Plaintiff v Defendants

PRACTICE AND PROCEDURE - Defendants seek payment of past interlocutory costs as a condition of the grant of leave to further amend the statement of claim or a stay pending payment of such costs - Held: a stay the more appropriate avenue than a condition on the grant of leave - Supreme Court (General Civil Procedure) Rules 2015 r 63.03 considered - Gao v Zhang [2005] VSCA 200; (2005) 14 VR 380 and Rozenblit v Vainer (No 4) [2016] VSC 451 considered and applied - If gross costs ordered after further submissions, stay pending payment to be ordered.

1 These reasons concern two summonses heard by me on 4 March 2016. By summons filed on 3 February 2016, the plaintiff seeks leave to further amend her statement of claim. The defendants respond by summons filed 5 February 2016. The defendants' summons seeks orders in relation to past costs orders made in relation to interlocutory costs in favour of the defendants against the plaintiff. In overview, the defendants seek that the future progress of the claim be dependent on the payment by the plaintiff of those past costs, expressed in a gross sum.

2 For the reasons that I now set out, I have concluded as follows:

(a) Subject to further submission, a gross costs order in respect of interlocutory costs is not appropriate unless an order for immediate taxation of those interlocutory costs would be appropriate.

(b) If an order for taxation of the interlocutory costs prior to the finalisation of the proceeding would have been appropriate if sought, I will make the gross costs order that the defendants seek as an alternative to taxation.

(c) If that gross costs order is made, it is appropriate that the proceeding be stayed until those costs are paid.

(d) The plaintiff will otherwise have leave to file and serve her proposed further amended statement of claim dated 30 November 2016 on condition that paragraphs 14, 15 and 20 are deleted and consequential amendments are made to the numbering and content of other paragraphs and the schedule of defendants.

(e) I will hear further submissions as to the relationship between an order for immediate taxation of interlocutory costs and an order for gross costs and whether an order for immediate taxation would here have been appropriate. I will also hear further submissions, if required, as to whether the proposed further amended statement of claim should be filed and served prior to the imposition of the stay until payment of those costs, or only after their payment.

3 The disputes between the plaintiff and the defendants that the plaintiff sought initially to ventilate in this proceeding, and the proceeding itself, have a long history. The plaintiff is the wife of Ljupco Slaveski, who in 2006 brought proceedings against the State of Victoria and multiple police officers arising out of interactions between himself and the police on a number of occasions, dating back to an incident in September 2000. In those proceedings the plaintiff was initially the McKenzie friend of her husband, and later his litigation guardian.

4 Judgment was delivered by Kyrou J (as he then was) in Mr Slaveski's proceeding on 1 October 2010. Kyrou J dismissed all of Mr Slaveski's claims except his claim of trespass arising from an incident on 13 December 2005. Mr Slaveski subsequently sought to appeal the orders of Kyrou J. That appeal was dismissed by the Court of Appeal on 1 February 2013 without a hearing on the merits.

5 In this proceeding, which commenced by writ filed in November 2011, the plaintiff initially sought to make claims in her own right in respect of many of the same incidents that her husband had litigated in his proceeding, together with some further claims. The defendants sought summary dismissal of much of this proceeding on a number of bases. They contended that the plaintiff's claims had already been determined on the facts and/or on the law in her husband's proceeding, or could have been because she could, and should, have brought them in that proceeding. In other words, the defendants contended that the plaintiff was estopped by virtue of Anshun estoppel from litigating in this proceeding claims in her own right that she could have brought at the same time as those same claims were being heard in her husband's proceeding. The defendants also contended that many of the plaintiff's claims were at the time she commenced this proceeding time barred. The plaintiff responded with an application to extend time in respect of claims that would otherwise have been time barred, but also resisted the contention that her claims were time barred.

6 I delivered reasons in respect of the defendants' application for summary judgment and the plaintiff's application to extend time on 1 November 2013[1] and made orders following the judgment on 18 November 2013. I held that all but three of the claims that the plaintiff sought to agitate were time barred and time should not be extended to allow her to litigate them. I did not accept the Anshun estoppel argument advanced by the defendants. I struck out two of the plaintiff's then claims with liberty to replead them, and allowed her to join further defendants in respect of claims arising out of an incident on 6 March 2013. One claim survived without repleading. In respect of costs, I ordered that the plaintiff pay 50% of the defendants' costs of the defendants' summons (seeking summary dismissal or strike out) and her summons (seeking an extension of time), such costs to be taxed in default of agreement.

7 The plaintiff appealed aspects of the judgment and the defendants in that appeal filed a notice of contention seeking to press their Anshun estoppel argument, or in the alternative, seeking dismissal of certain claims as being an abuse of process. The plaintiff also sought leave to appeal the costs order.

8 The Court of Appeal delivered reasons on the appeal, notice of contention and application for leave to appeal the costs order on 10 June 2015.[2] The plaintiff was successful to a limited degree in respect of the limitation grounds in her appeal. The defendants were also successful in respect of the abuse of process aspect of their notice of contention. The Court of Appeal refused leave to appeal the costs order.

