Plaintiff v Defendant

1 This is an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 against an order made by an Associate Judge on 11 April 2014 whereby her Honour summarily terminated a proceeding brought by the appellant ("Mainstream"), a building company, against the respondent ("Carr Electrical"), an electrical contractor. By the proceeding, Mainstream applied under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") for leave to appeal from an order made by VCAT requiring Mainstream to pay some $35,000 to Carr Electrical on a claim for electrical work done at a commercial building site. By the same proceeding, Mainstream also applied for leave to appeal from a later order of VCAT requiring Mainstream to pay Carr Electrical's costs of the VCAT proceeding. Mainstream needed a retrospective extension of time in which to bring the application for leave to appeal in respect of VCAT's substantive order. Power to grant such an extension is conferred on the Court by s 148(5) of the VCAT Act. There was no need for any extension of time to apply for leave to appeal in respect of the (later) costs order.

2 Under the Rules of this Court, Mainstream was required to file and serve affidavit material in support of its application for leave to appeal by an early date. It fell into default. Further, its application for a retrospective extension of time was unsupported by any affidavit material. The matter then came before Associate Justice Lansdowne at a directions hearing. Her Honour made an order requiring Mainstream to file and serve, by a specified date, any affidavit material - of either kind - on which it intended to rely. The order also provided for a "compliance check" hearing on 11 April 2014 at which Carr Electrical would be at liberty to apply for the dismissal of the proceeding in default of compliance by Mainstream with the order. By the time of the compliance check hearing, Mainstream had filed and served affidavit material of the first kind but not of the second kind. It proffered from the bar table an explanation for this omission and sought a further short period within which to file and serve affidavit material of the second kind. Carr Electrical cross-applied for the proceeding to be dismissed in its entirety. The Associate Judge upheld Carr Electrical's submission and dismissed the proceeding.

3 At the hearings before the Associate Judge, the parties did not direct her Honour to the applicable principles, namely the principles relevant to an application for the summary termination of a proceeding for want of prosecution or on the ground of non-compliance with an interlocutory order. In the result, those principles were not applied. Nor did the parties take me to the relevant authorities and principles on appeal. On the other hand, during the course of the appeal Mainstream produced a further affidavit which, ultimately, was admitted into evidence without opposition and which threw new light on the circumstances that had surrounded the hearings before the Associate Judge. The affidavit also included the material upon which, if this appeal were allowed, Mainstream would wish to rely in support of its application for a retrospective extension of time to commence the proceeding. In all the circumstances, the appeal should be allowed; the Associate Judge's orders should be set aside; and the proceeding, in its entirety, should be reinstated. Subject to any submissions to the contrary, I propose to keep the matter in my "docket" rather than remit it to an Associate Judge. On that basis, and for reasons that will become apparent from the detailed recitation below of the history of this proceeding, I would reserve the costs of the hearing before Associate Justice Lansdowne and of the appeal.

4 The following summary of the background and history of the VCAT proceeding is based mainly on those findings of VCAT which do not seem to be in dispute and on other matters which appear to be common ground.

5 Carr Electrical is effectively controlled by Mr Steven Carr, who gave evidence on its behalf at VCAT. A director of Mainstream is Mr Peter Baker, who gave evidence for Mainstream at VCAT.

6 On 26 July 2010 Mainstream entered into a building contract with a developer, Gilpip Bayside Projects Pty Ltd ("Gilpip"), to build 20 apartments at a site in Mornington. The contract price was over $9.5 million. In November 2010 Mainstream subcontracted the electrical works to BTM Electrical Pty Ltd ("BTM") for an agreed sum in the order of $350,000. Practical completion was scheduled for November 2011.

7 In October 2011 a fire broke out damaging many of the apartments. The building works had been insured by Mainstream. It made a claim against its insurer. The insurer agreed to make payments in relation to fire rectification works.

8 Additional electrical contractors were brought on site to help with the outstanding building work and the fire rectification work. One of them was Carr Electrical. It performed work on the site during March, April, May and June 2012. Its invoices were all addressed to BTM. However, BTM itself did not make any payments to Carr Electrical on the invoices. To the extent that Carr Electrical was paid on the invoices, the payments were made by Mainstream direct to Carr Electrical. Two invoices were left unpaid, namely an invoice for $26,568 for work done during May 2012 and an invoice for $6,020 for work done during June 2012. Carr Electrical sued Mainstream on these unpaid invoices at VCAT. There was no dispute about the performance or quality of the work. However, the issue was whether Mainstream (as distinct from BTM or some other person or entity) was legally responsible to pay the invoices. Questions were raised about the nature and extent of the indemnity provided by the insurer and about the role and the authority of the building superintendent, among other questions. Extensive interlocutory steps were taken by the parties. There was a two day contested hearing, with subsequent lengthy written submissions.

9 On 2 September 2013 the Tribunal made an order in writing in favour of Carr Electrical in the amount of $32,034.39 together with interest of $3,654.84, a total sum of $35,689.23. The Tribunal further ordered that costs be reserved and that if there was no application for costs within 21 days there would be no order for costs. The order of 2 September 2013 was accompanied by written reasons. The decision was largely based on a finding that, in a telephone conversation on 5 May 2012 between Mr Baker (for Mainstream) and Mr Carr (for Carr Electrical), Mainstream had, in effect, requested Carr Electrical to continue working on the site and in return promised that Mainstream would pay all of Carr Electrical's invoices. That finding is disputed by Mainstream.

10 The Tribunal's order and its reasons were apparently published by post or by fax, rather than at a hearing. Although both the order and the reasons were dated 2 September 2013 they were not made known to Mainstream or its legal representatives until Mainstream's solicitor, Mr Brendan Archer, received copies of them on 10 September 2013.[1]

11 The matter of costs was the subject of a contested hearing on 13 November 2013. Each side made claims against the other in relation to costs. The Tribunal made its order as to costs on 18 November 2013. The order was to the effect that Mainstream pay Carr Electrical's party/party costs of the proceeding on the County Court scale and that, in default of agreement, the costs be taxed by the Costs Court. I have been informed by Mr Archer (who appeared for Mainstream before me), without demur, that the amount presently being claimed by Carr Electrical for its costs of the VCAT proceeding is approximately $62,000 and that the amount of Mainstream's own costs is approximately $42,000. Thus the total amount of the claimed costs of both sides of the VCAT proceeding is approximately three times greater than the amount claimed by and awarded to Carr Electrical on its substantive claim.

12 Under s 148(1) of the VCAT Act, a party to a VCAT proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding to the Supreme Court, if the Supreme Court gives leave to appeal.

(2) An application for leave to appeal must be made

(a) no later than 28 days after the day of the order of the Tribunal; and

(b) in accordance with the rules of the Supreme Court.

14 I will assume, without deciding, that "the day of the order", in the case of VCAT's substantive order, was 2 September 2013, being the date stated on that order (as authenticated), notwithstanding that, apparently, the Tribunal's decision was never formally handed down and did not reach Mainstream's solicitor until 10 September 2013.[2] On the other hand, the fact that the decision was not made known to Mainstream's solicitor until 10 September 2013 is not necessarily irrelevant.[3]

15 Section 148(3) of the VCAT Act provides that, if leave is granted, the appeal must be instituted no later than 14 days after the day on which leave is granted and in accordance with the rules of the Supreme Court.

16 Section 148(5) provides that the Supreme Court "may at any time extend or abridge any time limit fixed by or under this section".

17 Rules of this Court relating specifically to appeals from VCAT (and other tribunals) are contained in the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (otherwise known as Chapter II of the Supreme Court Rules) - principally in Order 4 thereof. The rules in Order 4 of Chapter II of particular relevance to applications for leave to appeal and applications for an extension of time are the following:

Except as otherwise provided by any Act or Rule -

(a) an appeal under this Part is commenced by filing a notice of appeal in the Court;

(b) the appeal shall be commenced -

(i) within 28 days after the day of the order of the tribunal; or

(ii) if leave to appeal is necessary, within 14 days of leave being granted;

(c) the appeal shall not operate as a stay of proceedings unless the Court otherwise orders.

(1) Except as otherwise provided by any Act or Rule, an application for leave to appeal from a tribunal shall be made in accordance with Rules 4.06, 4.07, 4.08 and 4.09.

(2) If an extension of time is needed within which to apply for leave to appeal -

(a) an application for that extension may be made to, and determined by, the Associate Judge in conjunction with the application for leave to appeal; and

(b) if granted, the extension may be granted retrospectively.

(1) An application for leave to appeal shall be made within 28 days after the day of the order of the tribunal.

(2) An application for leave to appeal shall be made by originating motion.

(3) The application is taken to be made when the originating motion is filed.

(4) As soon as practicable after filing the originating motion, the applicant shall -

(a) deliver a sealed copy of the originating motion to the registrar or other proper officer of the tribunal; and

(b) serve the originating motion on the proposed respondent to the appeal.

(1) Within seven days after filing the originating motion, the applicant shall file an affidavit in support of the application for leave to appeal.

(2) The affidavit shall set out the acts, facts, matters and circumstances relating to -

(3) There shall be included as exhibits to the affidavit -

(a) a copy of the order from which the appeal is to be brought;

or their absence as exhibits shall be accounted for in the affidavit.

(1) Within seven days after filing the originating motion, the applicant shall apply on summons to an Associate Judge for the leave sought in the originating motion.

(2) The application is taken to be made when the summons is filed.

(3) The applicant shall serve the summons and a copy of the affidavit in support and of any exhibit on the proposed respondent to the appeal not less than 14 days before the day for hearing named in the summons.

(4) The proposed respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit not less than five days before the day for hearing named in the summons.

(5) If at any time the Associate Judge is satisfied that the hearing of the summons should be expedited, the Associate Judge may of his or her own motion or on the application of the respondent bring the summons on for hearing.

(1) On the hearing of the summons the Associate Judge may grant or refuse leave to appeal.

(2) Without limiting paragraph (1), the Associate Judge may refuse leave to appeal if satisfied -

(a) that the applicant does not have a prima facie case on appeal; or

(b) that to refuse leave would impose no substantial injustice.

(3) If leave to appeal is granted, the Associate Judge shall give directions with respect to the appeal.

(4) If directions are given with respect to affidavits, no affidavit in respect of which directions have not been complied with shall be used without leave of the Court.

(5) The Associate Judge may in a proper case grant a stay of proceedings under the order of the tribunal.

4.10 Appeal

Except as otherwise provided by any Act or Rule, an appeal from a tribunal shall be brought in accordance with Rule 4.11 and, unless leave to appeal has been given, Rules 4.12 and 4.13.

4.11 Notice of appeal

(1) A notice of appeal under this Part shall -

(a) be in writing signed by the appellant or the appellant's solicitor;

(ii) whether the appeal is from the whole or part only of the order and, if so, what part;

(iii) if the appeal is brought by leave, when leave was given and by whom;

(iv) the question of law, if any, upon which the appeal is brought or which is involved in the order, as the case requires;

(c) at its end, name all the persons on whom it is proposed to serve the notice of appeal.

(2) As soon as practicable after filing the notice of appeal, the appellant shall -

(a) deliver a copy to the registrar or other proper officer of the tribunal; and

(b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal.

