Plaintiff v Defendant

2 Section 109 of the Magistrates' Court Act provides:

(1) A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in the proceeding.

(2) An appeal under sub-section (1) -

(a) must be instituted not later than 30 days after the day on which the order complained of was made; and

(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.

(3) Subject to sub-section (2), an appeal under sub-section (1) must be brought in accordance with the rules of the Supreme Court.

(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under sub-section (1);

(5) The Supreme Court may grant leave under sub-section (4) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

(6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for rehearing to the Court with or without any direction in law.

(7) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.

3 The right of appeal pursuant to s 109 is limited to appeals against a final order of the Magistrates' Court and on a question of law only. The appeal must be instituted not later than 30 days after the day on which the order complained of was made.

4 Here the orders complained of were made on 20 April 2012 and 5 June 2012. The Notice of Appeal was filed 29 June 2012. The orders made 20 April 2012 permitted the plaintiff to amend its statement of claim, adjourned the proceedings partheard and reserved costs. On 5 June 2012 the Magistrate gave judgment for the plaintiff in the sum of $47,103.51 as against Mr Neely, who was the second defendant in the proceedings, together with interest in the sum of $7,362.43 and ordered him to pay the plaintiff's costs fixed in the sum of $10,657.30. The Magistrate also ordered a stay of 30 days.

5 The Notice of Appeal identifies the orders made 20 April 2012 as the "first orders" and the orders made on 5 June 2012 as the "second orders" and seeks to appeal against some of the orders made on each day. The relief sought is that the grant of leave to amend be quashed and the plaintiff's application to amend its statement of claim be refused and that the giving of judgment as against Mr Neely on 5 June 2012 be quashed and in lieu thereof there be judgment for him. Questions of law are identified in respect of each of the first and second orders.

6 Transparently, the orders made on 5 June 2012 were final orders and the Notice of Appeal was filed within time in respect of those orders. The orders made 20 April 2012 were, however, interlocutory and so are on their face not capable of appeal pursuant to s 109. Further, even if the orders were otherwise capable of appeal, the appeal against them is brought out of time. The plaintiff seeks to address this difficulty by submitting that an error of law made in an interlocutory decision which affects the final order can be appealed by appeal against the final order. On this view, the plaintiff submits that the appeal against the orders made on 20 April 2012 is not out of time but, if necessary, seeks leave to bring such appeal out of time.

7 The defendant seeks dismissal of the appeal pursuant to Rule 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2005. That provision provides as follows:

The Associate Judge may dismiss the appeal if satisfied that -

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

8 The defendant here relies upon paragraphs (a) and/or (b).

9 For the reasons I set out in more detail below I consider that the appeal should be dismissed. In so doing I accept the Mr Neely's submission that appeal against the final order made on 5 June 2012, which appeal is made within time, can involve challenge to an interlocutory decision made earlier in the proceeding which is involved in the final order. Accordingly, it is unnecessary to consider whether leave out of time is required. Had I been of the view that summary dismissal was not appropriate and the appeal was to continue I would have required Mr Neely to correct the Notice of Appeal to clarify that the appeal against the interlocutory decision is by way of a question of law arising from a final order. The Notice of Appeal is currently drawn in a very confusing manner, implying a distinct appeal against the interlocutory order, which is not permitted by s 109.

10 I do not, however, consider that the appeal should be permitted to continue through a combination of paragraphs (a) and (b) of Rule 58.10(8). In respect of Question of Law 2, which is directed to the Magistrate's conclusion that Mr Neely was personally liable on the contract, I accept the submission of Southern Cross Feeds that the Question incorrectly characterises the findings of the Magistrate. I accept the submission that this Question of Law does not arise from the Magistrate's findings of fact when correctly exposed.

11 In respect of Question of Law 1, which is directed to the granting of leave to amend, I accept Mr Neely's submission that there is an arguable case of legal error in the manner in which the Magistrate determined the application to amend. However, I accept the submission of Southern Cross Feeds that any injustice thereby occasioned was cured by the adjournment which was granted. Given the adjournment and that no question of law is identified from the final determination I do not consider that the appellant has an arguable case on appeal in respect of Question of Law 1.

12 The proceedings in the Magistrates' Court arose from the supply of horse chaff by Southern Cross Feeds to Mr Neely or businesses associated with him. Mr Neely, or businesses associated with him, used the chaff to create a retail feed product for horses called "Weight Lifter".

