[T]he documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given -

(a) documents on which the party relies;

(b) documents that adversely affect the party's own case;

(c) documents that adversely affect another party's case;

(d) documents that support another party's case.[52]

1. In support of his contention that the fourth and fifth respondents were also required to give discovery pursuant to r 29.01.1, the applicant relied upon the definition of the word 'party' in s 3 of the Supreme Court Act 1986, which relevantly provided:

party includes every person served with notice of or attending any proceeding whether named on the record or not;[53]

The obligation to disclose documents imposed by the Civil Procedure Act

1. The obligation imposed by the provisions of the Civil Procedure Act to disclose the existence of documents is contained in s 26 of that Act. Section 26 provides:

26 Overarching obligation to disclose existence of documents

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

(3) Subsection (1) does not apply to any document which is protected from disclosure -

(a) on the grounds of privilege which has not been expressly or impliedly waived; or

(b) under any Act (including any Commonwealth Act) or other law.

(4) The overarching obligation imposed by this section -

(a) is an ongoing obligation for the duration of the civil proceeding; and

(b) does not limit or affect a party's obligations in relation to discovery.

1. The overarching obligations imposed by the Civil Procedure Act are set out in ss 16-26 of the Act. They include overarching obligations to act honestly[54] and not to engage in conduct which is misleading or deceptive, or likely to mislead or deceive.[55] Section 10(1) of the Act provides that the overarching obligations apply to:

(a) any person who is a party;[56]

(b) any legal practitioner or other representative acting for or on behalf of a party;

(c) any law practice acting for or on behalf of a party;

(d) any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to -

(i) an insurer;

(ii) a provider of funding or financial support, including any litigation funder.

1. The applicant contends that the bill of costs and the assignment deeds show that the fourth and fifth respondents, as parties to whom the overarching obligations apply, were required, but failed to, disclose the existence of the purportedly critical documents.

1. Generally speaking, in order for an unsuccessful party at trial to succeed on appeal in setting aside the primary judgment on the basis of fresh evidence, the unsuccessful party needs to establish that it is reasonably clear that if the evidence had been available at trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.[57] As was said in Quade, however, the application of that general rule does not serve the demands of justice in the individual case or the public interest in the administration of justice generally in a case where the unavailability of the evidence at trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his or her possession or under his or her control.[58]
2. Quade concerned a case where the successful party had 'seriously failed in the performance of its own obligations, and [had] thereby created the difficulty'.[59] The High Court said:

It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice'. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.[60]

The relevance of the purportedly critical documents

1. The applicant contends that the purportedly critical documents are relevant to three issues, which he variously identifies and defines as 'the leak explanation', 'the Kit Walker explanation', and the 'investigation defence'. We will deal with the applicant's contentions in relation to each of these issues in turn.

1. The applicant submitted that a critical issue for determination at trial was whether the information which the first three respondents had regarding the allegation that, in mid-August 2007, the applicant had leaked information to Mr Lalor about Operation Briars, provided a reasonable basis for suspending, charging and prosecuting the applicant. The applicant submitted that such a determination required consideration of any exculpatory evidence, including evidence that others may have leaked information about Operation Briars to Mr Lalor. The applicant's case was that other sources of potential (if not actual) leaks included other police, Ms Gobbo and a journalist.
2. The applicant identified the parts of the purportedly critical documents showing the existence of (or at least possibility of) leaks from people other than the applicant as being contained in:
   • source management logs relating to Ms Gobbo of 4, 6, 8, 13 and 14 September 2007;
   • the Briars Taskforce update of 22 June 2007;
   • the minutes of the board of management meeting of Taskforce Briars of 22 June 2007;
   • the Briars Taskforce update of 2 July 2007; and
   • handwritten annotations of Mr Cornelius on the Briars Taskforce update of 30 July 2007, together with a typed version of those handwritten annotations.

