Plaintiff v Defendant

2 The basis of this application is apprehended bias, given that I have recently decided two cases in which the Defendant contends that I have expressed certain views that might lead a fair-minded bystander to think that I may not decide this proceeding impartially. The decisions to which the Defendant refers are Bendigo and Adelaide Bank Ltd v Lonergan[1] ("Lonergan") and ABL Custodian Services Pty Ltd v Freer[2] ("Freer"). These decisions have since been affirmed, as the Defendant notes in oral submissions, in the judgments I delivered earlier this month in Bendigo and Adelaide Bank Ltd v Laszczuk & Anor[3] ("Laszczuk") and Bendigo and Adelaide Bank Ltd v Haque ("Haque").[4] For the reasons which follow, Mr Redmond's application is refused.

3 In its amended statement of claim, dated 25 February 2016, the Plaintiff seeks to recover the outstanding balance of a loan of $271,080 that was said to have been made to the Defendant to invest in the Great Southern Plantations 2005 Project, together with interest and costs. The Plaintiff says,[5] and the Defendant does not admit,[6] that the Defendant was a group member in the Great Southern group proceedings.

4 On 3 July 2018, I handed down my decisions in Freer and Lonergan. In both of these cases, the Defendants were group members in the Great Southern group proceedings. I made findings in relation to the effect of the Deed of Settlement[7] in the group proceedings, having regard to the decisions of the Court of Appeal in Byrne v Javelin Asset Management Pty Ltd[8] ("Byrne") and Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd[9] ("Pekell"), and entered judgment for the Plaintiff in both these cases. On 10 August 2018, I handed down decisions in Laszczuk and Haque. All three Defendants in those proceedings[10] were group members in the Great Southern Group proceedings, and, applying Byrne and Pekell as I did in Freer and Lonergan, I also made findings and entered judgment for the Plaintiff in Laszczuk and Haque.

5 As is made clear in the Defendant's submissions, for the purposes of this application, he intends to argue that Freer and Lonergan were wrongly decided, [11] and that in Laszczuk and Haque I endorsed those wrongly decided decisions.[12] The grounds of apprehended bias the basis of this application are that the Defendant considers "that a fair-minded observer would be sceptical of [my] ability to assess the quality of [my] own reasoning and might regard [me] as being possibly unable to bring a fair mind to bear on those questions".[13]

6 The Plaintiff submits that to succeed in this application, the Defendant must show a reasonable apprehension that I will not decide the case impartially or without prejudice. It is further submitted that it is not sufficient for the Defendant to argue that I am likely to express the same opinions in this proceeding on the construction and effect of the Deed of Settlement as I did in Freer, Lonergan, Laszczuk and Haque.

7 A judge will be disqualified on account of apprehended bias only if it is firmly established that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[14]

8 The test as to whether a judge should recuse himself or herself from a case based on reasonable apprehension of bias is known as a "double might" test. The test requires that it is the Court's view of the public's view, not the Court's own view, that is determinative.[15] The application of the test involves two steps. The first step is "the identification of what it is said might lead a judge... to decide a case other than on its legal and factual merits".[16] The second step is the "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits".[17]

9 The Court of Appeal has, however, observed that "... an allegation of bias should not be lightly made. It is a serious matter and should be carefully particularised".[18] To similar effect, the Full Federal Court observed that:[19]

... an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. ... [T]he allegation must be "distinctly made and clearly proved".

[citations omitted]

10 It is, however, important to distinguish between a reasonable apprehension that the judge will not decide the case impartially or without prejudice and an apprehension that the judge will decide the case adversely to one party. Thus, in Re JRL; ex parte CJL, Mason J said:[20]

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established".

[citations omitted]

11 This position is put even more clearly by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation:[21]

What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely.

The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding.

