Appellant v Respondents

1 In these two separate, but related proceedings, the appellant[1] seeks:

(a) to appeal against the judgment of Derham AsJ of 11 December 2015[2] pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005[3] ('the VCAT appeal proceeding'); and

(b) to appeal against the decision of Magistrate Saines of 16 March 2016 pursuant to r 58.06 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Magistrates' Court appeal proceeding').

2 On 23 June 2016, Zammit J made orders, by consent, that the two proceedings be joined and tried together under r 9.12 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules').

3 The appellant is currently employed by Deakin University, which is the first respondent to both appeals. The other respondents are various staff members of Deakin University.[4] These proceedings ultimately arise from a series of events that occurred in the course of the appellant's employment, which led to the appellant initiating several proceedings against the respondents. Of these proceedings, the following are presently relevant:

(a) a complaint in the Victorian Civil and Administrative Tribunal ('the VCAT proceeding'); and

(b) a complaint in the Magistrates' Court ('the Magistrates' Court proceeding').

4 On 6 November 2013, the appellant filed a complaint in the VCAT alleging, in brief, the respondents had:

(a) discriminated against him on the basis of his attributes, including disability (depression), employment activity and industrial activity in relation to various occurrences, which included denying him a promotion and preventing him carrying out his duties;

(c) thereby breached the Equal Opportunity Act 2010.

5 The appellant sought, inter alia, compensation, damages, and an apology from the respondents.

6 On 22 April 2014, Senior Member Megay made orders that the respondents have liberty at the conclusion of the appellant's case:

... to make a submission that the application should be dismissed and this application can be made without the respondents being put to their election and shall be determined as if it was a final submission on the balance of probability.[5]

7 At the conclusion of the appellant's evidence, the respondents made an application to dismiss the appellant's case under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') asserting that the proceeding was:

(a) frivolous, vexatious, misconceived or lacking in substance; and

(b) an abuse of process by reason of alternate proceedings in the Magistrates' Court for bullying, victimisation and discrimination under the Accident Compensation Act 1985.

8 On 6 November 2014, Member Campana rejected the respondents' assertion regarding abuse of process, but otherwise granted the respondents' application and summarily dismissed the appellant's complaint pursuant to s 75 of the VCAT Act. Written reasons for this decision were given on 20 November 2014.

9 On 18 December 2014, the appellant filed an originating motion seeking leave to appeal the decision of Member Campana pursuant to s 148 of the VCAT Act.

10 The application was heard before Derham AsJ on 31 March 2015 and on 11 December 2015 his Honour dismissed the application.

11 On 20 March 2014 the appellant commenced the Magistrates' Court proceedings, in which he asserted that Deakin University and others had discriminated against him and were liable in damages under s 242AD of the Accident Compensation Act 1985.

12 Injunctive relief sought by the appellant in that proceeding was refused on 19 May 2014, at which stage Magistrate Saines ordered that an amended statement of claim be filed and served by the appellant.

13 An amended statement of claim and defence were filed on 10 June 2014 and 10 July 2014 respectively. Nothing occurred in the proceeding until early August 2015 when the appellant gave notice that the proceedings would be continued pursuant to r 3.06 of the Magistrates' Court (General Civil Procedure) Rules 2010 ('the Magistrates' Court Rules'). It appears that in September and October of 2015 the Registrar issued notices in error stating that in the absence of receiving various documents, the proceeding would stand dismissed against the defendants. It will be necessary to set out what happened in more detail, but for present purposes it is sufficient to note that the Registrar struck out the proceeding on 7 October 2015, notified the parties, and informed them of the requirements for reinstatement of the proceedings.

14 On 10 December 2015, the appellant applied, inter alia, for reinstatement. The application was opposed by the respondents. The application was heard on 1 February 2016 and was refused by Magistrate Saines, whose reasons for decision were given on 16 March 2016. The Magistrate was satisfied that the proceeding was an abuse of process and should be permanently stayed.

15 On 11 January 2016, the appellant filed a notice of appeal and subsequently an amended notice of appeal on 13 May 2016. The appellant seeks orders:

(b) that leave to appeal be granted, and contemporaneously pursuant to r 77.06.2(5) of the Rules, the hearing of the application for leave to appeal be treated as the hearing of the appeal;

(c) that the matter be remitted to the VCAT to be reheard de novo, by a three-member panel presided over by a Deputy President; and

(d) any other order the Court thinks appropriate.

1. Whether his Honour erred in law and misdirected himself by failing to adhere to the Doctrine of Stare Decisis in making is judgement
   1. Whether his Honour erred in law and misdirected himself by making a Judgement that was plainly wrong
   2. Whether his Honour erred in law and misdirected himself by making a judgment that was in direct conflict from decisions by leading authorities, and which authorities have plainly set out how a s 75 application under the VCAT Act 1998, is to be conducted particularly in regard to the Human Rights List of the VCAT, and consequently recast the manner in which subsequent decisions in VCAT would be decided upon
   3. Whether on its proper construction, section s77.02(1)(a) & (b) and s7703(a) of the Supreme Court (General Civil Procedure) Rules 2005, consents a power to the Associate Judge to traverse the authority vested in the above sections which are expressly given only to a Judge of the Trial Division

