Plaintiff / Appellant v Defendant / Respondent

2 The appeal is brought pursuant to r 77.06 of the Rules. It is accepted that I Cook must show factual, legal or discretionary error in order to enliven the Court's appellate jurisdiction.[2]

3 The order which is the subject of appeal relates to a matter of practice or procedure. Particular caution must be exercised in reviewing such a decision.[3] In order to succeed, the appellant must demonstrate that it will suffer substantial injustice if the appeal is not allowed.[4]

4 I Cook commenced the proceeding by filing a writ and statement of claim on 27 July 2020 naming other defendants. The State of Victoria ('State') was joined to the proceeding as a defendant by I Cook filing an amended writ on 4 April 2023. A further amended writ was filed by I Cook on 6 October 2023 that in effect discontinued the proceeding against those defendants who were originally named when the proceeding commenced. In each of these documents, I Cook nominated judge alone as the desired mode of trial.

5 The State did not give notice in accordance with r 47.02 of the Rules signifying a desire that the proceeding be tried by a judge and jury. In those circumstances, the State is taken to have chosen trial by judge alone.

6 I Cook applied by summons filed on 7 August 2024 and amended on 28 November 2024 to change the mode of trial to judge and jury.

7 The proceeding has not been listed for trial. Discovery is not complete and other interlocutory steps have not yet been timetabled.

8 The following affidavits were filed on the application:

(a) John Stirling, solicitor for I Cook, sworn 7 August 2024 and 1 November 2024; and

(b) Andrew Stefanovski, solicitor for the State, sworn 18 October 2024 and 15 November 2024.

9 I summarise Stirling's evidence in relation to the mode of trial application as follows:

(a) Orders made by the Acting Chief Health Officer of the State under the Food Act 1984 (Vic) ('Food Act') in February 2019 ('closure orders') resulted in the permanent closure of the food manufacturing and distribution business which was founded and conducted for many years by I Cook and the Cook family;

(b) At the trial of an earlier proceeding between the parties ('government proceeding'), McDonald J found the closure orders were invalid but dismissed the misfeasance in public office claim made by I Cook on the basis it was not established that the closure orders were made with reckless indifference;[5]

(c) The closure orders required that I Cook obtain a food audit from an independent food auditor. I Cook claims in this proceeding that an officer of the State engaged in conduct amounting to misfeasance in public office by interfering with the audit process and outcome, causing delay in I Cook being permitted to recommence its business, resulting in the loss of the business;

(d) He has been informed by Ian Cook, the sole director of I Cook, that Cook has 'lost faith in the State and its instrumentalities' because of the invalid closure orders and associated conduct, including prosecution of him and I Cook for alleged breaches of the Food Act on charges that were later withdrawn;

(e) The subject matter of the proceeding has resulted in two parliamentary inquiries and extensive media reporting;

(f) Stirling has been informed by Cook that he holds serious concerns regarding corruption in Victoria based on his experiences as a director of I Cook. Cook has been politically active in pursuing his concerns;

(g) Despite McDonald J's findings that the closure orders were invalid, no damages were awarded to I Cook and the State has not apologised or offered any ex gratia compensation to I Cook as it might be expected to do consistent with paragraph 2(l) of the Victorian Model Litigant Guidelines;

(h) Cook has informed Stirling that the above circumstances increased his desire that the proceeding be determined by a judge and jury, and that he and those people who have expressed support for him 'would be far better able to accept as just the outcome of the present proceeding if the facts concerning the State's alleged conduct are determined by a jury of his peers'; and

(i) Cook's instructions to bring the application result from his belief that a jury is better placed than a judge to decide facts concerning the alleged conduct of officers of the State in respect of I Cook.

10 The Associate Judge referred to r 47.02 of the Rules, which reads:

(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if -

(a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and

(b) the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.

(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.

(3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

11 The Associate Judge identified the Court's discretion in relation to the mode of trial and discussed relevant authorities as follows:

In Deka v Johns ('Deka'), when dealing with an application under r 47.02(2) by a defendant to change the mode of trial from judge alone to a trial by jury, J Forrest J held:

The onus in persuading a Court to dispense with the mode of trial determined by the operation of the rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.