12 The Defendant does concede that in a judicial system founded on the doctrine of precedent, the fact that a judge has earlier expressed views on a pure question of law will seldom warrant a conclusion of appearance of bias.[23] However, the Defendant submits that these considerations have less weight when the matter is being dealt with other than at an appellate level and that, moreover, the questions in this proceeding involve the construction of the Deed of Settlement and its application to the facts. It is said that these are not pure questions of law. For the reasons which follow, I am of the opinion that this distinction which the Defendant seeks to draw from the position otherwise applicable in the usual operation of the judicial system founded on precedent involves a misapprehension of the issues raised and decided in Freer, Lonergan, Laszczuk and Haque.

13 In any event, it does appear to be common ground that a judge of this Court should follow a decision of another judge of this Court on the same point unless convinced that it is wrong.[24] The Plaintiff makes the point in this respect that this principle should apply in the present circumstances in that I should, if I hear this case, like any other judge of the Court, follow the decisions in Freer, Lonergan, Laszczuk and Haque unless convinced that those decisions are clearly wrong. It follows, in my view, that the application of this principle should not lead a defendant, and the Defendant in this case, to regard the decisions in Freer, Lonergan, Laszczuk and Haque as preclusive of issues and arguments which any such defendant may wish to raise, as the argument is still open that these decisions are clearly wrong.

Do previous findings on questions of mixed fact and law suffice for a reasonable apprehension of bias?

14 It is plain that the issues decided in Freer, Lonergan, Laszczuk and Haque are largely questions of law and the issues of fact are not so substantial or otherwise of such a nature as to give rise to issues of apprehended bias such as those in British American Tobacco Australia Services Ltd v Laurie, in which a majority of the High Court stated the following:[25]

Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgement of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about [British American Tobacco Australia Services Ltd's] denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the fraud finding. Johnson v Johnson[26] is distinguishable.

15 Although it may not be made express in the preceding paragraph, the analysis of the majority is clearly directed to findings of fact rather than findings of law. While courts strive to determine facts as accurately as possible, such determinations must be made on the basis of the evidence before the court in a particular case. By contrast, findings of law, although assisted by parties' submissions, are objective statements of the state of the law and are not limited by those submissions in the same sense. As a result, the manner in which courts determine legal and factual issues are distinct, and so too is the significance of prior determinations of legal and factual issues for the purposes of considering allegations of apprehended bias. That this is the position is confirmed by the following unanimous statement of the High Court in Livesey v New South Wales Bar Association:[27]

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

16 In circumstances where there is no controversy as to the facts which go to the construction of the orders giving effect to the Deed of Settlement, only legal issues remain to be determined. Indeed, Mr Redmond has only identified legal findings in Freer, Lonergan and Laszczuk with which he seeks to cavil (to the extent that is possible and appropriate to do so at this juncture, that is, prior to trial).[28] He does not identify any factual findings or any subordinate factual findings which affect mixed conclusions. Accordingly, it cannot be said that the factual issues decided in Freer, Lonergan or Laszczuk are of such significance as to give rise to questions of bias which might otherwise arise in the context of previous decisions on factual issues.

Do the previous findings on questions of law suffice for a reasonable apprehension of bias?

17 The Defendant relies on authority to suggest that a reasonable apprehension of bias may arise in circumstances where a judge must consider whether his or her own legal reasoning is plainly wrong.[29] In Betfair Pty Ltd v Racing New South Wales (No 14) ("Betfair v Racing NSW"),[30] Perram J recused himself from hearing an application for leave to reopen a case after judgment had been delivered but before the perfection of orders:[31]

1. ... If the question is whether I decided Sportsbet [2010] FCA 604 on a basis which was not pleaded I can well understand that a reasonable observer might think that I would be unable to bring an unbiased mind to bear on that issue. My own belief that such a case was plainly pleaded in paras 85(b) particulars (vii) and (viii), 90(b), 91 and 91A of the third further amended statement of claim is beside the point. Also beside the point is my opinion that the present description of those conclusions in the notice of appeal as being a "sham" or a "conspiracy" is an example, I regret not isolated in this litigation, of hyperbole designed to inflame rather than enlighten. The devil's advocate however would say that those views might well be a product of the very bias apprehended.
2. So too, so far as the question of whether my legal reasoning is plainly wrong is concerned, a similar issue arises. It seems to me that a fair minded observer could well be sceptical of my ability to assess the quality of my own reasoning. This is not a case in which the principles to be applied are beyond argument. My reading of Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411 is that it precludes equalisation arrangements but it seems to me a contrary position could be put. So too whilst I rejected as unsound the argument that Sportsbet was bound to prove that it had changed its position in response to the fee, that proposition is not incontestable. In those circumstances a fair minded observer might well regard me as being possibly unable to bring a fair mind to bear on these questions.

