P C R Z Investments Pty Ltd v National Golf Holdings Limited and Anor [2002] VSCA 24

5. The second point is to emphasize the reluctance with which I differ from the learned and very experienced trial judge on a discretionary matter like costs, but I am persuaded that in this case his Honour fell into error. I agree with Buchanan, J.A. and Chernov, J.A. that a court should be very cautious indeed before concluding that a point of principle in which a litigant honestly believes is of such little moment as to attract an order for solicitor and client costs. It may be that in practice the gap between those costs and party and party costs is now too great, but that should not lead judges into too readily opting for an extraordinary order.[2]

10. I agree with Chernov, J.A. that the food and beverage levy is not an "annual subscription fee" within the meaning of article 3.3 and accordingly the trial judge was correct in dismissing the appellant's proceeding. Subject to what follows I also agree with Chernov, J.A. that the appeal against the order for costs on a solicitor-client basis should succeed.

13. 4 In his reasons for his decision on the question of costs the trial judge said:

"The matter of principle that the plaintiff wished to have decided in its favour between it and the defendant was, in my view, of little moment only in its relationship to the Club and the affairs of the plaintiff. Where the issue at stake is really only a matter of principle of the kind in this case, which the plaintiff wishes to have established by a declaration in its favour, I am of the view that to cause a successful defendant to be still out of pocket as to costs in consequence of its defending such proceeding would be to visit an injustice on that defendant."

17. In my view the trial judge erred in determining the costs question on the basis that the appellant had sued to establish a principle "of little moment". The rationale for that conclusion appeared to be the small size of the sum of money required of the appellant, a man who could apparently easily afford to pay it, and who would have been likely to have incurred costs in excess of that sum even if the suit had been successful. The trial judge did not find that the proceeding had been brought for an ulterior purpose or in wilful disregard of clearly established law. In my opinion bringing suit to establish a matter of principle is not to engage in unmeritorious or high-handed or other improper conduct which would justify the imposition of an order for costs over and above the ordinary. The law is concerned with matters of principle as well as with property and money. The fact that a principle does not have significant financial consequences to a plaintiff does mean that the principle is of slight importance and thus is not a worthy subject matter of litigation.

22. This is an appeal against the decisions of a judge of the Supreme Court made on 30 and 31 March 2000 respectively, whereby his Honour:

(a) dismissed the appellant's proceeding in which it essentially sought a declaration that the "food and beverage levy" that was imposed on it by the second respondent ("the Club") was unlawful;

(b) ordered that the appellant pay the respondents' costs of the proceeding on a solicitor and client basis.

The appeal against the costs order has been brought pursuant to leave that was granted by this Court on 21 July 2000.

28. The first respondent ("the Company") is the owner of a golf club and associated club house and facilities at Cape Schanck known as The National. The appellant holds four F class shares in the Company and is a member of the Club. Three of the shares were purchased in April and May 1998 and the fourth was acquired in August 1999. In accordance with the rules of the Club ("the Rules"), the appellant nominated eight natural persons, including one of its directors, Murray Dewar ("Mr. Dewar"), to be corporate nominees of the Club entitling them, effectively, to Club membership. Article 3.3 of the Company's Articles of Association[3] states, in effect, that a holder of F class shares shall have the right to use the Club premises and facilities without paying "any annual subscriptions" as provided for in the Rules. The Club has imposed a food and beverage levy on Mr. Dewar and the appellant has brought this proceeding claiming that the levy is a subscription for the purposes of article 3.3 and, therefore, the Club has no power or right to impose it.

31. The learned trial judge considered, however, that the levy was not a subscription for the purpose of the above article and, as I have said, dismissed the proceeding. His Honour also ordered that the appellant pay the respondents' costs on a solicitor and client basis.

