Plaintiff v Defendant

Supreme Court of Victoria|2007-09-20|Before: HABERSBERGER J

APPEAL - Appeal from Victorian Civil and Administrative Tribunal - Leave to appeal - Extension of time - Appeal from Master's order dismissing application allowed in part - Victorian Civil and Administrative Tribunal Act 1998, s.148(1) and (5).

1 By a notice dated 14 May 2007 the plaintiff, Jennifer Martin ("Dr Martin"), appealed against the order of a Master made on 10 May 2007 dismissing her application for leave to appeal against certain orders made by a Senior Member of the Victorian Civil and Administrative Tribunal ("VCAT"). That application was brought by originating motion and summons filed on 27 February 2007. It was supported by a 31 page affidavit of Mr Gabriel Kuek, Dr Martin's solicitor and husband. The relief sought in the originating motion was for leave to appeal against:

(i) Paragraphs 1, 5, 6, 7, 8 and 9 of the Orders of 30 January 2007;

(ii) Paragraphs 1 and 2 of the Orders of 30 November 2006;

(iii) Paragraphs 8, 9 and 10 of the Orders of 26 October 2006.

2 However, in the argument before the Master, on 1 May 2007, Dr Martin limited her application to one applying for leave to appeal against:

(a) paragraphs 1, 5, 7, 8 and 9 of the order made on 30 January 2007; and

(b) paragraph 8 of the order made on 26 October 2006.

The draft notice of appeal was amended to accord with this more limited application.

3 Pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), a party may, by leave, appeal, on a question of law, from an order of VCAT. The application for leave must be made no later than 28 days after the day of the order of VCAT (s.148(2)(a)). An extension of time under s.148(5) was therefore sought to apply for leave to appeal against paragraph 8 of the order made on 26 October 2006.

4 In Secretary to the Department of Premier and Cabinet v Hulls[1], Phillips JA laid down the following "guidelines" for a decision whether or not to grant leave under s.148 of the VCAT Act:

When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

5 His Honour did so, however, with the warning that there was "an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal",[2] because "the discretion to grant leave, which is conferred by the statute in untrammelled terms, cannot be fettered, and should not be fettered, by judicial decision."[3] Phillips JA concluded that:

Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant.[4]

6 Phillips JA rejected the submission that r.4.09 of Chapter 11 of the Rules of the Supreme Court provided the appropriate test:

Rule 4.09 does not provide a test by which leave shall be granted; it simply grants a power to the master (and on appeal the judge) to refuse leave in certain circumstances. It says nothing about the criteria by which leave shall be granted.[5]

7 In Smith v Gannawarra Shire Council,[6] Charles JA said that the restraint which an appellate court would exercise before reviewing a discretionary decision of any kind was even greater where the decision involved an exercise of discretion in a matter of practice and procedure. Whilst agreeing with Charles JA, Winneke P pointed out that there were some occasions where orders made in matters of practice and procedure had the capacity to impact upon the substantive rights of a party.[7]

8 In order to understand the competing submissions, it is necessary to set out in some detail the background to the making of the orders in question. On 26 June 2004 Dr Martin lodged an application in VCAT's Domestic Building List. Her points of claim disclosed that her dispute with the defendant, Fasham Johnson Pty Ltd ("Fasham Johnson"), arose out of an agreement between Dr Martin and Fasham Johnson in December 20003 for Fasham Johnson to construct a house on Dr Martin's land. Dr Martin delivered amended points of claim dated 18 October 2004, a third set of points of claim dated 21 November 2005 and a fourth version dated 2 February 2006. By an order made on 21 April 2006, the Senior Member struck out the latest version of the amended points of claim, with liberty to replead. Paragraph 2 of that order was that:

By 19 May 2006 the Applicant must file and serve Points of Claim. Such Points of Claim must set out the material facts relied on and given [sic] proper particularization.

