Bahonko v Moorfields Community & Ors [2008] VSCA 6

Court of Appeal (Vic)|2008-02-05|Before: BUCHANAN, NETTLE and REDLICH JJA

NATURAL JUSTICE - Audi alteram partem - Application of fair hearing rule to determination of whether to refer to VCAT issue of appointment of guardian or administrator - Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, referred to - Guardianship and Administration Act 1986, s 66.

APPEAL - Procedure - Whether appeal from order under s 66 of the Guardianship and Administration Act 1986 governed by s 52 of the Accident Compensation Act 1985 - Keon-Cohen v Victorian WorkCover Authority (2002) 4 VR 367, distinguished - Anglo-Italian Holdings Pty Ltd v Varallo [2005] VSCA 257, considered - Accident Compensation Act 1985, s 52; County Court Act 1958, s 74.

**1 I will ask Nettle JA to deliver the first judgment.

2 This appeal is a small part of a labyrinth of proceedings instituted by the appellant in relation to injuries which she says were inflicted on her during the course of her former employment as a registered nurse, and thereafter as a result of her dismissal. The extent of the proceedings is explained in the judgment of Dodds-Streeton J in Stanislawa Bahonko v Moorfields Community and Ors.[1] As her Honour noted, to date the appellant has made several applications to this Court for leave to appeal against various interlocutory orders, several appeals to this Court from decisions of the Nurses Board of Victoria dismissing her claim for reinstatement of full nursing registration, several applications to the Federal Court, and applications to the High Court for special leave to appeal from decisions of this Court and the Federal Court. The appellant has represented herself throughout the litigation and, broadly speaking, she has not met with much success to date.

3 By writ filed in the County Court at Melbourne on 20 July 2006, the appellant instituted proceeding Cl-06-02573, in which she alleges that during the course of her employment with the first respondent, Moorfields, between about 2003 and 2004, she was subjected to ongoing harassment, bullying, exploitation and other improper practices which caused her physical and psychological injuries. She claims, inter alia, weekly payments pursuant to ss 93A, 98A, 98C, 98E, 99 and 134AB of the Accident Compensation Act 1985 and damages including damages for pain and suffering.

4 The claim came on for hearing before a judge of the County Court on 6 December 2006, and at the outset the judge set aside three subpoenas ad testificandum which the appellant had served on Dan Weekes, Linda Milne and Louise Milne-Roche of the Nurses Board of Victoria. His Honour stated that, having read the affidavit of Jamie Richard Halliday of 1 December 2006, and having heard the submissions of senior counsel in support of an application on the part of the subpoenaed witnesses to have the subpoenas set aside, he was satisfied that no necessary or relevant evidence could be adduced by any of the three subpoenaed persons. His Honour further ordered that the appellant pay the costs of the application on an indemnity basis. He said that he considered that, if the appellant had been properly advised, she would have known that there was no relevant or necessary evidence to be adduced from any of the persons subpoenaed.

5 The judge next invited the appellant to proceed with her case, which she said she was ready to do, but at that point counsel who appeared for Moorfields intervened and told the judge that the appellant had on the previous Friday, 1 December 2006, been examined by a psychiatrist at the request of Moorfields, and that the report was on its way to court from Moorfields' solicitors' offices. Counsel added that he had not had an opportunity to read the report but that, depending upon its content, 'there may be an application made before the case commences'.

6 The judge replied that he was reluctant to adopt that course, but counsel persisted. He informed the judge that one of the issues which the psychiatrist, Dr Entwisle, had been asked to consider was the appellant's capacity to conduct the proceeding, and that, depending on the content of the report, counsel may ask the judge to make an order under s 66 of the Guardianship and Administration Act 1986. Apparently that submission appealed to the judge.

7 Not surprisingly, the appellant expressed strong objection to the course which was proposed, but the judge refused to hear her. Instead he cut across her, saying that he was concerned about her mental state and that he considered that in the circumstances it was appropriate that the report be considered before anything else occurred. In effect, that was the last thing which the appellant was permitted to say that day.

