COSTS - Costs of the appeal - Costs ordinarily follow the event except where the justice of the case requires a different result - Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 and Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53 applied - Appellant successful on appeal - Appellant's solicitors and appellant's senior counsel and second respondent responsible for mistrial - Appellant herself not responsible - Second respondent to pay the appellant's costs of appeal.

LEGAL PRACTITIONERS - Power to order costs against a solicitor or barrister under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 and s 29 of the Civil Procedure Act 2010 - Alterations made by solicitor to expert report - Failure by senior counsel to disclose supplementary report - Appellant's solicitors and senior counsel at trial to each indemnify 40% of the costs second respondent ordered to pay appellant.

APPEAL - Whether to remit matter to trial judge or order new trial before different judge or before jury - New trial would cause wastage and injustice - Section 7 of Civil Procedure Act 2010 applied - Trial judge had commenced inquiry in relation to conduct of solicitors and counsel at trial under Civil Procedure Act 2010 - Matter remitted to trial judge to be determined on basis of evidence already led in trial and any further evidence he admits - Liberty to apply reserved should trial judge recuse himself.

1 I disagreed with the majority as to whether the appeal should be allowed and held that the course adopted by the trial judge was acceptable and appropriate in the circumstances. Notwithstanding my disagreement as to the outcome of the appeal, I agree with the reasons for judgment of Whelan JA on the question of costs and with the disposition his Honour proposes.

2 I agree with Whelan JA, for the reasons he gives, that the proceeding should be remitted to be tried as a cause before Dixon J alone. I also agree with the costs orders his Honour proposes. In my view, the primary factor guiding the exercise of the discretion to award costs of the appeal must be the success of the appeal and the respective causes of the miscarriage of the trial that led to the appeal.

3 It is important that Mrs Hudspeth herself not have to bear any costs of the appeal, including disbursements. The attribution of responsibility for the miscarriage of the first trial lies primarily with the second respondent, senior counsel for Mrs Hudspeth, and Mrs Hudspeth's instructing solicitors. Given that Mrs Hudspeth succeeded on the appeal, it is only appropriate that in effect they each pay a proportion of Mrs Hudspeth's costs. I agree that Mr J B Richards SC and Clark, Toop & Taylor should each indemnify the second respondent for 40 per cent of the second respondent's liability to pay Mrs Hudspeth's costs of the appeal. The set of forensic decisions made by Mr Richards at trial clearly provoked the response made by senior counsel for the second respondent that was the immediate or direct cause of the mistrial. I also agree with Whelan JA that the conduct by Clark, Toop & Taylor relating to the two versions of the 9 April 2010 report came close to the behaviour of which senior counsel for the second respondent wrongly complained at trial in relation to the 12 November 2012 report, namely, that Mrs Hudspeth's legal team had sought to have Mr Dohrmann alter his record of the version of events Mrs Hudspeth had narrated to him at the school in February 2010. The existence of

the two versions of the 9 April 2010 report contributed to the regrettable suspicion between the legal practitioners at trial and the misconduct since revealed further justifies the need for an adverse costs order to be made personally against the firm of Mrs Hudspeth's instructing solicitors.

4 As Pagone J said in Gippsreal Ltd v Kurek Investments Pty Ltd, the risk of a personal costs order reinforces the duties legal practitioners owe to their clients and to the Court:

The jurisdiction to order that a legal practitioner personally pay the costs of a litigant must be exercised with caution but in an appropriate case should be exercised. ... it extends to circumstances where costs have been incurred improperly or without reasonable cause or have been wasted due to a failure by a legal practitioner to act with reasonable competence and expedition. The exercise of the power to award costs against a legal practitioner may punish the legal practitioner for misconduct but the risk of a costs order assists more generally in the administration of justice. The possibility of personal liability gives confidence to the courts and litigants that legal practitioners are acting in the best interests of their clients in accordance with appropriate professional standards as an officer of the Court with duties they are bound to uphold to clients, the courts and to justice.[1]

5 On 6 February 2014 the Court announced that it would allow this appeal and make orders at a later time. Reasons of the three members of the Court were published. These reasons assume knowledge of the matters set out in the published reasons.[2]

6 After announcing that the appeal would be allowed and publishing reasons, the Chief Justice, who was presiding, said that the parties were to have the opportunity to read the judgment before making submissions as to whether the matter should be remitted to the trial judge or to a differently constituted court, and as to costs. Reference was made to the fact that the trial judge had conducted his own inquiry in relation to what had occurred during the trial under the Civil Procedure Act 2010 (the 'Civil Procedure Act').