1. The applicant has always denied leaking information about Operation Briars. In the course of his evidence before Mr Wilcox he maintained that denial and provided an alternative innocent explanation that any warning he may have caused to be given to Mr Lalor related to the Kit Walker investigation - not Operation Briars. In his evidence before Mr Wilcox, the applicant maintained that the interception of Mr Lalor's phone was attributable to a recommencement of the Kit Walker investigation.
2. The applicant submitted that a number of the purportedly critical documents show that the Kit Walker investigation continued from March to July 2007, and was ongoing from 2 July 2007 within Operation Briars. The documents relied upon by the applicant included:
   • Mr Wilson's briefing paper to Taskforce Briars Operation Management Group dated 15 March 2007 (including Mr Cornelius's handwritten annotation to that document);
   • the minutes of the Operation Briars management committee meeting of 15 March 2007;
   • Operation Briars management committee meeting minutes of 26 March 2007, 10 April 2007, 1 May 2007, 7 May 2007, 12 June 2007, 22 June 2007, 23 July 2007 and 30 July 2007; and
   • Briars Taskforce updates dated 15 May 2007, 22 June 2007, 2 July 2007 and 30 July 2007.

1. Section 79(1) of the Police Regulation Act relevantly provided:

If the Chief Commissioner reasonably believes a member of the Force to have committed an offence punishable by imprisonment the Chief Commissioner may cause an investigation into the matter under the criminal law to be commenced and may, at any time during that investigation -

...

(c) suspend the member from the Force with pay.

1. In his statement of claim, the plaintiff pleaded:

At no relevant time prior to [the first suspension] ... [did the first respondent] cause or institute any investigation to be commenced into the alleged misconduct forming the basis for the said suspension either pursuant to s 79(1) or alternatively s 71 of the Police Regulation Act in order to inform herself properly of the true facts of the alleged misconduct.

1. In response to this assertion, the first respondent pleaded in her defence that she caused an investigation to be commenced into whether the applicant had committed an offence punishable by imprisonment by giving an oral direction to Mr Cornelius on or about 17 September 2007. It is this pleading which the applicant alleges constitutes the investigation defence. The applicant then contends that, because there was a 'comprehensive management and operational overlap' between Operation Briars and Operation Diana, the various Operation Briars Taskforce documents to which we have already referred were discoverable and disclosable by the respondents and should have been produced to the applicant by the respondents prior to trial.

1. The applicant's application for an extension of time within which to seek leave to appeal is opposed by the first, second and third respondents, but not opposed by the fourth and fifth respondents. The first, second and third respondents oppose the application for an extension of time on two bases: first, the applicant has not provided an adequate explanation for the delay in filing his proposed application for leave to appeal; and secondly, the proposed application for leave to appeal does not have any real prospect of success.
2. In our view the applicant has provided an adequate explanation for the delay in filing his proposed application for leave to appeal. It is plain that the applicant has invested a significant amount of effort in attempting to obtain documents which he believes are relevant and which were not discovered or disclosed to him until a number of years after judgment was given against him. We accept that the applicant made reasonable and appropriate efforts to obtain the purportedly critical documents, and that he was not in a position to determine whether or not he should seek leave to appeal out of time until sometime after 30 November 2020 (by which date he had been provided with all of the purportedly critical documents).
3. In his first affidavit,[61] the applicant deposed to, and exhibited, correspondence between his solicitors and the VGSO foreshadowing his proposed application for an extension of time within which to seek leave to appeal. In February 2021, the VGSO requested the applicant provide copies of a draft application for leave to appeal and draft written case. In March 2021, the applicant provided draft appeal documents and said that he was willing to participate in discussions to resolve the matter. A week later, the VGSO advised that they had instructions to accept service of appeal documents on behalf of the first three respondents. In April 2021, the applicant commenced the current proceedings against all five respondents.
4. The applicant having explained the delay in the filing of his appeal documents, the remaining issue on the extension of time application is the merits of the applicant's proposed appeal. Plainly, if the application for leave to appeal has no merit then it would be futile to grant the applicant the extension of time which he seeks. Thus, we turn to the merits of the applications seeking leave to adduce fresh evidence and leave to appeal.

