Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33

PRACTICE AND PROCEDURE - Reasons and orders - Reasons and orders delivered to parties via email - Orders not pronounced in open court - Whether mode of delivery rendered orders a nullity - Proposed ground of appeal not arguable - Application for leave to appeal refused - Esso Australia Pty Ltd v Norman Lindsay Robertson [2005] VSCA 138; Di Benedetto v Granger Kilton Grange Pty Ltd [2017] VSCA 119 applied.

1 On 29 June 2017 Randall AsJ heard an application by the applicant, Bodycorp Repairers Pty Ltd ('Bodycorp'), under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand served on it by the respondent, Oakley Thompson & Co Pty Ltd ('Oakley Thompson'). His Honour reserved his decision that day. He said that the reason he reserved was because Bodycorp had requested written reasons.

2 By an email of 31 July 2017 Randall AsJ's associate delivered to the parties final orders in relation to the application and Randall AsJ's written reasons. The orders bearing the date 31 July 2017, which were signed by Randall AsJ and stamped as authenticated the same day, were in the following terms:

The Court orders that:

(1) The admitted total is $233,588.68.

(2) The offsetting total is $2.

(3) The substantiated amount of the demand is $233,586.68.

(4) The plaintiff pay the defendant's costs of the proceeding including reserved costs on a standard basis.

3 The statutory demand which was the subject of Bodycorp's application had asserted that Bodycorp owed Oakley Thompson the amount of $233,588.68 being an amount due pursuant to orders made in the Supreme Court of Victoria Costs Court on 11 and 13 November 2015, copies of which were attached to the demand.

4 The application to set aside the demand had been supported by an affidavit of the sole director of Bodycorp, Mr Antonio Murdaca, sworn 15 March 2017, and three affidavits of Bodycorp's solicitor, respectively sworn 31 March 2017, 4 April 2017, and 29 June 2017. Oakley Thompson had filed an affidavit in opposition to the application sworn by its principal, Mr Julian Vagg, on 30 March 2017.

5 Litigation involving Bodycorp and Oakley Thompson has a long and complicated history, substantially in this Court but also in the Federal Court. The substance of Mr Vagg's affidavit was setting out what Oakley Thompson contended to be the relevant aspects of that litigation history.

6 Before turning to the grounds of appeal, it is necessary to give a very brief overview of the relevant history.

7 In the mid-1990s Bodycorp was a franchisor of a network of motor vehicle smash repairers. One of the franchisees was Michael Maisano. Bodycorp entered into an agreement with a motor vehicle insurer, Australian Associated Motor Insurers ('AAMI'), in June 1998 ('the AAMI agreement'). Having the status of being an AAMI 'recommended repairer' was seen as advantageous to repairers. Under the AAMI agreement, AAMI was required, in substance and amongst other things, to remove this status for at least a period of six months from any Bodycorp franchisee who left the Bodycorp network. In 1998 franchisees, including Mr Maisano, did leave the Bodycorp network. AAMI did not comply with the provisions requiring it to remove the outgoing franchisees' recommended repairer status. Subsequently the relevant provisions of the AAMI agreement were held to be void and unenforceable as unreasonable restraints of trade.

8 The first relevant proceeding was a proceeding in the County Court between Bodycorp and Mr Maisano. Oakley Thompson acted on behalf of Mr Maisano. Mr Maisano was successful in that proceeding and recovered damages and costs.

9 In 2002 Bodycorp issued a proceeding in the Federal Court against a number of franchisees including Mr Maisano, and against AAMI, concerning the circumstances of the franchisees' departure from the Bodycorp network and AAMI's failure to comply with the restraint provisions in the AAMI agreement. In 2005 that proceeding was transferred to the Supreme Court. For reasons which are not presently relevant, the proceeding was not heard and determined until 2013 when Elliott J dismissed Bodycorp's claims and found, amongst other things, that the restraint provisions in the AAMI agreement were void and unenforceable. Oakley Thompson acted for Mr Maisano in that proceeding. Bodycorp was again ordered to pay Mr Maisano's costs.

10 In subsequent proceedings Bodycorp has sought to appeal the judgments against it and has also sought to have those judgments set aside for fraud. Bodycorp has been generally unsuccessful in those endeavours.

11 Mr Maisano has been in dispute with Oakley Thompson in relation to the recovery of legal costs from him. He has made common cause with Bodycorp in resisting Oakley Thompson's attempts to recover on the costs orders made in favour of Mr Maisano against Bodycorp. This Court has held that Oakley Thompson has an equitable lien over the costs orders made in Mr Maisano's favour.

12 On 11 and 13 November 2015 Judicial Registrar Gourlay in the Costs Court made orders requiring Bodycorp to pay to Oakley Thompson the sum of $233,588.68. This is the sum claimed in the statutory demand. Whilst the original costs orders were made in favour of Mr Maisano, the orders of the Costs Court unambiguously require Bodycorp to pay the sum of $233,588.68 to Oakley Thompson.

13 The application for leave to appeal sets out proposed grounds and gives particulars of some of those grounds. For present purposes we will simply repeat the grounds. They are:

(1A) The Trial Judge by failing to deliver the decision in open court, but by sending the orders and reasons, by email to the parties vitiated the efficacy of the orders and reasons and rendered them a nullity.

(1B) By adopting the mode of delivering the decision in Paragraph A herein the trial judge deprived the Application [sic] of an opportunity to apply for an extension of time to comply with the Statutory Demand.

(2) The Trial Judge demonstrated a reasonable apprehension of bias.

(3) The Trial Judge erred in holding that the amount sought in the statutory demand did not have to be verified in an accompanying affidavit (s 459E(3) of the Corporations Law).

(4) The trial judge erred in holding that the costs court orders relied upon in the statutory demand created a debt that was due and owing to the respondent.

(5) The Trial Judge erred in holding that the respondent could recover costs that were not due and owing to them.

(6) The Trial Judge erred in holding that the statutory demand should not be set aside on the basis that the applicant had issued proceedings to set aside the costs orders in Bodycorp Repairers Pty Ltd v Maisano [No 8] VSC 472 [sic].

(7) The Trial Judge erred in holding that there was no offsetting claim by the applicant for an order of damages against the respondent's former client.