7 On 19 February 2014 Judicial Registrar Pedley made orders for the filing of affidavits and submissions. Provision was made for the filing of affidavits and submissions on behalf of certain non-parties, being counsel for the appellant in the trial, Mr John Richards SC and Mr Andrew Ingram, and, Ms Patricia Toop, the principal of the solicitor's firm, Clark Toop & Taylor, which acted for the appellant in the trial. In 'other matters' the Registrar recorded that the parties had agreed to an inquiry being made of Dixon J as to the present position on his inquiry, and that in response Dixon J had advised that he did not intend to complete his consideration of the issues raised in his inquiry before determination of this appeal.

8 The principal of the solicitor's firm which acted on behalf of the appellant in the trial and in the appeal, Ms Toop, swore an affidavit on 27 February 2014 in which she deposed to certain of the steps which had been taken by the trial judge on his inquiry under the Civil Procedure Act and produced two affidavits she had sworn in the course of that inquiry, one on 22 March 2013 and one on 6 May 2013. She also exhibited an affidavit sworn by the relevant expert, Mr Mark Dohrmann, on 22 March 2013 and an affidavit sworn by the appellant herself on 27 March 2013.

9 Mr Richards, senior counsel for the appellant in the trial, swore an affidavit on 26 February 2014 in which he exhibited an affidavit he had sworn on 13 March 2013 in relation to the inquiry by the trial judge. A solicitor, Louise Thompson, swore an affidavit on 26 February 2014 exhibiting an affidavit which had been sworn by Mr Ingram, junior counsel for the appellant in the trial.

Relevant corrections to evidence given during the trial

10 The additional material reveals that evidence given on some relevant matters during the trial was incorrect.

11 First, important aspects of the evidence that Mr Dohrmann gave in the trial about the two versions of his 9 April 2010 report were wrong, according to the accounts now given.

12 Secondly, the assertions made at trial and on appeal that one version of the 9 April 2010 report had been served on one of the respondents and the other version on the other were not correct. Both versions were served on both respondents. When the second version was served it was described in the covering letter as an 'updated' report.

13 Thirdly, Mr Dohrmann's third report, dated 12 November 2012, was prepared by him after he spoke to Mr Richards on 12 November 2012 and not after he had been sent the appellant's statement on 15 November 2012, as he had said was the case during his evidence.[3] According to what Mr Dohrmann and Mr Richards have now sworn, Mr Richards rang Mr Dohrmann's office on 12 November and dictated a series of proposed amendments to the assumed facts to Mr Dohrmann's secretary. She noted those changes on the yellow piece of paper which was referred to by Mr Dohrmann when he was giving evidence in the trial. Mr Dohrmann and Mr Richards then discussed the changes, and the 12 November 2012 report was prepared and emailed to Mr Richards on that day.

14 The members of this Court differed as to whether the appeal ought to be allowed. But there were no differences of substance as to the characterisation of the conduct of the appellant's senior counsel at the trial. The focus of attention was on the Dohrmann report dated 12 November 2012. All members of the Court found there had been a contravention of Order 44 by the appellant's senior counsel and that, in the circumstances, that contravention constituted conduct which was unjustified and misleading.[4] The statements made by senior counsel for the second respondent, which the majority held led to the mistrial, were, according to all three members of the Court, to be assessed in the context of the conduct of the appellant's senior counsel.

15 Accepting the accuracy of the account now given as to the circumstances surrounding the 12 November 2012 report does not relevantly alter those conclusions.

