Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Limited & Anor [2015] VSCA 59

**1 The proceeding the subject of this appeal was originally commenced in the Federal Court of Australia, more than 12 years' ago, in December 2002. It concerned claims by Bodycorp Repairers Pty Ltd, the appellant, for breach of contract and the alleged inducing of breaches of contracts. The facts underlying the proceeding occurred in the 1990s. In the proceeding as originally formulated there were eight defendants, including the present respondents, AAMI and Mr Barry Martin. The respondents were respectively the fourth and sixth defendants.

2 In October 2005, the proceeding was transferred to the Supreme Court of Victoria. More than 10 years after the proceeding was first commenced, the matter came on for trial. The trial of the proceeding occupied some 15 sitting days in May 2013. On 4 September 2013, the trial judge gave reasons for judgment rejecting the appellant's claims. On 18 October 2013, the judge made orders dismissing the appellant's claims against, amongst others, the respondents. In addition to dismissing the claims against the respondents, the judge dismissed the appellant's claims against the party who was then the first defendant, Mr Michael Maisano.

3 By a notice of appeal dated 18 September 2013, the appellant appealed against the trial judge's dismissal of the appellant's claims. However, the notice of appeal was addressed only to the respondents. The notice of appeal contains three grounds of appeal, although multiple alleged errors are particularised in respect of these grounds.

4 Eventually, and after the taking of a number of procedural steps which it is not necessary to detail here, the appeal was fixed for hearing on 20 November 2014. However, on 19 November 2014, the appellant terminated the services of its then solicitors and counsel (although exactly who terminated the retainers was said this morning to be a matter of debate).

5 On the morning of the day on which the appeal was fixed for hearing, the sole director of the appellant, Mr Murdaca, sought leave to appear on the appellant's behalf, and made an oral application for the adjournment of the appeal to enable the appellant to instruct new lawyers. This application was opposed by the respondents. The respondents pointed to the very long delays that had already occurred, and provided the Court with a list of the lawyers whom the appellant has had acting for it over the years this litigation has been on foot. According to the respondents' list, the solicitors acting for the appellant up until the day before the hearing were the appellant's ninth firm.

6 The Court granted an adjournment on terms. In doing so the Court made plain that in light of the history of this matter, it would be highly unlikely that a further adjournment would be granted by the Court if the same set of circumstances were put to the Court on the next occasion.

7 The matter was subsequently referred to the Judicial Registrar for directions. Directions were made, and the appeal was refixed for hearing on 22 April next.

8 Last Thursday (9 April 2015) the Court received an application filed by the appellant seeking:**

(a) leave to add Maisano as an additional respondent to the appeal;

(b) leave to file and serve an amended notice of appeal;

(c) leave to file and serve an amended written case;[1]

(d) leave to file further evidence in support of the appeal;

(e) leave to file an amended appeal book;

(f) an order that the file of the appellant's previous solicitors[2] concerning the proceeding be released to the appellant; and

(g) orders that the costs of the hearing on 20 November 2014 and the costs of the present application be paid by the appellant's previous solicitors and a barrister retained by those solicitors.[3]

**9 The appellant's application is supported by a somewhat scanty affidavit sworn by Mr Murdaca on 9 April. This affidavit exhibits a letter to the appellant's former solicitors seeking provision of their file; a letter from the former solicitors claiming that the appellant is indebted to them and advising that they will not hand over the file until their account has been settled; a document headed 'Supplementary Draft Notice of Appeal'; and a document headed 'Supplementary Appellant's Outline of Submissions'.

10 The Supplementary Draft Notice of Appeal sets out 14 new grounds of appeal. It is unclear from the material whether these grounds are in substitution of the three current grounds, or whether they are to be regarded as additional grounds. The same can also be said about the Supplementary Appellant's Outline of Submissions: whether it provides the whole of the appellant's argument, or is meant only to supplement the previously filed outline is unclear. However, in argument this morning, counsel for the appellant made plain that the points sought to be raised by these documents are additional to those already set out in the material filed by the appellant last year.

11 This morning, the appellant sought to adjourn its application on the basis that Mr Murdaca was not available for this morning's hearing. Having regard to the history of the matter, the fact that the hearing of the appeal is imminent and the fact that there was no other suitable time at which the application might be heard before 22 April next, I rejected the adjournment application, provided short oral reasons, and proceeded to hear the application on its merits.**

The application to amend the notice of appeal

12 It appears from the material that the appellant wishes to amend its notice of appeal (and any other necessary document) to raise, amongst other issues, the following:

(a) a complaint that the trial judge did not grant an adjournment to enable Mr Murdaca to attend to his child who had become critically unwell and was in hospital. Under this complaint, the appellant asserts a breach by the judge of ss 10(b) and 24(1) of the Charter of Human Rights and Responsibilities ('Charter') - although it does not appear that any notice pursuant to s 35 of the Charter has been filed or served;

(b) a complaint about the trial judge permitting the respondents (and a party against whom no appeal is brought[4]) to amend their defences on the 14th day of the trial (this occurring in circumstances where the judge had permitted the appellant to amend its statement of claim on the 13th day of the trial);[5]

(c) new complaints about the way in which the trial judge dealt with the issues of inducement of breach of contract, and restraint of trade; and

(d) a complaint that the trial judge's decision was 'vitiated by the false evidence that was provided during the trial'.