18 In SZVBN v Minister for Immigration and Border Protection (No 3),[32] the respondent applied for Wigney J to recuse himself from hearing an appeal as part of the Full Court of the Federal Court on the basis that the respondent intended to argue that a previous decision of a Full Court of the Federal Court of which Wigney J was a member was plainly wrong. In declining to recuse himself, Wigney J affirmed Betfair v Racing NSW, distinguished its application, and noted that "[t]he questions that had been decided by [Perram J] were by no means straightforward questions of law or statutory construction".[33] Wigney J stated further that Betfair v Racing NSW "does not stand as authority for the proposition that a judge must always disqualify himself or herself because in an earlier case he or she ruled on a point of law that is likely to arise in the subsequent case",[34] and affirmed the findings of Mason and Hayne JJ to which reference has been made.[35]

19 There are, I think, three reasons, which together render Betfair v Racing NSW inapplicable to the present case. First, unlike Betfair v Racing NSW, the instant proceedings afford Mr Redmond a full opportunity to make submissions as to why an approach other than that taken in Freer, Lonergan, Laszczuk and Haque should be adopted rather than focussing on the correctness of those decisions themselves. Indeed, it is also significant in this respect that all four decisions are, for the most part,[36] applications of the decisions of the Court of Appeal in Byrne and Pekell. Secondly, there are over 30 extant proceedings where the plaintiff and related parties are seeking to recover moneys lent to group members through the enforcement of the Deed of Settlement as construed by the Court of Appeal in Byrne and Pekell and this Court in Freer and Lonergan, and subsequently in Laszczuk and Haque. It would be extremely difficult, administratively speaking, to arrange for a different judge of this Court to hear each proceeding. Of course, Mr Redmond is entitled to a trial which is both fair and apparently fair, and accordingly this consideration is only relevant insofar as it militates against taking an overly cautious approach by recusing myself in circumstances where I am satisfied that the trial will be both fair and apparently fair. The Defendant makes this application, in line with convention,[37] ahead of his trial and soon after the decisions were handed down in Freer and Lonergan. However, as the Defendant concedes, it is not clear whether efficient case management is better achieved by acceding to the present application or not.[38] In any case, as I indicated more than once in the course of the parties' oral submissions, consideration of case management issues does not transcend the right of any party to judicial impartiality and procedural fairness.[39]

20 Finally, it is simply a feature of judicial practice that judges often hear cases in which their previous decisions are questioned. For example, Ferguson and McLeish JJ heard the appeals in both Byrne and Pekell, notwithstanding that the correctness of Byrne was in doubt in Pekell as a result of the subsequent decision of the High Court in Timbercorp Finance Pty Ltd (in liq) v Collins.[40] To the extent that the publication of the decisions in Freer and Lonergan indicated that I had taken a view on certain issues that may be raised in the trial in the present case, this is unproblematic because a reasonable lay-observer is aware that a professional judge will judicially consider submissions that a previous finding was wrong. This approach, is, in my view, consistent with the statements of Mason and Hayne JJ to which reference has been made.[41] On this basis I do not accept the submission that a reasonable lay observer might apprehend that I might be inclined to follow Freer, Lonergan, Laszczuk and Haque regardless of their correctness because to find them to be incorrect would be embarrassing or would undermine public perceptions of the integrity of the administration of justice, especially, it is submitted, in circumstances where the defendants in those cases are likely now having significant judgment debts enforced against them. While it is clearly a question of degree, I am satisfied that there is no significant prospect that an apprehension of bias might arise in the instant case.