1. Did his Honour error in law by failing to apply the relevant leading authorities argued by the Applicant in the hearing of the leave to appeal before his Honour, and therefore failed to follow his lawful obedience to apply these leading authorities, which then prejudiced the outcome to the detriment of the Applicant
2. Did his Honour error in law by examining the leading authorities argued by the Applicant, and then detoured on a frolic of his own when interpreting the leading authorities, which then prejudiced the outcome to the detriment of the Applicant
3. Did his Honour error in law by making a decision, that was, according to all leading authorities plainly wrong, and therefore the competence of that decision must be tested, to ensure justice is done and public confidence is restored and the decision of the Associate Judge has not worked an injustice
4. Did his Honour error in law by failing to limit his authority in the hearing of the Applicants Leave to Appeal Application pursuant to section s77.02(1)(a) & (b) and s77.03(a) of the Supreme Court (General Civil Procedure) Rules 2005, and therefore exceeded his discretionary and or explicit authority, which then prejudiced the outcome to the detriment of the Applicant
5. Dis his Honour error in law by failing to accept (and apply these in his decision) that the VCAT have explicitly posted on their website, that all summary dismissal applications under s75 of the VCAT Act 1998 under the Human Rights list, were interlocutory, and further, did not constitute an application during the course of a full hearing, contrary to the decision of the Associate Judge
   1. Has the decision of the Associate Judge caused an error in law, by recasting the manner in which the VCAT can dismiss a s75 Application under the VCAT Act 1998, and as a consequence, has the VCAT subsequently applied this unlawful practice to the detriment of subsequent applicants in VCAT
   2. Has the decision of the Associate judge caused an error in law, by recasting the manner in which the VCAT can dismiss a s75 Application under the VCAT Act 1998, and as a consequence, have the Respondents subsequently applied this unlawful practice to the detriment of subsequent application in VCAT by a student making a claim under the Human Rights list of VCAT
   3. Have decisions of the VCAT in respect of s75 Applications, since the making of the decision of his Honour, contradicted the findings and judgment made by his Honour
   4. Did his honour error in law by failing to apply his discretionary and reviewing authority of the Supreme Court, and refer this matter to the Trial division approving leave to appeal, to allow an investigation into the conduct of legal counsel in both the VCAT hearing and the leave to appeal, which has led to a gross misapplication of justice both to the Applicant and to Applicants making claims in the VCAT, in contravention of the Barristers Code of Conduct
   5. Did his Honour error in law so grossly, that it allowed the Respondents to successfully make and have a costs application made against the Applicant which in all the circumstances, was repugnant opportunism by the Respondents to financially bankrupt the Applicant through ill-gotten gains, and therefore, precedents an unwarranted message to the public, particularly those intending and or making claims in the Human Rights list of the VCAT

18 Broadly, it was common ground between the parties that the decision to grant leave pursuant to s 148(1) of the VCAT Act is discretionary, however the exercise of the discretion can be guided by certain factors. The position was explained in Secretary to the Department of Premier and Cabinet v Hulls:

When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[6]

19 A number of the relevant guidelines from Hulls were summarised conveniently by Warren CJ in Myers v Medical Practitioners' Board of Victoria, as follows:

The approach as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act is set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls. In summary, Phillips JA states:

• whether leave is granted or not must always depend upon the justice of the particular case;

• if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;

• the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

• although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

• once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

• where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.[7]

20 It was also not in dispute that the VCAT, whilst it is bound by the rules of natural justice, is not so bound by the rules of evidence, and its mandate to conduct the proceedings with minimal formality and technicality give the Tribunal greater procedural flexibility. The appellant referred to Byrne J's observations in Winn v Blueprint Instant Printing Pty Ltd in this regard:

It was accepted that the Tribunal must act fairly and that it was bound by the rules of natural justice. But this does not require that its procedures be that of a formal court. Indeed, the Victorian Civil Administrative Tribunal Act 1998 ("the Act") makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate. This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court. This said, s102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions. This obligation is, of course, constrained by s102(2) and by the ordinary requirements of relevance.[8]

21 With the exception of grounds 4, 9 and 10, the grounds upon which the appellant relies essentially rest upon what the appellant submitted are the leading authorities informing the operation of s 75 of the VCAT Act, which the Associate Judge was obliged, but failed in various respects, to follow.

22 First, the appellant submits that the manner in which courts and tribunals must conduct an inquiry into jurisdiction was set out by Brennan J in R v Gray; Ex parte Marsh, as follows:

The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Pt IX, a defect in jurisdiction appears. A defect in jurisdiction appearing on the face of the application does not require evidence to establish it nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction. The application lodged by Mr. Adamson claimed that certain irregularities had occurred, which Mr. Adamson identified as "alleged irregularities specified in this application". The jurisdiction of the Federal Court to inquire thus depends on whether any of the alleged irregularities which Mr. Adamson claimed to have occurred amounted to irregularities for the purpose of Pt IX of the Act. Nothing turns on the evidence that might be adduced in the inquiry; the jurisdiction to inquire turns solely on the terms of the application and the documents annexed thereto and on the true construction of Pt IX. Mr. Adamson's assertion that what he claims to have occurred was an irregularity is immaterial if his application reveals that it was not.[9]

23 The appellant submits that this decision has been consistently adopted, in particular, in Nestle Australia Ltd v The President and Members of the Equal Opportunity Board[10] and State Electricity Commission of Victoria v Rabel.[11] The appellant contends that it is significant that both these cases related to the application of the Equal Opportunity Act in force at the relevant time.

24 The appellant also relies on the principles regarding abuse of process as set out in the Walton v Gardiner;[12] and the consideration of the words 'frivolous', 'vexatious', 'obviously unsustainable' and their relationship to an abuse of process in Rabel. The appellant submits that the approach taken in Rabel was approved and discussed in Norman v Australian Red Cross Society in which Deputy President McKenzie summarised the principles applicable to s 75 of the VCAT Act.[13] Additionally, in Lawley v Terrace Designs Pty Ltd,[14] the Senior Member observed that the principles espoused in Rabel, although concerning s 44C of the Equal Opportunity Act 1984, were nonetheless equally applicable to s 75 of the Act.

25 The appellant argues that these cases also confirm that applications made under s 75 in the Human Rights List of the VCAT are interlocutory in nature, and in support of this proposition referred to Forrester v AIMS Corporation,[15] Towie v Victoria,[16] Naylor v Oakley Thompson & Co Pty Ltd,[17] Owners Corporation No 8 PS422665R v Walton (Owners Corporation)[18] and Zheng v Sunning Pty Ltd.[19]

26 The appellant also relies on the discussion by Garde J of the principles relating to s 75 in Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd.[20] In particular, the appellant relies on his Honour's statement that '[a] proceeding should not be dismissed or struck out under s 75 if the ultimate fate of the proceeding depends upon contested questions of fact that could be established or eliminated by cross-examination'.[21] The appellant submits that in his case 'given the volumous [sic] evidence provided to the Tribunal in the course of the hearing, of which the Associate Judge was well aware by way of submissions by both parties, and that cross examination for the purposes of establishing and eliminating evidence did not take place save for the Applicant's witnesses, the refusal to grant leave should turn on this one point'.

