IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. AP-22-0680

Hari SITHA	Plaintiff	
		
v		
		
Jovaline LEE	Defendant	

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JUDGE:	Pillay	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 May 2024	
DATE OF RULING:	16 May 2024	
CASE MAY BE CITED AS:	Sitha v Lee	
MEDIUM NEUTRAL CITATION:	[2024] VCC 666		

RULING
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Subject:	Appeal against Personal Safety Intervention Order
Catchwords: 	Legal, factual or discretionary error – Self represented litigant – Summary judgment - Whether matter should be struck out or stayed – Whether proceeding is frivolous, vexatious and/or an abuse of process -  Whether applicant lacks legal capacity
Legislation Cited:	County Court Civil Procedure Rules 2018, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:	Hoh v Frosthollow Pty Ltd [2014] VSC 77; R v Smith (1995) 1 VR 10; Rogers v The Queen (1994) 123 ALR 417; Austin v Dwyer [2018] VSC 770; Austin v Dwyer [2023] VSCA 227
Ruling:	Application granted

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	For himself		
			
For the Defendant	Mr W Barker		

HIS HONOUR:

1	This ruling concerns applications brought by the respondent to have the appellant’s appeal against a final Personal Safety Intervention Order (“PSIO”) struck out on the basis that the proceeding is frivolous and/or vexatious, or alternately stayed on the basis that it is an abuse of process.
Brief relevant background
2	By way of brief background, Ms Lee oversaw the human resources section of Guild Insurance, Mr Sitha’s former employer.  By her account, she undertook performance management of Mr Sitha prior to his termination from the company.  Subsequently, due to numerous threatening emails and telephone calls sent and made by Mr Sitha while he was making a WorkCover claim, she applied for a PSIO in March 2022  This appeal concerns a decision on 16 June 2022 to grant a final PSIO against Mr Sitha as it was found that the there was a reasonable prospect he would stalk Ms Lee in the future.  
3	The Court is able to stay or strike out a matter for being scandalous, frivolous, vexatious or an abuse or process under the County Court Civil Procedure Rules 2018 r23.01.  Relevantly a proceeding may be frivolous or vexatious if it is groundless or lacking in legal basis or merit.  A proceeding may be an abuse of process where it will inevitably fail. The categories are not closed in this regard and a Court may consider that the overall circumstances are such that warrant a proceeding be struck out or stayed to prevent an abuse of its processes or where to allow the continuation of the proceeding would bring the administration of justice into disrepute. 
Capacity
4	I note here, as I did at the hearing of this matter on 9 May 2024 (“the hearing”), that I have serious concerns about the capacity of the appellant to participate in proceedings.  I say this because, by his own account, he is mentally ill, he has been a psychiatric inpatient at Monash Medical Centre for approximately seven months, he appeared to be significantly medicated at the Hearing and he was evidently having difficulty formulating coherent submissions. 
The application
5	The respondent filed written submissions in this application on 27 March 2024.  At the hearing, the respondent reiterated many of its written submissions.  These are, in summary, that the proceeding is frivolous because, by the applicant’s own evidence before the Learned Magistrate, he repeatedly sent threatening and disturbing emails to the respondent.  There was therefore no factual error in the Magistrate’s decision. On this basis the respondent submits the appeal proceeding was frivolous as it had no prospect of success.  Alternately, it is alleged the appellant does not have a genuine intention to proceed to a substantive hearing and is using the proceedings to continue to harass the respondent and his former employer.  It is said this is demonstrated by the appellant’s failure to attend the majority of hearings in this matter and steps he has taken to allegedly delay or frustrate the proceedings.  Finally, the respondent submits that, even if a legal, factual or discretionary error were to be identified, the appellant has continued to breach the PSIO since the Magistrate’s decision by contacting the applicant, through emails that show an escalation in threatening and disturbing content.  Therefore, even if legal, factual or discretionary error were to be identified, a PSIO would be granted.
6	The appellant failed to make written submissions prior to the Hearing for this application in contravention of Court orders.  At the Hearing, the appellant’s submission were limited to stating he should be “pardoned” from having an intervention order made against him under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  I note here that this Act concerns a person’s fitness to stand trial in criminal matters and does not relate to intervention orders.
7	However, as stated above, it is apparent to me that there are serious doubts as to whether the appellant has capacity. I therefore proceed on the basis that he does not have capacity. In that circumstance I am cautious to proceed to hear or make findings as to the merits of the appeal.
8	The usual course would be to adjourn the matter to allow the issue of capacity to be resolved. This is either by a referral to VCAT or by permitting time for the appellant to recover or obtain a litigation guardian. However the circumstances of this case are unique and seem to warrant more than a usual approach. This is because of the following factors:
(a)	the transcript from the hearing below reveals that the order was made in Ms Lee’s favour after concessions from Mr Sitha that his conduct offended the PSIO. In that circumstance an order was inevitable. He cannot now resile from that position;
(b)	since the institution of the appeal in this Court no coherent explanation of the grounds of appeal has been made;
(c)	Orders of this Court have been breached on a number of occasions; 
(d)	Mr Sitha has failed to appear on numerous occasions;
(e)	Mr Sitha has sent numerous emails of an abusive nature to the Court and to the other party;
(f)	Ms Lee has appeared and complied with all orders and has attended on each occasion. 
9	I also record that Ms Lee was a co-worker with Mr Sitha at an insurance house some years ago. She has been the subject of his emails, many of which are abusive and threatening in nature for years. Though Mr Sitha has left her workplace she continues to receive these emails through the prism of the Court proceedings.  Her employer continues to pay for legal representation for her, though she is obliged to attend many of the hearing dates. 
10	In contrast, I note Mr Sitha’s intermittent engagement with the Court indicates he is exercising some selectivity in choosing which hearings he attends.  However, given his clear mental health issues and his status as an inpatient in a mental health facility, I do not make a finding on whether his non-attendance at numerous hearings indicates an ulterior purpose.  
11	Nonetheless, the assistance provided to self-represented litigants by the Court ‘should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he will ordinarily suffer when faced by a lawyer,    caution should be exercised in summarily dismissing matters without providing sufficient opportunity to make submissions.  I consider particular caution is necessary in this case given my concerns about the appellant’s capacity.  Balanced against this is the oppressiveness of the proceedings on the respondent by itself and in the manner in which it has been conducted. 
12	The matters set out above lead me to consider that the Court process is in fact being used, intentionally or not, in a way which does not align with the administration of justice. Rather it is being used in a way that is prolonging the litigation with dire consequences for Ms Lee. Litigation is a burden which she has, by the appeal, been dragged into and has been labouring under for a considerable period. She does not know the grounds of appeal or when they will be formulated or when the case will come on.  I find this is an abuse of process. Balancing this against the rights of the unrepresented person with no capacity is a difficult task. In attempting this task I have determined to grant a stay of the proceedings with conditions that Mr Sitha demonstrate that he has a capacity to conduct the proceeding and file a notice setting out grounds of appeal. If he fails to do this then the proceeding will be automatically dismissed.
13	I therefore order that a stay be placed on this matter for a period of three months, with the matter only to proceed if:
(a)	the appellant provides evidence that he has capacity to conduct the appeal or has had a litigation guardian appointed; and
(b)	that the appellant file and serve a statement of grounds of appeal and submissions.
(c)	Should the appellant fail to comply with the above within the period of three months from this order the proceeding will be dismissed.