9 The plaintiff sought special leave to appeal the orders made by the Court of Appeal to the High Court. The High Court refused the application for special leave by order made 9 March 2016.[3]

10 In the result, only four claims survived my judgment and the appeal as follows:

• claim arising from an incident said to have occurred on 5 September 2007 (called 'incident 13' in my reasons and those of the Court of Appeal) when the plaintiff alleges that officer Bateman stalked, followed and threatened the plaintiff and her husband while they were picking up their three children from school (this claim was struck out with leave to replead);

• claim arising from an alleged failure ('incident 15') by certain officers to investigate complaints, the timing of which was unspecified at the time of the appeal (I struck out this claim with leave to replead and it was not in issue on the appeal);

• claim arising from an incident on 2 June 2010 ('incident 16') when the plaintiff alleges that officer Busic tried to kill her and her husband when they were driving to the Supreme Court for Mr Slaveski's proceeding (this claim survived the defendants' application before me and was not in issue on the appeal); and

• claim arising from an incident on 1 July 2010 ('incident 17') when the plaintiff alleges that the State of Victoria and officer Busic conspired with New South Wales police to cause her and her family to be arrested and have confiscated recordings that her husband had made of the previous incident involving officer Busic (I struck out this claim with leave to replead and it was not in issue on the appeal).

11 The plaintiff repleaded her claim by a further amended statement of claim dated 7 August 2015. That statement of claim contained a repleading of the claims arising from incidents 13, 15 and 17 and the claim said to arise out of the incident involving officer Busic on 2 June 2010. The repleaded statement of claim also added a fresh claim in respect of an officer Davies in respect of an incident on 6 March 2013.

12 The proceeding came before me for directions on 7 September 2015 and at that time the defendants consented to the addition of the new claim, without prejudice to their right to object to the pleading of the claim. The defendants took objections to other aspects of the further amended statement of claim dated 7 August 2015 and the directions hearing was adjourned to allow them to communicate those objections to the plaintiff and for her to consider them.

13 Over the next few months there were a series of adjourned directions hearings - on 19 October 2015, 7 December 2015 and 14 December 2015 - to allow time for further negotiation between the parties. The Court was appraised of the state of these negotiations by affidavits filed by the parties. Throughout this period the defendants consistently maintained that the claims turning on an alleged failure to investigate, being the re-pleaded claim arising out of incident 15 and an aspect of the claims arising from incident 16, were not sustainable in law. The plaintiff did not accept this proposition but did accept some other pleading objections put by the defendants.

14 The plaintiff redrafted her proposed further amended statement of claim in a document dated 14 October 2015 and then again in a document dated 30 November 2015. It is the proposed further amended statement of claim dated 30 November 2015 ('Proposed FASOC') which she now seeks leave to file. As early as 19 October 2015, the area of dispute between the parties in relation to the plaintiff's Proposed FASOC had narrowed to the alleged claims of failure to investigate. The orders made on 19 October 2015 indicate that the defendants took no other objection to the proposed further amended statement of claim, at that time the proposed statement of claim dated 14 October 2015. By letter dated 26 November 2015, the solicitor for the defendants again notified the plaintiff of the basis for their opposition to the claims at paragraphs 14, 15 and 20 of the proposed further amended statement of claim dated 14 October 2015, that they would oppose her application for leave to amend in that form and that they would seek the defendants' costs of doing so.[4]

15 The plaintiff made minor amendments to the disputed paragraphs, paragraphs 14, 15 and 20 of her proposed further amended statement of claim dated 14 October 2015 in her Proposed FASOC, but declined the invitation of the defendants to withdraw those claims entirely.

16 On the working day prior to the proceeding returning before the Court on 7 December 2015 for directions, and at that directions hearing, the defendants flagged that in addition to opposing the plaintiff's application for leave to file and serve her Proposed FASOC, they would also seek that the costs ordered against her by my orders of 18 November 2013 be converted to a gross costs order pursuant to r 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'); that she be ordered to pay that gross sum forthwith; and that pursuant to r 63.03(3) of the Rules the costs be paid prior to the grant of leave to file her Proposed FASOC.[5]

17 The plaintiff filed an affidavit sworn on the morning of 7 December 2015 stating that 'I feel like I am getting blackmailed here from the defendants'.[6] I adjourned the directions hearing for one further week to 14 December 2015 to enable further discussion between the parties.

18 At the directions hearing on 14 December 2015 I made orders that if the parties were not able to reach agreement then they each needed to file a summons making application as foreshadowed by them. The times required in those orders were subsequently extended by consent by orders made on 22 January 2016 and 10 February 2016.

19 Negotiations continued between the parties, in correspondence which was marked 'without prejudice' but the joint privilege in which both parties have subsequently waived. The plaintiff also made an open offer in court at the hearing of these applications. I discuss these offers and counter offers in detail later in these reasons.

