Applicant v Respondent

(a) affidavit of Ribesh Shrestha dated 11 July 2023 which appears at pages 6 to 7 of Exhibit SGM-5 to the affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023;

(b) document titled 'Application to have dismissal of application for leave set aside' dated 11 July 2023 and appearing at pages 8 to 10 of Exhibit SGM-5 to the affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023;

(c) letter from Ribesh Shrestha addressed to the Supreme Court dated 4 October 2023 and appearing at page 5 of Exhibit SGM-7 to the affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023; and

(d) affidavit of Ribesh Shrestha dated 19 October 2023 and appearing at pages 6 to 12 of Exhibit SGM-7 to the affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023

APPENDIX: Hearing in the absence of Mr Shrestha

1 The hearing of the application for leave to appeal proceeded on 15 March 2024 in the absence of Mr Shrestha, after an adjournment of the first hearing on 16 November 2023 at the request of Mr Shrestha, with the purpose of resuming the hearing at a date on which he could appear. On that second date he did not appear but I proceeded to hear the application. I address here my reasons for determining that it was appropriate to hear the matter in the absence of the respondent, as contemplated by r 49.02 of the Supreme Court (General Civil Procedure) Rules 2015.

2 In the course of making procedural directions, Judicial Registrar Keith made orders for substituted service of the application and associated documents, as the CBA had been unable to effect service on Mr Shrestha, and Mr Krepp had advised the Court by email that Mr Shrestha was temporarily in Nepal without internet access.[88] Substituted service of the documents to Mr Shrestha's address in Nepal was effected on 27 June 2023.[89] Judicial Registrar Keith listed the application for leave, and the appeal if leave was granted, for 16 November 2023.[90]

3 Prior to the hearing, on 21 July 2023, the CBA had received mail by post from Mr Shrestha. The letter enclosed an 'application to have dismissal of application for leave set aside' and an affidavit dated 11 July 2023.[91] Both documents were not filed with the Court. Mr Shrestha's application sought that 'the Appellant's application for leave be set aside'. His affidavit stated, among other matters, that he opposed the application for leave to appeal and requested that it be struck out, that he was away from Australia and unable to defend his position nor engage legal representation, and unable to return to Australia due to financial reasons and lack of a visa.[92] CBA filed evidence, by way of affidavit, of having served further documents in the proceeding on Mr Shrestha at his Nepali address by international courier.[93]

4 At the hearing on 16 November 2023 no appearance was made on Mr Shrestha's behalf. The CBA referred to the correspondence received from Mr Shrestha, and noted that he had not sought the adjournment of the matter. However, shortly after the commencement of the hearing, counsel for CBA advised that his instructing solicitors had just received correspondence from Mr Shrestha in their mail room.[94] Enquiries were made by my Associates at the Court which revealed that the correspondence had also been received by the Court registry in the course of the morning, but not filed. The letter was dated 4 October 2023 and addressed to the Court:

Attention: Judicial Registrar Keith

Dear Sir

Re: Court Matter S ECI 2023 01695

I refer to the above and my correspondence sent to you dated 11 July 2023.

It is noted my efforts to lodge and file documents at the Court, failed to be established.

I reiterate that I am an innocent victim in these proceedings and suffering collateral damage through institutional abuse from the Appellant. My name before the Court may and likely have impacts on my Australian application for a student Visa.

Additionally, I am receiving constant delivery of documents from Bank's Lawyers via international couriers and documents are not easily translated into simply English terms and expressions. CBA is capitalising on opportunism with me outside of Australia and I unable to afford costly Legal representation.

I want to return to Australia to oppose these proceedings. Also protect my family and return to Australia continue with my studies.

I request this matter is rescheduled for Hearing not before 15 March 2024 and or shortly thereafter.

Further I enclose sealing and filing of my Application for Dismissal and Affidavit dated 11 July 2023 plus my current Affidavit and Exhibit "A".

For your information and attention.