In applying Deka to the case of Roland van Marburg v Aldred & Anor ('Roland'), Keogh J said:

The first defendant bears the onus of establishing a sufficient reason to deprive the plaintiff of the mode of trial chosen by him. The reason must be sufficient to outweigh the factors which otherwise weigh in favour of the plaintiff maintaining the benefit of the mode of trial he chose.[6]

12 The Associate Judge then discussed application of the test to the circumstances of the proceeding, and said:

These authorities establish that the party seeking to alter the mode of trial bears the onus of establishing a sufficient reason for the change. Here, the defendant properly invoked its right to trial by judge alone by not seeking to alter the plaintiff's selection when served with the amended writ in April 2023. The proceeding has continued on that footing since that time. The defendant opposes the plaintiff's application to change the mode of trial. In order to deprive the defendant of its selected mode of trial, the Court must be satisfied that the plaintiff's reasons are sufficient to outweigh the factors which otherwise weigh in favour of the maintenance of the defendant's election.[7]

13 The Associate Judge identified evidence and submissions going to the issue of delay.

14 The Associate Judge summarised the basis for I Cook's application as follows:

Mr Stirling deposes that the reason Mr Cook has instructed him to bring this application, that is, his special reason, is his belief that 'a jury is better-placed than a judge to decide facts concerning the State's alleged conduct in respect of [the plaintiff].' Mr Stirling deposes that Mr Cook's belief is based upon his experiences and those of his company, the plaintiff, in respect of the events and the actions of the defendant's officers leading to the closure of the plaintiff's business in February 2019. It was subsequently found by this Court that the plaintiff had been the subject of 'a wrong done by a public officer.' Mr Stirling deposes to being informed by Mr Cook that as a result of the wrong done to the plaintiff, which resulted in the closure of his business and a significant adverse financial impact on I Cook Foods, Mr Cook and his family, Mr Cook has 'lost faith in the State and its instrumentalities' and that he holds 'serious concerns regarding corruption in Victoria'. Mr Stirling further deposes as to Mr Cook's belief that:

he (and he believes the thousands of people that have expressed support for him) would be far better able to accept as just the outcome of the present proceeding if the facts regarding the State's alleged conduct are determined by a jury of his peers.[8]

15 The Associate Judge correctly identified that I Cook bore the onus of establishing that the State should be deprived of the mode of trial it had chosen. Her Honour said:

The benefit to be maintained, that is referred to by Keogh J in Roland, is the benefit of the choice the defendant made to invoke the rules relating to the mode of trial at the time prescribed. The plaintiff must show a special reason, that is, one that is sufficient to justify now depriving the defendant of its choice.[9]

16 The Associate Judge dismissed delay as a relevant consideration as follows:

The defendant does not seek to argue that a jury cannot hear this case, or that it would have taken different steps in the 17 months that elapsed since it was joined and when this application was heard.[10]

17 Finally, the Associate Judge expressed her reasons for dismissing I Cook's application as follows:

I do not consider that any special reason is coherently advanced in the plaintiff's evidence. I make that finding for the reasons which follow.

(a) The evidence, given on information and belief, of Mr Cook's 'concerns regarding corruption in Victoria' is vague, and is not linked to any identified concern about corruption in the Court. It follows the seemingly irrelevant (to the asserted special reason) observation as to the period in which the Labor government has held power in this State. It does nothing to explain Mr Cook's apparent belief that a jury is better placed than a judge to decide the facts in this case.

(b) The evidence, given on information and belief, to the effect that Mr Cook has lost faith in the State and its instrumentalities identifies, non-exhaustively, two of the reasons for that loss of faith based on conduct of the defendant. It is not stated that Mr Cook has lost faith in the independence of the judiciary. The former does nothing to explain Mr Cook's apparent belief that a jury is better placed than a judge to decide the facts in this case.

(c) The evidence, given on information and belief, to the effect that Mr Cook (and, in his belief, thousands of unidentified 'others' who have expressed their support for him) would be 'far better able to accept as just' the outcome of the present proceeding if the facts are determined by a jury, uses the language associated with the important principle of the law that justice must be seen to be done, without raising any issue of apprehended bias in this Court. The allusion, without more, does not identify a special reason to change the mode of trial.[11]

18 I Cook has advanced nine separate grounds of appeal. None of the grounds have merit.

19 Detailed reasons are usually not required of an Associate Judge determining an application concerning a matter of practice and procedure. It is sufficient for the reasons to contain a brief explanation of the basis for the determination.[12]

20 The Associate Judge accurately summarised I Cook's submissions in support of the application. Her Honour's reasons:

(a) identify the applicable rule and set out the relevant text by reference to authority;

(b) contain an accurate summary of the reasons advanced by I Cook to change the mode of trial;

(c) show that the Associate Judge dismissed delay as a consideration weighing against the application; and

(d) identify the right of the State to maintain the benefit of the choice it had made as to the mode of trial as the only factor that weighed in favour of maintaining the status quo.