(8) The Trial Judge erred in refusing the applicant leave to cross-examine the respondent's director.

(9) The Trial Judge erred in holding that there had been a proper accounting of the amounts due and owing to the respondent by their former client.

Matters in issue on the application for leave to appeal

14 Pursuant to s 459F of the Corporations Act if, at the end of the period for compliance with a statutory demand, the demand is still in effect and has not been complied with, then the company is taken to have failed to comply. One consequence of a failure to comply is that on a winding up application in insolvency the Court must presume that the company is insolvent: s 459C(2)(a). This presumption may be rebutted: s 459C(3). Where the company has applied to set aside a statutory demand then, unless an order is made extending the time for compliance, the time for compliance is the period beginning on the day when the demand was served and ending seven days after the application to set aside the statutory demand was finally determined or otherwise disposed of: s 459F. The time for compliance cannot be extended after the period provided for by s 459F has expired.[1]

15 In this case no extension of time was sought. One of the complaints Bodycorp makes is that the mode of delivery of the reasons and the orders deprived it of the opportunity to seek an extension of time.

16 If the orders purportedly made are not a nullity, either because of apprehended bias or because of the mode of delivery of the reasons and orders, then there is no point in considering the other proposed grounds of appeal because the effect provided for by the Corporations Act has already occurred, no extension of time for compliance having been obtained. Senior counsel for Bodycorp accepted in the hearing before us that that was the position. Accordingly, the only proposed grounds which need to be considered are proposed grounds 1A and 1B, concerning the mode of delivery of the reasons and orders, and proposed ground 2 concerning reasonable apprehension of bias.

17 It is necessary to consider the complaint as to reasonable apprehension of bias first.[2]

18 Bodycorp's application for leave to appeal gives particulars of the apprehended bias. The particulars read as follows:

[2.1] The Trial Judge ruled in an application for leave to cross examine the respondent's director that it was unarguable that the amount sought in the statutory demand was due ('the cross-examination application').

2.2 The Trial Judge prejudged the set aside application by finding in the cross-examination application that the costs court orders were a judgment of this court and were not to be disturbed until set aside (paragraph 107 of the reasons of the set aside decision)

2.3 The Trial Judge made the following inappropriate comments during the hearing:

(a) 'Well I am against you' (TR 3: 25);

(b) 'It's unarguable that that's the amount due' (TR 24 - 25);

(c) '... I'm not interested ...' (TR 25: 12 - 13);

(d) 'I suspect that this matter will be appealed ...' (TR 25: 28 - 29);

(d) '... that's a nonsense argument ...' (TR 74: 7 - 9);

(f) 'I am sick of being messed around ...' (TR 74: 13);

(g) '... that was outrageous in the circumstances ...' (TR 76 - 77).

2.4 The Trial Judge's associate ('the Associate') made the following inappropriate comments to the applicant's counsel, during an interval in the court hearing:

(a) The associate stated 'Who do you think you're impressing, being rude to the judge'.

(b) The associate said 'That doesn't matter. You are not helping your client'.

(c) The associate said 'You don't know who you're dealing with. And you will see what is going to happen now'.

2.5 The Trial Judge failed to act impartially by referring to the duties of counsel in his reasons when he acknowledged that it was not relevant to the issues before him (paragraph 119-124 of the reasons for the set aside decision).

2.6 The Trial Judge delivered the set aside decision by email, instead of in open court.

2.7 The Trial Judge did not permit the Applicant to expand upon the recusal application

2.8 The applicant applied to set aside the statutory demand on the basis, inter alia, that no amount was due and owing to the respondent.

2.9 The Trial Judge demonstrated a reasonable apprehension of bias by ruling in the cross-examination application that it was unarguable that the amount sought in the statutory demand was due (see per the Court of Appeal at paragraph 24 in AJH Lawyers Pty. Ltd. v Careri [2011] VSCA 425; (2011) 34 VR 236).

2.10 The Trial Judge demonstrated a reasonable apprehension of bias, by prejudging the result of the set aside application, by ruling before the set aside application had been fully heard, that it was unarguable that the amount sought in the statutory demand was due.

2.11 The demonstration of a reasonable apprehension of bias by the Trial Judge was exacerbated by his comments particularised in paragraph 1.3 and 1.5 herein [sic]. His comments were expressed in the strongest language and were to the effect that he was not listening to the applicant's submissions.

2.12 The Associate's comments as particularised in paragraph [2.4] [this paragraph reference was amended at the hearing] herein impact upon the perceived impartiality of the Trial Judge. The Associate had access to the Trial Judge and was in a position to impact upon the decision-making process of the Trial Judge. In Johnson v Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at p 492 - 493 '... the test ... is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge has to decide ...'

19 The matters relied upon fall into the following categories:

(1) Things said and things which happened in the course of the hearing: paragraphs [2.1], 2.2, 2.3, 2.7, 2.8, 2.9, 2.10 and 2.11.

(2) The matters relied upon in relation to proposed grounds 1A and 1B (paragraph 2.6), and specific matters appearing in the reasons (paragraph 2.5).

(3) Observations said to have been made by the associate to Randall AsJ: paragraphs 2.4 and 2.12.

20 When it was pointed out to senior counsel for Bodycorp that there was no material before the Court evidencing the matters raised in relation to the associate, senior counsel accepted that that was the case and accepted that while that position persisted those matters should be ignored. No application was made to rely upon any additional material in relation to those matters. Those matters must accordingly be ignored. The matters relied upon are thus confined to those in the first two categories.

21 In order to understand the relevant complaints made it is necessary to say something about the matters that were in issue and were determined by Randall AsJ. That is best done by reference to the associate judge's reasons.

22 After setting out the relevant history of the litigation,[3] in greater detail than we have done, the associate judge turned to the grounds upon which it was sought to have the statutory demand set aside.

23 Pursuant to s 459H of the Corporations Act where the Court is satisfied, either that there is a genuine dispute about the existence or amount of the debt, or that the company has an offsetting claim, the Court must calculate the substantiated amount of the demand in accordance with a formula (admitted total - offsetting total) and, if the substantiated amount is less than the statutory minimum, the Court must set aside the demand. Otherwise, the Court may make an order varying the demand as specified. In this case the associate judge's purported order varied the demand by reducing it by an offsetting amount of $2.