8 Some time later, the report arrived and was read, and the judge then said this:**

The opinion of Dr Entwhistle (sic) is very relevant in that he states:

"2. In my view the Claimant has been unwell psychiatrically for some time. She suffers from a delusional disorder and is a vexatious litigant and is determined to pursue this matter to the bitter end, despite her various claims having been rejected at all levels. I do not believe that her employment has been a significant contributing factor and that her psychiatric condition has brought her to the attention of the managing staff. Whilst she alleges that she suffers from post-traumatic stress disorder, I do not believe that is the case.

In addition, you asked me whether I consider and advise whether the claimant is capable of conducting litigation on her own behalf as a self-represented litigant. The answer to this question is clearly no. Given her fixed delusional beliefs, she does not have a capacity to conduct litigation on her own behalf."

Obviously, I do not have any regard at this stage to Dr Entwhistle's (sic) view as to whether the plaintiff's psychiatric state may be work-related. However, I am deeply concerned by Dr Entwhistle's (sic) opinion, which is that the plaintiff is not capable of conducting this litigation on her own behalf as a self-represented litigant. So I would invite submissions from you, counsel for Moorfields, on the appropriate course.

**9 Counsel for Moorfields responded with a submission that the report of Dr Entwisle established that Ms Bahonko was under a relevant disability and that, on the basis of Dr Entwisle's report and what the judge had seen of Ms Bahonko's behaviour in the course of the proceeding, a referral to the Tribunal was not only appropriate but a necessary course.

Having regard to the provisions of s 66 of the Guardianship and Administration Act and the recent opinion of Dr Entwhistle (sic), I am satisfied that the appropriate course is to refer this matter to the VCAT pursuant to those provisions.

I should perhaps just indicate also that the court has been anxious to endeavour to expedite this matter to ensure the plaintiff had an opportunity to put her case. She has appealed from a number of rulings that I have made and I have been acutely aware of the comments made by the Court of Appeal in relation to the need to deal with this matter as expeditiously as possible. However, in circumstances that I now find myself in, namely, having such a strong opinion in relation to the plaintiff's psychiatric state provided by Dr Entwhistle (sic) a matter of days before this hearing, I am satisfied the appropriate course is not to hear this matter on its merits but to refer it to the VCAT pursuant to s 66.

11 The appellant once more sought to object, but the judge stopped her, saying:

Once again, for the benefit of the transcript, I should indicate that having regard to Dr Entwhistle's (sic) opinion, I have not given the plaintiff an opportunity to be heard on this course. The appropriate order is that I refer the issue of an appointment of a guardian or an administrator to the VCAT for its determination pursuant to s 66 of the Guardianship and Administration Act 1986.

The judge then made orders referring the issue of an appointment to VCAT and that the proceeding be struck out with a right of reinstatement.

12 This appeal is against the orders setting aside the subpoenas and referring to VCAT the question of whether a guardian or administrator ought be appointed. There is also an objection to the competency of the appeal, with which it is convenient to deal first.

**13 On 9 March 2007, Buchanan and Redlich JJA held that, contrary to submissions then advanced on behalf of the respondents, this appeal was governed by s 52 of the Accident Compensation Act 1985 and therefore that the appellant had an absolute right of appeal.[2] Counsel for the respondents now contend that, if that be so, the Court is prohibited by sub-s 52(4) from considering the appeal unless the appellant gave notice of intention to appeal within the time prescribed by sub-s 59(2) of the Act, and they submit that she did not give notice in accordance with that provision. Counsel for the respondents do not dispute that the appellant served a notice of appeal on the County Court and on each of the parties to the proceeding within the time stipulated by sub-s 59(2), but they contend that it was a notice of appeal under s 74 of the County Court Act 1958, and, basing themselves on the judgment of Callaway JA in Keon-Cohen v Victorian WorkCover Authority,[3] they argue that a notice of appeal under s 74 of the County Court Act may not be treated as a notice of intention to appeal for the purposes of s 52 of the Accident Compensation Act.