27 Simultaneously, the appellant argues that Gray prohibits the consideration of the evidence given during the hearing by the appellant.

28 The appellant propounds the following additional propositions regarding s 75:

(a) 'the Tribunal must advise the applicant to the complaint in advance of the decision to be made' before final orders are made;

(b) when exercising its power under s 75, the Tribunal must expressly state that it is doing so;[22]

(c) when granting an application under s 75, the Tribunal must make express findings as to what element of the complaint is an abuse of process, and the reasons that support such a finding;[23]

(d) 'citing the leading authorities from whence Normans principles are derived is a precondition to the making of a decision in a s 75 application';

(e) a complaint is 'entitled to the benefit of the doubt'.

29 The appellant contends that his arguments regarding s 75 of the VCAT Act are supported by the publication of a process to be adopted for a s 75 summary dismissal application on the Tribunal's website. Specifically, the appellant refers to the following statements contained on the website:

A strike out application is a preliminary application. It is not the full hearing of the application where the applicant must prove his or her case.

...

As to the nature of the strike out application: Norman v Red Cross Society (1998) 14 VAR 243 at 246-250.

30 In light of these submissions, the appellant's criticisms of the decision of Derham AsJ can be summarised as follows:

(a) his Honour erred by failing to adopt the 'narrower' view regarding abuse of process as espoused in Walton;[24]

(b) his Honour's observation that s 75 'may be employed at any time' is contrary to authority;[25]

(d) his Honour incorrectly concluded that Rabel and Norman are not relevant to a s 75 application;

(e) his Honour erred in failing to consider Gray in the following respects:

(i) by incorrectly considering that the onus lies on a plaintiff to defend their proceedings in an application such as that brought under s 75 of the VCAT Act, whereas it is in fact the 'task of the defendant to identify that the jurisdiction of the Tribunal cannot be invoked and to proceed would be an abuse of process';

(ii) failing to observe that the powers of the Tribunal to conduct its inquiry under s 75 of the VCAT Act 'are constricted to the original complaint and turn "solely on the terms of the application and the documents annexed thereto" and neither upon "the evidence that might be adduced in the inquiry" nor any subsequently filed documents'.

(f) his Honour exercised powers which are expressly given to only a judge of the trial division of the Supreme Court.

31 The appellant asserts that, subject to some criticism of the decisions, the decisions of Reaper v Fraser,[26] Fowler v Parks Victoria[27] and Bluestone Park Pty Ltd v Kevin Hunt Property Pty Ltd[28] determined in the VCAT display the correct approach to s 75 of the VCAT Act and, in particular, demonstrate that an application brought under that section is interlocutory.

32 The appellant then contends that the cases Yianni v Jemena Electricity Networks (Vic) Ltd[29] and A'Vard v Deakin University[30] determined by the VCAT are indicative of his assertion that the Tribunal is 'making s 75 applications outside of its jurisdiction' and incorrectly applying the relevant authorities.

33 The appellant also refers to a number of decisions regarding s 75 of the VCAT Act made after the judgment of Derham AsJ which he asserts supports his various contentions regarding the operation of that section.[31]

34 The appellant concludes by submitting that his contentions so 'completely answers and resolves the issues raised by the Applicant that leaves nothing to be challenged by the Respondents. Any defence mounted by the Respondents and the Respondents Representative would be tantamount to breaches of the Barristers Code of Conduct'.

35 In essence, the respondents contend that the appellant's questions of law are founded on his arguments that:

(a) the Tribunal's decision to allow the respondents' summary dismissal application and Derham AsJ's subsequent decision to refuse leave to appeal that decision are in conflict with the authorities regarding the operation of s 75 of the VCAT Act; and

(b) in particular, that an application for summary dismissal under s 75 of the VCAT Act may only be made during the interlocutory period of a proceeding.

36 The respondents submit that these contentions are based on:

(a) a decontextualized reading of the relevant authorities; and

(b) a failure to appreciate the differences in applicable legislation and the circumstances being considered in those authorities compared to the present proceeding.

37 The respondents contend that, on the contrary, Derham AsJ thoroughly considered the relevant legislation and authorities.

38 Regarding ground 4, the respondents simply dispute that Derham AsJ was acting in any way outside the authority conferred upon his Honour.

(a) the 'apparent assertion that the Respondents' legal counsel have acted in a way that is inconsistent with their professional obligations is entirely baseless'; and

(b) no conduct was identified by the Tribunal nor the Associate Judge which could be said to be either inappropriate or contrary to their professional obligations.

40 As to ground 10, the respondents simply submit that the costs order was consistent with the Court's discretion under s 24(1) of the Supreme Court Act 1986 and authority regarding a party's entitlement to costs following an application for leave to appeal.[32]

41 The respondents contend that, for the above reasons, the appellant has failed to establish 'that there is any real or significant argument that in relation to any of his stated questions of law Derham AsJ fell into error in a way which is important to whether the Respondents' application to dismiss the Appellant's complaints, or the application for leave to appeal, succeeded or failed.'

42 The nature of an appeal under r 77.06 of the Rules, and accordingly the task that I must undertake in this proceeding, was considered by Zammit J in an earlier decision in this proceeding.[33] Her Honour concluded that in order to succeed, the appellant must identify error - legal, factual or discretionary - by the Associate Judge.[34] For the reasons that follow, the appellant has not identified any error by the Associate Judge, and accordingly the appeal should be dismissed.

43 As the respondents identified, the nub of the appellant's grounds of appeal and questions of law is the appellant's contention that an application under s 75 of the VCAT Act can only be made during the interlocutory period in the proceeding. Accordingly, the Tribunal did not have jurisdiction to 'go into the hearing of the evidence.' As such, it is convenient to deal with this point first and separately to the grounds of appeal.

