because a lawyer is likely to be able to present the evidence and make legal submissions in a more efficient manner than a non-legally trained, self-represented litigant.
2. However, I am not persuaded that adjourning the trial date is likely to enable Ms Walker to obtain legal representation. She has been unrepresented since 2 March 2023 and, despite her endeavours, has been unable to retain a lawyer. Her affidavit supports a finding that she is unlikely to obtain legal representation on a no win no fee or pro bono basis, and that she lacks the financial ability to pay for lawyers.
3. I am required to give effect to the overarching principles pursuant to the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[3]
4. This is a dispute in which Ms Walker alleges she suffered an injury in January 2017. If the matter does not go to trial in November 2025 it is unlikely to get a trial date until late 2026. This length of delay is likely to result in at least some negative impact on the recollection of witnesses and the availability of evidence.
5. Nevertheless, although vacating the trial date would waste court resources, have a detrimental impact on other court users, and delay the trial further, if there was a reasonable prospect of Ms Walker obtaining lawyers, those concerns may have been off-set by the likely saving of court time, and the benefit to all parties, in having Ms Walker legally represented. However, in circumstances where I am not satisfied that there is a reasonable prospect that Ms Walker will retain lawyers, I would not grant her application to vacate the trial on that basis.

Does Ms Walker have capacity to manage her litigation?

1. However, although Ms Walker sought the vacation of the trial to allow her time to obtain lawyers, the material she provided in support of that application raises a real question as to her capacity to manage her litigation.
2. I have only observed Ms Walker in court on a single occasion, during a directions hearing. On that occasion there was no reason for me to question Ms Walker's capacity.
3. Ms Walker's affidavit and her email exchanges with the Court have, likewise, given me no basis upon which I would form a view that she lacks capacity to manage her litigation. For the avoidance of doubt I should make it clear that I do not doubt that litigation is both stressful and anxiety inducing, and is likely to increase Ms Walker's levels of stress and anxiety.
4. However Ms Walker has provided two reports from medical practitioners. Dr Fernando's report sets out her opinion that Ms Walker is currently unfit to attend court due to her psychological state. There is no opinion expressed as to the likely duration of Ms Walker's current state. Given that Dr Fernando has arranged to review Ms Walker's progress in two weeks, I infer that she considers Ms Walker's incapacity may persist at least until that time.
5. Dr Pretorius' report opines that Ms Walker's psychological state compromises her ability to process and respond to complex legal information, advocate effectively for herself in court, manage the emotional demands of legal proceedings, and make clear and rational decisions under pressure.
6. The matters identified by Dr Pretorius are all aspects of "managing affairs in relation to litigation", particularly the requirement to advocate for herself and make clear and rational decisions.
7. On the basis of Dr Pretorius' report, on which Ms Walker relies, it would appear that the Ms Walker does not have capacity to manage her affairs in relation to her litigation.
8. If a plaintiff, by reason of illness or mental infirmity, cannot manage her affairs in relation to her litigation, then she must proceed by a litigation guardian pursuant to Order 15 of the County Court Civil Procedure Rules 2018 (Vic) ("the Rules").
9. Had Ms Walker been able to attend the hearing of her application to vacate the trial date, I would have been in a position to make my own assessment and to hear from her in relation to the appropriate orders. Given the material she has provided to the Court, and the fact that her treating doctor has indicated that requiring Ms Walker to represent herself would be detrimental to her mental health, it would not be appropriate to now require Ms Walker to put forward material or make submissions on the question of whether or not she has capacity or requires a litigation guardian.
10. On the material presently before the Court, I am obliged, pursuant to Order 15 of the Rules, to require Ms Walker to proceed through a litigation guardian.
11. Pursuant to rule 15.02(3) a litigation guardian must act through a lawyer.
12. Given that the trial is listed to proceed in 11 November 2025, and the evidence before the court in relation to Ms Walker's capacity, there is no realistic prospect that the matter can proceed on the listed date. Accordingly the trial date must be vacated.
13. The defendant sought that the matter be listed for further directions in February 2026 in order to set a new trial date. However in circumstances where Ms Walker currently lacks capacity, and I have no information as to whether that is likely to be an ongoing state of affairs, I consider the appropriate course is to stay the proceeding.
14. The stay can be lifted on application by a solicitor acting for Ms Walker, or by Ms Walker, in the event that she has not appointed a litigation guardian and does not have a solicitor, with appropriate supporting material to establish that she has capacity to manage her affairs in relation to the litigation. Such material would include a report from a treating medical practitioner confirming that her mental state has improved sufficiently to enable her to manage her litigation.
15. I am mindful of the defendant's concerns about further delay and the Court's obligations to ensure the timely and efficient disposition of the real issues in dispute.
16. Accordingly I consider that a stay for a period of six months is an appropriate period to determine whether Ms Walker's lack of capacity is permanent and to provide her with an opportunity to appoint a litigation guardian and retain solicitors. In the event that no application to lift the stay has been made in that six month period, and no application to extend the stay has been brought, the proceeding will, at the conclusion of that period, be dismissed with no further order.
17. I make the following orders:

1. The trial listed on 11 November 2025 is vacated.

3. If, by 24 April 2026, the plaintiff has not either:

(a) Made an application to lift the stay, supported by proper material demonstrating that she:

(i) has capacity to manage her affairs in relation to her litigation; or

(ii) has appointed a litigation guardian who acts by a lawyer.

(b) Applied to extend the stay, such application supported by proper material as to why the stay should be extended;

the plaintiff's proceeding will be dismissed with no further order.

4. The costs of the plaintiff's application to vacate the trial are reserved.

[1] [2025] VSC 122 ("Grimmett v Rivdale Pty Ltd")

[2] Grimmett v Rivdale Pty Ltd [34]-[35]

[3] Civil Procedure Act 2010 (Vic), s 7