14 In my view, that argument should not be accepted in the broad terms in which it was advanced. The precise basis on which Callaway JA determined the matter in issue in Keon-Cohen was that the notice there in question was drafted in terms which declared that the appellant appealed, as opposed to having an intention to appeal, and that the notice did not specify the questions of law raised in the proceeding. As his Honour took great care to make clear, what he said was not intended to decide whether in other circumstances a document intended as a notice of appeal under s 74 of the County Court Act could satisfy the requirements of s 52(2) of the Accident Compensation Act. In his Honour's words:**

It was unnecessary to decide whether in other circumstances a document intended as a notice of appeal pursuant to s 74 of the County Court Act may satisfy the requirements of s 52(2) of the Accident Compensation Act. It is enough to say that the notice of appeal in this case does not. It gives notice that the appellant appeals, not that he intends to appeal. To that extent it is close to the appeal application referred to in s 52(3), but the condition precedent in the opening words of that sub-section is not satisfied,[4] and the notice does not specify and is not limited to a question or questions of law raised in the proceedings. It was not addressed to or served on the County Court. At most a copy was delivered to the trial judge. The appellant deliberately initiated an appeal under s 74 conformably with the stay that he then obtained pursuant to s 74(4). The document by which he did so cannot now be given effect as a notice of intention to appeal under s 52(2).[5]

**15 Contrastingly in this case, the appellant's notice of appeal was expressed in terms that the appellant intends to appeal and it did set out under the heading 'Questions of Law' all of the questions of law which were said to be the subject of appeal. As I see it, therefore, it met the requirements of s 52(2).

16 That is enough to dispose of the point, but I add that, despite s 52 of the Act, and that the order to refer the issue of appointment of a guardian or administrator to VCAT was made in a proceeding in which the appellant seeks relief under the Act, amongst other remedies, I am not persuaded that the appellant may not have a right of appeal under s 74 of the County Court Act against the order to refer to VCAT. I allow that one possible view of s 52 of the Accident Compensation Act is that it extends to all questions of law arising in a proceeding in which relief is sought under the Act, and that it amounts to an exclusive code for appeals against questions of law of that kind. But I note that in Anglo-Italian Holdings,[6] Hollingworth J was careful to remark that the proceeding with which she was concerned was limited to a claim for compensation under the Act, and that when Buchanan and Redlich JJA ruled last year that s 52 of the Act applied to this appeal, they were directing attention to only so much of the appeal as is against the judge's order to set aside the subpoenas. The question of whether s 52 of the Accident Compensation Act applies to any other aspect of appeal simply was not considered.

17 For present purposes it is unnecessary to reach a concluded view on the question. It remains to be decided on another occasion with the benefit of full argument. But I reject the objection to competency.**

**18 The law as to setting aside subpoenas is relatively clear. The Court has power under rule 42.7 and also in the inherent jurisdiction (or, in the County Court, in the implied jurisdiction) to set aside a subpoena if it amounts to an abuse of process. The circumstances in which subpoenas may constitute an abuse of process include those where a subpoena is directed to a witness who is unable to give relevant evidence.[7] As was explained in R v Baines,[8] the court has to enquire whether its process has been issued against the potential witness with the object and expectation on reasonable grounds of obtaining from him evidence which can be relevant.

19 The basis on which it was contended below that the three subpoenas were an abuse of process was that the proceedings were said to 'concern WorkCover claims arising from Ms Bahonko's previous employment at Moorfields'. Mr Halliday deposed in his affidavit of 1 December 2006 that the three witnesses sought to be subpoenaed did not have any knowledge of Ms Bahonko 'prior to the receipt by the Board of a complaint from Ms Reilly, the Director of Nursing at Moorfields Community Aged Care, on 20 May 2004, after the termination of that employment'. It appears from the terms of the judge's ruling that his Honour accepted that that was enough to establish that the subpoenas were an abuse of process.

20 With respect, I take leave to doubt that it was enough. Certainly the appellant is seeking weekly payments and other relief pursuant to the Accident Compensation Act, and, as it appears from Mr Halliday's affidavit, none of the three subpoenaed witnesses could give relevant evidence about that. Hence, for the purposes of the claims made under the Act, the subpoenas may well have been futile. But in her writ the appellant also seeks damages in respect of what she alleges were false claims made by the defendants to the Nurses Board of Victoria and for their fraudulent conduct of proceedings before the Board,[9] and in his affidavit Mr Halliday deposed that all three witnesses worked at the Nurses Board at relevant times. Ms Milne was an investigating officer, Mr Weekes was a Board member and Ms Milne-Roche was the Chief Executive Officer of the Board.