Dr Martin was also ordered to pay Fasham Johnson's costs of the hearing that day, to be assessed on the Supreme Court scale.

9 Dr Martin sought leave to appeal this order from a Master and then appealed to Gillard J from the Master's dismissal of her application for leave. His Honour dismissed the appeal.[8] Dr Martin then unsuccessfully sought leave to appeal to the Court of Appeal from the decision of Gillard J.[9] In his judgment, Eames JA said that Gillard J "rightly regarded" the grounds, which included denial of a fair hearing and apprehended bias on the part of the Senior Member, "as absolutely specious".[10]

10 In the meantime, according to the reasons given by the Senior Member on 26 October 2006, Dr Martin's solicitor sought a hearing so that application could be made for a stay of the orders made by the Senior Member pending the hearing and determination of the application to this Court. The Senior Member initially declined to hear the application because the accusation of bias was still unresolved. Nevertheless, by arrangement between the VCAT registry and Dr Martin's solicitor the application was listed before the Senior Member on 31 May 2006. On that day, rather than applying for a stay, Dr Martin's counsel asked that the Senior Member no longer participate in the hearing because of apprehended bias. The Senior Member reserved his decision on the question of his disqualification for apprehended bias. He also reserved the costs of that day.

11 On 26 October 2006 the Senior Member dismissed the application to disqualify himself and ordered that the hearing continue that day. Part of the continued hearing consisted of the determination of the question of the costs of 31 May 2006. Paragraph 8 of a second order made on 26 October 2006 ordered Dr Martin "to pay the costs of and incidental to the Respondent [sic] of 31 May 2006 on an indemnity basis." The Senior Member gave his reasons for that order. He considered that the application was "meritless" and that a party, properly advised, would not have made that application. He therefore considered that the circumstances were "extraordinary" and referred to the judgment of Nettle JA in Pacific Indemnity Underwriting Agency Pty Ltd v Maclaw No 651 Pty Ltd.[11] In that case, his Honour said that:

Of course there may be occasions when it is appropriate to award costs in favour of a successful claimant in Domestic Building List proceedings on an indemnity basis. But those occasions will be exceptional and, broadly speaking, circumscribed by the same criteria as govern the award of indemnity costs pursuant to r 63.28(c) of the Supreme Court (General Civil Procedure) Rules 1996. [Footnote omitted]

Dr Martin now seeks an extension of time for her to apply for leave to appeal against the order for indemnity costs.

12 Paragraphs 9 and 10 of the order of 26 October 2006, which Dr Martin no longer disputes, ordered that she pay Fasham Johnson's costs of hearing judgment and arguing the costs point in respect of the hearing on 31 May 2006, and its costs in respect of the balance of the day, being 26 October 2006, on a party/party basis on County Court scale "D". In so doing, the Senior Member rejected Fasham Johnson's argument that its costs of hearing judgment and arguing the costs point should also be paid on an indemnity basis.

13 The remaining part of the continued hearing on 26 October 2006 concerned an application by Fasham Johnson that the proceeding be dismissed and an application by Dr Martin for leave to rely on a fifth version of the points of claim, dated 20 October 2006. The Senior Member refused to dismiss the proceeding. In his reasons he said that:

I decline to hear and determine the Respondent's application to dismiss the proceeding under ss 75 and 78 of the Act. Those sections give me a discretion to order dismissal or strike out: both are contemplated as alternatives. But the Points of Claim are already struck out. Therefore, the facts prevent me from having both the capacities mentioned to be able to do either. Neither section in my view operates in a way so as to enable only dismissal or nothing which would be their operation, this day, if I was to proceed to hear and determine the Respondent's application. In any event, I rely upon remarks of Kirby J in Linden v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 256. I should not lightly proceed to hear an application for dismissal of a proceeding that, to this point, has not managed to get off the ground. That would not be fair or in accordance with either s97 or s98 of the Act. But the Applicant must realize that opportunities to replead her proceeding in proper form are clearly reducing and may close off.