34. The golf complex was developed in about early to mid-1980's on the basis that, the Company would own the assets of the golf club including the associated club house and facilities and that each member of the Club would hold one or more shares in the Company. A person could only acquire shares if that person had been approved by the Club for membership. The Company's share capital was divided into a number of classes - A to F- and different Club membership rights attached to the respective categories of the shares. This, in turn, was reflected in the different categories of membership of the Club. Relevantly for present purposes, pursuant to article 5.1, F (and B and D) class shares were to be issued only to an approved body corporate while A, C and E class shares were to be issued only to approved natural persons for private membership of the Club. Subject to the Rules, those shares are transferable. As the promoters of this venture correctly anticipated, the value of the shares has increased over time since the Company's incorporation.

37. Since we are concerned principally with F class shares, it is necessary to consider briefly the membership rights that are attached to them. Turning first to the Company's articles, article 3.3, which is at the centre of the dispute between the parties, is expressed so far as is relevant in the following terms:

"Each ... F class share shall confer on the member who holds such share ... the right to use the premises and facilities of the Club in accordance with the Club Rules without paying any annual subscription fees as therein provided."

The complementary Rule, Rule 9(1), provides that, so far as is relevant, no member who holds an E or F class share shall be required to pay an annual subscription. Otherwise, all members are required to pay an annual subscription as determined pursuant to the Rules.

42. The appellant is a "corporate member" of the Club within the meaning of the Rules and, as I have said, has nominated eight natural persons, including Mr. Dewar, to be corporate nominees. Subject to the Rules, corporate nominees are entitled to use the Club's premises and facilities to the same extent as the appellant (Rule 6(2)). The appellant, however, is liable to the Club for all acts and defaults of the corporate nominee in relation to the Club (Rule 6(5)). Given the provisions of Rule 6(5), Mr. Dewar and the appellant can be treated as one and the same entity for the purpose of the issues raised in this proceeding and the parties have argued their respective cases both here and below on that basis.

45. The Rules impose sanctions for, inter alia, non-payment of money that is due by members to the Club. Thus, the enjoyment of Club facilities and other membership rights may be lost or suspended if a member has not paid moneys that are due to the Club. Rule 6(14) provides:

"No member shall be entitled to exercise any right or privilege exercisable by a member under these Rules if at that time any moneys whether for annual subscription green fees or on any other account whatsoever are due by that member to the club and are unpaid."

Similarly, otherwise than with the leave of the Committee, a member is not entitled to transfer membership rights if, at the time, "any moneys including moneys due for annual subscription green fees or any other account whatever are owing by the member to the Club"(Rule 7(8)). Rule 11(1) provides that, if a member fails to pay "any moneys" for the time being owing by the member to the Club on any account whatsoever, the Committee may by resolution either expel that member from the Club absolutely or suspend that member from membership of the Club for a specified period. A member is also not entitled to vote at any general meeting unless all moneys due and payable by him to the Club have been paid (Rule 19).

50. The business and affairs of the Club are managed by a Committee of Management ("the Committee"). Rule 21 gives it wide powers, including the power to make by-laws not inconsistent with the Rules for the proper conduct and management of the Club, and any by-laws made by the Committee are to be binding on its members. In particular, the Committee is given power by Rule 21(3)(b) to make by-laws for "the terms and conditions upon which members and other persons shall be permitted to use the course and other facilities and premises provided by the Club."

53. As far back as 1989, the Committee recognised that, because many members made no, or only little, use of the Club's food and beverage facilities, the net cost of providing them was very high. In order to recoup some of those costs and to spread them more evenly amongst the bulk of the members, the Committee determined, in effect, that members should spend annually no less than $480 on the Club's food and beverage facilities and that any shortfall in such expenditure would be charged to the member by way of a levy. Thus, by circular letter dated 14 June 1989, to which I will refer again later, the Committee informed members (including Mr. Dewar), inter alia, that the opening of the clubhouse had added significantly to the Club's overheads and that members' support for the dining room facilities had been disappointing. After setting out the "subscriptions and fees 1989/90", the circular informed members, under the heading "Minimum Catering and Bar Charge Details", of the introduction of the minimum "catering and bar charge" (of $480 per annum ).