24 The associate judge accepted a submission made on behalf of Oakley Thompson that no genuine dispute can exist in respect of a judgment debt unless and until the judgment has been set aside.[4] In this respect he relied upon a decision of an associate judge of this Court in Innovision Developments Pty Ltd v Martorella[5] and a decision of Barrett J in the New South Wales Supreme Court in Timberland Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd.[6]

25 The associate judge rejected a submission made on behalf of Bodycorp that a verifying affidavit accompanying the statutory demand had been required and rejected a submission made that the statutory demand was defective.[7]

26 Before the associate judge Bodycorp had sought to rely upon a judgment of Hargrave J dated 5 July 2016 in relation to an earlier statutory demand served by Oakley Thompson on Bodycorp.[8] The associate judge rejected that submission, relying on a later judgment of Hargrave J,[9] which he considered had made it clear that the relevant costs orders were payable to and recoverable by Oakley Thompson, either in its own right or, if it had trustee status, as trustee.[10] In the course of rejecting that argument the associate judge referred to the fact that counsel for Bodycorp had failed to sufficiently draw his attention to what had transpired after the Hargrave J judgment of 5 July 2016.[11]

27 The associate judge then turned to the question of whether there was an offsetting claim. Four potential offsetting claims had been advanced by Bodycorp. The associate judge dealt with each of them separately.[12] He found that Bodycorp failed in relation to each of them, other than an offsetting claim in relation to certain costs orders which had been made in Bodycorp's favour. However, due to the inadequacy of the material filed and relied upon by Bodycorp, the associate judge determined that he could not reach a conclusion in relation to the amount of the offsetting claims other than a nominal $1 for each costs order. He determined to vary the demand to that effect.[13]

28 Notwithstanding the associate judge's conclusion that because the statutory demand was based on a judgment debt it could not be the subject of a genuine dispute, he nevertheless addressed the submissions which had been made on behalf of Bodycorp in that context as if they had been made under s 459J(1)(b), which provides that the Court may by order set aside the demand if it is satisfied that there is some other reason why the demand should be set aside.[14]

29 One of the issues which arose in that context was whether a stay had been sought in the principal proceeding in which costs orders had been made against Bodycorp in favour of Mr Maisano. The associate judge referred to the fact that the response to a query he had raised as to any stay application was that 'it was inappropriate, given that judgment against [Maisano] would have the effect of unravelling all the costs orders'.[15] The associate judge then referred to the fact that a stay application had in fact been made and had been refused. The associate judge said that counsel for Bodycorp had not drawn his attention specifically to that application and refusal.[16]

30 An application had been made in the course of the hearing to cross-examine Mr Vagg. The associate judge had ruled against that application and he set out his reasons for that ruling.[17] In substance, he said that he had refused leave because 're-agitation' of issues which had been subsumed by the Costs Court orders 'could not lead to a genuine dispute'.[18] The associate judge also set out his reasons for refusing a recusal application which had been made in the course of the hearing after he had refused leave to cross-examine.[19]

31 The associate judge concluded his reasons by setting out the duties of counsel.[20] He concluded that section of his reasons with the following:

Whilst these principles are not relevant to the issues before this court today, suffice to say, these duties should be the centrepiece of every court proceeding. No member of the legal profession should need reminder of the duties so integral to the foundations of our legal system.[21]

32 We turn then to what occurred at the hearing on 29 June 2017. Mr J Levine of counsel appeared on behalf of Bodycorp. Mr Vagg appeared on behalf of Oakley Thompson.

33 Prior to the hearing Bodycorp had delivered to the Court a written outline of submissions. At the outset of the hearing reference was made to that outline. It seems clear from the transcript that the associate judge had it and was familiar with its contents.

34 Early in the hearing the associate judge raised the issue of whether there could be a genuine dispute as to the existence of the debt, given that the demand was based upon Court orders. The associate judge asked whether there had been an application in relation to those orders. He was told that there had not. The associate judge then observed: 'So there's a judgment which bounds [sic] [presumably 'founds'] the amount claimed in the statutory demand'. Counsel for Bodycorp said: 'No. We don't accept that'. It is difficult to understand precisely what counsel meant by that, and the associate judge was obviously confused. The associate judge made reference to r 63.56 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). This suggests the associate judge may have thought that counsel for Bodycorp considered that orders of the Costs Court did not constitute final orders of the Court. The associate judge asked twice whether counsel for Bodycorp wanted to 'argue the point'. Counsel responded saying: 'Well, I'm not arguing it, I'm making submissions. If I'm arguing the point - - - '. The associate judge then said: 'Well, I require submissions to be made on a proper basis, please'.

Well, if I take you to the judgment I'll be able to do so, but if Your Honour is going to have a go at me, well then perhaps I should just withdraw and have my client do it.

36 Mr Levine then continued his submission. When the associate judge pointed out again that there was an order of the Court, the following interchange occurred:

Mr Levine: The order of the court has to be properly interpreted, and the proper interpretation of those orders is to look at the other orders of Justice Elliott. I'll make the submission in any event. It's very clear that your Honour's against me.

His Honour: Well, I am against you.

Mr Levine: Well, that's - well, then if Your Honour's against me before I've even uttered [sic] [perhaps 'opened'] my mouth, perhaps you should just step aside. I'm entitled to have an independent, impartial person - - - .

37 The submissions on the point continued, with the associate judge responding to a question from counsel 'is your Honour listening' with the observation 'don't be rude'.

38 Counsel for Bodycorp was permitted to make the submission he wished to make and he did so, substantially without interruption, at some considerable length, before his Honour returned to the point about there being a final order. The following interchange occurred:

His Honour: In this case the statutory demand is based on the judgment, is it not?

Mr Levine: It's based on the judgment.

His Honour: And it's for the same amount as set out in the judgment?

Mr Levine: No.

39 Mr Levine's final response is difficult to understand. The statutory demand does claim the amount set out in the orders. It seems from the submissions made by Mr Levine that he was notionally allowing for certain of the offsetting claims and contending that the orders had to be 'interpreted' as being subject to other orders having the effect for which he contended.