(3) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal.

(1) If it is satisfied that the delay caused by proceeding in accordance with this Part would or might entail injustice, the Court may make an order under this Part without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as is thought fit.

(2) The Court may set aside any order made under paragraph (1) on the application of any person affected.

(3) If it is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal and may give directions accordingly.

18 Pursuant to sub-rr 4.06(2) and (3), an application for leave to appeal is to be made by filing an originating motion. Mainstream filed its originating motion on 19 November 2013. That was the very next day after the making of VCAT's (final) costs order. The originating motion sought leave to appeal against both the substantive order and the costs order. On the other hand, Mainstream has not contended before me that the prospect of, or the actual making of, VCAT's final order as to costs had the effect in law of deferring or suspending the commencement of the period limited by s 148(2) of the VCAT Act for seeking leave to appeal against the Tribunal's substantive order of 2 September 2013. Accordingly, I proceed on the basis that, under s 148(2) of the VCAT Act, the time for the making of any application for leave to appeal from VCAT's substantive order expired on either 30 September 2013 (if, as I would assume, 2 September 2013 was "the day of the order") or on 8 October 2013 (if, as Mainstream would contend, 10 September 2013 was "the day of the order"). Hence Mainstream's application for leave to appeal was out of time either by 50 days (on the assumption I would make) or by 42 days (on Mainstream's approach).

19 By virtue of r 4.06(4)(b), Mainstream was required to serve a copy of the originating motion on Carr Electrical "as soon as practicable" after filing it. It is not suggested that Mainstream failed in this respect.

20 On the other hand, by virtue of r 4.07(1), Mainstream was obliged to file an affidavit in support of the application for leave to appeal within seven days after filing the originating motion, ie by 26 November 2013. Further, by virtue of r 4.08, Mainstream was required to apply on summons to an Associate Judge for the leave sought in the originating motion within seven days of filing the originating motion (again, by 26 November 2013). Mainstream filed a summons seeking such leave on 27 November 2013, ie one day late. The summons also included a retrospective application for an extension until 19 November 2013 of the time for making the application for leave to appeal. Further, the summons sought an order that "the date for filing and service of the Plaintiff's affidavit materials in support of this Application be extended from 26 November to 2 December 2013".[4] The summons was made returnable on 7 February 2014. Mainstream served a copy of it on the solicitors for Carr Electrical under cover of a letter dated 27 November 2013.[5] No affidavit material in support of any of the three applications contained in the summons was filed or served with the summons. In the letter of 27 November 2013 Mr Archer stated: "The Affidavit and relevant Exhibits will be provided to you on Monday".[6] The Monday referred to was Monday 2 December 2013, being also the date referred to in this regard in the summons. However, that did not occur. As will be seen, no affidavit material at all was served until 9 April 2014, and even then it was incomplete. On the other hand, by late November 2013 Carr Electrical had received some indication of the intended basis for the proposed application for leave to appeal, in that the originating motion and also the summons had included - albeit irregularly in both cases - a list of the questions (styled "Questions of Law") in relation to which leave to appeal was then proposed to be sought. (Such a list would normally be provided for the first time in the draft notice of appeal which, under r 4.07(3)(c), is required to be exhibited to the supporting affidavit.) Also it is likely that, from the outset, Carr Electrical had in its possession or power copies of the documents that had been filed and served in the VCAT proceeding and copies of VCAT's orders and reasons, and those documents were likely to comprise a substantial part, at least, of the material required to be provided under r 4.07.

21 A handwritten note on the Court file indicates that on 27 November 2013 a party was informed by the Court Registry that, on the return on 7 February 2014 of Mainstream's summons, the matter would be listed for directions only, notwithstanding the terms of the summons. Consistently with that indication, on 6 February 2014 the Associate to Associate Justice Lansdowne sent an email to Mr Archer which referred to the matter being before her Honour on the next day "for directions". In the email the Associate noted that no affidavit in support of the application for leave to appeal had been filed, and the Associate requested that Mr Archer, if he intended to file any affidavit material before the next day, also send the material by email to the Associate. On the same day, Mr McPhee, the solicitor for Carr Electrical, emailed to the Associate a Notice of Solicitor Commencing to Act. He was advised by the Associate that the original of the notice needed to be filed at the Registry. It seems that there was no solicitor on the record for Carr Electrical until this time.

22 At about the same time it came to the attention of the Associate to Associate Justice Lansdowne that the parties wished to have the hearing that was scheduled for 7 February 2014 adjourned for a period of at least one month. A minute of consent orders dated 5 February 2014, signed by both solicitors, had been provided to the Court. The minute described the hearing that had been listed for 7 February 2014 as a "Directions Hearing". The Associate advised the solicitors that Associate Justice Lansdowne was prepared to adjourn the matter "for directions" to Wednesday 19 March 2014 at 10.30 am. The Associate further advised that no appearance would be required on 7 February 2014. Accordingly, Associate Justice Lansdowne ordered by consent on 6 February 2014 that the directions hearing be adjourned to 19 March 2014 and that the costs be reserved.

23 Neither the order of 6 February 2014 nor any written material filed up until that time disclosed any basis or reason for the agreement between the parties to adjourn the directions hearing. Nor did the parties ever favour Associate Justice Lansdowne with an explanation for that agreement. However, as I will mention in due course, the matter was elucidated in the course of the appeal before me.

24 On Thursday 6 March 2014 Mr McPhee sent to Mr Archer an email in which he reminded Mr Archer that on 27 November 2013 Mr Archer had said that the affidavit material would be provided to Mr McPhee by 2 December 2013. The email of 6 March 2014 also asserted that, by virtue of paragraph 3.2 of Practice Note Number 4 of 2009 (Judicial Review and Appeals List),[7] the hearing that was then scheduled for 19 March 2014 would be the occasion for the hearing of Mainstream's applications for an extension of time and for leave to appeal; and that, as Carr Electrical may wish to file and serve affidavit material in reply, Mr Archer was requested to file and serve his affidavit material "without further delay". Mr Archer responded to this email on Monday 17 March 2014. His emailed response began "Thank you for the reminder". It proceeded to outline a "major problem" which Mr Archer claimed to have, namely that the CD provided to him by VCAT which was supposed to contain the subpoenaed documents obtained by Carr Electrical was defective, whereby Mr Archer had been unable to access the information on the CD. In the email, Mr Archer requested that Mr McPhee provide him with a soft copy of the documents. He further proposed that consent orders be made so as to avoid the costs of an attendance at court on 19 March.

25 Despite the terms of paragraph 3.2 of the Judicial Review and Appeals List Practice Note and despite the tenor of the email exchange between Mr McPhee and Mr Archer, it is common ground (at least now) that neither on 19 March 2014 nor on any other day was this matter officially listed before Associate Justice Lansdowne for the hearing of Mainstream's (two) applications for leave to appeal from VCAT's (two) orders, or for the hearing of Mainstream's application for an extension of time to bring its application for leave to appeal from VCAT's substantive order of 2 September 2013.[8] Mr Archer told me from the bar table that when he went to court on 19 March 2014 he was expecting to be involved in a directions hearing only. I accept this. It is consistent with an affidavit of Mr Archer of 4 June 2014,[9] which I admitted into evidence in circumstances to which I will come. Counsel for Carr Electrical did not argue to the contrary before me.[10]

26 The matter duly came on before Associate Justice Lansdowne on 19 March 2014. It was one of several matters listed before her Honour that day. I am satisfied that Mr Archer's understanding that the matter was listed for directions only was justified. Neither party had issued any further summons. Neither party had sought a special fixture.[11] Indeed the hearing progressed in the manner of a directions hearing. At the outset Mr Archer informed the Associate Judge that he had previously proposed consent orders containing a timetable "to get this matter back on line" but had been told by his opponent that his proposal was rejected. The proposed timetable[12] provided for the filing and service by the parties of affidavit material and written submissions and the fixing of a hearing date for the matter. The Associate Judge obtained confirmation from Mr Archer that the application for leave to appeal was out of time and that no affidavit in support of the application for leave to appeal had been filed. Her Honour asked why. Mr Archer began to give an oral explanation from the bar table. He referred to the background of the building project and to the existence of a substantial dispute between the developer (Gilpip) and Mainstream. He referred to proceedings relating to that dispute before the Honourable Justice Vickery of this Court. He said that there was an overlap between that dispute and the dispute between Mainstream and Carr Electrical and that he had sought to avoid the possibility of litigating exactly the same issue in two places. He said that the litigation with Gilpip had eventually settled. He referred to the issue about the role and authority of the building superintendent. He mentioned that there had been a lack of funds on the part of Mainstream. He said that he had been wanting to engage counsel because he himself was not an experienced advocate, and that he was now in a position to proceed to engage counsel to "resolve these issues". In addition, as a "personal thing which is more recent" he mentioned that he had been undergoing a series of medical treatments which had been more debilitating than he had anticipated whereby he was not up to his usual standard in terms of meeting compliance, although he said that that "really is a minor issue". The Associate Judge then observed that Mainstream would "inevitably fail" in the absence of affidavit material which adequately covered the VCAT proceeding and which addressed the reasons why the application was out of time. Mr Archer then handed up a document containing his proposed timetable, and estimated that the hearing of the matter would take approximately one day, including both "the out of time aspect" and "the leave to appeal aspect". He also handed up an unsworn affidavit which apparently exhibited a draft notice of appeal. The unsworn affidavit had been provided to the solicitor for Carr Electrical previously. The Associate Judge read it, and observed that it did not go to the issue of delay. (The unsworn affidavit was in due course returned to Mr Archer and no copy of it was retained on the file.) Finally, Mr Archer stated that Mainstream had paid Carr Electrical in full the amount awarded by VCAT (excluding costs), and he commented that therefore Carr Electrical suffered no prejudice in that regard.

27 In response, counsel for Carr Electrical (Mr B Carr, a family relative of Mr Steven Carr) contended that his client had been waiting for Mainstream's affidavit material - both in support of the application for leave to appeal and in support of the application for an extension of time - "for almost four months now", and that it just had not been forthcoming. Counsel said that he did not oppose the "adjournment" that day but would like to obtain the affidavit material forthwith so that his client could reply and have the matter set down for hearing.[13] He estimated that the hearing would take maybe a couple of hours, rather than a day. He asserted that the proposed notice of appeal did not reveal any questions of law. As to the proposed timetable, he indicated agreement subject to an enlargement of the time to be provided for the filing and exchange of written submissions so as to accommodate his personal convenience. However, he sought one additional order, namely a self-executing order to the effect that if Mainstream failed to file and serve its affidavit material by the date specified, namely 8 April 2014, the proceeding would stand dismissed.

28 The Associate Judge responded to that application by saying that she understood why the self-executing order was sought, but that she had real reservations about self-executing orders, even if otherwise appropriate on the facts, because there could sometimes be a dispute as to whether there had been compliance or not. Her Honour said that, if there was a reason for such an order to be made, her preference was to adjourn the matter to a particular date, to determine whether or not there had been compliance. Counsel for Carr Electrical indicated that he did not have a difficulty with such an approach. He said that the only other thing he sought was the costs of the day.

