Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSC 201

1 These proceedings relate to a design and construct contract for the construction of a rail freight terminal, a container paved area and a locomotive workshop together with associated facilities in Penfield, South Australia (the "Contract"). The Contract, which incorporates Australian Standard Contract AS4300-1995, is governed by Victorian law.

2 The plaintiff, Lysaght Building Solutions Pty Ltd is the contractor under the Contract and the defendant, Blanalko Pty Ltd is the principal.

3 By summons dated 7 November 2012, the plaintiff sought summary judgment for three progress payments payable under clause 42.1 of the Contract ("Clause 42.1") in the total sum of $3,130,522.97 (or alternatively $3,119,591.24) plus GST. These progress payments are claimed to have been outstanding from March to July 2012. The progress payment claims were not made under the Building and Construction Industry Security of Payment Act 2002 (NSW) or its interstate equivalents.

4 On 27 February 2013, the defendant filed a defence denying liability, and a counterclaim which:

(a) sought damages for alleged breaches of the Contract;

(b) sought payment of a debt in the sum of $1,984,880.71 relying on a certificate purportedly issued by the Superintendent on 2 January 2013 (the "January Certificate");

(c) claimed various waivers and estoppels against the plaintiff; and

(d) purported to join Twentieth Superpace Nominees Pty Ltd (trading as SCT Logistics) ("SCT") as a second plaintiff by counterclaim.

5 By summons dated 8 March 2013, the defendant seeks summary judgment in respect of the amount it alleges is owing under the January Certificate.

6 By amended summons dated 14 March 2013, the plaintiff sought, in addition to its application for summary judgment:

(a) to stay each of the matters raised in the defendant's counterclaim pursuant to s 8 of the Commercial Arbitration Act 2011;

(b) alternatively, a declaration that the January Certificate is invalid and of no effect; and

(c) an order that the purported joinder of SCT be set aside or struck out as irregular.

7 Relevant events are set out in the chronology below:

The plaintiff and the defendant entered into the Contract.

The plaintiff submitted a progress payment of $657,976.74 plus GST for the month of February 2012 (the "February Payment Claim").

The plaintiff claims that the superintendent, Michael Zerbst (the "Superintendent") approved the February Payment Claim, his email constituting a payment certificate under Clause 42.1.

Alternatively, the plaintiff claims that the Superintendent failed to issue a payment certificate in relation to the February Payment Claim.

The plaintiff claims that the February Payment Claim Amount became payable by Clause 42.1 being either 14 days after approval/certificate or 28 days after submission.

The plaintiff submitted a progress payment of $1,338,044.94 plus GST for the month of April 2012 (the "April Payment Claim").

The plaintiff claims that the Superintendent approved the April Payment Claim, his email constituting a payment certificate under Clause 42.1.

Alternatively, the plaintiff claims that the Superintendent failed to issue a payment certificate in relation to the April Payment Claim.

The plaintiff claims that the April Payment Claim Amount became payable by Clause 42.1 being either 14 days after approval/certificate or 28 days after submission.

The plaintiff submitted a progress payment of $868,414.27 plus GST for the month of May 2012 (the "May Payment Claim").

The plaintiff claims that the Superintendent requested amendments to the May Payment Claim.

The plaintiff submitted a progress payment of $849,908.17 plus GST for the month of May 2012 (the "Revised May Payment Claim").

The plaintiff claims that the Superintendent requested amendments to the Revised May Payment Claim in relation to the amount claimed for landscaping.

The plaintiff claims that the Superintendent approved the Revised May 2012 Payment Claim, his email constituting a payment certificate under Clause 42.1 in the Approved May 2012 Claim Amount.

Alternatively, the plaintiff claims that it submitted a progress payment of $839,970.25 plus GST for the month of May 2012 (the "Further Revised May Payment Claim"), in respect of which no response was received from the Superintendent.

The plaintiff claims that the Superintendent failed to issue a payment certificate in relation to the Further Revised May 2012 Claim.

The plaintiff claims that the Revised May 2012 Claim Amount became payable by Clause 42.1, being either 14 days after approval/certificate or, alternatively, the Further Revised May 2012 Claim Amount became payable 28 days after submission.

The plaintiff's summons for summary judgment in respect of payment for three progress payments was filed.

The defendant filed a defence denying liability and filed a counterclaim.

The defendant's summons seeking summary judgment in respect of the amount it alleges is owing under the January Certificate was filed.

Plaintiff filed its amended summons dated 14 March 2013.