13 The Supplementary Draft Notice of Appeal does not comply with the rules governing the contents of notices of appeal. Specifically, it contains grounds expressed at a high, and unhelpful, level of generality. It does not, as it must, state specifically and concisely the relevant grounds of complaint in respect of each issue that the appellant now seeks to ventilate.[6] As has been said many times before,

grounds should not be expressed in terms of mere assertion of error.[7] The non-compliant nature of the Supplementary Draft Notice of Appeal would mean that even if all other issues were overcome, the appellant should not be entitled to file or serve this document.

**14 The Supplementary Appellant's Outline of Submissions do not deal with all of the points raised in the Supplementary Draft Notice of Appeal. For example, the complaints made in the Supplementary Draft Notice of Appeal about the judge permitting the respondents to amend their defences during the trial is not referred to at all in the Supplementary Appellant's Outline of Submissions.

15 In respect of some of the new matters that the appellant wishes to ventilate, it is not possible to say definitively one way or the other whether there is any merit in the complaint now sought to be made. In part this is because of the noncompliant[8] way in which the proposed grounds have been drawn.

16 However, the one exception to this is in what appears to be one of the appellant's principal new complaints - the failure of the trial judge to grant an adjournment and the alleged breach by the trial judge of provisions of the Charter. An examination of these complaints shows them to be entirely without merit.

17 The issue of an adjournment arose on the 11th day of the trial (22 May 2013). Mr Murdaca was required to be absent from Court because he needed to attend upon, and be with, his child who had taken ill and become critically unwell. Such application as was made for an adjournment by the appellant (Bodycorp) was put on the limited basis that Mr Murdaca's presence was required in Court for the purpose of providing instructions for the appellant's cross-examination of the second respondent (Mr Martin). The trial judge responded to the appellant's counsel in the following terms:**

Presently I'm inclined not to grant any adjournment. Mr Broadbent [a witness called by the first defendant, Mr Maisano] will be back shortly. Obviously you can deal with him. Mr Cawthorn [senior counsel for the fourth, fifth and sixth defendants] can open his case. You can proceed to cross-examine Mr Martin. If you get to a point where you can't continue with the cross-examination because you need to get instructions, you can raise that issue then and I will consider that application based on what's before the Court then.

**18 Mr Martin commenced his evidence-in-chief later that day. The appellant was not required to cross-examine Mr Martin until the following day. That cross-examination commenced during the morning of 23 May. At no time prior to the commencement of the cross-examination did counsel for the appellant again raise the issue of needing an adjournment, or any difficulty in relation to obtaining instructions for the cross-examination of Mr Martin. The cross-examination of Mr Martin by senior counsel for the appellant proceeded over some 90 pages of transcript. At no time was any adjournment sought. The trial judge was never called upon to revisit the issue.

19 In the circumstances, the appellant's complaints that it now wishes to make about a failure to adjourn the trial are without merit. It follows that the appellant's Charter points also fall away. That said, these complaints were manifestly hopeless in any event when one has regard to the text of the provisions the appellant sought to rely upon.[9] Quite how anything the trial judge said or did could possibly constitute treatment or punishment 'in a cruel, inhuman or degrading way' is difficult to fathom in the circumstances of this case.[10]

20 Further, and in any event, there is simply no sufficient explanation for the present extremely late application by the appellant to significantly expand the scope of this appeal. Any significant amendment to the notice of appeal or expansion of the scope of the appeal would almost certainly require an adjournment. As Samuels JA said some 25 years' ago:[11]**

I might interpolate that in [a] more leisured age an order for costs was generally regarded as complete compensation for delay occasioned either by the grant of an amendment or the grant of an adjournment. However, the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe.

**21 Today, these remarks are possibly more apposite than they have ever been. The provisions of the Civil Procedure Act 2010, and the overarching obligations set out therein,[12] mandate against permitting any party to engage in the sort of leisurely approach to litigation that appears to have plagued the current proceeding.

22 Having regard to the rather sorry history of this litigation, I am entirely unpersuaded that the appellant ought now be permitted to raise the new arguments it wishes to raise as set out in the Supplementary Draft Notice of Appeal and the Supplementary Appellant's Outline of Submissions. The application to amend the notice of appeal and to serve any further or amended submissions must be rejected. I might have approached the matter differently had the appellant acted in a more timely fashion and served material last year so as to enable the respondents adequate time to prepare their responses without further delaying the resolution of this very old litigation.

