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

3 The possibility of an application of this nature had been foreshadowed previously by Bodycorp at directions hearings before trial. It had been suggested that, the fact that I heard and determined the Bodycorp Proceeding, may have given rise to a reasonable apprehension of bias for the purposes of this proceeding. However, Bodycorp decided not to make any such application before trial.

B. The Bodycorp Proceeding - findings concerning Maisano

4 On 4 September 2013, I delivered judgment[2] ("the Earlier Judgment") in the Bodycorp Proceeding in favour of the defendants, including the first defendant, Anunziato Enzo Maisano ("Maisano") (who is also the first defendant in this proceeding). In the Bodycorp Proceeding, Bodycorp made claims against Maisano for breach of a franchise agreement and for inducing a breach of various contracts between Bodycorp and other franchisees. As already stated, those claims made against Maisano were dismissed[3] and costs were awarded in his favour.

5 A partner of Oakley Thompson, Jeremy Broadbent ("Broadbent") gave evidence in the Bodycorp Proceeding. Broadbent's evidence was of relatively narrow compass.[4] It was accepted by the court.

C. Change in Bodycorp's original position based on further evidence

6 This proceeding was originally set down for hearing on 21 April 2015, on an estimate of 3 days. At the first directions hearing before me, Bodycorp raised a possible issue about whether or not it was appropriate for me to hear the trial given that I was the trial judge in the Bodycorp Proceeding. I was unavailable to hear this matter on 21 April 2015, and informed the parties that the trial would be heard by another judge.

7 At a subsequent directions hearing, Bodycorp applied for an adjournment of the trial listed for 21 April 2015. This application was made on the basis that the appeal from the Earlier Judgment was to be before the Court of Appeal during the time this trial was to be heard. In granting the adjournment, I informed the parties that I would conduct the trial, commencing 11 May 2015. I specifically raised with counsel for Bodycorp whether there was any issue with the trial being heard by me, and I was informed that there was no application for me to recuse myself.

8 During the course of the trial in this proceeding, the court was informed that, based on the affidavits identified by the parties, at the last directions hearing, to be relied upon at trial, Bodycorp had not intended to make any such application. However, in light of a further affidavit, Bodycorp submitted the position had materially changed.

9 To be more specific, on the second afternoon of trial, during the course of the cross-examination of Maisano, an affidavit sworn by Maisano on 17 November 2014 in a Court of Appeal proceeding ("the Further Affidavit") was put before the court. During cross-examination, the Further Affidavit was tendered without objection.

10 The Further Affidavit, on its face, raises issues concerning the conduct of the Bodycorp Proceeding. The Further Affidavit includes the following:[5]

1. I then contacted my lawyers Mr Tim Davies of Oakley Thompson he arranged a meeting with Ken Adams the AAMI lawyer in relation to the termination of my sign and we threatened legal action against AAMI. I was subsequently given a draft Statutory Declaration that had been prepared by AAMI's Lawyers and was awaiting to sign it.
2. I was advised by Philip Oswald to instigate proceedings against AAMI via my solicitor but I didn't actually have to sue AAMI.
3. After this meeting my work continued and my sign was never removed. I did however have to sign the Statutory Declaration prepared by AAMI's solicitors in order to retain my work. On 29 July 2008 I received a facsimile from Oakley Thompson attaching a letter from Freehill Holding & Page solicitors confirming that AAMI had withdrawn the termination of my sign. The Facsimile page reads as follows"I guess we will have to wait and see what happens next with AAMI it is probably time to think about suing Bodycorp". Now produced and shown to me and marked Exhibit "MM-1" is a true copy of the facsimile and letter dated 29 July 1998 to my affidavit. Now produced and shown to me and marked Exhibit "MM-2" is a true copy of the facsimile from Oakley Thompson dated 11.8.98 attaching a letter dated 10 August 1998 from Freehill, Hollingdale & Page attaching the Statutory Declaration.
4. The Statutory Declaration that was signed on 1/9/98 which was prepared by Ken Adams at Freehills Solicitors states in clause 14 that Bodycorp repaid $19,000 to me of the $25,000. I want to correct that clause the money was paid to me by Mr Gino Francese and that $6,000 was deducted for rent arrears owed to Mr Francese. The comments about AAMI offices in the Statutory Declaration which I was hesitant to comment about when asked by Ken Adams he told me that I just have to corroborate with it as other Bodycorp franchisees have made similar comments in particular the statutory declaration made by Steve Morrish so I went along with it even though I did not hear those comments from anybody at Bodycorp or Tony Murdaca.