56. In April 1995 the Committee regularised this minimum charge levy by adopting a by-law which imposed on members a food and beverage levy. It is in the following terms:

"(i) The Committee shall from time to time determine a minimum amount which in the opinion of the Committee each member should be spending on food and beverages at the Club during a specified period of time. (ii) Each member who during a specified period of time has not spent the minimum amount on food and beverages at the Club determined by the Committee shall pay a `Food and Beverage levy' at such times and in such amounts as the Committee shall determine."

60. The Committee then determined (in April 1995) that the minimum amount for the purposes of the by-law was $480 and this amount has remained unchanged. Thus, since April 1995, the amount of the food and beverage levy that was imposed on the bulk of the members, including Mr. Dewar and the other corporate nominees of the appellant, was the difference between $480 and any lesser sum spent by them on food and beverage at the Club during the relevant period. A member was entitled to avoid the imposition of the levy by paying $240 at the beginning of the relevant year.

63. During the period 1989 to 1995 the corporate nominees of the appellant, including Mr. Dewar paid the minimum charge levy as invoiced to them by the Club without any objection. Since 1995, however, Mr. Dewar has refused to pay any of the food and beverage levies that were imposed on him by the Club. As a result, he accumulated approximately $1,212 by way of unpaid levies for the years 1996 to 1999. For reasons that I have given earlier, the appellant is liable to the Club for the unpaid levies.

66. Mr. Dewar's first written complaint to the Club about the food and beverage levy being imposed on him was made through the appellant's present solicitors who wrote to the Club Secretary on 4 June 1999 asking what was "the source of the power or rule under which the levy was imposed." The solicitors' letter drew attention to article 3.3. A like letter, dated 7 June 1999, was written to Mr. Hamson, the Chairman of the Company. Although neither letter complained in terms about the levy that was imposed on Mr. Dewar, it was apparent that Mr. Dewar, through his solicitors, was challenging the Committee's power to impose it on the basis that it was a subscription for the purposes of article 3.3. The Secretary responded on behalf of the Company by letter dated 20 July 1999 stating, in essence, that the levy could not be properly characterised as a fee for membership and, therefore, was not a "subscription". Rather, the letter went on to say, "the levy is used to make up the minimum expenditure on the bar and catering services which it is expected that each member will enjoy during the year".

69. Not being satisfied with the response, the appellant commenced the present proceeding on 25 August 1999 by way of an originating motion. So far as is relevant, the relief sought was a declaration to the effect that the "food and bar levy sought to be imposed on the plaintiff ... by the [Club] is in breach of article 3.3 of the [Company's] Articles of Association". As I have already mentioned, it is irrelevant for the purpose of the proceeding that the levy was, in terms, imposed on Mr. Dewar as distinct from being imposed directly on the appellant.

72. Thus, the issue before his Honour, and the principal issue before us, was in short compass - is the levy a subscription for the purpose of article 3.3?

75. After full consideration of the arguments presented, the essence of which I will detail below, in my view, his Honour was clearly right in his conclusion that the levy was not a subscription for the purposes of article 3.3 and that, therefore, the appellant was not absolved from paying that charge by reason of that article.

78. Mr Hayes, who appeared before us with Mr. Settle for the appellant, argued that "subscription" in article 3.3 should be given its ordinary meaning, namely, a fee for membership. As I understood him, he nevertheless contended that there was an ambiguity as to whether it encompassed the levy in question and his argument was that, in nature and character, the levy was no different from the subscription referred to in the article. In support of his case, counsel sought to rely, inter alia, on certain written material that was sent over the years (since July 1987) by the Club to its members and which, he contended, showed that the levy was, in substance, a "subscription" for the purposes of article 3.3. These documents, to which I will refer in more detail later, would, putting aside other difficulties, be admissible on the question of the construction of article 3.3 only if there was an ambiguity as to the proper meaning of "annual subscriptions" (see, for example, Codelfa Construction Pty. Ltd. v. State Rail Authority of N.S.W.[4]; Purcell v. Bacon[5]; and Great Western Railway and Midland Railway v. Bristol Corporation[6]). In my opinion, however, no ambiguity as contended for exists in this case and, therefore, these documents are not admissible on the question of construction.[7] In any event, for reasons that I give later, this material does not assist the appellant's argument that, on its proper characterisation, the levy in question is a fee for membership and thus, a subscription for the purpose of article 3.3.