Thanking you.[95]

5 The letter was accompanied by an unfiled affidavit dated 19 October 2023 stating among other things 'I seek a Court adjournment to 15 March 2024 or soon thereafter for the hearing of this matter', along with copies of Mr Shrestha's previous unfiled affidavit and unfiled application for dismissal.[96] The letter had been sent in an envelope bearing Australian stamps, and showing a postmark of 10 November 2023. I directed that the letter be tendered by the CBA by way of affidavit to complete the Court record.[97]

6 The CBA did not oppose an adjournment until on or after 15 March 2024. I made orders adjourning the proceeding to that date, and for CBA to serve on Mr Shrestha at the Nepali address documents including the transcript of the hearing on 16 November 2023, and to send an SMS message to his Nepali phone number stating that the Court had adjourned the hearing to 15 March 2024.[98] Prior to the hearing, CBA was also directed to provide Mr Shrestha, by SMS, the Court's Zoom link to attend the hearing virtually if we was unable to attend in person.[99]

7 Evidence was again provided of CBA's compliance with the orders for service of the documents on Mr Shrestha and notice of the hearing date by text message.[100]

8 No appearance was made on Mr Shrestha's behalf at the hearing on 15 March 2024. He was called on out of Court but did not appear. Shortly after the commencement of the hearing, CBA's counsel advised that his instructing solicitors had received correspondence that morning in their mail room.[101] The undated letter stated:

Attention: Honourable Justice Harris

Dear Sir,

Re Court Matter S ECI 2023 01695

I refer to the previous correspondence from me to the Court dated 11 July 2023 and 4 October 2023 and more particularly a hearing con ducted on 17 November 2023.

I requested at the hearing that this matter be adjourned to 15 March 2024.

The purpose for an adjournment was to allow me to apply for an Australian visa to return to Australia and appear at any forward hearings. However, I have not been able to obtain the visa. I am enroute to visit the Australian Embassy in New Delhi in India to make an application again, now in person. I am extremely paranoid regarding this matter due to my proceedings with the Supreme Court in Melbourne. I believe my application would be in jeopardy and tainted and also I think this is extremely unfair as I am the victim in this matter.

I want to protect my position and therefore I strongly oppose the Amended Notice of Appeal as Commonwealth Bank of Australia and their approach is largely not aligned to their Model Litigant Principles; see copy documentation attached. Additionally, their initial Notice of Appeal was outside time limitations.

I request Amended Notice of Appeal be dismissed.

For your information and attention.

Thanking you.

Ribesh Shrestha[102]

9 The letter then referred to Mr Shrestha's Nepali address. It was in an Australia Post express post envelope. It enclosed a copy of CBA's model litigant principles, highlighting the words, 'Acting fairly towards claimants who lack the resources to litigate a legitimate claim.' After the hearing had concluded I ascertained that a copy of the same documents had been sent to the Court addressed to me personally, and was received in the Court's mailroom during the hearing. On Monday 18 March 2024 a copy of the same letter was received by the Court registry. Both letters were sent in Australia Post express post envelopes.

10 CBA opposed any adjournment of the hearing, and opposed any dismissal of the Amended Notice of the Appeal on the basis of the application being out of time.

11 Rule 49.02 of the Rules provides that if, when the trial of a proceeding is called on, any party is absent, the Court may take steps including, under r 49.02(1)(b), to proceed with the trial generally, or so far as concerns any claim for relied in the proceeding.

12 I ruled that I would proceed to hear the matter.[103] My reasons for determining that it was appropriate to proceed were as follows:

(a) Insofar as Mr Shrestha's letter requested an adjournment, it was an insufficiently specific request. His statement that he was unable to attend the hearing because he did not have a visa and was still in the course of making an application again for a visa indicated his complete uncertainty as to when he could be in Australia. No other mode of appearance was suggested by Mr Shrestha.

(b) There was no explanation for the very late communication by Mr Shrestha with the Court and the CBA as respondent. The undated communication, having been sent by an Australia Post express post envelope, was evidently sent from within Australia by an unidentified person shortly before the hearing. It was unsatisfactory that this notice had been given so late, in the same way as had occurred on the first occasion the when matter was listed in 16 November 2023. I was satisfied that the 15 March 2024 hearing had been brought to Mr Shrestha's attention by service of documents to his Nepali address and through SMS message to his Nepali phone number and that there was no good reason for not having made either a formal application for an adjournment or for dismissal of the application well in advance of the hearing.

