IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
 Suitable for Publication	
GENERAL CASES List
Case No. CI-19-03745

FIONA RUTH MCLEAY AS VICTORIAN LEGAL SERVICES COMMISSIONER	Plaintiff		
			
v			
			
JOEL LORENSZ BELING 	 Defendant

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JUDGE:	HER HONOUR JUDGE A RYAN 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 September 2020	
DATE OF RULING:	23 June 2021	
CASE MAY BE CITED AS:	Victorian Legal Services Commissioner v Beling (No 3)	
MEDIUM NEUTRAL CITATION:	[2021] VCC 764		

REASONS FOR RULING
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Subject:		PRACTICE AND PROCEDURE 	

Catchwords: 	Application for leave to file amended defence and counterclaim – whether proposed pleading manifestly defective and likely to delay the fair trial of the proceeding – competing applications for summary judgment – defendant’s alternative application for strike out of the plaintiff’s claim

Legislation Cited:	Civil Procedure Act 2010; County Court Civil Procedure Rules 2018

Cases Cited:	Victorian Legal Services Commissioner v Beling [2020] VCC 1010; Pentridge Village Pty Ltd (in liq) v Capital Finance Australia (No 2) [2020] VSC 284; Knorr v CSIRO & Ors [2012] VSC 83; Knorr v CSIRO (No 2) [2012] VSC 268; Knorr v CSIRO (No 3) [2012] VSC 529; Knorr v CSIRO & Ors [2014] VSCA 84; Wheelahan v City of Casey & Ors [2013] VSC 316; Daher v Bell [2020] VSC 346; Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97; Silver Chefs Rentals v Makong Australia [2019] VSC 703; Hausman v Abigroup Contractors Pty Ltd [2009] VSCA 288; Beling v VLSC [2020] VSC 200
		
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr M G McNamara 	White Cleland 	
			
For the Defendant	In person		

HER HONOUR:

1	By summons filed 13 March 2020, the plaintiff, as Victorian Legal Services Commissioner (“the Commissioner”), seeks summary judgment against the defendant (“Beling”) pursuant to s 63 of the Civil Procedure Act 2010 (“CPA”) on her claim and the counterclaim.  The alternative relief sought was that the defendant’s defence and counterclaim filed and dated 30 November 2019 be struck out.  This pleading was struck out by his Honour Judge Cosgrave by orders made on 23 July 2020.  The summary judgment application was adjourned, pending leave granted to Beling to serve a further proposed amended defence and counterclaim.
2	By summons filed 25 August 2020, Beling seeks the following relief:
(a)	leave to file his proposed amended defence and counterclaim dated 30 July 2020;
(b) 	summary judgment against the plaintiff based on the proposed amended defence and counterclaim; and
(c) 	that part or all of the Commissioner’s statement of claim be struck out.
Background and procedural history
3	This proceeding was commenced by writ filed 13 August 2019. The Commissioner seeks to recover the sum of $207,767.15, together with interest and costs. This amount is claimed pursuant to a deed of settlement entered into by the parties on 6 June 2018 (“Deed”). Under the Deed, Beling agreed to pay the Commissioner the sum of $237,767.15 by way of monthly instalments. This sum represented legal costs incurred by the Commissioner in the Supreme Court, following an unsuccessful attempt by Beling to stop the Commissioner’s investigation into his conduct, together with the costs of a subsequent disciplinary hearing at VCAT. Beling was found guilty of professional misconduct at VCAT, fined the sum of $10,000 and ordered to pay the Commissioner’s costs. After some negotiation, the parties agreed on the quantum of the costs payable together with an instalment plan as set out in the Deed.
4	For reasons set out in his proposed defence and counterclaim dated 30 July 2020, Beling now seeks to argue the Deed is not binding upon him and that the Commissioner is not entitled to recover her costs.  Beling counterclaims for the sum of $40,000, representing reimbursement of the fine paid of $10,000 and three instalments he paid under the Deed totalling $30,000. Beling also makes a claim for loss of wages and exemplary damages in the sum of $250,000.
5	Beling sought to file and serve a defence and counterclaim dated 10 October 2019 which comprised 140 pages.  Pursuant to r 27.06(1) of the County Court Civil Procedure Rules 2018 (Vic) (“Rules”), the Registrar refused to accept the proposed pleading for filing.
6	At a directions hearing on 28 October 2019 before Judicial Registrar Tran (as her Honour then was) Beling made various applications, including an application for a direction under r 27.06(3) with respect to his proposed defence and counterclaim, and a third party notice, both dated 10 October 2019.  Beling also applied for a stay of this proceeding pending appeals by him of the VCAT decision and the Supreme Court decision. Judicial Registrar Tran dismissed Beling’s applications, including his application for a stay, by orders made on 28 October 2019. 
7	The judicial registrar provided guidance to Beling with regards to his pleading in various ways, including adding an attachment to the orders setting out possible causes of action/defences.  It was recorded in “Other Matters” of the orders that Beling was reminded of his obligations in Order 13 of the Rules.  He was also reminded of his obligations under the CPA, including in relation to proportionality, which in this instance required a focus upon clearly expressing material facts and particulars in as succinct a manner as is practicable.  The time for Beling to file and serve a defence and counterclaim was extended to 26 November 2019.  Beling filed a defence and counterclaim on this date.
8	Both parties filed summonses in March 2020 seeking summary judgment, or in the alternative, strike out of part or all of the other’s pleading.  
9	The Commissioner’s present summons, as well as an earlier summons filed by Beling on 13 March 2020, were referred to his Honour Judge Cosgrave for determination on the papers.  His Honour delivered a ruling on these applications on 14 July 2020.  The ruling helpfully sets out the factual background surrounding this dispute which is reproduced below:
“Between about August 2012 and January 2013, Beling acted for Tracie and Peter Hanna in a proceeding brought against them by the ANZ Bank in the Federal Circuit Court. After termination of Beling’s retainer, Mr and Mrs Hanna made a complaint to the Commissioner about Beling’s conduct and the costs which he claimed from them. The Commissioner commenced an investigation.
On 17 November 2014, Beling began a proceeding against the Commissioner in the Supreme Court of Victoria (“the Supreme Court proceeding”) seeking orders in the nature of mandamus and prohibition.
On 23 December 2014, the Commissioner decided under section 4.4.13 of the Legal Profession Act 2004 that she was satisfied that there was a reasonable likelihood of Beling being found guilty of professional misconduct. The Commissioner was thereby obliged to apply to VCAT for an order in relation to Beling and, accordingly, commence proceedings in VCAT (“the VCAT proceeding”).
On 16 April 2016, Derham AsJ upheld the Commissioner’s application for summary determination of the Supreme Court proceeding. His Honour rejected Beling’s application for leave to discontinue the proceeding. 
On 12 July 2017, VCAT found Beling guilty of professional misconduct. 
On 27 September 2017, VCAT ordered that Beling pay a fine of $10,000 and some of the Commissioner’s costs of the proceeding in VCAT. VCAT ordered that the fine be deducted from the amount payable as costs.