Leave to adduce fresh evidence and leave to appeal

1. The applicant's applications seeking leave to adduce fresh evidence and leave to appeal are interrelated. We accept that the purportedly critical documents were not available to the applicant at trial, and that this was not caused by any lack of reasonable diligence on his part.[62] Thus, the central issues in these applications then become: (1) whether any (or all) of the purportedly critical documents were discoverable and/or required to be produced by one or some of the respondents prior to trial; and (2) whether it can be concluded that there is (at least) a real possibility that their production and use by the applicant at trial would have led to an opposite result.[63]
2. For the reasons which follow, both of these questions must be answered unfavourably to the applicant.
3. For present purposes, it can be accepted that the fifth respondent provided financial assistance to the first, second and third respondents in the defence of the applicant's proceeding at first instance. It is less clear that the fourth respondent provided any such assistance. That said, the extent to which the overarching obligations might be held to apply to the fourth and fifth respondents on the basis that they provided financial or other assistance is only 'insofar as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding'.[64] Notwithstanding the contents of the deeds of assignment and the bill of costs, it is entirely unclear to what extent (if any) either of the fourth or fifth respondents exercised any of the influence referred to in s 10(1)(d) of the Civil Procedure Act.
4. Having made these observations, and again for present purposes, we are prepared to accept that the fourth and fifth respondents were parties to whom the overarching obligations under the Civil Procedure Act applied, and that they were thus required to disclose documents that were or had been in their possession, custody or control, which they considered, or ought reasonably to have considered, were critical to the resolution of the applicant's proceeding.[65]
5. The next issue that arises is the extent of the obligation to disclose documents under s 26 of the Civil Procedure Act. In the explanatory memorandum relating to s 26 it is stated:

The term 'critical documents' is intended to capture a class of documents considerably narrower than those required to be discovered, but is broader than the concept of 'decisive' documents. The test is meant to capture those documents that a party would reasonably be expected to have relied on as forming the basis of the party's claim when commencing the proceedings, as well as documents that the party knows will adversely affect the party's case. The purpose of the early disclosure is to allow persons in dispute and their lawyers to have sufficient information upon which to have meaningful settlement discussions with the other side.

1. Section 26 of the Civil Procedure Act falls to be construed in accordance with well-known principles of statutory construction. Specifically, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), the High Court said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[66]

1. In Yunghanns v Colquhoun-Denvers,[67] Daly AsJ accepted a submission that the test for determining whether a document was a critical document within the meaning of s 26 of the Civil Procedure Act was as follows:

[A] critical document is a document which a party would reasonably be expected to have relied upon as forming the basis of a party's claim when commencing the case, as well as documents that the party knows will adversely affect the case.[68]

1. With respect, we would construe s 26(1) differently. The sub-section is to be interpreted in the context of the whole of the Civil Procedure Act and in accordance with its purposes. The overarching purpose is to 'facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[69] The overarching obligations under that Act are directed to fulfilling that purpose, focussing not only on determination of civil disputes at trial but also on earlier resolution through appropriate dispute resolution. For example, s 22 mandates the use of reasonable endeavours to resolve a dispute by agreement between the parties in dispute.[70]
2. Against that legislative backdrop, appropriate content has to be given to the words 'critical to the resolution of the dispute' in s 26(1). That language is in contrast to the language in r 29.01.1(3). The Rule uses different concepts as well as different language - concepts of reliance and whether the document affects or supports a party's case. The Rule is broader in scope. Not every document which might support or adversely affect a party's case to a slight degree on any issue, no matter the significance or otherwise of the issue, will necessarily be 'critical to the resolution of the dispute'. To this extent, in our view the critical documents which are required to be disclosed under s 26 of the Civil Procedure Act are likely to be a subset of those required to be discovered by a party under r 29.01.1(3) of the Rules (those discoverable documents being documents that are relied upon or which affect or support a party's case). The 'critical' documents are those which are crucial to each party's case and which, on this basis, if produced to the opposite party, are the most likely to lead to resolution of the dispute either by early settlement or at trial.
3. In applying that test, a person to whom the section applies should consider whether a reasonable opposing party and their legal representatives would want to see the document at an early stage of the proceeding in order to:

(a) make an assessment of whether to compromise the dispute or not; or

(b) avoid surprise at trial.

Naturally, determination of what documents are critical will be a value judgment which needs to be made in the particular circumstances of each case at the time the issue arises. As we have said, this will need to be determined having regard to the language of s 26(1) and the purposes of the Civil Procedure Act.