20 The disputed paragraphs of the plaintiff's Proposed FASOC are paragraphs 14 and 15 (which relate to the plaintiff's allegation that certain defendants failed to investigate threatening telephone calls made to her or her family) and paragraph 20 which alleges that the State of Victoria, the first defendant, neglected to help the plaintiff and her husband after the plaintiff called 000 in the incident with officer Busic on 2 June 2010. The paragraphs read as follows:

1. The fourth, fifth and sixth defendant in the course of their duty and in employment of the first defendant failed to investigate the threatening phone call/s the plaintiff and her Family were receiving and failed to exercise their duty of care owed to the plaintiff.
2. As a result of the said negligence and failure to investigate the complaint, the plaintiff suffered immediate pain and fear that the threat will not be stopped and will be carried out, and suffered damage and loss and personal injuries.

PARTICULARS

The first complaint was made orally and in writing on or about 26 September 2008, and a copy of the CD Recording was sent to the above defendants. A further complaint and a copy of the recording was again sent to the fourth and sixth defendant in March 2009 via registered post and numerous conversations took place from September 2008 until March 2009.

The defendants failed to take reasonable care of the plaintiff and failed to investigate the threats made to the plaintiff and her family. As a result the plaintiff apprehended imminent harmful and/or offensive contact, and consequently suffered injury, loss and damage.

1. The first Defendant neglected to help the plaintiff and her husband, and the plaintiff suffered panic attack, and feared that she will be killed.

21 The defendants identified by the plaintiff in paragraph 14 are Luke Cornelius, Andrew Gutske and Greg Mason. At the time of the incidents in question, officer Cornelius was an Assistant Commissioner in charge of the Ethical Standards Division of Victoria Police, and officers Gutske and Mason were officers in that Division. The first defendant, to which paragraph 20 relates, is the State of Victoria.

22 Although the burden is on the plaintiff to show that leave should be granted to include these paragraphs, it is helpful to start with the objections taken by the defendants. In short, the defendants contend that the claims of negligence in paragraphs 14, 15 and 20 are not sustainable in law, and would be liable to be summarily dismissed had no leave been required to include them. Leave is required to include them given the past history of the proceeding, and the defendants say that leave should be refused as the prospects of success of the claims are fanciful and not real.

23 In relation to the claims in paragraphs 14 and 15, the plaintiff's say that an 'identical claim of failing to investigate threatening phone calls' was heard and dismissed by Kyrou J (as he then was) in the plaintiff's husband's proceeding on the basis that no duty of care was owed to the plaintiff's husband.[7] The defendants state the principle adopted by Kyrou J in these terms:

A police officer will not owe a duty of care to a particular complainant to investigate his or her complaint of actual or threatened criminal conduct because the imposition of such a duty would be inconsistent with the performance of (the police officer's) public duty to enforce the criminal law which requires (the police officer) to exercise discretion in prioritizing the use of scarce investigative resources in the public interest.[8]

24 In the alternative in relation to paragraphs 14 and 15, the defendants contend that the paragraphs as currently drafted are unintelligible for want of particulars, and so are liable to be struck out; and/or repeat claims made in paragraph 75 of the plaintiff's statement of claim dated 15 May 2012, forming part of incident 11, which claims I dismissed in my judgment of 1 November 2013.

25 In relation to paragraph 20, the defendants contend that the claim would be liable to be summarily dismissed because the State of Victoria cannot be liable directly in tort.[9]

26 The defendants had earlier advised the plaintiff that these were their objections to the proposed paragraphs by letter dated 26 November 2015[10] and by written submissions dated 15 October 2015 for the directions hearing of that date.

27 The plaintiff emphasises that the telephone call in question contained a serious threat against the lives of her children to the effect that the caller was in the backyard and was going to slice her children's throats. She says that there was reference to Victoria Police made by the caller in the conversation. She says that the call was answered by her husband, and the ensuing conversation was recorded by one of her children. Her contention is that the police could have investigated the recording and required the relevant service provider to disclose who made the call. The facts asserted in the particulars to proposed paragraph 15 are that the plaintiff sent or caused to be sent a CD of the recording to the defendants concerned on 26 September 2008, and sent a further copy of the recording to Assistant Commissioner Cornelius and officer Mason in March 2009. She says in her submissions that officer Mason did call her and her husband to say that there would be an investigation into the telephone call but there was no outcome and no further reply.

28 In relation to the contention by the defendants that the proposed claim is barred due to effluxion of time, the plaintiff says that she relies on the failure to investigate from March 2009, which is within three years prior to the issue of her proceeding on 24 November 2011.

29 In relation to the defendants' contention that the claim is bad in law because the police are not under a duty to investigate any particular complaint, the plaintiff does not dispute the correctness of the determination by Kyrou J of her husband's claim of failure to investigate threatening telephone calls. She says her claim is distinguishable. She submits that the critical differences are as follows:

• This is a separate proceeding to her husband's proceeding.

• She wishes to sue different defendants. Her husband's claim was brought against officer Lowerson, who was the sergeant in charge of the local police station. She wishes to bring her claim against different officers.

• The telephone calls in question before Kyrou J were not recorded, while the call in respect of which she wishes to claim was recorded, and the recording was provided to the police.

30 In relation to the proposed claim in paragraph 20, the plaintiff says that she understands that the State is not directly liable in tort, but she has framed the claim as against the State because she does not know the name of the persons she claims failed to provide proper assistance in response to her 000 call. She says that after about 30 minutes to an hour someone from Victoria Police did ring back in response to her call but no proper assistance was given.[11] She informs the Court that she wishes to sue both the person she spoke to when she made the call, and the police officer who responded 30 minutes to an hour later.

