Plaintiff v Defendant

Supreme Court of Victoria|2017-10-31|Before: McDonald J

[2017] VSC 652 First Revision 7 December 2017

PRACTICE AND PROCEDURE - Application for extension of time to file amended originating motion eight months outside of 60 day period prescribed by O56.02(1) of Supreme Court (General Civil Procedure) Rules 2015 - Whether special circumstances warrant the grant of extension of time - No special circumstances - Application refused - Racing Act 1958 ss 31, 35E(2)(a)-(c) - Casino Control Act 1991 s 74(1) - O56.02(1), (3).

1 On 19 April 2017 the plaintiff filed an amended originating motion ('AOM') seeking relief in respect of exclusion orders made by the defendant on 3 June 2016 pursuant to s 33(1) of the Racing Act 1958 and s 74(1) of the Casino Control Act 1991. The AOM seeks relief pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015. It is uncontroversial that the AOM was filed approximately eight months outside the 60 day period prescribed by rule 56.02(1). The primary question for determination in the present proceedings is whether the plaintiff has established the existence of special circumstances, thereby enlivening the court's power under rule 56.02(3) to extend the 60 day period. For the reasons which follow, I have answered this question in the negative.

2 The history of the proceedings dates back to November 2014. The matters set out below are not controversial. When the plaintiff's application for an extension of time was heard on 30 August 2017 the parties helpfully provided a joint chronology.

3 On 12 November 2014 the defendant made exclusion orders against the plaintiff pursuant to s 33(1) of the Racing Act 1958 and s 74(1) of the Casino Control Act 1991 ('the first exclusion orders'). Those orders were served on the defendant on 5 December 2014. On 23 December 2014 the plaintiff sought reasons for the exclusion orders. On 11 February 2015 the defendant declined to provide reasons. On 6 March 2015 the plaintiff made a further request for information which did not fall into the category of information that should be withheld in the public interest, the material relied upon to make the first exclusion orders and reasons. On 7 April 2015 the defendant once again declined to provide reasons.

4 No further steps were taken by the plaintiff in respect of the first exclusion orders until 17 November 2015. On that date, the plaintiff's solicitors wrote a letter to the defendant which, after setting out the history of previous correspondence between the parties, stated:

Our client instructs us that he has followed the recent proceedings initiated in the Supreme Court of Victoria by Mr Danny Nikolic, who made a similar assertion that he had been denied natural justice in that no reasons had been provided, he had been given no opportunity to object, and had no notice or knowledge of the basis on which the relevant order was made.

It was of some interest of our client to learn that you had agreed to withdraw the relevant order.

In all of the circumstances, we have been instructed to renew our client's request that you provide a statement of reasons explaining the basis on which each of the orders were made.

Failing receipt of the same, our client has instructed that he intends to issue of proceedings compelling the provision of reasons. In those circumstances, please advise your preferred method of service of those proceedings.[1]

5 No response was forthcoming to this letter. On 15 December 2015 the plaintiff filed the originating motion which commenced the current proceedings. That originating motion sought the following relief:

An order pursuant to s 8 of the Administrative Law Act 1978 that the defendant furnish a statement of reasons for the decision to make the first exclusion orders;
A order pursuant to s 7 of the Administrative Law Act 1978 or rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 quashing the decision;
An order pursuant to s 8 of the Administrative Law Act 1978 that in the event that the defendant failed to furnish reasons within the time stipulated by the court, the decision be quashed.

6 On 19 January 2016 the Victorian Government Solicitor's Office ('VGSO') advised the plaintiff's solicitors that it had instructions to accept service of the proceedings. The plaintiff was served with the originating motion by email that day.

7 On 29 January 2016 the VGSO advised the plaintiff's solicitors that the defendant had decided to revisit the first exclusion orders. On 9 May 2016 the defendant revoked the first exclusion orders.

8 On 10 May 2016, by letters addressed to the plaintiff, the defendant delivered notices of intention to make a Racing Exclusion Order and a Casino Exclusion Order. These notices were received by the plaintiff's solicitors on 12 May 2016.

9 On 18 May 2016 the plaintiff's solicitors wrote to Deputy Commissioner Shane Patton, the signatory to the notices. That letter stated in part:

4.3 Accordingly, our client requires:

4.3.1 That by 4.00 pm on Wednesday 18 May 2016 you confirm that you will not proceed to consider whether or not to make any Exclusion Orders relating to him without at least a further 7 days [sic] notice to him, failing which he will have no choice to apply to the Supreme Court of Victoria urgently to restrain you from doing so.[2]

10 On 19 May 2016 the VGSO wrote to the plaintiff's solicitors stating that Deputy Commissioner Patton would not consider exercising his powers under s 33(1) of the Racing Act 1958 or s 74(1) of the Casino Control Act 1991, prior to 24 May 2016.[3]

11 On 3 June 2016 the defendant made a Casino Exclusion Order and a Racing Exclusion Order ('the second exclusion orders'). The plaintiff was served with these orders on 6 June 2016. On 16 June 2016 Ginnane J delivered judgment in Nikolic v Chief Commissioner of Police (No 2).[4]

12 On 17 June 2016 the plaintiff's solicitors wrote to Deputy Commissioner Patton. That letter stated, inter alia:

Conclusion

Despite our client providing every opportunity to you to address each and every one of the complaints made by him, you have proceeded to make the Exclusion Orders without any consideration of his rights at law.

Our client is firmly of the view that on review by a court, the Exclusion Orders will be quashed, and have no effect in law. Notwithstanding the same, we are instructed to advise that our client will take no further action if the Exclusion Orders are revoked by 4.00 pm on Friday 24 June 2016.

In the event you are prepared to revoke the Exclusion Orders, our client's position on any reconsideration of the exercise of the powers conferred under the Act is clearly set out in previous communications. Further, our client expects that you will take no further role in the decision making process on the basis there is at least an apprehension of bias that you will not bring an impartial mind to the task. This is on the basis of both a detailed history of the matter as set out above, and the fact that you have considered material and gone on to make a decision in the circumstances set out above.

We await your urgent response, and for the avoidance of doubt, confirm once again that our client remains prepared to meet.

