FEDERAL COURT OF AUSTRALIA Hutchinson v Comcare (No 3) [2018] FCA 2005 File number: WAD 404 of 2016 Judge: BROMBERG J Date of judgment: 3 December 2018 Catchwords: PRACTICE AND PROCEDURE – application for trial to be vacated – discussion of lack of adequate explanation and absence of evidence, delay, prejudice to respondent and case management considerations - application dismissed Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 3 December 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant is self-represented Counsel for the Respondent: Ms R Sweet Solicitor for the Respondent: Norton Rose Fulbright ORDERS WAD 404 of 2016 BETWEEN: KAREN HUTCHINSON Applicant AND: COMCARE Respondent JUDGE: BROMBERG J DATE OF ORDER: 3 DECEMBER 2018 THE COURT ORDERS THAT: 1. The Applicant's application to vacate the hearing is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 On 10 August 2018, the Court listed this proceeding for a pre-trial conference to be conducted today at 4.15 pm on 3 December 2018. 2 On 2 November 2018, the self-represented applicant ("Ms Hutchinson") filed an interlocutory application seeking summary judgment. That interlocutory application was listed for directions, to be heard together with the pre-trial conference. In the course of dealing with the interlocutory application, a number of exchanges took place between the Court and Ms Hutchinson, including in relation to the Court's capacity to deal with the interlocutory application. A number of options were presented to Ms Hutchinson, including an option of having that application dealt with on the commencement of the trial. In the end, Ms Hutchinson indicated that she would not press her interlocutory application and an order was made that it be dismissed with costs. 3 The proceeding then turned to the question of what needed to be done in further preparation for the trial. Ms Hutchinson resides in Perth, Western Australia. In that context, Ms Hutchinson raised that she would not be able to attend in court in Melbourne for the trial. She asserted that she suffers from agoraphobia, that her agoraphobia is severe and that, not only could she not attend court in Melbourne, she could not attend at court at all. She also indicated that she wished to be represented by a lawyer at the trial and asserted that she had identified a barrister who was prepared to act for her, but who was not available on the dates currently listed for trial. 4 I indicated to Ms Hutchinson that, if she was making an application for the trial to be vacated, then such an application would ordinarily need to be made supported by an affidavit, and that, if a ground of the application included that she was medically unfit to attend at court, that that would ordinarily need to be supported by medical evidence. I indicated to Ms Hutchinson that, between today and the scheduled commencement of the trial on 17 December 2018, I do not have a day available in which I could list an application for the vacation of the trial, or, indeed, in the alternative, an application for evidence from Ms Hutchinson to be taken other than in court and in person. 5 I suggested to Ms Hutchinson the possibility of dealing with any application for the trial to be vacated, or any other order, at the commencement of a trial on 17 December 2018. That, as I suggested to Ms Hutchinson, would have the potential consequence of Ms Hutchinson being required to prosecute her proceeding forthwith should the application for the vacation of the trial not succeed. I suggested that, if her application for the vacation of the trial was permitted to be conducted by her by telephone from Perth, should she fail, she would need to be in a position to commence the trial in Melbourne on 18 December 2018. Having taken those matters into account, Ms Hutchinson pressed for her application for the trial to be vacated to be dealt with today. That matter not being opposed by the respondent ("Comcare"), I have heard that application. It is an application that is unsupported by any affidavit or other evidence. 6 In support of her application, Ms Hutchinson contended that the vacation of the trial would allow her an opportunity to consider her financial situation and, in that respect, as I understand Ms Hutchinson, she had in mind her capacity to travel from Perth to attend the trial in Melbourne. Ms Hutchinson also sought the vacation of the trial to give her an opportunity to consider her difficulties in relation to legal representation and also, her difficulties in attending at court. 7 Ms Hutchinson was conscious of the fact that, if her trial dates were vacated, on the basis of my current commitments it would be likely that I would not be in a position to list the matter again for trial until 2020. She indicated that that was a matter of concern to her but that she was prepared to forego the trial dates in order to enable her to properly conduct her claim. She also suggested that if the trial was delayed, she may be medically fit to attend court on the occasion of the rescheduled trial. She asserted that the vacation of the trial would be in her best interests and would provide for a fair and just outcome. 8 The application for the vacation of the trial was resisted by Comcare on a number of grounds to which I will refer shortly. 9 Before addressing that I should say that this proceeding has somewhat of a long history. It was first filed in August 2016. It has been the subject of numerous directions hearings and a number of interlocutory applications. I have granted requests made by Ms Hutchinson for leave to appear by telephone in relation to those various directions hearings and the hearings of the various interlocutory applications that have been dealt with. I did so largely, as I understood it, without there being any objection by Comcare and on the basis of Ms Hutchinson's assertion that she suffers from agoraphobia and could not otherwise attend. 