11 It was suggested during the cross-examination of Maisano that paragraph 16 of the Further Affidavit demonstrated that Maisano had knowingly made a false statutory declaration. Maisano denied this and rejected any suggestion he had acted improperly.

12 The Further Affidavit also contains the following:

1. Further I deposed that during the trial [of the Bodycorp Proceeding]; conferences were held at the end of each day involving Broadbent and [Maisano's counsel], talking to [AAMI's senior counsel] and other AAMI Solicitors.
2. Prior to me taking the witness stand [AAMI's senior counsel] handed a number of documents to Mr Broadbent in my presence, including a letter dated 14 August 1998, from AAMI addressed to Mr Lou Lantieri. [AAMI's senior counsel] asked me if I recall receiving that letter. I told Broadbent that the letter was not addressed to me and I couldn't verify it. Then [AAMI's senior counsel] said I know it is not addressed to you but you must have received it. I then said to Mr Broadbent in front of [AAMI's senior counsel] did AAMI say that I have received it. Mr Broadbent said our instructions are that you did. Based on the representation by [AAMI's senior counsel] and Mr Broadbent I testified that I had received a similar letter. During cross examination Mr Goldblatt challenged that I had not receive the letter and he referred to a list of recipients to that letter. I was not on the list of recipients. After cross examination at a break I informed Mr Broadbent that I was not on the list and did not remember receiving the letter but testified that I did due to being told that I had received it and he told me not to worry about it.

13 Again, Oakley Thompson attacked the credit of Maisano based on the contents of paragraph 25. It was put to Maisano during cross-examination that that paragraph was clear evidence that he had knowingly lied to the court in the Bodycorp Proceeding while under oath. And again, Maisano rejected any suggestion of impropriety. Maisano stated in substance that the evidence he gave in the Bodycorp Proceeding was based on the advice that he received at the time. However, Maisano stood by the contents of the Further Affidavit as being true and correct.

D. Initial application made on the third day of trial

14 On the third day of trial of this proceeding, Bodycorp made an application to have me recuse myself on the grounds of a reasonable apprehension of bias. The explanation for the change in position was that further evidence had been adduced during the course of the trial concerning the Further Affidavit.

15 It was said this application was made on the basis that there were now issues before me in this trial which made very serious allegations in respect of the Earlier Judgment, and the basis for that judgment. Reference was made by Bodycorp to the cross-examination of Maisano. Reliance was also placed upon paragraph 27 of the Further Affidavit, which reads as follows:

1. Prior to me taking the stand [AAMI's senior counsel] was having a discussion with Mr Broadbent in my presence. [AAMI's senior counsel] said Barry Martin [of AAMI] would be saying that he did not induce any Bodycorp repairers to leave and I was then instructed to do the same. I was told by [AAMI's senior counsel] that if I was asked in the witness stand if I had any contact with any franchisees after I left Bodycorp that I should say No. My reply was I can't say that because I did in fact meet with ex and other Bodycorp repairers and that I had in fact had meetings with them. Broadbent's reply to that was if you say that you will go down for inducing other franchisees and that is the claim against you do you understand this. He also advised that I could go down for a million dollars worth of damages. [AAMI's senior counsel] backed it up by saying your evidence Mr Mason must corroborate with Martin's evidence that you did not induce franchisees to leave Bodycorp. So simply say you didn't have any meetings with Bodycorp repairers. I was worried as [AAMI's senior counsel] and Broadbent were telling me to tell untruths to the court. I wanted to get out of there.

16 It was submitted that the evidence now before me raised serious allegations about the efficacy of the Earlier Judgment on the basis that there were now claims that there had been a suppression of evidence that Maisano might have given during the course of the trial of the Bodycorp Proceeding.