In the event that you are not prepared to revoke the Exclusion Orders, we seek our client's instructions to immediately seek review of the Exclusion Orders in the Supreme Court of Victoria without further notice to you. Kindly confirm that such proceedings are to be served on the VGSO. For the avoidance of doubt, this letter and all open correspondence will be produced to the court on the review, including on the question of costs which will be sought against you on an indemnity basis.[5]

13 On 23 June 2016 the VGSO responded to the letter set out above. That letter stated in part:

Revocation of Exclusion Orders

In your letter to Deputy Commissioner Patton, you raise a number of matters and demand the immediate revocation of the Exclusion Orders.

Victoria Police does not accept the assertions made in your letter and, in particular, does not accept that your client was denied natural justice in respect of the decision to issue Exclusion Orders to him. We are instructed that the Exclusion Orders will not be revoked on the basis of the matters raised in your letter and, as such, remain in force.

Review of the decision to issue Exclusion Orders

In your letter to Deputy Commissioner Patton, you advise that, if the Exclusion Orders are not revoked, you will seek instructions to seek review of the Exclusion Orders in the Supreme Court.

We are instructed to accept service in respect of any correspondence or documents filed in this proceeding or any other proceeding commenced to seek review of the Exclusion Orders.

In your letter to this office, you advise that your client intends to amend the Originating Motion to include review of the Exclusion Orders issued on 3 June 2016. In principle and noting that we have not been served with the proposed amendment, Victoria Police does not oppose such amendment to this proceeding.

In your letter to this office, you also seek that Victoria Police pay your clients [sic] costs of the proceeding to date. We propose to defer consideration of the question of costs until we receive your client's amendments to the Originating Motion in this proceeding.[6]

14 On 11 July 2016 the plaintiff's solicitors forwarded to the VGSO a copy of a proposed AOM seeking relief in respect of the second exclusion orders. On 18 July 2016 Ms Miller, a solicitor employed by the VGSO telephoned Mr Tatti, a solicitor employed by the plaintiff's solicitors. During that conversation Ms Miller stated that the defendant would consent to the filing of an AOM. Mr Tatti replied that he would be filing the AOM 'shortly'.[7]

15 On 20 July 2016 Ms Miller had a further discussion with Mr Tatti during which he stated that it was likely that the plaintiff would be forwarding a proposed consent order for an amended application 'this week'.[8]

16 The 60 day period prescribed by rule 56.02(1) for challenging the second exclusion orders expired on 5 August 2016.

17 On 19 September 2016, Ms Jennifer Sheehan, a senior registry lawyer with the Supreme Court of Victoria emailed Mr Joseph Bengasino, a Principal with the plaintiff's solicitors in the following terms:

Dear Mr Bengasino

I refer to the correspondence from the court on 25 May, and your response of 14 June 2016.

The Judicial Registrar requires that you advise whether this matter is to be continued, or whether you intend filing a summons to progress the matter. You state in your letter that service was effected on VGSO on 19 January 2016, and that an affidavit of service would be filed shortly. I note no affidavit of service has been filed to date.

The Judicial Registrar would appreciate your response by no later than Monday, 26 September 2016.

Kind regards.[9]

18 On 26 September 2016 Mr Tatti responded to Ms Sheehan's email:

Dear Ms Sheehan,

Thank you for your email.

I regret not filing an Affidavit of Service sooner. I have attached a copy to this email, and someone from this office will be filing the original tomorrow with the Prothonotary.

Counsel has been briefed in this matter, and we are presently instructed to consider what (if any) amendments are required to the Originating Motion. In particular, we are informed that the Court of Appeal has reserved its decision in Chief Commissioner v Nikolic. We are awaiting the publication of judgment in that matter as it may have a bearing on our case.

We would be grateful if the Registrar could consider leaving this matter in abeyance for a further period of time in the circumstances.

Kind regards.[10]

19 On 14 October 2016 the Court of Appeal delivered judgment in Chief Commissioner of Police v Nikolic.[11] On 18 October 2016 Ms Sheehan emailed Mr Tatti, in reference to his email of 26 September 2016:

Dear Mr Tatti

Thank you for your email below.

I note the Court of Appeal handed down judgment in The Chief Commissioner v Nikolic matter on Friday, 14 October.

The Judicial Registrar requires that you advise within the next seven days whether you [sic] amendments are required to the originating motion.

Regards.[12]

20 On 25 October 2016 Mr Tatti replied to Ms Sheehan's email:

Dear Ms Sheehan

Thank you for your email.

I have yesterday had the opportunity to take instructions from my client. We will be issuing a summons for directions during the course of next week.

If the Judicial Registrar requires any further information please do not hesitate to contact me.

Kind regards.[13]

21 No summons was filed by the plaintiff within a week of 25 October 2016. 'At some stage between 25 October and 28 November 2016' Mr Tatti became aware that Mr Nikolic had issued an application in the High Court of Australia seeking special leave to appeal the Court of Appeal's judgment.[14] On 15 November 2016 Mr Tatti received a telephone call from Ms Sheehan who advised Mr Tatti that the plaintiff was required to issue a summons in respect of the proceeding commenced 15 December 2015 by 14 December 2016.[15]

22 On 28 November 2016 Mr Tatti telephoned Mr Petridis of the VGSO and proposed that the parties agree to file a minute of consent order staying the proceeding pending the outcome of Mr Nikolic's application for special leave to appeal.[16] On 1 December 2016 Ms Hebiton of the VGSO sent an email to Mr Tatti requesting that he put the plaintiff's request for a stay of proceedings in writing in order that the VGSO could obtain instructions.[17]

23 There was no further contact between the plaintiff's solicitors and the VGSO or the defendant until 1 February 2017. However, on 14 December 2016 the plaintiff's solicitors had filed a summons for directions with respect to the originating motion filed on 15 December 2015. The return date for the summons was 8 February 2017. A copy of that summons was served on the VGSO on 1 February 2017.

24 On 6 February 2017 the VGSO wrote to the plaintiff's solicitors stating that it did not oppose the making of consent orders to postpone the hearing of the summons, but reserved the right to contend that the plaintiff's application was out of time.[18]

25 On 7 February 2017 the court made orders by consent. The 'other matters' section of the order included the following:

The Defendant wishes to note that, in the Defendant's view, the Plaintiff's application is out of time. Accordingly, the defendant has not filed a Notice of Appearance in this matter.[19]

26 On 8 March 2017 Mr Nikolic's application in the High Court for special leave to appeal was dismissed. On 23 March 2017 orders were made by consent adjourning the directions hearing until 12 April 2017.