13 The evidence in the Magistrates' Court was that the supply commenced in either 2001 or 2002 following a meeting between Mr Neely and a director of Southern Cross Feeds, Mr Brett Caddy. Supply then continued for some years. The invoices issued by Southern Cross Feeds were all directed to "Weight Lifter". The invoices in evidence, being the invoices from 4 April 2008 to 2 January 2011 and representing unpaid amounts, also showed a "customer ABN". It was undisputed that this ABN was supplied by Mr Neely at the request of Southern Cross Feeds some time after supply commenced, and that it is the ABN of a company Turquoisecroft Nominees Pty Limited, which was associated with Mr Neely's family trust.

14 It was also undisputed in the Magistrates' Court that at the time of the initial contract to supply there was no registered business name or incorporated entity associated with Mr Neely using the words "Weight Lifter". Weight Lifter, as indicated, was a horse feed product made by Mr Neely or businesses associated with him. Some years after the initial contract a company, Weight Lifter Pty Ltd (or Weight Lifter Horse Feed Pty Ltd), was incorporated, with which Mr Neely is associated.

15 The evidence as to what was said by Mr Neely at the original meeting with Mr Caddy was said to be in dispute at the Magistrates' Court. Mr Caddy's evidence was that Mr Neely telephoned him and introduced himself as "Robert Neely from Weight Lifter" and that as a consequence of that telephone conversation a meeting was arranged at his (Mr Neely's) farm at Shiralee Park where the supply of chaff "to his company" was discussed. In answer to the question "Did he tell you what the company is called?" Mr Caddy answered, "Weight Lifter".[1] Under crossexamination, Mr Caddy affirmed that at this initial meeting Mr Neely said the name of his company was Weight Lifter and denied that he may have been mistaken and it might have been the product that was said to be Weight Lifter rather than the name of his company.[2] The crossexamination continued on the basis that Weight Lifter Horse Feed Pty Ltd was not incorporated until 2006, about four years after the commencement of supply and Mr Caddy was again asked if he may have been mistaken and in fact Mr Neely simply described his product as Weight Lifter rather than the company name as Weight Lifter. Mr Caddy denied this twice but then said in answer to the question "Do you accept that you might be mistaken, and what Mr Neely is going to say is the evidence would be correct?", that it "Could be".[3]

16 Given this crossexamination it might have been expected, and was indeed essential, that Mr Neely would give evidenceinchief as to what he said at the initial meeting with Mr Caddy. In fact he gave no evidence as to what he said at this initial meeting. He gave evidence as to what occurred at a subsequent meeting which he described as being held "about two years into the supply agreement" which meeting was with another director of the defendant company. Mr Neely said at that meeting he was asked, "Who are we dealing with?" and he said, "Well, you're dealing with Turquoisecroft Nominees Pty Limited" which was "the only company I had at that time, and that's what we were using to trade, and we were also using it to buy goods from other people as well."[4] He was then asked by his counsel to comment on Mr Caddy's evidence that he had made reference to a company called Weight Lifter. The question continued, "What do you say was discussed between you and Mr Caddy in relation to the name or the reference to the word Weight Lifter?" Mr Neely responded, "At that meeting with his codirector?" and his counsel answered, "Yes". Mr Neely then said, "No, there was never any discussion of the name Weight Lifter Pty Limited or any such name at all". He continued to explain that the company was not incorporated until some years later.[5] Later in his examination in chief Mr Neely gave evidence that he was requested to supply an ABN at this second meeting with Mr Caddy and his codirector, and supplied the ABN which belonged to Turquoisecroft Nominees Pty Limited.[6]

17 Thus Mr Neely's evidence as to whether he identified a company known as Weight Lifter was confined to the subsequent meeting. He did not address at any other stage whether he used this company name in his initial meeting with Mr Caddy. Accordingly, the only evidence as to what was said at that initial meeting between Mr Neely and Mr Caddy was that given by Mr Caddy, to the effect that Mr Neely said the supply of chaff was for his company and the company name was Weight Lifter. Similarly, Mr Caddy gave no evidence in chief, and nor was he cross examined, about the subsequent meeting. The two witnesses called gave evidence about different meetings. In relation to what was said as between Mr Neely and either Mr Caddy at the first meeting or Mr Neely and Mr Caddy and the codirector at the second meeting, the plaintiff's case focussed exclusively on the first meeting and the defendant's on the second.