40 The next matter which arose was the question of cross-examination of Mr Vagg. The associate judge asked the purpose of the cross-examination and Mr Levine outlined the purposes at length. His Honour then said:

Leave is refused. The topics of cross-examination foreshadowed relate to establishing the amount due and payable at the time of the order of the Judicial Registrar. The Judicial Registrar made the order in November 2015. In 2016, no application was made to set aside or appeal that order. In 2017 up until June of this year, no application has been made to set aside that order, or appeal the order. It stands. It's prima facie an amount due under the order. It's unarguable that that's the amount due.

Mr Levine: Your Honour, if you take the view and if you've made a finding that it's unarguable, then you've already decided the case against my client.

His Honour: I've decided a leave application.

Mr Levine: You've decided a leave application in which Your Honour has just stated is unarguable for the amount of a statutory demand is due. I have no choice but to seek instructions. My instructions are to seek that you be stood down from this case. You've made a finding that will determine the outcome of this case - it's unarguable that the amount is due and payable.

42 His Honour refused the recusal application observing that he had not prejudged the case. Mr Levine asked whether his Honour would give written reasons for refusing leave to cross-examine and his Honour responded: 'I suspect that this matter will be appealed. If you require it I'll give written reasons'.

43 Mr Levine then continued his submissions. Mr Levine sought to rely upon the judgment of Hargrave J of 5 July 2016 setting aside the earlier statutory demand. The associate judge pointed out that since that decision orders had been made which had significantly altered the position. Mr Levine addressed that position and made further submissions, substantially without interruption.

44 Mr Vagg began his submissions shortly prior to lunch and concluded them shortly after lunch.

45 Mr Levine was given the opportunity to reply on behalf of Bodycorp. He made a submission that Bodycorp was entitled to offset against the orders made in Oakley Thompson's favour, an asserted entitlement to recover money from Mr Maisano, which would flow from a proceeding which had been taken in the County Court to set aside the County Court judgment in Mr Maisano's favour for fraud. The following interchange then occurred:

His Honour: Yes but that's a different order.

Mr Levine: It doesn't matter if it's a different order it's still an offsetting claim.

His Honour: No it's not, that's a nonsense argument.

Mr Levine: Well you can say it's a nonsense - - -

His Honour: No, with respect, that's a nonsense argument.

Mr Levine: It doesn't have to be an - - -

His Honour: And I'm sick of being messed around.

Mr Levine: I'm sorry?

His Honour: I am sick of being messed around.

Mr Levine: I'm sorry, how am I messing you around?

His Honour: You know it's an order of the County Court that was paid [sic] [presumably 'made'] in respect of a County Court proceeding.

Mr Levine: It's an offsetting claim, it does not have to be - I'm not going to raise my voice. It does not have to be an equitable offset, it does not have to be a common law offset.

His Honour: It's not.

Mr Levine: All we have to have is an offsetting clause [sic] [presumably 'claim'].

46 After an interchange about a submission made earlier, whereby it was asserted that it was not clear that the money the subject of the Costs Court orders was 'for Oakley Thompson', the following interchange occurred:

His Honour: There's been an order that there's a division.

Mr Levine: So why are they claiming more than the order of the division.

His Honour: Because - - -

Mr Levine: It's not their debt.

His Honour: It is their debt - - -

Mr Levine: How is it their debt when they're only entitled to - - -

His Honour: Do you mind? Sit down and calm down for five minutes I will not be spoken to like that.

47 There was a short adjournment before the submissions resumed.

48 Upon the resumption, his Honour observed that counsel for Bodycorp wanted to rely on certain aspects of the orders whilst ignoring other aspects. In that context the associate judge said:

In the same way you made a submission that I ought to be bound by the judgment of 5 July, and that was outrageous in those circumstances. You ought to have taken - you owe the court a number one duty, and you're not discharging it.

49 This was a reference to the reliance which had been placed upon the judgment of Hargrave J of 5 July 2016 without referring to the subsequent judgment of Hargrave J. The associate judge observed that even if Oakley Thompson was recovering the money as a trustee it was entitled to do that, and that the judicial registrar's orders had required payment to Oakley Thompson.

50 Mr Vagg was given the opportunity to deal with some matters Mr Levine had raised in reply that had not been part of his primary submissions, and Mr Levine was then given the opportunity to reply a second time.

51 At the end of his second reply Mr Levine asked for the matter to be stood down so that he could take instructions before making further submissions. After being permitted to leave the court to talk to his client, he made a brief further submission. The hearing concluded with the associate judge saying: 'Thank you. As you want written reasons, I'll reserve'.

52 Our conclusions on the relevant matters which transpired in the hearing are these:

(a) It might be thought that the associate judge was blunt in saying that he required submissions to be made on a proper basis, but what he said was no more than that. Counsel's reaction was extraordinary. He interpreted what was said as a personal attack ('have a go at me') and made what we can only interpret as a threat to withdraw and leave his client (presumably the director, Mr Murdaca) to make submissions in person. Counsel's response was rude and disrespectful.

(b) When the associate judge said 'I am against you', an observation commonly heard in Court, counsel's response was again rude and disrespectful ('before I've even [opened] my mouth, perhaps you should just step aside ... I'm entitled to have an independent, impartial person').

(c) The associate judge ruled against Bodycorp in relation to the cross-examination of Mr Vagg. Counsel responded with an application for recusal. In our view, that application was misconceived for reasons we will address below, but it was not apparently accompanied by the rudeness and disrespect which characterised his earlier reactions. As requested the associate judge subsequently gave written reasons for the refusal of leave to cross-examine, and also gave written reasons for his refusal to recuse himself.

(d) The interchange between counsel and the associate judge about the off-setting claim represented by the prospective entitlement to money consequent upon the prospect of having the original County Court judgment set aside for fraud, ('a nonsense argument' according to the associate judge), reveals that the associate judge had lost patience with counsel for Bodycorp and was giving expression to that loss of patience ('I'm sick of being messed around').

(e) The final interchange in Mr Levine's first reply which led to the short adjournment is difficult to interpret from the transcript, save to say that something in Mr Levine's tone or demeanour prompted the associate judge to admonish him and ask him to calm down.