29 Her Honour then invited the parties to consider whether in due course an order should be made under r 4.14 (the expedition rule) to the effect that the application for leave to appeal be referred to the Court which would hear and determine the appeal if leave were granted. Counsel for Carr Electrical foreshadowed opposition to such a process, on the basis that the amount at issue was small and on the basis that no questions of law had been identified.

30 Next, her Honour asked Mr Archer whether he wanted to respond to anything that had been said, including the "suggestion" she had made (referring, presumably, to the suggestion of an expedited process). Mr Archer said that he disagreed that there were no questions of law involved; and he submitted that the VCAT costs added considerably to the amount at stake. However, he did not refer to the application for a self-executing order, nor to the proposal for a "compliance check".

31 Her Honour then asked Mr Archer whether there were any independent grounds in respect of the VCAT costs and he replied: "Actually, there are, your Honour". Asked what they were, Mr Archer acknowledged that they were "not there at the moment" and he accepted that they would need to be reflected in the proposed notice of appeal to be exhibited to the affidavit.

32 Mr Archer opposed Carr Electrical's application for the costs of the day on the basis that he had, two days earlier, made a proposal for consent orders along the lines of the timetable that was to be adopted. Her Honour then asked whether there was any correspondence relevant to costs. Her Honour's attention was then drawn for the first time to an affidavit of Mr McPhee (the solicitor for Carr Electrical). The transcript records that this affidavit was "unsigned" but that Mr Archer had no objection to her Honour reading it and taking it into account. Sitting on the Court file now is a sworn affidavit of Mr McPhee dated 19 March 2014. Although the affidavit is not marked as having been filed, its contents appear to correspond with the document which was considered by Associate Justice Lansdowne on 19 March 2014. The affidavit exhibits the email correspondence between Mr McPhee and Mr Archer of 6 and 17 March 2014 to which I have referred above.

33 Having considered Mr McPhee's unsigned affidavit and its exhibits, her Honour then announced her decision in relation to the costs of the day and her reasons in that regard. In short, she accepted the submissions of Carr Electrical to the effect that the matter needed to be brought on in Court to clarify the reasons for Mainstream's non-provision of the affidavit material. The only reason that had been set out in the email from Mr Archer of 17 March 2014 related to the CD. The email had not included the explanation that had been given from the bar table on the day. Mainstream was seeking a further indulgence in circumstances where, according to the rules of court, its affidavit should have been supplied well in advance of the day. The full explanation needed to be made available before it could be said that Carr Electrical should have consented to the proposed timetable.

34 Her Honour indicated that there should be a "compliance check" shortly after the date specified for the applicant to file and serve its affidavit material and that there should be further consideration at the same time as to whether the "expedition rule" should be applied.

35 In the end, the orders made by her Honour on 19 March 2014 were as follows:

(1) [Mainstream] file and serve any affidavit and other material upon which it intends to rely by 4.00 pm on 8 April 2014.

(2) The summons is listed for a compliance check in relation to Order 1, and any oral application for dismissal in default of compliance and for consideration of the application of the expedition rule on 11 April 2014 at 10.30 am in Court 2.

(3) [Carr Electrical] file and serve any affidavit and other material upon which it intends to rely by 4.00 pm on 8 May 2014.

(4) The parties file and exchange written submissions in relation to leave out of time and leave to appeal only upon which each party intends to rely by 4.00 pm on 6 June 2014.

(5) [Mainstream] pay [Carr Electrical's] costs of today. The costs are otherwise in the application.

(6) Leave to apply.

36 Neither party made any further contact with the Court until 9 April 2014. In the afternoon of that day, Mr Archer sent an email to the Associate to Associate Justice Lansdowne stating:[14]

In accordance with the Orders issued by her Honour on 19 March, as extended by agreement with the solicitor for the respondent, I attach an unsworn copy of my Affidavit, together with a copy of Exhibit 10 to the Affidavit.

I have not attached Exhibits 1-9 as they comprise in excess of 300 pages in total, and all the documents comprising these exhibits are common to both parties. I shall shortly forward to you a sworn copy of the affidavit and attend to the service and filing of the complete affidavit tomorrow morning.

The document referred to as exhibit 10 to the affidavit was a draft notice of appeal. A little later that afternoon, Mr Archer sent in a further email stating that a copy of the affidavit duly sworn was attached. However, a reply email sent by the Associate to Mr Archer on 10 April 2014 indicates that the attachment sent the previous evening was in fact an unsworn version of the affidavit. On the same day Mr Archer attended the Court Registry (as he later told Associate Justice Lansdowne) intending to file his affidavit, only to find that he had brought in a copy or copies of it, but not the original. It was not until the morning of 11 April 2014 that the sworn affidavit (which was dated 8 April but sworn on 9 April) was actually filed. On the other hand, a copy of the affidavit and of exhibit 10 thereto (the draft notice of appeal) had been provided by email to the solicitors for Carr Electrical on the afternoon of 9 April 2014. The affidavit was three pages in length. The exhibits were 393 pages long.

37 It appears to be common ground that the affidavit of 9 April 2014 covered the matters required by r 4.07 to be covered in relation to the application for leave to appeal from VCAT's order of 2 September 2013. However, the affidavit did not exhibit a copy of the costs order made by VCAT on 18 November 2013 or the reasons given by VCAT for that order. On the other hand, the draft notice of appeal exhibited to the affidavit quoted the terms of the costs order. According to an argument later advanced to Associate Justice Lansdowne by Mr Archer, the questions of law and some of the grounds of appeal contained in the draft notice of appeal related to the costs order as well as to the substantive order (see below). However that may be, it is clear that neither the affidavit nor the exhibits thereto contained any material explaining or otherwise referring to the delay in commencing the application for leave to appeal from VCAT's substantive order. Nor was there any material explaining or otherwise referring to the delay (from 26 November 2013 until 11 April 2014) in filing and serving the formal affidavit material required by r 4.07.

38 The matter came on again before Associate Justice Lansdowne on 11 April 2014 in accordance with paragraph 2 of her Honour's order of 19 March 2014. Again, it was listed with several other matters to be dealt with in the Associate Judges' Practice Court that day. Once again, Mr Archer appeared for Mainstream and Mr B Carr appeared for Carr Electrical.

39 At the beginning, the Associate Judge noted that the affidavit of 9 April 2014 did not contain any material relating to the extension of time. She put to Mr Archer that that was a "critical difficulty" and he agreed that it was. She asked him what he wanted to do about it. Then the following exchange took place:

MR ARCHER: I guess I will put in an affidavit, your Honour. There are actually good reasons for it but I must admit it's something I overlooked in preparing the affidavit itself.

HER HONOUR: You will recall that we discussed these matters on the last occasion. You gave an explanation from the bar table on the last occasion. You conceded none of that was on affidavit, and I must admit it was my understanding that the matter proceeded on the basis that you would put an explanation on affidavit. You haven't done so, so you're seeking a further period of time to do so are you?

MR ARCHER: Just five days, your Honour, would be fine.

Mr Carr was then asked for his response. He observed that on the previous occasion he had asked for self-executing orders but in lieu of that was given a timetable including the filing and service of the necessary affidavit material by 8 April. He acknowledged that the affidavit sworn 9 April 2014 had been provided on 9 April 2014, although he said that he had only just received the exhibits that morning. As to the extension of time, there had been non-compliance with the Court's order. He continued:

And my application is that this matter should simply be dismissed with costs. The applicant has been given every reasonable opportunity since November when it filed its application. The rules do call for affidavit material within seven days. The matter was brought before you in March. Mr Archer was given an extension of time then and told what he needed to do, and once again he failed to comply with the orders and the rules, and in my submission that should lead to only one outcome today, which is that this application be dismissed with costs.

40 Invited to reply, Mr Archer said that Mr McPhee had contacted him late the previous week and indicated to him that if he required an extension of time to complete the affidavit material, Mr McPhee would ensure that he would be able to obtain one. He said that '[o]n Monday' he had called Mr McPhee because he had become caught up completely in another matter and had indicated to Mr McPhee that he "needed probably until Friday 11 April but maybe Monday 14 April to get the matter fixed". Subsequently Mr Archer had received an email from Mr McPhee saying that his instructions were not to grant the extension. Mr Archer continued:

So consequently things became a little bit rushed. As I understand it from what the solicitor instructing Mr Carr informed me on previous occasions, my learned friend is actually instructing the solicitor.

41 After an inconclusive discussion about the suggestion that Mr B Carr of counsel was actually instructing Mr McPhee, Associate Justice Lansdowne said that the difficulty was not with the affidavit that had been filed, although it was slightly late. Rather, the difficulty was that it did not deal at all with the extension of time that was required. Her Honour noted that there had been a lengthy discussion on the previous occasion about that matter and that Mr Archer had given three reasons in Court why the application for leave to appeal was late. None of it had been on affidavit. Although Carr Electrical had sought a self-executing order, her Honour had given Mr Archer a timetable and the opportunity for adjournment and had not made a self-executing order. Despite all of that, her Honour observed, the affidavit still did not deal with anything that could support an application for extension of time. Mr Archer responded that there was no prejudice to be suffered by Carr Electrical if he provided the affidavit within five days. Her Honour did not revert to Mr Carr in relation to the matter of prejudice. Rather, she said to Mr Archer that Carr Electrical was being held out of the fruits of its victory or held in suspension until the proceeding was concluded and asked him why that was not sufficient prejudice. Mr Archer responded that it was not sufficient prejudice at all because Carr Electrical had been paid. Her Honour responded by asking why Carr Electrical should suffer the "prejudice" of a proceeding hanging over its head that was currently without foundation. Mr Archer replied that the application for leave to appeal was not without foundation but accepted that he had overlooked the need to provide the additional affidavit material and apologised to the Court for that. He continued:

But I do have the information necessary to file that almost immediately.

The Associate Judge then asked him whether he wanted to add anything further. He replied:

No, your Honour, save that my client would suffer extreme prejudice if the application for leave was dismissed. It is a huge costs order being applied for by my learned friend.

HER HONOUR: Your client may have other remedies.

MR ARCHER: It doesn't have other remedies, your Honour.

HER HONOUR: So your submissions are first of all that you believed that you would be able to get an extension for the affidavit material, then you were told that was not agreed to so you became rushed.

MR ARCHER: Yes, your Honour.

HER HONOUR: You then made an allegation about Mr Carr's conduct. Do you wish to press that allegation?

MR ARCHER: It wasn't an allegation, your Honour, it was a fact.

HER HONOUR: Where is the evidence?

MR ARCHER: I will put it on affidavit if you so require.

HER HONOUR: All right. The third matter that you have raised is that there would be no prejudice to the respondent because the respondent has been paid.

MR ARCHER: That is correct, your Honour.

HER HONOUR: All right. So is that a fair summary of the matters that you've put?

MR ARCHER: That is correct, your Honour.

HER HONOUR: And is there anything further you wanted to add?

MR ARCHER: No, I would just seek a five-day period to put in the supplementary affidavit with respect to the delay.

HER HONOUR: All right. Thank you. I think this is really the respondent's application for dismissal, so Mr Carr, anything in reply?

MR CARR: Only that things were made very clear to Mr Archer last time we were before you in March. He knew what his obligations were and he should have complied with them. He has turned up today without any due explanation of why he hasn't. I don't think the matter should proceed any further.