21 It may be that none of the three witnesses knows anything of the proceedings before the Board either. If so, it would be open to conclude that the subpoenas are an abuse. But there is no evidence that the witnesses lacked knowledge of the enquiry before the Board and, given the positions which they held within the Board, it does not seem improbable that they would have personal knowledge of it. Nor has it been suggested that subpoenas should be treated as an abuse of process on any basis other than the witnesses' lack of personal knowledge of the appellant's employment and injuries.

22 That said, however, I am not disposed to allow the appeal in respect of the subpoenas. On 12 December 2007, following a contested hearing, Master Lansdowne directed that, if the appellant wished to press her appeal against the order setting aside the subpoenas, the appellant would need to make application to this court for the joinder of the persons the subject of the subpoenas, such application to be made at the hearing of the appeal, and to provide in writing to the solicitors for the persons the subject of the subpoenas copies of the summons and affidavit, the master's orders and reasons, the appellant's further notice of appeal, a list of the contents of the appeal book as settled by the master, and the appellant's outline of submissions, summary and list of authorities. The appellant appealed against that direction, but we dismissed that appeal last Friday, 1 February 2008, for the reasons delivered by Buchanan JA. The appellant has not sought additional time in which to comply with the master's direction or made other efforts to have the subpoenaed parties notified of her intention to appeal. Indeed, when asked yesterday whether she wished to have further time in order to join the subpoenaed persons, she said that she did not because, as she sees it, she should not be required to join them. Consequently they have not been heard.

23 In that state of affairs I consider that, whether or not the judge was correct to set aside the subpoenas for the reasons which his Honour gave, his decision on the point should stand.**

24 I turn to the reference to VCAT. There is no dispute as to the power of the court to refer to VCAT the issue of whether a person whom the court considers may have need of a guardian or administrator ought to have such appointed. Section 66 (1) and (2) provides that:

(1) If in any civil proceedings before a Court the Court considers that a party may need to have a guardian or administrator or both appointed under this Act, the Court may refer the issue to the Tribunal for its determination.

(2) If a Court refers an issue to the Tribunal under subsection (1)-

(a) the referral is to be treated as if it were an application to the Tribunal for the making of a guardianship order or an administration order (as the case requires); and

(b) the prothonotary (in the case of a referral by the Supreme Court) or the principal registrar of the Court (in any other case) is to be taken to be the applicant.

**25 Equally, however, there can be no dispute that before a judge makes a decision to refer a person to VCAT, he or she ought ordinarily give the person the opportunity to be heard on the point. The imperative audi alteram partem, or fair hearing rule, is a fundamental principle of procedural fairness that each party be given the opportunity to contradict evidence and submissions offered by their opponent.[10] An order referring the issue of appointment of a guardian or administrator to VCAT may have a profound effect on the interests of a litigant, regardless of whether VCAT appoints a guardian or administrator. Consequently, the litigant is ordinarily entitled to be heard.

26 Of course the fair hearing rule is flexible to the extent that it operates in different ways in different contexts.[11] It may also yield to the need for urgent action in cases which are extreme.[12] There may be cases, too, where the psychological condition of a litigant is so acute as to make it pointless to afford the litigant the opportunity to be heard. For example, if a litigant were so affected as apparently to be incapable of rational speech or comprehension, a judge would be entitled to act without listening to what the litigant had to say. But in most cases a person will have something rational to say and may wish also to adduce evidence as to whether their condition warrants a reference, and that was so in this case. It appears from the transcript that the appellant comprehended the significance of what was proposed by the order for reference to VCAT, and that she was capable of rational objection, and that she sought to object.

27 In my view, the judge should have listened to what she wanted to say. Moreover, since it is incumbent on a judge to provide a self-represented litigant with the information necessary to enable him or her to have a fair hearing,[13] his Honour should also have told her that she was permitted to call evidence on the matter if she wished to do so, and given her an opportunity to get the evidence organised if that is what she wanted to do. He should also have disclosed to her what it was about his observations of her that inclined him to the view that the matter should be referred to VCAT, and thus given her an opportunity to respond to his perceptions.[14] I consider that his Honour's failure to do those things was a plain breach of natural justice.