21 There are also other issues which arise in the context of an application such as this. As the Plaintiff submits, my duty is to hear cases assigned to me. Thus, as Chernov JA said in R v Nicholas:[42]

It is trite that no litigant has the right to choose which judge will hear his or her case. The reasons for that are obvious. ... I mentioned this only because the other side of that coin is that the judge cannot choose which litigant's case he or she will hear. Subject to administrative considerations, a judge is under a duty to hear the case that has been assigned to him or her unless exceptional circumstances require that the judge not sit on it. Such circumstances include a reasonable but not fanciful apprehension of bias on the part of the judge.

Moreover, in Mandie v Memart Nominees Pty Ltd (No 3),[43] McMillan J noted that the "pointed focus on efficiency and cost-effectiveness" in the Civil Procedure Act 2010 and the key role of case management in modern judicial practice are matters to be considered. As the Plaintiff submits, plainly, there are efficiencies to be had in taking advantage of the knowledge gained by me of the collapse of Great Southern in the course of over 90 sitting days of the group proceedings and in many subsequent enforcement proceedings.

22 It is not necessary for the determination of the Defendant's application to decide if Freer, Lonergan, Laszczuk and Haque were rightly decided. Nevertheless, as contended by the Plaintiff in its submissions, it should be noted that the Defendant incorrectly states the effect of those decisions in Mr Walton's affidavit:[44]

(a) I did not decide that clause 4.1 of the Deed of Settlement operates as a release of any defences that group members may have. The finding at [9] of Freer was that the defences available to group members were "severely constrained". It can be seen at [24] that this is because a group member is not able to dispute the validity and enforceability of their loan deed because of clause 4.1.4 of the Deed of Settlement.

(b) The finding at [25] of Freer that a group member cannot contest the making of an advance is based on the definition of "Loan Agreement" in the Deed of Settlement. I considered this to be consistent with the reasoning of the Court of Appeal in Byrne and Pekell.

(c) The Court of Appeal in Byrne did not reject at [38], or elsewhere, the respondent's submissions recorded at [28]. The Court found at [35], again referring to the definition of "Loan Agreement", that the "whole premise of cl 5 [applicable to Javelin borrowers] is that it is dealing with persons to whom monies were advanced... and whose loans were subsequently assigned...". The Court concluded at [42] that it was not necessary for the respondent "to prove the making of advances".

23 In the unnumbered paragraph after paragraph 9 of the Defendant's submissions the Defendant foreshadowed his approach to these proceedings, as follows:

In this proceeding the Defendant intends to argue that the release contained in the Settlement Deed (clause 4.1.10) does not apply to defences, but rather releases only claims. He intends to argue that the admission of enforceability and validity of the Loan Deed (clause 4.1.4) does not affect his ability to bring a defence of limitations since such a defence may be raised notwithstanding the enforceability and validity of the document sued upon. His Honour's decisions in Lonergan and Freer are adverse to those arguments, and he intends to argue in that respect that his Honour's reasons in those decisions were wrong.

However, in relation to these matters, I accept that, as submitted by the Plaintiff, Freer and Lonergan did not decide that the release in clause 4.1.10 of the Deed of Settlement applies to defences as well as "Claims" as defined in the Deed of Settlement. The Plaintiff makes it clear in submissions that it does not contend otherwise, but that it does contend that the release would preclude a defence by counterclaim which fell within the definition of Claim. The Plaintiff also states that it does not contend that the Deed of Settlement, or Freer, Lonergan and Laszczuk, preclude the Defendant raising a limitations defence, although the Plaintiff does contend that the relevant limitation period is 12 years for a cause of action founded on a deed, in accordance with s 18 of the Limitation Act 2005 (WA).

24 For the preceding reasons, I am of the opinion that the Defendant's alleged apprehension of bias rises no higher than asserting a likelihood that I will reach the same conclusions in this case as to the construction and effect of the Deed of Settlement as were reached in Freer, Lonergan, Laszczuk and Haque. The Defendant has not established a reasonable apprehension that I will not listen to and properly consider arguments against my findings in those cases. As McMillan J observed in Mandie v Memart Nominees Pty Ltd (No 3),[45] the hypothetical fair-minded lay observer "knows that a professional judge may depart from earlier expressed opinions".