21 The Associate Judge then concluded that the reasons advanced by I Cook in support of its application was not sufficient to justify depriving the State of its choice as to the mode of trial. In reaching that conclusion, the Associate Judge analysed in some detail the evidence relied on by I Cook to support a change to the mode of trial. Her Honour concluded that this evidence did not explain Cook's apparent belief that a jury is better placed than a judge to decide the facts in issue and did not identify a special reason to change the mode of trial.

22 The reasons of the Associate Judge clearly explain why I Cook's application to change the mode of trial was refused. There is no merit in this ground.

23 Neither mode of trial available under the Rules is inherently more just than the other.[13] An appeal to the Full Court in Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd ('Darrel Lea')[14] concerned an application by the plaintiff for a jury trial in circumstances where the mode of trial selected in the writ was judge alone. The application was dismissed by the trial Judge. The Full Court said:

It is against that background that we have to consider whether the plaintiff has shown that substantial injustice will result from allowing the order to stand, assuming it to have been an erroneous order. In determining that matter it has to be borne in mind that the system of justice in force in this State provides for two methods or modes of trial, namely, trial by judge and jury, or trial by judge without jury. In a system of justice providing those two modes of trial it must be assumed that each is a satisfactory mode of trial and one which is calculated to produce a fair trial of the action according to law. In such circumstances, even if the learned judge's decision was wrong and is permitted to stand, the plaintiff still has left open to it one of the two methods of trial provided by the system of administration of justice in force in this State.[15]

24 The appeal in State of Victoria v Psaila[16] concerned a different circumstance where a defendant had selected a jury trial regularly in accordance with the Rules, but the trial Judge determined to hear the matter by judge alone. Brooking JA said, discussing the decision of the Full Court in Darrel Lea:

Now what is important for present purposes about this decision is the emphasis placed by the Court, more than once, on the fact that the right of either party (subject of course to a contrary order) to fix the mode of trial had been exhausted. As regards the plaintiff, it had determined against requiring trial by jury when it issued a writ specifying trial by judge alone, and it had failed to exercise the right which the Rules, as they had been interpreted, gave not only the defendant but also the plaintiff to require a jury by application within ten days after appearance. The result was, said the Court, that when the plaintiff issued its summons seeking an order for trial by jury which ultimately came before Lush, J. by way of re-hearing it had no entitlement as of right to that mode of trial: it was entitled only to ask for an exercise of discretion in its favour. This matter is mentioned by the Court no less than four times in its reasons for decision. The first mention is at 407. The second and third are at 409-10, in the paragraph commencing "in considering those circumstances". The fourth is near the end of the reasons, at 410, where the same distinction is drawn between entitlement to trial by jury as a matter of right and mere entitlement to seek the exercise of a discretion. It was this circumstance which led the Full Court to conclude that, even if the decision of the judge was erroneous, no substantial injustice would be done by permitting his order to stand. If the view of the Court had been that, because it cannot be said that a trial by judge alone will not be perfectly fair and satisfactory, an erroneous determination that an action should not be tried by a jury can never occasion substantial injustice, the Court would no doubt simply have said so, without drawing repeatedly, as it did in the course of its reasons, the distinction between a party who has a right to a jury and a party who has only an entitlement to ask that a discretionary determination in favour of trial by jury be made.[17]

25 The ruling of J Forrest J in Deka v Johns ('Deka')[18] concerned an application by a defendant for a jury trial in circumstances where the plaintiff signified in the writ her desire for a trial by judge alone, and the defendant did not give notice in accordance with r 47.02(1)(a) of the Rules. J Forrest J accepted that the defendant's failure to file a jury notice was an oversight, but concluded:

Notwithstanding those observations, it is the plaintiff's right to have the mode of trial that she has chosen, and the defendant having failed, in my view, to comply with the rules, has not demonstrated a special reason sufficient to satisfy me that the trial be by judge and jury of six.[19]