HER HONOUR: Yes, all right.

42 Her Honour then began to give an oral judgment in the matter. However, she interrupted herself to ask Mr Carr whether his application for dismissal related to the whole of the application for leave to appeal or only to that part which related to the substantive order, noting that on the previous occasion her Honour had been told that there was an independent application in relation to the costs order which was within time. Initially, Mr Carr replied that, on that reasoning, he could not ask for dismissal of both applications. Her Honour then put to Mr Carr that this changed the complexion of the matter. Her Honour asked why, if the matter was going to proceed in any event in relation to costs, that circumstance would not bear upon Mr Archer's application for a further adjournment and upon his submissions in relation to prejudice. Mr Carr then changed ground. He submitted that this consideration should not overtake the fact that there had been non-compliance with the orders in relation to the substantive application for leave to appeal. He then went further. He said that the application in relation to VCAT's substantive order was the foundation for the application in relation to VCAT's costs order. If the substantive order could not be overturned then it would be almost impossible for Mr Archer to proceed with his second application. It would be a "fairly futile exercise".

43 The Associate Justice then called for the proposed notice of appeal exhibited to the affidavit of 9 April, saying at the same time that the earlier corresponding document had not contained any ground relating to costs as an independent appeal. Her Honour asked Mr Archer to point to any independent challenge to costs in the more recent notice of appeal. According to the transcript, Mr Archer replied:

Your Honour, the independent question as to costs relates to the primary rule in the VCAT proceeding that each party bears its own costs unless otherwise determined by the tribunal. The Tribunal determined that the costs should be awarded to the applicant in the early hearing on the basis of the success of the applicant in the proceeding.

It is my submission, when one particularly takes into account closing submissions filed by my client's counsel, that even if the Member was inclined to award the payment to the applicant, the amount sought in the claim, there is more than adequate material to show that it should have been a situation in which both parties should have borne their own costs, if not some award of costs and pay for of my clients [sic].

44 Her Honour observed that in the draft notice of appeal the plaintiff sought leave to appeal in relation to two decisions, namely those of 2 September and 18 November 2013. Her Honour then noted the two stated "questions of law", to wit:

(1) Whether the Tribunal erred in law by finding that the Respondent was obliged by law to pay monies to the Applicant on the basis of an alleged agreement made to the Applicant by the Respondent in May 2012.

(2) Whether the learned Member failed to provide any, or adequate reasons pursuant to s 117 of the Act.

Mr Archer submitted that the first question related both to the substantive point of law and also to the awarding of costs. He submitted that several of the grounds of appeal were also applicable in relation to costs (as well as in relation to the substantive decision). In particular, he referred to suggested contradictions and discrepancies between Carr Electrical's points of claim and witness statements, on the one hand, and the sworn evidence given to the tribunal during the hearing, on the other; and he referred to alleged major amendments to Carr Electrical's points of claim such as to change the whole factual basis for its claim. Her Honour then indicated that, in her view, the notice of appeal did not currently relate the grounds relied upon to the question of costs. Further, her Honour observed that there was nothing in the notice of appeal referring to any flaw in the reasons relating to costs. Her Honour then asked Mr Archer whether any reasons as to costs were given in writing or otherwise. Mr Archer said he could not recall. He acknowledged that he had not exhibited any transcript of the costs hearing. He also acknowledged that the costs order itself had not been exhibited. Asked whether there was anything else he wanted to add, Mr Archer said:

Effectively, your Honour, you have granted my learned friend the self-executing order which you refused to him last time we were before you and I really can't say - I accept that there are errors in the documents that I prepared or omissions in the documents prepared. I do not believe they are sufficient to shut my client out from pursuing this remedy, but if that is your decision, your Honour, then I must accept it.

45 Her Honour then turned to Mr Carr in relation to the matter of the VCAT costs. Mr Carr said that there had been an oral hearing at VCAT in relation to costs and that the decision had been reserved and handed down three or four days later in writing with reasons, based on VCAT's discretion under s 109 of the VCAT Act. Mr Carr submitted that there was no independent appeal in relation to the exercise of VCAT's discretion as to costs.

46 Her Honour then resumed and completed her oral judgment, which was in favour of Carr Electrical. Her Honour later published a revised, written judgment which was entitled "Reasons for Orders (short form)". In the revised judgment Mainstream is generally referred to as the applicant and Carr Electrical as the respondent. It is desirable to set the revised judgment out in full:

(1) By originating motion filed 19 November 2013 the plaintiff/applicant sought leave to appeal against orders made by the Victorian Civil and Administrative Tribunal on 2 September 2013 and 18 November 2013. The order made on 2 September 2013 substantively determined certain proceedings and the order made 18 November 2013 ordered costs.

(2) The applicant filed a summons on 27 November 2013 which, in addition to seeking leave to appeal, sought extension of time to bring the application for leave to appeal in respect of the order made 2 September 2013 (the application for leave to appeal being otherwise out of time) and an extension of time to file its affidavit in support. That summons was not accompanied by any affidavit. It was initially returnable on 7 February 2014, but was adjourned by consent on the papers to 19 March 2014 when it came before me.

(3) The applicant had not filed any affidavit either in support of its application for extension of time or in support of its application for leave to appeal by that date. The solicitor for the applicant had been put on express notice of the requirement to do so by the solicitor for the respondent, and also informed by that solicitor that any application for further adjournment to do so would be opposed.

(4) On 19 March 2014 the solicitor for the applicant frankly conceded that the application for leave to appeal, insofar as it related to the order made 2 September 2013, was out of time. It is clear from the applicant's summons in any event that this had earlier been appreciated by the applicant. The solicitor for the applicant gave some explanation from the bar table as to why, but acknowledged that this was not on affidavit. I adjourned the summons to give the applicant an opportunity to put on affidavit facts relating to the extension of time and the material necessary for the application for leave to appeal and set a timetable for material in response and submissions.

(5) There was also discussion on that date as to whether or not the applicant wished to bring a distinct appeal against the costs order, or whether that appeal was a corollary only to the proposed appeal against the substantive orders. The questions of law identified in the originating motion did not make this clear. The applicant informed the court that it was intended to bring a distinct appeal against the costs order.

(6) The respondent sought self-executing orders on 19 March 2014. I declined that application, but listed the summons today to ensure that the applicant had complied with the order for the filing of its affidavits.

(7) An affidavit has now been filed on behalf of the applicant which exhibits the order and reasons dated 2 September 2013, pleadings, witness statements, transcript of the substantive hearing, the applicant's written closing submissions and a draft notice of appeal. The affidavit does not, however, depose to any facts relating to extension of time to appeal that order.

(8) On that basis the respondent now seeks that the originating motion be dismissed. The respondent submits that the applicant has had every reasonable opportunity to file material in support of the application for extension of time in relation to the proposed appeal against the substantive order of 2 September 2013 and has failed to do so. The respondent also says that the proposed appeal against the costs orders (which is within time) is wholly derivative and so, if the extension of time to appeal against the substantive orders is refused, the proposed appeal against the costs orders should also fail.

(9) The applicant seeks a further adjournment to put on affidavit matters relating to extension of time. The solicitor for the applicant says he believed he would be given an opportunity for further time to prepare his affidavit and when that extension was refused, the preparation of the affidavit became rushed. He says it was an oversight that material in relation to extension of time is not yet on affidavit and his client will suffer extreme prejudice if the adjournment is not given. The applicant submits that the respondent will not suffer any prejudice as the amount ordered to be paid by the substantive order has been paid. The applicant also says that the costs appeal is distinct and, as that will proceed, time should be given to file an affidavit in relation to extension of time for the appeal against the order made 2 September 2013.

(10) In my view nothing is shown to support the contention that the costs appeal is distinct. There is no question of law or grounds in the proposed notice of appeal which is exhibit BJA 10 to Mr Archer's affidavit sworn 9 April 2014 that expressly relates to a distinct appeal against the costs order. Mr Archer contends that questions 1 and 2 in that proposed notice of appeal are intended to also relate to the costs order. While this is conceivable if those questions are given an extended reading, there are no grounds set out in the proposed notice of appeal that apply those questions to the costs order. Further, the costs order, unlike the substantive order is not exhibited to the affidavit. I am informed by counsel for the respondent that there was an oral hearing in relation to costs, followed by a written decision. The transcript of that hearing and the reasons for the costs order are also not exhibited to Mr Archer's affidavit.

(11) I conclude that the proposed appeal against the costs order is in truth wholly derivative of the proposed appeal against the substantive order. It follows that there is no basis to contend that further time should be given to file material in support of the proposed appeal against the substantive order because the costs appeal will proceed in any event.

(12) In relation to that proposed appeal against the substantive order, I do not consider that the applicant has shown a basis for further adjournment. The applicant has been aware of the need for an extension of time since at least the filing of its summons in late November 2013 and has been given opportunities since that time to file an affidavit in support of that application. The need to do so was made explicit on 19 March 2014 but the applicant still has not done so. No explanation other than oversight by the solicitor for the applicant was advanced for the failure to do so. I accept that the applicant itself will suffer prejudice from refusal of an adjournment, but the applicant may have other remedies. The respondent does not assert any special prejudice from further adjournment, but relies on the fact that it sought self-executing orders on the last occasion, and the applicant was given on that date a further opportunity. As indicated in discussion in the course of the submissions, I consider prejudice to the respondent is shown simply from the continued prosecution of the proceeding without a foundation for extension of time being shown.

(13) For these reasons I refuse the application for further adjournment and refuse the application for extension of time to seek leave to appeal the order of 2 September 2013. As I consider that the proposed appeal against the order of 18 November 2013 is wholly derivative, it follows that the originating motion is dismissed.

(2) The applicant pay the respondent's costs of the proceeding.

48 On 5 May 2014, on behalf of Mainstream, Mr Archer filed a notice of appeal against the orders made by Associate Justice Lansdowne on 11 April 2014. The notice of appeal also purported to include, as the subject of the appeal, what the notice described as an order that Mainstream's request for an adjournment of five days to enable it to submit further affidavit material relating to its application for an extension of the date by which to file and serve its originating motion be refused. Two grounds of appeal were stated. Ground 1 asserted that the Associate Judge erred in law in dismissing the originating motion, in that the dismissal was "contrary to the principles espoused in [five listed cases]".[15] Ground 1 was not otherwise elaborated upon. Ground 2 complained that her Honour "refused to permit" Mr Archer to provide affidavit material to establish the occurrence of certain alleged interactions between Mr Archer and the legal representatives of Carr Electrical between about 3 April 2014 and 11 April 2014 (being in substance the same alleged interactions to which Mr Archer had referred orally on 11 April 2014) whereby, it was alleged, Mainstream had been "effectively ambushed" in relation to the hearing on 11 April 2014. Mainstream sought an order that the originating motion be reinstated, an order for costs and such other orders for the progress of the proceeding as the Court deemed fit.