(c) I was also satisfied by the evidence tendered by the CBA[104] that Mr Shrestha had received by SMS message to his Nepali phone number the information including a Zoom link for him to appear remotely. There was no indication that Mr Shrestha had attempted to access that Zoom link.

(d) Mr Shrestha had not raised any substantive objection to the proceeding other than that he considered it contrary to model litigant principles that the CBA was obliged to follow. I did not consider there was any substance to that objection, as the CBA had, in the procedural steps leading to the proceeding being heard, including in relation to the adjournment of the hearing from 16 November 2023 to 15 March 2024, acted fairly and reasonably towards Mr Shrestha, acknowledging that the matter involved an application for possession of the premises of which he was the renter.[105]

13 In the circumstances, I was satisfied that it was appropriate to proceed to hear the application in the absence of Mr Shrestha. In the course of the hearing senior counsel for CBA acknowledged that the application was proceeding in practice without a contradictor (although Mr Shrestha was a respondent and on notice of the application and the basis for it). He submitted that the CBA had attempted to identify the possible arguments against the relief that was sought and provide the Court with material that I would need to consider them,[106] and I was satisfied that he had in fact done so.

[1] Affidavit of Robert Charles Ralston sworn 2 May 2023 (Ralston Affidavit), [6]; Exhibit RCR-1, 30-33; see also Transcript of Tribunal hearing 03/03/23, T4.06-.29.

[2] Ralson Affidavit, Exhibit RCR-1, 51 (Deed of Appointment for Mortgagee, recitals).

[3] Ralston Affidavit, [8]-[9]; Exhibit RCR-1, 57-58; See also Transcript of the Tribunal hearing 03/03/23, T8.25-.31.

[4] Ralson Affidavit, Exhibit RCR-1, 51 (Deed of Appointment for Mortgagee, recitals).

[5] Ralston Affidavit, [10]; Exhibit RCR-1, 61-65.

[6] Ralston Affidavit, [12]; Exhibit RCR-1, 66-75.

[7] Commonwealth Bank v Shrestha [2023] VCAT 331 (Tribunal Reasons), [20], [26].

[8] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ); Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 331, 332 [18] (French CJ, Gummow and Bell JJ).

[9] Commissioner of State Revenue v Arrigo [2016] VSCA 339, [46] (Ashley, Santamaria and McLeish JJA).

[10] Orders of Keith JR dated 26 July 2023.

[11] Section 72(1) of the VCAT Act provides that an applicant must serve a copy of the application on each other party, any other person entitled to notice of the application under the Act, the enabling enactment or the rules, and on any person that the Tribunal directs be given notice of the proceeding.

[12] Tribunal Reasons, [11]-[13], [18].

[17] Applicant's Outline of Submissions, 8 September 2023, [67]-[68]; Transcript 15/03/24, T64.12-.24, T98.02-.30.

[18] Applicant's Outline of Submissions, 8 September 2023, [60] (emphasis added).

[19] Applicant's Outline of Submissions, 8 September 2023, [62](a).

[20] Applicant's Outline of Submissions, 8 September 2023, [63].

[21] Applicant's Outline of Submissions, 8 September 2023, [66].

[22] Affidavit of Sophie Griffiths-Mark affirmed 1 May 2023 (First Griffiths-Mark Affidavit) (Exhibit SGM-1: Engage Victoria, 'Laying the Groundwork - Consultation Paper', Fairer Safer Housing (June 2015); Engage Victoria, 'Heading for Home Residential Tenancies Act Review', Fairer Safer Housing (February 2017); Tribunal Submission to the Director of Consumer Affairs on the Residential Tenancies Act Review; Screenshot of Engage Victoria website displaying Reform 82 to the Fairer Safer Housing review.

[23] Section 2(2) of the Amendment Act provided for a commencement date of 1 July 2020. However, that date was extended to 1 January 2021 by s 50 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), and further extended to 27 April 2021 by s 11 of the COVID-19 Commercial and Residential Tenancies Legislation Amendment (Extension) Act 2020 (Vic). The date proclaimed for the commencement of the relevant provisions was 29 March 2021: Victoria, Victoria Government Gazette, No S42, 21 January 2021.