The parties engaged in correspondence and negotiations in relation to the costs orders. In May 2018, the Commissioner sent Beling a draft bill of costs in relation to the Supreme Court proceedings in an amount of about $46,000 and a draft bill in relation to the VCAT proceeding in the sum of about $252,000. Although the combined costs, including the costs of producing the taxable bills exceeded $318,000, the Commissioner offered to settle the costs claim for $237,767.15, payable by monthly instalments of $10,000 until the debt was paid.
Beling responded by claiming that he was under financial duress and needed time to consider the proposal and to obtain legal advice. The Commissioner agreed to give Beling a further period of 21 days from 17 May 2018 to do those things.
On 17 May 2018, Alexandra Freeman (“Freeman”), senior investigator and solicitor in the discipline and suitability team employed by the Commissioner, sent Beling a letter on behalf of the Commissioner in which she said to him, inter alia, that:
•	Beling had raised concerns about the authenticity of his file throughout the VCAT proceeding and the Tribunal did not accept his allegations;
•	the appeal periods for both the VCAT proceeding and the Supreme Court proceeding had now passed;
•	VCAT ordered that the amount of the costs ordered to be paid were to be determined by the Costs Court in default of agreement. Beling was under no obligation to sign the deed of settlement (“the Deed”);
•	the Commissioner was willing to provide an extension of 21 days for Beling to consider the documents and seek legal advice;
•	the Commissioner rejected Beling's assertion that she was putting him under financial pressure. The Commissioner was merely pursuing her costs in accordance with the orders made in the VCAT proceeding and the Supreme Court proceeding. The Commissioner encouraged Beling to seek the assistance and advice he required;
•	the Commissioner was not seeking from Beling at the time the costs she had incurred in having the bills of costs drawn by Grace Cost Consultants; and
•	Freeman enclosed with her letter to Beling copies of all invoices received from Ms Kate Anderson of counsel and Mr Howell (expert witness) in relation to the VCAT proceeding and invoices received from Ms Lucy Kirwan of counsel in relation to the Supreme Court proceeding.
In a series of emails and/or letters in late May and June 2018, Beling claimed that the costs debt was unjustifiable and unreasonable and that if the Commissioner sought to claim all the costs, she was attempting to obtain a financial advantage by using the threat of costs to cause him economic duress. Freeman responded to Beling by email on 6 June 2018. She informed him that by reason of his stated position, the Commissioner inferred he was unwilling to pay the costs. Accordingly, from the Commissioner’s perspective, the negotiations regarding the costs reductions were finished and the Commissioner would proceed to seek payment of the costs in full.
By email later the same day, Beling denied he was unable to pay the costs, and said that he had signed the Deed providing for the payment of the $237,767.15 by monthly instalments of $10,000. Shortly after, Beling sent the Commissioner another email where he drew attention to the Commissioner’s offer of 17 May, being open for 21 days and said that he had signed and returned the Deed within that period.
Freeman received the signed Deed from Beling on 12 June 2018. Under the terms of the Deed, Beling agreed to pay the Commissioner the sum of $237,767.15 by 23 monthly instalments of $10,000 dollars, commencing on 1 July 2018, with a final payment of $7,767.15 to be paid on or before 1 June 2020.
Beling made payments of $10,000 on each of 27 June, 27 July and 20 August 2018. Beling made no other payments leaving an outstanding balance of $207,767.15. In his defence and counterclaim, Beling sought to recover those payments, together with the fine of $10,000 imposed upon him by VCAT.
On 27 September 2018, shortly before the next monthly payment was due, Beling sent an email to the Commissioner with a series of allegations including:  he had no intention to create legal relations with the Commissioner; he signed the Deed because the Commissioner's office placed him under economic duress; there was illegality and lack of good faith attaching to the performance of the Deed – in particular the falsification and forgery of his file; the Deed was illegal on public policy grounds because it involved a fraud on the Tribunal; it was a contract prejudicial to the interests of justice; and it was a contract which promoted corruption in public life. 
The Commissioner took issue with Beling in her responding email and detailed why she disagreed with his allegations and complaints.
After further correspondence between the parties in December 2018, the Commissioner’s solicitor by letter dated 18 July 2019 made demand on Beling for the sum of $207,767.15 due under the Deed. When Beling made no payments and disputed liability, the Commissioner commenced this proceeding by writ on 13 August 2019.”
10	In deciding to strike out the defence and counterclaim dated 19 November 2019, his Honour Judge Cosgrave found as follows:
“I accept that the current form of defence and counterclaim does not comply with the court’s rules about pleading. The defence and counterclaim is an idiosyncratic document which is lengthy, prolix and repetitive.  More than 60 pages long and comprising about 240 paragraphs, much of it reads more like an affidavit than a pleading.  This is a little surprising when Beling was a practising solicitor.
The defence and counterclaim is frivolous, vexatious and is apt to prejudice, embarrass or delay the fair trial of the proceeding.  In my view, the defence and counterclaim pleads not just material facts but much additional material of an evidentiary nature.  It asserts conclusions or opinions and parts of the material are confusing and not relevant.  I am concerned that major aspects of Beling’s case relate to issues which have already been raised in the VCAT proceeding or the Supreme Court proceeding.  To the extent that the defence and counterclaim raises questions already litigated between the parties, they cannot be litigated. 
…
Because of the size of the pleading, its discursive and repetitive nature and its various defects, I consider that the whole pleading should be struck out.  However, given the serious nature of the claim and the significant consequences that will follow for Beling if the Commissioner succeeds in her claim, I consider that the ends of justice are best served by allowing Beling another opportunity to plead a defence and counterclaim which complied with the court’s rules…  While I consider it is reasonable that Beling be given another chance to make good his defence and claim, I also think that, subject to exceptional circumstances, this should be his final opportunity to do so.  If on the next occasion, Beling cannot produce a pleading which satisfies the Rules, it suggests that he does not have a valid defence and counterclaim.” (emphasis added)
11	In obiter, his Honour stated at [40]:
“Given my view that that the defence and counterclaim should be struck out and that Beling should be permitted to replead, it is not strictly necessary to address in detail the matters raised in Beling’s current pleading.  However, I will briefly state my views on some issues.  Although my views are obiter and do not bind other judges, they might, apart from anything else, assist Beling in framing his amended document.  If Beling were to plead defences or causes of action in his counterclaim which had no real chance of success but were more fanciful in nature, a court would probably strike them out because there is no utility in allowing futile amendments.” 
His Honour then went on to identify the categories of defences and claims raised by Beling and provided an analysis of the elements and issues raised in the November 2019 pleading.
12	Judge Cosgrave dismissed Beling’s application for summary judgment against the Commissioner and/or strike out of part of all of the statement of claim. His Honour made the following findings:
“The Commissioner makes a simple claim for breach of the Deed.  There is no dispute that Beling signed the Deed, made three monthly instalment payments and then failed to pay the rest of the money owing under the Deed.  Subject to the issues raised by Beling in his defence and counterclaim, the Commissioner’s case is established.
