Weedbrook v Partlin

[4] On the 10th of February, the Crown formally discontinued the criminal proceedings against Mr Partlin, that were relied upon by him as justifying his stay and was the basis for me making the specific programming orders preserving self-incrimination privilege. In response to the Crown's discontinuance Mr Weedbrook brought an application seeking to vacate my orders, based on the self-incrimination privilege point, and seeking future directions.

[5] I vacated those orders on the 20th of February. On that day, I listed the trial for three days, commencing Tuesday the 17th of June, some four months in the future, and I provided a timetable to get that to occur. The day after I made those orders, my Associate forwarded, to Mr Partlin, a basic guide to conducting a civil trial, which set out an outline as to how the trial was likely to proceed, and the basics of civil trial advocacy.

[6] It was necessary for Mr Partlin to file an amended defence, because the defence he had filed, consistent with my earlier directions, was one prepared in accordance with the self-incrimination privilege procedural orders. He filed his amended defence on the 20th of March 2025, some three months out from the trial. Notwithstanding the form of his initial defence, in the stay application Mr Partlin disclosed the nature of the defences he sought to advance, because they were explained in some detail in his affidavit material. I was therefore able to grasp what the likely defences were going to be.

[7] On the 25th of March, Mr Partlin filed an application seeking to vary the orders to enable him to file a further amended defence. He later filed a further application seeking an adjournment of the trial for at least three months. That application was filed on 31 March 2025.

[8] On 8 April 2025, Judge McCarthy heard the amendment application and the adjournment application. His Honour's reasons are marked for identification in this hearing. His Honour refused the adjournment application and ordered that a further amended defence be filed. That defence was indeed filed in accordance with his Honour's orders on the 8th of April 2025. That remains Mr Partlin's defence in the proceedings.

[9] Although His Honour refused the adjournment application, he made orders extending the date for compliance with a number of my orders from February, giving the applicant, Mr Weedbrook, time to file a reply for disclosure by the 24th of April, and an extension of time for Mr Partlin to file and serve affidavit material he relied upon, to the 15th of May.

[10] On the 24th of April 2025, Mr Partlin, consistent with his Honour's orders, provided the applicant with his list of documents. Mr Weedbrook's solicitors sought copies of those documents and have continued to do so. As at today's date, the 10th of June 2025, Mr Partlin has not provided copies of any of the documents listed in his list of documents. That, as I recall it, and if I am wrong I apologise to Mr Partlin, was not addressed in his affidavit. Asked by me, in the course of submissions, why he had not done so, Mr Partlin told me that it was because he thought there were more documents that needed to be disclosed.

[11] That might well be the case. However, it is a very, very significant disadvantage to Mr Weedbrook, and a very, very significant departure from the requirements for proper conduct of litigation, that copies of documents which a party says are relevant to the issues in the proceedings have persistently not been made available despite request. That is a particularly compelling consideration here, where it is true to say that Mr Partlin's defence is not well particularised.

[12] Notwithstanding what Mr Partlin says about his other difficulties I can see no good excuse for non-compliance with the obligation to provide copies of disclosed documents. The obligation to provide copies of disclosed documents, regardless of what happens for the rest of this case, is a fundamental one, and that needs to be done by Mr Partlin by Friday at 4:00pm. One order I do make today is that Mr Partlin provide Mr Weedbrook with such documents from his list of documents which he has in his possession, by 4:00pm on Friday 13 June 2025.

[13] On the 29th of April, Mr Partlin wrote a Rule 444 letter to Mr Weedbrook's solicitors, foreshadowing an intention to bring another application to adjourn the trial, seemingly to November 2025, and to allow him to put on a second further amended defence, and for a suspension of obligations of disclosure until the further pleadings. Notably, it asserted a material change in circumstances from the last application, which is at least suggestive of an understanding of what is required to bring a further interlocutory application.

[14] In that letter, the material change of circumstances was described as this: that Mr Partlin had received a referral from his general practitioner for an ASD diagnosis, that he was awaiting confirmation of an appointment, and that he would exhibit letters from treating medical practitioners which would address his current diagnosed conditions and his suspected ASD traits. He indicated that evidence was not available at the time of the previous application.