Apprehended bias - applicable legal principles

53 The relevant test in relation to apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring, or might not have brought, an impartial mind to the resolution of the question the judge is, or was, required to decide.[22]

54 In AJH Lawyers this Court set out the following principles which are relevant here:

(a) When one of the grounds of appeal is apprehended bias, the Court of Appeal needs to deal with that ground first, and, if it is established, remit the matter, even if the Court of Appeal is satisfied that the decision below is correct on the merits.[23]

(b) The relevant apprehension, where apprehended bias is alleged, is an apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she will decide the case adversely to one party.[24]

(c) The perception of a lay observer will not be as informed as the perception of a lawyer but the fictional lay observer is not to be assumed to be ignorant of the dynamics of modern judicial practice and, in particular, that modern judges are not expected to await the end of a case before considering the issues, and that they will often form tentative opinions on matters in issue which may be expressed so as to give counsel the opportunity to deal with them.[25]

(d) There is a line to be drawn between indications of a tentative view and an impermissible indication of pre-judgment. A key factor in determining whether the line has been crossed is the extent to which the views expressed appear final rather than merely tentative.[26]

55 In this application reliance is placed upon interchanges between the associate judge and counsel in the course of submissions. Such interchanges can often be robust. Confronting counsel with perceived flaws in the submissions and the judge's response to those perceived flaws is a part of the normal process. Further, judges are not precluded from displaying 'irritation or impatience'[27] and are at liberty to express 'measured displeasure'[28] at the manner in which proceedings are conducted. When issues of this kind arise they have to be assessed within their full context.[29] In Bakarat v Goritsas [No 2][30] Basten JA said:

The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute.[31]

56 It is clear from the later interchanges between the associate judge and counsel for Bodycorp, which we quoted earlier, that by then the associate judge had lost patience with counsel and he expressed that loss of patience. It is also clear from the observation made by the associate judge concerning counsel's 'number one duty', and from the passage in his Reasons where he refers to the duties of counsel, that he had formed the view that counsel for Bodycorp had not complied with counsel's duties to the court in the manner in which the submissions had been made. The issue in relation to those matters, and the other matters relied upon concerning things said and things which happened in the course of the hearing, is whether what the associate judge said was so unreasonable, and indicative of an inability to bring an impartial mind to bear on the issues in dispute, as to lead to an apprehension of bias in accordance with the Ebner test.

57 We do not consider that Bodycorp has established apprehended bias in this case. Our reasons are as follows.

58 First, in our view, early in the hearing counsel for Bodycorp addressed the associate judge with unacceptable rudeness and an unacceptable lack of respect. The initial conflict was triggered by the associate judge's expressed inability to understand how it was being contended that there was a genuine dispute in relation to an amount due under Court orders which had not been set aside. Having heard counsel the associate judge might be said to have been blunt in saying that he required submissions to be made on a proper basis. But counsel's reaction, in our view, was unjustified and unacceptable. Then, shortly afterwards, in response to the associate judge observing that he was against counsel on the point, counsel again reacted with what we would characterise as rudeness and disrespect. Counsel may always be firm and forthright in advancing their client's case. Counsel's reactions were not that. The associate judge's later observations must be assessed in that context.

59 Secondly, notwithstanding the above, the transcript reveals that Mr Levine was given a full opportunity to make all the submissions which he wished to make.

60 Finally, the reasons reveal that the associate judge gave detailed consideration to those submissions.

61 It is true that the associate judge stated, in the course of disposing of the application for leave to cross-examine, that it was 'unarguable' that the order of the judicial registrar made in November 2015 established the amount that was due. There are two relevant matters in relation to this observation.

62 The first is that the associate judge was addressing what he had already raised as a fundamental difficulty with counsel's argument, namely that he sought to go behind the express terms of a court order which had not been appealed or set aside. What the associate judge said reflected what Barrett J had said in Timberland v Schindler (followed in this Court in Innovision). Barrett J said:

Unless and until the judgment is set aside, it is the source of a payment obligation that cannot be called into question.[32]

63 Of course, there might still be an off-setting claim or another reason for setting aside the statutory demand, but where there is a court order the authorities relied upon by the associate judge establish that the existence of a payment obligation cannot be disputed. When the associate judge said that the debt was 'prima facie an amount due under [an] order', and that it was 'unarguable that that's the amount due', he was doing no more than stating the effect of what he considered to be the applicable law. No submission was made to him, or to us, to the effect that this is not the law. For this reason, the recusal application made at the hearing was misconceived.

64 The second relevant matter is that the associate judge then permitted counsel to make full submissions as to why the order did not have the effect of obliging payment of the amount in question to Oakley Thompson in accordance with its express terms.

65 The associate judge felt the need to include observations on the duties of counsel in his reasons. Having read the transcript, in our view, those observations were warranted. Certainly, they were not so unreasonable as to reveal the existence of apprehended bias.

66 It is unfortunate that the associate judge gave expression to his loss of patience with counsel in the way in which he did. However, in the circumstances, his reaction was not so unreasonable, or indicative of an inability to bring an impartial mind to bear on the issues in dispute, as to constitute apprehended bias.

67 We do not consider that Bodycorp has established apprehended bias by reason of the things said and things which happened in the hearing. The delivery of the reasons and the orders by email raise separate issues addressed below, but the mode of delivery does not in itself raise any issue of apprehended bias. The observations the associate judge made in his reasons as to the duties of counsel were warranted in the circumstances.

68 In our opinion leave should be granted on proposed ground 2 as the matter was arguable, but we would dismiss the appeal.

Proposed ground 1A - judgment and orders sent by email - submissions

69 It was submitted on behalf of Bodycorp that the failure to deliver the decision in open court 'vitiated the efficacy of the orders and reasons and rendered them a nullity', and reliance was placed upon this Court's decision in Di Benedetto v Kilton Grange Pty Ltd.[33] It was submitted that in this case the delivery of reasons by email had deprived Bodycorp of an opportunity to seek an extension of time for compliance with the statutory demand, had failed to safeguard against the risk of abuse of power, had failed to uphold strict standards of impartiality, and had breached the public policy that justice must be administered in open court.

