Murphy v Harney [2003] VSCA 21

2. This is an appeal from a jury's assessment of damages made on 12 October 2001 in the Supreme Court at Warrnambool after a trial lasting nine sitting days. The plaintiff (who is now the appellant) claimed that he had suffered injuries to his back in a motor car collision which occurred at an intersection in Warrnambool on 23 July 1996. A motor vehicle driven by the defendant Harney (who is now the respondent) collided with a car driven by the appellant at the intersection of Queens Road and Botanic Road. At trial, it was agreed that the collision was caused solely as a result of the respondent's negligence, and the matter proceeded as an assessment of damages only.

5. The appellant's claim was governed by the procedure defined by s.93 of the Transport Accident Act 1986 ("the T.A. Act"). The provisions of that section require a person who wishes to bring a common law claim for damages for injuries suffered in a motor car accident to establish that he or she has suffered a "serious injury" as a prerequisite to bringing the claim. It seems that the appellant fulfilled that requirement in the County Court at Warrnambool in May 2001.

8. Section 93 of the T.A. Act also imposes limitations upon the amount of damages which can be recovered by a claimant who brings a common law action. For a start the section requires the court to determine separate damages for the non-economic component of damages and the economic component; and then sets upper and lower "thresholds" for each component. We were told that the lower threshold for the non-economic component, indexed to the date of trial, was approximately $35,000. Unless the claimant exceeds that level in respect of the claim, no damages for that component are awarded at all (sub-s.(7)(b)).

11. In addition the T.A. Act stipulates that no damages in respect of the economic component are to be awarded for the 18 months' period following the accident (sub-s.(10)(a)).

14. At the end of the trial, the jury awarded to the appellant a sum of $15,000 for pain and suffering damages, and $70,000 for pecuniary loss damages. That meant that, in accordance with the provisions of the T.A. Act to which I have referred, the appellant received no judgment for the non-economic component of his claim; but received judgment in the sum of $44,998.17 for the economic component; being the $70,000 less the payments periodically made to the appellant by the Transport Accident Commission between the date of accident and trial (T.A. Act s.93(11)(a)). The court ordered that the respondent pay the appellant's costs up to 30 July 2001; but that the appellant pay the respondent's costs from 30 July 2001. These latter costs, of course, included the costs of trial. The court ordered that the costs be set-off against each other. In the result, the appellant would have recovered little or nothing for his troubles.

17. The jury's verdict reflects that its six members regarded the appellant, in accordance with the respondent's contention, as a person of little credit who had lied about, and exaggerated, the nature and extent of his injuries and the incapacity resulting from them. Upon the material, to which I will hereafter briefly refer, the respondent, through his counsel, had submitted to the jury that, although the appellant would be seeking (through his counsel) to present himself as a person who was worth many hundreds of thousands of dollars, in fact his claim should be measured in "tens of thousands of dollars" only. Counsel for the appellant, true to the expectation of his opponent, put figures to the jury which, if accepted, would have returned to the appellant $150,000 to $175,000 for the non-economic component of damages, and some $500,000 for the economic component.

21. At the date of the accident in 1996, the appellant was aged approximately 38 years; at the date of trial he was 43 years. He had been a reasonably competent country jockey who had, as a "jumps jockey", won some significant events, including the Grand Annual in Warrnambool in 1986. During his career he had had a number of falls, in some of which he had injured his back. He claimed that he was still riding trackwork at the date of the accident and was also working as a "barrier attendant" in Warrnambool and Hamilton. Since 1992 he had been working as a factory hand at Nestles. He said that the accident occurred when the respondent's vehicle failed to give way to his vehicle within an intersection. As a result of the collision he was thrown sideways and shortly thereafter suffered "stabbing pains" in his back. He immediately rang his doctor (Dr. Shimmin), who saw him on the same day and prescribed anti-inflammatory tablets. Dr. Shimmin was not called as a witness at trial. The appellant claimed that thereafter he suffered from the somewhat bizarre symptoms of "bowel incontinence", incapacity to obtain and/or maintain an erection, and muscle spasm to an extraordinary degree which manifested itself in uncontrollable shaking of the whole body, as if in a fit. He was absent from his work at Nestles for some two weeks and returned on light duties - but was forced to cease that work finally in 1997 or 1998. He said that he had worked on "light duties" at the Warrnambool race track on about seven occasions. He was no longer able to ride trackwork or do the heavy "barrier attendance" work which he had previously done. He had been referred to Cedar Court by the Transport Accident Commission for rehabilitation and assessment, but without result. He claimed that, since the accident, he had suffered unremitting pain which he sought to deal, not very successfully, with pain killers. He admitted that he had only sought treatment from his general practitioner, and had not been referred for treatment by any specialist during the period of more than five years.

