Appellant v Respondent

2 Mr Esposito has now appealed against this order. He contends that the Magistrates' Court was functus officio, that he was denied procedural fairness, that the Magistrates' Court wrongly failed to determine the validity of the Board's objections, and that it failed to give adequate reasons for its decision. His notice of appeal was filed out of time, and he has also applied for an extension of time.

3 The order of the Magistrates' Court was made following a hearing on the papers that took place on 21 September 2020. The order was made, in the sense that the relevant entry was made on the register, on 21 September 2020. The 'notice of order made' was dated 25 September 2020, and was emailed to Mr Esposito on that date.

4 Under s 109(2)(a) of the Magistrates' Court Act 1989, any appeal is required to be filed not later than 30 days after the day the order was made.[2] On 21 October 2020, Mr Esposito wrote to the Board indicating his intention to appeal. The letter is consistent with him assuming that he had 30 days from 25 September 2020 in which to commence his appeal. But because the order was made on 21 September 2020, albeit that the document that recorded that order was dated 25 September 2020, he only had until 21 October 2020 to commence his appeal. He filed the notice of appeal on 22 October 2020, and so he was one day late. The Board took the point.

5 I am able to extend time under s 109(4) of the Magistrates' Court Act 1989 if the failure to institute the appeal within time was due to 'exceptional circumstances' and the delay would not materially prejudice any other party.[3] No prejudice was asserted. I am satisfied that the following factors together constitute 'exceptional circumstances':

(a) the application was made on the papers rather than in the presence of the parties due to the COVID-19 pandemic;

(b) Mr Esposito was not informed of the orders that had been made until four days after they had been made;

(c) the 'notice of order made' provided to the parties was dated some four days after the date on which the orders were made;

(d) Mr Esposito informed the Board of his intention to appeal within time; and

(e) Mr Esposito failed to appreciate the distinction between the date upon which the order was made and the date upon which the 'notice of order made' document was dated.

6 At the hearing, I granted Mr Esposito leave to appeal.

1. The context of the dispute, the subpoena, and the Board's application for costs

7 In her initial defence, Ms Bilson alleged, among other things, that she was not liable to pay the claimed fees because Mr Esposito had not complied with, and the costs claimed were not in accordance with, the requirements of pt 4.3 of the Legal Profession Uniform Law,[4] being the part that deals with legal costs. She then applied under pt 4.3[5] of the Legal Profession Uniform Law to have Mr Esposito's costs assessed by the Costs Court. Mr Esposito contended that Ms Bilson was a 'law practice' and accordingly pt 4.3 of the Legal Profession Uniform Law did not apply to the dispute between them.[6] On 6 December 2019, the Costs Court ruled that Ms Bilson was a law practice and that pt 4.3 of the Legal Profession Uniform Law did not apply to her.[7]

8 Following the decision of the Costs Court, Ms Bilson amended her defence and removed the allegations that Mr Esposito was bound by the legislation to comply with pt 4.3 of the Legal Profession Uniform Law, although she did allege that this was an express term of the written agreement between them, and she did not admit the allegation that she was a practising solicitor. She filed a counterclaim in which she alleged that Mr Esposito had engaged in misleading and deceptive conduct.

9 Despite this change in position, on 25 February 2020, Mr Esposito requested the issuing of a subpoena addressed to the Board requiring it to produce documents. The subpoena was expressed in wide and extensive terms. The documents sought included documents such as 'any and all correspondences and communications received from or to [Ms Bilson] ... with respect to her legal practising certificate and/or change/renewal to her practising certificate'. It also sought copies of all documents relating to her insurance arrangements, trust account, any complaints, and continuing professional development. It is apparent that the material sought could contain information that was confidential to persons other than Ms Bilson.

10 The subpoena was personally served on the Board on 26 February 2020 by an officer of Mr Esposito's legal practice. At that time, the Board informed that person that it would be seeking costs, including the costs of external lawyers.

11 On 10 March 2020, the Board produced to the Magistrates' Court two USB drives containing electronic copies of the documents. It did not object to 'production ... to the parties' of the documents on one of the USBs. Those documents were, it said, documents kept by it that were publicly accessible. It did object to 'production ... to the parties' of the documents on the other USB. Clearly enough, its objection, as then framed, was not to the production of the documents to the Magistrates' Court, but to inspection of those documents by the parties.[8] On 12 March 2020, the Magistrates' Court set the Board's objection down for hearing on 27 March 2020.