18 Mr Neely or his business interests fell into difficulty from 2007 and invoices from Southern Cross Feeds to Weight Lifter from April 2008 were not paid at all or in full. From the invoices put in evidence at the Magistrates' Court it appears that supply continued throughout April and for one delivery in May. Thereafter Southern Cross Feeds sent Weight Lifter invoices for interest charged at a penalty rate. The plaintiff sought in the Magistrates' Court the balance of the supply charges in the sum of $47,103.51 and penalty interest thereon as against two defendants, Mr Neely who was the second defendant and Equine Nutrition Australia Pty Ltd as the first defendant. The statement of claim pleaded that it was the first defendant who engaged the plaintiff to supply horse feed in or about 2001. The evidence at the Magistrates' Court was undisputed that Equine Nutrition Australia Pty Ltd was not in fact incorporated until some years after the initial contract.

19 The statement of claim also included a claim for damages against both defendants being the cost of legal proceedings against Turquoisecroft Nominees Pty Limited for the same debt. This cause of action (at least as against the second defendant) was pleaded to arise from the supply by the second defendant (Mr Neely) of the ABN number for Turquoisecroft Nominees Pty Limited. It was undisputed that the then plaintiff had brought proceedings against Turquoisecroft Nominees Pty Limited in respect of the same debt and obtained default judgment, but no moneys had been recovered. This claim for damages was not pursued in final submissions by the then plaintiff.

20 The Magistrate gave judgment for the then plaintiff for the amount unpaid for supply and penalty interest as against the second defendant Mr Neely only. The Magistrate founded the judgment on an amendment to the statement of claim which he permitted to be made on the first day of hearing, 20 April 2012. By that amendment, the then plaintiff specifically pleaded that the second defendant had held out that he was acting for or on behalf of an incorporated entity known as Weight Lifter at the initial meeting; that the second defendant knew that the plaintiff believed it was dealing with an incorporated entity known as Weight Lifter; that Weight Lifter was not an incorporated entity at the relevant time and that accordingly:

12D Insofar as "Weightlifter" was an unregistered business name and/or not an incorporated entity, the Second Defendant is personally liable for the goods ordered by him as "Weightlifter" and supplied to "Weightlifter" by the Plaintiff.

21 In response to the submission from Mr Neely's counsel that this was a case of disclosed agency and so Mr Neely could not be personally liable, even though the identity of the principal was not disclosed, his Honour relevantly held:

There's a difference, however, between the nondisclosure of an agency and the nonexistence of an agency. I think that's the salient point. It's not capable of being a principal agency situation without the existence of a principal. The principal can't be Weight Lifter, neither can it be Turquoisecroft because there are no indicia of its existence in the initial negotiations. Principally the naming of it, but it also includes the provision of an ABN number after the event.

... the fact is that no mention of Turquoisecroft took place when the parties formed their relationship. It was formed as a relationship between Southern Cross Feeds and Robert Neely from Weight Lifter. I accept that evidence from the Plaintiff. And, the contract, the contractual relationship, was cast in those terms. It persisted as a contractual relationship with Mr Neely by virtue of being Weight Lifter, regardless of the provision of the ABN number at a later stage, which, despite the lack of any date, certainly post dates the important, the initial negotiations, which established the personalities of the contracting parties.

The person who contracted with Southern Cross Feeds right from the beginning was Mr Neely, of Weight Lifter. I emphasise again, that there was no principal at that point in time, and that really determines the matter.

Equine Nutrition did not exist when the agreement was made, and as I understand the evidence, the ABN number could not, at least, was not supplied at the time of contracting, which eliminates Turquoisecroft as a contracting party, because it was completely unknown to one side of the bargain.[7]

22 The Notice of Appeal gives notice of an appeal by Mr Neely against paragraphs 1 and 3 of the order made by the Magistrates' Court on 20 April 2012 (the grant of leave to amend the statement of claim and reservation of costs) and against paragraphs 1 and 2 of the order made by the Magistrates' Court on 5 June 2012 (being the giving of judgment for the plaintiff as against Mr Neely and the order that Mr Neely pay Southern Cross Feeds' costs.) Thus the Notice of Appeal purports to appeal not only against the orders made on 5 June 2012, the final orders, but also and distinctly against the interlocutory orders made on 20 April 2012.