  For this reason, there is no basis on which Beling could obtain summary dismissal of the Commissioner’s claim.  The case put forward by the Commissioner does not have a merely fanciful chance of success.  On the contrary, it has real prospect of success in circumstances where there is no serious contest about the critical facts and, as will be seen later, I am striking out the defence and counterclaim.  Hence, Beling’s application under Rule 22.16 must fail.
  Further, the pleading is not defective and none of it need be struck out.  Moreover, by relying on Rule 23.01, Beling must establish the Commissioner’s claim is so lacking in a factual and/or legal basis that no possible amendment can save the claim.  Beling is unable to do this.  Nor did Beling clearly articulate any issue he had with the form of the Commissioner’s pleading.
  In my view, Beling cannot succeed in his application against the Commissioner.  At most, Beling might have available to him a point of defence or a counterclaim which, if it gave rise to an entitlement for damages, could be set-off against the amount which would otherwise be payable to the Commissioner on her claim.” 
13	On 23 July 2020, his Honour Judge Cosgrave made various orders (“the Orders”) including an order that Beling’s summons dated 13 March 2020 be dismissed.  His Honour also ordered that Beling’s defence and counterclaim dated 26 November 2019 be struck out with leave to serve a proposed amended defence and counterclaim. The Commissioner’s application for summary judgment was adjourned to a date to be fixed. 
14	Pursuant to the Orders, Beling served a proposed amended defence and counterclaim dated 30 July 2020.  The Commissioner objected to this pleading being filed.  Beling filed a summons on 25 August 2020 seeking, inter alia, an order for leave to file his proposed amended defence and counterclaim dated 30 July 2020. 
15	The Commissioner’s summons filed 13 March 2020 and Beling’s summons filed 25 August 2020 came before me sitting as Duty Judge on 24 September 2020.
16	The following materials were relied upon by the parties in support of the applications: 
(a)	the Commissioner:
(i)	affidavit of Alexandra Claire Freeman affirmed 12 March 2020, with exhibits “ACF-1” to “ACF-22”; and
(ii)	submissions dated 16 September 2020 and submissions in reply dated 18 September 2020 and filed on 21 September 2020.  (The reply submissions refer to earlier submissions of the Commissioner dated 20 April 2020.)
(b)	Beling:
(i)	four affidavits sworn 11 and 25 March 2020 and 15 and 28 August 2020 which contained voluminous exhibits; and 
(ii)	submissions dated 9 September 2020 and submissions in reply dated 20 September 2020. 
17	The parties also made lengthy oral submissions on 24 September 2020. 
Applicable pleading principles
18	The Commissioner refers to the general principles relating to the granting or refusal of leave to amend pleadings as set out by Connock J in Pentridge Village Pty Ltd (in liq) v Capital Finance Australia (No 2) (“Pentridge Village”).  The Commissioner summarised the principles set out by his Honour as follows:
(1)	 In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.
(2)	 The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power.  There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment. 
(3)	 An amendment which is futile because it is obviously bad in law will not be allowed. 
(4)	 Similarly, if a proposed pleading would be liable to be struck out if [it] had been contained in an original pleading, either because the pleading is bad in law or is a defective pleading, then leave to file the proposed pleading will not be allowed.
(5)	 The court, on an application for leave to amend, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court’s discretion.
(6)	 Having regards to the terms of the CPA, the test is best expressed in the words of s63 of the Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.
(7)	 Relevant factors also include whether there will be substantial delay caused by the amendment and the extent of wasted costs that will be incurred.
(8)	 The court must have regard to the relevant provisions of the CPA when addressing case management matters, including applications for leave to amend.
As to the fourth principle, a pleading will be liable to be struck out pursuant to rule 23.02 where: (a) it does not disclose a cause of action or defence; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (d) it is otherwise an abuse of processes of Court…” 
[footnotes omitted] 
19	The Commissioner also referred to the decision of Beach J (as His Honour then was) in Knorr v CSIRO & Ors.  In that case, his Honour set out the principles relating to the rules of pleadings as follows:
“1.	The rules of pleading require every pleading to contain in a summary form a statement of all the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved.  Additionally, the rules require each allegation so far as practicable to be contained in a separate paragraph.
 2.	Pleadings should be as brief as is consistent with clarity.  Whilst brevity is of secondary importance when compared with clarity and precision, in an extreme case, a pleading may be struck out for prolixity.  As has been said repeatedly, the parties in any litigation are under a duty to cooperate with the Court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his or her own conclusions about the merits of the case.  Neither parties nor courts have unlimited resources.
 3.	In the case of a statement of claim, pleading all the material facts means pleading all the facts necessary to constitute a complete cause of action.  No more.  No less.
 4.	Again, as has been repeatedly stated, the material facts relied on should be stated precisely and briefly.  As a rule, they should be arranged in chronological order.  Only the material facts should be stated, and statements of fact which are not necessary are liable to be struck out.  Again, evidence by which material facts are to be proved should not be pleaded.
 5.	In addition to the pleading rules I have just described, each pleading must contain the necessary particulars of any fact or matter pleaded.  The ultimate aim of pleading rules is the definition with precision of the issues between the parties.  The rules facilitate the just, economic and efficient disposition of litigation:  they are no mere technicality.  As has been repeatedly said, they serve very important purposes so far as the proper determination of disputes is concerned.”
20	In Wheelahan v City of Casey & Ors (No 12), Dixon J referred to the pleading principles to be applied as follows:
“(a)	Order 13 of the Rules set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;
 (b)	the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial; 
 (c)	the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action; 
 (d)	as a corollary, the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
 (e)	the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant; 
 (f)	pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic); 
 (g)	a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
 (h)	it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
 (i)	every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
 (j)	the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);
 (k)	particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement – namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;
 (l)	a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
 (m)	extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
 (n)	in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;
 (o)	the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and
 (p)	if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.”
[footnotes omitted]
(1) 	Beling’s application for leave to file and serve the proposed amended defence and counterclaim dated 30 July 2020
21	The proposed pleading that Beling seeks leave to file is some 48 pages.  This has been reduced from the 63 pages before Judge Cosgrave.  The Commissioner submits this “is largely due to the removal of some repetition and rolling together of some paragraphs”.
22	It is the Commissioner’s position that leave to file the proposed amended defence and counterclaim dated 30 July 2020 should be refused and judgment granted to the Commissioner.  As this is Beling’s third attempt at a pleading, the stage has now been reached where Beling has had “a reasonable opportunity of presenting his case”.  The Commissioner refers to the Knorr litigation before Beach J (as His Honour then was) as being instructive.  The plaintiff in that matter was a self-represented litigant who had his first statement of claim struck out.  He was given leave to replead and the second statement of claim was struck out.  A further application for leave to file and serve a third amended statement of claim was made by the plaintiff.  Beach J refused to grant leave and ordered the proceeding be dismissed.  An appeal from this decision was dismissed by the Court of Appeal. Beach J held at [28]:
“…as it was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor, ‘[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices’.  Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant costs and inconvenience and to add pointlessly to the load on the Court’s already limited resources.”
[footnotes omitted] 
23	For his part, Beling argues this proceeding can be distinguished from the Knorr litigation as his application before Judicial Registrar Tran was withdrawn rather than dismissed.  Therefore, the proceeding has not reached the same stage as in Knorr. 