16 As to the two versions of the 9 April 2010 report, the confusion created by those two versions was also a matter addressed in all the judgments published by this Court.[5] The additional material gives rise to significant new concerns in relation to the two versions of the 9 April 2010 report which go beyond that confusion.

17 To assess the significance of the two versions of the 9 April 2010 report in the light of the additional material it is first necessary to revisit the evidence given in the trial in some respects.

The appellant's evidence at trial as to vandalism

18 When the appellant gave evidence at trial she said that there had been a lot of prior vandalism to the toilet block where the accident allegedly occurred. In particular, she referred to fires having been lit and a door having been partially removed. She said that the soap which she found on the toilet floor on the day of the accident was 'the icing on the cake', by which I interpret her to mean that it was the culmination of other vandalism she had witnessed in that area.[6]

19 When cross-examined by senior counsel for the first respondent she agreed that the soap incident was unique and that other vandalism had been unlike that.[7] She repeated evidence to that effect when cross-examined by senior counsel for the second respondent and referred again to other types of vandalism such as a hole in the wall and damage to the door.[8]

20 All prior vandalism was said to be relevant, but incidents of prior vandalism to the soap dispensers in the toilet block were potentially very significant, particularly in relation to the appellant's case against the second respondent.[9]

21 The appellant gave evidence of prior vandalism. She did not give evidence of prior vandalism to the soap dispensers.

22 Mr Dohrmann's report dated 9 April 2010 exists in two versions. Ms Toop has deposed that both versions were served on both respondents at different times.

Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed.

During evidence in the trial this version was referred to as the one 'with the not'.

24 The other version at paragraph 4.24 reads as follows:

Ms Hudspeth said that she had previously seen evidence of vandalism on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.

During evidence in the trial this version was referred to as the one 'without the not'.

25 For ease of reference a marked up comparison of the version 'with the not' and the version 'without the not' is as follows:

Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing on the soap dispensers during the few months over which they had been installed, to which she had advised her employer.

26 Paragraph 4.24 in both versions is, by its express terms, a statement of something that the appellant had said to Mr Dohrmann. Both versions of the report under the heading 'Documents and materials' state that an interview had been conducted with the appellant at Dandenong on 15 February 2010 at which, it is said, 'she gave a straightforward account of the relevant circumstances'. If there were any doubt or ambiguity about the matter, Mr Dohrmann was clear in his evidence at trial that the source of what was said at paragraph 4.24 was the appellant herself at the interview at Dandenong.[10]

Mr Dohrmann's evidence at the trial about the two versions of the report

27 The fact that there were two versions of the 9 April 2010 report first became apparent in the trial when Mr Dohrmann was being examined in chief. He was being taken through the report by Mr Richards when it became apparent that the one Mr Dohrmann was referring to was the one 'with the not' (suggesting she had not previously seen evidence of vandalism or missing soap dispensers) whereas the one Mr Richards was referring to was the one 'without the not' (suggesting she had seen previous evidence of vandalism on the soap dispensers).[11] Mr Dohrmann identified the version 'with the not' (no prior vandalism) as being the correct one because it was consistent with what he had in his notes in relation to prior soap dispenser damage.[12]

28 This position was explored in detail during cross-examination. Mr Dohrmann repeatedly identified the version 'with the not' (no prior vandalism) as being the correct one and explained that the reason why he identified that as the correct one was because it accorded with a contemporaneous note he had taken.[13] He said that the one 'with the not' was correct because:

It is consistent with my notes and my recollection.[14]

29 He said that he recognised that it was important to be accurate about what the appellant had said. He observed:

[W]hat the client tells you has got to be there, you've got to stick with that.[15]

30 The account which he gave in his evidence was one in which the version 'without the not' (prior vandalism) was a draft which he had subsequently corrected by the version 'with the not' (no prior vandalism). He explained that he had done this:

[T]o make things clearer and more in line with what I was told.[16]