70 On behalf of Oakley Thompson it was submitted that Bodycorp had not referred to any authority supporting the submission that delivery of reasons in the manner they were delivered rendered the consequent orders a nullity, and that Di Benedetto did not support such a conclusion. It was submitted that delivery of the judgment by email did not deprive Bodycorp of the opportunity to seek an extension of time. Oakley Thompson also relied upon observations in Di Benedetto to the effect that there was nothing necessarily wrong with reasons being provided to the parties electronically.

Judgments and orders delivered otherwise than in open court - relevant authorities and applicable principles

71 The submissions made on behalf of Bodycorp reflect the fact that there are two fundamental underlying principles which are relevant to a consideration of the issue raised by proposed ground 1A.

72 The first is the principle that courts hear and determine the cases which come before them in public; and, that this fundamental principle applies in all but exceptional cases where it is necessary to do otherwise so as to ensure that justice is done in that particular case.[34]

73 The second principle is that courts give reasons for their final and important interlocutory decisions, and those reasons are submitted to public scrutiny.

74 In Wainohu v New South Wales[35] French CJ and Kiefel J said:

The centrality, to the judicial function, of a public examination of reasons for final decisions and important interlocutory rulings has long been recognised.[36]

Then, after referring to decisions of the High Court setting out the well-established principle that reasons must be given for judicial decisions, they went on to say:

The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.[37]

75 These two fundamental principles may be intertwined, and often when courts consider issues raised by the manner in which a judgment was delivered, both principles are engaged. In this case, however, it is only the principle concerning open justice which is relevant. This is not a case where there is an issue as to whether reasons were provided, or an issue as to the adequacy of those reasons.

76 Focusing then upon the discrete issue of the failure to deliver judgment in open court, a review of the authorities reveals that a strict approach has been taken on this issue where the court's jurisdiction is exclusively conferred by statute and where there is no statutory authorisation for the delivery of judgment other than in open court.

77 In R v Casey, Ex parte Lodge[38] the Full Court of this Court held that a judge of the County Court, described in submissions as 'the creature of statute', had acted outside of his powers by delivering a judgment by post. What was delivered was held to be something which was 'not a judgment at all'. The court observed that there was nothing to prevent the learned judge from delivering that same judgment in open court on a future day.

78 More recently, the Court of Appeal of New South Wales addressed a similar position in Palmer v Clarke.[39] Kirby P, with whom Samuels and Priestley JJA agreed, had to determine the validity of the following actions of a District Court judge.

79 After hearing a trial in 1985, the District Court judge listed the matter on 3 December 1987. He said to the parties that a 'summary of my reasons' was not available but would be available later in the day. He said that there would be a 'verdict for the plaintiff' and referred to evidence which he had accepted. On the following day, 4 December 1987, the case was re-listed and the judge gave some oral reasons for his decision. He then invited further submissions on the question of interest. In March 1988 the judge published written reasons which were significantly more comprehensive than what had been said on 3 and 4 December 1987.

80 Kirby P began by explaining that inferior courts and tribunals, including the District Court, were created by Parliament and had no authority other than that found in the powers and functions conferred upon them by their legislation. They had no inherent powers.[40]

81 Addressing the sequence of events, Kirby P concluded that what had occurred on 3 December 1987 was not the pronouncement of a judgment at all. It was a foreshadowing of what the judge intended to do. Kirby P concluded that there was no doubt that judgment was in fact entered on 4 December 1987. Accordingly, it was what occurred on that day which attracted the obligation to state reasons. Kirby P concluded that, in the circumstances of that case, an analysis of the adequacy of the reasons had to be confined to what had been said on 4 December 1987.[41] He concluded that those reasons were inadequate.[42]

82 Kirby P considered whether a provision of the District Court Act 1973 (NSW) dealing with irregularities might prevent nullification of the judgment. He concluded that it would not.[43] This was because the section could not, in his view, cure the relevant problem. Amongst other things, the section was not 'apt to cure the problem of which the appellants complain', being an appellable error in the want of proper reasons.[44]

[C]ourts have been at pains for a very long time to require that the opinions, reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties or, where in writing, should be provided very soon after the orders and judgments are pronounced.[45]

84 In Victoria in Seapak Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court, Yarram[46] Fullagar J similarly held that 'in the absence of some statutory authority a magistrate is bound to deliver a judgment in open court'.[47] The magistrate in that case had delivered a written judgment without reasons by a letter to the clerk of courts. That decision was followed by McDonald J in Wandin Springs v Wagner[48] where a magistrate, shortly before retiring and whilst on sick leave, had sent to the parties what purported to be his written judgment. After adopting what Fullagar J had said in Seapak, McDonald J concluded:

The obligation of the presiding magistrate in this case was to pronounce his decision in open court. Although what he did was no doubt with the best of intentions, as he had commenced sick leave on 21 May 1990, the result is that what he did was ultra vires and constitutes no determination of or judgment in the action.

No statutory authority was drawn to my attention nor have I been able to find statutory authority for a magistrate giving his judgment in the manner as was done here.[49]

85 Before leaving these authorities concerning courts with statutory jurisdiction, it is necessary to refer to this Court's decision in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd.[50]

86 The issue in Fletcher Construction was not about the delivery of judgment in open court. Rather, the issue was whether there was an obligation to deliver reasons contemporaneously with the judgment and in that context, this Court gave some consideration to what had been said in Palmer. There was also an issue in relation to alterations made to a 'draft' judgment.

87 Chernov JA, with whom Charles and Vincent JJA relevantly agreed, said in relation to Palmer:

Notwithstanding that in some passages of their judgments their Honours in Palmer spoke generally of the obligation of judges to give reasons at the same time as they pronounced judgments, they did not go beyond determining that a District Court judge in New South Wales must comply strictly with the requirement of contemporaneity. Their Honours were not called upon to consider, nor did they deal with, the question of whether a judge of a superior court was under a like strict obligation.[51]

88 Chernov JA considered that the decision in Palmer was properly to be confined so as not to govern the position where the relevant issue concerned a superior court judge.[52]

89 Chernov JA considered r 59.04 of the then Rules of the Supreme Court and its 1957 predecessor. He observed that the purpose behind the relevant rule was to enable judges of the court to hand down written judgments without reading them while at the same time preserving the right of interested members of the public to have access to the judgments.[53] The rule still exists today in the same terms as it was then.