Is the claim in paragraphs 14 and 15 already dismissed?

31 In the statement of claim the subject of my judgment in November 2013, the plaintiff had sought to bring a claim to the effect that Assistant Commissioner Cornelius had failed to investigate her complaints in relation to the attempted murder of her and her husband by police officers and failed to prevent threatening telephone calls to her and her family. I identified this claim, which was pleaded at paragraph 75 of the then statement of claim, as arising from 'incident 11'. The particulars included an allegation that the plaintiff and her husband made a complaint about a threat received in a telephone call on 20 July 2008. The particulars also alleged that officers Gutske and Mason had failed to investigate her complaints about threatening telephone calls.[12] Despite the date given in the particulars, the plaintiff acknowledged at the hearing of that application that incident 11 related to early May 2008.[13] In other words, the particulars were incorrect and incident 11 did not relate to the telephone call the subject of the current proposed paragraphs 14 and 15 which was made on 20 July 2008. I found that the claim arising from incident 11 was time barred as it was discoverable more than three years prior to the commencement of this proceeding.[14] The plaintiff's appeal against that determination was dismissed.[15]

32 In the statement of claim the subject of my earlier judgment, the plaintiff had also sought to plead a claim against Assistant Commissioner Cornelius, and officers Gutske and Mason at paragraph 91 to the effect that they had conspired against her and her family and failed to investigate 'the complaints'. What those complaints were was not specified. In her oral submissions at the hearing of those earlier applications, the plaintiff distinguished this claim, which I described as arising from incident 15, from the claim arising from incident 11. She said that incident 15 started in late 2008 and there was no investigation until 2009 or 2010. I struck out paragraph 91 of that statement of claim, with a right to re-plead.[16] That determination and incident 15 were not in issue on the appeal.

33 The defendants contend in opposition to the plaintiff's current application for leave to amend that proposed paragraphs 14 and 15 are the same as the earlier pleaded claim arising from incident 11[17]. The complex history of this proceeding and the lack of clarity in pleading throughout by the plaintiff do make it difficult to identify which claims relate to which incident. However, for the reasons set out above I think the defendants are wrong in this contention and the current proposed paragraphs 14 and 15 are the re-pleaded version of the incident 15 claim, and so the claim which they seek to make has not already been dismissed.

Is the claim sought to be made by paragraphs 14 and 15 time barred?

34 The next issue is whether the re-pleaded claim is time barred. The defendants contend that any claim in respect of failure to investigate arose when the recording of the telephone call was first supplied, which is pleaded to have been in September 2008. As this is more than three years prior to the commencement of the proceeding, they submit that the re-pleaded claim is time barred. In my view, any failure to investigate is arguably an ongoing failure, and so I think the preferable approach in respect of time limitation would be to allow the claim to be brought, at least at this stage, in respect of the later date the plaintiff alleges on which the defendants were provided with the recording of the telephone call. As that date, March 2009, is within the three year limitation period prior to the issue of the proceeding I would not refuse leave to bring the claim on the basis that it was necessarily time barred.

35 The defendants contend that the claim sought to be brought by proposed paragraphs 14 and 15 is bound to fail because as a matter of law the officers in question were not under a duty to the plaintiff to investigate the complaint about the telephone call.

36 The plaintiff is correct in her contention that the claim of failure to investigate threatening telephone calls brought by her husband in his proceeding, which was dismissed by Kyrou J, was different in its details from the claim she wishes to bring, that is the subject of proposed paragraphs 14 and 15. The date of the call in question, the persons who are said to have failed to properly investigate it, and the plaintiff are all different.

37 In Mr Slaveski's proceeding the claim was one of many he brought against officer Lowerson, who was at different relevant periods the officer in charge of Preston police station and Epping police station. Mr Slaveski's claims against officer Lowerson included the claim of 'failing to investigate claims of harassing and unwelcomed [sic] telephone calls'.[18] Kyrou J found that these calls commenced in December 2005 and that Mr Slaveski complained to officer Lowerson about the calls orally on 7 June 2006 and by letter dated 9 June 2006.[19] Kyrou J found that officer Lowerson failed to investigate the complaint in the period available to him which was from 7 June 2006 to 20 November 2006, when Mr Slaveski made a complaint about officer Lowerson's failure to investigate to the Ethical Standards Division.[20] He also found that officer Lowerson had no acceptable reason in that period for not actively considering the merits of the complaint and forming a view as to what steps, if any, he should take to investigate it.[21] In the course of reaching these findings, Kyrou J also discussed the evidence that had been given in relation to the telephone call on 20 July 2008,[22] but it did not form part of his findings in respect of officer Lowerson, because that officer's involvement in investigation ended before that call. As the plaintiff's proposed claim relates solely to that telephone call, I do not think the defendants are correct to assert[23] that it is an 'identical' claim to that brought by her husband against officer Lowerson on 'the same facts'.