81. In my view, the expression "subscription fees" in article 3.3 carries its ordinary meaning, namely, fees for membership. The reason that the article speaks of "fees" as distinct from "a subscription" or "a fee" is that there are various categories of membership of the Club and, therefore, the use of the plural is plainly apt. It cannot be sensibly said that "subscription fees" was used in article 3.3 because it was intended to encompass within its ambit the levy charged by the Club. Similarly, it is clear enough that, in its ordinary meaning, "levy" does not encompass a fee for membership. In the context of a club, "levy" usually means a charge that is imposed on members for a particular purpose, often to recoup in whole or in part the cost of providing a facility to members. Whether or not that was the purpose of the food and beverage levy, it is quite distinct from a fee membership.

84. Mr Hayes nevertheless argued that particular features of the levy demonstrate that it is a fee for membership and, since it is calculated by reference to the period of one year, is an annual subscription fee for the purposes of article 3.3. The aspects of the levy which counsel claimed show that it is, in substance, such a fee were these:

(a) the payment of the levy is a condition of the appellant being entitled to exercise membership rights and use the Club facilities in the sense that failure to pay it may result in the imposition of sanctions and deprivation of those rights;

(b) the amount of the levy is not related to any specific service that is provided to the appellant (or to any other member) - it is imposed even if the member has not consumed food and beverage;

(c) it is imposed to raise revenue for the Club for its general purposes;

(d) the amount is calculated on an annual basis as is contemplated by the article.

I now turn to consider each of the features of the levy on which counsel relied for his ultimate conclusion.

90. Turning first to (a) above, the mere fact that sanctions are imposed for non-payment of a fee obviously does not convert it into a fee for membership. The appellant was admitted to membership on the condition that it (and its corporate nominees) would observe the Rules and meet the obligations that are imposed thereunder, including payment of the various fees other than subscriptions. It is plain that the Rules which impose the sanctions on a defaulting member are of general application and have been introduced in order to ensure that the financial obligations of members of the Club are discharged. As I have already mentioned, the relevant Rules speak of a member having failed to pay "any moneys" or "all moneys". Thus, they covered not only subscriptions and the levy, but also other fees struck by the Club, such as green fees, the non-payment of which puts the defaulting member at risk of being expelled or suspended by the Club or of losing other membership rights. It has not been suggested that because of this a green fee, for example, is a "subscription" which holders of F-class shares are not required to pay. Those fees, like the levy, are paid for or towards defraying the cost of specific services that are provided by the Club to its members and are obviously not charged for membership of the Club. The fact that payment of the green fee is a condition of being entitled to exercise membership rights and use Club facilities in the sense referred to earlier does not mean that it is a fee for membership of the Club. It is, as I have said, a charge for or relating to a specific facility that is provided for by the Club to its members. The same is true of the levy.

