Maisano v Bodycorp Repairers Pty Ltd [2015] VSC 353

2 Upon those submissions being completed, the applicant, Oakley Thompson & Co Pty Ltd ("Oakley Thompson"), moved the court for relief set out in a summons filed on 14 July 2015 in this proceeding ("the Costs Court Proceeding"). In essence, Oakley Thompson seeks to be joined as a plaintiff in the Costs Court Proceeding, and to have the plaintiff, Anunziato Enzo Maisano ("Maisano") removed as the plaintiff and added as a defendant.

3 Upon this application being made by Oakley Thompson, the defendant, Bodycorp Repairers Pty Ltd ("Bodycorp"), made yet another application for me to recuse myself on the grounds of apprehended bias.[2] It is not necessary to repeat why I declined to recuse myself on 18 May 2015[3] and on 17 July 2015.[4]

4 The current application arises out of the reasons delivered on 30 June 2015 for the determination of the trial of the Related Proceeding ("the Trial Judgment").[5] In particular, the following paragraph is relied upon:[6]

By way of preliminary observation, it appears appropriate that, if Oakley Thompson were to apply to be added as a plaintiff in the Costs Court Proceeding as a result of the declaratory relief granted in this proceeding, then rather than seeking to have Maisano cease to be a party, he ought to be joined as a defendant, as a necessary party. If that course were adopted, it would be a matter for Maisano as to whether he wanted to take any active part in the further hearing of the taxation. Of course, it would also have the consequences that: (1) Maisano will be bound by the outcome of the Costs Court Proceeding; and (2) the Costs Court Proceeding could not be finally settled on all issues without the agreement of Maisano. The parties can be heard as to this issue in due course.

5 In addition, Bodycorp refers to paragraph 137 of the Trial Judgment. In particular, it is stated that it was proposed to grant certain relief which included an order that any application made by Oakley Thompson to be added as a plaintiff in the Costs Court Proceeding, and any application to have Maisano joined as a defendant in the Costs Court Proceeding, be filed and served by 4 pm on 10 July 2015, made returnable before me at 10 am on 17 July 2015.

6 It was submitted that by reason of the matters set out above, a reasonable apprehension of bias arose so that I should recuse myself from hearing Oakley Thompson's application for joinder in the Costs Court Proceeding.

7 In addition to the matters set out above, I concluded the Trial Judgment with the following:[7]

It may be the most convenient and efficient way to progress the Costs Court Proceeding is for a directions hearing in that proceeding to be held before me. This would enable the parties to make submissions as to all the necessary orders that ought to be made, in light of these reasons, before the taxation recommences. I will hear submissions as to the appropriateness or otherwise of such a course being adopted.

8 As is apparent, the views expressed in the Trial Judgment were preliminary and tentative in relation to whether: I should make any orders with respect to the Costs Court Proceeding; and if so, what orders ought to be made.

9 In short, nothing stated in the Trial Judgment was intended to indicate, or on any objective reading of it did it in fact indicate, that I have formed any firm view on the matters raised. It is perfectly proper and consistent with the due administration of justice for a judge, sitting without a jury, to express tentative views so that they may be brought to counsel's attention and duly addressed before any determination of the issues at hand.[8]

10 Further, I note that the preliminary observation I made in paragraph 120 of the Trial Judgment largely reflects some of Bodycorp's submissions. Bodycorp submitted Oakley Thompson's proposal to continue acting for Maisano (as a plaintiff) in the Costs Court Proceeding was unsatisfactory in circumstances where it was likely Maisano no longer wished to continue to be a plaintiff or to have Oakley Thompson act for him at all. However, it seems the premise of this submission, and my preliminary observations, may not be the position Maisano wishes to adopt. In a written submission made by Maisano on 22 July 2015, Maisano has indicated he intends to seek "recoveries of moneys by Bodycorp and its representatives". Accordingly, any tentative views I have previously expressed may well be otiose in any event.

11 In Maisano's submission dated 22 July 2015, he also sought to have me recuse myself by reason of findings in the Trial Judgment. Any adverse finding against Maisano is not material to the matters that arise on Oakley Thompson's summons filed 14 July 2015. The matters raised on that summons are procedural in nature. They do not concern any issues of credit.

12 In my view, it would be inconsistent with the overarching obligations of the Civil Procedure Act 2010 (Vic) for me not to at least entertain submissions as to whether I should make orders in the Costs Court Proceeding, and, if so, what those orders ought to be.

13 For completeness, I note the Costs Court has already referred issues in the Costs Court Proceeding to be determined by a judge of the trial division. By a summons dated 22 August 2014, prepared by Bodycorp in the Costs Court Proceeding (and handed to the Costs Court on 25 August 2014), Bodycorp sought, amongst other things, that the taxation of costs in the Costs Court Proceeding be struck out and the name of Maisano as plaintiff also be struck out. In addition, an order was sought declaring the Costs Court Proceeding a nullity and that it be stayed or struck out on various bases. On 31 October 2014, Judicial Registrar Gourlay made orders which included the following:

Pursuant to r 63.51 of the Supreme Court (General Civil Procedure) Rules 2005, matters raised by [Bodycorp]'s application dated 22 August 2014 is referred to the judge in the Practice Court to be heard with proceeding S CI 2014 5814 [ie the Related Proceeding].

14 In the circumstances, the application for me to recuse myself on the grounds of apprehended bias is dismissed, with costs reserved.

[1] Oakley Thompson & Co Pty Ltd v Maisano (No 3) [2015] VSC 350.

[2] Applications were made previously in the Related Proceeding on 14 and 15 May 2015, and again on 17 July 2015.

[3] Oakley Thompson & Co Pty Ltd v Maisano [2015] VSC 209.

[4] Oakley Thompson & Co Pty Ltd v Maisano (No 3) [2015] VSC 350.

[5] Oakley Thompson & Co Pty Ltd v Maisano (No 2) [2015] VSC 210.

[8] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 571.6 (Brennan, Deane and Gaudron JJ).