Federal Court of Australia Bellou v Victoria University (No 5) [2022] FCA 1408 File number: VID 1053 of 2017 Judgment of: SNADEN J Date of judgment: 24 November 2022 Catchwords: PRACTICE AND PROCEDURE – interlocutory application to vacate pending trial – where applicant relies on medical incapacity – whether medical evidence sufficient to demonstrate incapacity to prosecute proceeding – where multiple trial dates previously vacated – orders made Cases cited: Bellou v Victoria University [2019] FCA 812 Bellou v Victoria University (No 3) [2019] FCA 940 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 16 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant was self-represented Counsel for the Respondent: Mr N A T Harrington Solicitor for the Respondent: DLA Piper ORDERS VID 1053 of 2017 BETWEEN: THEA BELLOU Applicant AND: VICTORIA UNIVERSITY Respondent order made by: SNADEN J DATE OF ORDER: 24 NOVEMBER 2022 THE COURT ORDERS THAT: 1. Order 8 of the orders made herein on 31 March 2022 be vacated. 2. The hearing of the trial herein (currently set for 5-9 December 2022) be vacated. 3. The matter be listed for trial to commence on Monday, 6 March 2023 on an estimate of five days. 4. By 4.00pm on Monday, 27 February 2023, the parties file: (a) a joint list of legislation and authorities to be relied upon at the hearing; and (b) provide the Court, by email to the chambers of the Honourable Justice Snaden, with a download link, with electronic copies of each authority, in text-recognised and enhanced PDF format, titled with the full case name and citation. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 The applicant, Dr Bellou, moves upon an interlocutory application dated Monday, 21 November 2022 for orders to vacate the hearing of the trial herein, which is currently scheduled to commence on Monday, 5 December 2022. 2 Dr Bellou's application is supported by an affidavit that she swore also on Monday, 21 November 2022. Given the central thrust that underpins it (the particulars of which are discussed further below), she asks that her application be determined without an oral hearing. Asked by the court to indicate its position, the respondent has indicated that it opposes the vacation that is sought and has identified the grounds upon which that opposition proceeds; but has otherwise indicated that it too is content for the question to be decided without the need for an oral hearing. 3 With considerable hesitation, I have resolved to grant the relief for which Dr Bellou moves. Given the highly regrettable trajectory of this matter to date, I am compelled to offer the following reasons for doing so. 4 Dr Bellou is self-represented. Her application proceeds on the basis that she is presently stricken by ill-health, on account of which her capacity to prepare for and run the trial of her matter is compromised. On Friday, 18 November 2022, she obtained from her doctor, Dr Anthony Diamantaras, correspondence that was addressed to the court. That correspondence was in the following terms: [Dr Bellou] continues to suffer from severe and chronic debilitating health issues as a result of significant multiple injuries sustained in a workplace incident on February 2, 2016 that have had significant impacts on her capacity to prepare the appropriate documentation for her legal proceedings. She suffered significant spinal injuries including a significant head injury/concussion. She continues to suffer from a severe and intractable pain state affecting the cervical, thoracic and lumbar spine as well as upper and lower limb symptoms. She has intractable headaches. She has also contracted Covid and had significant long Covid symptomatology including marked and profound fatigue and brain fog. She has been referred to a long Covid clinic at the Royal Melbourne Hospital for management of her post viral symptomatology. She is currently incapable of undertaking court proceedings and it is very difficult to predict given the variable nature of long Covid symptomatology when she will be capable of representing herself in court proceedings. 5 This matter is embarrassingly old. It was commenced in September 2017 and focuses (or, so far as is presently clear, appears to focus) upon events that transpired earlier that year. The current trial date—5 December 2022—is not the first that has been reserved for it. More than four years ago, a previous docket judge set it down for a trial to commence on Monday, 17 June 2019. A couple of weeks before that hearing was due to commence, Dr Bellou made an application for orders to vacate it. That application proceeded, as this one does, on the basis that she was not physically well enough to prepare and run her matter to trial. That application failed for want of sufficient medical evidence; but a subsequent one filed a matter of days later (which was supported by more fulsome medical evidence) succeeded. 6 Thereafter, the matter went somewhat stale. Save for periodic medical updates from Dr Bellou, it lay in abeyance for a couple of years until resuscitated at the court's initiative in 2021. From that point, it was the subject of multiple contested interlocutory applications, by which Dr Bellou attempted—again, not for the first time—to expand its scope and obtain, for exploratory purposes, enormous volumes of documentary material from the respondent. Those repeated excursions bore no fruit for Dr Bellou. One resulted in an order that she pay some costs in consequence of unreasonable conduct. 7 The present trial date was fixed in June 2022. Directions for the filing and service of affidavit evidence and written submissions have been issued and complied with. All that remains is to hear the matter. 