38 However, I do accept the submission by the defendants that the conclusion reached by Kyrou J on the law would also apply to the claim that the plaintiff wishes to bring, with the effect that the claim has no real prospect of success. For the reasons which I now elaborate, while I accept the submission I do not think that the path to it is as straightforward as the defendants initially implied.

39 I start with the analysis by Kyrou J. Despite his factual findings against officer Lowerson, Kyrou J dismissed the claim in negligence that Mr Slaveski brought against him for failure to investigate, because he held that officer Lowerson did not owe Mr Slaveski a duty of care to investigate his complaint about the threatening telephone calls.[24]

40 In his judgment, Kyrou J approached the question of the relevant legal principles in two ways. First, he discussed the 'conflicting duties principle' which he distilled principally from two High Court cases, Sullivan v Moody[25] ('Sullivan') and Tame v New South Wales[26] ('Tame'). He identified the principle as being that a duty of care will not be owed by a public authority and its officers to a particular individual where the recognition of that duty would conflict with their public duties.[27] He acknowledged that neither Sullivan nor Tame concerned a member of the public suing a police officer for alleged failure to investigate a complaint of criminal conduct by a third party, but considered that nevertheless the principle of 'conflicting duties' was relevant to that situation. He considered that it followed from that principle that, in general, police officers do not owe a duty of care to a particular complainant to investigate his or her complaint of actual or threatened criminal conduct because the imposition of that duty would be inconsistent with their public duty to enforce the criminal law, which requires the exercise of discretion as to the allocation of scarce investigative resources in the public interest.[28]

41 In addition, Kyrou J discussed the English authorities more directly concerned with the extent to which a police officer may owe a duty of care to a member of the public to investigate an alleged offence. He distilled these authorities into the principle that in all but 'exceptional' cases, police officers engaged in combating and investigating crime do not owe a duty of care to individual members of the public to protect them against harm caused by criminal conduct.[29]

42 The English cases acknowledge that this principle can have harsh consequences in individual cases. In Van Colle v Chief Constable of the Hertfordshire Police[30] ('Van Colle'), for example, the plaintiff had provided the defendants with credible evidence that a known third party, his former partner, whose whereabouts were known, had made specific threats against him and sought to hold the defendants liable for a failure to protect him against a subsequent attack by the partner. The majority of the House of Lords held that the core principle identified above applied to negate the alleged duty of care. They held that the principle served the public interest, although it might appear harsh in the individual case, because it allowed police officers to exercise their judgment about how to best apply their resources.[31] There was a strong dissenting opinion in that case by Lord Bingham of Cornhill.

43 Kyrou J identified Australian cases that have cited or relied on the English core principle with approval,[32] but also two cases where an Australian court allowed a claim against a police officer for alleged breach of a duty of care to an individual complainant to go to trial. These cases are potentially particularly relevant to this application, as they relate to the summary determination of allegations of breach of duty against police.

44 In New South Wales v Spearpoint[33] ('Spearpoint') the plaintiffs alleged that they had suffered loss due to the failure of police to detain a person who was in breach of an apprehended violence order. The New South Wales Court of Appeal dismissed an appeal against the refusal of the judge at first instance to summarily dismiss the proceeding. Ipp JA noted that Lord Bingham in Van Colle had 'expressed a cogent argument supporting the proposition that police could owe a duty of care to a private individual arising out of a failure to arrest or otherwise protect that person from harm.'[34] The other Australian case of this type identified by Kyrou J was a Victorian case, State of Victoria v Richards.[35] In that case, the plaintiff alleged that she was injured when the police negligently used capsicum spray in her vicinity to arrest an offender. As in Spearpoint, the Court of Appeal dismissed an appeal against a refusal by a trial judge to summarily dismiss the proceeding.

45 Kyrou J then applied the two sets of legal principles that he had identified to the facts he had found in relation to Mr Slaveski's allegation that officer Lowerson had failed in his duty of care to Mr Slaveski to investigate his complaints of threatening telephone calls. In relation to the 'conflicting duties' principle, he held that there was nothing to show any special circumstances that warranted the recognition of a duty of care owed by officer Lowerson to Mr Slaveski to investigate his complaints. In reaching this conclusion, he dealt in detail with his factual findings, in particular that there was little that the police could do where the source of calls is traced to a payphone, as was the case in relation to these calls, other than extremely resource intensive surveillance that would have deprived the police of their discretion in the allocation of limited resources. He also took into account that there was an alternative and effective remedy available to Mr Slaveski (changing his telephone number) that he had refused to utilise until the commencement of the trial; that officer Lowerson did not represent to Mr Slaveski that he would investigate the complaint; and that Mr Slaveski knew that officer Lowerson had done nothing about the complaint from August 2006.