24. The real issue in this case was the credibility of the appellant. As both counsel told the jury, the appellant's credibility was "critical" to his claim. Trial counsel for the respondent asked the jury to regard the appellant as a person who was untruthful in his evidence, and suggested that his motivation was his desire for compensation. There were, indeed, many areas of the appellant's evidence which were far from satisfactory, and which no doubt contributed to the jury's obvious rejection of much of it. Some of those areas were:

(a) The claim of "erectile dysfunction". The appellant said it started soon after the accident and that he complained of it to his doctor. The evidence disclosed that the first mention of it was in 1999; yet in October 1998 he had denied any sexual dysfunction to a consultant psychiatrist, Dr. Ivers; and in April of the same year had told a general surgeon, Mr. Maling, that he had "no sexual incompetence".

(b) As to the claim of "bowel incontinence" occurring soon after the accident, there had been no recorded mention of this until February 1999.

(c) Whilst on the "serious injury" application in May 2001 he swore that he had never worked as a barrier attendant after the accident, he agreed at the trial, when records were put to him, that he had done so on 14 occasions and admitted that, on the "serious injury" application five months before, he had given false evidence on oath.

(d) He agreed that he had failed to declare his income in respect of trackwork for some 17 years; and said that he did not know that he had to. The amount undeclared was in excess of $15,000 per annum or, in total, well over $200,000.

(e) It was suggested that he had lied about his relationship with his girlfriend Kerry Ellis. She said that they had resumed their relationship in December 2000 and that they were living together. He told Dr. Weissman, a consultant psychiatrist, in May 2001 that he had not been in a relationship since January 2000; and in April 2001 had told Dr. Ivers that he "had no contact with Kerry".

(f) The appellant said that he was in pain "soon after" the accident and immediately rang his doctor. The doctor's notes suggest that he claimed no specific injury in the accident but woke the next morning with pain.

(g) There was no record of the appellant telling any doctor of the peculiar "fitting spasms" which he claimed to have occurred where his whole body shook and his legs slammed on the floor. Mr. Maling, his surgeon, thought the explanation "bizarre" and could attribute no medical reason for it.

(h) He had failed to tell his doctors of his previous accidents. He admitted in cross-examination he had had five falls from horses in some of which he had injured his back. He had also had an injury to his back shortly before the motor car accident whilst working at Nestles.

(j) He told Dr. Weissman in January 2000 that he "wakes up at 6 a.m. and goes for an hour walk"; yet in April 2001, he told Mr. Maling that he could only walk for 10 minutes.

(k) He said that he was doing "lots of trackwork" for the trainer "Jocka" Bailey right up until the accident. Bailey told the court that, after the appellant started work at Nestles in 1992, he only saw him on "an occasional basis" and that the appellant had not been riding for him at all for some months before the accident. The appellant had surrendered his jockey's licence in 1993.

30. In the face of this evidence, the respondent's trial counsel, who also appeared in this Court, submitted to the jury that the appellant's claim that he could no longer work after the accident should be disbelieved; that it was inconsistent with the respondent's medical evidence (which he submitted they should accept) that the respondent should still be working with Nestles; that he was competent to do light work, but was choosing not to do so. As counsel said of him "... he's chosen the soft option. They go on compo. and then have a shot at getting the pot of gold". It was counsel's contention that the appellant was not a motivated man; that he should, however, be allowed something for loss of income because "there were times he had to have off work"; that they should take the approach that they "give him compensation for the shifts he could not have done or ... the overtime he could not have done"; and that they should be fair about that, but they should not "allow him income on the basis that he has not worked [or] because he cannot work [at all] all these years".

35. Counsel for the appellant addressed argument to this Court in support of three grounds of appeal. They are:

(i) The jury's assessment as to damages was manifestly inadequate, and against the evidence and the weight of the evidence.

(ii) The jury's verdicts with respect to pain and suffering damages and pecuniary loss damages are mutually inconsistent and indicate error on the part of the jury; particularly in its assessment of pain and suffering damages in the sum of $15,000.