[15] On 1 May 2025, the solicitors for the applicant, via a Rule 445 letter, rejected those proposals, submitting that those matters did not disclose a material change of circumstances and indicated an intention to oppose any adjournment application.

[16] On the 7th of May, Mr Partlin issued a further Rule 444 notice. It articulated much more detailed orders, which more or less track the orders sought by the application subsequently filed. It sought the adjournment of the trial for five months, to a date after 17 November, for a tailored case management plan, for leave to file an amended defence, suspension of disclosure, and various other orders which made their way into the application before the Court today.

[17] On the 12th of May, the solicitors for the respondent, by their Rule 445 letter, repeated their position that they rejected the basis of the proposed adjournment, and called on Mr Partlin to comply with the existing orders. Notably, those orders required Mr Partlin to file and serve affidavit material he relied on by 15 May 2025, being the date which his Honour had specified by his orders on 8 April 2025. In the course of the discussion about that date, his Honour recognised that would require a considerable effort from Mr Partlin, but in the circumstances would not extend the time any more.

[18] On 12 May, Mr Partlin emailed my Associate indicating he was preparing another adjournment application. Notably that letter said this:

[f]urthermore, as I have been significantly struggling, I have a zero per cent chance of meeting the deadline for my evidence to be filed. It was extended from 8 May to 15 May 2025 at the adjournment hearing on 8 April 2025, but things have worsened since then. I was hoping that the deadline be suspended until my impending application is heard. I don't know how these things work: you can only find so much information on the court's website.

With that in mind, I don't know how to proceed. I haven't finished my affidavit but I'm close-ish. I was trying to finish it tomorrow but even just organising exhibits ... ensuring accuracy (as best I can) and going to a JP would likely take a full day in and of itself, it might take me a few days. Knowing the application is coming, maybe the directions hearing isn't required, or maybe it is, as I can't meet the current deadlines, I don't know.

[19] It is difficult to read that other than as indicating an affidavit, in compliance with his Honour's orders is "close-ish to being finished", but that may be a misunderstanding.

[20] Attached to that email was an undated letter from a psychiatrist who, according to other evidence, has been treating Mr Partlin for two to four years. It looks like it might have been issued on or about the 7th of May, because it is a medical certificate for the three-month period commencing 6 May to July. That letter is also relied on in Mr Partlin's evidence, but I might as well identify its key parts at this point:

[21] It is marked, "To whom it may concern", it is from a Dr Slavica Jelesic-Bojicic, who is a psychiatrist.

[22] It is identified as a medical certificate for that roughly three-month period, and states

[t]his is to certify that Nathan Partlin attended a scheduled appointment with me today. During the appointment, Nathan presented with a substantial exacerbation of his anxiety and depression symptoms over the past two weeks, resulting in a significant decline in his daily cognitive and social functioning. Nathan's medication has been adjusted today. He is continuing his psychiatric treatment. Considering his previous relapses, I anticipate Nathan's symptoms will not improve for a period of approximately two to three months.

[23] Notably, the learned psychiatrist does not express an opinion about what has caused the substantial exacerbation, nor whether there is a basis to think that, in the shadow of the trial, Mr Partlin's symptoms would not recur. I also observe that the learned psychiatrist does not refer to autism spectrum disorder conditions of any kind in that letter. We will hear more about later.

[24] On 22 May, the solicitors for the applicant wrote to the respondent and once again restated their position that they opposed the adjournment application. To be fair to Mr Partlin, (although I could not identify this in correspondence) he raised his inability to comply with the order for filing his material before the time for compliance arose. Rather than extending time, I listed the matter for mention.

[25] The matter had been listed for directions before me on 13 May. I adjourned that mention to 23 May. On 23 May, the parties appeared before me. At that time, Mr Partlin informed the court he wished to adjourn the trial. At that time, he had not prepared an application or an affidavit in support, or a proposed amended pleading. He did tell me from the Bar table, "[m]y cognitive capacity has decreased to the point where I can barely focus on anything. I am spinning my wheels. I am working on stuff every day and I am getting nowhere."

[26] It was difficult to list the adjournment application promptly, bearing in mind that the trial was less than a month away at that stage, because Mr White, who has been counsel for the applicant from the start, was on leave for two weeks. In my view, fairness for the applicant demanded an effort be made to accommodate his availability.