1. The first, second and third respondents have sworn affidavits in this Court which, with one possible exception in relation to the second respondent, tell against any conclusion that there was any breach of discovery obligations by them at or prior to trial.[71] Certainly, there is nothing in the material relied upon in this Court which would lead us to conclude that any of the first to third respondents engaged in misconduct or wilfully failed to comply with discovery obligations. Additionally, we reject the applicant's submission that there was any misconduct on the part of the first, second or third respondents in not revealing the fact that they were receiving assistance from the fourth and/or fifth respondents, or not revealing that the fourth and/or fifth respondents had some involvement in the litigation. Similarly, we are not persuaded that there was any misconduct on the part of the fourth and/or fifth respondents as alleged by the applicant.
2. Moreover, we see no reason to disagree with the conclusion of J Forrest J that, on the whole of the material, it appears that the VGSO, during the course of the proceeding at first instance, went out of its way on behalf of each of the first, second and third respondents to endeavour to provide adequate discovery.[72] Additionally, we see no basis for the applicant's criticism of the fourth and fifth respondents in relation to their responses to the subpoenas issued prior to trial by the VGSO on behalf of the first, second and third respondents.[73] In any event, the documents in issue are the same, whatever obligation to produce them is relied on, and the applicant's case is not advanced by the reliance upon the subpoenas.
3. Further, we are unable to see any basis upon which it should be concluded that the fourth and/or fifth respondents were required to give discovery prior to trial in accordance with r 29.01.1 of the Rules. No such order was sought against either the fourth or fifth respondents at or prior to trial; and notwithstanding the width of the definition of 'party' in s 3 of the Supreme Court Act, we are unable to construe O 29 of the Rules as imposing any obligation on the fourth and/or fifth respondents in the circumstances of this case.[74]
4. Having examined each of the purportedly critical documents, we are not persuaded that any of the respondents considered, or ought to have reasonably considered, that any of them were critical to the resolution of the applicant's proceeding. It follows that so far as the applicant's contentions are founded upon s 26 of the Civil Procedure Act, those claims must be rejected. The question of whether any of the purportedly critical documents were documents that adversely affected the case of any of the respondents or supported the applicant's case, and were thus discoverable under r 29.01.1, is more arguable. Having examined those documents, however, we are not positively persuaded that any of them were required to be discovered, disclosed and produced as asserted by the applicant. In our view, the issue is, at best, debatable.
5. The first point to be made is that the purportedly critical documents have no relevance to the first suspension (notwithstanding the applicant's assertion that there was some 'investigation defence'). The first suspension was founded upon the first respondent's belief that the applicant had committed offences (punishable by imprisonment) under the Telecommunications (Interception and Access) Act and the Police Regulation Act - not the offence of attempting to pervert the course of justice, with which he was subsequently charged in July 2008, and to which the purportedly critical documents were said to relate. More particularly, as was observed by Mr Wilcox,[75] by the end of the applicant's evidence given during the course of the hearings before Mr Wilcox, the applicant 'was freely admitting that he warned Mr Lalor that Mr Lalor's phone might be 'off'. It was the applicant's acceptance of these basal facts which gave rise to the first respondent's belief that the applicant had committed offences punishable by imprisonment under the Telecommunications (Interception and Access) Act and the Police Regulation Act. The Kit Walker explanation was not a defence to these charges, and thus was not required to be considered by the first respondent at the time of the first suspension.
6. The second point to be made is that none of the critical documents have any relevance to the malicious prosecution cause of action so far as it concerned the perjury charges. At best, the purportedly critical documents could only have relevance in relation to the attempting to pervert the course of justice charge.
7. In relation to the applicant's reliance upon the purportedly critical documents as showing that other people had (or may have) leaked information about Operation Briars, we are unable to see how that fact advanced the applicant's case, or was adverse to any of the first, second or third respondent's cases, in any material way. The fact that others may have been leaking information about Operation Briars says nothing about whether there was a reasonable and proper basis for believing that the applicant was leaking such information. At best, it might suggest that Mr Lalor already knew the information the applicant was alleged to have procured Mr Rix to pass onto him. That does not, however, gainsay the prosecution case that Mr Lalor immediately warned Mr Waters to 'keep a low profile'.
8. In relation to the applicant's Kit Walker explanation (ie that any warning he gave Mr Lalor that his phone might be 'off' related to the Kit Walker investigation, not Operation Briars), the best that can be said of the purportedly critical documents is that there are references to the Kit Walker investigation in them showing that that investigation was the subject of discussion from time to time by the Operation Briars Taskforce. There is, however, nothing in the documents that undermines in any material way any of the first, second or third respondent's basis for rejecting the Kit Walker explanation and concluding that there were reasonable grounds for charging and prosecuting the applicant with attempting to pervert the course of justice.
9. Moreover, as the trial judge observed, a reasonable police informant could discard the Kit Walker explanation because of the agreement (to which the applicant was a party) made in May 2007 that the Kit Walker investigation would cease pending an independent review.[76] To use the words of Mr Wilcox in the OPI report, when he rejected the Kit Walker explanation:

