Chopra v Department of Education and Training (Review and Regulation) [2022] VCAT 152

1 The Applicant's application for reconstitution pursuant to section 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is refused.

2 The proceeding will be resumed before Senior Member Judge Jenkins.

1. On 11 December 2020, Dr Chopra (the applicant) made an oral application for reconstitution pursuant to section 108(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) which would have the effect of removing Senior Member Judge Jenkins (Judge Jenkins) from the proceedings. The reconstitution application was made on the final day of the hearing, which took place over two and a half days over 7 December 2020, 10 December 2020 and 11 December 2020.

2. In the substantive proceeding, the applicant is seeking review of the respondent's decision to refuse six freedom of information requests made in 2018 (FOI Requests). The respondent refused the FOI requests under section 25A(6) of the Freedom of Information Act 1982 (Vic). The respondent contends that the FOI requests would substantially and unreasonably divert the resources of the respondent and various schools from its operations.

3. On 15 December 2020, I made orders that by 4pm on 29 January 2021, the applicant file submissions, limited to 8 pages setting out the basis of the reconstitution application. If no submissions were received by 4.00 pm on 29 January 2021, a self-executing order would operate to deem his application abandoned. An order was also made that if submissions were filed by the applicant by the due date, the respondent was to file submissions in reply by 12 February 2021.

4. By affidavit received by the Tribunal's Registry at approximately 4.01pm on 29 January 2021, The applicant made a number of submissions, some which were directed to the matters relevant to an application for reconstitution but others which:

• sought an extension of time until the end of May 2021 to file more detailed submissions;

• complained that the Tribunal orders made 15 December 2020 did not provide for a reply;

• complained that the transcript of the hearing had not been available to him as allegedly promised by Judge Jenkins; and

• requested an oral hearing in respect of this application for an extension of time.

5. The applicant communicated with the Tribunal on several occasions and at length seeking the transcript of the hearing before Judge Jenkins. From review of the file, it is my understanding that the transcript of day 1 of the hearing was paid for by the respondent and the applicant has this transcript. As to the additional transcript, the Registry has explained to the applicant via correspondence that the transcript is not provided unless it is requested and paid for by a party. Given the applicant's extensive experience with the Tribunal, such processes would be known by the applicant.

6. The applicant also sought an oral hearing in correspondence to the Tribunal and an affidavit filed on 23 April 2021. The applicant strongly objected to the determination of the reconstitution application on the papers. Due to the COVID-19 pandemic and industry restrictions, I made orders on 5 March 2021 refusing the request for the oral hearing as I found it would be appropriate for the reconstitution application to be determined on the papers in accordance with section 100(2) of the VCAT Act. I was not persuaded by the applicant's submissions that his objection to the reconstitution application being determined on the papers was reasonable.

7. In his 29 January 2021 submission/affidavit, the applicant referred to an affidavit provided by his psychologist and his own assertions as to his mental health and capacity to meet the orders made by the Tribunal. The affidavit of his psychologist was prepared to support an application before the Court of Appeal for a further adjournment of a matter in that Court. That application was rejected by the Court of Appeal on 1 March 2021.[1]

8. The timetabling of submissions was extended. The respondent filed and served its submissions in reply to the reconstitution on 19 February 2021. The applicant filed and served an affidavit in relation to his reconstitution application on 22 April 2021 (April Affidavit), which was ancillary to an additional affidavit dated 29 January 2021 (January Affidavit).

9. Being an interlocutory decision, there is no obligation on the Tribunal to give reasons pursuant to section 117 of the VCAT Act. In view of the circumstances of this matter and the conduct of the applicant, I do however consider it appropriate.

10. The applicant contends that as his submissions come to the Tribunal in the form of an affidavit, the Tribunal is bound to accept the applicant's submissions as factual.[2] I note for clarity here that this is not the case. The Tribunal is to determine all of the matters before it and make its decision in accordance with natural justice principles. I am under no duty to accept the applicant's version of events as true merely because they come in the form of an affidavit.

11. The applicant argued that Judge Jenkins was required to immediately stop the hearing and arrange for his reconstitution application to be heard in accordance with the requirements under section 108 of the VCAT Act. It was argued that Judge Jenkins, in allowing the hearing to continue denied the applicant natural justice.

12. At the hearing on 11 December 2020, the applicant was said to have dropped out of the hearing, which was taking place over videoconference. There was a question as whether this was a deliberate decision by the applicant. The applicant contended that Judge Jenkins should not have allowed the hearing to continue in these circumstances.