23 The questions of law set out in the Notice of Appeal are similarly distinct. Question of Law 1 is as follows:

Whether the Court, in considering whether to grant the Plaintiff leave to amend its statement of claim, in which the Plaintiff sought to introduce a new cause of action after its case had closed and after the Defendant had led all of its evidenceinchief

(a) erred in law in considering and exercising its discretion on the basis that a Magistrates' Court will allow amendments as a matter of course;

(b) erred in law in permitting the amendment without first requiring the Plaintiff to provide any explanation as to why the amendment, to introduce a new cause of action, was made so late;

(c) erred in law in permitting the amendment without considering or applying any of the various criteria enumerated in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

Whether the Court, having found, as a fact, that the Plaintiff knew it was contracting with a company associated with the Second Defendant, erred in law in finding the Second Defendant personally liable on the contract, on the basis that the Plaintiff did not know the name of the Second Defendant's company.

25 Grounds of Appeal 1 to 3 essentially repeat elements of Question of Law 1, and Ground of Appeal 4 repeats Question of Law 2.

26 In respect of the appeal against the orders made in April 2012, Southern Cross Feeds says that the appeal is incompetent because those orders were not final. In addition, Southern Cross Feeds says the appeal is out of time and no exceptional circumstances as required by s 109 of the Magistrates' Court Act are demonstrated. Further, Southern Cross Feeds says that the appeal is not arguable for two reasons. The first is that there was no arguable error of law in the grant of the leave to amend, having regard to the provisions of the Civil Procedure Act 2010 and the provisions of the Magistrates' Court (General Civil Procedure) Rules 2010. The second submission is that the appeal is not arguable, if competent, because Mr Neely has failed to show that he suffered any prejudice through the making of the first orders that was not cured by the adjournment thereby ordered.

27 In respect of the appeal against the final order made on 5 June 2012, Southern Cross Feeds says that this appeal is "based on a misapprehension of the findings made by the Learned Magistrate".[8] Southern Cross Feeds says that once those findings are properly considered, it is apparent that they were open on the evidence before the Magistrate and, further, that he did not misdirect himself as to the law that applies if a person purports to be the agent of a nonexistent principal. Accordingly, Southern Cross Feeds says there is no question of law arising from the final order of the Court.

28 Mr Neely in relation to the appeal against the amendment order (described in his counsel's written submissions as the "Second Question" although on the Notice of Appeal it is Question of Law 1) submits that interlocutory rulings or orders which are wrong in law and affect the final order can be appealed after the final order is made. If the Court considered that leave was necessary because the appeal was out of time, then Mr Neely submits that there are exceptional circumstances because the appeal from the earlier decision was not competent until the final order was made.

29 In relation to the question of law identified in respect of the final order (described in the written submissions as the "First Question" although on the Notice of Appeal it is the second Question of Law), Nr Neely contends that the Magistrate "erred in concluding that there was no agency, simply because Southern Cross did not know the name of Neely's company, in circumstances where Southern Cross knew it was dealing with a company".[9]

Question of Law 1: is the appeal against grant of leave to amend the statement of claim competent?

30 The effect of the amendment was to plead that Mr Neely was personally liable on the supply contract because he held out that he was acting for a named corporate entity as principal, when that corporate entity did not in fact exist. The Magistrate expressly found for Southern Cross Feeds against Mr Neely on the basis of the amendments. Clearly then the grant of leave to amend the statement of claim was critical to the final order, being judgment against Mr Neely.

31 The plaintiff relies on two cases principally as support for the proposition that appeal pursuant to s 109 can be brought against an interlocutory ruling which is involved in the final order. The first is DPP v Velevski, an unreported decision of Hansen J of 22 September 1994 in proceeding 6045 of 1994. In that case a magistrate dismissed criminal charges following his refusal to allow an amendment to correct the name of the person charged. The appeal was brought under s 92 of the Magistrates' Court Act which, similar to s 109 applying to appeals in civil cases limited appeals from an order of the Magistrates' Court in a criminal proceeding to appeals on a question of law against a final order. Section 92 was subsequently repealed and inserted as s 272 in the Criminal Procedure Act 2009. His Honour held that the Magistrate had been in error in refusing the amendment to the charge and rejected a submission that the appeal was not competent because it was not from a final order. His Honour held that the interlocutory order refusing the application to amend and the final order dismissing the summons could not be separated and relied on authority to the effect that where the interlocutory decision is "involved" in the final decision, appeal is permitted.