27 On 10 April 2017 Ms Hebiton wrote to Mr Tatti. The letter included the following:

Our client maintains its position that the proceeding was commenced out of time. In this regard, we note that a proceeding commenced under Order 56 of the Supreme Court Rules must be commenced within 60 days after the date when the grounds for grant of the relief or remedy first arose.
The exclusion orders the subject of this proceeding were issued on 12 November 2014. The originating motion in this matter was filed on 15 December 2015, significantly outside the required 60 days.
Further, notwithstanding the exclusion orders the subject of this proceeding have since been revoked and replaced with new exclusion orders issued on 3 June 2016, no application to amend the existing originating motion has been filed, nor has any new originating motion been filed. As a result, any such application would also arguably be out of time given that the 60 day period from 3 June 2016 ended on 2 August 2016.
Any previous indication that the Defendant would not oppose an amendment to the originating motion was on the basis that the amendment would be sought within 60 days of 2 June 2016.
We note that the Supreme Court is only able to extend time in special circumstances - see r 56.02. The documents served to date do not include any application for extension of time. Nor is there any affidavit material filed to support a contention that there are special circumstances such that leave to commence the proceeding out of time should be allowed.
In our view, before the matter can proceed, the Plaintiff will need to obtain an extension of time in which to bring the proceeding. Accordingly, we attach for your consideration proposed consent orders that make provision for the leave application referred to above to be addressed, and programming orders for the substantive hearing of the matter, if necessary.[20]

28 On 12 April 2017 Ginnane J made orders, including the following:

[2] The plaintiff has leave to file and serve any amended originating motion by 4.00 pm 19 April 2017.

(a) an application for an extension of time in which to bring the proceedings, and

[8] The plaintiff's application for an extension of time will be heard at the same time as the substantive proceeding.[21]

29 On 19 April 2017 the plaintiff filed an AOM. However, the plaintiff did not file an application for an extension of time or any material in support thereof. On 23 May 2017, the VGSO wrote to Mr Tatti, including the following:

We also note that you have not filed and served any application for an extension of time, pursuant to Order 4 of Justice Ginnane's orders dated 12 April 2017. In the circumstances we are of the view that such an application is required.[22]

30 On 6 July 2017 the defendant filed an affidavit of Detective Superintendent Peter Brigham in support of a claim for public interest immunity in respect of an application for exclusion orders produced by the Sporting Integrity and Intelligence Unit of Victoria Police.

31 On 3 August 2017 the proceeding was listed for mention before Bongiorno J. In reference to the public interest immunity claim, Mr Merkel QC, who appeared for the plaintiff, submitted:

Now that the State has taken this point, we apprehend that they intend to take it seriously and try and establish a point of principle so that one would have to accept there's a real possibility of this going before a Court of Appeal either way.[23]

32 Following the hearing on 3 August 2017 case management of the proceeding was allocated to McDonald J. At that time, a hearing in respect of the defendant's public interest immunity claim was listed for 14 August 2017. On 4 August 2017 an email was forwarded from the chambers of McDonald J to the practitioners in the proceeding in the following terms:

On 14 August 2017, His Honour wishes to hear submissions as to whether paragraph 8 of the orders of 12 April 2017 should be set aside having regard to the substantive nature of the matters to be canvassed on 14 August 2017, including the prospect of appeal proceedings. The orders made on 12 April 2017 predate the defendant's claim for public interest immunity.

The parties are asked to address how it is consistent with s 7 and 8 of the Civil Procedure Act 2010 for the court to be hearing submissions in respect of a disputed claim for public interest immunity in circumstances where the plaintiff may ultimately not be granted leave to commence his proceeding out of time.[24]

33 Paragraph 8 of the Justice Ginnane's orders of 12 April 2017 provided for the plaintiff's application for an extension of time to be heard at the same time as the substantive proceeding. On 14 August 2017 the proceeding was listed for directions. Both parties agreed that the application for an extension of time should be heard prior to any substantive proceeding.[25] On 14 August 2017, McDonald J made an order setting aside paragraph 8 of the orders made by Ginnane J on 12 April 2017.[26] The plaintiff's application for an extension of time was listed for hearing on 30 August 2017.

34 The first exclusion orders were made on 12 November 2014. The originating motion, which included a claim for relief in the nature of certiorari to quash those orders, was filed on 15 December 2015. During the hearing on 30 August 2017 both parties agreed that the 60 day period prescribed by rule 56.02(1) expired on 23 March 2015. Accordingly, the originating motion was filed nearly nine months out of time.

35 The first exclusion orders were revoked on 9 May 2016. On 3 June 2016 the second exclusion orders were made. The plaintiff's application for judicial review in respect of those orders could have been the subject of fresh proceedings. Rather than commencing fresh proceedings the plaintiff sought the defendant's agreement to use the proceedings commenced in December 2015 as the vehicle to challenge the second exclusion orders. The AOM was filed on 19 April 2017. During the hearing on 30 August 2017 both parties agreed that the time for challenging the second exclusion orders expired on 5 August 2016. Accordingly, the AOM was filed more than eight months outside of the time prescribed by rule 56.02(1).

36 There are two issues for determination. First, whether there are special circumstances justifying an extension of time in respect of the proceeding commenced on 15 December 2015. Second, if there are special circumstances in respect of the proceeding commenced on 15 December 2015 are there also special circumstances which justify an extension in respect of the amended origination motion filed on 19 April 2017?

The power to grant an extension of time in special circumstances

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

...

(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

38 In Kocak v Wingfoot Australia Partners Pty Ltd ('Kocak')[27] Cavanough J when considering the meaning of special circumstances in rule 56.02(3) stated:

In the most recent decision of this Court in which 56.02(3) of the Rules has been considered, Goodman v Victorian Civil and Administrative Tribunal, Habersberger J said:

"28 It is, in my opinion, now well established that 'special circumstances' in r 56.02(3) means something that is not 'general in character', but something exceeding 'that which is usual or common'. As Toohey J said in Re Beadle and Director-General of Social Security when sitting as President of the Commonwealth Administrative Appeals Tribunal:

'An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special'."

39 In Mann v Medical Practitioners Board of Victoria[28] Osborn J stated:

Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.