8 That Dr Bellou should apply now—again, at the proverbial eleventh hour—for yet another procedural indulgence is regrettable, to put it politely. Two-and-a-half years ago, I made the following observations: Dr Bellou has already been the beneficiary of extensive accommodation in this matter. The Court itself has made attempts to secure pro bono legal assistance for her. The respondent has assumed (or has been required to assume) more of the preparation burden than would normally be the case. It faces the prospect of defending a proceeding that, in my opinion, is put with a want of precision and particulars that respondents ought not generally to have to endure. It has conducted itself in a "patient and model way": Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). Given that Dr Bellou is self-represented, these accommodations are appropriate. However, they afford in the present application particular relevance to the absence of specific evidence about how or why it is that the "clinical deterioration" to which Dr Diamantaras's medical certificate refers precludes Dr Bellou's engagement in her own legal proceeding, or when it might be that such engagement might later be possible: see, in that regard, Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, [50] (Collier, Griffiths and Mortimer JJ). Additionally, case management considerations should inform the exercise of the Court's discretion to indulge Dr Bellou in the manner sought. In Hong v Liew [2014] FCA 40, Murphy J observed (at [15]): Case management considerations inform the exercise of my discretion in this matter. My power to manage litigation must be exercised consistently with my duty to do justice so that this dispute is disposed of in a way that is consistent with the overarching purpose in civil procedure and practice: see s 37M(1) of Federal Court of Australia Act 1976 (Cth). (Bellou v Victoria University [2019] FCA 812, [10]-[11] (Snaden J)). 9 Those observations apply equally (if not more forcefully) now. 10 The position in which the respondent finds itself is intolerable. Dr Bellou's case against it is, despite the court's best efforts, confused and unclear. The affidavit material that she has filed in support of it appears to extend beyond the observable boundaries of her originating application. That appears so despite the multiple failed attempts upon which she embarked over the first four years after her action was commenced to expand its scope. The matter is old and will necessarily require witnesses to recall events that transpired years ago. Nonetheless, evidence has been filed; submissions have been exchanged—and, just as a trial finally looms, Dr Bellou makes yet another application to delay it. 11 In June 2019, I made the following observations: It is sufficiently clear from Dr Diamantaras's most recent letter that Dr Bellou's injuries are such that she cannot properly advance her case in the immediate term. The degree of particularity that was absent in May 2019 is now present. It is sufficient to establish an evidential basis for what Dr Bellou has previously sought merely to assert: namely, that she is unfit to prepare and run her case. Although her physical condition is not, of itself, a circumstance that mandates an eleventh-hour vacation of the existing directions and trial dates, it is an obvious and significant factor that should inform an exercise of the court's discretion to that end. The impact of vacation upon the respondent is another. The unfortunate position in which it now finds itself should not go unnoticed. Contrary to Dr Bellou's intemperate and largely (if not entirely) groundless criticisms (about which more is said below), it has conducted itself in a "patient and model way": Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). The case advanced against it is put with a want of precision under which respondents ought generally not have to labour. Rather than enforce its right to a proper pleading, it has been content to permit Dr Bellou to state her case more particularly by means of the evidence upon which she intends, at trial, to rely. By its approach to the defence of the action, it has made appropriate accommodations of Dr Bellou that reflect her status as a self-represented litigant. Through no fault of its own, it now faces the prospect of defending a civil penalty case commenced nearly two years ago that is still yet to be satisfactorily articulated. That it should now stand accused of "trial by ambush" must be particularly galling. The impact that vacation of the existing directions and trial dates will visit upon it is significant and it is proper to take account of it. (Bellou v Victoria University (No 3) [2019] FCA 940, [11]-[12] (Snaden J)). 12 Again, those observations apply equally, if not more forcefully, now. As I did then, I accept now that Dr Bellou's unfortunate predicament is a factor—and a significant factor—that should inform the court's discretion to grant the relief for which she moves. 13 At some point, though, this matter will end. If, whether for reasons of ill health or otherwise, Dr Bellou continues not to prosecute her action with the urgency that the respondent and the court are entitled to expect, it may be necessary for the court to consider other avenues to bring things to a head. 14 For now, though, I will grant the relief that Dr Bellou seeks. The respondent asks, in that event, that the court make orders requiring that Dr Bellou file and serve expert medical opinion attesting to various particulars of her present incapacity. It also asks that the court set the matter down for trial in the first half of 2023. 15 I do not consider it necessary to require further medical evidence. Largely, that is because I can and will accommodate the respondent's other request. The matter will be scheduled for hearing in March 2023. I consider that there is little, if anything, to be gained by requiring Dr Bellou to obtain the expert evidence that the respondent foreshadows. 16 Although I would stop short of suggesting that no further indulgence will be granted under any circumstance, I should nonetheless wish to impress upon the parties that they should expect that further vacation of the trial will require a particularly compelling basis. From the court's perspective (accounting for the hearing of other matters that are already scheduled), the dates that I propose to reserve in March 2023 are the only dates in 2023 over which the hearing is currently feasible. Indeed, they will intrude upon time that has been set aside to address other matters, and will inevitably and adversely impact upon other litigants. It is appropriate to accommodate the needs of the parties in the way that they have been (and will be); but they should understand that there are limits. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 24 November 2022