93. As to the claim in paragraph 19(b) above, it is plain that, as I have already explained, the levy is imposed in respect of specific facilities provided by the Club to its members, namely, food and beverages. The documents to which I have referred earlier, were sought to be relied on by Mr. Hayes in support of his contention referred to in paragraph 19(c) above (and in support of his claim that, in substance, the levy is a fee for membership). In my view, however, this material does not assist counsel's argument. The written material consists of a brochure that was published by the Club in July 1987 and of a number of circular letters sent over the years by the Club to its members, an example of which is the letter of 14 June 1989 to which I have already referred. It was contended by Mr. Hayes that the brochure should be treated as the informal Rules of the Club that prevailed at the time of its publication. It was said that there were no formal rules then in existence and, since the brochure set out how the Club was being governed, the document could be treated as if it were the Club's informal constitution. Counsel pointed to the statement in the brochure that "no annual fees" would be payable by holders of F class shares and submitted that this demonstrated that the Club intended, even at that time, that F class shareholders would not be required to pay the levy. In my view, however, even if the brochure were to be regarded as a pre-cursor to its Rules, it does not support that for which the appellant contends. First, the levy was not imposed until 1989 so that the brochure could not be sensibly read as saying that F class shareholders would be absolved from paying any future levy imposed by the Club on an annual basis. Secondly, read as a whole, the document makes it clear that the reference to "annual fees" is in fact a reference to annual subscriptions only. This is made plain in the latter part of the brochure where the amount of each of the "annual fees" is set out by reference to the various categories of membership. In my opinion, there is nothing in the brochure that suggests that the "annual fees" in the above context were intended to encompass, in addition to subscriptions, the levy and other fees or charges of the Club. It is obvious that in the brochure the Club was stating no more than holders of F class shares would not be required to pay annual subscriptions.

96. I now turn to the circular letters which the Club sent to its members at various times between 1989 and 1999 on which Mr. Hayes relied to establish his case. By these letters the Committee reported to members principally on the progress of the Club's operation over the period since the last circular, including its financial position. Counsel emphasised that in its letters the subscription and the levy were dealt with effectively together in the sense that they were both discussed in the same part of the document and formed part of the "subscription package" which was to be paid by members. This, it was said, showed that both the so-called levy and the subscriptions were used to raise funds for the Club generally and were treated as fees for membership.

99. It is apparent that the principal purpose of the circular letters was to keep members advised of, inter alia, the Club's progress and of its financial position including the amounts of the various subscriptions and fees that were imposed. Those letters, however, distinguish in terms between "subscription" fees and other charges, such as the food and beverage levy. In a number of those letters, the Committee particularised its concerns about the lack of patronage of the Club's dining room and frequently cited that as the reason for the imposition of the levy. The terms of those circulars do not support the appellant's claim that the Club used the levy to build up its general revenue. Rather, they confirm that the levy was imposed to raise funds to pay for some of the costs of the food and beverage facilities.

102. Further, in my view, the fact that the levy, like the subscription, is calculated on an annual basis does not give it the character of a subscription. The annual aspect of the levy is probably the function of administrative convenience and says nothing about its character or nature.

105. Thus, the appellant's claim that the levy is of the same character and nature as the "subscription" which the appellant is not required to pay by reason of the operation of article 3.3 and that his Honour erred by holding to the contrary, must be rejected. Consequently, the appeal against his Honour's finding that the levy is not a subscription for the purposes of article 3.3 must fail.

108. I now turn to the appellant's submission that his Honour erred in awarding solicitor and client costs in favour of the respondents.

111. It is clear that a trial judge has, subject to acting judicially, a wide discretion to order that the costs of a successful party be paid at a level higher than party and party[8] and an appellate court will be slow to interfere with the exercise of that discretion. Generally speaking, an error of principle must be shown in the way the discretion was exercised or some substantial injustice must be established in the result arrived at.[9]

114. The determination of what should be the appropriate costs order in a case obviously depends on the particular circumstances of it and, therefore, decisions in other cases on the issue can only be of general assistance. In Bass[10], the learned President warned against reference to other cases for the purpose of establishing inflexible guidelines which would be determinative of the manner in which the court's discretion is to be exercised on the question now under consideration.[11] In that case, solicitor and client costs were ordered in the plaintiff's favour in circumstances where, as the trial judge found, the proceeding had been precipitated due to the defendant council resiling from its previous view as to the plaintiff's rights and the other defendant reneging on a previous arrangement. Nevertheless, other decisions on the issue, treated with appropriate caution, can provide a useful guide to the manner in which the discretion on the costs question should be exercised.