[27] Ultimately, what I thought possible, fairly to both parties, was to list the application for hearing today, 10 June 2025 just a week before the trial was due to start, while I was on circuit in Maroochydore. Not only did that facilitate Mr White's availability, it made as much time as possible available for Mr Partlin to prepare and put on his material.

[28] I ordered Mr Partlin to file and serve his material, outline, and application by 2 June 2025 and the application to respond by 9 June. As it turned out, Mr Partlin filed his application and affidavit on Wednesday, 4 June, more or less in compliance with my orders.

[29] In the course of the mention on 23 May, I did explain to Mr Partlin that if the adjournment application failed, the trial would be going ahead the following Tuesday. I respectfully suggested he might be best served to put his energy into preparing his evidence in support of his pleaded case, rather than in support of the adjournment application. Mr Partlin told me he understood but said he could not get the evidence he needed before the trial. He said he was referring not only to his own evidence, but to the physical evidence he needed that supported his story. On my inquiries, he described that evidence as a witness statement from his mother, and a witness at a bank, called Barbara Knoll. He told me he had reached out, but had not had a response, about a week ago. As I observed, Mr Partlin filed his application and affidavit on 4 June 2025.

[30] His affidavit covers some 255 paragraphs. It, and the accompanying outlines, reflect considerable legal research and well-written language. An example is paragraphs 97 and 98 of his affidavit where he articulates the difficulties he encounters following his discovery (in his opinion) of an autism spectrum disorder he may have. It relevantly provides:

97. The trigger for my awareness of autism was my daughter's diagnosis, which I only learned about on 27 March 2025. I have since experienced direct and indirect discrimination because my disabilities and the significance of their fictional impact are treated with scepticism, denying reasonable adjustments. Based on preconceived notions and superficial intelligence, I am being treated as though I'm participating in tactical litigation rather then genuinely seeking assistance from the Court by recognition of my real functional disabilities. I cannot describe what it's like to struggle so much with psychological and cognitive disabilities, go through life without the proper insight into my disabilities, and because I seem intelligent, people assume that I am dishonest, lazy, generally incompetent or more that I can't get out of my head.

98. It is so draining when I am judged under a neurotypical lens, including suggestions or assertions of the aforementioned conclusions, and have expectations placed upon me that I cannot possibly meet. When I try to raise my functional impairments, they're promptly dismissed, and I lack the resilience or ability to persuade others otherwise. When people think I am being dishonest to gain an advantage, consciously or subconsciously, it is almost impossible for me to convince them otherwise, with my circular impairments.

[31] I have taken that and all the material in his affidavit and submissions into account. The focus of these paragraphs are, of course, his autism spectrum disorder, as yet undiagnosed, to which he attributes psychological and cognitive disability.

[32] Evidence of Mr Partlin's mental health is before the court. The most persuasive evidence comes from Dr Slavica. She wrote a letter on the 7th of April 2025. It states, relevantly, "I've been involved in Nathan's psychiatric care over the past two to four years. His current diagnoses made by myself and previous treating psychiatrists are as follows: mood disorder, most consistent with bipolar affective disorder type 2, with predominant depressive episode; attention deficit hyperactivity disorder and social anxiety disorder." Mr Partlin takes medication for those conditions.

[33] She goes on, "[a]t today's review, Nathan raised concerns regarding a possible autism spectrum disorder diagnosis, particularly in light of his daughter's recent diagnosis with ASD level 1. While he previously attributed many of his struggles to ADHD, he is now questioning whether ASD may better explain some of his longstanding difficulties. He expressed interest in undergoing a formal assessment for ASD. We discussed that several of the symptoms he identifies as potentially autistic may also stem from his mood and anxiety disorders or be related to his personality traits." She sets them out. I do not need to read them.

[34] In her management plan observation, she observes in point 2 that while she had not observed any overt ASD traits during clinical interactions, seemingly over two to four years, she was open to exploring that possibility. She refers to the prospect of a clinical assessment conducted by an experienced clinical psychologist. She observes that she could not provide documents supporting an ASD diagnosis for any current or future legal proceedings as no formal diagnosis has been made to date.