[24] Transcript 15/03/2024, T85.05-.16; See Interpretation of Legislation Act 1984 (Vic), s 35 (1)(b)(iii), (iv).

[25] Applicant's Outline of Submissions, 8 September 2023, [56].

[26] First Griffiths-Marks Affidavit, [6(a)].

[27] First Griffiths-Marks Affidavit, [6]-[7].

[28] First Griffiths-Marks Affidavit, Exhibit SGM-1, 208 (Engage Victoria, 'Heading For Home Residential Tenancies Act Review', Fairer Safer Housing (February 2017) 208).

[29] First Griffiths-Marks Affidavit, [13]; Exhibit SGM-1, 298 (Tribunal Submission to the Director of Consumer Affairs on the Residential Tenancies Act Review, 8).

[30] First Griffiths-Marks Affidavit, [6(a)], [14]-[15]; Exhibit SGM-1, 305.

[31] First Griffiths-Marks Affidavit, [15]; Exhibit SGM-1, 305.

[32] Explanatory Memorandum, Residential Tenancies Amendment Bill 2018, 220-221 (re clause 242 of the Bill).

[33] Applicant's Outline of Submissions, 8 September 2023, [45]-[48], [56]; Transcript 15/03/24, T77.06-.27; T82.24-82.05, T88.13-.22.

[35] Interpretation of Legislation Act 1984 (Vic), s 44(1).

[36] Public Holidays Act 1993 (Vic), s 6(h).

[37] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 388-389, [23]-[24] (French CJ and Hayne J).

[38] Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642, 649 [5] (French CJ and Bell J), 655-656 [20] (Hayne J); Interpretation of Legislation Act 1984 (Vic) s 35(a).

[39] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[40] Heydon's Case [1584] EngR 9; (1534) 3 Co Rep 7a at 7b; 76 ER 637, 638; Alcan (NT) Alumina [2009] HCA 41; (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[41] [2010] HCA 23; (2010) 241 CLR 252, 264-265 [31] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (emphasis in the quotation of the case by the plurality in Saeed); see also Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 388-389, [25] (French CJ and Hayne J).

[44] Macquarie Dictionary (online at 6 May 2024) 'any' (defs 1-2).

[45] Section 486A(1) provides the power for the Director to approve documentary evidence supporting the reason for giving a notice to vacate in the identified sections, and s 486(2) provides that the approval of documentary evidence must be published in the Government Gazette and on the website maintained by the Director.

[46] See, with respect to an entitlement to possession based on a mortgage provision (in a Memorandum of Common Provisions) and s 76, Tajon Pty Ltd v Arvanitis [2017] VSC 130, [20] (Derham AsJ). In that case, Derham As J also concluded that because any tenancy which existed in that case had arisen after the relevant mortgages were created, the effect of s 87C of the Transfer of Land Act 1958 (Vic) which provides that a lease is not binding as against a mortgagee unless the mortgagee has consented to the creation of the lease was that no protection was conferred on the tenant by s 268 or other provisions of the RTA. See also Balanced Securities Limited v Bianco & Ors [2010] VSC 162, [92] (J Forrest J), cited by Derham AsJ in support of his conclusion. In MA 46 Pty Ltd v Paglia Properties Pty Ltd (2020) 64 VR 88, Delany J also concluded that the RTA, as in force at the time of his judgment in 2020, would not apply to a tenancy agreement entered into after a mortgage where the mortgagee had not consented in writing to the creation of the tenancy: see [80]-[90]. It is unnecessary in this case to consider if the same analysis would apply to the RTA as amended, including with the introduction of s 91ZZK(4), as no point was taken that the RTA did not apply to the residential rental agreement the subject of this proceeding.

[47] First Griffiths-Mark Affidavit, [9]; Exhibit SGM-1, 254 (Engage Victoria, 'Heading For Home Residential Tenancies Act Review', Fairer Safer Housing (February 2017) 208).