24	With regards to Beling’s proposed pleading, the Commissioner submitted:
“Although Mr Beling is self-represented he is legally qualified.  In any event, for the reasons that follow the obvious lack of merit in Mr Beling’s defences and counterclaim, the deficiencies in point of pleading, Mr Beling’s relentless determination to seek to reagitate matters that have been decided against him, and his scandalous attacks on witnesses and judicial officers mean that he should not be permitted to continue to subject the Commissioner to significant cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources.  It is not necessary for the court to go through every paragraph of the amended pleading to identify its manifest defects.  To permit a trial to proceed on the basis of the amended pleading would clearly prejudice, embarrass and delay the fair trial of the proceeding.  Rather, leave to amend should be refused and there should be summary judgment for the Commissioner.”
 [footnotes omitted]
25	The Commissioner’s written submissions dated 16 September 2020 compares the current proposed pleading with the November 2019 pleading.  The Commissioner contends this analysis demonstrates that the pleading now proposed by Beling does not overcome the difficulties identified by Judge Cosgrave, and is no less objectionable than the November 2019 pleading. 
26	Furthermore, it is submitted that the pleading contains new and scandalous allegations which makes this proposed pleading even more objectionable and arguably worse.  Some of these allegations, inter alia, are as follows:
(a)	scandalous allegations of wrongdoing by VCAT personnel.  Beling deposed that VCAT staff who “knowingly, wilfully, and deliberately” removed documents from his file included Senior Member Smithers and former Tribunal President, the Honourable Justice Garde;
(b)	numerous references to the judicial resolution conference held on 28 February 2020.  References to a “without prejudice” conference are clearly objectionable;
(c)	Beling scandalously alleges that “former Associate Justice Derham’s judicial employment was terminated on or about 10 January 2020 for his [Honour’s] failure to adequately decide the breaches in paragraphs (a)‑(h) and (m) in his [Honour’s] Supreme Court decision dated 22 April 2016…”.  Derham AsJ retired with effect from 10 January 2020 and has since sat as a reserve associate justice.  Beling has not pleaded, or adduced evidence that his Honour was removed from office after using the procedure set out in s 87AAB(1) of the Constitution Act 1975 (Vic);
(d)	alleging that Judge Cosgrave relied on, and was deceived by, each of the fraudulent representations.
27	At paragraph 16 of the Commissioner’s submissions reference is made to issues which Beling seeks to reagitate and which have already been determined in VCAT.  Beling consistently seeks to keep agitating the issue that the Commissioner fraudulently interfered with his file at VCAT.  This allegation goes further, and an allegation is made that Senior Member Smithers and Garde J also fraudulently interfered with his file.  
28	In his written submissions, Beling alleges there was a conspiracy between those judicial officers and the Commissioner, which is self-evidently a scandalous allegation and not supported by any evidence.  It is said that Beling is seeking to litigate matters already litigated and maintained attacks on witnesses in earlier proceedings.  This is tantamount to an abuse of process.
29	In paragraphs 17-18 of the Commissioner’s submissions, reference is made to the specific examples provided by his Honour Judge Cosgrave regarding objectionable matters or shortcomings in the former pleading. The Commissioner has done a comparison of the former pleading with the new pleading, which is submitted demonstrates that the objectionable matters are still retained in the new form of pleading.
30	Paragraphs 19-28 of the Commissioner’s written submissions, deal with new allegations or changes to the pleading.  Reference is made again to the alleged removal of documents from Beling’s file and allegations that it was tampered with and was done so pursuant to wrongdoing by VCAT personnel.  This allegation was not in the November 2019 pleading and is new.  The aspect of the question of file tampering was dealt with by Senior Member Smithers in his reasons and was rejected.  The reasons are to be found at Exhibit “AC-5” to the affidavit of Ms Freeman. This aspect was dealt with in paragraphs 35-58 of the reasons.
31	The other matter the Commissioner says is inappropriate is the reference to the “without prejudice” judicial resolution conference (“JRC”) held before Judicial Registrar Tran in February 2020.  Beling has referred to this JRC both in his pleading and affidavits.  Beling seeks to rely upon an offer made during the JRC which he says demonstrates evidence of allegedly fraudulent conduct on the part of the Commissioner.
32	Paragraph 21 of the submissions deals with a plea of waiver, which is not a substantive change.  Beling has clarified the specie of waiver relied on but has not provided any facts that constitute waiver. The Commissioner says this is a hopeless plea.
33	Paragraph 22 of the submissions deals with the fourth new matter which is in respect of loss and damage and contained in paragraph 111 of the proposed pleading.  The first part of paragraph 111 of the proposed pleading no longer alleges that his loss results from a failure by the Commissioner to terminate her investigation or her prosecution.  This was an attack in the earlier pleading.  The second aspect is a new claim for loss in paragraph 111(b) and includes an amount for increased legal costs incurred by the Commissioner, which includes the costs of this proceeding, the VCAT proceeding and the Supreme Court proceeding.  It is submitted that this is objectionable as the costs of these proceedings cannot be claimed as loss and damage in this court.  It is said this new plea of loss and damage is entirely devoid of merit. 
34	The fifth new matter which is referred to in paragraph 24 of the submissions is an allegation concerning the supposed conduct of Derham AsJ.  The claim pleaded is that Derham AsJ was terminated on 10 January 2020 for a failure to decide certain matters involving Beling’s claim.  It is submitted this is a scandalous allegation and unsupported by evidence. 
35	The sixth new matter relied upon and referred to in paragraph 25 of the Commissioner’s submissions is a new allegation of deceit.  Reference is made to Ms Freeman’s email to Beling dated 10 May 2018, which attached draft bills of costs.  Beling contends that the VCAT bill is fraudulent, being the bill of costs prepared by Grace Consultants.  The Commissioner notes the email and the VCAT bill of costs post-date the costs orders in the Supreme Court proceeding and the VCAT proceeding and therefore cannot constitute harm allegedly suffered in consequence of the alleged eigth representation.  This allegation was not in the earlier pleading and is new.  It is submitted this is merely an assertion and there is no evidence to demonstrate that the bill of costs was fraudulent.  If in fact matters were omitted, this would have caused the bill of costs to be in a lower sum.
36	The seventh new matter relied upon is the plea of reliance in the deceit claim.  There was previously no plea of reliance, but paragraph 172 of the proposed pleading does not actually establish reliance.  Therefore, this problem has not been overcome.
37	The eighth new matter dealt with in paragraphs 173 to 178 of the proposed pleading is that his Honour Judge Cosgrave relied on and was deceived by eight alleged frauds said to have been made by the Commissioner or her staff.  It is submitted this is an objectionable plea.  There was a contested hearing on the papers before his Honour regarding the November pleading.  There is no evidence of any deceit by the Commissioner.  Beling went further in his reply submissions and said that counsel for the Commissioner and his instructing solicitor had themselves deceived the court.
38	Paragraph 27 of the submissions refers to paragraph 178 of the pleading.  The allegation that his Honour Judge Cosgrave simply ignored Beling’s allegations of misconduct is an inappropriate matter to put in a pleading, and it is not appropriate to allege that a judicial officer has been deceived.