13. The applicant further raised the following in support of his reconstitution application:

• he was unable to provide all the evidence which he wanted to lead such as calling witnesses, not being permitted to make an oral opening statement and being required to summarise evidence in 45 minutes in spite of not having finalised his cross-examination;[3]
• the listing for the six proceedings spanning over seven days was reduced to two and a half days based on discussion between the respondent's counsel and Judge Jenkins on 7 December 2020;[4]
• an order made by Judge Jenkins on 11 December 2020 directing the applicant to file written submissions and affidavit evidence;[5]
• that Judge Jenkins did not extend the same level of courtesy to the applicant as her Honour did to the respondent's legal counsel;[6] and
• that Judge Jenkins did not give the applicant a real opportunity to present his case and that he was gagged from speaking.[7]

14. The respondent noted the timing of the reconstitution application given it was made towards the end of the hearing with Judge Jenkins.

15. The respondent also noted the applicant's history of making reconstitution and recusal applications 'without a proper basis and his repeated failure to continue with such applications once proceedings have been delayed':[8]

• See in particular [2017] VCAT 504 at [42], [49]; [2018] VCAT 842; [2019] VCAT 174 at [36]- [57]; the self-executing orders of DP Lulham made on 19 June 2018 in proceeding Z274/2018 (which lapsed); [2020] VCAT 748 at [9], [13]-[28], [32], [45], [46].

• See also [2016] VCAT 1452 at [61]; [2019] VCAT 1941 at [25]; [2019] VSC 488 at [99].

• See also The applicant's similar history in a different jurisdiction: Chopra v Al Siraat College [2020] FWC 3225 at [13]; Dr Manu Chopra [2020] FWC 3491 at [7], [11], [19], [28]; Chopra v Al Siraat College Inc & Ors [2020] FWC 5084 at [8].[9]

16. The respondent contends that the applicant has not pointed to any proper basis for reconstituting the Tribunal, although he has suggested that he apprehends bias in the Tribunal.

17. In relation to other points made by the applicant in support of the reconstitution application, the respondent relevantly put the following:

• It is irrelevant that the applicant did not receive the transcript of the hearing on 11 December 2020 being the last day of the hearing and the day on which he made the reconstitution application.[10] Separately, the respondent paid for the applicant to receive the transcript of day 1 of the hearing on 7 December 2020 in which the applicant was of ill health. The applicant stated that he had not received the transcript nor could he play the recording provided. The Tribunal had subsequently taken the 'extraordinary step' to play for the applicant, in real time, the recording of the opening and evidence that he had missed;[11]

• The applicant left the hearing on various occasions and was not ejected. When present, he displayed disruptive and querulous behaviour that has been observed in the Tribunal and elsewhere;[12]

• The applicant has not pointed to any proper basis for reconstituting the Tribunal;[13]

• The applicant made his reconstitution application after the Tribunal terminated his cross-examination on the afternoon of day three of the hearing. The Tribunal had warned him several times of the irrelevance of his questions and invited him at the close of day two of the hearing to send further questions in to the Tribunal, which he did not do. The applicant was permitted to continue cross-examination on day three;[14]

• The applicant said words to the effect of "I will go off air" when the Tribunal indicated it would continue the hearing after the oral reconstitution application was made. The Tribunal invited the applicant to put any evidence in support of his case but he declined to do so.[15]

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2) If an application is made under subsection (1)(a) or notice is given under subsection

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

• the Tribunal must act fairly and according to the substantial merits of the case in all proceedings;[16]
• the Tribunal is bound by the rules of natural justice;[17]
• the Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit;[18]
• the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit;[19]
• the Tribunal must allow a party a reasonable opportunity to call or give evidence, to examine, cross-examine or re-examine witnesses and to make submissions to the Tribunal;[20]
• the Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding;[21] and
• an order or direction as to the procedure to be followed in a proceeding may be varied or revoked at any time by any member empowered under the VCAT Act or the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) to make such an order.[22]

20. In Metrospan Developments Pty Ltd v Whitehorse City Council (Metrospan),[23] Justice Kellam made a number of observations about the scope of the section in its original form in the context of a planning dispute. Despite the amendments made to section 108 of the VCAT Act after that decision was handed down, the observations are as applicable to the current form of section 108 as they were to the terms of section 108 as in force at the time of the decision in Metrospan. In particular, his Honour observed that:

• the power to reconstitute the Tribunal may be exercised at any time during 'the hearing of a proceeding';[24]

• section 108 confers a broad discretion to order reconstitution 'for any proper means or proper reason';[25]

• it appears to be a power which is likely to be exercised rarely;[26]

• the power to reconstitute the Tribunal may be exercised to ensure compliance with the rules of natural justice;[27]

• the reconstitution power cannot be used to achieve a de facto rehearing or de facto appeal of what has happened in the proceeding to date, nor be used to signify the President's disapproval as to the conduct of the hearing by the member concerned, nor be used to compromise the independence of the Tribunal in question;[28] and

• decisions to reconstitute the Tribunal are made in circumstances which are necessary to deal with the exigencies of the particular hearing, and that applications for reconstitution are usually made orally and mostly unsupported by transcript or affidavit material.[29] His Honour also observed that the determination of whether or not, there is for instance, a prima facie case of apprehended bias, cannot be seen as a final determination of that issue.[30]

21. These principles have been favourably referred to by subsequent Presidents of the Tribunal.[31]

22. In Metrospan, Justice Kellam P said in his Honour's opinion it would be a proper exercise of the discretion to reconstitute a Tribunal where there is merely a risk that there may be a compromise of the rules of natural justice.[32] However, his Honour found that the test is not whether it would be better for another Tribunal to hear the matter, but whether the Tribunal presently constituted might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding.[33]

23. Metrospan was decided prior to the High Court decision in Ebner v Official Trustee in Bankruptcy (Ebner),[34] which sets out the contemporary test for apprehension of bias.

24. The test of apprehended bias stated in terms used by the High Court in Ebner as adapted to apply to the Tribunal is whether 'a fair-minded lay observer might reasonably apprehend that the [Tribunal member or members] ... might not bring an impartial mind to the resolution of the question the [Tribunal] ... is required to decide'.[35] The assessment must be made by reference to a double 'might'.[36]

25. This test, that the member might not bring an impartial mind to the resolution of a question, requires no prediction about how the member will in fact approach the matter. As observed in Ebner, '[t]he question is one of possibility (real and not remote), not probability'.[37]

26. In Seachange Management Pty Ltd v Benvol Constructions & Developments Pty Ltd (Seachange),[38] Judge Ross AP quoted with approval the words of Kirby J in Johnson v Johnson,[39] who observed that the fictitious fair-minded observer is:

not a person wholly uninformed and uninstructed about the law in general or the issue to be decided ... Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context... [the fictitious fair-minded observer] is neither complacent nor unduly sensitive or suspicious.[40]

27. Judge Ross AP also reiterated that the fictitious fair-minded observer 'must also now be taken to have at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within reasonable limits and to ensure that time is not wasted.'[41]

28. In the same case, it was observed by Judge Ross AP, that '[i]t is also important to observe that members ought not accede too readily to apprehended bias applications'.[42] As the High Court observed in Re JRL Ex parte CJL:[43]

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that they by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

29. The High Court in Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd also said 'the basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties.'[44]

30. In State of Victoria v Bradto Pty Ltd,[45] Justice Morris P observed that judges must make rulings and must make decisions. His Honour stated:

When a judge makes a ruling or a decision, more often than not someone will be displeased. In the course of a lengthy proceeding there will often be rulings at an early stage which will not only affect the future course of that proceeding but will be displeasing to one or other of the parties. If one were to take an unduly sensitive approach to the consequence of rulings, it would make the administration of justice impossible. A robust view must be taken. It must be accepted that when a judge makes a ruling during the course of a case, that does not mean that the judge is incapable of fairly and impartially making future rulings, or a final decision, in the case.

31. His Honour further stated: '[t]he fact that a ruling or judgment is expressed forcefully, even colourfully, is not a basis for concluding that the judge is not impartial or should be apprehended to be biased'.[46]

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.[47]

33. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

34. Finally, in respect of how the governing principle of apprehended bias is to be applied the High Court has stated in Isbester v Knox City Council:[48]

The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

35. The applicant has made it clear in his material filed that there have been a number of factors within his personal life that have prevented him from complying with the orders made by this Tribunal in relation to the determination of the reconstitution application. I am satisfied that the Tribunal has accommodated the applicant to an appropriate degree. I do not accept the applicant's submissions that the Tribunal has not provided ample and adequate time for him to make his submissions relating to the reconstitution application. I do not accept that there is any basis for a complaint that an oral hearing was required. Section 100 of the VCAT Act provides for a determination to be made on the documents and it is abundantly clear that there is no obligation to provide an oral hearing just because one party demands it. Rather, the Tribunal may determine to proceed in this manner over the objection of a party if it is of the opinion that the objection is unreasonable.