[35] Thereafter, there is a referral from his GP for some form of assessment from a Veterans' Affairs funding application and a letter from 1 May confirming that Mr Partlin had been referred for an ASD assessment, tentatively booked in July 2025. There is no more detailed information than that about that matter. His GP goes on to say he is being referred, given he is showing clinical signs of autism, as well as the other conditions that his psychiatrist has identified.

[36] His GP refers to him struggling with daily activities, showing moderate to severe depression and symptoms based on an applied ASD test. With respect to Dr Huang, I do not consider that a persuasive basis for an autism spectrum disorder diagnosis, particularly given that Mr Partlin's treating psychiatrist over two to four years had not been struck by those factors.

[37] The doctor continues "[t]hese symptoms may impair Nathan's ability to do things, such as prepare legal documents, organise complex information, et cetera." He goes on to say he supports an adjournment of his civil trial on this basis. As I have said, with respect to the learned doctor, I do not accept that this amounts to a diagnosis.

[38] Interestingly, autism spectrum disorder involves a wide range of conditions. It is unclear, even if Mr Partlin does have some form of autism disorder, what it is. Notably, also, the doctor uses the word "may", as in, might impair his ability. Relevantly, just a month after that, Mr Partlin produced the impressive material on this adjournment which I have already described.

[39] There is also an assessment of his daughter, which I do not find particularly helpful, and the May letter from Dr Slavica, which I have already referred to.

[40] The focus of Mr Partlin's submissions, although not the only point he raises, is autism spectrum disorder, but his other mental health issues seem also to be playing a part.

[41] I now turn to consider the factors relevant to whether to adjourn the trial. I will start with Mr Partlin's mental health. As I have explained in the material, Mr Partlin's focus is on the undiagnosed potential autism spectrum disorder. His submission is that the court has ignored this. There is no diagnosis of ASD before the court, and as I have observed, his treating psychologist of two to four years made the observations I have described. The court could not reasonably act on the basis he has such a disorder in those circumstances, quite apart from the ambiguity about what kind of autism spectrum disorder and what kind of consequences it might prove to have for him.

[42] Doing the best I can, there is some evidence that an assessment can occur in July 2025. Mr Partlin submits that his ASD interferes with his cognitive capacity to prepare for trial. As I have discussed with him in today's hearing, the problem with that submission is that whether he has some form of ASD or not, he is plainly capable of preparing complex evidence and submissions under pressure. His 255-paragraph affidavit and extensive outlines reflecting considerable research speak eloquently to that matter. I am not persuaded by the evidence before me that any ASD condition Mr Partlin has prevents him from preparing written work or from preparing for trial.

[43] What I do have before me is evidence of Mr Partlin's anxiety disorder. Anxiety might be thought to be a more compelling factor in Mr Partlin's response to this litigation. However, if it is, it seems more likely than not that it is the trial itself which is the probable cause of that anxiety.

[44] Whether it is or not, another problem confronting Mr Partlin's reliance on his mental health issues to adjourn the trial is this: there is no material before me from which I can confidently infer, or even reasonably infer, that whatever mental health or cognitive issue might affect Mr Partlin and has been affecting him in the lead up to this trial, will resolve so that a trial could proceed at some definite point in the near future.

[45] I have not overlooked that Mr Partlin's psychiatrist observed that he needs a couple of months for his symptoms observed in May to abate. However, that does not tell me anything about the likely situation as another trial approaches. As I have explained to Mr Partlin before, a trial cannot be adjourned continually. It must happen at some point. Mr Weedbrook is entitled to have his claim heard and determined.

[46] Doing the best I can on the whole of the evidence before me, I am not persuaded that if the trial was adjourned, there would not be similar difficulties in the lead up to a further hearing. For those reasons, with respect to Mr Partlin's mental health evidence and his efforts on this point, I do not conclude that that supports the granting of the adjournment, given the circumstances as I find them.

[47] I now turn to the relevance of the previous adjournment application. Before Judge McCarthy KC, Mr Partlin submitted there were two principal reasons why the trial should be adjourned. The first was for Mr Partlin to have time to obtain a diagnosis of autism spectrum disorder. The second was for Mr Partlin to then have time to obtain evidence to show his lack of subjective understanding of the contractual and other dealings with Mr Weedbrook Senior.