12 On or shortly prior to 20 March 2020, the Board retained Corrs Chambers Westgarth to advise it in relation to the subpoena.

13 The COVID-19 pandemic then intervened. On 23 March 2020, the Magistrates' Court published a practice direction in response to the COVID-19 pandemic. The practice direction provided both that all applications would be adjourned to a date to be fixed, and that any unresolved applications would proceed on the papers and that the parties were required to file and exchange submissions of not more than two pages by 2pm the day prior to the application return date. It was not clear from the communication whether the application would proceed on 27 March 2020 but on the papers, or whether it would be adjourned. On 25 March 2020, the Board's solicitors contacted the Magistrates' Court and were asked to file the Board's submissions by 2pm on 26 March 2020.

14 In the meantime, Mr Esposito and Ms Bilson were endeavouring to resolve the dispute between them. On 26 March 2020, Mr Esposito informed the Board that the matter had settled 'in principle'. This was after the Board's written submission had been prepared, but before they had been filed and served. The Board proceeded to file and serve its written submission because of the practice direction from the Magistrates' Court referred to in para 13 above. After the Board had filed and served its submissions, but still on 26 March 2020, Mr Esposito and Ms Bilson signed terms of settlement. Mr Esposito then informed the Magistrates' Court and the Board of this fact. The settlement was conditional.

15 The hearing that had been listed for 27 March 2020 did not go ahead. It is not clear whether this was because it had been adjourned due to the COVID-19 pandemic, or because the Magistrates' Court had been informed that the matter had settled. In due course, the condition of the settlement was satisfied. On 15 April 2020, a consent order was filed, and on 4 May 2020 the Court made orders, by consent, dismissing Mr Esposito's claim against Ms Bilson and expressly making 'no order as to costs'.

16 On 17 April 2020, the Board, through its lawyers, wrote to Mr Esposito seeking payment of its costs of $7,090. Mr Esposito did not respond. The Board sent a

follow-up email on 29 April 2020. On 18 May 2020, Mr Esposito informed the Board that he would oppose any application for costs. On 30 July 2020, the Board filed a summons in the Magistrates' Court proceeding seeking an order that Mr Esposito pay its reasonable costs incurred in complying with the subpoena, which, by that stage, it contended amounted to $13,313.41. It is apparent that this figure included costs associated with the application for costs.

17 The summons was listed for hearing on 21 September 2020. In accordance with the practice direction referred to above, it proceeded on the papers, and the parties were required to file and serve submissions of no more than two pages. On 18 September 2020, the Board filed a two-page submission, and Mr Esposito filed a

12-page submission. The Court refused to accept the 12-page submission, and Mr Esposito then filed a two-page submission. Mr Esposito also filed an affidavit sworn on 18 September 2020. The affidavit, among other things, contended that the Board 'never' gave him notice that it was 'contemplating making a claim for thousands of dollars for legal advice' prior to the letter from Corrs Chambers Westgarth dated 17 April 2020, and exhibited various correspondence.

18 As noted above, the Magistrate was satisfied that the Board was 'entitled to its reasonable costs of compliance with the subpoena and objecting to the subpoena', but was not satisfied that the amounts claimed were reasonable. His Honour ordered Mr Esposito to pay those costs, and that, in the absence of agreement, the quantum be referred to the Costs Court for determination.

19 It is this order that Mr Esposito is appealing against.

1. Was the Magistrates' Court functus officio?

20 At the time that the Magistrates' Court made final orders in the claim between Mr Esposito and Ms Bilson, the Board's applications, in relation to the subpoena and for its costs, remained unresolved.