17 Upon Bodycorp making the application for me to recuse myself, and after some discussion between the parties, it was agreed that the cross-examination of Maisano should be completed before the application was fully argued.

18 Later on the afternoon of the third day of trial, Bodycorp proceeded to make its application for disqualification. During the course of submissions made on behalf of Bodycorp, it became apparent that Bodycorp would ultimately be submitting I ought to accept the evidence given by Maisano the subject of the Further Affidavit. I confirmed that Oakley Thompson's position was that it was also inviting the court to accept the contents of the Further Affidavit insofar as it concerned Maisano. Finally, I asked Maisano whether he was also asking me to accept the contents of the Further Affidavit. Maisano confirmed that he was. This having been established, an exchange took place the substance of which was as follows:[6]

(1) All parties confirmed that they sought to rely upon the contents of paragraphs 16 and 25, and related paragraphs, of the Further Affidavit insofar as it concerned Maisano.

(2) Bodycorp stated it also wanted to rely upon paragraph 25 of the Further Affidavit with respect to the conduct of Broadbent.

(3) Bodycorp stated it would be making an application to cross-examine Broadbent on the contents of the Further Affidavit (at this stage, Broadbent had already given his evidence and Oakley Thompson had closed its case).

(4) Bodycorp suggested the application based on apprehended bias and the application to cross-examine Broadbent followed together.

(5) If the court were to grant leave for Broadbent to be further cross-examined, Bodycorp submitted it would be inappropriate for me to continue to hear the case.

(6) In the circumstances, Bodycorp was deferring its application based upon a reasonable apprehension of bias.

(7) If Bodycorp renewed its application, it would rely upon the submissions it had already made.

19 Once the application was "deferred", the trial proceeded. Bodycorp called its only witness, its director Antonio Murdaca ("Murdaca"). The issue of whether or not Broadbent could be recalled was then argued and determined in favour of Bodycorp. Broadbent was duly recalled, further examined and cross-examined.

20 For completeness, I note that, broadly speaking, Broadbent said he could not recall or denied most of the conversations in the Further Affidavit that were alleged to involve him. More specifically, he emphatically denied that he, or AAMI's senior counsel in his presence, ever suggested to Maisano what evidence Maisano should or should not give.

21 During the afternoon of the fourth day of hearing, Bodycorp renewed its application for me to recuse myself. Counsel for Bodycorp stated that he relied on his earlier submissions of the previous day. When asked to be specific as to the basis upon which the application was renewed, it was submitted that, because I had made findings in relation to the Bodycorp Proceeding, a reasonable apprehension of bias arose. This was submitted on the basis that, if it were being contended before me in this trial that the court was misled by either Maisano or Broadbent in the trial of the Bodycorp Proceeding, then that would impact on whether or not the Earlier Judgment should be set aside for fraud or some other reason. As I understood the submission, it was suggested that a doubt about the status of the Earlier Judgment gave rise to a reasonable apprehension that I could not determine this proceeding impartially.

22 It was further submitted that, because issues of credit now arose in relation to Maisano and Broadbent in this proceeding, that necessarily gave rise to a reasonable apprehension of bias because of my findings in the Bodycorp Proceeding.

23 Finally, it was submitted the apprehension of bias arose because of evidence that was given at trial in the Bodycorp Proceeding. I asked counsel for Bodycorp to be specific about the evidence he was referring to in making his submission. Counsel was unable to give me any specific references at the time. Accordingly, a direction was given for written submissions to be provided by Bodycorp by 2 pm the following day and for any responsive submissions to be provided by 5 pm the following day.[7]

24 The written submissions of Bodycorp, entitled "Transcript references of the inconsistency in the evidence between the [Bodycorp Proceeding] and the current proceeding", referred to 6 matters regarding the Bodycorp Proceeding:

(1) The fact that Maisano had testified as to his health issues, that I observed him in the witness box and I was required to make a finding on that issue to determine his credibility.

(2) The fact that Maisano testified as to inducement of breach of contract and that he gave evidence that he spoke to no other franchisee after termination.