I went back to the words that are in the interview, they tell me what the instructions from her were and I changed the words to follow that.[17]

32 Mr Dohrmann specifically denied that the alteration to paragraph 4.24 of the 9 April 2010 report was a result of any contact between him and the appellant's solicitors.[18]

The account now given of why there are two versions of the 9 April 2010 report

33 The additional material gives a different account of why there are two versions of the 9 April 2010 report. According to this material, what happened was as follows:

(a) The first version of the report was the one 'with the not' (no prior vandalism). That version was served on the solicitors for both respondents under cover of letters dated 12 April 2010.[19]

(b) That report was also served on a firm of solicitors acting in related litigation under cover of a letter of 11 May 2010.[20]

(c) The solicitor acting for the party in the related litigation contacted the employee solicitor at Clark Toop & Taylor who was then responsible for the matter and suggested to him that there was an inconsistency in the report in relation to what was said about prior incidents of vandalism.[21]

(d) The appellant swears that she also told the same employee solicitor that Mr Dohrmann's report was incorrect 'because it recorded that I had not seen any evidence of prior vandalism at the second [respondent's] premises'.[22]

(e) On 1 July 2010 the employee solicitor contacted an employee of Mr Dohrmann's, one Gainore Atkens.[23]

(f) As a consequence of that contact, and without any reference to Mr Dohrmann himself, a new version of the report with the same date was produced and forwarded to the appellant's solicitors containing the version of 4.24 'without the not' (prior vandalism).[24]

(g) Mr Dohrmann swears that it was 'common practice' for solicitors, including the appellant's solicitors' firm, to 'liaise' with members of his staff in relation to 'typographical and other minor errors to be dealt with, which did not require review by me'.[25] Ms Toop denies that and says there was no general arrangement whereby amendments to reports would be requested and granted without review by Mr Dohrmann personally.[26]

(h) The new version of the report, 'without the not', was then served on the solicitors for the two respondents and the solicitor for the party in the related proceeding under cover of letters dated 1 July 2010.[27] It was described in the covering letters as an 'updated' report. The respondents were not otherwise alerted to the changes. The 'Documents and materials' section was unaltered.

Significance of the new account in relation to the 9 April 2010 reports

34 There are three matters of particular concern which are revealed by the new account.

35 First, it seems to me that the version 'without the not' served under cover of letters dated 1 July 2010 was not in fact a report that Mr Dohrmann had prepared and authorised.

36 Secondly, when he gave evidence Mr Dohrmann adhered to the version 'with the not'. He now swears that version is 'incorrect'.[28] His swears the explanation he gave at trial was 'honestly given' but 'reconstructive'.[29]

37 Thirdly, ignoring the fact Mr Dohrmann had neither written nor authorised the version 'without the not', that report did not comply with Order 44. It failed to identify an important source of factual information, namely the instructions to alter paragraph 4.24 which had come directly from the appellant's solicitors. This alteration was, according to Mr Dohrmann's evidence given in the trial, inconsistent with both the note of what Ms Hudspeth had told him in the course of his interview and with his own recollection of what he had been told.

38 It seems to me that what occurred in relation to the 9 April 2010 report was very close to what senior counsel for the second respondent unjustifiably asserted that the appellant's lawyers had attempted in relation to the 12 November 2012 report. Whatever the motivations may have been, and whatever misunderstandings there were, the effect of what occurred was that the appellant's solicitors altered the account of what the appellant had told Mr Dohrmann in the course of his interview with her.

Explanations by the solicitors and expert in relation to the April 2010 reports

39 I find the explanation given for the circumstances relating to the two versions of the 9 April 2010 report by Ms Toop to be unsatisfactory. It was (to say the least) unsatisfactory for the appellant's solicitors to alter the report in the way in which they did. It was unsatisfactory to then serve it without notifying the other parties of what had happened. Ms Toop attributes all the relevant conduct to her employee solicitor. We do not know what he says about the issue. For present purposes, it cannot absolve her of responsibility in any event. She was the supervising partner and had the conduct of the proceeding on the appellant's behalf.