[48] Before his Honour, Mr Partlin proposed a timeframe for a potential diagnosis of ASD of three to six months. That remains the position, assuming, as I am very cautious in doing, there is an assessment appointment booked for some time in July, that being four months since the hearing before his Honour, and that an assessment would follow immediately upon testing, rather than requiring further consultations or preparation of a report (which I am willing to assume, though there is no evidence on that matter. That is, I am willing to assume an assessment could flow immediately).

[49] His Honour, on the 8th of April, was not persuaded to adjourn the trial in those circumstances.

[50] At its heart, this application for an adjournment repeats with more passion, more research and some very limited additional evidence, the main points put to his Honour. It seems to me that there has been little material change from the position put to his Honour, except perhaps that the stress of the impending trial has caused greater anxiety in Mr Partlin.

[51] His Honour formed the view that rule 5, Aon considerations and the interests of justice favoured refusing the adjournment. To that must be added that his Honour explained the problem with any cognitive misunderstanding as a relevant consideration in any of the defences raised in the further amended defence. As I explained below, that remains the position, and no further amended defence or second further amended defence is available to test other possibilities.

[52] Whether a second interlocutory application brought without a material change of circumstances is an abuse of process or just a factor in exercising discretion is moot. What is relevant is that while there may have been some change in the evidence, Mr Partlin has brought a further adjournment application which does raise substantially the same matters as already dealt with by his Honour. I still could grant the adjournment on the evidence before me. However, the similarity with the matter already dealt with by his Honour is a fact which tells against now granting the adjournment.

[53] I next turn to Mr Partlin's self-represented status. Mr Partlin invokes his self‑represented status and the court's obligations to self-represented litigants as a reason to justify an adjournment. Certainly, cases recognise that it can be appropriate to grant adjournments to permit a litigant in person to address matters which he or she had not appreciated or to give them more time to respond to issues, as compared to the time a represented party might be granted. However, there are limits.

[54] This matter was set down for trial four months ago. At that time, a litigant in person guide was provided to Mr Partlin. With respect to his submissions to the contrary, I am unpersuaded that if he had focused his considerable energies on preparing for the trial, rather than preparing adjournment applications and contentious correspondence, he would not have been in a position, fairly, to run his case. I observe in that respect that in the mention on 23 May 2025, Mr Partlin raised with me his unpreparedness for the trial because of his need to obtain a witness statement from his mother and from a bank officer and told me, as I have observed, he had begun those inquiries just a week before. That is not consistent with properly pursuing preparation for the trial.

[55] Further, as to his self-represented status, there has been other accommodations made for Mr Partlin, including, frankly, by Mr Weedbrook. Notably, despite preparing all his material for this adjournment application, Mr Partlin, as I have observed, has still not provided copies of his documents disclosed. Mr Weedbrook has brought no application about that.

[56] Mr Partlin also invokes a wish to obtain a McKenzie's friend. A McKenzie's friend can be permitted to a litigant in person and is regularly permitted. However, it is not a matter which need delay the trial. Any person who appears likely to the court to abide by the limitations of the role will usually be permitted to sit at the Bar table and assist. Indeed, in my experience, a fair-minded, supportive McKenzie friend can be a real assistance to the court and the litigant in person if they understand and abide by their role. There is no reason to delay the trial on that account. Further, of course, nearly four months ago, a litigant in person guide explaining the basics of the trial procedure was provided. Mr Partlin has not queried anything in that document to date.

[57] Finally, I have in mind to permit Mr Partlin to give oral evidence in support of his case at trial, despite his repeated failure to comply with orders for filing affidavits. Those orders were made, quite frankly, to assist both parties, especially as Mr Partlin's defence lacks particulars.

[58] There is another element to Mr Partlin's position today which needs comment. He develops, at length, the argument that the procedural orders made in this case have not afforded him the reasonable opportunity to prepare his case. As Judge McCarthy observed, no such complaint was made at the time when the trial was set down, and when Mr Partlin would have had the same ASD problems he now believes he has. His Honour, nonetheless, reset the timetable so far as he could to give Mr Partlin more time.

[59] We are now in the position where the fully developed argument about unfairness is put forward in a further application even closer to trial than the one dealt with by Judge McCarthy. That is not a persuasive position.

[60] Even allowing for the fact the realisations can change over time, Mr Partlin's counterproposal does not provide for any realistic process to a trial. Rather, the orders that he seeks in his application seek a whole new process of case management with regular hearing and flexible deadlines. I observe there have already been regular review hearings and deadlines which, for Mr Partlin, were flexible.