90 Fletcher Construction makes it clear that the decisions concerning magistrates and District and County Court judges cannot be treated as governing the position in relation to judgments and orders of a superior court. There are two decisions of this Court which do address that issue. They are Esso Australia Pty Ltd v Robertson[54] and Di Benedetto.[55]

91 In Esso a judge of this Court determined an application under s 85B of the Sentencing Act 1991 for the payment of compensation to an injured person following a conviction for breach of the Occupational Health and Safety Act 1985. The order was made on 5 November 2004.[56] The relevant circumstances were as follows.

92 On 3 November 2004 the judge listed the matter. It seemed that he had intended to deliver judgment that day but had been unable to complete his written reasons. The transcript for that day is headed 'judgment' and it records the judge as making a number of 'findings' and of concluding that compensation should be paid. The judge is recorded as having said: 'I order that the respondent pay [the claimant] the sum of $100,000 for that compensation'. The judge told the parties that his associate would email the judgment to the parties after it had been completed. Counsel for the parties said it was not necessary to sit again.

93 The reasons subsequently forwarded to the parties by email bore the date 5 November 2004 and the authenticated order also bore that date. Thus, notwithstanding what had occurred on 3 November 2004, both the reasons and the order were communicated to the parties by email.

94 This Court commented on that situation in the following terms:

It must be clearly understood that the Supreme Court of Victoria, save in exceptional and well known cases, sits in public for the hearing and determination of proceedings. That means that judgment is delivered in open court even if it be by the handing to the Associate of the court's written reasons and even though they may be available on the Internet very soon thereafter. Members of the public are entitled to be present in court to hear judgment being given and to obtain a copy of the reasons. Other instances of the posting or e-mailing by judges of their written reasons have come to this Court's notice. Tribunals may be authorised to do that, but the practice should be entirely discountenanced for a court.[57]

95 Reference was then made to circumstances where the practice properly might be adopted, such as consent directions in busy managed lists. The appeal was determined on substantive grounds unrelated to the manner in which the reasons had been delivered and leave to appeal was refused.

96 The decision in Esso is significant in two respects. First, the Court strongly disapproved of the practice of forwarding reasons by email and expressed the view that it was inconsistent with the fundamental principle that courts hear and determine proceedings in public. Secondly, there is no suggestion that what had occurred rendered the order made a nullity. On the contrary, the substantive grounds were considered and leave to appeal was refused.

97 In Di Benedetto the relevant facts were as follows.

98 A judge in the trial division had heard the trial in August 2015 and delivered written reasons in the conventional manner on 7 September 2015. There was then an issue as to the orders which ought to be made consequent upon the reasons and as to costs. Written submissions were filed and there were at least one, and possibly two, subsequent directions hearings. The judge eventually determined upon the orders that ought to be made, including the costs orders. Her reasons were set out in two emails from her associate to the parties. The emails were sent on 15 March 2016 and 2 May 2016. The relevant orders were authenticated on 4 May 2016. The orders were not made in open Court and the reasons were not delivered in open court.

99 On an application for leave to appeal a number of complaints were made, including one to the following effect:

[The applicant] finally alleges a failure to provide adequate reasons in respect of all of those orders, on the basis that the emails from the associate did not constitute reasons of the court or, to the extent that they did, because they were legally inadequate.[58]

100 The Court initially dealt with the application upon the assumption that the associate's emails did contain the judge's reasons. The grounds concerning what might be described as the substantive complaints in relation to the costs order were successful. The Court then turned to the question of the provision of reasons by an email from the associate.

101 The Court referred to r 59.04 of the Supreme Court (General Civil Procedure) Rules 2005 and to the decision in Fletcher Construction.[59] The Court observed that the rule does not require that reasons be provided contemporaneously with the giving of judgment and that where the interests of justice require it a Court may properly pronounce judgment and give reasons later.[60] The Court continued:

Equally, a court may indicate to the parties that judgment will be given 'on the papers', without the need for a further oral hearing. Such a course may advance the overarching purpose in the Civil Procedure Act 2010, namely to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. It is not necessary to explore further the circumstances in which judgment should be delivered in open court, as distinct from 'on the papers'. The issue is about the giving of reasons in either event and how, where reasons are required, they should be provided.[61]

102 The Court referred to the decision in Esso and in particular to the passage in which that Court had deprecated the publication of reasons by email. The relevant passage was quoted in full.[62] The judgment then continued:

The above passage emphasises the importance of open justice. As mentioned, the advent of the Civil Procedure Act may have lessened the rigours of the requirement that reasons be handed down in open court, or that it be announced in open court that reasons will be published in due course, rather than reasons being provided directly to the parties. It is now not uncommon, in some limited situations, for reasons of the Court to be provided to the parties by prior arrangement and for those reasons then to be able to be located only on the Court file (not being thought of sufficient importance to justify publication on the Internet), without the decision ever having been the subject of an announcement in open court. In practice it was always the case that, even if reasons were given orally in open court, the only effective source of those reasons thereafter was transcript held on the Court file. But whether the reasons are handed down or foreshadowed in open court, or simply provided to the parties and thereafter made available on the Court file (or the Internet), the reasons thereby published must be those of the Court.

In part, the orders in the present case addressed the substantive issues that had been the subject of the trial and in respect of which the judge delivered formal reasons following the trial. The orders also dealt with costs. The judge proceeded by having her reasons for making the orders reduced to writing and conveyed to the parties by the associate. As noted above, there is nothing necessarily wrong with a judge's reasons for decision being provided to the parties electronically through the judge's chambers or the court registry. In this case the parties received by email only the associate's account of the judge's reasons, albeit no doubt approved by the judge and, we assume, placed on the Court file and available for public inspection after the emails were sent. The associate's email addressed issues of some complexity, even though principally about costs, which had been contested in open court and subsequent submissions. Caution must be applied in proceeding in this way, because there will be cases where providing reasons in this manner may so substantially fail to achieve the purposes of publishing judicial reasons as to deprive what is provided of that character altogether. In light of our earlier conclusions, it is not necessary to decide whether, as the applicant contended, the present is such a case.[63]

103 There are two matters of significance in relation to Di Benedetto.

104 The first is that, just as in Esso, there is no suggestion that the fact that the reasons were not delivered in open court and the orders were not made in open court resulted in the orders being a nullity. On the contrary, the judgment proceeds on the assumption that the orders were not a nullity. Otherwise, it would have been unnecessary to deal with the substantive grounds of appeal.