26 His Honour's reference to the need for a special reason to justify dispensing with the mode of trial chosen in accordance with the Rules is further explained in his later ruling in Birti v SPI Electricity ('Birti').[20] The plaintiff in Birti signified a desire for a jury trial in accordance with r 47.02(1) of the Rules. The defendants sought a change to the mode of trial. The statement of applicable principles by Forrest J includes the following:

The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.[21]

27 The defendant in von Marburg v Aldred ('von Marburg')[22] also made a late application that a proceeding be heard by a jury in circumstances where the plaintiff had regularly nominated in the writ a desire for a trial by judge alone. I dismissed the defendant's application for the reasons recorded in paragraph [19]-[22] above.

28 Ladd v Comensoli ('Ladd')[23] concerned a slightly different circumstance. The plaintiff in that case nominated trial by judge alone in the writ in accordance with the Rules, and neither defendant filed a jury notice. Shortly before trial the plaintiff applied to change the mode of trial. After referring to Deka and von Marburg, Forbes J said:

In this proceeding, the defendants have regularly invoked a right to trial by judge alone, and continue to seek that mode of trial. The plaintiff's reasons for changing the mode of trial must be sufficient to outweigh the maintenance of the mode of trial chosen by the other parties.[24]

Forbes J confirmed that a party 'will not likely be deprived of maintaining' a choice as to the mode of trial made regularly in accordance with the Rules.[25]

29 I reject I Cook's submission that there is some material inconsistency in the statement of applicable principles in Deka, von Marburg, and Ladd, and that accordingly there is no settled line of authority relevant to the exercise of the Court's residual discretion in r 47.02(2). The language used in those rulings, being 'special reason' in Deka, 'sufficient reason' in von Marburg and 'special circumstances' in Ladd does not put a gloss on or restrict the Court's discretion to change the mode of trial from that which was properly selected by a party. The fundamental principle running through the three rulings is that a party has a right to choose the mode of trial in accordance with the Rules and should not lightly be deprived of a choice made regularly. The different language used in the rulings is simply descriptive of the onus borne by a party applying to have the court dispense with a selected mode of trial. The language is not prescriptive in terms of exercise of the discretion.

30 I Cook relied in its submissions on a ruling by Croft J in Raptis v City of Melbourne ('Raptis'),[26] where his Honour discussed the approach to the exercise of the r 47.02 discretion.[27] The observations made by Croft J in Raptis about the exercise of the r 47.02(2) discretion are inconsistent in some ways with the rulings in Deka and von Marburg. The following matters are relevant:

(a) Raptis concerned an appeal from a costs order made by an Associate Judge. The mode of trial was not in issue on the appeal. The observations made by Croft J in relation to the operation of r 47.02(2) are entirely obiter.

(b) Croft J, having noted the repeated complaints by the self-represented appellant that he had been deprived of a jury trial, introduced his consideration of r 47.02 as follows:

While it is clear that Mr Raptis does not have a right for either this appeal or the hearing before the Associate Justice to have proceeded before a jury, it may be of assistance to discuss the historical and present role of juries in civil litigation.[28]

(c) It does not appear that Croft J was assisted in his discussion of the issues by submissions of the parties.

(d) The observations made by Croft J have not been relied on in any ruling that is inconsistent with Deka, von Marburg, or Ladd.

I Cook did not refer the Associate Judge to the decision in Raptis, or make any submission that certain observations made by Croft J should be preferred to the principles stated in Deka and von Marburg.

31 The test that applies to exercise of the discretion in r 47.02(2) is set out in Deka, von Marburg and Ladd, and was correctly stated by the Associate Judge. This ground is without merit.

Grounds 3 to 7 - Errors in findings - Unreasonableness

(a) There is no suggestion that Cook's views are not sincerely held. Because the Associate Judge failed to find that Cook's beliefs about corruption and lack of independence of judges of the Supreme Court was a reason that I Cook sought a trial by judge and jury, her Honour did not assess whether that reason was sufficient to displace the existing mode of trial having regard to the extent of prejudice and unnecessary expense.

(b) I Cook's reasons for seeking a change in the mode of trial are coherent, in that they are logical, consistent and form a unified whole. It was not open to the Associate Judge to find that I Cook's reasons were not coherent.