14 Counsel for Fasham Johnson opposed leave being granted to file the fifth version of the points of claim. He submitted that they were still deficient and not an appropriate formulation of a claim, a point which seemed to be conceded by counsel for Dr Martin, who sought the opportunity to deliver fresh points of claim. Counsel for Fasham Johnson opposed any adjournment, but submitted that if the matter was put off Dr Martin should make a formal application to rely on either the fifth version of the points of claim or a new version if that course were adopted. The Senior Member agreed with the criticisms of the fifth version of the points of claim. During the hearing, however, the Senior Member said in respect of the fifth version of the points of claim:

I am allowing that document to stand as a document filed with the tribunal unless it is supplanted by another document filed with the tribunal so that the applicant's case can finally be properly presented.

A similar statement was made by the Senior Member in paragraph 10 of the reasons he gave for a ruling on 30 November 2006:

Draft Points of Claim were produced and were sought to be filed. I, out of some sympathy for the Applicant, allowed them to be filed and allowed them to stand as filed or in amended form. Their failings were obvious. I suggested to Mr Perkins that he or someone else who was experienced as a Barrister should be looking at the document. My fear was that a cause of action could get lost by the successive failures of Mr Kuek to generate a document resembling a pleading. I am very concerned that he has not secured independent representation for his wife.

15 Accordingly, on 26 October 2006, the Senior Member ordered as follows:

By 10 November 2006 the Applicant must file and serve Amended Points of Claim either in the form taken to have been filed this day or in a different form.
No further opportunities to file and serve Amended Points of Claim will be provided by the Tribunal, unless an order is sought and applied for and granted.
By 21 November 2006 the Respondent, if minded to do so, must serve a document (which may be in letter form) on the Applicant specifying any contentions in respect of the Amended Points of Claim filed under paragraph 1 and giving details of the same.
By 28 November 2006 the Applicant, if served with a document referred to in paragraph 3 must respond in writing to the same in detail by document in reply (which may also be in letter form).
Thereafter the Respondent may, by request in writing, request the Principal Registrar of the Tribunal to list for hearing an application for dismissal or strike out under s75 or s78 of the Victorian Civil and Administrative Tribunal Act 1998 and in that regard I adjourn over the Respondent's application currently before the Tribunal.
In the event such a request is received the Principal Registrar must arrange for the hearing and determination by me of the question of the sufficiency of the Amended Points of Claim.
In the event no such request is received I direct the Principal Registrar, otherwise, to list this matter for directions in the usual course.

16 Sensibly, Dr Martin was not content to rely on the much criticised fifth version of the points of claim. Instead, she wished to rely on a new version. But this sixth version of the points of claim, dated 13 November 2006, was not filed or served within the time required by paragraph 1 of the second order made on 26 October 2006. On 10 November 2006, Dr Martin's solicitor sought Fasham Johnson's consent to an extension of time. That request was refused. Accordingly, by notice dated 17 November 2006 the solicitor for Dr Martin applied to extend the time, within which the new points of claim could be filed, to 13 November 2006. In his written submission in support of the application, the solicitor for Dr Martin submitted that if leave was not granted she would suffer prejudice because she:

would be left with the existing Amended Points of Claim, which the Respondent has indicated is still found fault with [sic] and which Senior Member Cremean expressed negative remarks about on 26 October 2006.

17 At the hearing on 30 November 2006, the question of what would happen to the proceeding if time were not extended, which in turn raised the question of the status of the fifth version of the points of claim, were the subject of debate. Counsel for Fasham Johnson submitted that the order made on 26 October 2006 meant that Dr Martin had to "file and serve amended points of claim either in the form that was taken to have been filed that day or in a different form. A fresh document be it in the original form or a fresh form had to be filed." As neither of those steps had been taken, counsel submitted that if time were not extended the points of claim remained struck out, and in due course Fasham Johnson would make an application for costs. He submitted that the practical effect of not granting Dr Martin leave would be that the matter would end.