(3) Broadbent testified that Maisano's file was transferred to Oakley Thompson in circumstances where the integrity of the file was in issue and an unsigned franchise agreement was relied upon.

(4) Broadbent gave evidence concerning trust ledgers of Oakley Thompson.

(5) The fourth, fifth and sixth defendants in the Bodycorp Proceeding (referred to as the AAMI Defendants) submitted that the letter of 14 August 1998 was crucial, that it went to all of the franchisees and the evidence of Maisano was relied upon on this issue.

(6) Evidence was given concerning quoting sheets.[8] It was not suggested Maisano or Broadbent gave any relevant evidence in this regard. (The transcript references given in Bodycorp's submission in relation to the quoting sheets all concerned evidence given by the sixth defendant, Barry Martin.)

25 In response, both Oakley Thompson and Maisano opposed the application and submitted that I should continue to hear and determine the trial of this proceeding.

26 Oakley Thompson submitted that Bodycorp had not identified any findings made in the Earlier Judgment as to the credit of any of the witnesses who gave evidence in this proceeding. Oakley Thompson further submitted that although all parties were relying upon paragraphs 16 and 25 of the Further Affidavit as being true and correct, Oakley Thompson confined its reliance to Maisano's statements of his conduct and only for the purpose of seeking an adverse credit finding. Further, it was noted that during the cross-examination of Broadbent in the Bodycorp Proceeding, his credit was not challenged.

27 Moreover, Oakley Thompson submitted that Bodycorp had failed to identify any issue determined in the Earlier Judgment that would need to be determined in this proceeding. In particular, it was submitted that any findings as to credit in this proceeding would not require me to determine or make findings of fact in respect of matters that were determined in the Earlier Judgment.

28 Maisano, who is self-represented, made reference to the manner in which I had conducted the trial of this proceeding and stated he wanted me to continue to hear the matter. Maisano also suggested my knowledge of the issues made it appropriate for me to continue to hear this matter. Maisano then made further submissions that were directed to the merits of the issues in the trial, rather than this application.

29 The law concerning the test to be applied when an application is made for a judge to recuse herself or himself is well established. It is sufficient for present purposes to refer to the following passage of the Victorian Court of Appeal in AJH Lawyers Pty Ltd v Careri:[9]

The relevant principles governing the issue of apprehended bias are well settled. Essentially, there are eight relevant principles.

...

Secondly, as noted in Antoun,[10] judges should not "too readily accept recusal because a party has demanded it".[11] Further, as held in Ebner,[12] "[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case".[13] That being said, the principle that a judge should not disqualify him or herself too readily is not a "blanket that smothers the effect of disqualification where it has already arisen".[14]

Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[15] as being "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide".[16] The word "might" in the phrase "might not bring an impartial and unprejudiced mind" was clarified in Ebner as referring to "possibility (real and not remote), not probability".[17] On the basis of Ebner, where, as in this case, "the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge".[18]

Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she "will decide the case adversely to one party".[19]

Fifthly, the application of the test involves two steps. The first step is "the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits".[20] The second step is the "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits".[21] Contrary to AJH Lawyers' submission,[22] the two-step approach is applicable to cases of apprehended bias on the ground of prejudgment.[23] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[24]

Sixthly, "the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer".[25] The fictional lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge".[26] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges "are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them".[27] "[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias".[28]

Seventhly, "[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings".[29] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[30]

Finally, ["j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice".[31] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[32] This is so even if the judge's preliminary view is that the application will be unmeritorious.[33] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party's submissions under sufferance.[34]

(Emphasis added in italics; original emphasis in bold.)

30 Bodycorp placed particular reliance upon the following passage from Livesey v New South Wales Bar Association:[35]

In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of [her or his] own ability to determine the case before [her or him] fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which [she or he] has expressed in [her or his] judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters "of degree and particular circumstances may strike different minds in different ways". If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, [she or he] should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that [she or he] should automatically disqualify [herself or himself] whenever [she or he] was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by [her or him] as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.

(Emphasis added, citations omitted.)

31 As the background set out above demonstrates,[36] there is no application to recuse myself simply on the ground that I was the trial judge in the Bodycorp Proceeding. The application is confined to the matters now raised in the Further Affidavit, the issues identified in paragraph 24 above and the findings (to the extent there are any) in that regard in the Earlier Judgment.

