In the recent matter of Grimmett v Rivdale Pty Limited (t/as Angela Sdrinis Legal) [2025] VSC 122, the plaintiff, Ms Chantelle Elizabeth Grimmett, commenced court proceedings seeking damages against her former lawyers (Rivdale Pty Limited (t/as Angela Sdrinis Legal) and barrister (Mr Ian Fehring) for damages arising from a previous settlement of an institutional abuse claim, which she says should have been resolved for a higher amount.
This judgment relates to an appeal by the plaintiff of a ruling of Baker JR in the Supreme Court dated 3 March 2025, to deny an application to vacate a trial date, despite the consent of all parties. The appeal is a de novo hearing, meaning the judge is required to determine the application afresh, on the evidence presented at the hearing.
The proceeding was commenced on 21 September 2022 and both defendants filed appearances in November 2022. In her statement of claim, the plaintiff alleges that the first and second defendants acted as her solicitor and barrister, respectively, from 2015 onwards, to obtain compensation “in respect of personal injury sustained due to physical and sexual and other child abuse” that occurred while she was the subject of a wardship order and in the care of the State of Victoria from January 1971 onwards, and also while placed at the St John’s Home for Boys and Girls, run by Anglicare, between March 1971 and February 1982.
The plaintiff entered into a settlement with the State of Victoria and Anglicare in October 2016, and in the present proceeding she alleges that the defendants failed to seek compensation for economic losses and settled for too low an amount in relation to her pain and suffering.
The defendants deny the plaintiff’s allegations, and relevantly both have pleaded since December 2022 that the plaintiff has failed to mitigate her losses by not pursuing civil proceedings against the State of Victoria and Anglicare and applying to set aside her prior settlement deed pursuant to sections 27QD and 27QE of the Limitation of Actions Act 1958 (Vic).
The case was originally fixed for trial on 5 August 2024, however in July 2024 the plaintiff applied to vacate that trial date on the basis that the plaintiff had been granted leave to amend her statement of claim, defences to that pleading were not yet due (but would not be filed in time for the existing trial date), and the plaintiff expected she would not be in a position to mediate until about December 2024. As a result of this application, a new trial date of 17 March 2025 was set.
The plaintiff applied by summons filed 17 December 2024 to vacate the trial date again. The application was originally listed for hearing on 7 February 2025, and was identified to be the subject of consent between all three parties. In the course of that hearing, the Court ordered that a proper basis for vacating a trial date had not been established, having regard to the requirements of the Civil Procedure Act 2010 (Vic), where:
(i) the proceeding had been on foot since 2022;
(i) the proposal to delay this proceeding until a separate proceeding had been commenced and resolved would mean that this claim would likely not resolve for another 15-18 months; and
(iii) the vacation of the trial date was not sought because the parties thought the matter would not be ready to proceed, but rather because they had reached an agreement not to go to trial and instead pursue other action first.
At [8], the Court provided as follows:
As indicated to the parties in the course of the hearing, I am concerned about what has occurred in this proceeding. The claim has been on foot since 2022, and its substance has not changed materially in that time. It has always been focused on whether the previous claim was resolved for too low an amount, or inappropriately excluded particular heads of damages. The defendants’ cases in response have always included an argument that the plaintiff has failed to mitigate her losses by reference to the ability to bring an application to set aside the prior settlement deed under the Limitation of Actions Act 1958 (Vic).
Following a detailed review of the earlier decision and the arguments put by the plaintiff, the Court dismissed the appeal and confirmed the trial date of 28 April 2025, saying at [14]:
The plaintiff, in essence, appears to be seeking that the trial date be vacated as a result of her having only very recently taken responsive steps to the defendants’ pleading that she has failed to mitigate her loss, in circumstances where this issue has been apparent since December 2022 and no good excuse has been provided for the delay. Such prolonged inaction cannot be sanctioned by the Court.
Ultimately, on 20 March 2025, the Supreme Court of Victoria (Appeal) ordered that the plaintiff’s appeal be dismissed, and trial date was set for 28 April 2025.
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