39	The final matter relied upon was the reference to various breaches of the CPA, noting that no specific sections were relied upon and do not provide a defence.  Paragraphs 29-31 of the submissions contain some further general observations regarding the inadequacy of the pleading. 
40	The Commissioner noted that the submissions in reply provided by Beling, particularly in paragraph 3, rely upon r 13 of the Rules to say that the Commissioner has in effect admitted, or is deemed to have admitted the claims by Beling.  The Commissioner says this construction of the rule is misconceived in circumstances where no pleading has been filed or served.
41	Beling seeks leave to file his proposed defence and counterclaim based on the matters set out in his written submissions dated 9 and 20 September 2020. In his oral submissions, Beling contended the factual bases of why VCAT acted improperly are contained in paragraphs [3]-[7] of his affidavit sworn 15 August 2020.  He maintains that critical documents were removed from his client file which was tendered at VCAT which would have shown that his former clients, Mr and Mrs Hanna, had a meritorious case.
Analysis
42	The proposed amended defence and counterclaim dated 30 July 2020 is clearly defective.  The document is more in the nature of a submission than a pleading. It is convoluted, prolix and difficult to follow and often repetitive.  It fails to comply with the basic rules relating to pleadings.  It does not comply with the requirement in r 13.02(1) of the Rules to plead in summary form the material facts relied upon but not the evidence upon which those facts are to be proved.  A defence upon which Beling seeks to rely is not pleaded in any way that is recognisable.  Various scandalous and irrelevant allegations are made.  By way of example, some of the more objectionable paragraphs are set out below:
(a)	Paragraph 26, “As particularised in paragraphs 157(d) and 157(e) below, members of VCAT had allegedly knowingly and wilfully tampered with the Defendant’s client file filed in VCAT proceeding J82/2013 and it was likely that those same members either worked or had influence in the Supreme Court of Victoria, to which the Defendant would be appealing.”
(b)	Paragraph 114, “The Plaintiff is bound by the rule of law as provided in Covering clause 5, Chapter III of the Australian Constitution.  The Plaintiff is not above the law.  At all material times, it was and is important for the Plaintiff to adhere to the rule of law when prosecuting the Defendant.
PARLIAMENT’S INTENTION TO PROTECT AUSTRALIAN LEGAL PRACTITIONERS AND PEOPLE WHO COMPLAIN AGAINST AUSTRALIAN LEGAL PRACTITIONERS AND INTENTION TO CREATE A PRIVATE RIGHT OF ACTION AGAINST THE VICTORIAN LEGAL SERVICES COMMISSIONER.”
(c)	Paragraph 135, “The obligations imposed by the LPA, including but not limited to the obligations in sections 4.2, 4.4.3(1), 4.4.14(1)(a), 4.4.7, 4.4.(9), and 4.2.15(1) and (2), of the Act, were breached by the Plaintiff.  With respect to the alleged breaches in paragraphs (A)-(M) below, it is alleged that the Plaintiff has engaged in professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Commissioner and her delegates, not acting in good faith or acting in bad faith, engaged in conduct, otherwise than in connection with the practice of law in a disciplinary investigation into the Defendant’s conduct acting for Peter and Tracie Hanna under Part 3 of Division 4.4 of the Act.  It is further alleged, pursuant to Chapter 4 of the LPA, that the Plaintiff’s acts and/or omissions in (A)-(M) below were in the circumstances not in good faith, in bad faith and/or so unreasonable that no public authority having the functions of the Plaintiff could properly consider the acts or omissions to be a reasonable exercise of its functions.  Following each of the breaches, the Plaintiff prosecuted the case, obtained findings of guilt against the Defendant, made submissions on penalty, obtained Orders against the Defendant, and attempted to enforce those Orders, including the current proceeding: failed to internally discipline or educate her staff, and failed to self-report her conduct to VCAT.  It is alleged that former Associate Justice Derham’s judicial employment was terminated on or about 10 January 2020 for his failure to adequately decide the breaches in paragraphed (A)-(G) and (L) in his Supreme Court decision dated 22 April 2016 between the parties.”
(d)	Paragraph 153, “It is alleged that the documents contained in exhibit AF‑7 to Ms Freeman’s witness statement are fraudulent because the Plaintiff has knowingly, willingly and dishonestly removed from the file about 20 documents of key forensic significance to the Defendant’s case in VCAT proceeding J71/2015 and forged the Defendant’s handwriting to convey the impression that the file was and is authentic, with the intention that the Tribunal, Howell (an expert witness) and the Defendant would rely on those documents.”  
43	I am satisfied that permitting a trial to proceed based on Beling’s proposed pleading would prejudice, embarrass, and delay the fair trial of the proceeding.  When a pleading is riddled with objectionable material, as is the case here, it is not appropriate or necessary to go through each paragraph of the document and identify which is objectionable.  In such circumstances, the appropriate course is to strike out the pleading as a whole.
44	By reason of the obvious deficiencies in the pleading, I will not grant leave to Beling to file and serve the proposed amended defence and counterclaim dated 30 July 2020.
45	The question then is whether Beling should be given another opportunity to provide a further proposed defence and counterclaim.
46	Beling was admitted to practice in 2002 and practised as a legal practitioner for several years thereafter.  It is surprising, given his experience, that Beling has shown himself to be incapable of drafting a pleading in accordance with the rules of court.  Beling has had several opportunities to get his house in order but has failed to do so.  This is despite being given considerable guidance by two judicial officers as to how such a pleading might be drawn. 
47	In my view, the time has now been reached, as in the Knorr litigation, that the defendant should not be permitted to waste the court’s and the Commissioner’s time and resources any further.  The court’s already limited resources should not be needlessly expended any more when the court can have no expectation that any further proposed pleading will overcome the deficiencies identified in the earlier versions.  To allow Beling a further opportunity to deliver what in all likelihood would be a further lengthy and non-compliant pleading would not be in the interests of justice, nor would it be consistent with the overarching purpose contained in s 7 of the CPA.
48	Beling sought to argue that his case was different to the circumstances pertaining in the Knorr litigation. There is of course no set formula as to how many attempts a litigant may have before no further leave will be given where there has been a failure to produce a proper pleading.  Self-evidently, each case turns on its own facts.  Beling has now had three attempts to plead his case.  He has disregarded the extensive guidance he was provided with previously by two judicial officers of this court.  Despite this guidance, the latest version does not conform with recognised pleading rules and contains new and very serious scandalous allegations which have no properly pleaded basis.  The court can have little faith that the defendant would produce a compliant pleading if he was given a further opportunity.  The point has come where Beling, as a self-represented litigant, must take responsibility for his choices.  In these circumstances, I will not grant leave to Beling to serve a further proposed amended defence and counterclaim.
Principles relating to summary judgment and strike out applications
49	Section 63 of the CPA provides that subject to s 64 of that Act, a court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or counterclaim, or part of a claim, defence or counterclaim has no real prospect of success.