25 On this basis, the Defendant's application is dismissed. I will hear the parties in relation to the issue of costs.

[1] [2018] VSC 357.

[2] [2018] VSC 355.

[3] [2018] VSC 388.

[4] [2018] VSC 406.

[5] Amended Statement of Claim (25 February 2016), [8].

[6] Amended Defence (28 July 2017), [8].

[7] Being the Deed of Settlement which was approved by this Court on 11 December 2014 in Clarke (as Trustee of the Clarke Family Trust v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516.

[8] [2016] VSCA 214.

[9] [2017] VSCA 51; (2017) 118 ACSR 592.

[10] The decision in Bendigo and Adelaide Bank Limited v Laszczuk & Anor [2018] VSC 388 concerned two separate proceedings brought, by the Plaintiff, against Mark Simon Laszczuk and Tiffany Michelle Cairncross respectively. The trial of those two matters was heard simultaneously, with the same counsel appearing and running almost the same arguments in both proceedings. The parties agreed to my delivery of one judgment with respect to both proceedings.

[11] See Outline of Submissions of the Defendant (for Recusal of Judge to be Heard on 20 August 2018) (6 August 2018), [12]; and see Affidavit of Demian Walton (25 July 2018), [14].

[13] Affidavit of Demian Walton (25 July 2018), [15].

[14] Mandie v Memart Nominees Pty Ltd (No 3) [2016] VSC 267, [70] (emphasis in the original) citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108; see also AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236 at 241-3 [17]-[25]. See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [35] where the test is expressed as "whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits" and Wilson v Waigani Pty Ltd [2018] VSC 302, [234]-[236].

[15] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 51-2; QBH Commercial Enterprises Pty Ltd v Dalle Projects Pty Ltd [2018] VSC 231, [9].

[16] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8].

[17] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8].

[18] Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSCA 23, [63].

[19] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [36].

[20] [1986] HCA 39; (1986) 161 CLR 342 at 352; cited with approval in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78.

[21] [1999] HCA 56; (1999) 166 ALR 302 at 306-7 [11]; before citing the passage set out in the immediately preceding paragraph from Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. See also GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150, [40]: "it is important to recognise that 'disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party': Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]".

[22] Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302 at 307 [12].

[23] Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302 at 307 [12]; Kartinyeri v Commonwealth (1998) 156 ALR 300 at 303 [24].

[24] See Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at 105 [21]-[24]; Engebretson v Bartlett [2007] VSC 163; (2007) 16 VR 417 at 429 [63].

[25] [2011] HCA 2; (2011) 242 CLR 283 at 333 [145].

[26] [2000] HCA 48; (2000) 201 CLR 488.

[27] [1983] HCA 17; (1983) 151 CLR 288 at 300.

[29] See Transcript, 23-8; and see Outline of Submissions of the Defendant (6 August 2018), [17]-[18].

[30] [2010] FCA 696.

[31] Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696, [23]-[24].

[32] [2017] FCA 126.

[33] SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126, [14].

[34] SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126, [16].

[35] SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126, [17]-[18]; extracted above, [10]-[11].

[37] QBH Commercial Enterprises Pty Ltd v Dalle Projects Pty Ltd (No 2) [2018] VSC 231, [10]; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 91 FLR 175 at 184-5; British American Tobacco Australia Limited v Peter Gordon [2007] NSWSC 109.

[40] (2016) 259 CLR 212; see Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592 at 604 [42].

[42] [2000] VSCA 49, [20] of Annexure 1 (Phillips CJ and Ormiston JA agreed with Chernov JA, at [49]); see also Bodycorp Repairers Pty Ltd v Maisano (Recusal application) [No 12] [2017] VSC 676, [21].

[43] [2016] VSC 267, [75]-[76].

[44] See Affidavit of Demian Walton (25 July 2018), [14].

[45] [2016] VSC 267, [78].