21 In my view, it is clear that the resolution of the dispute between Mr Esposito and Ms Bilson did not mean that the Magistrates' Court could not go on to resolve the dispute that had arisen in the course of the proceeding between the Board and Mr Esposito. The order that there be 'no order as to costs' was made as part of the finalisation of the claims between Mr Esposito and Ms Bilson and related to the position as between those two persons, but did not extend to the Board. The making of the order that Mr Esposito pay the Board's costs of complying with the subpoena did not 'vary or alter' the judgment already given or its 'legal impact'.[9] It did not offend the principle that there be finality in litigation, or that once a decision has been made and orders are authenticated they cannot be altered other than by an appeal or to correct a slip or if they were obtained by fraud. It did not involve the Magistrates' Court 'agitating again' an issue of fact or law that had already been decided.[10] Accordingly, the Magistrates' Court had the power to make the costs order it did.

22 I note that to conclude otherwise would be unfair, as it would put a non-party in a position where its claim could be defeated by a process over which it has no control. Further, my conclusion is consistent with the approach taken in Levey v Bishop Paul Bernard Bird.[11] In that case, the subpoenaing party accepted that the subpoenaed parties were entitled to their reasonable costs of compliance, notwithstanding that the proceeding had otherwise resolved.

23 There may be occasions where it would be an abuse of process for a subpoenaed party to seek its costs after the principal proceeding has resolved. This may be the case if the subpoenaed party has indicated (expressly or by implication) that it won't seek its costs, and the party against whom costs are sought is thereby prevented from seeking to recover those costs from the other party to the proceeding as a cost incurred in the proceeding. It may be that the principles of estoppel could apply. But that is not this case. I am satisfied that the Board had put Mr Esposito on notice of its intention to seek its costs associated with complying with the subpoena. Not only had the person from the Board on whom the subpoena was served informed the person from Mr Esposito's office of this intention, and the Board's intention to retain external lawyers, but the submission filed on 26 March 2020, before terms of settlement had been signed, explicitly sought costs. It is unfortunate that the Board did not formally re-agitate its application for its costs of the subpoena until after the consent order was made, but Mr Esposito did not assert in this application that, if the Board had agitated its application for costs earlier, he would have been able to resolve the proceeding with Ms Bilson on different terms or that he would not have settled with her on the terms he did. If, as seems likely, Mr Esposito overlooked the prospect that he might have to pay the Board's costs of the subpoena when he agreed to settle his claim against Ms Bilson, that is not something that, in my view, can be blamed on the Board.

1. The principles that apply to an application for costs

24 Rule 42.11 of the Magistrates' Court General Civil Procedure Rules 2020 provides that the Magistrates' Court 'may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena'. The purpose of this rule is to prevent a non-party who acts reasonably from being out of pocket by reason of its complying with the compulsory process issued at the behest of a party to a dispute in which the subpoenaed party has no interest.[12] For this reason, an order that the costs be paid effectively on an indemnity basis is common.[13] The obligation to pay the costs is placed on the 'issuing party', but those costs will often be costs in the proceeding and thus potentially recoverable from another party as a cost of the litigation.[14]

25 Because the purpose is to prevent the non-party from being out of pocket to the extent that it has acted reasonably, in some cases a distinction may have to be drawn between the costs of compiling and producing the documents sought by a subpoena, any costs of obtaining legal advice in relation to the subpoena, and any costs of objecting to a subpoena or to the requirement to produce documents. The concept of 'complying' with a subpoena contained in r 42.11 extends to each of these steps.[15] Ordinarily, the subpoenaed party's costs of compiling the documents would be recoverable from the issuing party, and the cost of obtaining legal advice would be recoverable at least if it were reasonable to seek that advice.[16] The costs of taking an objection may be recoverable if it were reasonable to take the objection, or perhaps not untenable to do so, rather than only if the objection is successful.[17] The costs that may be recovered are not limited to amounts that have to be paid to others such as lawyers. Where a subpoenaed party is a corporation, it may recover the internal costs associated with its employees who have to attend to the necessary tasks required for it to comply.[18]

26 As noted above, the rule states that the Magistrates' Court 'may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena'. The word 'reasonable' can refer to both the category of expense (or cost) and also to the amount of the cost. As I see it, the Magistrates' Court has a broad power to determine both whether it was reasonable for a party to incur a particular category of cost - for example, the cost of obtaining legal advice - and also whether the quantum of the cost incurred was reasonable. In many cases, as happened here, the Magistrates' Court may leave the latter question to the Costs Court. It may be, although it is not necessary for me to decide, that the Magistrates' Court could leave both questions to the Costs Court.