50	As observed in Silver Chefs Rentals Pty Ltd v Makong Australia Pty Ltd, the principles relating to summary judgment are well-established.  A summary of those principles was provided by Sloss J in that case as follows:
“53.	In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, the Court of Appeal stated the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:
 	(a)	the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
	(b)	the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125];
	(c)	it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
	(d)	at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
54 	Section 7(1) of the CPA sets out its overarching purpose, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.
55	Where a plaintiff in a civil proceeding seeks to bring an application for summary judgment under s 61 of the CPA, it must be made in accordance with Order 22 of the Rules.
56	Rule 22.04 of the Rules sets out the material required to be filed in support of an application for summary judgment. It provides as follows:
	(1)	An application shall be made by summons supported by an affidavit—
		(a)	verifying the facts on which the claim or the part of the claim to which the application relates is based; and
		(b)	stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim—
			(i)	has no real prospect of success; or
			(ii)	has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.
	(2)	Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.
	(3)	An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.
	(4)	The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons.
57	Rule 22.05 of the Rules provides:
	(1)	The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.
	(2)	An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.
	(3)	Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons.
58	The requirements set out in rr 22.04 and 22.05 were considered by the Court of Appeal in Hausman v Abigroup Contractors Pty Ltd.  In relation to an affidavit in support of an application for summary judgment, the Court of Appeal stated that what ‘must be verified are the facts necessary to establish a good cause of action’.   Once the plaintiff has established the elements of its cause of action, there is ‘something akin’ to a shifting of the evidential burden to the defendant.
59	With regard to the equivalent of what is now r 22.05, the Court of Appeal stated as follows:
	[62]	 Assuming the plaintiff’s application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court.  The Rule provides that the defendant can show such cause ‘by affidavit or otherwise’.
	[63]	The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim.  The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way.  The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend.  The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
	[64] Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence.  In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced.  An affidavit filed by the defendant may contain a statement of fact based on information and belief.
	[65]	The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood.  A bald denial that the defendant is indebted to the plaintiff will not suffice.  The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim.  It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.
60	Those principles from Hausman extracted above remain good law since the advent of the CPA.”
(2) Beling’s application for summary judgment 
51	Beling had a previous application for summary judgment and/or striking out of all or part of the statement of claim against the Commissioner determined by Judge Cosgrave.  His Honour’s findings were referred to in paragraph 12 above.  Beling’s summons filed 25 August 2020 replicates the two paragraphs contained in the summons filed 13 March 2020 regarding the summary judgment and strike out application (save for the date of the pleadings).
52	While the Commissioner acknowledges that the application is made on the basis of a different defence and counterclaim – she submits it is entirely without merit as the matters have been determined by Judge Cosgrave in his Honour’s reasons dated 14 July 2020 and orders made on 23 July 2020.  In his oral submissions, counsel for the Commissioner submitted that Beling’s summary judgment/strike out application raised issues of res judicata and issue estoppel which he has always understood to be a category of an abuse of process. 
53	This aspect of the relief sought in Beling’s summons was the same as his earlier summons filed on 13 March 2020.  No new matters were relied upon which might have altered the position which prevailed before Judge Cosgrave. The statement of claim remains unaltered from the one considered on the pervious occasion.  It is simply a repeat of the earlier application which was dismissed by Judge Cosgrave as having no merit.  In my view, it is not permissible for a litigant to re-run the same application before a different judge when that application has already been determined.  The appropriate way to challenge such a finding would be by way of appeal, which has not occurred. But even assuming Beling could mount the same attack under r 23.01 of the Rules on the Commissioner’s pleading, I would reject it.  The statement of claim suffers from no pleading defects either as a matter of substance or form. 
(3) The Commissioner’s application for summary judgment
54	The Commissioner seeks summary judgment on her claim and the counterclaim under s 63 of the CPA.
55	At the time Judge Cosgrave made his orders in July 2020, the earlier version of the defence and counterclaim had been accepted for filing.  The position is different now.  It is not necessary to make any order for summary judgment on the defendant’s proposed counterclaim given that pleading has not been accepted by the court and therefore, the counterclaim has no standing. 
56	Turning then to the issue of whether the Commissioner has proved her claim for the debt claimed under the Deed, I am satisfied the claim is proved.  The necessary elements of the Commissioner’s straightforward claim for a debt are made out in the affidavit of Ms Freeman.  Those elements being the terms of the Deed which the parties signed and the default in payment of instalments by the defendant.  The defendant does not dispute he signed the Deed and paid three instalments but then stopped. 
57	Once the Commissioner’s claim is made out then the onus shifts, as outlined in Hausman v Abigroup Contractors Pty Ltd, to Beling to show cause.  Beling needs to state what his defence is and identify the facts in support of that defence.  The question to be determined is whether Beling has shown cause, namely, whether his defence to the claim has a real, as opposed to a fanciful, prospect of success. 
58	There were a variety of matters that Beling pointed to in his submissions and also in his affidavits, setting out his grounds of complaint regarding the Commissioner generally. This includes the conduct of his earlier misconduct hearing in VCAT and the antecedent application to stop the investigation that was heard in the Supreme Court before Derham AsJ.  Whilst a number of complaints were made, it is not readily apparent how these complaints provide a proper basis for a defence to the debt claim under the Deed.
59	The most persistent complaint made is an allegation that the Commissioner, together with officers of VCAT, had tampered with his client’s file which was tendered to VCAT in July 2013 by Beling.  It is Beling’s contention that various documents were removed from his file, and the Commissioner also forged his handwriting.  The allegation of file tampering was rejected by Senior Member Smithers in the reasons for his decision which he gave in respect of the misconduct hearing at VCAT.  At paragraph 58 of Senior Member Smithers’ reasons he said there is “no evidence to support the serious allegation that the VSLC deliberately manipulated Mr Beling’s file.”  Beling now alleges that not only the Commissioner but also Senior Member Smithers and Garde J were involved in the file tampering.  He also goes on to allege that there was a conspiracy with the Commissioner, which is referred to in paragraph 3(g) of his submissions dated 20 September 2020.
60	Other than holding what is no doubt a fervently held view as to the correctness of his assertion, Beling has not been able to identify any proof by way of any facts or evidence, other than his mere assertion, to substantiate these claims.  This issue of improper tampering with his file was addressed by VCAT in the disciplinary hearing and rejected.  Beling wishes to relitigate this issue in this proceeding which is about a breach of a settlement deed for costs owed.  The first point to be made is that raising this issue in this proceeding is arguably an abuse of process because it amounts to relitigating matters heard and determined in VCAT.  The second point is that the issue of whether the file was tampered with or not and by whom can have no bearing on the question of whether the debt now claimed is due to the Commissioner.  The debt relates to the costs which the Commissioner is entitled to recover pursuant to costs orders made in her favour by VCAT and by Derham AsJ. 
61	Beling has brought an appeal against the VCAT decision some four years after the event.  His application to appeal out of time came on before Keith JR in the Supreme Court and was refused on 22 April 2020.  The court was informed that this decision was the subject of an appeal and was to be heard concurrently with a belated appeal from the decision of Derham AsJ.  The court was told that both matters were due to be listed before the Supreme Court on 13 November 2020.  Self-evidently, Beling remains bound by the VCAT and Supreme Court decisions unless and until those decisions are overturned on appeal.  As mentioned above, an application by Beling to stay this proceeding pending the outcome of those appeals relating to those two proceedings was dismissed by Judicial Registrar Tran. 