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member; or

(c) a member who is an Australian lawyer.

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

45 Two points can be immediately made. First, the section empowers the Tribunal to make orders summarily dismissing a proceeding which satisfies a relevant criterion at any time. Secondly, such an order may be made by the Tribunal on its own initiative or on the application of a party.

46 The question accordingly becomes whether, as the appellant contends, the cases cited by the appellant interpret the proper operation of the provision such that an application under s 75 can only be made during the interlocutory stage of a proceeding. In short, the answer is no.

47 While the appellant has correctly identified many cases relevant to the interpretation and understanding of s 75, the appellant has misconceived the extent of their relevance and the way in which Derham AsJ considered them. I consider that his Honour correctly conducted a thorough and considered review of the relevant authorities referred to by the appellant.

48 Rabel concerned s 44C of the Equal Opportunity Act 1984, which provided a mechanism by which a respondent could apply to have a complaint struck out on the grounds that it was 'frivolous, vexatious, misconceived or lacking in substance at any time between the lodging of the complaint and the commencement of the hearing of the complaint by the Board, other than at a time when the matter is in the process of being conciliated' (emphasis added). Evidently, while the bases upon which such an application might be made are the same as those provided for in s 75 of the VCAT Act, an application made under s 44C must be made within the specified time period. Specifically, before the commencement of the hearing of the complaint. This is in stark contrast to the plain words of s 75 of the VCAT Act.

49 Accordingly, as the respondent submits, while Rabel provides some guidance as to the meaning of the words 'frivolous, vexatious, or lacking in substance', Rabel cannot be used as a basis upon which to argue that the Tribunal was bound to consider any summary dismissal application under s 75 of the VCAT Act prior to the commencement of the hearing.

50 This distinction between s 44C and s 75 was expressly noted by Kaye J (as his Honour then was) in Forrester v AIMS Corporation.[35] His Honour also considered Rabel and observed:

As the decision in Rabel's case shows, it is not for the Tribunal, at least at an interlocutory stage of proceedings, to conduct a pre-trial assessment of the complainant's evidence to determine whether the complainant can prove his case. Such an approach is incorrect and inappropriate, at least unless the complainant clearly concedes that the material he has placed before the Tribunal contains the whole of the complainant's case.[36]

51 In that case, the complainant had not conceded that his entire case was before the Tribunal and had in fact intimated that further evidence may have been forthcoming.[37] By contrast, in the VCAT proceeding, the appellant had completed his case.

52 The appellant submitted that in Owners Corporation No 8 PS422665R v Walton '[t]he Tribunal Member has unequivocally stated the application of 'at any time' only applies to at any time of the interlocutory period. Therefore this now precludes during the course of a full hearing.' However, on reading the case it is clear that the Senior Member was considering an application made before the contested hearing began and it is in that context that his observations about the operation of s 75 were made. The decision cannot be read in the manner contended by the appellant.

53 The decision in Gray falls into a different category. Gray did not concern s 75 or a comparable provision. The appellant seems to contend that the decision in Gray was relevant to the manner in which 'an inquiry of the Courts and Tribunals as to jurisdiction must be constructed' and was relevant to the question of 'invoking jurisdiction'.

54 The appellant appears to consider that the observations of Brennan J extracted above offer general statements of principle applicable to his case and, in particular:

(a) the manner in which the Court or Tribunal may invoke jurisdiction; and

(b) the way in which evidence is to be adduced in the inquiry; that is, that the inquiry should turn only on the terms of the application and supporting documentation.

55 This, however, is not the case. Gray specifically concerned the Conciliation and Arbitration Act 1904 (Cth), s 159(1) of which enabled a member of certain organisations to apply for an inquiry by the Federal Court into a claim that there had been 'an irregularity in or in connexion with an election for an office in the organisation'. The High Court was required to consider whether this provision enabled the Federal Court to determine conclusively whether there was in fact an irregularity, a matter on which jurisdiction under s 159(1) depended. It is in this specific context that the observations of Brennan J were made. A close reading of the case indicates that there is no proposition in Gray that could be considered relevant or applicable to an application made under s 75 of the VCAT Act. Accordingly, Derham AsJ was not in error by failing to consider Gray.

56 For these reasons, his Honour's decision did not fail to follow the relevant authorities, nor did it conflict with them, and the appellant's grounds 1, 2 and 3 must be rejected.

57 The appellant does not provide any particulars as to how the Associate Judge allegedly exceeded the authority conferred upon him. However, by referring to rr 77.02(1)(a), (b), and 77.03(a),[38] it can be assumed that the appellant is suggesting that his Honour impermissibly:

(b) gave judgment or made any order at the trial of the proceedings.

58 This is simply not evident on the facts nor in his Honour's decision. His Honour determined to dismiss the application for leave to appeal,[39] and thus did no more than what he was required to do.

59 For the reasons already given, applications made under s 75 of the VCAT Act are not limited to being made in the 'interlocutory stage'. The materials on the VCAT website do not suggest as much. They are a resource for parties seeking information on particular steps that may be taken to resolve a proceeding and do not affect the legislative text, nor do they purport to do so. Ground 5 is not made out.

60 Grounds 6 to 8 rely on a common underlying assumption that cases subsequent to the VCAT proceeding have either:

(a) in reliance on the VCAT decision, applied the incorrect principles to subsequent cases under s 75 to the detriment of parties; or

(b) since the findings made by Derham AsJ, contradicted the findings and judgment made by his Honour regarding applications made under s 75 of the VCAT Act.

61 As I have already determined, his Honour did not incorrectly apply the relevant principles to the determination of the application under s 75. To the contrary, he appropriately considered the relevant factors to be applied to the respondents' application. To the extent that the appellant's grounds of appeal seek to impugn other decisions made by the VCAT, they are rejected and it would be inappropriate to otherwise comment on them.