(iii) The trial judge erred when re-directing the jury in response to a jury question when he said:

"... on the one hand you have Mr. Dooley suggesting that nothing had happened in the accident which could explain the symptoms to date ... "

and in failing to further re-direct as to the evidence of Mr. Dooley.

43. At the outset of his submissions to this Court, Mr. Tobin, who appeared with Mr. Keely for the appellant, recognized the strictures which the law imposes upon those who seek to appeal from jury verdicts; particularly in cases in which the result has depended upon issues of credibility. He was, thus, bound to acknowledge that the verdict demonstrates that the jury of six people must have taken a particularly adverse view of the credit-worthiness of the appellant. Accordingly he accepted that his client had the obligation to demonstrate that, on the view of the evidence most favourable to the respondent, the verdict was so low that no reasonable jury, properly instructed and confining themselves to relevant matters, could have arrived at the verdict which they did[1].

46. The thrust of the appellant's submissions centred on ground 2 of the appeal notice; that is, the ground which asserts that the jury's verdict is internally inconsistent in that its award of $70,000 for the economic component of damages necessarily demonstrates that the award of $15,000 for the non-economic component is manifestly inadequate. That such an argument can be mounted, counsel said, is a product of the legislative requirement to return a verdict of damages divided as to its components. However, he submits, if the Court comes to the view that one of the components is manifestly unreasonable, in the sense which I have previously described, the totality of the verdict should be set side and the matter remitted for re-trial upon the entire question of damages. This result should follow, so it is contended, because the two components of the verdict interact upon one another[2]. Thus, as I understood counsel's submissions, if the Court were to accept his contention that the award for general damages can be demonstrated to be manifestly inadequate because of its inconsistency with the award for the economic component, then the entire assessment should be set aside as "unreasonable" in the relevant sense. Mr. Curtain, who appeared with Mr. Middleton for the respondent, did not contest the appellant's submission in this respect, although he strongly contested the appellant's contention that the award for general damages was, in any way, inconsistent with the award for the economic component of the damages. Thus the issue on the appeal was largely confined to the appellant's assertion that:

"there is no rational basis that exists for the pain and suffering verdict".

50. In support of this submission, appellant's counsel contended that the issue fell to be resolved by a consideration of the evidence of the appellant; his general practitioner (Dr. Philpot); the appellant's general surgeon (Mr. Maling); and the orthopaedic surgeon who examined the appellant on behalf of the respondent (Mr. Dooley). However, as the submissions developed, they focussed on the evidence of Mr. Dooley, which, of course, had to be assessed against the background of the appellant's evidence. This, in my view, was the approach which, inevitably, the appellant had to take. Mr. Dooley was well qualified, and had examined the appellant on several occasions over a period of some four years commencing approximately six months after the accident. He had access to X-rays, C.T. scans and an MRI scan. If the jury accepted, and acted upon, his evidence - as clearly they were entitled to do - they would have concluded that the appellant was not nearly as badly disabled as he was claiming to be.

53. The thrust of Mr. Dooley's evidence was that, although it was probable that the motor car accident had aggravated the pre-existing degenerative condition of the appellant's lower spine, there was no evidence produced by clinical testing, or from radiological examination or magnetic imaging, which suggested any form of nerve root entrapment at the lower lumbar level of the spine which was capable of explaining the appellant's complaints of persistent pain, inability to work (at least at light duties) and incapacity to engage in normal activities. For example, as he said, there was no muscle wasting, loss of reflexes or nerve distribution consistent with nerve root impingement at the lumbar level. Complaints of inability to flex or bend or to raise legs were inconsistent with movements made by the appellant in unguarded moments. Although there was some "bulging" of the disc at L4/5 (with mild protrusion in its lower right rear), it was not compressing the nerve roots. It was Mr. Dooley's view that the appellant's lower back was in a condition where it was vulnerable to heavy loads, whether at work or elsewhere, but was not much different from many people of his age and work history. In offering an opinion following his first examination he said:

"Well ... I thought the injury involved damage to the musculo-ligamentous structures to the lower back and, probably, an aggravation of pre-existing underlying degenerative disc disease with a possible small prolapse to the right side. Now, if we use our experience of treating patients with disc prolapses, and certainly by 12 months post injury, ... their initial intense pain has improved. They would probably still note some intermittent back ache with activity, with heavy activity, bending and lifting. But, overall, the vast majority of working age would have returned to normal employment, normal leisure activities, normal domestic activities ... ."