23 For the sake of completeness, I should also note that some of the appellant's proposed new grounds of appeal appear to involve the withdrawal of concessions made more than a year ago that the trial judge's analysis of the relevant legal principles concerning the issue of restraint of trade and inducing breach of contract were accepted by the appellant.[13] Quite why the appellant should now be permitted at this late stage to change its position has not been satisfactorily explained by the appellant.**

24 In my view, the appellant's application to joint Maisano should be rejected for the same reasons. This proceeding hung over Mr Maisano's head for many years before it was resolved in the Trial Division. From the time when the appeal period expired without any notice of appeal being filed or served in relation to him, Mr Maisano has been entitled to order his affairs on the basis that the proceeding, so far as it concerns him, has been concluded. To permit the appellant to join Mr Maisano at this very late stage (which would almost certainly necessitate an adjournment for some not inconsiderable time) would not, in my opinion, be in the interests of justice. Again, I may have taken a different view if the appellant had acted in a more timely fashion. However, it is sufficient for me to say that for the reasons already given I would reject this application too.

**25 At the hearing on 20 November 2014, Mr Murdaca sought to hand up affidavit material which he said made out his complaint that the judgment below was procured by fraud. The Court read the material for the purpose of understanding Mr Murdaca's submissions, but returned that material to him. It is not entirely clear what material the appellant now wishes to seek leave to file. The material handed up in November was not entirely in proper form. Without actually ruling upon admissibility questions, there appeared to the Court to be a number of serious issues about the admissibility of the appellant's then new material, or (at the very least) parts of it.

26 Further, if the appellant is to maintain the position that the judgment below was procured by fraud, one imagines that such allegations as the appellant makes will be heavily contested in an evidentiary hearing. This Court is not the place where such a hearing can properly occur. That said, at some point, the appellant may need to resolve whether it will pursue an application in the Trial Division to set aside the judgment for fraud, in which case at least some (if not all) of the complaints made about the judgment might become otiose, or whether it intends to pursue all of the points set out in its current notice of appeal.**

The application for the release of the solicitor's file

**27 So far as the application for the release of the solicitor's file is concerned, there is clearly a factual (and perhaps also a legal) dispute between the appellant and its former solicitors (who, as I have already noted, are asserted by the respondents to be the ninth firm of solicitors that have acted for the appellant in this matter). This is not a matter that affects the respondents.

28 The application for the release of the solicitor's file should not now be made in this Court. It should more properly have been made in the Trial Division, where any disputed question of fact between the appellant and the solicitors could have been (or could be) resolved. No explanation has been given for the failure by the appellant to pursue this course in a timely fashion, or at all. It is not appropriate for this Court to now embark on this issue.

29 Further, and in any event, I am not persuaded that the appellant needs access to its former solicitor's file, in circumstances where it has (or is capable of having) access to all of the necessary materials to prosecute the current appeal (the appeal books, the summary, the notice of contention and the various submissions filed). Further, it is plain that the appellant currently has access to at least the trial transcript in addition to the other documents to which I have referred. So much is demonstrated by the present application.**

The application for costs against the previous solicitors and barrister

30 So far as the appellant's applications for costs against its former solicitors and barrister is concerned, the material presently filed does not disclose a sufficient basis upon which any such order might be made. In any event, in my view, it is premature to deal with any question of costs ahead of the resolution of the appeal. Any such application may be made again once all substantive matters have been heard and determined - provided it is made on appropriate material and on proper notice to those parties against whom an order is sought.

**31 The appellant's application filed 9 April 2015 must be dismissed.

[1] I interpolate that, because this appeal was commenced before the amendments to the appeal provisions in the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2005 ('Rules'), made in November 2014, there is no written case nor any requirement for a written case. So far as outlines of argument are concerned, this appeal is governed by the relevant Practice Statements, made before November 2014.

[2] The firm whose services were terminated by the appellant on 19 November 2014.

[3] Again, being the firm whose services were terminated on 19 November 2014.

[5] There is also a complaint about the judge permitting Mr Maisano to amend his defence after the respondents had amended their defence.

[6] See r 64.05 of the Rules as it was before the November 2014 amendments, and now see r 64.04(d) of the Rules.

[7] For example, proposed ground 4 asserts that 'the trial judge failed to make a proper determination as to the manner in which the plaintiff breached [a particular agreement]'. Similarly, a ground expressed in terms that 'the trial judge had an obligation to assess the damages flowing from the breach' is entirely unhelpful and does not conform either with the Rules or relevant authority in this area (as to which, see State of Victoria v Bacon [1998] 4 VR 269, 285 (Phillips JA) and the authorities referred to therein. See further, Haque v State of Victoria [2013] VSCA 316 [16]-[17] (Osborn and Beach JJA).

[9] Sections 10(b) and 24(1) of the Charter.

[11] GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, 716.

[12] See in particular the overarching obligations set out in ss 23, 24 and 25 of the Civil Procedure Act 2010.

[13] See paragraphs 6 and 18 of the Appellant's Outline of Submissions dated March 2014.