Federal Court of Australia Bellou v Victoria University (No 6) [2023] FCA 183 File number: VID 1053 of 2017 Judgment of: SNADEN J Date of judgment: 8 March 2023 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 – whether prejudice to the respondent outweighs considerations favouring vacation – where trial dates vacated on two prior occasions – interlocutory application dismissed Legislation: Fair Work Act 2009 (Cth) pt 3-1 Cases cited: Bellou v Victoria University [2018] FCA 1794 Bellou v Victoria University (No 5) [2022] FCA 1408 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 9 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: 8 March 2023 THE COURT ORDERS THAT: 1. The applicant's interlocutory application dated 28 February 2023 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 By an interlocutory application dated Tuesday, 28 February 2023, the applicant, Dr Bellou, moves the court for orders to vacate an existing trial date. The matter has a long and unflattering history, most recently summarised in Bellou v Victoria University (No 5) [2022] FCA 1408 ("Bellou (No 5)"; Snaden J). It is currently scheduled for trial commencing on Thursday, 9 March 2023. 2 Dr Bellou is self-represented. Her application, like others before it, proceeds on the basis that she is presently not well enough to prepare for and run the trial of her matter. Dr Bellou relies to that end upon an affidavit that she swore on 28 February 2023. Attached as an exhibit thereto is correspondence dated Monday, 27 February 2023 from her general practitioner, Dr Anthony Diamantaras, which reads as follows: The above patient continues to suffer ongoing significant physical and neurological sequelae as a result of significant workplace injuries sustained on February 2nd 2016. These periodically cause significant difficulties with concentration, attention span and focus as well as significant difficulties with sleep and energy. This has been further exacerbated by contracting Covid infection with the development of significant long Covid symptomatology including chronic lethargy and significant brain fog. She was referred some 3 months ago to the Royal Melbourne Hospital long Covid clinic for specialist management but has yet to receive an appointment. She does not currently have a capacity to undertake the detailed and extensive legal preparations involved in defending her case and to represent herself in Court. 3 Dr Bellou asks that the court determine her application without the need for an oral hearing. The respondent opposes any vacation—or further vacation—of the trial and, to that end, relies upon an affidavit of Mr Rick Catanzariti, affirmed on 6 March 2023. It has indicated that it is content for the court to determine the application on the papers. Asked to confirm, upon receipt of that affidavit (and written submissions made in opposition to vacation), whether she wished to be heard in reply, Dr Bellou indicated that she wanted to be, whereupon the court resolved to hear from the parties on Thursday, 9 March 2023. Later, Dr Bellou clarified that she was content for her application to be decided on the papers and that is the course that I shall adopt. 4 It is apparent that Dr Bellou continues to labour under some considerable and very unfortunate physical and neurological ailments. I should be careful not to underestimate the difficulties that they pose for her, nor the extent to which they will adversely impact upon her preparations for and running of the trial. Save for one observation of Dr Diamantaras's, I accept that Dr Bellou's current predicament will compromise the case that she hopes to prosecute. 5 Nonetheless, I do not consider that Dr Bellou's difficulties accumulate to a point that warrants yet further delay in what is already a very old matter. At its core, the matter concerns allegations that the respondent acted in contravention of pt 3-1 of the Fair Work Act 2009 (Cth) (the "FW Act"). Its defence will inevitably require that the respondent lead evidence to substantiate its reasons for acting in the ways that Dr Bellou seeks to impugn (and, more importantly, to establish that none of the conduct about which she complains was taken against her for reasons that are proscribed by that part of the FW Act). The relevant events occurred many years ago and the respondent's ability to defend the proceeding will be very obviously and significantly prejudiced by yet further delay. 6 Further (and with respect), I do not accept Dr Diamantaras's opinion that Dr Bellou "…does not currently have a capacity to undertake the detailed and extensive legal preparations involved in defending [sic] her case and to represent herself in Court". Save for the observations that precede that statement (which concern Dr Bellou's present symptomology), that opinion is unparticularised. Again with due respect, it is not apparent that Dr Diamantaras is apprised of what the present matter entails. I consider that he was at pains, very simply, to impress upon the court the significant and unfortunate medical predicament under which Dr Bellou presently labours. 7 I accept that Dr Bellou's physical (and, no doubt, mental) capacity is currently compromised—no doubt heavily so; but I am confident, nonetheless, that she will be able to prosecute her case with appropriate diligence. To the extent that she might reasonably require them, the court will afford appropriate break times throughout the course of the trial. Moreover, the respondent has, to date, conducted itself in a "patient and model way": Bellou v Victoria University [2018] FCA 1794, [45] (Mortimer J). I have little doubt that it will continue to do so, which will ameliorate at least some the difficulties under which Dr Bellou will have to proceed. 8 Regardless, the matter is now at a point that I consider that Dr Bellou's medical situation is not sufficient to warrant yet further delay. The sixth anniversary of the commencement of the matter is rapidly approaching. Dr Bellou has now made four applications to vacate the hearing of the substantive matter. All were made at the proverbial eleventh hour; and two succeeded. In Bellou (No 5), that reality prompted the following observations: 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. 9 In the circumstances, I consider that any further delay of the trial would be contrary to the interests of justice. Dr Bellou's application of 28 February 2023 will be dismissed. I will reserve the question of costs for consideration as or if required at a later date. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 8 March 2023