46 Kyrou J also considered the application of the principles drawn from the English cases, including the dissent in Van Colle, and reached the same conclusion. He held that the 'public policy' considerations identified in the English cases applied 'with particular force to the circumstances of this case, where the investigation of Mr Slaveski's complaint would have required the diversion of scarce police resources to conduct 24hour surveillance of nine or 10 payphones'[36] If the dissenting opinion of Lord Bingham in Van Colle was to be applied, and in the most favourable way the evidence would allow to Mr Slaveski, then the same result would be achieved, as what Mr Slaveski had supplied to the police did not include the identity and whereabouts of the offender or offenders.[37]

47 For these reasons, Kyrou J determined that 'as a matter of law, officer Lowerson did not owe a duty of care to Mr Slaveski to investigate his complaint about the threatening telephone calls'.[38]

48 In their initial submissions the defendants relied on that conclusion as the principal basis on which leave to include proposed paragraphs 14 and 15 in the plaintiff's Proposed FASOC should be refused. In doing so, however, they did not identify crucial differences between the conclusion reached by Kyrou J in the plaintiff's husband's case and the outcome they seek here. Kyrou J reached his conclusion at trial, after making findings of fact and applying the legal principles to those facts. What the defendants now seek to do is apply that conclusion to a different allegation (although similar in type) concerning a different defendant, a different time period, a distinct telephone call, and potentially other different facts, and to do so before any evidence of those facts has been adduced and any factual findings made.

49 Further, it might have been expected that the principles identified by Kyrou J had been the subject of further consideration since 2010, yet no such cases where identified by the defendants in their initial submissions. I asked my staff to undertake some research to identify any such cases, and invited further submissions from the parties on further cases so identified. The defendants in their Further Submissions[39] submit that the principle adopted by Kyrou J in Slaveski has been applied in subsequent cases, and that, in essence, the position is so clear that it is not necessary for the question as to whether any duty to investigate could exist on the pleaded facts to be determined at trial. The plaintiff has not made any submission on the further cases. She has reiterated the stance she took before and at the hearing that 'the Court should allow my claims to go forward as again every litigant has a right to a fair trial and a Justice at Trial should determine what happens in a case once heard and once all evidence is put forward.'[40]

50 The principal case on which the defendants in their Further Submissions rely is Gesah v Ross and ors[41] ('Gesah'), a decision of Beach J (as he then was) of this Court. The plaintiff in that proceeding was a prisoner who was initially charged with two murders on the basis of DNA evidence, the reliability of which was later called in question resulting in the charges being withdrawn. He brought proceedings in negligence, and some other causes of action, against the individual forensic and police officers concerned. Beach J granted summary judgment in respect of the claims of negligence against the police officers.

51 Beach J distinguished State of Victoria v Richards on the basis that it concerned an alleged act in the course of arrest of a third party, as opposed to the case before him which concerned an alleged duty to a person suspected of crime to investigate that crime with reasonable care. He considered the same authorities that Kyrou J had considered in Slaveski, cited the relevant principles in the same terms as Kyrou J (and indeed cited that case with approval), and applied the principles to the case before him in these terms (here quoted without citation):

In the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct. A duty of care to investigate is not owed by police officers primarily because the imposition of such a duty would be inconsistent with the performance of a police officer's public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of investigative resources in the public interest. So it must also be in relation to the investigation of a suspect or person of interest. The same process of reasoning that denies a victim or potential victim a duty of care equally denies a duty in relation to an alleged perpetrator.[42]

52 Beach J further noted that while the authorities allow for a duty to investigate to exist in exceptional circumstances, neither counsel before him had identified any case in which such exceptional circumstances had been found to exist, and the plaintiff in the case before him had not pleaded any facts that could be said to be exceptional.[43]

53 Beach J applied these same principles in Taha v Shaq Industries Pty Ltd and ors[44] ('Taha'). The plaintiff was the owner of a house that was partially demolished by the second defendant, who had been employed to do that work at another property and attended the plaintiff's property instead in error. Neighbours called the police, and a police officer attended but did nothing further when told by the second defendant that he was authorised to do the work. As pleaded when it came before him on an application for summary dismissal, the statement of claim alleged breach by the police officer of a duty to investigate that assertion of authority. Beach J held that on the pleaded case there was no duty of care owed to investigate what the second defendant had said. Rather than giving summary judgment, however, Beach J struck out the currently pleaded claim and allowed the plaintiff to re-plead it. He did so because he was persuaded that there may be an arguable case that the police officer caused injury or loss in circumstances meeting the description of "on the spot" operational activities. This would bring the case within the line of authority that police officers can be held liable for negligent acts, in particular the infliction of physical injury, done in the course of operational activities, of which State of Victoria v Richards, Zalewski v Turcarolo ('Zalewski') [45] and Gandy v State of Victoria[46] are instances.

54 The defendants in their Further Submissions also rely heavily on the decision of the Court of Appeal of the Australian Capital Territory in Australian Capital Territory v Crowley ('Crowley')[47]. In that case, the Court of Appeal allowed an appeal from a determination at trial that a police officer had breached a duty owed to a mentally ill person who was behaving erratically and was shot, causing serious injury, in the course of attempting to subdue him. Crowley contains a detailed discussion of the English authorities, and the Australian authorities, in particular Sullivan, and identifies the conflict of duties that the imposition of a duty to take care in respect of a particular individual as opposed to the duty to uphold the criminal law generally could impose. However, Crowley also casts doubt on the Victorian cases, in particular Zalewski and State of Victoria v Richards, in which the Court of Appeal declined to overturn Zalewski. [48] I think that in these circumstances care must be taken in the application of Crowley in Victoria.