62 Neither the Associate Judge nor the Tribunal Member made any finding nor gave any indication that the conduct of counsel for the respondent had been in any way deserving of opprobrium. This ground appears to be based upon the appellant's submission that his arguments are so unanswerable that to attempt to refute them would be to engage in professional conduct contravening the Barristers Code of Conduct in an unspecified manner. The submission appears to be reliant upon a letter the appellant sent to the Associate Judge in which he asserted, or at least implied, that by failing to draw his Honour's attention to what the appellant asserted were crucial and relevant cases, the respondents' legal representatives were effectively misleading the Court or knowingly allowing the Court to make an incorrect decision. No other particulars were provided by the appellant.

63 For the reasons already given above, this is not the case and this ground is not made out. As the respondent observed, if the appellant has any concerns about the conduct of the respondents' legal representatives, the appellant is entitled to approach the relevant authority.

64 The Court is given a wide discretion as to costs by s 24(1) of the Supreme Court Act 1986 and the Civil Procedure Act 2010. The discretion is not unfettered and must be exercised judicially. This will generally result in the usual position that 'costs follow the event'; that is, a successfully party will normally be entitled to their costs of the proceeding from the unsuccessful party. Accordingly, absent any persuasive reason to depart from the usual position, the respondents were entitled to the costs order that was made. The fact that a party is unrepresented does not of itself grant them immunity from an adverse costs order. It is merely a factor to be weighed in the exercise of the Court's general discretion.[40]

65 The appellant provided no reason why the usual rule should not apply before the Associate Judge and has not identified an error in the exercise of his Honour's discretion. Ground 10 is rejected.

66 The appellant filed a notice of appeal from the decision of Magistrate Saines on 14 April 2016, seeking:

(a) an order setting aside the ruling of Magistrate Saines;

(b) an order that the matter be remitted to the Magistrates' Court for rehearing; and

(c) any other order the Court thinks appropriate.

67 The appellant identified two questions of law in the notice of appeal:

1. Whether, on its proper construction, Order 23 of the Magistrates' Court General Civil Procedure Rules 2010 (the Rules) gives power to the Court, to examine documents and evidence other than the originating, and or amended pleading and any documents annexed thereto, in staying the proceeding under rule 23.01 or striking out a proceeding under rule 23.02 of the Rules.
2. Whether on its proper construction, s 242AD of the Accident Compensation Act 1985, gives power to the Magistrates Court to hear the proceeding in any list other than the Industrial List of that Court.

68 The appellant then identified eight grounds of appeal:

1. Did his Honour err in law by examining the Applicants separate proceeding in the Geelong Magistrates Court for a Workcover claim, and therefore prejudice the outcome of this proceeding in the negative against the Applicant
2. Did his Honour err in law by examining the VCAT proceeding (currently subject to appeal in this Honourable Court) and therefor prejudiced the outcome of the proceeding in the negative against the Applicant
3. Did his Honour err in law when advised by the Applicant that the Tribunal was to vacate the orders made as to the Respondents Costs Application and which stated the reasons for such vacation, were subject to the appeal in this Honourable Court, and therefore this applied to the entire decision of the Tribunal member subject to appeal in this Honourable Court
4. Did his Honour err in law by failing to apply the High Court Ruling of R v Gray ; Ex Parte March [1985] HCA 67; (1985) 157 CLR 351 (17 October 1985) in respect of the courts power to enquire as to whether or not it had Jurisdiction to hear the application by the Defendants opposing the application to reinstate the matter
5. Dis his Honour err in law by when the Applicant pressed his Honour that the ruling of R v Gray applied in this application, of which his Honour stated "I am not aware of that case" and did not then apply the case in his ruling
   1. Did his Honour err in Law, when recognising in his Ruling that the original proceedings were struck out by the Registrar by way of error, then failed to apply that in his Ruling by overturning those errors, and this prejudiced the Applicants right to the proceeding being brought on to a hearing pursuant to orders made by his Honour dated May 19, 2014
   2. Did his Honour err in law by having previously made a determination (orders made May 19, 2014) that this matter be brought on for a contested hearing, and therefore had determined that the Court had jurisdiction to hear the matter and thus the Defendants were estopped from making an application opposing the Applicants reinstatement of his claim
   3. Did his Honour err in law by hearing this matter under the Workcover list, rather than the Industrial of that Court, when in the Geelong Magistrates Court, an Industrial list is not held.

69 The appellant appeals from the decision of Magistrate Saines on a question of law pursuant to s 109 of the Magistrates Court Act 1989 and r 58.06 of the Rules. In essence, the appellant submits that the Magistrate erred by:

(a) failing to follow the leading authorities relevant to the dismissal of the appellant's proceeding;

(b) incorrectly applying case law to the determination of the proceeding;

(c) specifically, forming a view as to the likely outcome of the appellant's case, which failed to follow the decision in Dey v Victorian Railways Commissioners,[41] and effectively considering the appellant's proceeding 'on the merits' rather than, as was required of the Magistrate, only deciding 'whether there was anything in fact or in law that was fairly triable or arguable';

(d) considering documentation external to the appellant's pleading (namely, the VCAT decision of Member Campana);

(e) further to the previous submission, coming to the conclusion that the doctrine of estoppel applied to the appellant's proceeding based on an impermissible consideration of both the Equal Opportunity Act 2010 and the Accident Compensation Act 1985, and essentially treating them as triable in the one jurisdiction and accordingly 'traversing the boundaries' of the appropriate process for judicial consideration of claims made under those Acts; and

(f) failing, in his Honour's reasons, to state the relevant provisions of the Court Rules and the power he was invoking to stay the proceedings.

70 Regarding the Magistrate's errors with respect to case law, the appellant relies on General Steel Industries Inc v Commissioner for Railways (NSW),[42] Fancourt v Mercantile Credits Ltd,[43] Gray,[44] and Walton.[45] The appellant submits that the position illustrated by these cases has been 'indelibly held' for the past century.[46]

71 The respondents contend that the appellant's arguments rely on an erroneous interpretation of the applicable legislation and authorities pertinent to a court's powers under, and the application of, r 23 of the Magistrates' Court Rules. They argue that the appellant 'has not established that there is any real or significant argument that, in relation to any of his stated questions of law, the learned Magistrate fell into error in a way which is critical to whether the ... application for reinstatement succeeded or failed.' Accordingly, the respondents ask that the Court refuse the application with costs.