This statement of principle was expressly endorsed by the Court of Appeal.[29]

40 The inquiry as to whether special circumstances exist is not confined to the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period.[30] In deciding whether or not special circumstances exist, the court can consider all of the circumstances of a particular case. Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendants, whether the plaintiff has an arguable case and the public interest in the finality of litigation.[31]

41 Mr Merkel QC, who appeared with Mr Tran for the plaintiff, submitted that the determination of whether special circumstances exist involves a discretionary judgment of the type referred to by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission ('Coal and Allied').[32] As to the nature of a discretionary judgment the plurality stated:

'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decision maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[33]

All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tendered to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[34]

43 The reasoning of Cavanough J is consistent with that of the High Court in Coal and Allied. The court's determination of whether special circumstances exist involves a decision making process in which no one consideration and no combination of considerations is necessarily determinative of the result. It requires an evaluation of competing considerations and a determination of whether or not such considerations constitute special circumstances justifying the grant of an extension of time.

44 The originating motion filed 15 December 2015 sought relief under both the Administrative Law Act and rule 56.01. Consequently, from late 2014 there were two time limits running in tandem. The 60 day period prescribed by rule 56.01 together with the time limits under the Administrative Law Act.

45 I have referred earlier in this judgment to the exchanges which took place between Ms Miller and Mr Tatti in June and July 2016 during which Ms Miller indicated the VGSO's in principle agreement to the plaintiff challenging the second exclusion orders by way of an AOM. Absent that in principle agreement I would have concluded that there were no special circumstances. However, there was an in principle agreement that the plaintiff could challenge the second exclusion orders by means of an amendment to the originating motion filed on 15 December 2015. If the plaintiff had filed and served an AOM by 5 August 2016, the defendant could not have legitimately contended that the originating motion filed on 15 December 2015 was out of time.

46 Mr Merkel submitted that as a consequence of the VGSO consenting to the plaintiff amending the originating motion to challenge the second exclusion orders, the defendant had waived his right to contend that the originating motion was out of time. I accept Mr Merkel's submission that upon receipt of the plaintiff's request to amend the originating motion the VGSO could simply have declined because the originating motion was out of time. If the VGSO had done so, the plaintiff would have had the option of commencing a fresh proceeding to challenge the second exclusion orders.

47 Ms Miller deposed that she did not, in her letter of 23 June 2016 or in her telephone calls with Mr Tatti on 18 and 20 July 2016 state that the defendant would consent to the plaintiff seeking to review the second exclusion orders after 5 August 2016, as that date had not yet passed. Ms Miller deposed that it was unnecessary to make any such statement because it was her expectation, based on her telephone calls with Mr Tatti, that he would send proposed consent orders for the filing of an AOM on or before 22 July 2016. I accept this evidence. However, whilst the evidence is relevant to whether an extension of time should be granted in respect of the AOM, it does not detract from the fact that when the in principle agreement was given, the defendant could have contended that the originating motion was out of time. The defendant's in principle agreement for the plaintiff to challenge the second exclusion orders by means of an AOM, is inconsistent with the defendant's contention in the current proceedings that the originating motion was filed out of time. I consider that the in principle agreement constitutes a special circumstance within the meaning of rule 56.02(3).

Should an extension of time be granted in respect of the AOM?

48 The plaintiff submits that the delay in challenging the second exclusion orders, whilst not insubstantial, is within the range of time that the Supreme Court of Victoria has previously extended time. The plaintiff relies upon the judgment of Keogh J in Cahill v Victorian Legal Services Commissioner.[35] In Cahill, Keogh J extended the time for filing to a date which was almost 12 months after the decision which was the subject of an application for judicial review. The Legal Services Commissioner had commenced proceedings in VCAT alleging professional misconduct. Keogh J concluded that the interest of justice would not be served by allowing the VCAT proceedings to continue if the decision which underpinned those proceedings was infected by error. He considered that those circumstances favoured the grant of an extension of time for the decision to be challenged under order 56.

49 Each case turns upon its own facts. Mr Merkel submitted that when considering the question of delay, a factor of very considerable significance was the defendant's 'acquiescence in the whole course of conduct.'[36] I do not accept that the defendant acquiesced in the plaintiff filing the AOM out of time.

50 It is correct that the VGSO agreed in principle to the plaintiff challenging the second exclusion orders by way of an amendment to the originating motion filed 15 December 2015. However, that in principle agreement was given well within the 60 day period within which the plaintiff could have commenced fresh proceedings to challenge the second exclusion orders. Further, both by his conduct and statements made by his lawyers, the plaintiff gave every indication that he would in fact commence those proceedings prior to 5 August 2016. A copy of the proposed AOM was sent to the VGSO on 11 July 2016. On 18 July 2016 and 20 July 2016 Mr Tatti informed the VGSO that the plaintiff would be filing the AOM within a short period of time. However, he did not do so. A strong inference arises that post-20 July 2016 the plaintiff made a deliberate decision not to proceed to file an AOM.

51 There was no communication between the plaintiff and the defendant or the VGSO between 20 July 2016 and 1 February 2017. On 1 February 2017 the plaintiff served on the defendant a summons for direction which had been filed on 14 December 2016. Within five days of being served, the VGSO wrote to the plaintiff's solicitors reserving the right to contend that the foreshadowed challenge to the second exclusion orders was out of time. This position was subsequently recorded in the 'other matters' section of the orders made by the court on 7 February 2017.

52 I reject the plaintiff's contention that the defendant acquiesced in the plaintiff filing the AOM out of time. In circumstances where there was no communication between the plaintiff and the defendant between 20 July 2016 and 1 February 2017 the defendant was entitled to have assumed that the plaintiff had simply decided not to proceed with a challenge to the second exclusion orders.

53 The public interest in the finality of litigation underpins the 60 day period prescribed by order 56.02(3).[37] Mr Merkel accepted that order 56 manifests a clear policy position that prima facie an application for judicial review must be commenced within 60 days of the decision sought to be challenged.[38] I consider that the length of the delay in the filing of the AOM, flowing from a deliberate decision by the plaintiff not to file, are factors which weigh heavily against granting the application for an extension of time. As to the length of the delay, I have placed particular weight on the absence of any communication between the plaintiff and the defendant for a period of in excess of six months between 20 July 2016 and 1 February 2017.