40 It may be that the appellant's solicitors did not know Mr Dohrmann had not approved the changes. But the kind of relationship revealed by the account given by both Ms Toop and Mr Dohrmann, whichever one of them is accepted about alterations without approval, is inconsistent with the proper independence to be expected of an expert witness.

41 Mr Dohrmann's explanation is also unsatisfactory. His position now that the version 'with the not' (no prior vandalism) is the incorrect one is a remarkable departure from his evidence in the trial. There he swore that that version was the correct one because it accorded with both his notes and his recollection of what the appellant had told him. In his affidavit he also attempts to minimise the significance of the changes that were made by suggesting that the only change was the deletion of the words 'not' and 'any'.[30] They were not the only changes that were made. The paragraph was re-written, and it was re-written by the appellant's solicitors.

Explanations by counsel in relation to 12 November 2012 report

42 Mr Richards explains the course which he took in relation to the 12 November 2012 report by saying that he was mistaken as to the effect of r 44.03(3). That is an unsatisfactory position. He accepts that. Senior counsel appearing for him apologised to the Court for what had occurred.

43 Mr Ingram explains his role in the matter by saying that he was primarily responsible for other issues. He nevertheless deposes that Mr Richards told him a further report had been obtained. He said he did not turn his mind to Order 44. That explanation is little better than Mr Richards'. He also suggests that he was told the expert's opinion had not altered and that it was possible that Mr Dohrmann's evidence would not be relied upon at all. Mr Ingram appears to suggest those matters might alter an analysis of whether Order 44 was complied with. I do not accept that. In any event, while Mr Ingram may not have been sure whether Mr Dohrmann would be called, the transcript indicates he was in court when he was called. Whatever effect he may have thought the uncertainty as to whether he would be called might have, it could not have continued once he was called.

44 The first respondent submitted that the proceeding should be remitted for re-trial before a different judge with a jury and that the appellant and the second respondent should pay the first respondent's costs of the appeal and of the first trial.

45 In relation to the remitter, six matters were relied upon. In brief summary they were:

1. The first respondent is the only party which is 'entirely blameless'.

2. The first respondent has a prima facie right to trial by jury.

3. The order on appeal should, so far as practicable, achieve a just result by restoring the parties to the position they would have been in but for the error made.

4. An order for a new trial imposes a burden on the first respondent given its success at the first trial and in those circumstances the first respondent's submission as to how that burden might best be ameliorated ought to be given particular weight.

5. It is not invariably the case that trial by judge alone is more efficient and cost effective.

6. In the light of the investigation conducted by the trial judge under the Civil Procedure Act it is not appropriate to remit the matter to that judge.

46 As to costs, the first respondent submitted that as it is 'blameless' the parties who are to blame, the appellant and the second respondent, should pay its costs of the appeal and the costs wasted on the first trial. The first respondent does not seek any orders against non-parties.

47 The second respondent submitted that the proceeding should be remitted for determination by the same trial judge as a cause, and that the costs of the first trial and the appeal should be paid by the solicitors for the appellant and by the appellant's senior counsel at trial.

48 In relation to the remitter, it was submitted that remission to the trial judge is the most just, efficient, timely and cost effective means of resolution, as provided for in the Civil Procedure Act. If a new trial before a different judge or before a jury is held the entire cost of the first trial, which lasted almost five weeks, would be wasted. Further, it submitted that a considerable period has now lapsed since the relevant events and that will inevitably affect the evidence of the lay witnesses. It submitted that the trial judge ought not to be affected by the inquiry he has already held under the Civil Procedure Act, and that the trial judge has had the benefit of observing the witnesses giving evidence, taking notes, and compiling a charge that included substantial summaries of the oral evidence.

49 In relation to costs, the second respondent relied upon the circumstances surrounding the 12 November 2012 report and upon the circumstances concerning the 9 April 2010 report as now deposed to by Ms Toop and Mr Dohrmann.