72 The respondents submit that the error identified by an appellant for leave must be 'critical to the ultimate conclusion reached.'[47] However, the appellant has not established that the errors he asserts were critical to the determination of the reinstatement application.

(a) the Magistrate did not consider or examine the appellant's WorkCover proceeding;

(b) the Magistrate did not err by considering the VCAT decision. Rather, this was essential to determining the respondents' arguments regarding estoppel and abuse of process;

(c) the Magistrate did not err in failing to consider Gray as it was irrelevant to the task and case before him;

(d) even if the appellant is correct in his assertion that the Magistrate should have granted the application for reinstatement on the basis that the proceeding was dismissed in error, such error does not bear on the reasoning of the Magistrate in coming to his decision to refuse reinstatement, namely, that the proceeding should be stayed under r 23.01; and

(e) any comments that the Magistrate made as to the suitability of the proceeding progressing to a contested hearing have been taken out of context by the appellant and do not require that a contested hearing be held regardless of whether issue estoppel or abuse of process concerns subsequently arose in the proceeding.

74 The appellant's WorkCover claim was not examined by the Magistrate. The only reference to the WorkCover proceedings made by the Magistrate was as to the basic details of the claims, a comment that '[t]hose proceedings have yet to be heard and determined.'[48] In coming to his conclusion to refuse to reinstate the proceeding, the Magistrate specifically observed '[t]hat is not to imply absence of merit in the next allegation [the appellant] raises.'[49] Additionally, the Magistrate expressly noted that:

Nothing by way of Defence of Application before me in these proceedings seeks to deny or restrict a judicial determination of the workcover proceedings on their merits. So that those proceedings remain as a vehicle for determination of all issues which are in dispute in accordance with AC Act S.82.[50]

75 The Magistrate did not err by considering the VCAT proceeding. On the contrary, it was a necessary consideration for the Magistrate in assessing the respondents' submissions that the appellant was estopped from proceeding with the claim; alternatively, the proceeding was an abuse of process.

76 The Magistrate identified the basic principles of the doctrine of estoppel by reference to Blair v Curran,[51] as applied and considered in Brumar (Vic) Pty Ltd v Norris.[52]

I am satisfied the allegations made by the Plaintiff, as to discriminatory conduct in relation to his notice of injury, his lodgement of his claim for workers compensation benefits and the denial of that claim, were dealt within the VCAT proceedings. That is, I am satisfied the matters set out in paragraph 14 above amounted to a determination by VCAT of the questions of discriminatory conduct for prohibited reasons as required in AC Act s.242AD to form a cause of action under that provision. That is, the VCAT determined the precise issues that are raised in paragraphs 9 to 19 of the Amended Statement of Claim in these proceedings. In the manner described by Ashley J in the Brumar judgment in paragraph 10 above.

Such that I am satisfied the doctrine of estoppel applies to the Plaintiffs cause of action pleased in that part of his Amended Statement of Claim.[53]

78 As a matter of logic, it would be impossible to assess an allegation that a party is estopped without considering the determination relied upon by the alleging party. The courts have, unsurprisingly, supported this proposition. Ashley JA in Brumar observed:

Fourth, in determining whether an issue estoppel has been made out, a court is entitled to look at the record, including the reasons for judgment, of the court or tribunal whose determination is said to create the estoppel.[54]

79 To give another example, Clarke JA in Egri v DRG Australia Ltd said:

... the court, in determining whether an issue estoppel has been made out is entitled to look at the record, including the reasons for judgment, of the court whose determinations are said to create the estoppel in order to see what was actually decided.[55]

80 As the Magistrate correctly observed, it was accordingly 'necessary to consider what was determined in the VCAT proceedings.'[56]

81 Referring to Walton, the Magistrate found that an '[a]buse of process exists if a court is satisfied either that the proceedings have been brought for an improper purpose or that a hearing would necessarily be unfair.'[57] In particular, the Magistrate relied on the following observations of the majority in Walton:

Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[58]

I am satisfied that these circumstances do fall within an exceptional and extreme category, and that it would be unfair and oppressive for the Defendants to be required to defend these proceedings further. Moreover, the proceedings here seek to mainly if not wholly litigate anew a case which was determined in VCAT and which are highly likely to fail. They are an abuse of process and I am satisfied they should be permanently stayed.[59]

83 Accordingly, it was relevant and necessary for the Magistrate to consider the proceedings in VCAT for the purposes of identifying whether the proceedings in the Magistrates' Court sought to litigate afresh the case that had already been determined in the VCAT.

84 Consideration of the VCAT decision was necessary in order to address the respondents' arguments and was essential to the task before the Magistrate. This ground is not made out.

85 To the extent the submissions of the appellant suggest the Magistrate erred by considering external documentation, I consider that what I have said above answers that contention. No external documentation other than the VCAT decision (to the extent that this might be called external documentation) was identified by the appellant as impermissibly considered by the Magistrate.

86 Notably, the appellant did not dispute that the manner in which the Magistrate considered the VCAT decision was incorrect. Instead, it was simply the act of considering the VCAT decision to which the appellant objected. Accordingly, it is not necessary to consider the Magistrate's consideration of the VCAT proceeding further in this regard.

88 Although it is not precisely clear what the appellant alleges by this ground, it appears to be a complaint as to the Magistrate proceeding to refuse to reinstate the appellant's proceeding in reliance on the decision of the VCAT, despite the fact that decision was subject to an appeal in this Court. This does not properly allege an error of law and is not made out.

89 Grounds 4 and 5 both concern the decision in Gray and it is convenient to consider these grounds together. The two points essentially made by the appellant are that:

(a) the Magistrate erred by failing to apply Gray; and

(b) the Magistrate erred by failing to apply or refer to Gray when attention was drawn to the case by the appellant.

90 This ground is addressed by answering the following questions:

(a) Was Gray relevant to the Magistrate's decision?

(b) If so, was it critical to the Magistrate's decision in any necessary sense? Would the Magistrate's decision have changed if Gray had been considered and/or applied?