36. I have had the opportunity to review the material to hand as well as listen to the recordings of the hearing.

37. I am not satisfied that there is any basis to form the requisite opinion that reconstitution of the Tribunal is appropriate or warranted in the circumstances. In accordance with the applicable test in Ebner, neither bias nor suspicion of bias has been demonstrated by the applicant. I also consider the Tribunal not only afforded procedural fairness to the applicant, but went above and beyond the obligations owed to him in being given a reasonable opportunity to present his case.[49]

38. The applicant's argument that he was not given enough opportunity to call evidence is without basis. The obligation on the Tribunal is that there be a reasonable opportunity, and not an open ended one, to call evidence, cross examine and make submissions.[50] This obligation is also one that must be taken in conjunction with the general procedural obligations set out in section 98 of the VCAT Act. Additionally, section 102(2) of the VCAT Act provides that the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal. In listening to the recording of the hearing, it is clear that the applicant did not take a favourable view as to how the hearing was progressing. It is not enough that the applicant is merely displeased by the Tribunal conducting itself in a way that is efficient.[51] Rather, there is an obligation on the Tribunal to conduct the proceeding with appropriate expedition.[52]

39. I accept the respondent's version of events in that the applicant was not ejected from proceedings. Judge Jenkins did not prohibit the applicant from participating in the hearing. Judge Jenkins was in fact, encouraging of the applicant to fully participate. The applicant, having exercised his choice to not participate in the hearing does not translate to the applicant being 'gagged' in any way. While the applicant was muted on occasion, I consider that this was done as a means to direct the Tribunal to function in a way that was necessary and deal best with the important issues that required determination. In other words, it was to deal with the competing demands on the time and resources of the Tribunal.[53]

40. Judge Jenkins accepted that the applicant was too sick to participate in day one of the hearing. However, her Honour accepted the proposition made by the respondent's counsel, that it would be sensible for the hearing to continue on the basis that the respondent could put its case and provide the applicant the transcript. The applicant was invited to put his opening in writing due to him being of poor health. The applicant was also proffered the recording of the hearing in order to assist him in preparing material relevant for cross-examination in addition to being offered the transcript of day one, as paid for by the respondent. The recording of the respondent's opening and evidence that he had missed was played in real time on day two of the hearing when the applicant stated that he had not received the transcript and had been unable to play the recording. In the circumstances, the Tribunal has provided an appropriate mechanism to enable the applicant to participate in the hearing.

41. The decision of Judge Jenkins to carry on the hearing on day one was in order to facilitate the timely resolution of the dispute, which is in accordance with the objects of the VCAT Act. It is indeed a course that was viewed as sensible by McLeish JA in Chopra v Department of Education and Training [2021] VSCA 36.

42. It is clear that members have a fundamental duty to ensure a fair trial by giving due assistance to a self-represented litigant in which 'fairness and balance are the touchstones.'[54]

43. In keeping with the above principle, the Tribunal is also tasked with doing everything within its power to resolve disputes and ensure efficiency while maintaining the principles of natural justice. In reviewing the extensive materials before me, I agree with the respondent's submission that the applicant has taken Judge Jenkins' exercise of control over the proceedings as an indication of bias.[55] I believe that the applicant's disagreement with Judge Jenkins' approach does not amount to a reasonable apprehension of bias.

44. The allegation that the length of time of the hearing being reduced amounts to bias is unfounded. Given the nature of the FOI requests, it appears reasonable that the hearing was reduced from seven days to two and a half days in duration. Such was the decision of Judge Jenkins to terminate the applicant's cross-examination. The applicant was afforded ample opportunity to put his case and was directed by the Tribunal at different points in time to put evidence and submissions that were relevant to the legal issues at hand. A fair hearing is not an unlimited hearing. The extent of time given to the applicant in the hearing and to date has afforded the applicant a more than extensive opportunity in the circumstances to present his case both in the substantive proceedings and in this reconstitution application.[56]

45. Further, there is nothing on the face of section 108 of the VCAT Act that requires a hearing to be stopped in order for the reconstitution application to be heard. Judge Jenkins permitted the hearing to continue as the reconstitution application was made late in the hearing, after 2.5 days. Given the scheduling delays experienced by the Tribunal, I believe this decision was appropriate in the circumstances.