[61] Mr Partlin's proposal does not give one confidence that the case is likely to come to trial within any reasonable time. Mr Partlin's self-represented status is, in those circumstances, not one which I find favours granting the adjournment.

[62] I now turn to the proposed amendments to the defence. There are a number of difficulties with that proposition. So far as I can determine, Mr Partlin wishes to plead that his mental health issues affected his subjective understanding of arrangements with Mr Weedbrook Senior. Mr Partlin has been foreshadowing that matter since his stay application. It was raised again before Judge McCarthy. His Honour agreed in my own analysis in the stay application, that the relevance of such evidence to any of the causes of action advanced, or indeed any cause of action, is difficult to discern.

[63] In oral argument, Mr Partlin developed an argument that it would be relevant to Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447. As Mr White submitted, such has already been pleaded.

[64] Whether a diagnosis is made or not does not change the prospect that Mr Partlin may give evidence of facts of a disadvantage he suffered at the time. Importantly, he was also able to state to me in submissions that people involved in the decision-making for the funds advanced by Mr Weedbrook Senior knew of his disability and had made admissions to that effect. It is just necessary to write those things down in a document or to give oral evidence of that fact.

[65] In any event, there is no draft further amended defence before the court despite the huge effort put into the adjournment material, which might put a different perspective on the importance of the facts Mr Partlin wishes to plead.

[66] Indeed, his application proposed orders that does not even nominate a date for a further amended defence. It seeks a case management conference at which a date will then be determined. The proposal to amend is not a factor which favours granting the adjournment.

[67] Mr Partlin also sought an order in his application that Mr Weedbrook and his lawyers be prevented from contacting potential witnesses. There is no property in a witness. There is no evidence from the witness he identifies which might sustain some kind of intervention by the court. I will not make that order.

[68] Mr Partlin in his submissions and material also raises the behaviour of the solicitors for the applicant. I do not see anything in their conduct which is objectionable but, in any event, I have read Mr Partlin's material and do not consider it supports an adjournment.

[69] Mr Partlin raised the delay in the commencement of the proceedings. That water has long gone under the bridge. The matter was brought before me and dealt with starting from September last year. It is not uncommon for there to be a delay in the commencement of proceedings, but we are where we are now.

[70] I want to deal with another point that he raised in oral argument. Mr Partlin, I accept, believes that the court thinks that the case is a simple case. I do not think that. I do not think Judge McCarthy thought that. And both my stay judgment and Judge McCarthy's reasons demonstrate that. Mr Weedbrook's claim is a simple debt claim; however, the defences are not simple. That has been evidenced from the pleadings and all the decisions to date.

Other considerations favouring refusal of adjournment

[71] There are other factors which support the conclusion that an adjournment should be refused. These include prejudice to Mr Weedbrook, prejudice to other litigants wanting access to the court and interference in the administration of the court list by a late adjournment. It is inevitable that an adjournment at this very late stage will negatively impact on all three factors. This matter has been listed for trial for four months. Further, there is no basis to think Mr Partlin could pay costs thrown away by any such adjournment, as appears clear from my discussion with him about that matter.

[72] There is also no basis to think, based on Mr Partlin's proposals and the evidence, that an adjourned trial would come on in the near future. That is not to say that in a proper case adjournment cannot be granted; they can be. However, for the reasons I have given, this is not a proper case for an adjournment. I, therefore, dismiss Mr Partlin's application.

[73] Additionally, I order that Mr Partlin's case be run first at trial. That means, Mr Partlin can hop into the witness box and give such evidence as he sees fit in support of his pleading. He can also lead such other evidence from other witnesses or by tendering such other documents which he wishes to rely on. Mr Weedbrook will then run his case.

[74] I have ordered that he provide the documents that he has. I am not willing to prevent him from having an opportunity to put his side of things to the court because the truth is, I do not know what happened here, and it may be that he can give credible and reliable evidence that will persuade me that one or more of his defences are established. I am not going to make any order about the form in which that evidence has to be. I would say again that Mr Partlin might be best placed writing down his version of these events, signing it and seeking to tender it, but it is a matter for him. There seems to be no point making another order.