50 It was submitted on behalf of the second respondent that the 'primary factor' which ought to be relevant to the issue of costs is the respective causes of the miscarriage. It submitted that the appellant's lawyers were primarily responsible for the mistrial. In that context it was suggested that if the explanation now given about the 12 November 2012 report had been given to the trial judge and the respondents at the trial, the comments which resulted in the mistrial would never have been made.

51 In the circumstances, the second respondent submitted that the appellant's lawyers, excluding junior counsel, ought to be ordered to pay the costs of the second respondent either under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 (the 'Rules') or pursuant to s 29 of the Civil Procedure Act. In that respect reliance was placed upon the decision of this Court in Yara Australia Pty Ltd v Oswal.[31]

52 As an alternative submission to the primary submission, it was submitted that this Court could make different orders in relation to the cost of the trial and the cost of the appeal or it might make no order as to costs of both the trial and the appeal. In relation to the position of the first respondent, the second respondent submitted that the first respondent had supported the second respondent's position on the application for discharge of the jury and on the appeal.

53 On behalf of the appellant it was submitted that the respondents ought to be ordered to pay her costs of the appeal and of the trial, and that a new trial should be ordered by judge alone, other than the trial judge.

54 It was submitted that this Court ought to direct a re-trial without a jury under r 47.02 of the Rules because the re-trial will necessarily be more complicated than otherwise because of the circumstances related to Mr Dohrmann. It was submitted that the trial judge ought not to be Dixon J as he had expressed a view 'deleterious to the interests of the appellant' as to the accuracy of the assertions which had been the cause of the miscarriage.

55 The appellant submitted that the trial had miscarried because of erroneous and prejudicial assertions made by counsel for the second respondent. These assertions had been found to be not justifiable. It was submitted that if the judge had accepted the submissions made by senior counsel for the appellant at the trial and had discharged the jury and decided it himself 'then a fair trial would have been had'. In relation to the first respondent it was submitted that the unjustified submissions made by the second respondent's counsel had been 'largely' supported by counsel for the first respondent.

56 Senior counsel for the appellant emphasised the fact that the appellant herself had not been to blame for anything that occurred.

57 In relation to the costs of the trial (assuming a re-trial), the appellant relied upon Malpas v Malpas,[32] Brittain v The Commonwealth (No 2),[33] Nudrill Pty Ltd v La Rosa[34] and Baulch v Lyndoch Warrnambool Inc (No 2).[35]

58 The second respondent relied upon Rees v Bailey Aluminium Products Pty Ltd.[36]

59 In relation to costs of the appeal, the appellant submitted that costs should simply follow the event. The appeal had been successful and the appellant should have her costs.

60 Submissions were also made by three non-parties on the issue of costs. They were Mr John Richards SC, Mr Andrew Ingram and Clark Toop & Taylor. No party seeks an order against Mr Ingram. The second respondent seeks an order against Mr Richards and Clark Toop & Taylor.

61 In large measure the submissions made on behalf of Mr Richards and Clark Toop & Taylor reflected those made on behalf of the appellant. It was submitted that the second respondent's counsel was responsible for the mistrial. Counsel on behalf of Mr Richards and counsel on behalf of Clark Toop & Taylor also submitted that the issue of whether costs orders should be made against either of them in relation to the costs of the trial ought to be determined by Dixon J in the inquiry which he has conducted under the Civil Procedure Act.

62 Insofar as costs of the appeal are concerned, the ordinary principles apply.

63 In relation to the costs of the first trial, upon the assumption that there will need to be another trial, the general rule is that costs of the first trial abide the result of the second.[37] But that general rule will not apply where the justice of the case requires a different course.[38]

64 In Rees because both counsel had been responsible for the miscarriage, notwithstanding that one was primarily responsible, this Court ordered that each party bear their own costs of the first trial. In Baulch on the other hand, the party whose counsel was primarily responsible for the mistrial was ordered to pay the appellant's costs of the first trial.