55 For current purposes, I consider that the principle identified by Kyrou J in Slaveski and endorsed and applied by Beach J in Gesah and Taha is consistent with the Court of Appeal authorities of this state, and applies in this case. In short, in the absence of exceptional circumstances the plaintiff cannot at law show that the police officers of whom she complains in proposed paragraphs 14 and 15 owed her a duty to investigate her complaint about the telephone call of 20 July 2008.

Should the question as to whether or not there was a duty go to trial?

56 The next question is whether the plaintiff should be permitted to take her allegation that such a duty existed in her case to trial, to allow it to be determined, as was her husband's similar allegation, on all the evidence.

57 This Court, and other superior courts, have noted on many occasions that it can be dangerous and so inappropriate to determine the existence of a cause of action in the absence of findings of fact. This very principle was noted and applied by the Court of Appeal in State of Victoria v Richards, the Victorian case noted by Kyrou J, where it was held appropriate that the determination as to whether the defendant police officers owed the plaintiff a duty of care should go to trial, and not be determined summarily. Redlich JA, with whom Nettle JA and Hansen AJA agreed,[49] quoted Kirby P in Wickstead v Browne[50] to this effect:

Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellate courts, including this Court, will usually require evidence to be adduced and a trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold.

58 The principle as thus stated and affirmed in State of Victoria v Richards has been endorsed in many subsequent cases in this Court where summary dismissal has been sought and refused. [51] In my view, it is not appropriate to refuse leave to include the claim sought to be made by proposed paragraphs 14 and 15 purely on the basis that in respect of a similar claim brought by the plaintiff's husband in his proceeding Kyrou J held that there was no relevant duty of care imposed on the then defendant to investigate. That decision was reached at trial, after evidence of the facts and findings on those facts.

59 Gesah and Taha are, however, examples of the application of the principles as stated by Kyrou J and reiterated by Beach J before trial. Those decisions endorse the legal principles which Kyrou J applied, in particular that in the absence of exceptional circumstances a police officer is not under a duty owed to an individual to investigate a complaint by that individual of criminal action against him or her. In each of those cases, Beach J held that summary judgment for the defendant police officers should be given in relation to claims of alleged failure to investigate because no such duty was shown on the pleaded facts. In Taha, he did allow the plaintiff to re-plead as it was possible that her case could be brought within the line of authority relating to the existence of a duty to take reasonable care in execution of a particular operation. Gesah and Taha lend powerful support to the defendants' case that, if proposed paragraphs 14 and 15 were allowed to be pleaded, the claim would necessarily fail on a summary judgment application because it has no real prospect of success, and so leave should not be granted.

60 In my view, on the basis of the principles identified in Slaveski, Gesah and Taha, leave should not be given for the inclusion of proposed paragraphs 14 and 15. I accept the submission of the defendants in their Further Submissions[52] that there is nothing pleaded in those paragraphs or elsewhere to show any exceptional circumstance that may take the plaintiff's claim out of the ordinary rule that police officers are not under a duty to investigate a particular allegation of criminal conduct.

61 Indeed, the pleaded case is seriously lacking in relevant facts. The date of the call is identified, but not its contents. Nothing is pleaded as to whether the caller, or his or her whereabouts, could have been identified. The plaintiff does not plead what she contends these defendants could have and should have done, but did not, in response to her complaint. 'Numerous conversations' are said to have occurred, but their content, if relevant, the dates on which they occurred and between whom they occurred are not pleaded. The defendants are identified, but no facts are pleaded to show, if this is the plaintiff's case, that those police officers as members of the Ethical Standards Division were under a duty to investigate that may not have applied to other police officers. In short, there are no facts pleaded which could show exceptional circumstances by reason of which a duty on these defendants to investigate this call in respect of this plaintiff might have existed.

62 In reaching my conclusion that leave should be refused to include proposed paragraphs 14 and 15, I have made some allowance for the fact that the plaintiff is not legally represented. For this reason I have had regard, in addition to her pleaded claim, to the affidavit filed by her in support of her application[53]. That affidavit fleshes out the pleaded claim to some extent, although it does not cure all the deficiencies I have identified in the pleaded case. I have also had regard to the evidence in relation to the call received on 20 July 2008 that was given in the plaintiff's husband's proceeding, and the findings made by Kyrou J relation to it.[54] I have done so because of the possible application of the principles of issue estoppel, res judicata or abuse of process to the plaintiff's proposed claim. The findings made by Kyrou J were not directed to failure to investigate that call, but rather to the question whether any of the police defendants in that case, or police generally, made the threatening telephone calls, including the call made 20 July 2008. Kyrou J found that Mr Slaveski's contention to that effect was not proved. If the plaintiff in this proceeding sought to assert that the named defendants were under an obligation to investigate the call made 20 July 2008 because they were officers in Ethical Standards and the call was made by a police officer, then those findings may stand in her way.

63 For the reasons set out above, it would not be appropriate to grant leave to include proposed paragraphs 14 and 15. I will refuse that leave.