(c) In any event, did the Magistrate err by failing to address Gray in his decision after it had been raised by the appellant?

91 Gray was not relevant to the Magistrate's decision and his Honour was not obliged to address it in his reasons for decision. In any event, given the irrelevance of Gray, this would not have affected the ultimate outcome for the appellant.

92 The appellant particularly relied on the following extracts in Gray from the judgment of Brennan J:

The jurisdiction to inquire does not depend upon the fact that an irregularity has occurred or upon a finding by the Court that an irregularity has occurred. The jurisdiction to inquire depends simply on whether that jurisdiction is properly invoked. On the other hand, the jurisdiction to make an order under s. 165(3) depends on a finding that an irregularity has occurred and, in the case of orders under par. (a) or par. (b) of s. 165(3), on the forming of an opinion specified in s. 165(4). Although no order can be made under s. 165(3) unless the Court finds that an irregularity has occurred, the irregularity on which the order is made may be found as the result of the Court's own inquiry. The jurisdiction to inquire is the only jurisdiction presently asserted by the Federal Court, and we must identify the condition governing its exercise. Gray J has not concluded the inquiry and has not addressed the question whether the evidence establishes an irregularity which warrants the making of an order under s. 165(3). Prohibition is sought to restrain his Honour from exercising the jurisdiction to inquire.

...

The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Pt IX, a defect in jurisdiction appears. A defect in jurisdiction appearing on the face of the application does not require evidence to establish it nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction. The application lodged by Mr. Adamson claimed that certain irregularities had occurred, which Mr. Adamson identified as "alleged irregularities specified in this application". The jurisdiction of the Federal Court to inquire thus depends on whether any of the alleged irregularities which Mr. Adamson claimed to have occurred amounted to irregularities for the purpose of Pt IX of the Act. Nothing turns on the evidence that might be adduced in the inquiry; the jurisdiction to inquire turns solely on the terms of the application and the documents annexed thereto and on the true construction of Pt IX. Mr. Adamson's assertion that what he claims to have occurred was an irregularity is immaterial if his application reveals that it was not.[60]

93 As in the VCAT appeal proceeding, the appellant appears to consider that the emphasised statements in this extract are general statements of principle. For the reasons I have already explained, this is not the case. The decision in Gray is not relevant to the task before the Magistrate and ground 4 is not made out.

94 As to ground 5, the evidence indicates that Gray was raised by the appellant at the hearing before the Magistrate, and that he was given an opportunity to briefly describe the case to the Magistrate who was unfamiliar with it. Evidently, the Magistrate came to a conclusion that it was not relevant. For the reasons given above, this conclusion was inevitable.

95 The obligation to provide reasons for a decision, while 'normal but not a universal incident' of judicial power,[61] can be a limited duty, and it:

... is now well-established that the extent of a judge's duty to give reasons will depend upon the circumstances of the case but that reasons given will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based. In Kiama Constructions Pty. Ltd. v Davey (1996) 40 N.S.W.L.R. 639, Meagher J.A. considered that brief reasons given by the trial judge were sufficient because "the steps in his reasoning are apparent and indicate no error of law."[62]

96 When providing reasons for decision, a trier of fact is not obliged to canvass every matter raised by a party. In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd, Mahoney JA observed:

However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.

...

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard.[63]

97 For these reasons, the Magistrate was not in error in failing to refer to Gray in his reasons for decision. Ground 5 is not made out.

98 Although it did not form part of the appellant's grounds of appeal, the appellant also submitted that generally, the Magistrate incorrectly applied case law to the proceeding, and specifically erred by forming a view as to the likely outcome of the appellant's case, which failed to follow the decision in Dey v Victorian Railways Commissioners,[64] and effectively considering the appellant's proceeding 'on the merits' rather than, as was required of the Magistrate, only deciding 'whether there was anything in fact or in law that was fairly triable or arguable'.

99 As the conclusions above demonstrate, the Magistrate did not consider the appellant's proceeding on the merits or form a view as to the likely outcome. Rather, the Magistrate concluded that the identity between the matters raised in the proceeding before him and as determined by the VCAT indicated that to allow the matter to proceed would be an abuse of process.

100 Notices were sent by the Registrar in error on both 1 September 2015 and 1 October 2015. It appears accepted that these notices were sent in error. However, a separate notice on 16 September 2015 was also issued, in which the Registrar enquired as to whether there was any objection to the proceeding being struck out or if there was any request for orders or directions from the Court.[65] Although the appellant appears to have contacted the Magistrates' Court in response to the 1 September 2015 notice, it does not appear that the appellant responded to the 16 September 2015 notice.

101 The appellant asserts that on 16 September 2015 he contacted the Registrar, at which point the proceeding was listed for mention on 12 October 2015. However, this was before he received the letter also dated 16 September 2015.

102 It is not apparent that the Magistrate conceded that the proceeding was struck out in error. Rather, the Magistrate observed that the letters of 1 September 2015 and 1 October 2015 appeared to have been issued in error. The Magistrate did not find that the decision of the Registrar to strike out the proceedings on 7 October 2015 in reaction to the lack of response to the letter of 16 September 2016 was in error. Accordingly, on the evidence it appears that the appellant's assertion is based on a misunderstanding of the factual findings of the Magistrate. Accordingly, this ground must fail.

103 However, I do note that to a unrepresented litigant, the series of communications, some in error, some apparently not, from the Magistrates' Court could generate understandable confusion and it is regrettable that this occurred. However, that does not alter my conclusions regarding this ground.

104 I accept the respondents' submissions regarding this ground. A determination that a matter should proceed to a contested hearing does not preclude a determination upon application that to allow a proceeding to continue would be an abuse of process. This ground is not made out.

105 Ground 8 was not pressed at the hearing before me. The appellant appeared to concede this ground and I will not consider it any further.

106 The appellant has not established that the Magistrate erred as alleged in his various grounds of appeal and the appeal must be dismissed.

107 The appellant has failed to establish any of the errors alleged by him to have been committed by Derham AsJ or Magistrate Saines. Accordingly, I will order that each appeal be dismissed.