105 Secondly, this Court in Di Benedetto was less critical of the practice of delivery of reasons by email than the Court in Esso, and went so far as to suggest that there was nothing 'necessarily wrong' with delivering reasons in that way.

106 For the purpose of considering proposed ground 1A, it is sufficient to say that the authorities referred to reveal that, where the reasons are themselves adequate, the fact that those reasons were not delivered, and orders were not made, in open court, does not render orders made by a superior court a nullity. This conclusion necessarily follows from both Esso and Di Benedetto. Authorities dealing with orders made under statutory jurisdiction by courts other than superior courts (Casey, Palmer, Seapak and Wandin) do not apply; as explained in Fletcher Construction. That conclusion is sufficient to deal with proposed ground 1A. We would nevertheless make the following observations.

107 The stridency of the criticism of the practice of delivery of reasons other than in open court in Esso must now be tempered by this Court's more recent observations in Di Benedetto.

108 The fundamental principles set out by the High Court in Wainohu remain unchanged. The public examination of reasons for final decisions and important interlocutory rulings remains central to the judicial function. In the modern context, however, publication on the internet is, in most if not all cases, a more effective means of public dissemination of reasons than the traditional method of handing a physical document out in open court. In the modern context there is every reason to think that the publication of reasons on the internet is a means of meeting the public policy objective which is superior to the traditional process.

109 The position in relation to the announcement of the determination of a proceeding or application may be different.

110 Whatever procedure is adopted for the pronouncement of orders, the principles of open justice as elaborated in the cases referred to above need to be considered when deciding upon the course to be adopted. In the case of most final and important interlocutory orders, announcement in open court will be the appropriate course. In the present case, the parties were not given notice of the associate judge's intention to make orders in the way in which he did. Under the Corporations Act, Bodycorp had seven days from the date of the order to comply with the statutory demand. Failure to seek an extension of time for compliance had some immutable consequences. In those circumstances, it would have been preferable for notice to have been given to the parties that orders were to be made and for the orders to have been pronounced in open court.

111 We would not grant leave to appeal on proposed ground 1A. The contention that the mode in which the reasons were delivered rendered the orders made a nullity is not arguable, in our view.

Proposed ground 1B - 'deprivation' of opportunity to seek extension

112 The suggestion that Bodycorp was deprived of the opportunity to seek an extension is unfounded. Bodycorp was not deprived of the opportunity to seek an extension. It was deprived of an opportunity to make an application for an extension, that opportunity being the occasion upon which the reasons might have been delivered and the orders made in open court. Bodycorp still had the opportunity to apply for an extension. It had to do so within seven days of the orders. There is no suggestion that Bodycorp's solicitors did not receive the judgment and the orders on the day that they were emailed to them. There is no substance in this proposed ground and we would not grant leave to appeal in relation to it.

113 We would grant leave to appeal on proposed ground 2, but we would dismiss the appeal on that ground. Otherwise, we would refuse leave to appeal.

[1] Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 232 CLR 314 ('Aussie Vic Plant Hire').

[2] AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236, 241 [18] ('AJH Lawyers').

[3] Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd (2017) 322 FLR 355 ('Reasons'), 361-4 [9]-[29].

[5] [2012] VSC 390 ('Innovision').

[6] [2011] NSWSC 466 ('Timberland v Schindler').

[8] Bodycorp Repairers Pty Ltd v Oakley Thompson & Co (Unreported, Supreme Court of Victoria, Hargrave J, 5 July 2016).

[9] Oakley Thompson & Co Pty Ltd v Maisano [No 5] [2017] VSC 52 [21].

[12] Ibid 367-71 [50]-[70], 375-6 [88]-[93].

[19] Ibid 381-2 [112]-[118]. It seems that there is a typographical error in [118] and that the word 'not' should appear between the words 'would' and 'reasonably' in the first line.

[22] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-5 [6] ('Ebner'). Typically apprehended bias is contended to be revealed by conduct or statements outside the relevant judgment but the judgment itself may reveal the existence of apprehended bias: see, eg, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

[23] AJH Lawyers [2011] VSCA 425; (2011) 34 VR 236, 241 [18].

[27] Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125, 134, citing Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902; Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71, 123; Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87, 104-5.

[28] Michael v State of Western Australia [2007] WASCA 100 [64], quoting Galea v Galea (1990) 19 NSWLR 263, 283 (Meagher JA).

[29] Barakat v Goritsas [No 2] [2012] NSWCA 36 [13].

[30] [2012] NSWCA 36.

[32] Timberland v Schindler [2011] NSWSC 466 [11].

[33] [2017] VSCA 119 ('Di Benedetto').

[34] Scott v Scott [1913] UKHL 2; [1913] AC 417, 437-8.

[38] [1887] VicLawRp 9; (1887) 13 VLR 37 ('Casey').

[39] (1989) 19 NSWLR 158 ('Palmer').

[46] (Unreported, Supreme Court of Victoria, Fullagar J, 12 June 1990) ('Seapak').

[48] [1991] VicRp 85; [1991] 2 VR 496 ('Wandin').

[50] [2001] VSCA 167; [2001] 4 VR 28 ('Fletcher Construction').

[51] Ibid 38 [27] (emphasis in original).

[54] [2005] VSCA 138 ('Esso').

[55] [2017] VSCA 119.

[56] Esso [2005] VSCA 138 [1], [8].

[57] Ibid [9] (emphasis in original) (citations omitted).

[58] Di Benedetto [2017] VSCA 119 [43].

[59] Ibid [95]. The Court in Di Benedetto noted that since the commencement of the proceedings, and by the time the impugned orders were made, the Rules of the Supreme Court had been replaced by the Supreme Court (General Civil Procedure) Rules 2015 and that nothing turned on that change.

[63] Ibid [98]-[99] (citations omitted).