8 The Supreme Court is empowered to order summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (the "CPA") or Order 22 of the Supreme Court (General Civil Procedure) Rules 2005 (the "Rules").

1. Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

10 A further statutory overlay applies under the CPA. Notwithstanding s 63 the Court retains a discretion to refuse summary judgment and order that the proceeding continue to trial, even if there is no real prospect of success in the defence.[1] Section 64 provides:

64 Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[2]

22.01. Scope of Order

This Order applies only to a proceeding commenced by writ.[3]

12 This proceeding was commenced, not by writ, but by way of an Originating Process [SCV-CMS] filed 4 October 2012.[4]

13 Accordingly, the Order 22 procedure has no application, and the applications for summary judgment fall to be considered entirely under the CPA provisions.

14 The plaintiff submitted that the test under s 63(1) of the CPA - "a claim, defence or counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success"[5] - is easier to satisfy than the test previously required to be met by a plaintiff seeking summary judgment under O.22 of the Rules. Whilst it did not fully develop this argument in its oral submissions before me, this submission nevertheless on its face appears to have some force.

15 The Court has always possessed the power, in the exercise of its inherent jurisdiction, to stop the abuse of its process where it is being exploited for the airing of groundless claims. So much was made plain by Dixon J in Dey v Victorian Railways Commissioners ("Dey"), where his Honour observed:

The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims.[6]

16 But even in these circumstances, the Court must proceed with due caution. Dixon J in Dey described the principle in the following way:

The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

...

In Burton v. Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, at p 2; [1908] HCA 57; 14 ALR 529, at p 34 , O'Connor J said: Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.[7]

17 Prior to the commencement of the CPA, the various tests which have been developed and applied by the Court in dealing with summary judgment applications, whether in the exercise of its inherent jurisdiction or under Order 22 of the Rules.

18 As Mukhtar AsJ observed recently in Charles Lloyd Property Group Pty Ltd v Buchanan ("Charles Lloyd")[8] before the CPA, various epithets have been used to describe the "no real question to be determined" test described by Dixon J in Dey by equating it practically with a requirement that a case has to be "hopeless" or "bound to fail" or "beyond argument" before the summary judgment procedure under O.22 will be invoked.

19 However, ultimately each formulation of the test may be seen as sourced from and reflecting the fundamental tenets described by Dixon J in Dey. The case recognised the need for a test to reconcile the tension between the two elements identified, namely: on the one hand the need to provide a facility for a court to stop the abuse of its process when it is engaged to determine a groundless claim; and on the other hand the need to preserve the rights of litigants to submit their cases for determination by a court possessed of the necessary jurisdiction.

20 Mukhtar AsJ in Charles Lloyd also observed that allied with the approach in Dey were these well established principles which apply to summary judgment applications brought under the Rules:

First, exceptional caution was required especially where the outcome might turn on resolution of some disputed issues of fact. That is because facts adduced at trial might cast light and colour upon the resolution of legal issues. Secondly, and more recently, from Manderson M&F Consulting v Incitec comes the warning that summary judgment applications involve considerations extending beyond an analysis of the sufficiency of the pleadings in the case. Thirdly, if the dispositive facts were in, then it was no barrier to granting summary judgment if the Court had to undertake a comprehensive legal analysis to show that a party did not have an arguable case.[9]

[Citations omitted]

21 The question is whether s 63 of the CPA, by the formulation "no real prospect of success" introduces any new or different test to the Dey "no real question to be determined" test, or are they simply different ways of expressing the same concept?

22 In undertaking this analysis, it is useful to commence, as Mukhtar AsJ did in Charles Lloyd[10] with the Explanatory Memorandum to the Civil Procedure Bill 2010. The purpose behind the legislation which introduced ss 63 and 64 of the Act in its current form was there expressed in the following way:

The Commission stated that claims or defences that are without merit create problems for the parties and the administration of justice, subjecting plaintiffs and defendants to the inconvenience and expense of litigation. The pursuit of unmeritorious claims or defences also has adverse consequences for the administration of justice. Judicial and other publicly funded resources are expended and diverted from dealing with other cases.

The Commission stated that the summary judgment procedure is too restrictive, that the applicable test should be liberalised and that the procedure should be used more frequently and flexibly to dispose of claims or defences that are unmeritorious. It recommended that summary disposition should be available where a claim or defence has "no real prospect of success".[11]

[Emphasis added]

23 Judges of this Court at first instance have expressed the view that s 63 of the CPA in fact bears out the stated purpose reflected in the Explanatory Memorandum, and introduces a more liberalised test.