49 The notice of appeal was made returnable in the Practice Court on 4 June 2014. Presumably, Mr Archer had provided to the Court an estimate, pursuant to paragraphs 10-13 of Practice Note No 4 of 2012 (Appeals from Associate Judges to a Judge of the Trial Division),[16] to the effect that the hearing would not be likely to exceed two hours in duration. I doubt that any such estimate would ever have been realistic. In any event, the eventual hearing before me in the Practice Court exceeded four hours. It was made more burdensome for all concerned by further instances of lateness on the part of Mr Archer in filing requisite documents.[17] Perhaps partly for that reason, at the hearing I was not given by either party as much assistance as I should have been given in relation to the relevant legal principles.

50 On 13 May 2014 (one day late) Mainstream filed an appeal book in the form envisaged by paragraph 5 of Practice Note No 4 of 2012. The appeal book was over 450 pages long. The greater part of it consisted of a copy of Mr Archer's affidavit filed 11 April 2014 and its exhibits.

51 Paragraph 18 of the Practice Note requires that the appellant's submissions be filed and served no later than five days before the date listed for hearing. The respondent's submissions are to be filed and served no later than two days before the date listed for hearing. In the present case, Mainstream did not comply with its obligations under paragraph 18. It did not provide any submissions to Carr Electrical's legal representatives until about 9.30 am on the hearing day, 4 June 2014. It did not provide those submissions to the Court until after 10.30 am that day. That was most unhelpful. In the meantime, on 2 June 2014, Carr Electrical had filed written submissions without the benefit of any submissions from Mainstream. Carr Electrical had little to go on except the notice of appeal. Mainstream should not have put Carr Electrical in that position.

52 In Carr Electrical's written submissions of 2 June 2014 it makes the point that the orders made by the Court on 11 April 2014 were made in the exercise of discretion in regard to the practice and procedure of the Court. At the hearing, Mainstream did not dispute that proposition. It is literally true. However, its significance is to be assessed in light of the fact that the effect of the orders was to terminate the proceeding finally and in its entirety. I will return to that point later.

53 Carr Electrical further asserted in its written submissions that the appeal was to proceed by way of re-hearing, and that Mainstream was therefore required to show error on the part of the Associate Judge before appellate power might be exercised. In support, Carr Electrical cited Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[18] and Oswal v Carson.[19] Mr Archer did not grapple with this proposition, either in writing or orally. However, as I will explain in due course, I do not accept that the proposition applies to a case of the present kind and, as mentioned above, I consider that I can take into account the affidavit of Mr Archer of 4 June 2014 which, of course, was not before the learned Associate Judge. (I will come to the contents of that affidavit shortly.) In any event, I am satisfied that, even on the more limited material that was before her Honour, there was error in her Honour's approach.

54 Next, Carr Electrical's written submissions addressed the two grounds of appeal. As to ground 1, Carr Electrical submitted:

Leaving aside the question of whether the [five cases listed in the notice of appeal] have any bearing on the issue of the proper, or improper, exercise of a discretion by the Associate Justice, the cases listed deal with the principles governing the granting of extensions of time for the making of various applications.

But that was not the position [Mainstream] was in at the hearing on 11 April 2014. Its position was that the Court could not entertain its application for an extension of time, as it had failed to file any material in support of the application.

As the cases listed do not establish any relevant legal principle which could found any "error of law", this ground of appeal should be dismissed.

55 Carr Electrical was not correct in submitting that all five of the cases listed in the notice of appeal dealt with the principles governing the granting of extensions of time for the making of applications. Two of the cases - Stollznow v Calvert[20] and A & N Holdings (NSW) Pty Ltd v Andell Pty Ltd[21] - dealt with applications by defendants to dismiss proceedings for want of prosecution. Certain principles which are stated in that context in those two cases are, in my opinion, of some relevance to the present case, as I will in due course indicate.

56 It is true in a sense that on 11 April 2014 the Court could not "entertain" Mainstream's application for an extension of time to file its application for leave to appeal. However, that was not so much because Mainstream had failed to file any material in support of the application but rather because, as is now common ground, the application was not scheduled or listed to be heard (on a final basis) on that day. On 19 March 2014 her Honour had established a timetable for the filing and service of affidavit material and written submissions, being a timetable which was to extend until 6 June 2014. Her Honour had consciously deferred until 11 April 2014 the question of the fixing of a date for the hearing of Mainstream's pending applications. Her Honour had contemplated that the question of the fixing of such a date would be considered in conjunction with the question whether an order for expedition under r 4.14 should be made.

57 Accordingly, it cannot be said that the date for the "trial" or final hearing of Mainstream's application for an extension of time had arrived on 11 April 2014. For the same reason, and contrary to the tenor of the Associate Judge's reasons, Mainstream was not, on 11 April 2014, seeking an "adjournment" of anything, except perhaps an adjournment of that day's "compliance check" hearing or of Carr Electrical's oral application for dismissal of the proceeding. Mainstream was certainly not seeking an adjournment of the final hearing of its application for an extension of time to file its originating motion. The time for that hearing had not yet arrived. Rather, what Mainstream was really seeking was an enlargement (by five days) of the time limited by paragraph 1 of the order of 19 March 2014 for the filing and service of its affidavit material. Hence, even though Mainstream had not filed any material in support of the application for an extension of time as at 11 April 2014, it was not the case that Mainstream's application was bound to fail at that stage for want of affidavit material in support of it. In any event, it is not always essential that there be affidavit material filed in support of an application for an extension of time before it can be granted. For example, a court might grant an extension of time by consent without any evidence being led. Likewise, though consent may be absent, the opposite party may be content to allow the moving party to put forward the facts upon which the moving party relies from the bar table and may even admit those facts. In some cases it may be appropriate to grant an extension of time even without any or any satisfactory explanation for the delay.[22]

58 Accordingly, I do not accept that the paragraphs quoted above from Carr Electrical's written submissions disposed of ground 1 of Mainstream's notice of appeal. I will return to that ground when I come to Mainstream's own (belated) submissions.

59 As to the second ground of appeal, Carr Electrical's written submissions contended that the Associate Judge did not "refuse to permit" Mainstream to provide affidavit material to establish the facts relating to the interactions that had taken place between the legal practitioners in early April 2014. Rather, Carr Electrical submitted, her Honour had acknowledged Mr Archer's complaint regarding becoming rushed in the preparation of the affidavit material, but had exercised her discretion to dismiss the originating motion in any event. Carr Electrical further submitted that what Mainstream had requested was a further extension of time to put in supplementary affidavit material with respect to the original delay in filing the application for leave to appeal, not with respect to the cause of Mr Archer having overlooked, in early April 2014, the need to provide the supplementary affidavit material. In substance, I accept these contentions of Carr Electrical. I accept that ground 2 of the notice of appeal, as expressed, is somewhat misconceived. On the other hand, that does not make irrelevant the matters that were put by Mr Archer to the Associate Judge in relation to the situation in early April 2014, being matters which are now the subject of evidence in the form of Mr Archer's affidavit of 4 June 2014. As will be seen, they form part of the overall factual picture which I need to assess in accordance with the relevant legal principles.

60 The next point contained in Carr Electrical's written submissions was based on the Civil Procedure Act 2010 ("Civil Procedure Act"). Carr Electrical referred to s 25 thereof, which provides:

25 Overarching obligations to minimise delay

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to -

(a) act promptly; and

(b) minimise delay.

Carr Electrical submitted that, at the hearing on 19 March 2014, Mainstream's default in filing affidavit material was acknowledged by Mr Archer; and that Mainstream was then given a further three weeks to comply with the Rules, even though at that stage it was almost four months since Mainstream had filed its originating motion. According to the submission, when Mainstream failed to file the necessary affidavit material at the end of the three week period, it was clearly in breach of the provisions of s 25 of the Civil Procedure Act.

61 In my view, the extent to which Carr Electrical can rely upon s 25 of the Civil Procedure Act in this appeal is limited. It did not mention the Act on either of the hearing days before the Associate Judge. It did not seek, and did not obtain, any finding that either Mainstream or Mr Archer was in breach of the obligation to use "reasonable endeavours" to act promptly and minimise delay. As will be seen, I do not accept that it has yet been established that Mainstream (or, for that matter) Mr Archer was "clearly" in breach of the provisions of s 25. In any event, by the time of the hearing on 11 April 2014, Mainstream had filed all of the affidavit material required by the Rules except material relating to VCAT's costs order. Material of that kind is now exhibited to Mr Archer's affidavit of 4 June 2014. On the other hand, I accept that s 25 is relevant in a general way to the approach that this Court should take in determining this appeal.

62 The last part of Carr Electrical's written submissions related to Mainstream's ultimate prospects of success on the proposed substantive appeal, assuming that the present appeal from the Associate Judge was allowed, that a retrospective extension of time for making the application for leave to appeal was granted and that leave to appeal was granted.

63 Carr Electrical submitted that VCAT's decision on liability was based on a single critical finding of fact, namely that there was a promise by Mainstream to pay Carr Electrical. It further submitted that an appeal against that finding could only be maintained if there was no factual or evidentiary basis for it. However, according to Carr Electrical, that could not be said in view of the following passage from VCAT's reasons:

1. All of the correspondence following the conversation of 5 May supports Mr Carr's contention that there was a promise to pay the Carr accounts directly. Mainstream's subsequent direct payments to Carr Electrical, negotiations for payment, promises to pay and failure to refer Carr to BTM for payment (until 9 August) are entirely consistent with the promise to pay.

In these circumstances, Carr Electrical submitted, the prospects of Mainstream disturbing VCAT's finding on liability were "severely restricted".

64 Carr Electrical's submission proceeded to address Mainstream's proposed notice of appeal, which states two "questions of law" as reproduced above. In respect of question 1, the proposed grounds of appeal are stated at some length and in a form which is difficult to follow. However, it seems that, in respect of question 1, Mainstream would wish to allege, in summary:

(a) that VCAT's critical finding was "contrary to the principles espoused in" four named cases;

(b) that no reasonable member of VCAT could have arrived at the conclusion that VCAT was entitled to the payment of any monies because -

(i) there were contradictions and discrepancies between Carr Electrical's VCAT paperwork and the actual evidence given;

(ii) Carr Electrical made large amendments to its claim;

(iii) the sworn evidence of Mr Baker and Mr Carr about the relevant telephone conversation of May 2012 was non-specific;

(iv) on the evidence, Mainstream's conduct subsequent to May 2012 was consistent with it not having made a legally binding commitment to pay Carr Electrical;

(c) that the VCAT member denied Mainstream natural justice by deciding the case on the basis of the critical finding of fact in circumstances where Mainstream was given insufficient opportunity to investigate the "new evidence" on which it was based; and

(d) that principles discernable from a further five named cases were contravened or not properly applied.

In respect of the second "Question of Law" the only ground of appeal stated is:

The reasons of the Learned Member failed to explain the principles of law upon which she relied in determining that the Respondent [sic] was liable to pay moneys to the Defendant [sic].

65 I agree with the submission by Carr Electrical that the notice of appeal does not make clear what particular principles are said to emerge from the nine cases listed nor how those principles might have any potential vitiating impact on VCAT's decision. However, even if those nine cases be put aside completely, it is sufficiently clear from the notice of appeal that Mainstream would challenge VCAT's decision on three other bases that are legally recognisable, namely, first, that VCAT's decision was manifestly unreasonable (or not open) in the administrative law sense;[23] second, that VCAT's decision was arrived at in breach of the rules of natural justice or procedural fairness in that Mainstream was allegedly deprived of sufficient opportunity to investigate the "new evidence" on which the critical finding of fact was allegedly based; and, third, that VCAT failed to state its reasons adequately.