65 As to the position of the lawyers, r 63.23 of the Rules empowers the Court to make orders against a solicitor or barrister in relation to costs which were improperly incurred, incurred without reasonable cause, or wasted by a failure to act with reasonable competence; s 29 of the Civil Procedure Act empowers the Court to make orders as to costs against a lawyer who contravenes any of the overarching obligations provided for in that Act.[39] Amongst other things, there are overarching obligations to disclose critical documents and not to mislead. The rules applied at all relevant times. The Civil Procedure Act commenced on 1 January 2011. It was in operation during the trial. It was not in operation when the dealings which led to the two versions of the 9 April 2010 report occurred.

66 In Yara this Court emphasised the significant changes in approach to civil litigation which the Civil Procedure Act requires,[40] particularly in relation to costs.[41]

67 Each of the parties here bears responsibility for the mistrial.

68 The second respondent's senior counsel made statements to the jury in the course of his final address which went beyond what was justified by the evidence as it then stood. It is impossible to assess with any confidence what would have occurred if the explanation now given in relation to the 12 November 2012 report had been given at the trial.

69 As to the appellant, in my view the fundamental cause of what went wrong in this trial, of which the unjustified statements by senior counsel for the second respondent were the culmination, was the manner in which the appellant's lawyers dealt with the expert, Mr Dohrmann, and his reports. That would have been my conclusion had the issue been confined to what happened in relation to the 12 November 2012 report, but it is now fortified by what happened in relation to the two versions of the 9 April 2010 report.

70 The first respondent is not 'blameless'. It supported the second respondent on the discharge application and it also supported the second respondent on the appeal.

Remittal to the trial judge or new trial before a different judge with or without a jury

71 The overarching purpose of the Civil Procedure Act and of the rules of court is, as expressly provided for by s 7 of that Act, the just, timely and cost-efficient resolution of the real issues in dispute.

72 When the problem arose at trial the appellant's counsel sought a discharge of the jury and a determination by the trial judge. The appellant's submission on appeal is that if that had been done a fair trial would have been had. That can still be done, in my view. The matter can be remitted to the trial judge to be determined by him.

73 That course is almost certainly the most timely and efficient one. The wastage and injustice which new trials inevitably create has long been recognised,[42] and the Civil Procedure Act requires that such consequences be avoided where that can be done consistently with the interests of justice. In my view, that course is also the one which is most just. The parties have already conducted a five week trial. Many lay and expert witnesses have been called and cross-examined. A judge has heard all that evidence. Unless there is a proper reason for him to disqualify himself, the most just course is for him to now decide the case on that evidence and such further evidence as he rules ought to be admitted.

74 The submission was made that the judge had expressed a view 'deleterious to the interests of the appellant'. I do not accept that he has expressed such a view in relation to the appellant herself. We can, in any event, reserve liberty to apply should the trial judge consider that he should recuse himself.

75 I accept the submission of counsel for the appellant that the appellant's costs of the appeal should follow the event. The second respondent should be ordered to pay the appellant's costs. The appellant herself bears no part of the blame for what occurred.

76 Turning to the position of the appellant's solicitors and senior counsel at the trial, in my view they are also responsible for the mistrial. The problems began with the two versions of the 9 April 2010 report. In that respect there was (at the least) a lack of reasonable competence by Clark Toop & Taylor. The conduct of senior counsel in relation to the 12 November 2012 report constituted a lack of reasonable competence, a failure to disclose a critical document required to be disclosed by Order 44, and misleading conduct, albeit not deliberately so.

77 In my view, assessed overall, the responsibility of the appellant's solicitors and her senior counsel at trial is greater than that of the second respondent. The second respondent's senior counsel mischaracterised conduct which deserved to be criticised. In that sense he went too far. It seems to me that the additional material reveals misconduct more extensive and serious than that revealed in the trial.

78 The appellant's solicitors and senior counsel should indemnify the second respondent for 80%, being 40% each, of the appellant's costs of the appeal which the second respondent will be ordered to pay. Further, orders should be made requiring them to meet any costs of the appeal incurred by the appellant which are in addition to those the second respondent has been ordered to pay and to preclude them from recovering any costs of the appeal from the appellant.

