SELF-REPRESENTED LITIGANT SEEKS JUDICIAL REVIEW DUE TO THE ALLEGED BREACH IN PROCEDURAL FAIRNESS BY THE MAGISTRATE

She v RMIT University & Anor [2021] VSC 2 (19 January 2021)

This case involves a self-represented litigant seeking for judicial review regarding the orders made by the Magistrate striking out her statement of claim alleging that there was a breach of natural justice or procedural fairness by the Magistrate.

Facts:

In 2018, the plaintiff was enrolled in a Graduate Diploma of Early Childhood Education at RMIT University. The course required students to undertake work-integrated learning in the form of a supervised placement at a child care centre. She started a placement at Little Stars childcare centre (‘the Centre’) which was meant to last 20 days, but was terminated early, on or around 7 September 2018.

The plaintiff was self-represented throughout that proceeding. The statement of claim broadly alleges negligence, bullying, libel, improper hearing, unfair marking and delay in investigation of complaints by RMIT University, the Centre and named individuals.

The plaintiff contends that the Magistrate breached natural justice through the conduct of the hearing to strike out her statement of claim. The plaintiff argues that she did not receive adequate notice to prepare for the interlocutory hearing as the defendant presented ‘everything verbally on the day’, without ‘an Affidavit in Support of Summons’ filed to enable her and the Magistrate to understand what was occurring during the hearing. The plaintiff was not given an opportunity to prepare a response to any evidence the defendant was to present at the hearing, and that the Magistrate breached natural justice by not asking the defendant why an affidavit in support of the summons was not provided.

The defendant, on the other hand, submits that the plaintiff  was given sufficient time to prepare for the hearing to strike out her statement of claim. Furthermore, the defendant submits that due to the operation of r 23.04(2), no evidence is admissible during an application to strike out a statement of claim, and that the plaintiff’s submission regarding the necessity for an affidavit in support of the application is incorrect.

Issue: Was there a breach in procedural fairness by the Magistrate?

Law:

• Magistrates’ Court General Civil Procedure Rules 2010 rr 23.01, 23.02, 23.04

Analysis:

The duty the Magistrate owed to the plaintiff is shaped by the nature and consequence of the hearing. A successful application under r 23.02 has the effect of striking out most or all of a pleading without any adjudication on the merits. This is a step a court cannot take lightly.

When it became apparent to His Honour that the plaintiff  did not appreciate that this was not an assessment of the strength of her case against the defendant, His Honour should have provided the plaintiff with the option of standing the matter down or adjourning the hearing  until another time or day and allow the plaintiff  time to review the defendant’s material, particularly the cases the defendant relied upon which would have provided further explanation of the operation of r 23.02.

Conclusion:

The Magistrate’s failure to provide the requisite level of assistance to the plaintiff, as a self-represented litigant, the lack of time provided to the plaintiff  to understand the hearing, the failure to facilitate an opportunity to advance her case, the ambiguity of His Honour’s decision and orders, and His Honour’s application of r 23.02 was a denial of procedural fairness and natural justice, and constituted a breach of the plaintiff’s right to a fair trial under s24 of the Charter.

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