54 The plaintiff submits that there is a reasonable explanation for the delay. He points to four matters in support of this submission. First, he submits that it was reasonable for the plaintiff to await the outcome of the proceeding brought by Daniel Nikolic against the Chief Commissioner of Police challenging an exclusion order under the Racing Act 1958. The plaintiff submits that the proceeding was likely to result in the Supreme Court, the Court of Appeal or the High Court setting down principles relevant to the operation of the statutory provisions governing exclusion orders and were therefore relevant to the plaintiff receiving informed legal advice.[39]

55 I reject this submission. The plaintiff could have filed the AOM and sought directions from the court to adjourn the further proceedings pending the outcome of the Nikolic proceedings. The 60 day time limit prescribed by order 56 would be rendered otiose if a party could simply defer commencing proceedings because of other proceedings which might bear upon an application for judicial review.

56 The second basis upon which the plaintiff contends he had reasonable explanation for delay is the existence of a 'catch-22' situation. The plaintiff submits:

On the one hand, he sought to challenge the second Exclusion Orders due to their adverse impact upon his rights and interests as well as due to their adverse effect upon his reputation. On the other hand, challenging them in Court would necessarily encourage and produce the very publicity of allegations made against him and suspicions about him which he was seeking to quash by this very proceeding. The dilemma which the plaintiff faced given his history with the media, is understandable.[40]

57 Mr Tatti deposed that the plaintiff 'was deeply anxious and conflicted about the possible media attention which challenging the Second Exclusion Orders might generate.'[41]

58 The plaintiff's concern about adverse media attention are consistent with the finding I have made that post 20 July 2016 he made a deliberate decision not to proceed with the filing of an AOM. Such concerns, do not, however, constitute a reasonable explanation for delay. First, any concerns of adverse media publicity must have been extant from the time of the making of the first exclusion orders in November 2014. Nevertheless, the plaintiff challenged those orders in December 2015. Having done so, the plaintiff could have made an application for a pseudonym order and/or a confidentiality order to prevent disclosure of his identity and any affidavits filed in the proceedings. Further, notwithstanding his stated concerns of media attention the plaintiff did file a summons for directions on 14 December 2016. There is no material which explains why, notwithstanding the stated concerns, the plaintiff was prepared to do so. He points to no changed circumstances between June 2016 when the second exclusion orders were made and December 2016 when he filed the summons for directions.

59 The plaintiff submits that he did not sit on his hands. He submits that 'through his solicitors he made his intention to challenge the Second Exclusion Orders known from the outset, and from time to time his solicitors were in contact with both the court and with the defendant's lawyers'.[42]

60 The problem with this submission is that having provided the VGSO with a proposed AOM on 11 July 2016 and then advising the VGSO of his intention to file shortly after 22 July 2016, the plaintiff did sit on his hands. He took no steps in the proceeding at all between 20 July 2016 and 26 September 2016 when Mr Tatti responded to an inquiry as to the status of the proceeding from a senior registry lawyer of the Supreme Court of Victoria.[43] The plaintiff did not communicate with the defendant and/or the VGSO until 1 February 2017.

61 The plaintiff submits that part of the reason for the delay in filing an AOM was the mistaken belief on the part of his legal representatives that the originating motion could be amended to include claims for relief under order 56 which, at the time of the amendment, were time barred. The plaintiff submits that he should not be prejudiced by 'this understandable but mistaken belief'.[44]

While I was aware that the plaintiff was formally out of time to challenge the second Exclusion Orders and that the VGSO took that view, I did not appreciate, until the court's email about this proceeding being out of time, that an extension of time might be a contested matter as opposed to a mere formality. I therefore did not advise the plaintiff about the seriousness of any further delay.

My mistaken belief was based on a belief that an amendment could be made under rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015.[45]

63 Mr Tatti's reference to 'the court's email' is a reference to the email forwarded to the parties on 4 August 2017, the terms of which are set out earlier in this judgment.

64 It is difficult to reconcile Mr Tatti's belief that an extension of time would be 'a mere formality' with the chronology of events set out above. There was no communication between the plaintiff's solicitors and the VGSO between 20 July 2016 and 1 February 2017. No conduct on the part of the VGSO during this period could have engendered any belief on the part of Mr Tatti that an extension of time would be a mere formality. Further, although the plaintiff elected to challenge the second exclusion order by way of an AOM, any application for relief in respect of those orders under order 56 was subject to the 60 day time limit prescribed by rule 56.02(3). Any belief to the contrary on the part of the plaintiff's solicitors was not reasonably held.

65 I reject each of the four elements of the plaintiff's contention that he had a reasonable explanation for delay in filing the AOM.

66 The plaintiff submits that he has an arguable case. He submits that, as a result, leave cannot be refused on the basis that he has a hopeless case. The plaintiff accepts that having an arguable case is not determinative of whether an extension of time should be granted.[46]

67 I accept that the plaintiff has an arguable case. I also accept Mr Merkel's submission that the strength or weakness of the plaintiff's claim that he was denied procedural fairness turns on whether the information claimed by the defendant to be protected information, is in fact protected.[47] Mr Merkel did not contend that the plaintiff's claim is strongly arguable. Rather, he advanced his submission on the basis that there 'is a serious issue to be tried on access to the material, the protected information',[48] and there being a, 'plainly triable issues in a case like this.'[49] Mr Merkel conceded that the Court of Appeal had determined the Chief Commissioner's appeal from the judgment of Ginnane J in Nikolic v Chief Commissioner of Police (No 2) in a manner which was adverse to the plaintiff's interests.[50]

68 In Chief Commissioner of Police v Nikolic the Court of Appeal identified the key issue as being the extent to which adverse information could be disclosed without unreasonably prejudicing confidential police sources and/or ongoing police investigations and/or police investigative methods.[51] The Court stated:

The Commissioner now seeks leave to appeal from the judge's decision. He contends, first, that the judge misconstrued the applicable provisions of the Racing Act. In the alternative, the Commissioner contends that the judge erred in concluding that procedural fairness required that Mr Nikolic be given the information and documents in question.

For reasons which follow, we would reject the first contention but uphold the second. Having reviewed the information for ourselves, and considered the evidence as to its sensitivity, we have concluded that in this statutory context the non-disclosure of the information did not constitute a breach of procedural fairness.[52]

69 The issue considered by the Court of Appeal of whether non-disclosure of information to Mr Nikolic underpinning the exclusion order made under the Racing Act constituted a breach of procedural fairness is on all fours with the contention advanced by the plaintiff in the current proceeding. In order to come to a conclusion as to whether or not non-disclosure did constitute a breach of procedural fairness the Court of Appeal considered it necessary to examine the information which had not been disclosed. The approach adopted by the Court of Appeal therefore lends weight to Mr Merkel's submission that absent the court inspecting the documents in question, it is not possible to come to a concluded view as to the strength of the plaintiff's claim that he was denied procedural fairness by reason of non-disclosure of information. Nevertheless, the Court of Appeal's findings regarding the statutory context governing exclusion orders under the Racing Act (which are mirrored in the provisions of the Casino Control Act), are unfavourable to the plaintiff's prospects of establishing a denial of procedural fairness by reason of non-disclosure of information.