62	Beling contended that the Commissioner, by not having denied various allegations, in particular in response to the alleged file tampering, was therefore deemed to have admitted this alleged wrongdoing.  Beling relies upon r 13 of the Rules, which is in respect of a pleading to the effect that if a matter is not denied, it is taken to be admitted.  As the Commissioner points out, this rule is in respect of pleadings, and is not applicable.  It does appear that Beling is proceeding on a footing that is misconceived.  The mere fact that the Commissioner has not deigned to deny allegations put in Beling’s submissions, pleadings, and correspondence cannot be taken to be an admission on her part that any of the matters that are alleged to have occurred by Beling are true.  As an example, in his affidavit of 20 August 2020, Beling states the Commissioner has not denied the file tampering allegation.  He therefore says an adverse inference can be drawn by reason of the Commissioner’s failure to respond.  In my view, no such adverse inference can be drawn in circumstances where the Commissioner was clearly under no obligation to respond and has chosen not to do so.
63	For all these reasons, I am not persuaded the allegations made about file tampering demonstrate Beling has a defence which has a real prospect of success in response to the debt claim.  I consider it has no prospect of success whatsoever.
64	The next point argued by Beling was that there was no issue of res judicata or estoppel in respect of the three matters that have been dealt with in the various jurisdictions, being the VCAT proceeding, the Supreme Court proceeding, and this proceeding.  This is in response to an allegation that there has been an abuse of process as referred to in paragraphs 75 and 77 of the Commissioner’s submissions.  It is not clear to me how this aspect is said to be relevant, but Beling was insistent that only the former client, Mrs Hanna, had waived privilege, and there was no evidence that privilege had been waived by her husband.  This aspect was dealt with by Keith JR in his reasons dated 26 April 2020.  In reply, counsel for the Commissioner noted that two judicial officers had decided that both the Hannas had waived privilege.  Again, this is an example of peripheral matters which Beling raises which provide no basis for a defence to the debt claimed by the Commissioner.
65	Beling pleads the Deed was procured by fraud because the bill of costs that was relied upon and prepared by Grace Consultants was false and fraudulent.  This is referred to in paragraph 6(c) of his defence.  The basis for alleging that the bill of costs was fraudulent was because the name of a solicitor handling the matter, Ms Tina Stagliano, was not referred to in the bill expressly.  Another ground of complaint regarding the bill was that there had been an omission of correspondence from counsel retained on behalf of the Commissioner, Ms K Anderson.  Beling also referred to the fact that the bill of costs for VCAT and the Supreme Court had not been produced into evidence by the Commissioner in these applications.  He claimed this meant that the Commissioner could not succeed on her claim for summary judgment.  They were attached to his affidavit of 26 March 2020 which has some 2,800 pages as exhibits.  This submission ignores the fact that the bills of costs are not referred to in the statement of claim, as opposed to the liability of Beling to pay the costs orders which is pleaded.  By reason of these matters, he contends that the Deed was procured by fraud.
66	The Commissioner in reply noted that Ms Freeman deposed in paragraph 4 of her affidavit that she had the conduct of the investigation from 24 November 2015 to 1 November 2019.  The bill shows she was an operator on the file. 
67	An allegation of fraud is obviously a very serious allegation, and if it is to be relied upon, then the necessary facts in support of that defence must be properly identified.  There are no supporting facts properly identified which establish the bill of costs was false or fraudulent.  In my view, the allegation by Beling that somehow the Deed was procured by fraud because there may have been some minor omission in the bill of costs does not provide a defence with any real prospects of success to the debt claimed under the Deed.  The matters relied upon, being the supposed omission to name Ms Stagliano and to provide all correspondence, cannot support a finding of fraud on the part of Grace Consultants and/or the Commissioner as alleged by Beling.
68	The Commissioner did provide draft bills of costs to Beling in a letter dated 18 May 2018.  As can be seen from the outline of events set out by Judge Cosgrave in paragraph 9 above, Beling wanted to settle his claim with the Commissioner so as to avoid having to pay a higher figure if the settlement did not go ahead and the Commissioner proceeded to have the bills taxed.  There is no doubt that Beling agreed to the quantum of the costs set out in the Deed and did so promptly and voluntarily once the Commissioner advised she would proceed to have the bills taxed.
69	Another major complaint made by Beling was that the Commissioner committed a fraud by reason of an offer made at the JRC in February 2020.  As previously noted, the Commissioner says that Beling is not entitled to refer to matters that were held on a “without prejudice” basis at a JRC.  Beling’s answer in part to this is that the Commissioner opened the door and therefore it followed that he could refer to “without prejudice” matters.  Beling raised objections to paragraphs of the Freeman affidavit which refer to correspondence sent by him which was marked “without prejudice”. 
70	The aspect of the “without prejudice” nature of the correspondence referred to by Ms Freeman in her affidavit was dealt with in the earlier submissions relied upon by the Commissioner in April 2020.  Attached to that submission was a letter dated 2 April 2020 which contained a detailed analysis as to why the Commissioner said the correspondence which had been sent by Beling was not the subject of “without prejudice” communications.  Most importantly, there was the point made that in circumstances where there was an argument as to whether an agreement had been made or not, then correspondence relating to the formation of the agreement was admissible.  Ms Freeman also refers in her affidavit to various instances where Beling had himself produced some of the impugned correspondence in affidavits he had filed previously, thereby waiving privilege.  Taking into account the Commissioner’s submissions, and in particular, the matters relied upon in the reply submissions, I find that these paragraphs are admissible. I reject Beling’s objections to the paragraphs of Ms Freeman’s affidavit which refer to his “without prejudice” correspondence.  
71	In support of his assertion that the communications and the offers made at the JRC were admissible, Beling relied upon sections of the Evidence Act.  The first was s 131, which deals with exclusion of evidence of settlement negotiations.  The second was a reference to the exceptions in s 131(2)(h) and (k) which he argued applied to the JRC.  The first exception in (h) refers to a communication or document which is relevant to determining liability for costs.  The second exception in (k) refers to a communication made or a document prepared in furtherance of a deliberate abuse of power. 
72	Beling seeks to argue that because an offer was made at the JRC which was considerably lower than the quantum of costs (the subject of the Deed) this amounted to fraud on the part of the Commissioner.  Beling contends that the fact the Commissioner made a lower offer proves the Commissioner knew that Beling had a meritorious case and a good defence. 