As time went by, and following further examinations and MRI scan, Dooley's opinion remained the same. There was simply no evidence of nerve root compression which could justify the complaints. As he put it:

"Clinical examination reveals a restriction of flexion of the lumbar spine greater than I would expect to see for the injury sustained. There are objective clinical signs consistent with abnormal illness behaviour ... . I believe that [the appellant] has developed a chronic pain syndrome in which the constancy and intensity of his pain are greater than one would expect to see for the injuries sustained."

Mr. Dooley explained the "abnormal illness behaviour" by reference to the appellant's responses to physical examination. The appellant walked without a limp and "looked well". But whilst professing, upon formal examination, not to be able to flex his spine beyond 10 degrees, he could nevertheless sit down without discomfort during an interview. There were also signs of "abnormality" in the "straight leg raising tests". According to Mr. Dooley the "pain syndrome" developed by the appellant appeared to involve a "psychological reaction" to his injury but, as Mr. Dooley said:

"Whilst this part of it is involuntary, there is no doubt in my mind that there is a voluntary component to its continuation with time."

61. In its essence, it seems to me that one interpretation of Mr. Dooley's evidence, open to the jury, was that the appellant had become a "willing invalid", content to live on a pension and superannuation, and also to exploit his supposed symptoms to manipulate his environment. In his (i.e. Dooley's) view, there was "no orthopaedic need" to have assistance in the home for basic domestic chores. As he said:

"From the orthopaedic viewpoint [the appellant] is capable of being more active in his everyday life. His ... examinations reveal no evidence of neurological deficit affecting the lower limbs. X-ray investigation, including MRI scan, does show evidence of disc degeneration involving the lowest two lumbar levels of the spine, but this is not an unusual feature in a man entering his mid 40's. There is no evidence of nerve root compression to explain the complaints of constant persistent lower limb pain and paraesthesia ... ."

Mr. Dooley also rejected the claim that the professed bowel incontinence, penile erectile dysfunction and back spasms were in any way related to the appellant's motor accident. He further expressed the opinion that the appellant should have been able to, and would have benefited from, a resumption of light duties at Nestles.

66. If the jury were prepared to accept Dooley's evidence - as it is clear that they did - then it is obvious that they were not going to award compensation to the appellant of the order which he was claiming (namely "hundreds of thousands" of dollars), but were more likely to award damages of the order suggested by the respondent's trial counsel ("tens of thousands"). In essence, the jury would have been entitled to regard the appellant as a thoroughly unreliable witness, trying to make "every post a winner"; and justified in using the evidence of Dooley as confirmation that the appellant was exaggerating his symptoms and/or manipulating them to his cause. Even so, it was submitted by Mr. Tobin to this Court that there is the internal inconsistency between the two "limbs" of the verdict which cannot be reconciled to the evidence to which I have referred and which should lead us to the conclusion that the verdict - particularly the $15,000 for general damages - is unreasonable. As I apprehended the submission first made to this Court, it was said that the $70,000 awarded for the economic component must have represented the jury's view of the appellant's past loss of earnings; notwithstanding that he could not be compensated for the first 18 months after the receipt of injury. That means, so the submission went, that the jury must have accepted that the appellant was unable to work or attend to his paid "hobbies" and other activities for most of the period (i.e. 5 years) prior to trial. If that was the explanation for the economic component, then, so it was submitted, the award of $15,000 for pain and suffering was "derisory".

69. If the explanation for the verdict proffered by appellant's counsel is accurate, then there might be substance in the argument. I do not suggest, at least for my own part, that it would necessarily win the day. However, it seems to me that such explanation is not the only explanation for the jury's verdict. It was not the basis upon which respondent's trial counsel went to the jury; nor does it represent the basis upon which Mr. Curtain submits to this Court that the verdict can be supported. He contended that the jury were entitled, on the evidence, to take the view that, as a consequence of the motor accident, the appellant had suffered increased instability to an already degenerating spinal process which, whilst not in itself productive of incapacitating symptoms, made it undesirable that he should subject himself (or his spine) to heavy stress or lifting in the future. However, it was put, the jury would have been entitled to conclude that the appellant should have resumed light work at Nestles (which was available) shortly after the accident and well before the trial. In these circumstances, the respondent submitted that the jury would be entitled to award a modest sum for pain and suffering damages -reflecting their view that the symptoms complained of were exaggerated - and, at the same time, award a sum for economic loss which fairly reflected his past and future loss of income due to inability to do overtime or "full duty" work; and his past and future losses from an inability to ride trackwork up to 45-50 years of age; and an inability to work as a barrier attendant.

