Bellou v Victoria University (No 4) [2022] FCA 305

Federal Court of Australia

Bellou v Victoria University (No 4) [2022] FCA 305 File number: VID 1053 of 2017

Judgment of: SNADEN J

Date of judgment: 22 March 2022

Date of publication of reasons: 29 March 2022

Catchwords: PRACTICE AND PROCEDURE – interlocutory application – application for leave to file an amended statement of claim – proposed amended statement of claim failed to articulate claims with sufficient clarity – proposed amended statement of claim deficient – application for leave dismissed – application for respondent's costs of and associated with unsuccessful application for leave to file amended statement of claim – s 570 of the Fair Work Act 2009 (Cth) – prosecution of application for leave relevantly unreasonable – applicant ordered to pay respondent's costs in a fixed amount

Legislation: Fair Work Act 2009 (Cth) s 570

Cases cited: Bellou v Victoria University [2018] FCA 1794 Palmer v McGowan (No 4) [2022] FCA 292

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 14

Date of hearing: 22 March 2022

Counsel for the Applicant: The applicant appeared in person

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: 22 March 2022

THE COURT ORDERS THAT:

1. The applicant's application for leave to file her draft amended statement of claim dated 11 February 2022 be dismissed. 2. The applicant pay the respondent's costs of and associated with that application in the sum of $7,000.00. 3. The costs referred to in order 2 be paid to the respondent within 28 days of this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J: 1 This matter has an unfortunate procedural history. It was commenced more than four-and-a-half years ago, but is still yet to be articulated with clarity. It has been the subject of many case management hearings and many difficult exchanges with the applicant, who is and has remained self-represented throughout. 2 Before the court recently was an application for leave to file and rely upon a document that the applicant has prepared and that, had leave been granted, would have stood as her amended statement of claim. That document was prepared consistently (or more or less consistently) with directions that were issued in October 2021. Then, the applicant maintained that she wished to file an amended pleading to press claims that went well beyond what currently appears from her originating application (and, more specifically, the "Details of claim" set out within it). She insisted, however, that she was unable to do so unless or until the respondent gave "full and proper discovery". In an effort to make some progress with the matter, it was agreed, instead, that the applicant would prepare a proposed amended pleading as best she could, at which point the parties would reconvene to assess whether or not leave to rely upon it (and, thereby, to trigger orthodox litigation processes such as discovery) should be granted. 3 The applicant did not meet the deadline by which it was initially proposed that she would compile her draft amended statement of claim. Nothing turns on that. Eventually—on 11 February 2022—that document was circulated. It ran to some 72 pages (nearly 400 paragraphs) and purported to agitate concerns dating back to last century. The respondent opposed any grant of leave to file or rely upon it. 4 The issue came before me during an interlocutory hearing on Tuesday, 22 March 2022. After hearing submissions from the parties, I indicated that I would not grant the leave for which the applicant moved and ordered that she pay the respondent's costs fixed in the sum of $7,000.00. I gave oral reasons for doing so. The applicant appeared not to find them persuasive. She sought to engage the court on the appropriateness of the orders, made an emotional and wholly-unfounded accusation against counsel for the respondent, asked for advice on her rights of appeal, queried whether the orders that were made amounted to a "judicial decision" and then—somewhat more politely, it must be said—asked whether written reasons would be published in support of the court's judgment. 5 By email correspondence sent to my chambers on Monday, 28 March 2022, the applicant "…respectfully request[ed] formal written reasons for each finding of fact made against [her] and fulsome written reasons for each of the orders made against [her]…" For now, I make nothing of the fact that the applicant has corresponded directly with my chambers without the respondent's consent. At the risk of repetition, she is self-represented and, it might be presumed, lacks familiarity with applicable protocols. Nonetheless, those protocols shouldn't pass without mention. They were the subject of recent consideration in this court: Palmer v McGowan (No 4) [2022] FCA 292, [3] (Lee J). 6 Given the applicant's request for written reasons, I consider it appropriate to provide some (over and above those already provided orally). 7 As has already been made clear, I declined to grant the applicant leave to file the proposed amended statement of claim that she supplied on 11 February 2022. It is unnecessary to say much about that document. I intend no disrespect in saying so—and, again, I take due note of the difficulties under which the applicant labours—but the document is, on its face, a sprawling, discursive, conclusion-laden, indulgent, rolling-commission-of-inquiry-type document, by which the applicant seems intent on ventilating for judicial consumption, without clear connection to potentially actionable causes, every unsatisfactory interaction (or a significant number of them, at the least) that she claims to have endured throughout her long career with the respondent. It does not articulate claims with anything approximating the clarity that litigants in this court are entitled to expect, including from self-represented opponents. My own attempts during the hearing of 22 March 2022 to identify what, beyond what the existing "details of claim" part of her originating application already nominates, is the adverse action that the applicant seeks to prosecute was singularly unsuccessful. The proposed document—described accurately by the respondent as a "submission-manifesto"—is, at least in those senses, self-evidently deficient as a pleading. It is self-evidently deficient to a point that does not permit of piecemeal correction or selective, partial acceptance. It is entirely unfair to expect that the respondent should be vexed by something so obviously and comprehensively deficient. 