18 The solicitor for Dr Martin argued that it was wrong to say that the points of claim were struck out. He said that he was "under the impression that the order implicitly accepted" that the fifth points of claim had been filed and submitted that the effect of the order was that if a new (sixth) version of the points of claim was not filed and served by 10 November 2006, the fifth version remained on the file as Dr Martin's claim. The Senior Member disputed that this was correct. He said that the points of claim had to be either in the existing form or "in a different form and you chose to follow the path of a different form." At the conclusion of the argument the Senior Member said that:

It's very apparent to me that the path has been chosen to provide a different form to the one which was taken to have been filed because it was inadequate so it was sought to fix that up. By 10 November there was no compliance with paragraph 1 of the orders made on 26 October. Paragraph 2 was very, very clear: "No further opportunities to file and serve amended points of claim will be provided by the tribunal unless an order is sought and applied for and granted." That order is sought and applied for but I don't grant it and don't extend time. I'll provide reasons in due course. I won't hear the question of costs now.

19 In paragraph 12 of his written reasons, the Senior Member said that his reasons for "declining to extend time (by three days but only one business day) to enable compliance" included the following:

This is now the 6th attempt at producing Points of Claim. A long period of time has now gone by.
The Points of Claim which have been produced on this occasion are no more impressive than any of the last 5 failures. They allege, for instance, a cause of action arising under the Trade Practices Act 1974 (Cth) - under which the Tribunal, however, has no jurisdiction. They are vague and imprecise and seriously deficient in particulars. They assert absurd causes of action e.g. that the Builder is liable for the consequences of a burglary in December 2005 by (allegedly) handing over 8 rather than 9 keys in March 2005. They ask for "Exemplary damages because of the intentional, high handed, and outrageous behaviour [effectively blackmail] by the builder towards the owner". The full range of errors is apparent even upon a cursory examination of the document. No respondent should be called upon to plead to the same.

There is no satisfactory explanation for the delay (given that on this occasion the need for due compliance was emphatically made known). The affidavit of Mr Kuek (affirmed 29 November 2006) is completely unconvincing. He says he spent in excess of 80 hours working on a statement required by Mr Perkins. I could not examine that statement because it was claimed as privileged but a sizeable document which I saw was said to be the statement in draft form. He then says he was with Mr Perkins on 8, 9 and 10 November 2006 providing instructions in the matter. I fail to see how all this time could have been occupied on this matter. It is simply astounding considering I would have thought even a relatively inexperienced barrister could have produced a workable document after perhaps an afternoon's work allowing for breaks.

There is nothing on oath or affirmation before me to indicate an arguable case, and how one might be put, in this matter. The obligation is on the Applicant, I think, to show this. Mr Kuek argued I should look at the whole file to determine this point. I reject that. It is for him to make out his grounds and not for me to hunt around for them for him.
The serious prejudice being caused by [sic] the Respondent by constantly having to deal with a moving target - an incomplete, and unparticularized, document varying each time. The Respondent is incurring serious legal costs but not the Applicant herself who is represented by her husband and the barristers (6 in all so far) he chooses to brief. That is, unless he is charging his wife for his legal services.
The indulgence sought by the Applicant was not encouraged along, as it were, by an offer to pay the Respondent's costs incurred (yet again) except if I ordered it (if I understand Mr Kuek's submissions). There are also costs I believe (and significant orders for costs at that) remaining unpaid by the Applicant in the proceeding. But that is not determinative.

The point has been reached, I consider, that no reasonable cause of action can obviously be advanced after so many failed attempts at trying to plead it legally. This matter as it stands must be drawn to a close. No determination however has been made on the merits.
But my decision on this occasion is simply that I refuse to extend time. If this means the Applicant's cause of action remains struck out (not dismissed, I would add) then that is entirely the fault of her husband, her solicitor and the Counsel he has briefed. There would be nothing, I would think, to prevent the matter being re-commenced.
I reserve liberty to the Respondent to apply for the costs of the proceeding.