27 The question of whether a particular category of cost is a 'reasonable loss or expense' is a question of fact and is something upon which reasonable minds might differ. The decision on whether to order that a reasonable loss or expense be paid involves the exercise of a discretion. Accordingly, in this case, the challenge to the Magistrate's order must be framed, in accordance with the formulation of the rule, as either, that:

(a) his Honour was wrong to conclude that money spent,[19] particularly in making the objection, was a 'reasonable loss or expense'; or

(b) if it were reasonable for the Board to have spent money in making the objection, then his Honour was wrong to order Mr Esposito to pay the reasonable amount of that expense.

28 The first requires Mr Esposito to establish an error of law in the reaching of that conclusion, and the second requires Mr Esposito to establish an error of law in the exercise of a discretion.

1. Was the Magistrate obliged to determine the validity of the Board's claims before he determined costs?

29 The Magistrate's succinct reasons included the following:

Compliance was necessary. It was reasonable to obtain legal advice.

I do not propose to determine the issue of privilege. Such an examination is unnecessary to determine the issues.

The Plaintiff must pay the reasonable costs of the Board non-party.

The Board is entitled to reasonable costs of compliance with the subpoena and objecting to the subpoena.

I cannot be satisfied, that the amount claimed represents those reasonable costs.

Those costs would need to be more fully interrogated and therefore the quantum of those costs is more appropriately determined on taxation by the costs court in default of agreement.

(a) concluded, as a matter of fact, that the Board had acted reasonably in the way it had responded to the subpoena, including by retaining solicitors and making the objections that it did; and

(b) considered it appropriate, in the exercise of his discretion, that Mr Esposito pay the Board's reasonable costs of so doing; but

(c) was not satisfied that the amounts claimed were reasonable, and so considered that the level of the costs claimed ought to be assessed by the Costs Court.

31 Mr Esposito submitted that it was an error of law for the Magistrate to determine the issue of costs without first determining whether or not the Board's objections were good, and without first examining the contested documents. Associated with this was his submission that the objections taken were untenable and bound to fail.

32 In one sense, it would be preferable to determine the validity of the objection prior to determining whether the issuing party ought to pay the costs of the making of the objection, because the result of the objection may inform the question as to whether the subpoenaed party's costs ought to be paid by the subpoenaing party. If the objections are untenable, it is difficult to see how it could be considered reasonable to take them. But to require this in cases where the matter has otherwise resolved could be wasteful.[20] It would, in most cases, add substantially to the costs simply for the purpose of improving the precision with which a costs order may be made, and place an additional burden on the courts. Further, to require that to be done would be counter to the principle that the courts ought not to determine matters that have become hypothetical.[21]

33 Some guidance may be obtained from the situation that arises when events have occurred that have made a legal proceeding redundant, and the court has to consider the costs of that proceeding as between the parties. In those circumstances, the court will normally order that each party bear its own costs if it 'appears' that both have acted reasonably, but another order may be made if the judge feels confident that 'one party was almost certain to have succeeded if the matter had been fully tried'.[22] However, it is 'not the function of a court on a costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case'.[23]

34 A strict transfer of this approach to the costs of a subpoenaed non-party where there is an unresolved objection dispute would mean that the court ought ordinarily to order that the subpoenaing party pay the subpoenaed party's costs if it appears that the subpoenaed party has acted reasonably, but might not if the court feels confident that the objections would fail. But this analogy is not strict, as although there is a strong prima facie position that costs will follow the event in an inter partes dispute, there is no such prima facie position in the case of a non-party taking an objection to a subpoena. As is noted in para 25 above, the mere fact that the objections might fail does not mean that the objector would ordinarily not get its costs of making those objections.

35 When regard is had to all these considerations, it seems to me that it is up to the judgment of the individual judge or magistrate to determine how far he or she needs or ought to go in any particular case in order to determine whether or not it was reasonable for objections to be made. In an appropriate case, a court may be able to conclude that it was reasonable to make an objection without having to ascertain the strength of the objection or to inspect the documents.[24]

36 This is an appeal limited to a question of law. In order to succeed, Mr Esposito must establish that the Magistrate erred in law by concluding that it was 'not necessary' for him to 'determine the issue of privilege' in order to form his view that it was reasonable for the Board to make the objections it did. That is, Mr Esposito has to establish that, in the circumstances of this case, the Magistrate was constrained to examine the strength of the objections and examine the documents, or, to put it another way, that no Magistrate acting reasonably could have formed a view on the reasonableness of the Board's conduct without having first done so.