[48] First Griffiths-Mark Affidavit, [9]; Exhibit SGM-1, 254 (Engage Victoria, 'Heading For Home Residential Tenancies Act Review', Fairer Safer Housing (February 2017) 208).

[49] Explanatory Memorandum, Residential Tenancies Amendment Bill 2018, 221.

[53] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, [19] (Warren CJ); Kracke v Mental Health Review Board [2009] VCAT 646 [857] (Bell P); see also VCAT Act s 98(1)(d).

[54] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 432, [34] (Warren CJ, Maxwell P, Osborn AJA).

[55] Applicant's Supplementary Outline of Submissions dated 7 February 2024, [7], [16], citing Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518, 522 [7] (Gleeson CJ).

[56] Applicant's Supplementary Outline of Submissions dated 7 February 2024, [9]-[12], [17], citing Curry v Melton Shire Council [2000] VSC 352; (2000) 111 LGERA 30, [31] (Balmford J); Moules v Transport Accident Commission (2021) 97 MVR 34, [156] (O'Meara J); DEK Rendering v Gaffy [2017] VSC 53, [58] (J Forrest J).

[57] Ralston Affidavit, [6]; Exhibit RCR-1, 32 (Registered Mortgage of Land AG244161P).

[58] AA966 held by the Victorian Registrar of Titles: Ralston Affidavit, [6], Exhibit RCR-1, 34-49.

[60] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

[61] Transcript 15/03/24, T108.15-.18, T109.09-.13.

[62] Affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023 (Fifth Griffiths-Mark Affidavit), [5]; Exhibit SGM-5, 5-10; Transcript 15/03/24, T57.01-.10, T63.23-.29.

[63] Orders of Harris J dated 17 November 2023, order 2.

[64] Affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023 (Seventh Griffiths-Mark Affidavit), Exhibit SGM-7, 5-12.

[65] Transcript 15/03/24, T62.25-63.06, T63.23-.29.

[66] Affidavit of Ribesh Shrestha, 11 July 2023, [13]; Affidavit of Ribesh Shrestha 19 October 2023, [14].

[67] 'Application' dated 11 July 2023, [6]. The 4 October 2023 letter and 19 October 2023 affidavit refer to Mr Shrestha wanting to return to his family in Australia.

[70] R v Silverstein [2020] VSC 724, [91] (Kyrou, Kaye and McLeish JJA); Transcript 15/03/24, T111.13-.24.

[72] After the principles discussed in the judgment in Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[73] [2008] HCA 36; (2008) 235 CLR 125.

[74] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 155 [97] (Hayne, Heydon and Crennan JJ).

[75] Hearne v Street, 159-160 [107] (Hayne, Heydon and Crennan JJ).

[76] Williams v TT-Line [2021] VSC 150, [34]-[35] (Digby J).

[77] (1992) 38 FCR 217.

[78] (1992) 38 FCR 217, 225, cited with approval in Williams v TT-Line [2021] VSC 150, [36] (Digby J) and Re Clarinda Pty Ltd (in liq) [2023] VSC 109, [18] (Connock J).

[79] Esso Australia Resource Ltd v Plowman (1995) 183 CLR 10, 32-33 (Mason CJ); Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95, 112-113 [53]-[54] (Jagot, Markovic and Thawley JJ); cf British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571, 584 [30]-[31] (Phillips, Batt and Buchanan JJA) where the Court regarded Mason CJ's observations as meaning that a document could, after tender in evidence, be used by a stranger to litigation, but would not affect the implied undertaking as between the parties to the litigation. Their Honours acknowledged that witness statements prepared for the purposes of the litigation tendered into evidence may be in a different position, where the use in evidence would have the result that the undertaking is spent: [2003] VSCA 43; (2003) 8 VR 571, 591 [43].

[80] British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571, [20]-[34].

[81] Transcript 15/03/24, T57.01-.10, T63.23-.29.

[82] Orders of Keith JR dated 26 July 2023, orders 4 and 7.

[83] Orders of Harris J dated 17 November 2023, order 2.

[84] Transcript 15/03/24, T62.25-63.06, T63.23-.29.

[85] See paragraph [9] of Appendix A below.