117. The authorities which deal with this issue recognise that, although ordinarily the court will effectively order that the unsuccessful party pay the costs of the successful party on a party and party basis, it may order that the costs be paid on a solicitor and client basis where it is satisfied that there are "special" or "unusual" aspects of the case which bring it out of the ordinary.[12] His Honour reached his conclusion that the appellant should pay the respondents' costs on the higher level in the following way. Having decided that:

- the levy did not impose a financial burden on the appellant (and that, in any event, it could avoid it by paying $240 at the beginning of the relevant year);

- the appellant brought the proceeding to establish "a matter of principle only";

- the resolution of the matter would be "of little moment only" on the appellant's relationship with the Club and on its own affairs.

His Honour concluded that, given "the issue at stake is really only a matter of principle of the kind in this case which the [appellant] wishes to have established ... in its favour, I am of the view that to cause [the] successful [respondents] to be still out of pocket as to costs in consequences of [their] defending such proceedings would be to visit an injustice on [them]."

124. Even if it is assumed that the proceeding was brought to determine a "matter of principle only" which was of "little moment", it seems to me, with respect, that, in the circumstances of this case, such a consideration was irrelevant to the question whether there should be a departure from the ordinary costs rule. The appellant was clearly entitled to seek the aid of the court in determining its claim that the Club had no right to impose the levy on it irrespective of whether it could well afford to pay it[13]. As Lord Diplock said in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd.[14]:

"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant."

Importantly, in my view, it has not been suggested that the appellant has engaged in misconduct in respect of the proceeding or brought it for an ulterior purpose or that the institution of it was patently unreasonable. In those circumstances, to require the appellant to pay the costs on a higher level is tantamount to punishing it impermissibly for bringing such an action. Thus, even if his Honour was correct in the characterisation of the proceeding and its consequences for the appellant, the factors which formed the essential basis of his Honour's discretion were not factors that could be properly taken into account in this case in determining whether it was relevantly "special" or "unusual" and a departure from the ordinary costs order.

129. Moreover, the circumstances which the authorities[15] seem to suggest enliven the discretion to award solicitor and client costs, are not present here. It is true that the categories of such circumstances are not closed. Nevertheless, the authorities indicate that, generally, the ordinary cost rule should only be departed from where the losing party has misconducted itself in relation to the proceeding[16] or where the institution of the proceeding was plainly unreasonable[17], or where the proceeding was issued for an ulterior or collateral purpose. As I have said, it has not been suggested that any of the above circumstances apply here. On the contrary, it might be said that the appellant has formulated the issue with a degree of precision so that the dispute that had to be determined by the court was in short compass. There was no attempt, for example, to challenge the validity of the relevant Rules or articles. Had this been done, the proceeding would undoubtedly have been prolonged and the costs of all parties would have been correspondingly higher. It is true that the appellant indicated at one stage that it would amend the proceeding so as to enlarge its case, but this did not take place. Nevertheless, the foreshadowed amendment caused the respondents to undertake work which was wasted, since the appellant did not pursue its proposal to amend its case. Mr. Sher, who appeared with Mr. Batt for the respondents, submitted that his Honour may have made the solicitor and client costs order to take account of the wasted costs so incurred by the respondents. In my view, however, there is nothing in his Honour's judgment to indicate that he had regard to this matter for the purposes of the costs order.

132. It follows from what I have said that, in my view, his Honour relevantly erred in exercising his discretion. Consequently, I would uphold this aspect of the appeal and order that his Honour's costs order be set aside and that there be an order that the appellant pay the respondent's costs on the usual party and party basis.

[1] The implication is that the average mark-up on food and beverages is 100 per cent so that, if the member pays $240, that is equivalent to purchasing $480 worth of food and beverages.

[2] Compare Spencer v. Dowling [1996] VSC 51; [1997] 2 V.R. 127 at 146 and 163.