(i) In certain context, the importance of protecting highly sensitive information may have the consequence that the principles of procedural fairness do not require the disclosure of even the substance or gist of that information to the person who is subject to the decision;[53]

(ii) Section 35E(2)(a)-(c) of the Racing Act authorise the abrogation of fundamental principles of justice;[54]

(iii) Two of the three hearing methods provided for in s 35E would, if implemented, reduce the content of procedural fairness to 'nothingness';[55]

(iv) That the legislature could authorise wholesale departures from the principles of justice necessarily informs the view which should be taken of what procedural fairness requires in the decision making process. The statutory context is critically important when deciding that question;[56]

(v) In the Nikolic appeal, the information which the trial judge held should have been disclosed was of a character that its disclosure would have frustrated the purpose for which parliament conferred the power to make an exclusion order.[57]

71 The findings set out above are not determinative of the plaintiff's prospects successfully challenging the second exclusion orders. However, the Court of Appeal's findings regarding the statutory context in which exclusion orders are made are relevant to the current proceedings. Those findings support a conclusion that the exercise of the power to make exclusion orders under the Racing Act and the Casino Control Act may, in particular cases, justifies a significant departure from the ordinary application of the rules of procedural fairness, in order to protect highly sensitive intelligence or investigative processes of Victoria Police.

72 The plaintiff submits that the justice of the case warrants the grant of an extension of time. Mr Tatti deposed to prejudice suffered by the plaintiff as a result of the operation of the second exclusion orders:

I am advised by the plaintiff and verily believe that he is not permitted to continue these proceedings, he will suffer prejudice because:

(a) the second Exclusion Orders have prevented the plaintiff from attending various events at Crown Casino which relate to non-gambling areas. This includes business events which make use of their meeting facilities and social events such as weddings.

(b) the plaintiff is a supporter of charities, and from time to time invited to attend functions and events, some of which take place at the Casino's facilities. He is not presently able to attend these.

(c) Unless permitted to proceed, the plaintiff will have no further opportunity to have the second Exclusion Orders reviewed. The defendant has not indicated that they will expire, be reviewed, or be revisited in the future.[58]

73 I accept the plaintiff's submission that the second exclusion orders restrict his freedom of movement and freedom to associate. However, there is no evidence, directly or on information and belief regarding specific prejudicial impact of the exclusion order made under the Racing Act as opposed to the Casino Control Act. For example, there is no evidence as to how frequently the plaintiff previously frequented racing venues prior to the making of the first exclusion order.

74 The evidence of the impact of the Casino Control Act is somewhat vague. Mr Tatti's affidavit does not identify how many business and social events the plaintiff has been prevented from attending at Crown Casino due to the exclusion order. Further, the prejudice which the plaintiff points to must be weighed against the lengthy periods of times since the making of the first orders in November 2014 during which the plaintiff did nothing to challenge the orders.

75 I accept that the limitation upon the plaintiff's freedom of movement and association resulting from the second exclusion orders has adversely impacted the plaintiff. However, the fact that the second exclusion orders restrict the plaintiff's freedom of movement and association cannot, of itself, be determinative of whether an extension of time should be granted. Exclusion orders are inherently restrictive of freedom of association and movement. If the restrictive nature of an exclusion order was decisive on the question of whether an extension of time should be granted, the prescribed time period under rule 56 would be of little utility.

76 The defendant does not contend that he will be prejudiced if the plaintiff is granted an extension of time. I have taken this into account in evaluating the competing considerations for and against granting the application for an extension of time.

77 The plaintiff submits that the public interest in the finality of litigation does not weigh against an extension of time being granted. In this regard, the plaintiff points to the fact that the current proceedings involve litigation at the first instance stage, rather than a judicial review application of an existing decision by an inferior court or tribunal. It is correct that the second exclusion order is not a decision of a court or tribunal. However, it is equally clear that the order is amenable to judicial review under order 56. Further, the express terms of order 56.02 are underpinned by a clear policy that judicial review proceedings are to be commenced within 60 days.

Adverse publicity regarding the allegations underpinning the second exclusion order

78 On 6 July 2017 the defendant filed an affidavit of Detective Inspector Peter Brigham in support of his claim for public interest immunity in respect of an Application for Exclusion Orders produced by the Sporting Integrity and Intelligence Unit of Victoria Police. At [28] of his affidavit Mr Brigham deposed:

Specifically, each of the Notices of Intention stated that:

There is substantial intelligence held by Victoria Police, the contents of which I cannot disclose which indicates:

You have substantial and close involvement with serious criminal conduct including drug importation, murder and extortion;
You are a known associate of prominent criminal entities and persons who have a history of significant criminal conduct that includes money laundering and drug trafficking;
You pose a risk to the integrity of both racing and casino venues in Victoria.

79 On 3 August 2017 when the proceeding was listed for mention before Bongiorno J, Mr Merkel submitted, in reference to Mr Brigham's affidavit:

MR MERKEL: The only other matter I did want to mention, Your Honour, is that there is an acute sensitivity, on the part of the plaintiff, to the subject matter of the allegation. If that entered into the public domain, that could have deleterious consequences for his reputation and the whole point of seeking to set aside the decision on denial of procedural fairness is, in effect, to stay that the decision was made without him having an opportunity to be heard and, in a sense, part of the purpose of having vindication by having the decision set aside would be rendered nugatory if that information entered the public domain.

YOUR HONOUR: Yes.