32 The second case relied upon principally by the plaintiff is Thomas v Campbell and ors,[10] a reported decision of Nettle J. That case concerned an appeal against conviction in the Magistrates' Court following the setting aside of a subpoena issued at the request of the accused. Justice Nettle allowed the appeal on the basis that the decision of the Magistrate to set aside the subpoena was informed by error of law, which error was "involved in the final orders" to convict the accused of the offences with which he was charged. His Honour expressly rejected the submission that to allow the appeal on the basis of error made in an interlocutory decision would result in the "intolerable possibility of appellants advancing as grounds of appeal from final orders every arguably erroneous interlocutory order made in the course of the interlocutory stage of the proceeding".[11] His Honour held that the only (interlocutory) orders which may be made the subject of appeal under the then relevant provision, s 92 of the Magistrates' Court Act, are orders that are "involved in the final orders". In that particular case the interlocutory decision had been made by one magistrate and the final decision by another, but the statements of principle by Justice Nettle in my view apply equally to this case where the same magistrate made both decisions.

33 Mr Neely has relied on further cases that illustrate these general principles but it is not necessary to discuss them as they do not add or detract from the general statement of principle. Counsel for Southern Cross Feeds submits that these cases may be distinguishable because they arise in the criminal jurisdiction. I do not consider any such distinction arises. The wording of ss 92 and 109 of the Magistrates Court Act was relevantly identical in limiting appeals on a question of law to the Supreme Court to those from final orders. Indeed, in DPP v Sabransky[12] Kellam J. held that there was no distinction between the meaning of the words "final order" as used in s 109 and in s 92.[13]

34 In short, I accept Mr Neely's submission that as the interlocutory order challenged by Question of Law 1 was "involved" in the final order (in fact was the essential pre-condition of it) he is entitled to appeal against the final order on the basis of a question of law arising from the earlier grant of leave to amend the statement of claim, although that order was itself interlocutory. The Notice of Appeal should have been drafted to confine the appeal to the final orders, albeit in part on the basis of a question of law arising from an earlier interlocutory order. Had this been done, the true position would have been clearer and it would have been evident that there was no need to canvass whether or not leave to appeal out of time was required and, if so, whether it should be granted. That argument was, in my view, entirely misconceived although understandably so given the way the Notice of Appeal was drafted. It assumed that there was a distinct right of appeal against the orders made in April which, transparently, was never the case.

35 I will return shortly to whether or not the appeal, in so far as it arises from Question of Law 1, should be dismissed.

Question of Law 2: alleged error of law in the application of the law of agency

36 I accept the submission by Southern Cross Feeds that this question of law is founded on an incorrect characterisation of the Magistrate's findings of fact. When those findings of fact are correctly set out, this question of law does not arise from them. The Magistrate did not find that there was no agency because the then plaintiff Southern Cross Feeds did not know the name of the principal for whom the then second defendant Mr Neely acted. He found that there was no agency because there was in fact no such principal, the principal having been identified by Mr Neely as Weight Lifter. This is apparent from the extracts of his Honour's reasons that I have set out earlier. As earlier observed, the only evidence as to what was said by Mr Neely at the critical initial meeting was that given by Mr Caddy, and so clearly there was an evidentiary foundation for the Magistrate's findings of fact.

37 Accordingly, the Notice of Appeal does not identify a question of law arising from the application of the law of agency on which the appeal may be brought.

Question of Law 1: should the appeal on the basis of this Question be dismissed?

38 I accept Mr Neely's submission that there is arguable error of law in the way the Magistrate approached the application to amend the statement of claim. Counsel for Mr Neely, who is also counsel for him in this appeal, submitted at length to the Magistrate that he should consider the factors identified in Aon Risk Services Australia Ltd v Australian National University[14] (" Aon") in considering whether or not to grant the application for amendment, which application Mr Neely opposed. Notwithstanding these submissions, the Magistrate arguably did not address himself at all to the Aon factors and appeared to consider that an amendment should be allowed as a matter of course.