(c) If the Associate Judge had found, as she ought to have done, that I Cook had advanced coherent reasons, her Honour ought have proceeded to find that those reasons justified a change in the mode of trial.

(d) The stage that the proceeding had reached is not a factor which ought have been taken into account against I Cook, particularly given the State's concession that it would not have taken different steps had the mode of trial been judge and jury.

(e) I Cook's reasons were sufficient to outweigh the factors weighing in favour of maintaining the State's election. The Associate Judge's decision was so unreasonable that it ought be inferred that there was a failure to properly exercise the discretion.

34 The Associate Judge accurately identified the reason advanced by I Cook to change the mode of trial in paragraph [22] of the Ruling. Her Honour summarised that reason in the final sentence of paragraph [24] of the Ruling, then logically addressed it in her findings in paragraph [25].

35 Her Honour's reference to 'coherence' was not a superficial observation about whether the complaints recorded in Stirling's evidence on information and belief from Cook addressed the same topic, and in that sense were 'logical and consistent and form[ed] a unified whole'. Rather, the use of 'coherence' was clearly directed to a conclusion that the matters raised by Stirling did not represent a reasoned, logical and rational basis for a belief that a jury is better placed than a judge to decide the facts of this case. That conclusion was not only open but, on the material, virtually inescapable.

36 The Associate Judge dealt with the evidence about Cook's views on the basis that they were seriously held. Her Honour's reasons demonstrate that she did not dismiss the evidence about Cook's beliefs because of a conclusion that they were not genuine.

37 As I have stated, a fair reading of the reasons is that the Associate Judge dismissed delay as a factor that counted against I Cook's application.

38 There is no foundation for I Cook's submission that the Associate Judge was obliged to find that the reasons it advanced justified a change in the mode of trial. That submission is based on a misapprehended understanding of the test on exercise of the discretion under r 47.02(2) of the Rules, because it does not take into account the right of a party that has regularly chosen a mode of trial in accordance with the Rules not to be deprived of that choice. I Cook's submissions often amounted to no more than an attempt to reagitate the facts divorced from the obligation to identify error.

39 The reasons advanced by I Cook to justify changing the mode of trial are Cook's loss of faith in State instrumentalities and his serious concerns about corruption in Victoria. There is no objective basis for Cook's loss of faith and corruption concerns, and I Cook has eschewed making a bias application. I Cook's case is simply that in the face of Cook's subjective belief, the Associate Judge ought to have concluded that the State should be deprived of its right to a trial by judge alone.

40 Trial by judge alone is inherently as just as a jury trial. The proposition that a party should lose the right to a just mode of trial chosen regularly in accordance with the Rules on the basis of subjective beliefs in the nature of those described in Stirling's evidence is difficult to accept. It would have been unreasonable for the Associate Judge not to dismiss the I Cook application.

Ground 8 - Alleged failure to take into account relevant considerations or, alternatively, failure to give adequate weight to relevant considerations

41 I Cook submitted that there was a relevant failure to take into account the following matters:

(a) the substantive law of the underlying dispute;

(b) context, namely the loss of I Cook's business caused by the invalid closure orders, the finding by McDonald J that the closure orders made by the State were invalid, and the failure of the State to apologise for that role in accordance with the Model Litigant Guidelines;

(c) that contrary to the Model Litigant Guidelines, the State has opposed I Cook's application on technical grounds in circumstances where it did not submit it would be prejudiced by a change in the mode of trial; and

(d) delay.

43 The reference to substantive law relies on an observation made by Croft J in Raptis. At least in the context of this application, the relevance of the underlying substantive law is completely unexplained. Further, I Cook made no submission to the Associate Judge that the substantive law was a relevant consideration in this case.

44 Two of the three matters of context raised by I Cook in its submissions were specifically addressed by the Associate Judge in paragraph [21] of the Ruling. It is difficult to understand the relevance of the third matter. I Cook submitted to the Associate Judge that the State had not apologised or made an ex gratia payment to it on the basis that the invalid closure orders lead to the loss of its business. Counsel for I Cook submitted before the Associate Judge:

I don't say that it's obliged to do those things, but the court has before it model litigant guidelines; they're exhibited to my instructor's first affidavit, which oblige it to consider those things where it's wronged a person.