MR MERKEL: We have agreed today not to mention it and, rather than seek to have any hearing in closed court at the interlocutory stage, we would hope to reach agreement that that could be conducted without reference to the subject matter in open court, but again, we've only got so far as agreeing on what would happen today and the next stage is something that will happen when it is fixed, but - - -

80 On 8 August 2017 and during the following days, there was widespread media publicity concerning a dinner attended by, amongst others, the plaintiff and Mr Matthew Guy, the leader of Victoria's Opposition. Mr Tatti's affidavit sets out a table of articles which appeared in print and online media publications between 8 August and 14 August 2017 which made reference to the second exclusion order.[59] Mr Tatti also sets out 11 articles which specifically refer to the contents of [28] of Mr Brigham's affidavit, including several which quoted directly from the affidavit.[60] Mr Tatti deposed:

Unless the plaintiff's application for an extension of time is granted, he will not have any opportunity to have the material on which the defendant relied upon tested, and he will not have an opportunity to vindicate his reputation.

81 The plaintiff's written submissions include the following:

Sixth, there are other special circumstances in this case that impart to it 'a particular quality of unusualness that permits them to be described as special': Lazarevic v Victoria Police [2014] VSC 497 at [30]; Blyss v Magistrates' Court of Victoria [2016] VSC 548 at [94]. Specifically, the Second Exclusion Orders were made against the plaintiff on the basis of very serious allegations. Those allegations have now been widely publicised, it appears as a result of reports [sic] accessing the court file and the reading by a member(s) of the media of affidavits which had not been read in court and which had not been ordered to be marked as confidential. It would compound the impact on the plaintiff's interests if he were not permitted to challenge the defendant's Second Exclusion Orders on the basis that they were made without according him procedural fairness. Not only would he then be excluded from these places in Victoria where any other Victorians may attend; but he will be the subject of media reporting indefinitely into the future based on these allegations, all without any means to have those allegations tested in Court, being the only forum in which they may be tested. The courts are usually astute to protect a person's reputation from allegations being made in circumstances where procedural fairness has not been afforded: See Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

82 Mr Merkel submitted that the public disclosure of the contents of Mr Brigham's affidavit, which had not been read in open court:

Is a factor of grave concern and significance in the administration of justice in this court.[61]

83 Mr Merkel submitted that until read in open court, the content of Mr Brigham's affidavit was subject to an 'absolute privilege'.[62]

84 There is no nexus between the publications referred to in Mr Tatti's affidavit and the plaintiff's failure to file an AOM within the prescribed 60 day period. The publications all occurred well after the filing of the AOM on 19 April 2017. The plaintiff relies upon these publications in support of his application for an extension of time because he submits that the circumstances of the publication impart a particular quality of unusualness that permits those circumstances to be described as special.

85 Mr Brigham's affidavit was filed and served on 6 July 2017, one month prior to the media publications which commenced on 8 August 2017. At any time post 6 July 2017 the plaintiff's legal representatives could have sought an order from the court preventing disclosure of the contents of the affidavit. Alternatively, the plaintiff could have sought a pseudonym order. During the period 6 July to 8 August 2017 access to Mr Brigham's affidavit was governed by Supreme Court (General Civil Procedure) Rules 2015 rule 28.05 which provides:

(1) When the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.

(2) Notwithstanding paragraph (1) -

(a) no person may inspect or obtain a copy of a document which the court has ordered remain confidential;

(b) a person not a party may not, without leave of the court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties.

86 In Victoria the prima facie position is that any member of the public may obtain a copy of any document that has been filed in a proceeding in the Supreme Court, on payment of the proper fee. That right may be curtailed if the court orders that a document remain confidential. If no order has been made, access may be restricted if the Prothonotary forms the opinion that the document ought to remain confidential to the parties.[63]

87 The prima facie position under rule 28.05 may be contrasted with order 46 rule 6(3)(a) of the Federal Court of Australia Rules which provides that, except with the leave of a court or a judge, a person who is not a party to a proceeding must not inspect an affidavit, save for an affidavit accompanying an application under s 61 of the Native Title Act 1993 (Cth).

88 In support of the submission that the publication of the contents of Mr Brigham's affidavit constitute a special circumstance, Mr Merkel placed reliance upon the judgment of J Forrest J in AS v Minister for Immigration and Border Protection & Ors (Ruling No 10) ('AS').[64] In AS, J Forrest J dealt with an application, following the court's approval of a compromise of a AS's claim, for the terms of settlement and other documents on the court file to be ordered to be confidential:

It follows, convincingly, that one starts in such an application with the proposition that documents on a court file in a civil proceeding in this Court must, absent good reason, be available for inspection by the public. There are, however, certain limits on the broad rule - some of which are procedural and other substantive.
The first is (which I have already mentioned) that it is not appropriate, without proper consideration, to declare 'a file' confidential. The rule and the statements of principle require a court, or the Prothonotary, to consider the documents individually. This may, of course, lead to all or, more likely, some of the documents being treated as confidential.
The second is that it is accepted practice that documents which have been filed with the Court (and usually this means medical reports, affidavits, expert opinions, witness statements etc, filed pursuant to specific orders or Rules of the Court) remain confidential unless they have been deployed in open court.[65] Such documents are to be contrasted to pleadings and orders of the Court which, absent an order of the Court, or the exercise of the discretion of the Prothonotary are available for inspection.

89 Nothing in J Forrest J's judgment overrides the prima facie position under rule 28.05(2) that, absent a court order or the Prothonotary forming the requisite opinion, documents on the court file are available for inspection by members of the public. Indeed, the proceedings before J Forrest J involved consideration of an application for confidentiality order. Had an application been made by the plaintiff post the filing of Mr Brigham's affidavit for a confidentiality order, such an order may have been made. For whatever reason, the plaintiff made no such application. Plainly, the Prothonotary did not determine that Mr Brigham's affidavit should be treated as confidential.

90 I reject Mr Merkel's submission that until an affidavit has been referred to in open court it is subject to an absolute privilege against disclosure. In Re Japara Holdings Pty Ltd[66] Davies J refused an application for a confidentiality order in respect of affidavits which had not been read in open court. Her Honour considered that the parties seeking a confidentiality order had to demonstrate that the material in question was, in fact, confidential.[67] The affidavits in question had been on the court file for a considerable period of time and had already been inspected by non-parties. Her Honour concluded that insofar as material may have been confidential, 'the horse had already bolted' and as such confidentiality had been lost.[68] Further, Her Honour considered that a party seeking a confidentiality order had to demonstrate that their interest would be seriously compromised or adversely affected if confidentiality was not maintained.[69]

91 Re Japara Holdings was cited with approval by T Forrest J in Wilson v Mitchell ('Wilson').[70] In Wilson, Nationwide News sought access to affidavits which had not been read in open court. Wilson sought an order pursuant to rule 28.05(2)(a) that the affidavits remain confidential. He contended that the affidavits contained wide ranging allegations of fraud against him personally in circumstances where no formal charges had been laid. He submitted that to allow the material to be inspected, copied and ultimately publicised would prejudice the fairness of a future trial, should there be one.[71] T Forrest J refused the application for a confidentiality order. His Honour was not satisfied that Wilson would be adversely affected if the confidentiality order was not made.[72]

92 The judgments in Re Japara Holdings and Wilson demonstrate that where an application for a confidentiality order is made in respect of affidavits which have not been read in open court, it does not automatically follow that a confidentiality order will be made. Rather, these authorities support an approach whereby the court will examine whether the material sought to be made confidential, is in fact confidential. Further, the court will enquire as to the prejudice to the party seeking the order if it is not made.