10 On 10 August 2018 I raised with Ms Hutchinson how it is she intended to deal with the trial and in particular, whether she intended to seek leave to conduct the trial by telephone. To that inquiry Ms Hutchinson said she would not seek leave to conduct the trial by telephone and that she would either make herself available in person and, if she was not able to do that, she would ensure that she would be represented. I pointed out to Ms Hutchinson that, in essence, that might not be a complete solution to the issue because she may need to attend for examination and cross-examination. 11 At that hearing, counsel for Comcare put on the record that if Ms Hutchinson had any intention of not attending the trial in person in circumstances where she would need to be available for cross-examination, any application seeking to facilitate that should be supported by the evidence of a doctor and that the doctor may need to be available to attend court for cross-examination. I should indicate further that I indicated to Ms Hutchinson that the questions that I had raised and the potential difficulties that were in play, were matters that needed to be further considered and would need to be addressed at this pre-trial case management conference. 12 It seems clear to me from the exchange between the Court and Ms Hutchinson, and also made clear from Comcare's position put on the record, that Ms Hutchinson must be regarded as having been duly put on notice that if she sought to be excused from attending to give her evidence at trial in person she should come prepared, at least by today, with an application and with appropriate supporting evidence. That has not occurred. Ms Hutchinson says, in essence, that she had not quite realised. In my view, more than sufficient notice was given to Ms Hutchinson as to what she needed to do if she wanted to make an application for her evidence to be taken other than at court and in person. 13 As I have noted, one of the two principal reasons now put forward for the vacation of the trial concerns Ms Hutchinson's asserted inability to give evidence in court. Ms Hutchinson's application has been brought without any evidence, firstly as to the nature of any condition from which she suffers and secondly, as to the extent of any incapacity to either travel to Melbourne or otherwise attend to give evidence in a court setting. There has been no opportunity given to Comcare to test any medical evidence of that kind. 14 Ms Hutchinson's other basis for a vacation of the trial, that she has available a barrister who can act for her, but someone who is not available on the trial dates, is simply put before me as a matter of assertion and is unsupported by any evidence. I note that the question of legal representation was raised at the case management hearing on 10 August 2018 and on that date Ms Hutchinson indicated, at least inferentially, that she would make attempts to obtain representation. It might have been expected that if her attempts to obtain a lawyer available on the trial dates proved fruitless, an application supported by an affidavit for the trial to be vacated would have been made far earlier than today. 15 In making submissions on the above matters Ms Hutchinson gave no adequate explanation for the delay in making her application to vacate the trial dates. 16 Counsel for Comcare suggested that I should consider the filing of Ms Hutchinson's unmeritorious interlocutory application as a mechanism designed to orchestrate the vacation of the trial. Ms Hutchinson denies any such intent. It is not necessary for me to determine that question. 17 There are substantial other grounds for rejecting Ms Hutchinson's application to vacate the trial. The relevant principles are well established and are set out in the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 18 The trial is imminent. In considering whether the trial should be vacated I need not only take into account the interests of Ms Hutchinson, I need to take into account the prejudice upon Comcare as well as the impact upon the Court and the efficient allocation of its resources, together with the prejudice that may have fallen on those litigants who are ready for trial but have been denied the trial dates allocated to Ms Hutchinson's proceeding. In this respect I refer to Aon, and in particular the judgments of French CJ, at [5], [6], [30] and [35] and the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] – [103] and also at [111] – [113]. Case management considerations weigh against the vacation of the trial in this case. 19 The prejudice to Comcare involves its readiness for trial and the detriment of yet further delay in relation to a proceeding that has now been on foot for more than two years. Comcare has an obvious interest in the early resolution of this proceeding and the prospect of the proceeding not being resolved until 2020 is a matter which I consider to be of substantial prejudice to Comcare. 20 Furthermore, none of the assertions made by Ms Hutchinson are supported by evidence. 21 I am conscious of the difficulties that self-represented litigants have in appearing in a superior court and prosecuting a complex proceeding. There is, however, only so much that the Court can do to accommodate a self-represented litigant who faces those difficulties, including a self-represented litigant who may, in fact, face the additional difficulties presented by a medical condition from which that litigant suffers. A fair and just outcome must consider all relevant interests and weigh those interests accordingly. In my view, the interests of justice, on this occasion and in these circumstances, do not support the granting of the application to vacate the trial. 22 That application is refused. I will make an order to that effect. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 12 December 2018