66 Notwithstanding that the contrary may have been assumed in some of the written submissions and in some of the discussions that took place during the oral hearing before me, I do not regard it as appropriate on this appeal to rule upon the strength of Mainstream's proposed substantive appeal. It would only be appropriate to consider that matter on this appeal if Carr Electrical had argued, and had been able to show, that Mainstream's proposed appeal would be hopeless or bound to fail.[24] Carr Electrical did not go so far in its written submission. Rather, it submitted that Mainstream's prospects of disturbing VCAT's finding on liability were "severely restricted". Even that submission was directed only to the issue of whether VCAT's critical finding was open on the facts and the evidence. Nothing was said in the written submission about Mainstream's natural justice ground or its inadequate reasons ground. Nor did Carr Electrical contend in its later oral submissions that Mainstream's proposed appeal would be hopeless or bound to fail.

67 I turn now to the affidavit of Mr Archer sworn and filed on 4 June 2014. An unsworn version of the affidavit was provided to Mr McPhee no later than 3 June 2014. Mr McPhee then swore an affidavit in reply upon which Carr Electrical relied at the hearing (see below). As mentioned above, ultimately Carr Electrical did not oppose the admission into evidence of Mr Archer's affidavit.[25] There was no request for leave to cross-examine Mr Archer on it. The affidavit is eight pages long, not including the exhibits. As mentioned above, the affidavit verifies, and expands upon, matters put by Mr Archer to Associate Justice Lansdowne from the bar table at the hearings on 19 March and 11 April 2014. As is pointed out in Mainstream's submissions filed 4 June 2014, the affidavit addresses the following five matters -

• The reasons for the delay in issuing the originating motion seeking leave to appeal;
• The reasons for the initial delay in filing and serving affidavit material in support of the application for leave to appeal;
• The reasons for the delay in serving affidavit material between December 2013 and February 2014, and Mr Archer's personal relationship with Mr McPhee;
• Mr Archer's health problems during the relevant period; and
• Communications between Mr Archer and Mr McPhee between 28 March and 9 April 2014.

The picture painted by the affidavit in relation to these five matters is as set out in the following five paragraphs, respectively.

68 From about 16 July 2013 Mainstream was advancing a claim against Gilpip under the building contract for, among other things, indemnity in relation to all monies paid to or claimed by Carr Electrical. Several claims, including the Carr Electrical indemnity claim, were disputed by Gilpip. On 13 September 2013, just after the VCAT decision was received, Mainstream was served by Gilpip with a notice of intention to draw down on an unconditional undertaking which had been given by Mainstream under the contract. Had the drawdown proceeded, Mainstream would have had to cease trading. Any appeal against the VCAT decision would thereupon have become pointless and would have resulted in both parties incurring unnecessary costs. On 17 September 2013 Mainstream commenced proceedings in this Court against Gilpip claiming, amongst other things, an injunction to restrain any drawdown. On 18 September 2013 Vickery J granted an interim injunction. On 13 November 2013 the injunction was extended until the final hearing, which was scheduled for 7 April 2014. That interlocutory injunction removed for the time being the risk that Mainstream would have to cease trading. On 18 November 2013 VCAT gave its costs decision. Until then, Mr Archer had expected that Mainstream would not be ordered to pay costs to Carr Electrical. Mainstream then gave instructions for the making of an application for leave to appeal. On 19 November 2013 Mainstream's originating motion was filed accordingly. It was served shortly afterwards.

69 Although Mr Archer informed Mr McPhee around this time that the supporting affidavit material would be filed and served soon, Mr Archer considered that there were good prospects of settling the Gilpip dispute at a mediation which had been scheduled to take place in the near future, and that therefore any time spent on preparing, filing and serving affidavit material in the Carr Electrical proceeding would likely be wasted. The mediation took place on 4 December 2013, but was unsuccessful. Mr Archer then overlooked the need to file and serve affidavit material in the Carr Electrical proceeding because, due to the time which he had spent on Mainstream-related matters in the previous four weeks, a number of his other files had come to require urgent attention. Mr Archer received no complaint from Mr McPhee about the delay.

70 Mainstream and Gilpip continued to conduct without prejudice negotiations during December 2013 up to the time of the Christmas closedown. In late January 2014 Gilpip retained senior counsel to assist with the ongoing negotiations and as a result Mr Archer became more confident of a settlement. This Court had listed the first directions hearing of the present proceeding for 7 February 2014. Because negotiations between Mainstream and Gilpip were progressing, Mr Archer again considered that unnecessary costs would be incurred by his filing and serving an affidavit. He perceived real prospects that a settlement would include some compensation to Mainstream from Gilpip for amounts paid to Carr Electrical. The next part of Mr Archer's affidavit proceeds as follows:

1. As I recall, I had a telephone discussion with Mr McPhee, the solicitor for Carr and informed him of the negotiations and my concerns regarding the waste of time and costs if the negotiation with Gilpip was successful, and also my concerns regarding the problem of a potential conflict of decisions based on the same factual situation which I considered might arise if the 2 cases were being concurrently litigated in the Supreme Court, that is:
   • in the TEC List proceedings, the liability of Gilpip to indemnify Mainstream against its liability to Carr; and
   • in the Judicial Review and Appeals List Mainstream's challenge to its liability to make any payment to Carr.[26]
2. I have no file notes recording my discussion with Mr McPhee, as I have known Mr McPhee both as a colleague and subsequently as a friend since 1990, and we have regularly attended social functions with a group which includes our respective wives. Accordingly on the very few occasions when we have been opposed to each other, the relationship in my view was one of complete trust.
3. The dispute between Mainstream and Gilpip finally settled on or about 3 March 2014, and the settlement did not include compensation for the Carr indemnity claim.

71 Next, Mr Archer's affidavit turned to his health problems and their treatment. On 8 October 2013, Mr Archer was diagnosed as having severe prostate cancer. He commenced a three month hormone treatment regime. The side-effects of the treatment included hot flushes, loss of concentration, tiredness and depression. At the time, however, Mr Archer considered the side-effects to be relatively mild. With hindsight, considering his lack of productivity during the three month period, he now believes that he had underestimated the effects of the treatment on his work capacity. After achieving an "excellent" result from the hormone therapy, Mr Archer was referred to a radio-oncologist for intensive radiation therapy. This therapy commenced in late January 2014 and continued through until 21 March 2014. It involved attendance at a hospital five days per week throughout that period. The time taken each day varied from 1 hour to 2.5 hours. During the radiotherapy period, Mr Archer had only spasmodic attacks of fatigue. However, during the two and a half weeks immediately following his last treatment on 21 March 2014, he became very fatigued, and his concentration was extremely poor. Exhibited to the affidavit is a report from an Associate Professor of Surgery at the University of Melbourne dated 8 October 2013 confirming the diagnosis of serious cancer requiring urgent investigation and treatment. Also exhibited is some medical material relating to the side-effects of hormone therapy and of radiotherapy. Mr Archer suffered a further problem during the course of his radiotherapy treatment. He could not take the primary stabilising drug for his rheumatoid arthritis until 10 days after the radiotherapy treatment was concluded. Therefore, he spasmodically suffered quite strong joint pain during the period of the radiotherapy treatment.

72 The last part of Mr Archer's affidavit relates to his communications with Mr McPhee between 28 March and 9 April 2014 regarding the provision of affidavit material. On Friday 28 March 2014 Mr Archer received an email from Mr McPhee inquiring as to his well-being generally. Mr Archer informed Mr McPhee that he had been in a bad way the previous week but thought he was improving and that he "should be OK by the weekend". On Monday 31 March 2014 Mr McPhee sent Mr Archer an invitation to a restaurant dinner as part of a group booking for the evening of Saturday 5 April 2014. On Wednesday 2 April or Thursday 3 April, Mr McPhee telephoned Mr Archer to inquire whether he would be attending the dinner, and they spoke about other non-business matters. At the end of the conversation Mr McPhee asked Mr Archer how he was going with the affidavit and said that if Mr Archer needed an extension, he "should call him on the 'q-t' and he would organise an extension". Mr Archer thanked Mr McPhee for the offer and said words to the effect that he thought he would be OK but would let Mr McPhee know if he ran into problems and needed an extension. At that time Mr Archer had already commenced the drafting of that part of the affidavit relating to the substantive issues in the proposed appeal, but had not commenced preparation of the material in support of Mainstream's applications for extensions of time. Mr Archer "grossly underestimated the amount of time which was needed to identify those documents relevant to the substantive grounds of appeal and also the reasons for the delay in the filing and service of the appeal". At a time described in the affidavit as "the morning of Monday 8 April" but which was in fact, apparently, some time on Tuesday 8 April 2014, Mr Archer left a telephone message for Mr McPhee advising that Mr Archer would need a further five days to complete the affidavit material and submissions. At 4.38 pm on 8 April Mr Archer received an email from Mr McPhee to the effect that he had sought instructions from his client and that those instructions were to insist upon compliance with the orders in place. The email proceeded to say that if the material was not received by close of business on 9 April 2014, Mr McPhee's client would make an oral application for dismissal on Friday 11 April 2014. Mr Archer deposes that the receipt of this email was much to his surprise and consternation. He further deposes that had he even considered that Mr McPhee would not arrange the extension sought, or had Mr Archer been dealing with most other solicitors, he would not have made a phone call but would have taken advantage of the liberty to apply reserved in the order made by Associate Justice Lansdowne on 19 March 2013. Mr Archer worked late on 8 April and spent most of 9 April assembling the relevant exhibits. He served his affidavit on the afternoon of 9 April and the exhibits the following day by courier. He deposes that in his "panic" to meet the deadline, he had completely overlooked the fact that he had "primarily" been directed to provide affidavit material in support of the application for an extension of time. Consequently he had limited his affidavit to matters relevant to the proposed substantive appeal.

73 The only other piece of evidence put before me on the appeal was the abovementioned affidavit of Mr McPhee sworn on 3 June 2014. A copy of it was faxed to the Court at about 7.30 pm that evening. The original was filed in Court on the morning of the hearing on 4 June 2014. As already indicated, it responded to an unsworn version of Mr Archer's affidavit provided to Mr McPhee previously. It responded only to those parts of Mr Archer's affidavit which related to the relationship between the two solicitors and to their interactions in early April 2014. In that regard, Mr McPhee deposed:

1. I am a friend of Mr Archer's and I know him to be unwell. I did say to Mr Archer that I would arrange for an extension of time within which to file and serve his documents.
2. However, I did not say I would arrange for the hearing of the application (which was listed for hearing on 11 April 2014) to be adjourned.
3. The request from Mr Archer for a 5 day extension of time, which was made on 8 April, 2014, would, if granted, have caused the hearing listed for 11 April, 2014 to be vacated and re-listed at a later date. It was for that reason the request was refused.
4. I note that Mr Archer made a request for an extension of time on the day that affidavit material was due. My instructions were to give Mr Archer a further 24 hours to file and serve his material, that is by close of business on 9 April, 2014.
5. I further note that Mr Archer did in fact file an affidavit by close of business on 9 April, 2014, but that affidavit did not address the issue of his previous delay in filing material and I am at a loss to understand why such material was not filed by close of business on 9 April, 2014.