79 The first respondent should bear its own costs of the appeal.

80 I accept the submissions made on behalf of the non-parties that issues as to costs of the trial should be dealt with by Dixon J. He has held but not yet concluded an inquiry under the Civil Procedure Act. He is in the best position to determine how the costs of the trial should be borne. If he hears and determines the matter the wasted costs will to be minimized, and perhaps even eliminated.

81 Subject to hearing the parties as to matters of form, the orders I would make are these:

2. Orders 1 and 2 of Dixon J made 12 December 2012 are set aside.

3. The proceeding is remitted to Dixon J to be determined by him, unless he considers he should recuse himself, on the basis of the evidence already led in the trial before him and such further evidence as he rules may be admitted.

4. Liberty to the parties to apply is reserved in the event that Dixon J determines that he should recuse himself.

5. The costs of the trial already held are to be determined by Dixon J.

6. The second respondent is to pay the appellant's costs of the appeal on a party/party basis up to 1 April 2013 and thereafter on a standard basis.

7. The first respondent is to bear its own costs of the appeal.

(a) are to each indemnify the second respondent for 40%, making 80% in total, of the second respondent's liability under order 6 hereof;

(b) are disallowed any costs and disbursements to which they would otherwise be entitled in relation to this appeal; and

(c) are to pay equally any legal costs and disbursements incurred by the appellant in relation to this appeal which she does not recover under order 6 hereof.

[1] [2009] VSC 344, [2] (citations omitted).

[2] [2014] VSCA 003.

[3] Transcript of Proceedings, Hudspeth v Scholastic Cleaning & Consultancy (Supreme Court of Victoria, Dixon J) 709-710 ('T').

[4] [2014] VSCA 003, [25], [28]-[30] (Warren CJ), [102], [107], [109], [211], [217] (Whelan JA, with whom Tate JA agreed).

[5] [2014] VSCA 003, [29] (Warren CJ), [91], [101], [104], [117], [124]-[126], [133]-[141] (Whelan JA, with whom Tate JA agreed).

[9] They were also potentially very significant in relation to the case against a third defendant who was still a party until late in the trial.

[13] The note itself reads 'No prior obs of loose or torn dispensers' and is in Appeal Book Vol 4 D492.

[19] Affidavit of Patricia Faye Westray Toop (22 March 2013), exh PFT 3 ('First Toop Affidavit').

[22] Affidavit of Linda Hudspeth (27 March 2013), [5].

[23] First Toop Affidavit, exh PFT 6; Affidavit of Mark Francis Dohrmann (6 May 2013), [14] ('Dohrmann Affidavit').

[24] First Toop Affidavit, exh PFT 6; Dohrmann Affidavit, [14]-[16], exh MFD 5.

[26] Affidavit of Patricia Faye Westray Toop (6 May 2013), [5] ('Second Toop Affidavit').

[31] [2013] VSCA 337 ('Yara').

[32] [1885] VicLawRp 125; (1885) 11 VLR 670, 710-11.

[33] [2004] NSWCA 427.

[34] [2010] WASCA 158.

[35] [2010] VSCA 53 ('Baulch').

[36] [2008] VSCA 244; (2008) 21 VR 478, 521-25 ('Rees').

[37] Baulch [2010] VSCA 53 [6]; Rees [2008] VSCA 244; [2008] 21 VR 478, 523-4.

[38] Baulch [2010] VSCA 53 [6]-[10]; Rees [2008] VSCA 244; [2008] 21 VR 478, 524.

[39] Civil Procedure Act 2010, ss 21, 26.

[40] [2013] VSCA 337, [5]-[27].

[41] [2013] VSCA 337, [17]-[27].

[42] Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 640-42 (Dixon J); Pezzimenti v Seamer (Unreported, Victorian Court of Appeal, Tadgell, Ormiston and Charles JJA, 1 August 1996), 6 (Ormiston JA), 9 (Tadgell JA).