As it was put, the alleged failure of the State to apologise or offer recompense was only relevant to Cook's beliefs and desire that the proceeding be determined by a jury. Clearly, the Associate Judge took those matters into account.

45 As the Associate Judge observed, the State had a right to the mode of trial of its choice. Arguing that it was entitled to maintain that right did not amount to the State opposing I Cook's application on technical grounds. The State was not obliged to show that it would be prejudiced in order to demonstrate the loss of a valuable right if I Cook's application was granted.

46 As I have previously observed, the Associate Judge did not take delay into account as a matter weighing against granting the application.

Ground 9 - The Associate Judge placed undue weight on the State's choice as to the mode of trial

47 I Cook's submission that the State's choice for a judge alone trial was merely a preference, such that it was not a substantial factor and should not have been accorded significant weight, is inconsistent with the authorities of Deka, von Marburg, and Ladd as discussed above. Ground 9 is without merit.

48 The principles applicable to appeals from costs orders were recently summarised by Beach J in Anderson v City of Stonnington,[29] where his Honour said:

This Court has repeatedly observed that appeals from orders as to costs are treated as exceptional and require this Court to exercise particular restraint.14 Moreover, there is a strong presumption in favour of the correctness of an exercise of discretion on costs. The test is not whether this Court would have exercised the discretion in the same way as the primary judge, but whether there was a ground on which the judge could reasonably have made the order in question.[30]

49 In its amended summons, I Cook applied for the State to be released from an implied undertaking in relation to documents discovered by I Cook in the government proceeding ('release application'); to change the mode of trial; and to split the trial between questions of liability and damages. The Associate Judge dismissed the second and third applications.

50 I Cook made discovery of documents to the State in the government proceeding ('discovered documents'). I Cook acknowledged that not all of the discovered documents are relevant to the issues in this proceeding.

51 I Cook successively engaged four different legal firms in the government proceeding. The solicitors representing I Cook in this proceeding have not acted in the government proceeding. Stirling said that he had been provided with some of the discovered documents. A former solicitor for I Cook in the government proceeding told him that most or all of the discovered documents were likely to be found in 15 or 16 boxes of hard copy documents that had been returned to I Cook.

52 I Cook sought to achieve two things by the release application. First was to have available to it those documents it had discovered in the government proceeding that are relevant to this proceeding. Second was to have the State bear the burden of reviewing the discovered documents in order to make discovery of only those documents that are relevant to the current proceeding. I Cook submitted that once the State was released from the implied undertaking in the government proceeding, it would be relevantly in possession of the discovered documents and should make discovery of those that are relevant.

53 Before the release application came on for hearing, the State caused the discovered documents to be provided to I Cook via its solicitors in the government proceeding. The State contended that the release application was redundant and that I Cook should make discovery of relevant documents. I Cook opposed that course because it had limited resources available to undertake what it expected would be a time-consuming and costly exercise which would take it some months to complete.

54 The Associate Judge proposed to address the resourcing difficulty faced by I Cook by making an order under s 55 of the Civil Procedure Act 2010 (Vic) ('CPA') allowing it to make discovery of the documents as a class without conducting a review of each document for relevance. The Associate Judge said:

The plaintiff, accepting the Court has power to make orders under s 55 of the CPA of the type contemplated, does not abandon its release application, which it regards as meritorious. However, the plaintiff's counsel acknowledged that although the method proposed is different, if the Court were to make the discovery order under s 55 of the CPA, the plaintiff could avoid the time consuming and resource intensive document review exercise it otherwise faces, and it would accept that as an appropriate outcome.[31]

The State opposed the course proposed by the Associate Judge, contending that it would be more efficient and cost effective to require I Cook to review and discover relevant documents in the usual way.

Given I will make an order under s 55 of the CPA which provides that the plaintiff make discovery of the Documents without conducting a further review of them, there is little utility in devoting time and resources to further contemplate the novel issues that arise from the plaintiff's release application.[32]

56 Having dealt with each aspect of I Cook's application, the Associate Judge finally disposed of the amended summons in the Ruling as follows:

I will order that the plaintiff make discovery of the Documents in this proceeding as a class of documents under s 55(2)(a)(i) of the CPA.

The plaintiff's amended summons will be otherwise dismissed.