74 Mainstream's written submissions, which were prepared by Mr Archer and filed on 4 June 2014, do not address the nature of this appeal. They seem to assume that the appeal is in the nature of a hearing de novo, in that they do not attribute error to the Associate Judge and in that they refer mainly to Mr Archer's contemporaneous affidavit. On the other hand, the submissions do not identify the nature or source of the jurisdiction or power which Mainstream would now have this Court exercise.

75 In the written submissions, Mainstream contends that the principles enunciated by Croft J in Chen v Kevin McNamara & Son Pty Ltd[27] are "relevant to the appellant's application". However, the submissions do not elaborate upon that contention except by setting out, and purporting to apply, two paragraphs of Justice Croft's judgment, namely paragraphs 39 and 40. Those paragraphs, in turn, relate to the principles and factors which are said to guide the courts with respect to applications to extend time for the filing and serving of documents generally. The stated principles and factors include the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent if the extension is granted. As already indicated, I do not consider that this is the relevant framework in the present case. Nonetheless it is desirable to summarise the attempt made in Mainstream's written submissions to apply those stated factors and principles.

76 Various calculations are given in relation to the length of the delay in filing and serving the originating motion and in filing and serving the affidavit material required under the Supreme Court Rules. I have already dealt with those matters. It is then stated that the reasons for the delays are set out in Mr Archer's affidavit. It is submitted that the reasons are such that:

... the Court should exercise its discretion in considering this factor in favour of the Appellant. Initially, the Appellant was in no position to support the costs associated with the Appeal for reasons which are arguably beyond its control, and, subsequently, the delays were delays on the part of the solicitor for the Appellant.

The written submissions proceed to assert that the delays could not be regarded as breaches of the overarching obligations under the Civil Procedure Act, because they related to endeavours to avoid the commencement of litigation by a party whose solvency was under threat and because, subsequently, the delays were related to the possibility of a negotiated settlement with Gilpip. Next it is asserted in some detail that there is an arguable case that VCAT's substantive decision was erroneous. Finally, it is asserted that Carr Electrical would suffer no prejudice from the allowing of the appeal which could not be compensated for by an award of costs, whereas Mainstream would be left to meet not only the substantive award but also Carr Electrical's costs and its own costs.

77 At the hearing of the appeal on 4 June 2014, Mr Archer continued to appear as solicitor-advocate for Mainstream. This occurred notwithstanding that Mainstream had been represented by counsel before VCAT and notwithstanding that on 19 March on 2014 Mr Archer had informed Associate Justice Lansdowne that Mainstream was once again in a position to engage counsel. Mr Archer implied in his oral submissions before me that Mainstream had simply chosen thereafter not to fund the briefing of counsel. Mr Archer's oral submissions were largely in accordance with his written submissions. He took up most of the day.

78 The Court sat late to enable Mr Carr to respond, which he did in economical fashion. Mr Carr's submissions were also largely in line with his written submissions. Additional matters worthy of note were as follows. Mr Carr submitted that Mr Archer's claimed expectation of a favourable outcome to the costs dispute at VCAT was not reasonable in the circumstances. Mr Carr pointed out that the costs order had been made under s 112 of the VCAT Act, on the basis that Mainstream had rejected a settlement offer more favourable to it than the outcome as determined by VCAT. Separately, Mr Carr referred to an observation by Ashley JA in Derring Lane Pty Ltd v Fitzgibbon[28] to the effect that, although there is some capacity to extend time, s 148 of the VCAT Act plainly contemplates that the question or questions of law will be speedily identified and pursued. In that context, I sought comment from Mr Carr about Mr Archer's statement on affidavit to the effect that there was a standstill agreement in place between about 6 February 2014 and 3 March 2014. In response, Mr Carr observed that he personally had been unaware of any such standstill agreement and that it was "a pity" that his side had not received Mr Archer's affidavit material earlier so as to facilitate a reply to this point. However, as noted above, an unsworn copy of the affidavit of Mr Archer had been provided in advance to Mr McPhee. Mr McPhee had sworn an affidavit in reply on 3 June 2014. In that affidavit, Mr McPhee had taken no issue with Mr Archer's statement in relation to the "standstill" arrangement. Next, Mr Carr conceded (as mentioned above) that Mainstream had never been given notice of a final hearing of the application for leave to appeal or of the application for an extension of time. On the other hand, Mr Carr made the point that Mr Archer was clearly on notice that there might be an application for dismissal of the proceeding on 11 April 2014 if he did not comply by 8 April 2014 with the order of 19 March 2014. Mr Carr acknowledged that the Associate Justice did not have a full picture of Mr Archer's state of health, although he suggested that Mr Archer could have compensated for his health problems by engaging counsel to appear for Mainstream, had Mainstream been prepared to fund the briefing of counsel.

79 Mr Carr reiterated, by reference to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[29] the proposition that it was necessary for Mainstream to identify error in the judgment of the Associate Judge before the present appeal could be allowed. Without being specific, Mr Carr submitted that this limited the use that could be made of the recent affidavit material. Mr Carr concluded his address by asserting the soundness of the substantive decision of VCAT having regard to the facts and evidence on which it was said to be based; and by submitting that the proceeding in this Court should not be permitted to become disproportionate to the stakes involved in the VCAT decision.

80 In my view, as mentioned above, the proposition that Mainstream must show error by the learned Associate Judge before this appeal can be allowed is not applicable to a case of the present kind.

81 The present appeal is brought under the relatively new provisions of Chapter I of the Rules of this Court relating to appeals from Associate Judges to Judges of the Trial Division, namely rr 77.06-77.06.9.[30] As Carr Electrical submits, under the old rules an appeal from an Associate Judge was to be conducted as a hearing de novo, whereas under the new rules the appeal is by way of rehearing. To a very large extent, the new rules are modelled on the corresponding rules relating to appeals to the Court of Appeal contained in Order 64 of Chapter I.[31] Like those rules, the new rules in Order 77 include an express power in the Court to receive further evidence on questions of fact: see r 77.06.9(3). It has been held by Robson J that on an appeal from an Associate Judge under the new rules the appellant must demonstrate legal, factual or discretionary error in the order of the Associate Judge; and that further evidence should only be admitted if it is "fresh evidence" in the sense explained in McDonald v McDonald.[32] However, Robson J was dealing with an appeal from a decision of an Associate Judge on the final hearing of a corporations matter, ie on the trial. His Honour did not expressly consider whether the same approach should be taken to an appeal from an interlocutory order of an Associate Judge. On the other hand, I note that in Oswal v Carson, an appeal from a decision of an Associate Judge narrowing the scope of a subpoena on an application to set it aside, Ferguson J observed that appeals under r 77.06 are "rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised".[33] Her Honour cited in support of that proposition the case of Coal and Allied which Carr Electrical has also cited before me. However, Coal and Allied did not relate to an interlocutory order. I note further that the proposition that error must, or must ordinarily, be shown has been picked up from Oswal v Carson and applied in five other cases involving appeals from interlocutory orders of Associate Judges.[34] However, in none of those cases is there any sign that consideration was given to the question whether a distinction needs to be drawn between interlocutory and final orders. On the other hand, in Freeman v Rabinov,[35] it was held in 1981 by the Full Court, in relation to relevantly indistinguishable appeal rules, that a different approach was applicable in relation to an interlocutory order of a single judge, or at least in relation to an interlocutory order of the kind that was under consideration in that case, namely a selfexecuting order. Lush J, with whom Murray and King JJ agreed, said:

In my opinion, this Court has powers which at least go so far as to enable it to vary such an order as was made on 28 February 1980 if the operation of that order can be said to have worked an injustice.

The power or duty of the court to receive further evidence is material to the conclusion which I have just expressed. It may also provide an alternative approach to the present question. One use that is made of evidence of events subsequent to decision is to demonstrate that a chance or risk which might have appeared small at the time of decision has emerged as real and substantial, thus making wrong any small evaluation of it which might have been made at the time of decision.

Both these approaches justify the conclusion that if injustice in the result flows from the operation of an interlocutory order of a single judge, of the kind with which we are now concerned the Full Court may on appeal set aside or vary the order. There may be a difference between them in mode; the first approach may justify setting aside or varying the order without assigning any error in the decision, the second may possibly lead to a conclusion that the judge's discretion miscarried and that therefore the order may be set aside or varied. The result in either case is the same.

82 The order of 11 April 2014 under appeal, though it brought the proceeding to an end, was an interlocutory order. It was made at a directions hearing, not at a trial. Further, it was essentially based on noncompliance with her Honour's prior order of 19 March 2014. Viewed together, the two orders operated much like a selfexecuting order.

83 In my opinion, the present case is sufficiently similar to the case of an appeal from a selfexecuting order to authorise the allowing of this appeal even without assigning error to the decision of 11 April 2014 if, having regard to all of the circumstances, including the material contained in the recent affidavits, it can be said that the order of 11 April 2014 worked an injustice.

84 In my view, the order did work an injustice. The final position under the order is that Mainstream has lost forever any prospect of challenging VCAT's award and order as to costs, without a trial. On the other hand, Carr Electrical was provided with a substantial part of the relevant affidavit material before the order was even made and the rest has been provided to it since. A similar comparison in Freeman v Rabinov induced the Full Court to allow the appeal against the selfexecuting order in that case. And there are additional features tending in the same direction in the present case. Most prominently, the recent affidavit material verifies the matters that were put before the Associate Judge by way of explanation for the respective delays. Further, as Carr Electrical now concedes, it is clear that Mr Archer's state of ill health was far more serious than the Associate Judge could have understood. It is not a complete answer to that point to say that Mainstream could have briefed counsel. Mr Archer himself was apparently overestimating his own capacities. That may have contributed to the omission to engage counsel.

86 In any event, even if it were necessary to find error in the making of the order of 11 April 2014, and to do so without regard to anything except what was put before the Associate Judge, my decision would be the same.

87 The learned Associate Judge did not nominate any statutory provision or rule of court as the basis for her order. She did not refer to any principles as relevant to the decision to be made. On 19 March 2014, Carr Electrical had sought a selfexecuting order. The Court has inherent jurisdiction to make such an order. That inherent jurisdiction is recognised in r 24.05 of Chapter I of the Rules. The Court also has jurisdiction to dismiss a proceeding for noncompliance with an interlocutory order. Where the order was for the giving of particulars of a pleading or for discovery or inspection of documents or for answers to interrogatories, the Court's jurisdiction is expressly conferred by r 24.02. Where the order is otherwise, the jurisdiction is inherent.[36] As already indicated, the course taken by the Associate Judge in the present case represents something of an amalgam of a selfexecuting order and an order for dismissal for noncompliance with a previous order.