32 Having identified what it is said might lead me to decide this case other than on its legal and factual merits, a number of observations should be made.

33 First, the court is not deciding any issues in this proceeding that were determined in the Bodycorp Proceeding.[37] The Earlier Judgment was the final judgment of the court on the substantive issues raised in the Bodycorp Proceeding. The appeal from that decision has been dismissed.[38] The fact that Bodycorp apparently threatens to use the evidence the subject of the Further Affidavit to seek to have the Earlier Judgment set aside is not an issue for determination in this proceeding.

34 Secondly, I made no adverse findings of credit in the Earlier Judgment concerning any witness which would affect my ability to review the evidence before me in this proceeding impartially or without prejudice. More specifically, I made no adverse findings of credit in relation to any of Broadbent, Maisano or Murdaca.

35 Thirdly, with respect to Maisano it will not be necessary for me to make any factual findings in this proceeding concerning the issues raised in the Further Affidavit. They do not touch on the agreed issues. Further, Oakley Thompson relies on the Further Affidavit to demonstrate that Maisano's credibility must be questioned based on the contents of the Further Affidavit alone. (Indeed, not only is it unnecessary, but it would be less than desirable to make any factual findings when a number of persons the subject of the Further Affidavit are not parties to the proceeding and have not been called as witnesses.)

36 Fourthly, with respect to Broadbent, the 2 matters referred to[39] are concerned with previous evidence about the integrity of Maisano's file with Oakley Thompson and some very confined evidence concerning Oakley Thompson's trust ledgers. In my view, the matters raised in the Bodycorp Proceeding provide no sensible basis for suggesting that there would be a reasonable apprehension that I could not determine the issues now before me impartially and without prejudice. The integrity of Maisano's file as raised in the Bodycorp Proceeding is not an issue in this proceeding. Although there has been some evidence before me concerning the trust ledgers of Oakley Thompson, there is nothing that occurred in the Bodycorp Proceeding which would affect the appearance of this trial being conducted and considered appropriately. Further, there was no suggestion there was any relevant finding in this regard in the Earlier Judgment.

37 Further, and in any event, although there is authority for the proposition that, if a judge has made adverse findings with respect to a party or person in an earlier proceeding, particularly findings involving fraud, that may give rise to a reasonable apprehension of bias if the credit of that party or person is in issue in a subsequent proceeding,[40] it does not necessarily follow that the absence of an adverse finding in a previous proceeding gives a reasonable apprehension of bias in the subsequent proceeding where the credit of the party or person is in issue.

38 In other words, it is not logical to suggest that because a judge has not found a witness to be unsatisfactory based on the evidence presented before the judge in the earlier proceeding, that, faced with fresh evidence in a new proceeding, there is necessarily a real possibility that the judge is less likely to consider the evidence impartially or without prejudice[41] in the later proceeding. Naturally, each case will depend on its particular circumstances. There may be cases where the absence of an adverse credit finding in a previous proceeding would give rise to a reasonable apprehension of bias where the credit of the same witnesses are in issue. However, this is not such a case.

39 For the reasons set out in paragraphs 33 to 38 above, there is no logical connection between the matters identified by Bodycorp and any feared deviation from the course of deciding this case on the merits. Accordingly, there is no proper basis to contend that a reasonable apprehension of bias exists.

40 For the reasons set out above, the application is dismissed.

HIS HONOUR: Insofar as the plaintiff seeks to rely on P10 [being the Further Affidavit], as I understand it, I will repeat what I have said previously, it seeks to rely upon paragraph 16 and the paragraphs referrable to the statutory declaration and paragraph 25 and paragraphs referrable to the letter of 14 August 1998 and not otherwise. And they do so for the sole basis of attacking the credit of Mr Maisano. Now, in relation to that, as I understand it, all 3 parties before me are asking me to accept what is contained in the affidavit insofar as it concerns the conduct of Mr Maisano. Is that correct?

MR LEVINE: From our point of view, yes.

HIS HONOUR: Mr Maisano has told me that is correct. That is still correct, is it?