20 The actual order made on 30 November 2006 was as follows:

Application refused.
Reserve liberty to apply for costs.

Dr Martin originally, but no longer, sought leave to appeal against both paragraphs of that order.

21 The matter came back before the Senior Member in the following way. Apparently in the belief that it was complying with paragraph 7 of the second order made on 26 October 2006, the VCAT registry, by a letter dated 18 December 2006, notified the parties that a directions hearing would be held on 30 January 2007. Fasham Johnson then made application for an order that Dr Martin pay its costs of the proceeding which it argued had been struck out. It sought those costs on an indemnity basis. At the commencement of the hearing, the solicitor representing Dr Martin argued that the proceeding had not been struck out. He submitted that the hearing was for directions pursuant to the letter from VCAT. In response, the Senior Member said:

I refused to extend time for the failure to comply with the directions and that meant that the matter was stood there still struck out, without time having been extended to replead it. It was open to you to commence another proceeding if you wanted to, but not this one.

Dr Martin's solicitor disputed this ruling. He again sought to argue that the fifth version of the points of claim remained on the file as Dr Martin's claim, alternatively that the proceeding had not been struck out, even if all former versions of the points of claim had been. When this point was held against him, he sought to have the argument about the costs of the proceeding adjourned. The Senior Member agreed to this. Counsel for Fasham Johnson then sought to have the question of the costs of 30 November 2006 heard. The solicitor for Dr Martin said that he was in a position to argue that question on the day, but sought to have it adjourned so that it could be heard on the same day as the main costs argument. The Senior Member reluctantly agreed to this as well.

22 The order signed by the Senior Member on 30 January 2007 commenced as follows:

I refer to my reasons delivered on 30 November 2006 and having regard to the same am of the view that no proceeding remains on foot for me to make directions in or orders in save as to costs. My reason for this view is to be found in such reasons and in the consideration that the proceeding was struck out by me and I did not extend time to enable the directions and orders I made on 26 October 2006 to be complied with. I note that I have said that I have made no determination on the merits. Further, I observe that paragraph 2 of the "Notice of Directions Hearing" posted on 18 December 2006 is in error to the extent to which it asserts that there remains on foot a proceeding which has been struck out.

Under the heading "Directions", the Senior Member then gave some directions about the filing of submissions, copies of authorities and any affidavits in respect of Fasham Johnson's application for costs of the proceeding, including the costs of the hearing on 30 November 2006. The order continued:

I set this matter down for hearing on the question of costs only (there being no other questions arising out of a proceeding which is struck out) on 13 March 2007 before Senior Member Cremean commencing at 10.00 am at 55 King Street Melbourne. Allow one day.
I reserve to determine for myself on 13 March 2007 whether under the provisions of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") the Applicant should be represented by her current solicitor.

Having heard the parties, I am satisfied as required under s109 of the VCAT Act that in acceding to the request of the Applicant to adjourn this matter relating to costs the Respondent is being unnecessarily disadvantaged this day. I note the submission of the Applicant that the 30 November 2006 costs matter could have been dealt with today but should be dealt with together with the other costs issues. I note therefore that the Applicant was in a position to respond to submissions in respect of the 30 November 2006 costs matter this day.
In consequence, I order the Applicant to pay the costs of the Respondent which I fix in the sum of $1782.00.
I require such sum referred to in paragraph 8 to be paid by no later than 4.00 pm on 12 March 2007.

23 Dr Martin originally sought leave to appeal against paragraphs 1 and 5 to 9 of the order made on 30 January 2007. That application is now limited to paragraphs 1, 5 and 7 to 9.