8 In saying so, I am mindful of the latitude that ought to be extended to the applicant as a self-represented litigant; but given that some four-and-a-half years have passed since the proceeding was instituted, and that the issues to be ventilated still seem to defy any sensible distillation in a pleading that affords them reasonable clarity, the current situation is intolerable and should not be indulged. 9 I note, further, that the document bears more than a passing resemblance to the species of claim in respect of which similar submissions were rejected in 2018: Bellou v Victoria University [2018] FCA 1794 (Mortimer J). There, the court rejected a similar (though less prolix) attempt by the applicant to expand upon the complaints that she hopes to agitate at trial. That project was described (at [31]) as an attempt by the applicant "…to have the Court examine each and every aspect of her interactions with Victoria University where she feels aggrieved". The present application is a transparent attempt by the applicant to re-litigate (at least to some degree) what has already been decided against her. That is another basis upon which the application ought not now to be (and was not) indulged. 10 I turn, then, to the issue of costs. The respondent submitted that the applicant's prosecution of her application for leave to rely upon her draft pleading was unreasonable, such that the court should entertain its application for orders that the applicant should pay its relevant costs. The unreasonable conduct relied upon was said to arise from the fact that the proposed amended pleading was, as the court has found, self-evidently deficient and not one that ought reasonably to have been the subject of an application for leave. The respondent also cited the matters that were agitated before Mortimer J in 2018, by which the applicant sought unsuccessfully to enlarge—indeed, greatly enlarge, as on this occasion—the confines of the matters that she sought to prosecute; and to do so in ways that bore more than a passing resemblance to the present document. It was said that, given the obvious deficiencies that plagued the document and the fact that it amounted to an attempt to re-litigate at least some of what had already been decided, the applicant's prosecution of her claim for leave was unreasonable. 11 One of the few things that is clear about this proceeding is that it involves a matter arising under the Fair Work Act 2009 (Cth) ("Fair Work Act"). Section 570(1) of the Fair Work Act prohibits the court from awarding costs in such proceedings unless, relevantly, they were incurred in consequence of conduct that was unreasonable. I accept that the applicant's prosecution of a claim for leave to agitate her proposed amended statement of claim dated 11 February 2022 was relevantly unreasonable. 12 It is not necessary that I should repeat the comments that appear above about the deficiencies that attach to that document. Nothing that the applicant said in opposition to the granting of a costs order detracts from them. The applicant's submissions as to why it was that her prosecution of her application for leave was not unreasonable did not seem to deviate much from what she said in favour of the document itself. In that regard, the applicant submitted that the claims that she hoped to prosecute were articulated with sufficient clarity, that as a self-represented litigant she had been poorly treated both by the respondent and by its lawyers, and that the court had improperly or unfairly endorsed the respondent's criticisms of her proposed document and, in doing so, unfairly or improperly endorsed its attempts to "silence" her, that she felt that her conduct at all times was fair and reasonable, and that in all of the circumstances it would be unfair to award costs against her, particularly "…given what this case is all about". 13 With respect, none of the submissions that the applicant advanced detracts from the criticisms to which I have referred above—that is to say, the criticisms of the proposed amended statement of claim. That document has required that the respondent engage in—and, one assumes, pay for—work upon which it ought never to have been required to embark. The respondent has been unfairly and unreasonably vexed by the application, and it should not have been. In that sense, the applicant's conduct was relevantly—and, in my view, quite plainly—unreasonable, and I accepted, on that basis, that the prohibition for which section 570(1) of the Fair Work Act otherwise provides is not here applicable. I considered that it was appropriate to make orders to compensate the respondent for the efforts to which it has been needlessly and unreasonably put. 14 The applicant made no submissions about the fixed sum ($7,000.00) for which the respondent applied. That figure struck me as not only eminently reasonable—if anything, given the nature of the application and the volume of the material that has had to be assimilated and processed, it was very likely quite generous. Accordingly, I will order that the applicant pay the respondent's costs of and associated with her application for leave to file the draft amended statement of claim dated 11 February 2022 fixed in the sum of $7,000.00. I will also order that those costs should be paid within 28 days. That is appropriate, particularly in light of the fact that this matter has moved at a very slow pace and does not appear destined for trial in the short-to-medium term. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate: Dated: 29 March 2022