37 I am not so satisfied. In my view, it was open to the Magistrate to form the view that the Board had acted reasonably in making an objection to the release of the documents to the parties without first determining whether or not the objection would ultimately have succeeded, having regard to the facts that:

(a) the Legal Profession Uniform Law imposed an obligation on the Board not to disclose any information obtained by it in the execution or administration of the Legal Profession Uniform Law.[25] Although there is an exception that permits the production of documents to a court, the obligation to respond to a subpoena does not undermine the interest recognised by the Legal Profession Uniform Law that the information obtained by the Board is or is likely to be confidential and something that ought not to be broadly disclosed without good reason and something which the Board might legitimately try to protect;[26]

(b) the subpoena was drawn in very wide terms, in my view in surprisingly wide terms, and was likely to include documents that were confidential and in respect of which some form of restrictive inspection regime would probably be required;

(c) it would not matter whether the Board was correct to object to each document to which it objected - the cost of objecting would likely reasonably be incurred so long as some of the objections were reasonably made; and

(d) the amount of money sought was, in the scheme of litigation, relatively small, particularly when it is borne in mind that the costs here under consideration were only the additional costs of making the objections beyond the Board's costs more generally of responding to the subpoena. It is legitimate to have regard to the modest amount at stake when considering whether to assume the additional burden of having to examine documents and form views on objections to a subpoena that had become hypothetical only.

38 In these circumstances, in my view, it was open to the Magistrate to conclude that the Board had acted reasonably without first examining the documents or assessing the merits of the objection.

39 I do not overlook the fact that the Board had not filed any affidavit material in support of its application that the documents ought not to be produced for inspection on the grounds of public interest immunity. Ordinarily, such material would be required.[27] There may be cases where the result of the objection is sufficiently obvious that an assumption may be made,[28] and there is something in Mr Esposito's argument that in the absence of affidavit material the public interest immunity claim would have been very difficult to maintain. But in a case such as this, where a body charged with keeping information confidential is required to produce a broad range of documents that it has obtained, it may be that the documents themselves would make the point. The lack of affidavit material does not establish that the objection was 'untenable'. Also, and contrary to Mr Esposito's submission,[29] the objection of the board was not limited to an objection on the grounds of public interest immunity. As the submission to the Magistrates' Court on 26 March 2020 made clear, the Board also contended that if the documents were not subject to public interest immunity, they ought nonetheless not to be made available for inspection by the parties, or ought first to be redacted. It would be unrealistic to expect that the Board's costs of objecting ought to be parsed so as separately to identify any costs associated with the claim for public interest immunity beyond the costs that would otherwise have been incurred in making the objections.

40 It is true that Mr Esposito now has no ability to recover the costs of the subpoena from Ms Bilson. However, he signed a consent order compromising his claim against Ms Bilson in circumstances where he had requested the issue of a subpoena, the Board had told him when it was served that it would seek costs, the Board had filed an objection, the objection hearing had not been determined, and the Board had filed and served submissions that included an application for its costs. If there is any unfairness, it is an unfairness that is better visited on him than on the Board.

1. Did the Magistrate fail to accord Mr Esposito procedural fairness?

41 The Magistrate in his reasons referred to Levey v Bishop Paul Bernard Bird ('Levey').[30] That decision had not been handed down at the time that the parties filed their submissions. It is apparent that his Honour reached his decision on 21 September 2020, on which date he made his orders, but did not finalise the reduction of his reasoning process to paper until on or shortly before 25 September 2020. In the meantime, on 22 September 2020, Levey was published. His Honour started his reasons by saying:

This matter raises issues similar to those considered in Levey v Bishop Bernard Bird [2020] VSC 615 22nd of September 2020.

The decision was delivered after submissions were made in this application.

It is not necessary to seek further submissions.