28 No doubt the judge was faced with a difficult task. I dare say that his Honour may have found the appellant's behaviour to be both irritating and unpredictable. In this Court she has on occasion demonstrated a propensity to raise her voice, and repeat herself, and at times to speak most discourteously to her opponents and the Bench. It seems from the transcript that she behaved in a similar fashion before the judge below. But, unfortunately, stridency and discourtesy are no longer especially unusual amongst self-represented litigants, and without more they are seldom a sufficient reason for a judge to refuse to listen.

29 It is also to be acknowledged that the judge was especially conscious of the need referred to in this Court to expedite the proceeding and therefore to avoid delay. That too may help to explain why his Honour was prepared to proceed on the basis of Dr Entwisle's report without affording the appellant an opportunity to rebut it. But plainly, no matter what the need for expedition, the requirements of the fair hearing rule must still be complied with.

30 The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome.[15] In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would 'inevitably result in the making of the same order as that made by the primary judge at the first trial'.[16] Such is the stringency of the test that there are really only two situations in which relief is likely to be refused. As Redlich JA explained in Ucar[17]:**

[Relief] will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.[18]

31 In this case, I am not satisfied that the judge's decision to refuse the appellant a chance to be heard could not have made a difference. Despite her lack of success in persuading the judge up to the point of the application, it is conceivable that she may have been able to say something to persuade his Honour not to refer the issue and, if given time, that she may have been able to obtain a second opinion in order to throw doubt on Dr Entwisle's conclusion. As matters stand, she has been deprived of the opportunity to be heard and to adduce such expert and other evidence on the matter as she may be advised. It would be speculating to attempt to assess what the effects of it might have been.

Scope of s 112

1"> **32 That leaves two matters to be considered. The first concerns the propriety of Moorfields' actions in requesting Dr Entwisle to express an opinion as to whether the appellant was capable of conducting the litigation on her own behalf. The second goes to the orders which are to be made.

33 The appellant was examined by Dr Entwisle at the instance of Moorfields pursuant to s 112 of the Accident Compensation Act. That section enables the Authority or a self-insurer to require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner, provided and paid for by the Authority or self-insurer. The purpose of the section is to provide the Authority or self-insurer with an expert medical assessment of the condition which is the subject of claim for compensation.

34 Counsel for the respondents submitted that, although that is the purpose of the section, there is nothing improper about the Authority or a self-insurer using the section to obtain an opinion as to whether a claimant is capable of conducting a claim without the appointment of a guardian or administrator. Counsel argued that the only limitation was that the section could not be used solely for that purpose. So, in counsel's submission, provided a claimant is being examined by a medical practitioner in order to assess the extent of the claimant's injuries and the degree to which they are causally related to employment, there is nothing untoward about the Authority or self-insurer requesting the relevant expert at the same time to express an opinion as to whether the claimant is capable of conducting his or her claim.

35 I reject that submission. The purpose of the section is to enable the Authority and self-insurers to obtain expert medical advice as to the nature and extent of a claimant's injuries and their relationship to employment. It is not and should not be used for any other purpose, and in particular it should not be used for obtaining an opinion as to whether a claimant is psychologically capable of conducting his or her claim, unless the claimant consents to that course. If a claimant agrees to being examined for that purpose, well and good. But s 112 would need to be drafted in far more precise terms than it is now before I would be prepared to construe it as enabling a claimant's capacity to be assessed for the purposes of s 66 without the claimant's informed consent.