MR MAISANO: That is correct, Your Honour.

HIS HONOUR: Yes, and for the plaintiff that is correct?

MR SENATHIRAJAH: Yes, Your Honour.

HIS HONOUR: So therefore if it is an issue, the issue upon which you are seeking to rely is not in issue between the parties. Does that mean that the apprehension application ought to be put to one side on that basis at least, because I don't have to determine it because it seems to me everybody has a common ground?

MR LEVINE: We will be seeking to rely upon paragraph 25 in relation to how it extends to Mr Broadbent as well and that's what they relied upon. They relied upon that specific paragraph and it's my submission that they can't simply be very selective about that paragraph and state that it's true in relation to Mr Maisano when it deals with conferences and discussions he had with Mr Broadbent.

HIS HONOUR: Yes.

MR LEVINE: It can't be half true. Now if they are willing to concede that Mr Broadbent acted in that way then so be it.

HIS HONOUR: I am not asking for any concession though. The evidence is before the court and if you want to make submissions to that effect of course you can.

MR LEVINE: I don't wish to make submissions. I wish to cross-examine Mr Broadbent because it would be my understanding that they will not accept it. They will be simply stating that even though it was a conversation between 2 people that only 1 person is subject to it, not Mr Broadbent. So I would be seeking to rely upon it in relation to Mr Broadbent as well.

HIS HONOUR: All right, well, I haven't got that application before me now. I am dealing with the apprehension of bias application.

MR LEVINE: Then I will be making that application, Your Honour, but we will be seeking to rely upon it on its entirety and I will be seeking to have Mr Broadbent recalled.

HIS HONOUR: I understand that.

MR LEVINE: Yes.

HIS HONOUR: But let's just deal ---

MR LEVINE: If that's not before you at this stage, I would be seeking the determination of this disqualification to be done at the same time based on the submissions that I have made.

HIS HONOUR: I am sorry, I haven't quite followed what you have said.

MR LEVINE: I need to - the 2 applications follow together, Your Honour.

HIS HONOUR: Yes.

MR LEVINE: So it would be my submission that my client should have leave to have Mr Broadbent recalled and put these matters to him and that if leave was to be granted it would be inappropriate for Your Honour in those circumstances to hear the case.

HIS HONOUR: Yes, all right. So as I understand it at the moment, you are now deferring your application without any prejudice to your ability to make it again.

MR LEVINE: Yes, Your Honour.

HIS HONOUR: All right.

MR LEVINE: But if I do renew it, it will be done - I would be renewing it on the basis of the submissions that I have made now so that we don't have to ---

HIS HONOUR: No, you don't have to make those submissions again. So I will treat as deferred the application to have me disqualified. I assume the plaintiff has just got notice of your application or intended application to have Mr Broadbent cross-examined?

MR LEVINE: Yes, that's correct.

[1] Supreme Court proceeding 9071 of 2005.

[2] Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472.

[3] For the relevant findings, see [62]-[116] and [193]-[214].

[4] The only reference to Broadbent in the Earlier Judgment is at [77].

[5] The Further Affidavit contains a number of typographical and grammatical errors which have not been corrected for the purposes of this judgment.

[6] The actual exchange is set out in annexure "A" to this judgment.

[7] The following day, namely 15 May 2015, was a directions day in the Commercial Court and, accordingly, I was not available on that day in any event.

[8] See Earlier Judgment, [306]-[347].

[9] (2011) 34 VR 236, 241-243 [17]-[25] (Warren CJ, Hansen JA and Almond AJA).

[10] Antoun v R [2006] HCA 2; (2006) 224 ALR 51.

[12] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner").

[13] Ibid, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[14] Antoun [2006] HCA 2; (2006) 224 ALR 51, 60 [35] (Kirby J).

[15] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 ("Johnson").

[16] Ibid, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[17] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[19] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).

[20] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[22] Appellant's (plaintiff's) outline of submissions (30 November 2009), [12].

[23] Concrete [2006] HCA 55; (2006) 229 CLR 577, 609-610 [110]-[111] (Kirby and Crennan JJ).