[3] This article was introduced on 1 June 1987.

[4] [1982] HCA 24; (1982) 149 C.L.R. 337 at 352 per Mason, J.

[5] [1914] HCA 86; (1914) 19 C.L.R. 241 at 265 per Isaacs, Gavin Duffy and Richard, JJ.

[6] (1918) L.J. Ch.414 at 418-9 per Lord Atkinson and 424-425 per Lord Shaw.

[7] Moreover, since the documents post-dated the introduction of article 3.3, they would not be admissible on the question of interpretation of that provision - see, for example, Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd. [1970] A.C. 583 at 603 per Lord Reid; FAI Traders Insurance Company v. Savoy Plaza Ltd. [1983] 2 V.R. 343 per Brooking, Nathan and Eames, JJ. - see in particular Brooking, J. at 350 to 351 and Eames, J. at 354.

[8] See s.24(1) of the Supreme Court Act 1986 and Rules 63.31 and 63.32(1) of the Supreme Court Rules. The discretion to order solicitor clients costs is not circumscribed by Rule 63.32 - Regal Life Insurance Ltd. v. Pacific Financial Resources Pty. Ltd., unreported, 16 November 1994 per Batt, J. which was approved in Bass Coast Shire Council v. King [1997] 2 V.R. 5 at 29 per Winneke, P. with whom Hayne and Charles, JJ.A agreed.

[9] Baltic Shipping Co. v. Dillon ("The Mikhail Lermontov") (1991) 22 N.S.W.LR. 1 at 33.

[11] See, to similar effect, NMFM Property Pty. Ltd. v. Citibank Ltd. (No.11) [2001] FCA 480 at [53] per Lindgren, J.

[12] See, for example, Spencer v. Dowling [1996] VSC 51; [1997] 2 V.R. 127 at 147 per Winneke, P., at 163-4 per Callaway, J.A.; Bass Coast Shire Council at 29 per Winneke, P.; Bass Coast Shire Council at 29 per Winneke, P.; MGICA (1992) Pty. Ltd. v. Kenny & Good Pty. Ltd. (1996) 70 F.C.R. 236 at 240_; Colgate-Palmolive Company v. Cussons Pty. Ltd._ [1993] FCA 536; (1993) 46 F.C.R. 225 at 232-233_; Fountain Select Meats (Sales) Pty. Ltd. v. International Produce Merchants Ltd._ [1988] FCA 202; (1988) 81 A.L.R. 397 at 400-401 per Woodwood, J.

[13] I put to one side the question whether the proceeding should have been brought in the County Court.

[14] [1981] A.C. 909 at 977. This passage was cited by Gummow, J. in Unity Insurance Brokers Pty. Ltd. v. Rocco Pezzano Pty. Ltd. [1998] HCA 38; (1998) 192 C.L.R. 603 at 623. See also Cox v. Journeaux [1935] HCA 48; (1935) 52 C.L.R. 713 at 720 per Dixon, J.

[15] See the authorities referred to in footnote 11 above and also Australian Guarantee Corporation Ltd. v. De Jager; De Jager v. Registrar of Titles [1984] VicRp 40; [1984] V.R. 483 at 502 per Tadgell, J.; Shepherd v. National Mutual Life Association of Australasia Ltd., 15 November 1994, unreported, Hedigan, J.; J-Corporation Pty. Ltd. v. Australian Builders Labourers Federated Union of Workers (No.2) [1993] FCA 42; (1993) 46 IR 301 at 303 per French, J.; Packer v. Meagher [1984] 3 N.S.W.L.R. 486 and Wentworth v. Rogers (No.5) (1986) 6 N.S.W.L.R. 534 at 542 per Kirby, P.

[16] Such as unduly prolonging the case, or pleading fraud knowing it to be false, or making assertions of fact which are patently groundless, or making wild and contumelious allegations.

[17] As, for example, where the claim is patently hopeless.