24 In Wheelahan and Anor v City of Casey and Ors (No.3) ("Wheelahan")[12] Osborn J (as he then was) accepted that the test of "no real prospect of success" may in some circumstances extend to cases not regarded as sufficiently hopeless to warrant striking out under the Rules, observing that "The appropriate enquiry is in terms of the section itself",[13] and that "The power should be exercised in accordance with the overarching purpose of the Civil Procedure Act 2010".[14]

25 In Swain v Hillman[15] the Court of Appeal considered an English rule of court in similar terms. Lord Woolf MR said:

The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or ... they direct the Court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success.[16]

26 Croft J in a very through analysis in JBS Southern Aust Pty Ltd & Anor v Westcity Group Holdings Pty Ltd & Ors ("JBS Southern")[17] considered the applicable principles in an appeal from an Associate Justice in the context of an application for summary judgment pursuant to ss 63 and 64 of the CPA.

27 His Honour in JBS Southern noted that the provisions of the Act with respect to summary judgment are a departure from the position provided for under Rule 22.02,[18] reasoning that:[19]

Various descriptions of the test to be applied under the test as provided for in the Rules appear in the authorities. The Full Court discussed this test in Australian Can Co Pty Ltd v Levin & Co Pty Ltd:[20]

"From all this it appears that where there is a real case to be investigated in fact or in law, leave to defend should be given ... But in whatever language the discrimen is expressed to determine in what cases liberty to the plaintiff to sign judgment or liberty to the defendant to defend should be given, the length at which or the detail in which or the vigour with which counsel has argued the matter cannot be the determining factor. So to hold would be to allow the pertinacity or ingenuity of counsel or even the tolerance of the judge to obscure the real requirement of the rule. Whatever the language various Courts have used, it seems to us that the substance of the criterion to be applied is that after the matter involved has been explained to the Judge there must be a real uncertainty without full argument or further investigation of the facts as to the plaintiff's right to judgment".

In Fancourt v Mercantile Credits Ltd the High Court said:[21]

"The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

Even if the Court considered that there was no question for which there ought to be a trial, Rule 22.06(1)(b) provides a discretion whereby the Court may refuse summary judgment if "there ought for some other reason be a trial of that claim or part". It was clear on the basis of the test formulated in these terms that summary judgment would rarely be given.

28 Croft J in JBS Southern considered that the "no real prospect of success" test in s 63 of the Act was cast "differently and in more liberal terms than the existing test",[22] observing that:

The new test for summary judgment, that it be shown that the claim, defence or counterclaim has "no real prospect of success", is clearly intended to be a liberalisation of the requirements of the test as provided for in the Rules. The new test was recommended by the Victorian Law Reform Commission:[23]

"The threshold issues is whether there should be a liberalisation of the criteria for summary disposal of a claim or defence. On balance, the commission has concluded that the present requirements to show that there is no defence, or no cause of action, or no real question to be tried are unduly restrictive. Summary disposition should be available where a claim or defence has 'no real prospect of success'. This is arguable a more liberal test, is consistent with the rules applicable in some other jurisdictions, and a change in the formulation may encourage a more robust approach to be adopted by parties and courts".

29 In Spencer v The Commonwealth ("Spencer"),[24] s 31A(1) of the Federal Court of Australia Act 1976 (the "Federal Court Act") was considered by the High Court. The section provided for a party prosecuting a proceeding to obtain summary judgment against a respondent, and is in the following terms:

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart from this section.

(5) This section does not apply to criminal proceedings.

30 French CJ and Gummow J noted in the course of their reasoning in Spencer that a proceeding need not be "hopeless" or "bound to fail" for it to have "no reasonable prospect of success" as defined in the section.[25]

31 French CJ and Gummow J said further in relation to the relevant Federal Court powers under consideration:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.[26]

32 French CJ and Gummow J observed further that the same applies where such a disposition is sought in a summary judgment application supported by evidence.[27] As to the latter, their Honours cited in support another decision of the High Court in Fancourt v Mercantile Credits Ltd,[28]where it was said:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

33 French CJ and Gummow J noted that more recently, in Batistatos v Roads and Traffic Authority (NSW)[29] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[30] which included the following observation:

Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways,[31] but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Emphasis added]

34 Nevertheless, although the High Court in Spencer was dealing with an equivalent (but not identical) provision of the Federal Court Act, (s 31A, which referred to "reasonable", rather than "real", prospects of success), the High Court did not doubt that a different standard was to be applied from that which had previously applied under the Rules.[32]

35 After a careful analysis of the relevant authorities and the policy considerations lying behind the introduction of the new test in the CPA, Dixon J in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd ("Ottedin")[33] summarised the principles which he considered now applied to a summary dismissal application. They were as follows:

(1) If a proceeding or defence, or any particular claim, cause of action or ground of defence ("claim") is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought be summarily dismissed. In other words, a claim which ought be dismissed under the old test will be dismissed under s 63.