36 So to say is not intended as a criticism of Dr Entwisle. It has not been suggested that he has done anything wrong. He was requested by solicitors to make the assessment and he did what he was requested to do without any reason to suspect that he should not have been asked to do it. Equally, I do not suggest that the judge was at fault in taking the report into account. It was obtained in circumstances which should not have occurred but, given that these are civil proceedings, I do not consider that the course which was adopted was so improper or unfair as to render the report inadmissible.[19] Nevertheless, in future, I would hope not to see any repetition of what has here occurred.**

37 That brings me to the question of the orders to be made. If the judge's order were to stand, the appellant would still have the opportunity before VCAT to put submissions and to call expert and other evidence in order to rebut the suggestion that she is in need of an administrator or guardian. In turn, VCAT would have to consider the matter afresh without reference to any view to which the judge may be thought to have come. To that extent it might seem that the denial of natural justice would be redressed. But in my view that is not a sufficient reason to deny the appellant a right to be heard or to call evidence on the question of whether the matter should be referred to VCAT. It is not appropriate to view the judge and VCAT as engaged in one decision-making process.[20] Their functions and responsibilities are separate and distinct.[21] The function of the judge is to decide whether the issue of appointment of a guardian or administrator should be referred to VCAT, and the function of VCAT is to decide whether a guardian or administrator should be appointed. No matter, therefore, what the decision of VCAT, it cannot redress the fact that the judge made a decision to refer without hearing the litigant.[22] The effects of the reference are so significant that the appellant is entitled to a fair

hearing as to whether the issue should be referred,[23] and that means that the proper course is for a judge to decide the question of reference de novo.[24]

38 In that event, it would be up to the respondents whether they make a further application to refer to VCAT the issue of whether a guardian or administrator is to be appointed or simply allow the matter to proceed to trial as it would have done were it not for the previous application. Nothing which I have said is intended to preclude a further application for reference, provided it is made on a proper basis and material, and that the appellant is given an opportunity to be heard and to call relevant evidence as she may be advised. Equally, nothing which I have said is intended to bear upon the capacity of a judge to act of his or her own motion to refer the issue of guardian or administrator to VCAT, provided the rules of natural justice are observed.

**39 In the result, I would allow the appeal against the order referring the issue to VCAT, set aside that order and remit the proceeding to the County Court for hearing before another judge.

Paragraphs 3 and 4 of the orders made by Judge Coish on 6 December 2006 are set aside.
The proceeding is remitted to the County Court to be heard by another judge.

[2] Stanislawa Bahonko v Moorfields & Ors, Unreported, VSCA, 9 March 2007, [3].

[3] (2002) 4 VR 367 (in which Buchanan and Chernov JJA agreed).

[4] A person may lodge such an application if the person has served a notice of intention to appeal under subs (2).

[5] (2002) 4 VR 367, 371 [13], some footnotes omitted.

[6] Anglo-Italian Holdings Pty Ltd v Varallo [2005] VSCA 257 [10].

[7] R v Baines [1909] KB 258, 261 (Bingham J); Behrooz v Secretary, Department of Immigration and Multicultural Affairs and Ors [2004] HCA 36; (2004) 219 CLR 486, 493 (Gleeson CJ).

[10] Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55, 67; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145_; Kioa v West_ [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 121[101] (McHugh J).

[11] National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 307-8 and 311-312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584-5 (Mason J).

[12] Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234, 241; Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed 2004), 436-7.

[13] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 546 (Gibbs CJ); R v White & Piggin [2003] VSCA 174; (2003) 7 VR 442, 454_; R v Kerbatieh_ [2005] VSCA 194; (2005) 155 A Crim R 367.

[14] Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [52].

[15] Stead v State Government Insurance Commission [1986] HCA 54; (1976) 161 CLR 141, 145; Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 32, 122[104] (McHugh J); Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [24] and [85]-[90] (Redlich JA).

[16] Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [24].

[19] Heydon, Cross on Evidence, Aust ed, [27,300]; ITC Film Distributors v Video Exchange Ltd [1982] Ch 431, 440-441; cf R v Hassan [2004] VSC 85, esp [32]-[35] (Redlich J).

[20] See and compare South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 (Mason CJ).

[21] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 579.

[22] Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 431 (Brennan J), 437 (Dawson J) and 473 (McHugh J); Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 162-163 (Brennan CJ and Gaudron and Gummow JJ).

[23] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598; cf Calvin v Carr [1979] UKPC 1; [1980] AC 574, 592 (PC) (Lord Wilberforce).

[24] Leary v National Union of Vehicle Builders [1971] Ch 34,48 (Megarry J).

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