If Mr Mullett had really believed the 'Kit Walker' investigation had been recommenced ... he would have 'kicked down the door' of the Chief Commissioner's office. Probably, he would have done much more.[77]

1. At trial, the applicant failed to establish the first two elements of his misfeasance in public office causes of action (an invalid or unauthorised act, done maliciously) or the third and fourth elements of his malicious prosecution cause of action (malice in the initiation or maintenance of the criminal charges, without reasonable or probable cause). In fact, the trial judge was positively satisfied to the contrary, that the first and second suspensions were not invalid or unauthorised and were not done maliciously; that none of the respondents acted maliciously in the initiation or maintenance of the criminal proceedings against the applicant; and that the second and third respondents, who were responsible for the initiation and instigation of the criminal charges, had reasonable and probable cause for instigating and continuing them.[78]
2. If the applicant were required to establish that the tendering of the purportedly critical documents would likely have led to an opposite result at trial then his claim would undoubtedly fail. Even if we accepted that there had been some breach of discovery obligations by one or more of the respondents (which we do not), having examined the trial judge's reasons in detail, we are unable to conclude that there is any realistic possibility that if the purportedly critical documents had been tendered and relied upon at trial, an opposite result may have been achieved.[79] The trial judge plainly accepted the respondents as honest and reliable witnesses. Having done so, that was realistically the end of the applicant's case and the judge could not have done otherwise than dismiss the proceeding. We do not see anything in the purportedly critical documents which might give rise to the possibility that, if they had been available at trial and deployed in cross-examination of the respondents, the applicant may have succeeded against one or some of the respondents.
3. Finally, we should mention for completeness the affidavit of Mr Koo filed in this Court in support of the applicant's applications for leave to adduce fresh evidence and leave to appeal.[80] In summary, Mr Koo deposed to being provided with copies of the purportedly critical documents; that he was not aware of these documents as at 15 November 2007; and that had he been aware of the documents he would have given evidence at trial that he had serious concerns about the OPI hearing evidence being sufficient for the first respondent to form a reasonable belief that the applicant had committed a criminal offence, 'given the existence of evidence of other sources of leaking in relation to Operation Briars'. Putting to one side admissibility issues concerning Mr Koo's opinion, it is plain from his affidavit that the opinion he expresses is premised incorrectly on the proposition that the first suspension was founded on the first respondent's belief that the applicant had committed the offence of attempting to pervert the course of justice - rather than the offences under the Telecommunications (Interception and Access) Act and the Police Regulation Act to which we have already referred. In any event, nothing in Mr Koo's affidavit relied upon in this Court suggests that the evidence he would now wish to give would have any real prospect of leading to an opposite result from that achieved at trial.
4. It follows from what we have said above that the applicant's applications for leave to adduce fresh evidence and leave to appeal must be refused.

1. Having concluded that the applicant's applications for leave to adduce fresh evidence and leave to appeal must be refused, it would be futile to grant him the extension of time he seeks within which to seek leave to appeal. Accordingly, the applicant's application for an extension of time within which to seek leave to appeal will be refused.

[1] Contrary to s 86K(1)(c) of the Police Regulation Act 1958.

[2] Mullett v Nixon [2016] VSC 512 ('Trial Reasons').

[3] Mullett v Nixon [2015] VSC 727 ('Discovery Reasons').

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[42] Ibid [142]-[144], [148]-[152].