42 It follows, in my view, that his Honour made his actual decision without having any regard to Levey. His Honour merely noted that that decision had not caused his reasoning process to change in any way. That is why he stated that further submissions were not necessary. Accordingly, his Honour did not deny Mr Esposito procedural fairness by failing to give him an opportunity to make submissions in relation to Levey.

43 It was submitted orally that his Honour had denied to Mr Esposito procedural fairness by limiting his submissions to two pages. I do not consider that this was procedurally unfair. The argument was about costs of a subpoena in a case that had resolved. Mr Esposito put in a two-page submission containing approximately 1,300 words, as it was single-spaced, with narrow margins and in a reasonably small font. Further, the two-page limit was in accordance with a practice direction issued by the Magistrates' Court at a time of increased pressure and uncertainty due to the

COVID-19 pandemic. In the circumstances, there was nothing procedurally unfair in limiting each party to submissions of two pages.

44 The Magistrate's reasons were very short. However, the obligation was to explain his reasoning process,[31] and, in my view, his reasons met that requirement.

45 The first issue was whether he was functus officio. His Honour stated:

The Court has made an order as between parties. The issue surrounding the subpoena has not been resolved nor is it extinguished by the resolution between parties.

46 This is a succinct, but sufficient, explanation for the rejection of that argument.

47 His Honour then turned to a submission that the Board 'committed a civil penalty offence' by disclosing the documents (which it said were confidential and could not be disclosed to others) to its legal advisers. Of this, his Honour said:

This submission is a nonsense. A person is entitled to receive privileged advice from a lawyer in relation to consideration of a claim of public policy immunity.

48 Again, this is a succinct, but sufficient, explanation for the rejection of that argument.

49 Mr Esposito then contended that his Honour's reasons were inadequate in their response to a submission made by him that 'the Board never warned the plaintiff that it might claim thousands of dollars in costs'. I agree that his Honour's reasons for rejecting this submission are difficult to follow. But I do not see any deficiency in these reasons as being sufficient to allow an appeal. This is because, in the hearing of the appeal, it was (appropriately) conceded by counsel for Mr Esposito that the submission made, and supported by an assertion made by Mr Esposito in an affidavit, was wrong. It overlooked the facts that the Board had informed Mr Esposito when the subpoena was served that it would engage external lawyers and would seek its costs of responding to the subpoena, and that its submission filed with the Magistrates' Court on 26 March 2020 had claimed 'thousands of dollars in costs'. The Magistrates' Court cannot be criticised for failing to give adequate reasons to reject a submission that ought not to have been made.

50 The reasons then turned to Mr Esposito's arguments that the Board should not have instructed a 'first tier' firm, the objection was bound to fail or was unlikely to succeed, and the costs were excessive. In response to these submissions, his Honour gave the reasons set out in 29 above.

51 As those reasons show, his Honour simply expressed the conclusion that it was 'reasonable to obtain legal advice', which was a rejection of the submission that it was unreasonable for the Board to engage external lawyers. Perhaps more could have been said, but in my view the failure to say more did not render the reasons defective. It is implicit in his conclusion that his Honour felt that the issues at stake in responding to a subpoena in the circumstances justified a body, even a body regulating lawyers with some lawyers on staff, in engaging external lawyers to advise and to assist with preparing correspondence and submissions. Such a conclusion is not at all surprising; it cannot be assumed that a body will have sufficient persons available internally to do this work, and there is, generally speaking, some advantage in having external objective advice. His Honour dealt with the submission that the costs were excessive by refusing to quantify the costs himself and referring that issue to the Costs Court. That process encompassed the complaint that the Board retained a 'first tier' firm, as that complaint can only have gone to the quantum of the costs that were charged.

52 The only remaining issue was whether the Board had acted reasonably in making an objection to release of the documents required by the subpoena. Once his Honour decided not to determine the validity of that objection, there were no disputed facts that had to be resolved. Rather, this was a judgment, essentially a matter of impression, to be made by his Honour. I am satisfied from the reasons, read in context, that his Honour determined that Mr Esposito had to pay the Board's costs because he had concluded that it was reasonable for the Board to have made the objection. He was not constrained to conclude otherwise.