(2) Section 63, however, is less stringent. It does not direct an inquiry into whether a certain and concluded determination could be made that the proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a "fanciful" prospect of success.

(3) The court's discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based in a consideration of the interests of justice. The Act provides direction in Part 2.1. The discretion is to be exercised to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute between the parties. The court's powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.

(4) The court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.

(5) The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.

(6) That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.

36 In Dattner v Wharton[34] Habersberger J cited the principles stated by Dixon J in Ottedin with approval, noting that in his Honour's opinion "these principles apply mutatis mutandis to an application by a plaintiff for summary judgment, such as the present one seeking summary judgment for possession".[35]

37 Mukhtar AsJ in Charles Lloyd noted that other judges have reached the same conclusion about the liberalised test, "whilst of course adding that despite that, the power has to exercised with great care and (returning to the Dey formulation) only when there is no real question to be tried".[36] In addition to the cases cited above, his Honour also referred to: Samfa v Hilane;[37] Jackson v Newns;[38] and Westpac Banking Corporation v Tesoro,[39] which were to similar effect.

38 In Westpac Banking Corporation v Tesoro[40] Lansdowne AsJ acknowledged that a number of cases in this Court [41] have now held that the statutory test is a lower threshold than the test previously to be met by a plaintiff seeking summary judgment under Order 22. Pointing to the difference between the two, her Honour stated that under the previous test:[42]

...the plaintiff was required to show that any proffered defence was bound to fail. Now it is not necessary to show that the defence is bound to fail - it is sufficient if its prospects of success are fanciful rather than realistic. Although the threshold for summary judgment is lowered, the Court is still required to exercise the power with caution.[43]

39 I now turn to the determination of the Court of Appeal in Karam v Palmone Shoes Pty Ltd ("Karam"),[44] which was decided on 15 May 2012, a few days after Westpac Banking Corporation v Tesoro. Nettle and Osborn JJA, in the course of delivering an ex tempore judgment on an applications day, said this:[45]

There is then the question of summary judgment. Since the coming into force of s 63 of the Civil Procedure Act 2010, the test for summary judgment in favour of a plaintiff in a civil proceeding has been whether a defence or part of it 'has no real prospect of success'. In terms, it is a little different to the criterion under Rule 22.02 of the Supreme Court (General Civil Procedure) Rules 2005, of whether the defendant has no defence. But the change in terms was not intended to establish a new or different test; rather to express more accurately the way in which the rule had been interpreted by the courts. It remains, as the High Court said in Fancourt v Mercantile Credits Ltd, that the power to order summary judgment is to be exercised sparingly and not 'unless it is clear that there is no real question to be tried'. Accordingly, we agree with the judge that the Magistrate correctly identified the test for summary judgment as being that it should only be granted if it is clear there is no real question to be tried.

40 With the greatest of respect to the Court of Appeal sitting in Karam, these observations constitute a departure from the body of case law decided in this Court which have been referred above, and conveniently footnoted by Lansdowne AsJ in Westpac Banking Corporation v Tesoro.[46] They also appear to be inconsistent with the observations of Osborn J (as he then was) in Wheelahan v City of Casey, which have been referred to above.

41 In addition, the following observations may be made about Karam: First, this was a case where the appellant, against whom summary judgment had been granted, was a litigant in person who did not appear on the appeal; Second, it is apparent that the previous authorities on point determined by this Court were not cited to the Court of Appeal, and as a consequence, were not considered by it; Third, the Court of Appeal did not have occasion to consider the explicit statement in the Explanatory Memorandum about the restrictiveness of the pre-existing test and the intention to introduce a liberalised test.

42 The facility for summary judgment is an important Court process. In particular, it is a significant part of the daily work of the Associate Justices of the Court.

43 In the light of the authorities as they now stand, as discussed in these reasons, the issue of the appropriate test to be applied under s 63 of the Act was not fully argued before me. It was raised in a written Reply document delivered by the plaintiff to the Court in response to the defendant's oral submissions made on 4 April 2013, purportedly pursuant to a direction given on that day. However, I am not satisfied that the defendant has had the opportunity to fully address the matters raised in that document. Indeed, the defendant objected to the written Reply submissions on the ground that they went beyond the direction that was made.