24 The first two proposed questions of law deal with the question of whether or not there had been a striking out of the proceeding. They read as follows:

Were paragraphs 1 and 5 of the orders made on 30 January 2007 wrong in law in that they impliedly ordered that the proceedings were deemed to have been struck out?
Were paragraphs 1 and 5 of the orders made on 30 January 2007 wrong in law in that they were predicated upon an incorrect assumption, that is, that the proceedings had been struck out?

25 Mr Brett of counsel, who appeared on behalf of Dr Martin, submitted no order had ever been made striking out the proceeding as against, at most, an order striking out the points of claim. Even that was not clear as there was the argument that the fifth version of the points of claim, which the Senior Member allowed to be filed on 26 October 2006, remained on foot because the order of 30 November 2006 simply refused an application to extend the time for filing and service of the sixth points of claim.

26 Yet, Mr Brett submitted, it was clear that the Tribunal viewed the proceeding as no longer on foot. This meant that paragraphs 1 and 5 of the order made on 30 January 2007 constituted an implied order, or a recognition of a prior order. If so, such a striking out order was not appropriately made. Alternatively, if the order of 30 January 2007 was in fact an order then and there striking out the proceeding, it was not appropriately made. In either case, Mr Brett submitted, no reasons were given for striking out, nor was there argument about whether it was appropriate to do so with regard to the criteria set out in ss.75, 76 or 78 of the VCAT Act.

27 Mr Brett further submitted that it was no argument to suggest that what Dr Martin should be appealing against was the terms of the order made on 30 November 2006. Mr Brett submitted that a party could only appeal against orders and not against reasons and he pointed out that there was no striking out of the proceeding in the order made on 30 November 2006. Apart from a reservation of costs, that order only dealt with the refusal of the application to extend the time within which to file and serve the sixth points of claim.

28 An order striking out the proceeding was required, Mr Brett submitted, because a proceeding consisted of two parts, the proceeding itself, which was initiated by an application, and the articulation of the basis for the relief sought in the proceeding, which took the form of points of claim.

29 Finally, Mr Brett submitted that to allow the error to go uncorrected would impose substantial injustice on Dr Martin in that she faced being ordered to pay Fasham Johnson's costs of the whole proceeding without any hearing of her claim on the merits and without being given the opportunity to argue against the striking out of her proceeding. Mr Brett argued that, if the appeal were successful, it was not inevitable that such an order would follow a hearing on the striking out point, particularly if Dr Martin's advisers had by this time prepared a sensible version of the points of claim. In that case, she might be able to apply successfully for time to be extended to allow the new points of claim to be filed and served.

30 Mr Laird of counsel, who appeared on behalf of Fasham Johnson, submitted that the relevant decision for Dr Martin to challenge, if she wanted to dispute the striking out of her claim, was that made on 30 November 2006. Yet that course was clearly not being pursued by Dr Martin. Mr Laird pointed out that after the 26 October 2006 hearing, Dr Martin elected to go down the path of preparing a fresh document instead of relying on her fifth version of the points of claim, and that when the Tribunal refused to accede to her request for an extension of time to file and serve her sixth version, she submitted that the fifth points of claim were still on foot and that the proceeding stayed alive. That submission was clearly rejected by the Senior Member. Therefore, Mr Laird submitted, it was inconceivable, after the argument on 30 November 2006 and receipt of the Senior Member's reasons that Dr Martin was not aware that she needed to make an application for leave to appeal if she wished to challenge the Tribunal's rulings that she had no Points of Claim on foot and no leave to deliver further Points of Claim. Yet, Dr Martin chose not to seek leave to appeal the Tribunal's orders of 30 November 2006.

31 Mr Laird further submitted that the proceeding was still alive but only for the limited purpose of dealing with any application for costs by Fasham Johnson, although at one stage he did tentatively suggest that it was still open to Dr Martin to go back to VCAT "with a proper pleading and decent affidavit material and make another application to deliver points of claim."