[46] Sworn on 1 April 2021, 7 July 2021, 20 February 2022 and 29 March 2022.

[48] During the course of the proceeding below, the VGSO, who were the solicitors acting for the first, second and third respondents, issued a number of subpoenas seeking documents for the purpose of discovering such documents to the applicant. Two of these subpoenas (issued on 21 May and 12 October 2015) were issued to the fifth respondent.

[49] [2017] VSC 350.

[50] See further, AB v CD [2017] VSCA 338; AB v CD [2019] VSCA 28.

[51] Table 1 attached to the applicant's further amended written case dated 29 March 2022.

[53] The word 'proceeding' is defined in s 3 of the Supreme Court Act to mean 'any matter in the Court other than a criminal proceeding'.

[54] Civil Procedure Act, s 17.

[55] Civil Procedure Act, s 21.

[56] The word 'party' is defined in s 3 of the Civil Procedure Act to mean 'party to a civil proceeding'. The expression 'civil proceeding' is also defined in s 3. It is defined to mean 'any proceeding in a court other than a criminal proceeding ['criminal proceeding' being another defined term in the Act] or quasi-criminal proceeding'. For present purposes, it is not necessary for us to set out the definition of 'criminal proceeding' in s 3 of the Act.

[57] Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435, 444 (per Dixon CJ); Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 142 (per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) ('Quade'); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 114 [350]; Clone Pty Ltd v Players Pty Ltd [2018] HCA 12; (2018) 264 CLR 165, 190 [49] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) ('Clone'). See further, Giles v Jeffrey [2016] VSCA 314, [207] ('Giles'); Pateras v State of Victoria [2017] VSCA 31, [64]-[65] ('Pateras').

[60] Ibid 142-3. See also Clone [2018] HCA 12; (2018) 264 CLR 165, 190-1 [50].

[62] See Giles [2016] VSCA 314, [207(a)]; Pateras [2017] VSCA 31, [64].

[63] See Quade (1991) 178 CLR 134, 142-3.

[64] See s 10(1)(d) of the Civil Procedure Act.

[65] See s 26 of the Civil Procedure Act.

[66] [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[67] [2021] VSC 243 ('Yunghanns').

[69] Section 7(1) and see also s 1(c).

[70] See also, for example, s 16 (paramount duty in relation to appropriate dispute resolution), s 19 (overarching obligation to only take steps to resolve or determine dispute), s 23 (overarching obligation to narrow the issues in dispute).

[71] The possible exception in relation to the second respondent is identified by him in his affidavit sworn in this Court on 29 October 2021 in the following terms:

I have read and reviewed each of the Briars Taskforce documents in the Review Table [a table containing the fresh evidence the applicant now seeks to rely upon]. I have no independent recollection of reading or reviewing those documents prior to reviewing them for the purpose of preparing this affidavit. However, I have been shown by my solicitors an affidavit sworn by me on 8 May 2009, and as a result of the contents of that affidavit, I believe that it is possible, although not certain, that I examined some or all of the Briars Taskforce documents in May 2009.

[73] For completeness, we note that in the applicant's further amended application for leave to appeal, the applicant made complaint about the fourth and fifth respondents' responses to subpoenas addressed to them, but in his further amended written case the subpoena complaint was made only in respect of the responses to subpoenas by 'the Chief Commissioner of Police and Victoria Police'. In any event, the only subpoenas specifically identified by the parties in argument in this Court were subpoenas issued by the VGSO to the fifth respondent, IBAC and the DPP (see further the affidavit of Rose Joy Singleton sworn 23 November 2015).

[74] For a discussion of the meaning of 'party' in s 3 of the Supreme Court Act, see Financial Wisdom Ltd v Newman [2005] VSCA 110; (2005) 12 VR 79, 96-8 [43]-[46].

[75] See the Office of Police Integrity Report entitled, 'Exposing Corruption Within Senior Levels of Victoria Police', dated 25 January 2008, 157 [90] ('OPI Report').

[78] Remembering that the trial judge was positively satisfied that the first respondent did not, directly or indirectly, institute the criminal proceedings taken against the applicant: Trial Reasons [83].

[79] See Quade (1991) 178 CLR 134, 143.