46. To put it in terms outlined above, I do not conceive there to be any indication that a fair-minded lay observer might reasonably apprehend that Judge Jenkins might not bring an impartial mind to the resolution of the question put before the Tribunal.[57] Considering the manner in which the matter has proceeded, the Tribunal has provided a very significant indulgence to the Applicant given what might reasonably be expected.

47. Indeed, Judge Jenkins displayed courtesy and forbearance notwithstanding the applicant displayed querulous and disruptive behaviour on multiple instances throughout the hearing.

48. Judge Jenkins gave ample opportunity for the applicant to be heard and made significant concessions to accommodate the applicant, which has put a significant burden upon the Tribunal's time and resources, and that of the respondent.

49. The Tribunal owes a duty of procedural fairness to all parties in a proceeding. Whilst there may be some steps which might be argued to be required to appropriately accommodate a self-represented litigant, it is not an obligation which is without limits.[58]

50. In all of the circumstances I am satisfied that there is no breach of the Ebner test of apprehended bias and none of the matters raised by the applicant would lead a fair minded lay observer to form the view that Judge Jenkins might not bring a fair mind to the determination of the matter.

51. The application for reconstitution is refused. The proceeding will be resumed before Judge Jenkins.

[1] Chopra v Department of Education and Training [2021] VSCA 36 (McLeish JA).

[2] Dr Manu Chopra, Affidavit filed in Chopra v Department of Education and Training, Z826/2018, Z872/2018, Z1065-1067/2018, & Z58/2019 22 April 2021 [2]-[3] ('Applicant's April Affidavit').

[3] Dr Manu Chopra, Affidavit filed in Chopra v Department of Education and Training, Z826/2018, Z872/2018, Z1065-1067/2018, & Z58/2019 29 January 2021 [22].

[6] Applicant's April Affidavit (n 2) [8].

[8] Department of Education and Training, Respondent's Closing Submissions filed in Chopra v Department of Education and Training, Z826/2018, Z872/2018, Z1065-1067/2018, & Z58/2019 14 December 2020 [62].

[10] Department of Education and Training, Respondent's Submissions in Reply on Reconstitution filed in Chopra v Department of Education and Training, Z826/2018, Z872/2018, Z1065-1067/2018, & Z58/2019 14 December 2020 [8].

[16] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 97 ('VCAT Act').

[23] [2000] VCAT 44 ('Metrospan').

[31] Gabrielidis v Hobson's Bay CC [2004] VCAT 614 (Morris P); Chiropractic Board of Australia v Hooper [2013] VCAT 417, [24] (Garde P); Legal Services Commissioner v Johnson [2012] VCAT 1482 (Garde P); Seachange Management Pty Ltd v Benvol Constructions & Developments Pty Ltd [2008] VCAT 1479 (Ross AP) ('Seachange'); Chopra v Department of Education and Training [2019] VCAT 174 (Quigley P).

[32] Metrospan (n 23) [12]. See Seachange (n 31) [21]-[48] for a discussion in relation to the appropriate contemporary test in the context of section 108 of the VCAT Act.

[34] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').

[35] See also Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108, 5 [11].

[40] Seachange (n 31) [42] quoting Johnson v Johnson (2000) 201 CLR 488, [53].

[41] Ibid [45] quoting Johnson v Johnson (2000) 201 CLR 488, [13] (Kirby J).

[43] [1986] HCA 39; (1986) 161 CLR 342, 352.

[44] [1992] HCA 30; (1992) 107 ALR 581, 583.

[45] [2005] VCAT 2512 [21] ("State of Victoria v Bradto Pty Ltd").

[47] Ebner (n 34) [19] (Gleeson CJ, McHugh , Gummow and Hayne JJ).

[48] [2015] HCA 20; (2015) 255 CLR 135 [20] (Kiefel, Bell , Keane and Nettle JJ).

[49] Roberts v Harkness [2018] VSCA 215, 24-25 [49].

[51] State of Victoria v Bradto Pty Ltd (n 45); Chopra v Department of Education and Training [2019] VCAT 174 [57].

[53] Roberts v Harkness (n 46) [49]; Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216, 1 [2], 23[63].

[54] Tomasevic v Travaglini [2007] VSC 337 (Bell J).

[55] Respondent's Submissions in Reply on Reconstitution (n 10) [20].

[56] See Chopra v Department of Education and Training [2019] VCAT 174 [52].

[57] See Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108, 5 [11].