72. In my view, the submissions of the respondent are well founded, notwithstanding Mr. Tobin's submissions to the contrary. Mr. Tobin submitted that, even if the appellant's pain had been the product of psychological reaction (as Mr. Dooley suggested), it was nevertheless real to him. If it was real to him, then its consequences of denying the work and leisure hobbies which he enjoyed were also real to him, and compensable to the point where the sum awarded for the non-economic component can be seen to be unreasonable. Mr. Tobin further submitted that even Dooley had accepted that the appellant's pain syndrome was partially psychogenic, and that he evidenced signs of depression. It is these contentions, however, that I cannot accept. They appear to me to deny to the jury the right of taking a broad overview of the evidence and seek to confine their approach to a very technical one, where "the wood" is bound to be obscured by "the trees". It seems to me, as I have said, to have been open to the jury to conclude that, by the time of trial, the appellant was able to perform a range of functions consistent with what is sometimes called a "light-work back"; but that the condition of his back - although largely asymptomatic - would preclude him from engaging in those forms of activities which he had previously enjoyed but which involved strain on the back. If this was the view of the evidence which the jury took, it was appropriate that they should award a modest sum for the non-economic component; but at the same time award a sum for the economic component which would reflect, fairly, the income loss which had accrued and would accrue from the denial of those heavier activities which he had previously performed. It is true that the appellant had enjoyed those activities - at least those which involved trackwork and barrier attendance - but, in that respect, the jury were bound to "tailor their award" for the non-economic component by heeding the judge's directions not to unnecessarily "double-up". Furthermore, so far as making an appropriate award for the non-economic component is concerned, the jury was no doubt entitled to have regard to the fact that the appellant's advancing age, and general condition of his back, would have inevitably curtailed his "paid leisure activity" to a relatively confined time-span. Although the award of $15,000 is, perhaps, lower than the award that I might have made, I am quite unable to say that it is unreasonable; or that it is - on the evidence available to the jury - inconsistent with the verdict returned for the economic component. So far as their award for the non-economic component is concerned, so much depended upon the view formed by the jury as to the appellant's reliability and truthfulness. Accordingly, I would reject grounds 1 and 2.

75. Ground 3 of the Notice of Appeal asserts that the trial judge erred in re-directing the jury in response to a question from them. The jury had returned to court to ask the judge to summarize for them various "points of law"; in particular "the burden of proof". The judge then gave to the jury a very full re-direction, of which no complaint is made save and except for one passage which was given by way of example, involving a summary of evidence which is now said to be inaccurate. His Honour had summarized to the jury the "area of debate" between the doctors. In that context he said:

"If you concluded that the plaintiff did have wear and tear on his spine over the years prior to the accident, then you'd need to consider whether that had produced any of the symptoms of pain or disability, or whether it had caused him to stop work prior to the motor vehicle accident, and whether he would have continued work but for the motor vehicle accident into the future. I said that in this case the issue seems to be whether the plaintiff is suffering pain and disability at all that he's claiming to be suffering. On the one hand, you have Mr. Dooley suggesting that nothing had happened in the accident which could explain the symptoms today, and on the other hand you had Mr. Maling and Dr. Philpot saying that the symptoms are both consistent, and are consistent with objective findings which have been made on the x-rays, and M.R.I. etcetera." (my emphasis).

79. It is the emphasized paragraph of which the appellant complains. It was submitted that a re-direction, or further explanation, was sought to correct the statement - asserted to be inaccurate - that Mr. Dooley had suggested "that nothing had happened in the accident which could explain the symptoms today ". His Honour had responded that:

"I am not so sure that my cryptic summary there is not a fair statement of what the position is."

Mr. Tobin submitted to this Court that a failure to re-direct meant that the jury were left with an impression that, if they preferred Mr. Dooley, there was no explanation for ongoing symptoms, and the appellant would thus have no entitlement to damages for symptoms and incapacity persisting at time of trial and beyond.