[1] I have referred to Mr Weber as the 'appellant' throughout these reasons, whereas the parties have referred to him as the 'applicant' in their various written materials.

[2] Weber v Deakin University [2015] VSC 703 (11 December 2015).

[3] The appellant's notices of appeal incorrectly refer to the 2005 Rules. However, nothing turns on this.

[4] In total, there are 12 respondents to the VCAT appeal proceeding and five respondents to the Magistrates' Court appeal proceeding. Although the respondents to each application differ, for simplicity I have referred to these parties collectively as 'the respondents'.

[5] Weber v Deakin University [2015] VSC 703 (11 December 2015) [13] (Derham AsJ).

[6] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16] (Phillips JA).

[7] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55-6 [28] (citations omitted).

[8] Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295 (2 August 2002) [9] (citations omitted).

[9] R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, 381-2 (citations omitted) ('Gray').

[10] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VicRp 71; [1990] VR 805.

[11] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 ('Rabel').

[12] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 ('Walton').

[13] Norman v Australian Red Cross Society (1998) 14 VAR 243, 247-50 ('Norman').

[14] Lawley v Terrace Designs Pty Ltd [2004] VCAT 1825 (16 September 2004) [11] (Walker SM).

[15] Forrester v AIMS Corporation [2004] VSC 506 (8 December 2004) [22], [28], [31] (Kaye J) ('Forrester').

[16] Towie v Victoria [2008] VSC 177 (28 May 2008) [31] (Kyrou J).

[17] Naylor v Oakley Thompson & Co Pty Ltd [2008] VCAT 2074 (7 October 2008) [42] (Ross VP).

[18] Owners Corporation No 8 PS422665R v Walton [2015] VCAT 1742 (26 October 2015).

[19] Zheng v Sunning Pty Ltd [2016] VCAT 593 (19 April 2016).

[20] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683 (28 October 2015) [12].

[22] Martin v Fasham Johnson Pty Ltd [2008] VSC 289 (4 August 2008).

[23] Ibid [29] (Kyrou J); Pong Property Developments Pty Ltd v Strangio [2005] VSC 217 (27 June 2005) [68] (Ashley J).

[24] Weber v Deakin University [2015] VSC 703 (11 December 2015) [34].

[26] Reaper v Fraser [2014] VCAT 1451 (10 November 2014).

[27] Fowler v Parks Victoria [2014] VCAT 1555 (12 December 2014).

[28] Bluestone Park Pty Ltd v Kevin Hunt Property Pty Ltd [2015] VCAT 1813 (17 November 2015).

[29] Yianni v Jemena Electricity Networks (Vic) Ltd [2014] VCAT 1618 (3 December 2014).

[30] A'Vard v Deakin University [2015] VCAT 1245 (13 August 2015).

[31] Capper v Victorian Women's Trust Ltd [2016] VCAT 317 (3 March 2016); Davies v Yarra Valley Water [2016] VCAT 655 (28 April 2016); Nicolouleas v MSC Cruises (Australia) Pty Ltd [2016] VCAT 359 (1 March 2016); Zheng v Sunning Pty Ltd [2016] VCAT 593 (19 April 2016).

[32] Schiffahrtsagentur Hamburg Middle East Line GmbH v Virtue Shipping Corporation [1981] 2 All ER 887, 896 (Robert Goff J).

[33] Weber v Deakin University [2016] VSC 147 (14 April 2016).

[35] Forrester [2004] VSC 506 (8 December 2004) [20].

[38] I note that the latter rule reference does not exist. For the appellant's benefit I have assumed that he is referring to the entirety of rule 77.03.

[39] Weber v Deakin University [2015] VSC 703 (11 December 2015) [114].

[40] Garnaut v Child Support Registrar [2004] FCA 1303 (11 October 2004) [5] (Spender J); Fitzpatrick v Keelty (No 2) [2008] FCA 742 (23 May 2008) [13] (Moore J); Wang v Dlakic [2015] NSWSC 1590 (29 October 2015) [15] (Button J); G E Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) 216.

[41] Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

[42] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 128-30 (Barwick CJ).

[43] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane and Dawson JJ).

[44] Gray [1985] HCA 67; (1985) 157 CLR 351, 380-2 (Brennan J).

[45] Walton [1993] HCA 77; (1993) 177 CLR 378, 409-11, 413-6 (Brennan J).

[46] Referring to Clarke v Union Bank of Australia Ltd [1917] HCA 19; (1917) 23 CLR 5, Jones v Stone [1894] AC 122 and Jacobs v Booth's Distillery Co (1901) 85 LT 262.

[47] He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158 (25 June 2010) [25] (Hansen AJA).

[48] Weber v Deakin University (Unreported, Magistrates' Court of Victoria, Magistrate Saines, 16 March 2016) [2].

[51] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2 (Dixon J).

[52] Brumar (Vic) Pty Ltd v Norris (2010) 28 VR 665 ('Brumar').

[53] Weber v Deakin University (Unreported, Magistrates' Court of Victoria, Magistrate Saines, 16 March 2016) [18].

[54] Brumar (2010) 28 VR 665, 690 [87].

[55] Egri v DRG Australia Ltd (1988) 19 NSWLR 600, 607 (citations omitted).

[56] Weber v Deakin University (Unreported, Magistrates' Court of Victoria, Magistrate Saines, 16 March 2016) [12].

[58] Walton [1993] HCA 77; (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ) (citations omitted).

[59] Weber v Deakin University (Unreported, Magistrates' Court of Victoria, Magistrate Saines, 16 March 2016) [22].

[60] Gray [1985] HCA 67; (1985) 157 CLR 351, 380-2 (emphasis as added by the appellant) (citations omitted).

[61] Public Service Board of NSW v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ). See also Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 (Mahoney JA).

[62] Cropp v Transport Accident Commission [1998] 3 VR 357, 376 (Charles JA) (citations omitted).

[63] Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-6 (Mahoney JA) (citations omitted). See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[64] Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

[65] Weber v Deakin University (Unreported, Magistrates' Court of Victoria, Magistrate Saines, 16 March 2016) [7].