93 In circumstances where the plaintiff, although squarely on notice of the contents of Mr Brigham's affidavit from 6 July 2017, failed to make an application for a confidentiality order, there is nothing unusual in the circumstance of non-parties obtaining access to that affidavit on the court file. That outcome was governed by rule 28.05(2).

94 The plaintiff submitted that if his application for an extension of time is not granted he will be denied the opportunity to have the allegations the subject of the adverse media reporting tested in court.[73] This submission is misconceived to the extent that it suggests that the current proceedings would provide an opportunity for the plaintiff to test the substance of the allegations in [28] of Mr Brigham's affidavit. In this respect, I agree with the observation of Ginnane J in Nikolic v Chief Commissioner of Police:[74]

This case does not require or indeed permit the court to consider whether an exclusion order should have been made against Mr Nikolic. The court's function is to determine whether the legal procedures the Chief Commissioner was required to observe were observed and no more. The court's function is to declare and enforce the law which determines the limits and governs the exercise of the decision maker's power.[75]

95 If I am wrong in reaching the conclusions set out above, and the circumstances of the publication of the contents of Mr Brigham's affidavit is a circumstance which favours the grant of an extension of time, I would in any event conclude that the plaintiff should not be granted an extension of time for the filing of the AOM.

96 There are considerations which favour the grant of an extension of time:

(a) the adverse impact of the second exclusive orders upon the plaintiff's freedom of movement and association;

(b) the absence of any prejudice to the defendant if an extension of time is granted; and

97 When the matters set out above are weighed against:

(i) Post 20 July 2016 the plaintiff made a deliberate decision not to proceed to file an AOM, notwithstanding clear indications he had given immediately prior to 20 July 2016 that he would do so;

(ii) There is no satisfactory explanation for the plaintiff's failure to have made any contact with the defendant/VGSO between 20 July 2016 and 1 February 2017;

(iii) The period of delay between 5 August 2016 when the 60 day time limit expired and the date of actually filing the AOM is significant, and there is no reasonable explanation for that delay;

the plaintiff falls well short of establishing special circumstances which justify the grant of an extension of time for the filing of the AOM. I would come to the same conclusion even if I accepted the plaintiff's contention that the adverse media publicity received by the plaintiff post 8 August 2017 was a factor in favour of the grant of an extension of time.

98 I shall provide the parties with an opportunity to make submissions on the form of orders to give effect to these reasons for judgment, and on the question of costs.

[1] Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT-8.

[5] Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT-24.

[7] Affidavit of Kathryn Elizabeth Miller sworn 28 August 2017, [12(c)].

[9] Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT-26 (emphasis in original).

[12] Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT-27.

[14] Affidavit of Paolo Tatti sworn 22 August 2017, [47].

[16] Affidavit of Janine Hebiton affirmed 28 August 2017, [7].

[19] Justice Ginnane, Court Order in Madafferi v The Chief Commissioner of Police S CI 2015 06329, dated 7 February 2017.

[20] Affidavit of Janine Hebiton affirmed 28 August 2017, Exhibit JMH-7.

[21] Justice Ginnane, Court Order in Madafferi v The Chief Commissioner of Police S CI 2015 06329, dated 12 April 2017.

[22] Supplementary Affidavit of Janine Hebiton affirmed 30 August 2017, Exhibit JMH-12.

[23] Transcript of proceedings 3 August 2017, 5 lines 2-6.

[24] Email from Cathryn Andersen to Paolo Tatti, Janine Hebiton et al, 4 August 2017 at 2:20pm.

[25] Transcript of proceedings 14 August 2017, 1-2 lines 30-11.

[26] Justice McDonald, Court Order in Madafferi v The Chief Commissioner of Police S CI 2015 06329, dated 14 August 2017 [4].

[29] Mann v Medical Practitioners Board of Victoria (Appeal) [2004] VSCA 148 [57], [72].

[30] Ibid; Lazarevic v Victoria Police [2014] VSC 497.

[31] Kocak [2011] VSC 285 [29].

[36] Transcript of proceedings 30 August 2017, 43, lines 13-16.

[37] Kocak [2011] VSC 285 [76].

[38] Transcript of proceedings 30 August 2017, 43, lines 1-9.

[39] Plaintiff's written submissions dated 21 August 2017, [14(a)].

[41] Affidavit of Paolo Tatti sworn 22 August 2017, [56].

[42] Plaintiff's written submissions dated 21 August 2017, [14(c)].

[43] Affidavit of Paolo Tatti sworn 22 August 2017, Exhibit PMT-26.

[44] Plaintiff's written submissions dated 21 August 2017, [14(d)].

[45] Affidavit of Paolo Tatti sworn 22 August 2017, [65]-[66].

[46] Lazarevic v Victoria Police [2014] VSC 497, [36].

[47] Transcript of proceedings 30 August 2017, 44, lines 23-27.

[58] Affidavit of Paolo Tatti sworn 22 August 2017, [68].

[59] Affidavit of Paolo Tatti sworn 22 August 2017, [73(a)].

[61] Transcript of Proceedings 30 August 2017, 24 line 29.

[63] Re Japara Holdings Pty Ltd [2010] VSC 361 [2]; Wilson v Mitchell [2014] VSC 332 [9].

[65] See Civil Procedure Act 2010 (Vic) s 27; Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[73] Affidavit of Paolo Tatti sworn 22 August 2017, [79]; Plaintiff's written submissions dated 21 August 2017, [21].

[75] Ibid [7]. See also Attorney General (NSW) v Quin (1990) 170 CLR 1, 35.

Court (General Civil Procedure) Rules 2015

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Judgment (195 paragraphs)

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