84. In my opinion there is nothing in this ground of appeal. In the first place, the appellant's trial counsel did not, in terms, call for or persist in seeking a re-direction. Indeed, in this Court Mr. Tobin quite fairly conceded that he did "not appear to have pressed it". However, and more significantly, I think his Honour was right in his view of the substance of Dooley's evidence; namely that it was fairly represented by the summary which his Honour gave. I have already dealt at some length with the way in which the jury were entitled to regard Dooley's evidence. It seems to me that he was saying that there was nothing which the accident had produced in the appellant's lower spine which, at least in Dooley's opinion, could explain the symptoms of which the appellant was complaining at trial. Again appellant's counsel points to Dooley's references to the "chronic pain syndrome" perhaps having a psychogenic or depressive basis; but the general thrust of his evidence was as his Honour described it to the jury. In any event the passage of the re-direction of which the appellant complains was nothing more than his Honour's impression of what the evidence was. In the course of a very full and fair charge, his Honour had told the jury, in ample terms, that it was their view of the evidence which counted, not his. In all the circumstances, I am far from satisfied that this short statement made by his Honour, even if it was a misdirection (which I do not believe it was), amounts to a substantial wrong or miscarriage in the trial which would warrant the grant of a new trial[3]. Accordingly, I would reject ground 3.

87. There is one other matter arising out of this appeal which I should mention. On 21 February 2003, the trial judge sent a letter to the Registrar under cover of which he forwarded to the Court a note setting out certain concerns which he had about the verdict, arising from his perception of irritation on the part of the jury, or at least some of them, which his Honour believed had been fostered by delay prior to empanelment and the subsequent length of the trial beyond the estimates given by counsel. The report, which had remained unsighted by the members of this Court, was made available to counsel for the parties during the appeal. Counsel for the parties were content for the report to be read by the Court. Having done so, the Court came to the conclusion that its contents could not assist it in its disposition of the appeal, a conclusion which counsel accepted. Mr. Tobin and Mr. Curtain, who appeared for the respective parties in this Court, had also appeared at the trial. They did not suggest, either in the appeal grounds or in argument, that the trial had miscarried for want of proper attention by the jury. In any event, where the issue on appeal is whether the verdict returned was open on the evidence, the matters raised by his Honour (as, I think, he himself recognized) must necessarily be of little assistance to the appellate court.

90. In these circumstances, I think it is unnecessary, and undesirable, to canvass at length the extent of this Court's power - reflected in Rule 64.22(5) of the Rules of Civil Procedure - to call for and act upon a report from the court of first instance. But, suffice it to say that the power to do so is more restricted in terms and practice than its power to call for a report in its criminal jurisdiction pursuant to Rule 2.27 of the Criminal Procedure Rules, a power which is routinely exercised in aid of the Court's obligation to ensure that trials have not miscarried against the interests of applicants, many of whom are unrepresented. By way of contrast, the history of the

Civil Procedure Rules suggests that the power has been largely confined to circumstances where the material before the Court is insufficient to enable it to decide the issues raised on the appeal[4]. The impetus for this confined construction of the power in paragraph (5) probably stems from the fact that, in earlier versions of the Rules, the power was combined with and subsidiary to the power expressed in paragraph (4) which empowers the Court to have regard to verified notes, and other evidence or materials, where any question arises as to a matter occurring in the court of first instance. Nevertheless, it should not be thought that I am intending to confine the Court's power to call for, and act upon, a report from the trial judge to the circumstances to which I have referred. The extent of that power will have to be determined on a case by case basis. It may happen that events ostensibly impinging on the fairness of a trial will become known to the trial judge after a trial has concluded. I would only say that, if such circumstances do occur, it would be preferable for the trial judge to refer the matter to the parties, or their counsel, so that they may decide whether to approach the appellate court with the request that a report be called for. However, for the purposes of this case, it is enough to say that the contents of the judge's report cannot relevantly affect the disposition of this appeal.

94. For the reasons given, it is my opinion that the appeal should be dismissed.

[1] Australian Iron & Steel Ltd. v. Greenwood [1962] HCA 42; (1962) 107 C.L.R. 308 at 311; Taylor v. Miller [1969] VicRp 120; [1969] V.R. 987 at 996_; Abdul-Massih v. Abdul-Massih_ [2001] V.S.C.A. 231 at [1], [2] and [29].

[2] cf. Abdul-Massih v. Abdul-Massih, supra.

[3] Rule 64.23 (2) of the Supreme Court (General Civil Procedure) Rules 1996.

[4] cf. Curmie v. McLennan [1994] VicRp 37; [1994] 1 V.R. 513 at 517-8; Dimos v. Willetts & Anor. (2000) 2 V.R_._ 170 at 176-7.