88 Insofar as the matter may be regarded as involving a selfexecuting order, there were departures from the principles ordinarily applied. The learned authors of Williams, Civil Procedure Victoria correctly state:[37]

The basis of the order for termination of the proceeding in the event of default is the principle that orders of the court must be obeyed and that a litigant who deliberately and without proper excuse does not obey such an order should not be allowed to proceed: Re Jokai Tea Holdings Ltd.[38] ... Very rarely is a selfexecuting order made on initial application. Time to remedy the default is given first. That is, the court will order the party in default to take the step within a certain time, and only if the order is disobeyed will the court direct that if within a further time the step is not taken the proceeding shall be dismissed or the defence struck out. See Seibe Gorman & Co Ltd v Pneupac Ltd.[39]

89 In my view, the approach taken in the present case was tantamount to the making of a selfexecuting order on initial application. Further, the Associate Judge made the order without a finding that Mainstream itself had deliberately and without proper excuse disobeyed the order of 19 March 2014.

90 The order of 11 April 2014 could not be justified as an exercise of the inherent power of the Court to dismiss a proceeding for want of prosecution. Carr Electrical did not seek to make such a case before the Associate Judge.[40] Had any such attempt been made, it would have been necessary for the court to distinguish between the conduct of Mainstream itself and that of Mr Archer.[41] That was not done. Indeed, the learned Associate Judge seems to have treated Mr Archer as the embodiment of Mainstream. In my view, it was not satisfactory to say, simply, that Mainstream may have "other remedies", without identifying what those other remedies may be.

91 Insofar as the order of 11 April 2014 may be regarded as an exercise of the inherent power of the Court to dismiss a proceeding for noncompliance with a prior interlocutory order, once again the principles which should attend the contemplation of such an order were not observed in this case. Those principles may be taken to be very similar to the principles applicable to an application for an order for dismissal under r 24.02 for failure to comply with an order to give particulars of a pleading et cetera. The Federal Court has a rule, r 5.43, under which a proceeding may be dismissed if the applicant is in default in complying with any order of the Court. In Professional Administration Service Centres Pty Ltd v Commissioner of Taxation,[42] the Full Court of the Federal Court discussed the considerations relevant to the exercise of the power of dismissal. Their Honours observed that the overriding consideration was the question of injustice flowing from the order appealed from. They went on to say:

Under the umbrella of that overriding consideration fall a number of matters, although they are not intended to be exhaustive:

(i) the nature of the default involved;

(ii) the duration of the default and whether it is continuing;

(iii) the circumstances in which the orders, in respect of which default has occurred, were made including whether the orders made accorded with the practice of the court in making orders of that kind;

(iv) the circumstances which occurred between the time of making the orders and the order for the dismissal of the proceeding, including whether any attempt was made by the defaulting party to amend or set aside the orders to accommodate or deal with these intervening circumstances;

(v) whether the continuing default is occasioning unnecessary delay, expense or other prejudice or unacceptable burden on the respondent;

(vi) the attitude of the applicant to the default and the court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period;

(vii) the stage that the proceeding has reached - whether they have only recently been commenced; whether it has been commenced for some time but not advanced due, in whole or in part, to the default; or whether the proceeding is in an advanced state ready or nearly ready for hearing;

(viii) the likely disruption to hearing dates or, if not fixed, to setting the matter down for hearing at an early date;

(ix) the consequences to the applicant of dismissing the proceeding.

92 It is clear that the Associate Judge did not have regard to several of these considerations. Many of them favoured Mainstream. For example, as to (iii), as already noted, the order of 19 March 2014 (regarded as a quasi selfexecuting order) was not made in accordance with the practice of this Court in making orders of that kind. As to (iv), Mr Archer had made an attempt in his communications with Mr McPhee to deal with the intervening circumstances. As to (vi), it would not have been open to her Honour to determine that Mainstream did not genuinely wish the matter to go to trial within a reasonable period. As to (vii), the proceeding was at a relatively early stage. As to (viii), there was no likely disruption to final hearing dates. As to (ix), the consequences to Mainstream of dismissing the proceeding were significant.

93 Because the proper principles were not observed, the discretion of the Associate Judge miscarried. It therefore needs to be reexercised. Even if it were not otherwise appropriate to have regard to the recent affidavits, the need to reexercise the discretion makes it appropriate to have regard to those affidavits. Once that is done, it is clear, in my view, that the proceeding should be reinstated. An order regularising the late filing of Mr Archer's affidavit of 4 June 2014 should be made accordingly.

94 In reaching my decision on this appeal, I have not by any means disregarded the provisions of the Civil Procedure Act 2010, nor the emphasis in the modern cases on efficient case management.[43] However, as mentioned above, there was no application to the Associate Judge for a finding against Mainstream under the Civil Procedure Act 2010. It is true that the Civil Procedure Act 2010 imposes a continuing duty on the Court to seek to ensure that the objects of the Act are fulfilled in civil litigation. Further, it is true that Mainstream, through Mr Archer, did not conduct the proceeding below or this appeal in an exemplary fashion by any means. On the other hand, the final dismissal of a proceeding for procedural default is a drastic step to take. It is not one for which s 29 of the Civil Procedure Act expressly provides, although no doubt such an order could be made under s 29(1)(f) in appropriate circumstances.[44] Moreover, there is some merit in Mr Archer's point that the initial delay at least was in accordance with the overarching obligation to minimise legal costs and reduce complexity, in view of the related pending litigation before Vickery J.

95 For these reasons, the appeal will be allowed and the proceeding will be reinstated in its entirety. I will make a consequential order under r 3.02 extending the time for the filing of Mainstream's affidavit material until 4 June 2014, being the date on which Mr Archer's most recent affidavit was filed. This will leave outstanding the application for an extension of time under s 148(5) of the VCAT Act, the application for leave to appeal and, if leave be granted, the appeal itself. Subject to any further submissions, my present view is that all three of those matters should be listed for final hearing on the one occasion. I consider that I should retain control of the matter. That will make it convenient to deal with the costs of the hearing of 11 April 2014 and the costs of this appeal at the same time. I will allow the parties some time to consider my reasons for judgment before holding a directions hearing and fixing a date for the final hearing.

[1] In paragraph 6 of an affidavit filed on 4 June 2014, Mr Archer states that he received the reasons for decision from VCAT "on or about 12 September 2013"; his written submissions on the appeal refer to 12 September 2013 as the date of delivery of the Tribunal decision to him. However, in an earlier affidavit, filed on 11 April 2014, Mr Archer deposes in paragraph 2 that he received the decision of VCAT on 10 September 2014 and he exhibits a copy of the decision. The exhibit comprises both the order and the reasons of the Tribunal and it bears what appears to be a fax imprint indicating that the documents were transmitted at 3.51 pm on 10 September 2013.

[2] See VCAT Act ss 116 and 118 and see Pizer et al, Thomson Reuters, Victorian Administrative Law [VCAT.116.40] and [VCAT.116.60].

[3] Cf my judgment in Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285 (2 June 2011) at [67] and cases there cited.

[4] Both of the extension of time applications were stated in the summons to be made under r 3.02 of the Supreme Court (General Civil Procedure) Rules 2005. The power conferred by r 3.02 was available in relation to the latter application but not in relation to the former application. Rule 3.02 has no application in relation to a time limit fixed by a provision of an Act. The time limit for an application for leave to appeal from an order made by VCAT is imposed by s 148(2) of the VCAT Act. The only power available to extend the time for the making of such an application is the power conferred by s 148(5) of the VCAT Act.

[5] See exhibit "NGM 1" to the affidavit of Neil McPhee (the solicitor for Carr Electrical) sworn 19 March 2014.

[7] Supreme Court of Victoria, Practice Note No 4 of 2009 - Judicial Review and Appeals List, 27 October 2009.

[8] Transcript of Proceedings, Mainstream Construction Pty Ltd v Carr Electrical Pty Ltd (Supreme Court of Victoria, S CI 2013 05991, Cavanough J, 4 June 2014), p 66 lines 19-22.

[9] See, in particular, the first sentence of paragraph 15 thereof.

[10] On the other hand, as counsel for Carr Electrical pointed out, and as will appear in due course, Mr Archer was clearly put on notice on 19 March 2014 that if Mainstream failed to comply with its obligations as to the filing and service of affidavit material imposed upon it by the order made on that day, then there might be an oral application made on 11 April 2014 for dismissal in default of compliance.

[11] Cf paragraph 3.2 of the Judicial Review and Appeals List Practice Note, above n 7.

[12] A copy of the proposed timetable is exhibit "NGM-2" to the affidavit of Neil McPhee filed on 19 March 2014.

[14] Email from Brendan Archer to Christy Mellifont, 9 April 2014 at 4.29 pm.

[15] None of the five listed cases, nor any other cases, had been cited by Mr Archer to Associate Justice Lansdowne.

[16] Supreme Court of Victoria, Practice Note No 4 of 2012 - Appeals from Associate Judges to a Judge of the Trial Division, December 2012.

[18] [2000] HCA 47; (2000) 203 CLR 194 at [14].

[19] [2013] VSC 355 (19 July 2013) at [11].

[20] (1980) 2 NSWLR 749.

[21] [2006] NSWSC 55 (13 February 2006).

[22] Ansett v Moss [2007] VSCA 161 (22 November 2007) at [6] and cases there cited; cf AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 215 [103].

[23] Minister for Immigration & Citizenship v Li [2013] HCA 18; [2013] 249 CLR 332; Agar v McCabe [2014] VSC 309 (T Forrest J) at [55].

[24] Chargold Project Management Pty Ltd v Jalak Pty Ltd [2010] VSCA 210 (13 August 2010) at [3].

[25] Transcript of hearing of appeal, above n 8, p 19, cf pp 2-4. See further below.

[27] [2013] VSC 539 (11 October 2013).

[28] [2007] VSCA 79 (4 May 2007) at [119].

[29] [2000] HCA 47; (2000) 203 CLR 194 at [14].

[30] Generally speaking, the rules in ch I are applicable, so far as practicable, to proceedings under ch II: see r 1.07 of ch II. The new appeal rules commenced on 1 January 2013.

[31] Re Ascot Vale SelfStorage Centre Pty Ltd (in liquidation) [2014] VSC 75 (11 March 2014) (Robson J), [2]-[18].

[32] [1965] HCA 45; (1965) 113 CLR 529.

[33] [2013] VSC 355 (19 July 2013) at [11]. Carr Electrical cited this case.

[34] See Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310 (27 June 2014) at [4] and the cases referred to in footnote 2 thereto, and Humphris v ConnectEast Nominee Company Pty Ltd [2014] VSC 174 (24 June 2014) (Ginnane J).

[35] [1981] VicRp 52; [1981] VR 539, 547-549.

[36] Nixon v W Phelan & Son Pty Ltd [1959] VicRp 14; [1959] VR 83.

[38] [1993] 1 All ER 630.

[39] [1982] 1 All ER 377 at 380.

[40] Cf Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, 871-2.

[41] Stollznow v Calvert (1980) 2 NSWLR 749, 753-4.

[42] [2012] FCAFC 180; (2012) 295 ALR 52 at [43]-[44].

[43] See eg Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; cf Cement Australia Pty Ltd v ACCC [2010] FCAFC 101; Brakatselos v ABL Nominees Pty Ltd [2012] VSCA 231; (2012) 36 VR 490; Yara Australia Pty Ltd v Oswal [2013] VSCA 337.

[44] See Chan v Chen [2013] VSC 538 (11 October 2013) (Digby J) at [71].