32 Finally, Mr Laird submitted that refusing leave to appeal would not impose any substantial injustice on Dr Martin. There had been no dismissal of her claim on the merits so she could always start again. Further, Mr Laird submitted that it was by no means certain that Fasham Johnson would obtain an order in its favour for the costs of the proceeding in VCAT, but if it did this was only fair because of the substantial trouble and expense it had been put to in defending Dr Martin's claim.

33 I have reached the decision that there is sufficient doubt about paragraphs 1 and 5 of the order made on 30 January 2007 to justify granting leave to appeal. In the circumstances, it is probably not appropriate to say more than that, in my opinion, it is arguable that these parts of the order were made in error because the proceeding is still on foot in that the fifth version of the points of claim has not been struck out, alternatively, there has been no order striking out the proceeding, alternatively, any order made striking out the proceeding was made without consideration of the criteria set out in ss.75, 76 and 78 of the VCAT Act. A refusal of leave to appeal would, in my opinion, impose substantial injustice on Dr Martin if these complaints about the order were in fact correct.

34 The next question of law to consider (number 4 in the amended draft notice of appeal) is that all of the challenged paragraphs of the order made on 30 January 2007 were tainted by the apprehended bias on the part of the Senior Member in the conduct of the hearing leading up to the making of that order. In particular, Mr Brett pointed to the fact that during the hearing on 30 January 2007 the Senior Member said that he did not believe the statement by Dr Martin's solicitor in his affidavit that he had spent 80 hours in preparing a statement to assist the counsel who was to draft the sixth version of the points of claim. He also said that he found it "fanciful and unreal". When it was suggested by Dr Martin's solicitor that the Senior Member had exhibited a bias against him, the Senior Member replied:

No, you were very luck [sic] that I didn't refer that matter on ... Yes, you're lucky I didn't do it.

35 Mr Brett submitted, and it was not disputed, that what was meant by the Senior Member's comment was a referral to the appropriate prosecuting authority for consideration of perjury charges. He submitted that the impartial observer, seeing that the Tribunal had concluded that Dr Martin's solicitor was guilty of perjury, would consider that the Tribunal was not bringing an unprejudiced mind to the proceeding. In support of this proposition, Mr Brett referred to the decision of Smith J in Willis v Magistrates' Court of Victoria.[12] In that case, the Magistrate said, in the absence of the defendant's solicitor:

I do not think the Supreme Court appeal was conducted with the defendant's instruction. It is a good thing that your instructing solicitor is not in Court to take a note. Otherwise he would tell this to the Supreme Court.

Smith J held that this accusation of "at the very least, very serious professional misconduct" was made without foundation and that there was a reasonable apprehension that the magistrate's views about the solicitor were not recently arrived at and were matters he may well have taken into account in coming to his conclusion about the guilt of the defendant.[13]

36 Mr Laird submitted that the Senior Member's comments were not indicative of any bias on his part, and certainly not against Dr Martin. He referred to passages in the transcript which, he submitted, showed that the Senior Member treated Dr Martin's solicitor fairly and politely, despite the natural annoyance caused by the solicitor attempting to re-run the arguments rejected at the earlier hearing. Mr Laird submitted that the solicitor's conduct throughout the hearing on 30 January 2007 was "really inappropriate and provocative". He submitted that, given the history of this proceeding and the previous allegations of apprehension of bias on the part of the Senior Member, it was fair to say that Dr Martin's solicitor had become "almost obsessed with the notion that the Senior Member in this case is biased." Mr Laird also submitted that it was clear in Willis that it was the combination of disparaging remarks made by the magistrate about both the defendant and his solicitor, not just the comment about his solicitor, that gave rise to a reasonable apprehension of bias.

37 Allegations of apprehended bias, let alone actual bias, should not be lightly made. Nevertheless, it seems to me that, given the similarity between the situation in Willis and the case that Dr Martin wishes to mount here, leave to appeal on this point should be granted. Again, I consider it inappropriate to say anything further at this stage.