44 I consider that the question should be re-argued before any decision is made on the present applications, and it is appropriate to have the matter argued before the Court of Appeal.

45 Section 17B(1) of the Supreme Court Act 1986 provides:

17B. Reference of matters to Court of Appeal

(1) Any case or question in a case which for any reason is deemed fit to be re-argued before decision or to be re-heard before final judgment, may be argued before the Court of Appeal, if the Trial Division so directs.

It is necessary in this application to direct accordingly.

(a) Pursuant to s 17B(1) of the Supreme Court Act 1986 the question as to the formulation of the test to apply under s 63 of the Civil Procedure Act 2010 and the appropriate approach to the practical application of the test under the section is directed to be argued before the Court of Appeal.

(b) The costs of the reference to date will be ordered to follow the costs of the applications.

(c) It will be noted in "Other Matters" that the reference is scheduled for hearing before the Court of Appeal on 27 May 2013.

[1] Civil Procedure Act 2010 (Vic) s 64.

[2] Civil Procedure Act 2010 (Vic) s 64.

[3] Supreme Court (General Civil Procedure) Rules 2005 (Vic) O.22.01.

[4] Rule amendments are currently before the Rules Committee to enable a proceeding commenced by Originating Process [SCV-CMS] in the Court's "RedCrest" case management system, which is supported by a statement of claim, be deemed to be a writ for the purposes of O.22.01, note that these have not yet been passed.

[5] Civil Procedure Act 2010 (Vic) s 63.1.

[6] Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91.

[7] Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91-92.

[8] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [49].

[9] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [50].

[10] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [51].

[11] Explanatory Memorandum, Civil Procedure Bill 2010 (Vic), 24.

[12] Wheelahan and Anor v City of Casey and Ors (No.3) [2011] VSC 15 [8].

[15] Swain v Hillman (2001) 1 All ER 91; cited by Osborn J in Wheelahan and Anor v City of Casey and Ors (No.3) [2011] VSC 15 [9].

[16] Swain v Hillman (2001) 1 All ER 91, 92; See too: White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298, 312 [59] and cases there reviewed; Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, 235 (Williams JA).

[17] JBS Southern Aust Pty Ltd & Anor v Westcity Group Holdings Pty Ltd & Ors [2011] VSC 476.

[20] [1947] VicLawRp 47; [1947] VLR 332, 334-335.

[21] [1983] HCA 25; (1987) 154 CLR 87, 99.

[23] Victorian Law Reform Commission, Civil Justice Review Report, Report No.14 (2008), page 355 at 10.7.

[24] [2010] HCA 28.

[28] [1983] HCA 25; (1983) 154 CLR 87, 99.

[29] [2006] HCA 27; (2006) 226 CLR 256, 275 [46].

[30] [2000] HCA 41; (2000) 201 CLR 552, 575-576 [57].

[31] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62,91 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ).

[32] See too: J. Forrest J in Matthews v SPI Electricity Pty Ltd [2011] VSC 168, [19]; and Croft J in JBS Southern Aust Pty Ltd & Anor v Westcity Group Holdings Pty Ltd & Ors. [2011] VSC 476, [48].

[33] [2011] VSC 222, [18].

[34] [2011] VSC 610.

[37] [2011] VSC 644.

[38] [2011] VSC 32.

[39] [2012] VSC 182.

[40] [2012] VSC 182 (decided 8 May 2012).

[41] Wheelahan and Anor v City of Casey and Ors (No.3) [2011] VSC 15, [8] (Osborn J as he then was); Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd v Utility Services Corporation Limited and Ors (Ruling No.2) [2011] VSC 168, [18]-[22] (J.Forrest J); Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd and anor [2011] VSC 222, [8]-[18] ("Ottedin") (Dixon J); JBS Southern Australia Pty Ltd and Anor v Westcity Group Holdings Pty Ltd and Ors {2011] VSC 476, [39]-[50] (Croft J); Dattner v Wharton [2011] VSC 610, [43] (Habersberger J); Samfa Pty Ltd v Hilane Pty Ltd and Ors [2011] VSC 644, [9]-[10] (Davies J). The Court of Appeal in Manderson M&F Consulting v Incitec Pivot Ltd [2011] VSCA 44 ("Manderson") cautioned at [30] that there is not yet sufficient judicial attention to clearly differentiate s 63 from the procedure under the Rules but did not overrule the cases earlier cited.

[44] [2012] VSCA 97.