73	I accept the Commissioner’s submissions that Beling is not entitled to refer to communications that were made at the “without prejudice” JRC.  I reject Beling’s submission that the exclusions in s 131(2)(h) and (k) are applicable.  But even assuming the communications were admissible, the mere fact that a party may offer to compromise a claim for a substantially reduced sum does not amount to any admissible proof that the party has committed fraud by doing so.  Parties frequently settle matters for all sorts of reasons, not purely economic ones, and to avoid incurring further legal costs which may not be fully recoverable even if the offeror succeeds at trial.  The inference that Beling seeks to draw is not sustainable even if the fact of the offer made was allowed into evidence.  I do not accept that this circumstance, firstly, gives rise to any sustainable allegation of fraud against the Commissioner, and, furthermore, operates as a defence to the Commissioner’s claim.  This fraud argument as a defence to the debt claim has, in my view, no prospects of success, let alone any real prospects of success.
74	Another aspect relied upon by Beling was the issue of waiver.  This appears to be based on the premise that because the Commissioner delayed taking action to enforce the claim against Beling – the Commissioner issued the claim in 2019 some 10 months after the default – this constitutes some waiver on the part of the Commissioner.  This is a hopeless argument and cannot be sustained.  Providing the Commissioner brought a claim within the statute of limitations period, she was entitled to bring the proceeding when she saw fit to do so.  The fact that the Commissioner waited some time after Beling’s default in payment before instituting proceeding does not constitute a waiver of her entitlement to enforce the debt owed by Beling.
75	The matters pleaded regarding the alleged termination of Derham AsJ, apart from being highly scandalous, again constitute no basis for a defence to the Commissioner’s claim pursuant to the Deed.  In his oral submissions, Beling accepted he had not pleaded there had been a formal termination of Derham AsJ under the Judiciary Act.  He had pleaded that his full-time employment was terminated because his Honour had failed to address in parts of his decision emails from the Hannas.  Beling alleges that his Honour had covered up documents and this was referred to in Beling’s amended notice of appeal dated 26 December 2019.  Beling’s basis for saying that Derham AsJ was then removed was “that it was an informal hush hush response to deal with the allegations” – those allegations being matters in the amended notice of appeal, and that it was noted that Derham AsJ had retired on 10 January 2020.  In paragraph 10 of his reply submissions dated 20 September 2020, Beling describes the alleged misconduct on the part of Derham AsJ as falsifying transcript, concealing misconduct by the Commissioner and denying him a hearing on costs.  This demonstrates quite clearly the ability of Beling to make allegations of an extremely serious and scandalous nature with no factual basis.  The inference that he seeks to draw by reason of a supposed connection between filing an amended notice of appeal and Derham AsJ’s subsequent retirement is spurious and veers on contempt.
76	Putting to one side the obvious lack of merit of such a disreputable allegation, any matters connected with the way in which Derham AsJ dealt with his application in 2015 can have no bearing whatsoever upon the enforceability of the Deed entered into some three years later.
77	A further matter raised by Beling was that the Commissioner engaged in a number of breaches of the CPA.  These are referred to in Exhibit “JB-1” to Beling’s affidavit dated 15 August 2020.  These comprise a litany of complaints regarding the conduct of the Commissioner, including the file tampering allegation, and failure to meet with him at the Commissioner’s office by only sending along paralegals, and then saying that the Commissioner was somehow estopped by conduct from alleging irregularities in the file.  These alleged breaches of the CPA, which are largely unintelligible, and unsupported factually, provide no proper defence to the Commissioner’s claim for the debt due under the Deed.
78	In reply, counsel for the Commissioner noted, amongst other things, that there was no plea that the Supreme Court bill of costs was fraudulent, but only the VCAT bill.  Self-evidently, the Deed comprises the amounts which were the subject of compromise in respect of the bills of costs in both VCAT and the Supreme Court.  It was noted that there had in fact been agreement on the quantum of the costs.  It was said that the waiver of legal professional privilege sections relied upon did not assist Beling.  It was also noted that Beling was seeking to back-pedal from the allegations regarding Derham AsJ from those which he had put in his submissions; in particular, the allegation that his Honour had been terminated because of his supposed misconduct when hearing Beling’s application to halt the Commissioner’s investigation.
79	Having considered the materials filed by Beling, as well as his oral submissions at length, I am not satisfied he has shown cause in response to the Commissioner’s claim.  I am not persuaded, based on the materials relied upon by Beling, including his written and oral submissions, that he has established any defence which has a real, as opposed to a fanciful, prospect of success.  
80	The allegations of duress, fraud and deceit (being numerous fraudulent representations pleaded) which may have, or could have been said to vitiate the Deed, are simply not borne out by the matters alleged by Beling in the proposed defence and counterclaim, his affidavits and submissions.  The same applies to the allegations of waiver, acquiescence, unconscionable conduct, and estoppel claimed upon which it might have been said the Commissioner should not be permitted to enforce the Deed.  Similarly, the various allegations regarding breaches of a contractual duty of good faith, statutory duty, negligence or breaches of the CPA do not, on the materials filed by Beling, provide any basis for a defence to the debt claim which has a real, as opposed to a fanciful, prospect of success.
81	Beling has failed to satisfy the onus placed upon him to show cause in response to the Commissioner’s claim and therefore, will not be given leave to defend.  It follows that the Commissioner is entitled to judgment on her claim.  I have considered when exercising my discretion that Beling is a self-represented litigant who must have a reasonable opportunity of presenting his case, albeit one who has practised as a legal practitioner for many years.  I am also mindful that summary judgment should only be entered in clear cases and that caution should be exercised before doing so.  But having considered these matters, I remain of the view that summary judgment should be ordered in this case. 
82	Additionally, even though I am satisfied that Beling’s defence has no real prospects of success under s 63, I do not consider this is an appropriate case, being a simple debt claim, where leave to proceed to trial should be given under s 64 of the CPA.  Both parties produced extensive written and oral submissions, and affidavits with copious exhibits which dealt fully with the issues in dispute.  Given this, I do not consider it is in the interests of justice that the matter should proceed to trial or that only a full hearing on the merits is appropriate.  In my view, the proceeding is one which can and should be disposed of summarily.
Conclusion
83	For the reasons given above, I will order as follows:
(a)	the defendant’s application for leave to file and serve his proposed defence and counterclaim dated 30 July 2020 is refused; 
(b) 	the defendant’s application to strike out the plaintiff’s claim based on his proposed defence and counterclaim dated 30 July 2020 is dismissed;
(c) 	the defendant’s application to strike out part or all of the plaintiff’s claim is dismissed; 
(d)	there be judgment for the plaintiff in the sum of $207,767.15 together with interest under statute to be calculated from 19 August 2019 to the date of judgment;

84	Subject to hearing from the parties, I propose ordering that Beling pay the Commissioner’s costs of the proceeding, including the costs of the applications the subject of this ruling, to be taxed on the standard basis in default of agreement.
85	The parties are directed to confer and provide a minute of proposed orders to reflect these reasons, including costs and interest.  If agreement cannot be reached on the form of the proposed orders, the parties are directed to submit a proposed order and a written submission on the form of orders to be made, including costs, limited to 5 pages, by 4pm on 2 July 2021.  Any reply submission, limited to 3 pages, must be filed and served by 4pm on 7 July 2021.  Unless the court determines an oral hearing is required, the final orders will be made on the papers.
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           Certificate
I certify that these 36 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 23 June 2021.
Dated:  23 June 2021
Associate to Her Honour Judge A Ryan