[86] See paragraph 15 of the 11 July Affidavit.

[87] R v Silverstein [2020] VSC 724, [91] (Kyrou, Kaye and McLeish JJA).

[88] The orders of Keith JR made 6 June 2023 refer in 'Other Matters' at paragraphs [B] to [D] to Mr Krepp's communication to the Court and the CBA's inability to effect service, and its intention to apply for substituted service. An application for substituted service was made by summons filed 20 June 2023, supported by an affidavit of Jackson Clyde Macaulay affirmed 20 June 2023. Mr Macaulay gave evidence of attempts to serve the Notice of Appeal, accompanying summons and affidavits on Mr Shrestha through post to the Property; enquiries made of Mr Krepp regarding Mr Shrestha's contact details resulting in the provision of an address and Mr Shrestha's Nepali phone number; delivery of the documents by international courier to that Nepali address, confirmed by a proof of delivery signed by 'Ribesh Shrestha' dated 18 June 2023; and a text message to Mr Shrestha's Nepali phone number on 19 June 2023 advising of a hearing set down for 21 June 2023. By orders made 21 June 2023, Keith JR made orders for substituted service by posting court documents to the Nepali address, and sending an SMS message to the Nepali phone number.

[89] See Affidavit of Sophia Griffiths-Mark affirmed 10 July 2023 giving evidence of service of the Notice of Appeal, accompanying summons and affidavits on Mr Shrestha via international courier, confirmed by a proof of delivery signed by 'Ribesh Shrestha' dated 27 June 2023. Judicial Registrar Keith noted the compliance with the relevance orders and that the respondent was taken to have been served in his orders of 26 July 2023: See 'Other Matters' at [A].

[90] Orders of Keith JR made 26 July 2023.

[91] Fifth Griffiths-Mark Affidavit, [5]; Exhibit SGM-5, 6-10.

[92] Fifth Griffiths-Mark Affidavit, Exhibit SGM-5, 6-7.

[93] Affidavit of Sophia Griffiths-Mark affirmed 16 November 2023 which referred to the service of the Affidavits of Ms Griffiths-Mark dated 19 July 2023 and 4 August 2023, CBA's submissions and list of authorities dated 8 September 2023, notice of trial filed 4 October 2023, orders of Keith JR dated 26 July 2023, the court book and related correspondence from CBA's instructing solicitors. In respect of each parcel sent to Mr Shrestha evidence was given of proof of delivery by DHL, signed by Mr Shrestha, except for those parcels containing the court book, list of authorities and a copy of Keith JR's orders.

[94] Transcript 16/11/2013 T5.23-.28; Seventh Griffiths-Mark Affidavit**,** [5]-[7].

[95] Seventh Griffiths-Mark Affidavit, Exhibit SGM-7, 5.

[96] Seventh Griffiths-Mark Affidavit, Exhibit SGM-7, 6-12.

[97] Transcript 16/11/23, T37.29-38.06. This was done by way of the Seventh Griffiths-Mark Affidavit.

[98] Orders of 17 November 2023, order 4.

[99] Affidavit of Sophia Griffiths-Mark affirmed 13 March 2024 (Tenth Griffiths-Mark Affidavit), [5]-[6]; Exhibit SGM-10, 1-3.

[100] Affidavit of Sophia Griffiths-Mark affirmed 9 February 2024 (sending of the SMS message to the Nepali phone number and service by international courier of the documents to the Nepali address); Affidavit of Sophia Griffiths-Mark affirmed 7 March 2024 (exhibiting the international courier tracking page showing that the package had been delivered to the address in Nepal); Tenth Griffiths-Mark Affidavit (stating that the required information about the Zoom link for the hearing had been sent by SMS message to the Nepali phone number on 13 March 2024 and exhibiting a copy of the message).

[101] Transcript 15/03/24, T45.03-.07, T48.06-.23.

[102] The letter was read into Transcript 15/03/24, T49.27-50.21. It was also marked for identification MFI-1.

[103] Transcript 15/03/24, T54.12-55.13.

[105] See also Transcript 16/11/23, T6.26-.30.

[106] Transcript 15/03/24, T60.27-61.10.