53 Some criticism was made of the fact that the Board only filed its submissions after it had been told that the matter had settled in principle. I do not consider that this was a factor that mattered. Not only was there some confusion as to what was required, but the Board's costs of preparing the submission were incurred by the time of the settlement in principle in any event, so whether or not they were filed would have been of no consequence.

54 Nothing in this judgment is intended to convey that the quantum of costs claimed by the Board are 'reasonable'; that is a matter for the Costs Court.

55 I will dismiss the appeal and hear the parties on costs.

[1] This is a pseudonym. I have used it because it was used in the published decision referred to in para 7 below and, if I were not to do so, the efficacy of the use of a pseudonym on that occasion would be undermined.

[2] The relevant date is, of course, the date on which the order is made, not the date on which a document is created that records that order: see, eg, Pole v Jasethuhewage [2015] VSC 186 (Mukhtar AsJ).

[3] Magistrates' Court Act 1989 (Vic) s 109(5).

[4] Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ('Legal Profession Uniform Law').

[5] Presumably, Legal Profession Uniform Law s 198.

[6] See Legal Profession Uniform Law ss 170(1)(a), (2)(a).

[7] Bilson v Esposito [2019] VSC 801.

[8] See National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372.

[9] Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 235-6 (Lee, Hill and Cooper JJ); Akedian Co Ltd v Royal Insurance Australia Ltd [1999] 1 VR 80, 100 [58] (Byrne J).

[10] Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 236 (Lee, Hill and Cooper JJ).

[11] [2020] VSC 615.

[12] ASADA v 34 Players and One Support Person (No 2) [2015] VSC 14, [19] (Croft J); Akiba v Queensland [2010] FCA 321; (2010) 184 FCR 406, 427 [107].

[13] See, eg, Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] VicRp 30; [1995] 1 VR 464, 469 (Byrne J); ASADA v 34 Players and One Support Person (No 2) [2015] VSC 14, [17], [21]-[22] (Croft J).

[14] See, eg, Deposit & Investment Co Ltd (rec apptd) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267, 289F, 290A (Bainton J).

[15] Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] VicRp 30; [1995] 1 VR 464; Chapman v Luminis Pty Ltd [No 3] [2000] FCA 1120; (2000) 104 FCR 368, 376-7 [28]-[30], 378 [34] (von Doussa J); Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284, 285-6 (Lockhart J); Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270, [45] (Riordan J); Charan v Nationwide News Pty Ltd (No 6) [2017] VSC 331, [27] (J Forrest J); Charlick Trading Pty Ltd v Australian National Railways Commission [1997] FCA 674; (1997) 149 ALR 647, 649 (Mansfield J).

[16] Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] VicRp 30; [1995] 1 VR 464, 468 (Byrne J).

[17] Charan v Nationwide News Pty Ltd (No 6) [2017] VSC 331, [23], [26] (J Forrest J).

[18] Deposit & Investment Co Ltd (rec apptd) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267, 290C-291A (Bainton J).

[19] I am including in this concept the application of internal resources.

[20] See, eg, the approach in Akiba v Queensland [2010] FCA 321; (2010) 184 FCR 406.

[21] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624, 626 (McHugh J).

[24] See, eg, Charan v Nationwide News Pty Ltd (Ruling No.6) [2017] VSC 331, [23] (J Forrest J). Cf Levey v Bishop Paul Bernard Bird [2020] VSC 615, [39] (Clayton JR).

[25] Legal Profession Uniform Law s 462(1).

[26] The Board made this point in the submissions it provided to the Magistrates' Court on 26 March 2020.

[27] State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 574 [68] (Maxwell P, Buchanan and Vincent JJA).

[28] South East Queensland Electricity Board v Australian Telecommunications Commission [1989] FCA 15 (Pincus J).

[29] And, it must be said, the Magistrate's use of the phrase 'the issue of privilege'.

[30] [2020] VSC 615.

[31] Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130, 136 [21] (Nettle JA, Batt JA agreeing at 131 [1], Vincent JA agreeing at 131 [4]); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA, Warren CJ agreeing at [1], Nettle JA agreeing at [3]); Transport Accident Commission v Kamel [2011] VSCA 110, [70]-[73] (Kyrou AJA, Warren CJ agreeing at [1], Ashley JA agreeing at [2]); Helou v Shaya [2013] VSC 297, [23]-[25] (Beach J).