The Supreme Court of Victoria on the Limits of Assistance to Self Represented Litigants

Collis & Anor v Bank of Queensland Limited & Ors [2021] VSC 724

Bankers, their lawyers, and financiers of all types will often meet with self-represented litigants. Interacting with these litigants can pose particular strategic and commercial challenges and create pitfalls for unwary practitioners.

In particular, over the last decade, the courts have repeatedly indicated they will hold bank and financier litigants to a higher standard, and demand better commercial solutions from them and their lawyers, while at the same time setting up processes and resources, including dedicated mortgage and/or banking lists, self-represented litigant coordinators, and targeted early settlement options (such as mediation, early neutral evaluation, and other forms of appropriate dispute resolution) to assist self-represented litigants. The Supreme Court of Victoria is also referring some banking matters involving self-represented litigants directly to the Victorian Bar for pro bono assistance where parties may not be able to retain a solicitor.

This ethos reflects an appropriate and by now widespread view that there is a clear power imbalance in many cases between a borrower and their banker – and the courts will not hesitate to rebalance the scales of justice accordingly.

It also reflects the commercial and legal reality that most entities sued by a bank in Australia have already been through a comprehensive internal bank dispute resolution process, perhaps also an external and independent process such as those undertaken by the Australian Financial Complaints Authority, and which since the Hayne Royal Commission have vastly reduced the number of borrowers actually pursued to judgment by banks. This has also meant that many of the matters that do actually end up in Court involve complex legal issues and/or challenging human elements.

But what happens when self-represented litigants push this approach to its limits? When will a self-represented litigant’s attempts to “have their day in Court” instead be found to be an abuse of process?

In Collis v Bank of Queensland Ltd [2021] VSC 724, Associate Justice Matthews of the Supreme Court of Victoria faced an originating motion which her Honour found sought to re-litigate issues that were already substantially determined in an earlier appeal (Collis v Bank of Queensland Ltd [2021] VSCA 17).

The somewhat tortuous procedural history can be summarised as follows:

  • The bank sued the plaintiffs (two individuals) plus companies owned and controlled by them in the County Court of Victoria – and obtained summary judgment against the individuals and default judgment (no defence) against the companies (County Court Judgment);
  • In the course of the County Court matter, the first individual (who was not a legal practitioner) applied for leave to appear for the second individual and for the companies – leave was refused by a Judicial Registrar;
  • That leave to appear decision was appealed to a Judge of the County Court – the appeal was dismissed;
  • The County Court leave to appear decision was then the subject of an application for leave to appeal out of time and for leave to appeal to the Supreme Court of Victoria – those applications were refused by a Judicial Registrar; and
  • The first individual then further applied to the Court of Appeal for leave to appeal the County Court Judgment and for leave to appeal against the Judicial Registrar’s refusal to extend time for leave to appeal the leave to appear application – those leave to appeal applications were refused.

The self-represented litigants then both filed an originating motion in the Supreme Court of Victoria seeking judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of the:

  • County Court Judgment; and
  • the related orders of a Judge of the County Court of Victoria dated 16 December 2019.

The grounds for review in the originating motion were in summary:

  • First, that the Judge in the County Court failed in a duty to assist the plaintiffs as self-represented litigants in understanding court processes and, in particular, what they described as the “affidavit rebuttal procedure”;
  • Second, that the same Judge denied the second individual and the companies a fair hearing by refusing leave for the first individual to represent them “while being in full knowledge” of the companies’ “inability to hire a lawyer due to impecuniosity”.
    • The plaintiffs also contended under this ground that the Judge did not assist the plaintiffs to understand the procedure for bringing a derivative action as shareholders in the companies pursuant to s 236 of the Corporations Act 2001 (Cth); and
  • Third, that the Judge in the County Court denied the first individual a fair hearing by orders setting a timetable for further affidavit material from the plaintiffs to be no longer than two pages exclusive of exhibits, and submissions from the plaintiffs and first defendant, to be no longer than ten and four pages respectively; and
    • It was said that limitations on the length of material, and the timetable including the failure to provide for further written submissions in reply from the plaintiffs, unduly constrained the plaintiffs in responding to the proceeding and application.

Subsequent to filing the originating motion, the self-represented litigants then filed a summons seeking a stay of the County Court Judgment and related orders – which application was refused by a Judicial Registrar of the Supreme Court of Victoria.

The bank then filed a summons seeking summary judgment against the self-represented litigants on the basis that they had no real prospect of success, or alternatively that their originating motion should be summarily dismissed or permanently stayed as an abuse of process.

Key takeaways

The bank succeeded on its submissions and her Honour granted its application for summary judgment against the self-represented litigants and also found that the originating motion was an abuse of process.

In doing so, her Honour made helpful comments about the limits of the Court’s proper concern to see that self-represented litigants’ rights (and their ability to defend or bring a claim against a bank or other financier) are protected.

In particular, her Honour found that:

  1. …it will be an abuse of process to commence proceedings for judicial review in respect of matters which have already been determined by the Court of Appeal where an appeal was brought. That abuse of process may be described in terms of an estoppel, res judicata or some other bar against re-litigation of matters already determined; or it may be described in terms of unreasonably oppressive conduct; or in terms of the bar against judicial review where the proper course is for an appeal to be brought.

[…]

  1. The ‘affidavit rebuttal procedure’ issue was not raised in that form before the Court of Appeal. However I consider that raising it in this proceeding is an abuse of process, as it is a matter which ought to have been raised before the Court of Appeal and is intrinsically and inextricably related to matters which were raised before that Court. This is so whether the abuse is characterised in the manner of an Anshun-estoppel or in respect of the bar against a judicial review proceeding where an appeal ought to lie, or some other principle which I have already addressed.

[…]

  1. …at [76] of the Court of Appeal Decision, their Honours make very clear that the Plaintiffs were ‘afforded every opportunity … to adduce evidence and present their case’.

[…]

  1. …in respect of the Companies, the Plaintiffs seek review of decisions made pursuant to r 1.17 of the CCV Rules. As was said in Silberman, the part of the Corporations Act in which ss 236 and 237 appear ‘says nothing about the circumstances under which an unqualified person may be given leave to appear, as an advocate in legal proceedings, on behalf of a company’.

[…]

  1. Further, the Plaintiffs’ reliance on a derivative action as a means to have…[the first individual]…represent the Companies is based on a fundamental misconception of those provisions of the Corporations Act.

[…]

  1. To contend that as a self-represented litigant…[the first individual]…was denied procedural fairness because the Judge did not inform him of a special procedure which does not exist or a derivative action inapplicable to the circumstances of the case is no basis for a judicial review application.”

Her Honour also made comments about the unacceptable prejudice to the bank owing to the prolongation of the litigation ([52]), and said forcefully as follows at [56]:

“…It is not in the interests of the administration of justice for matters to be re-litigated. Parties to litigation and the public generally have an interest in the finality of litigation. There is no basis for this proceeding to be permitted to continue and so the First Defendant’s application for summary judgment pursuant to ss 62 and 63 of the CPA is granted. This case is not one which falls within s 64 of the CPA. That is, it is not a proceeding that should not be disposed of summarily. It is not in the interests of justice to allow it to continue to trial, and nor is the dispute of such a nature that only a full hearing on the merits is appropriate. Rather, as set out above, the interests of justice require the opposite.”

Courts at all levels are likely to continue their push for better service and assistance for self-represented litigants. However, this case provides a useful summary of some instances where the limits of that approach are made clear.

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