39 Contrary to the submission by Southern Cross Feeds, there is nothing in the Civil Procedure Act 2010 or the Magistrates' Court (General Civil Procedure) Rules 2010 to suggest that the criteria in Aon need not be considered in exercising the powers thereby conferred to grant leave to amend or manage proceedings generally. Counsel for Southern Cross Feeds also relies on the observations by the Full Federal Court in Dye v Commonwealth Securities Ltd (No 2)[15] that Aon is not a "one size fits all case" and that, in particular, the need for acceptable explanation for delay in making the application will depend on whether prejudice has thereby been created, and that whether any extra time would be required, the nature of the amendment and its relevance to the proceeding are also relevant factors.[16] I accept that the factors to be considered and the degree of consideration will vary, but remain of the view that here, arguably, the Magistrate did not sufficiently address or identify the relevant factors. The amendment introduced a new cause of action (personal, as opposed to accessorial liability), it was made after the plaintiff's case had closed and the defendant had given his evidence in chief, and although in the event no new evidence was adduced, it was entirely possible at the time the application was made that further evidence may be required.

40 It is important, however, to consider whether this arguable error is sufficient to resist the application to dismiss the appeal. Rule 58.10(8)(b) allows an Associate Judge to dismiss an appeal if satisfied that "the appellant does not have an arguable case on appeal". In my view, the use of the word "case" allows consideration of factors additional to whether or not there is arguable error of law, in particular whether or not there is an arguable case for the relief sought. Here the relief sought is the quashing of the Magistrate's grant of leave to amend the statement of claim and the quashing of the judgment against Mr Neely (presumably on the basis that that judgment was dependent on the amended pleading). The error, which I consider to be an arguable error of law, is said to arise in the manner of consideration of the application to amend, not in the decision itself. That is, it is not contended that the Magistrate could not in any circumstances have granted the application to amend the statement of claim after giving it proper consideration.

41 Further, there is no attack made in the Notice of Appeal on that portion of the order made on 20 April 2012 that adjourned the proceeding part-heard consequent upon the grant of leave to amend. I accept the submission by Southern Cross Feeds that any prejudice occasioned by the grant of leave to amend at this late stage of the proceedings was cured by the grant of adjournment at the same time. The adjournment allowed Mr Neely and his advisors to consider the amendment, to seek particulars if required, and to give consideration to whether any further evidence was necessary as a consequence of the amendment. Such further evidence could have included an application to recall Mr Caddy for further cross examination and/or for further evidence to be given inchief in Mr Neely's case.

42 In fact, no such further evidence was adduced and no application was made to further crossexamine Mr Caddy. It may be that this course was adopted on behalf of Mr Neely because of a concession made by Southern Cross Feeds that cheques had been supplied in payment of some invoices by Turquoisecroft Nominees Pty Limited and another company.

43 Whatever the reason for Mr Neely not seeking to adduce any further evidence, the adjournment provided him with the opportunity to consider such application. In these circumstances, while I consider it arguable that the manner in which the Magistrate arrived at his decision to allow the amendment was tainted by error, I do not consider that any arguable error is shown in the actual decision given that it was accompanied by adjournment of the proceedings and that, ultimately, Mr Neely was ordered to pay only one day of the plaintiff's costs i.e. was not required to pay for the additional day occasioned by the amendment and adjournment.

44 In these circumstances, I do not consider that Mr Neely has an arguable case on appeal arising from Question of Law 1, notwithstanding that it does expose arguable error of law.

45 I will dismiss the appeal in so far as it is constituted by Question of Law 2 on the basis of r 58.10(8)(a) i.e. that it is not a question of law on the basis of which the appeal may be brought. I will dismiss the appeal in so far as it relates to Question of Law 1 on the basis of r 58.10(8)(b) because Mr Neely does not have an arguable case on appeal arising from that Question.

46 In the absence of any circumstance justifying a different costs order, the usual costs order would be that Mr Neely pay the costs of Southern Cross Feeds of the appeal. I will of course hear the parties as to costs if required.

[1] TP3, lines 3-8. All transcript references are to the transcript reproduced as Exhibits RLN-1 and RLN-2 to Mr Neely's affidavit sworn 6 July 2012.

[8] Paragraph 3 of the outline of submissions of the defendant dated 31 July 2012.

[9] Paragraph 9 of the plaintiff's written submissions dated 13 August 2012.

[10] [2003] VSC 460; (2003) 9 VR 136.

[12] [2002] VSC 143

[14] [2009] HCA 27; (2009) 239 CLR 175

[15] [2010] FCAFC 118