Were paragraphs 7, 8 and 9 of the orders made on 30 January 2007 wrongly made in that such Orders -

(a) were made on the basis that the Respondent was being unnecessarily disadvantaged, and/or

(b) were made by calculation of costs on an indemnity basis when there was no or no adequate reason for such basis given by the Tribunal?

39 Mr Brett submitted that while the adjournment of the applications for costs, including the application for the costs of 30 November 2006, may have disadvantaged Fasham Johnson, such disadvantage was not "unnecessary". Dr Martin's solicitor was entitled to seek time to prepare for a costs application which had not been foreshadowed. Therefore, there was no justification for ordering Dr Martin to pay the costs of the 30 January 2007 hearing. Further, no costs had been wasted as necessary directions about the hearing of the costs application had been given. Mr Brett also submitted that ordering Dr Martin to pay indemnity costs was not justified. The reasoning of the Senior Member was erroneous in that the application by Dr Martin to have both costs matters argued together was a sensible course, but in any event, that adjournment application was no basis for an award of indemnity costs against her.

40 Mr Laird submitted the authorities made it clear that appeals in relation to costs orders would normally not be entertained and should not be encouraged. He referred to the statement by Ormiston JA in Transport Accident Commission v O'Reilly[14] that:

... it has been accepted for many years that it is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party.

41 A number of reasons were put forward by Mr Laird in support of his submission that there was no basis for granting leave to appeal in relation to the 30 January 2007 costs orders. They included that much of the time spent on that day was wasted on the unsuccessful attempt by Dr Martin's solicitor to re-argue matters already decided; that the solicitor had conceded that he was in a position to argue the question of the costs of 30 November 2006 but nevertheless requested that it also be adjourned; and that the costs fixed by the Senior Member were based on the actual costs incurred, after hearing from both sides about all relevant issues.

42 Mr Laird accepted, however, that if leave to appeal were granted in respect of the apprehended bias ground, then that would also potentially taint these costs orders. In addition, I consider that the matters raised by Mr Brett are arguable. Therefore, I am of the view that leave to appeal should be granted in respect of the 30 January costs orders.

43 As previously stated, Dr Martin first needs an extension of time for leave to appeal against paragraph 8 of this order. Mr Brett frankly stated that it had not been thought appropriate to appeal against this costs order at the time it was made, and that it was simply being tacked on to the main application. He submitted that there would be no prejudice to Fasham Johnson in extending time. As far as the merits of the order went, Mr Brett submitted that the finding by the Senior Member that the application was "meritless" was neither a recognised, nor appropriate, criterion for an award of indemnity costs.

44 I agree with Mr Laird's submission that no proper explanation had been given as to why it was said time should be extended, and I refuse to do so. In any event, I consider that it was open to the Senior Member, in the exercise of his discretion, to award indemnity costs, on the basis that the application, as Dr Martin's advisers should have known, was without merit and had no chance of success.[15]

45 The result is, therefore, that, in my opinion, the appeal against the Master's dismissal of Dr Martin's application should be allowed in part. Subject to hearing from the parties concerning the appropriate form of the orders, leave to appeal against paragraphs 1, 5, 7, 8 and 9 of the order of the Senior Member of VCAT made on 30 January 2007 will be granted. Otherwise, the appeal against the Master's order will be dismissed. That is, I refuse to extend the time within which Dr Martin can seek leave to appeal against paragraph 8 of the order of the Senior Member of VCAT made on 26 October 2006.

[1] [1999] VSCA 117; [1999] 3 VR 331 at [16]. Tadgell and Batt JJA agreed with Phillips JA.

[9] Unreported, 22 September 2006, Eames and Neave JJA.

[10] At [22]. Neave JA agreed with Eames JA.

[15] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 at 401 (Woodward J); Colgate Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 233 (Sheppard J).

Civil and Administrative Tribunal Act 1998

Supreme Court (General Civil Procedure) Rules 1996

At a glance

Court

Decision date

Before

Source

Judgment (100 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)