Although I have not determined the plaintiff's release application, the orders that I have made give effect to the plaintiff's objectives which motivated that application. However, the balance of the plaintiff's applications have been unsuccessful, and costs ought follow the event. I will accordingly order that the plaintiff pay the defendant's costs of and incidental to its amended summons.[33]

Orders were made by the Associate Judge in terms consistent with the Ruling at the same time that the Ruling was handed down. There was no discussion about the costs of the amended summons when it was heard by the Associate Judge or at any time before the orders were made.

57 I Cook submits that it was denied procedural fairness in relation to the costs orders because it was not given an opportunity to be heard about that matter by the Associate Judge. I Cook submits that it could not approach the Court to set aside or vary the costs order under r 46.08 of the Rules because there had been no application for costs and accordingly the rule did not apply. I reject that submission. The issue of costs is always an inextricable part of a contested interlocutory application between parties. Even if that was not the case, there is an inherent jurisdiction in every court to set aside an order made against a person who did not have a reasonable opportunity to appear and present their case.[34] I Cook could have applied to the Associate Judge under the court's inherent jurisdiction or r 46.08 of the Rules.

58 I Cook submits that the Associate Judge erred by stating that costs followed the event in circumstances where the release application was not determined and the discovery order gave effect to the objectives that motivated I Cook's application. I Cook submits that in those circumstances, the Associate Judge ought to have ordered that the State pay I Cook's costs of the release application.

59 For the following reasons, I reject I Cook's submissions.

60 First, the Ruling demonstrates that the Associate Judge was well aware of the matters that I Cook submits it was not given an opportunity to argue. It cannot sensibly be said that the Associate Judge, when exercising the costs discretion, failed to consider that the release application was not determined or the degree to which the discovery orders gave effect to I Cook's objectives.

61 Second, I Cook did not succeed on any application in the amended summons that the State was called upon to meet and that it agitated before the Associate Judge. The summons was dismissed.

62 Third, the State provided the discovered documents to I Cook's solicitors in the government proceeding of its own volition. I Cook obtained the discovered documents from those solicitors, and thus had the documents in its possession for the purposes of discovery in this proceeding. The Associate Judge made the discovery order to relieve I Cook from the immediate burden of having to review the documents in order to make discovery in the usual way. However, the discovery order did not in any sense represent success for I Cook on the release application.

63 Fourth, it was likely that I Cook had the discovered documents in its possession before they were provided by the State to its solicitors in the government proceeding. I Cook made the release application because of its desire to avoid the cost of having to review its own documents for the purposes of discovery, and to shift that burden to the State.

64 Fifth, the release application was novel. It was not a matter for the State to simply agree to being released from its undertaking to the Court. Even if the State had agreed to being released, I Cook would have been required to agitate the application before the Associate Judge. Further, it was hardly unreasonable for the State to object to the outcome sought by I Cook, which would have had the effect of placing on it the cost burden of making discovery of I Cook's documents. On any view, the orders sought by I Cook in the release application were novel and in the nature of an indulgence.

65 I Cook has not demonstrated any basis for taking the exceptional course of reviewing the costs order made by the Associate Judge. There were certainly grounds on which the Associate Judge could reasonably have made the costs order. In the circumstances, it is difficult to identify how any other order could be justified.

66 I Cook's appeal and application for leave to appeal the costs order are dismissed. I will hear from the parties as to the appropriate form of order.

[1] I Cook Foods Pty Ltd v State of Victoria [2025] VSC 116 ('Ruling').

[2] Yin v Wu [2023] 73 VR 21, [60].

[3] Oswal v Carson [2013] VSC 355, [11] (Ferguson J) ('Oswal').

[4] Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aikin, Wilson and Brennan JJ); Fei v Hexin Pty Ltd [2024] VSCA 158, [67]-[71] (Kennedy, Macaulay and Lyons JJA); Streeter v Zhang [2024] VSCA 167, [31] (Niall and Kenny JJA).

[5] I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654.

[6] Ruling (n 1) [19] (citations omitted).

[13] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

[14] [1969] VicRp 50; [1969] VR 401.

[16] [1999] VSCA 193.

[18] [2009] VSC 296.

[20] [2011] VSC 566.

[22] [2016] VSC 565.

[23] [2025] VSC 24.

[26] [2017] VSC 488.

[29] [2025] VSCA 68.

[34] Miao v Body Corporate SP31235U [2013] VSC 380, [13].