[25] Concrete [2006] HCA 55; (2006) 229 CLR 577, 635 [177] (Callinan J).

[26] Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[28] Concrete [2006] HCA 55; (2006) 229 CLR 577, 610 [112] (Kirby and Crennan JJ).

[29] Antoun [2006] HCA 2; (2006) 224 ALR 51, 59 [29] (Kirby J).

[30] Antoun [2006] HCA 2; (2006) 224 ALR 51, 60 [33] (Kirby J); Concrete [2006] HCA 55; (2006) 229 CLR 577, 635-636 [177]-[178] (Callinan J).

[31] Antoun [2006] HCA 2; (2006) 224 ALR 51, 57 [22] (Gleeson CJ).

[32] Ibid, 52 [2], 57 [21]-[23] (Gleeson CJ), 58-59 [28], 59 [30], 63 [48] (Kirby J), 64 [53], 65 [56] (Hayne J), 77 [83], 77-78 [86]-[87] (Callinan J).

[34] Ibid, 52 [2] (Gleeson CJ), 60 [36] (Kirby J), 78 [87] (Callinan J).

[35] [1983] HCA 17; (1983) 151 CLR 288, 294.3 (Mason, Murphy, Brennan, Deane and Dawson JJ). See also Lancaster v The Queen [2014] VSCA 333, [143] (Nettle and Redlich JJA and Almond AJA); PLP (Legal Practice) v McGarvie [2014] VSCA 253, [38] (Nettle JA and Sloss AJA); British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, 329 [132]-[133], 333 [144]-[145] (Heydon, Kiefel and Bell JJ).

[36] See pars 14-28 above.

[37] The parties agreed that 13 issues in this proceeding need to be determined, namely:

(1) Does Oakley Thompson have an equitable lien (fruits of litigation) over the costs judgment awarded in favour of Maisano in the order of the court made on 4 September 2013 in the Bodycorp Proceeding ("the Costs Judgment")?

(2) Whether Oakley Thompson agreed with Maisano to cap its claim for costs and disbursements (inclusive of counsel's fees) in the amount of $80,000.

(3) Did Oakley Thompson have the authority to engage counsel (for an amount of more than $20,000) on behalf of Maisano in the Bodycorp Proceeding?

(4) Did Oakley Thompson provide costs disclosure to Maisano in accordance with the provisions of the Legal Profession Act 2004 (Vic)?

(5) Did Oakley Thompson provide a bill to Maisano in accordance with the Legal Profession Act?

(6) Did Oakley Thompson have the right to obtain the sum of $56,400 that was being held as security for costs, when Oakley Thompson was not retained by Maisano?

(7) Does the court have the power in equity to make orders to regularise a common law contractual claim?

(8) In the circumstances of this case, should the court provide equitable relief to Oakley Thompson in the exercise of the court's discretion?

(9) Does the court have the capacity to supervise Oakley Thompson, in the exercise of its functions, as a solicitor to Maisano?

(10) Does Oakley Thompson have the capacity to meet a substantial judgment against it? If not, is that fact relevant to any exercise of the court's discretion?

(11) Is there a relationship of mutual trust and confidence between Oakley Thompson and Maisano? If not, is that fact relevant to any exercise of the court's discretion?

(12) If yes to issue 1 above, and in light of the answers to issues 2 to 12 above, does the lien entitle Oakley Thompson to:

(a) complete the part-heard taxation in Costs Court proceeding SCI 2014 01914 (and to adopt what has occurred so far in that taxation); or

(13) If yes to issue 12 above, and after any taxation of the Costs Judgment has been completed, what steps is Oakley Thompson entitled to take to enforce the quantified costs order against Bodycorp, and Murdaca and Repose Nominees Pty Ltd pursuant to the respective undertakings as to costs given by them in the course of the Bodycorp Proceeding.

[38] Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2015] VSCA 73 (Warren CJ, Beach JA and Ginnane AJA).

[39] See par 24(3) and (4) above.

[40] See fn 35 above.

[41] See Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.3 (Mason J), referred to with approval in Sonnet v R (2010) 30 VR 519, 526 [23] (Nettle and Harper JJA and T Forrest AJA).