64 I have given consideration to whether, by analogy with Taha, a further opportunity should expressly be given to the plaintiff to plead a claim arising from the failure to investigate the call. There is nothing to show that such an opportunity would lead to any different result. The plaintiff has been on notice of the difficulty with her claim for a substantial period and has not sought to replead it to accommodate that difficulty. There is nothing in the affidavit evidence she has filed to suggest that the claim could be brought within the scope of injury occasioned to her in the course of a police operation, as opposed to a failure to investigate. I do not consider that the case that the plaintiff has shown on affidavit she wishes to bring can be pleaded to be maintainable in law.

65 There are two difficulties with the claim as pleaded in proposed paragraph 20. The first is that the plaintiff seeks to bring the claim directly against the State of Victoria. The defendants submit that the State cannot be liable directly in tort. They rely on Richards v State of Victoria,[55] a decision of the Full Court of the Supreme Court, for that proposition. That case was an appeal against a jury verdict that found a teacher had been negligent in failing to take steps to prevent a fight amongst pupils which left a pupil with serious injuries. The State of Victoria was not sued as being directly liable, but as being vicariously liable for the acts of its employee, the teacher. The Court, however, made passing reference to direct liability noting that:

(i)n proceedings in tort under the Crown Proceedings Act 1958, this Court has already held that the liability of the Crown is vicarious only, in the sense that liability does not arise unless it is shown that there has been a breach by a servant of the Crown of a duty owed by that servant to the plaintiff: Hall v Whatmore [1961] VR 225.[56]

66 This principle is reflected in s 23(1)(b) of the Crown Proceedings Act 1958 which provides for the Crown to be vicariously liable for the torts of its servants or agents or an independent contractor in like manner as a subject is liable for the torts of his or her servant, agent or independent contractor.

67 The plaintiff does not dispute that this is the case, but says that she does not know the name of the person who answered her 000 call, or the police officer who later rang back. In court she said that it is those persons against whom she wishes to bring the claim on the basis that they, or one of them, did not provide appropriate assistance. In her affidavit in support she requests that the defendants supply her with the name of the police officer who rang back some time later.[57]

68 If the plaintiff wishes to pursue a claim against either the person who first answered her call or the police officer who later returned the call, or both, the first step is to identify those persons by means available to her (such as, potentially, freedom of information request or pre-action discovery). However, for the same reasons as set out above in relation to the claim sought to be brought by proposed paragraphs 14 and 15, it is doubtful that either of the persons involved in answering and then following up the call, even if identified, would have had in law a relevant duty owed to the plaintiff to provide assistance in any particular way, which if breached could result in liability.

69 I will refuse leave to include proposed paragraph 20.

70 The defendants' written submissions suggest that they opposed the plaintiff's application in its entirety. Counsel for the defendants clarified at the hearing that, subject to their applications directed to payment of past costs, the defendants do not oppose the grant of leave to file and serve the Proposed FASOC, provided that paragraphs 14,15 and 20 are removed and appropriate consequential amendments made. That is the approach that I will make. Subject to the outcome of the defendants' applications, I will grant the plaintiff leave to file and serve the Proposed FASOC, on condition that paragraphs 14, 15 and 20 are deleted and consequential amendments to the numbering and content of other paragraphs and the list of defendants are made.

71 The orders sought as proposed orders 1 and 2 of the defendants' summons filed 5 February 2016 are as follows:

1. The grant of leave to the Plaintiff to file a further amended statement of claim is subject to a condition that the Plaintiff pay to the First Defendant the Defendants' costs the subject of the costs order made by this Court on 18 November 2013, such costs to be assessed as a gross sum costs basis in the amount of $19,000.
2. Alternatively, if leave is granted to the Plaintiff to file a further amended statement of claim, the proceeding against the Defendants is stayed until the gross sum costs in the amount of $19,000 are paid.

72 Each of these proposed orders has two components. The first component as expressed is directed to obtaining payment of past costs as a precursor to the proceeding continuing. The defendants seek either that the grant of leave to the plaintiff to file a further amended statement of claim be subject to payment of their costs, as ordered by me on 18 November 2013, or that the proceeding be stayed until payment of those costs. The immediate difficulty for the defendants is that those costs have not been taxed, and, accordingly there is no fixed sum to be the subject of such a condition, and no currently enforceable judgment for a fixed sum against the plaintiff which she has failed to meet, which failure can be relied on as a basis for a stay. The second component, the proposal that the past costs be fixed by a gross costs order, is directed to curing this difficulty.

73 Although this component is expressed second, logically it is the first matter to be considered.

74 Provision for a gross costs order is included in r 63.07 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). It is important to consider the whole of the rule, which provides as follows:

63.07 Taxed or other costs provision

(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.

(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to -

(a) a portion specified in the order of taxed costs;

(b) taxed costs from or up to a stage of the proceeding specified in the order;

(c) a gross sum specified in the order instead of taxed costs;

(d) a sum in respect of costs to be determined in such manner as the Court directs.

75 It is immediately apparent from this rule, and from the whole of Order 63, that the making of a gross costs order is not the usual procedure by which a quantum is determined in respect of an order that one party pay the costs of another party. The usual procedure by which a fixed sum for the costs liable to be paid is arrived at, where the parties do not agree on the amount, is taxation by a member of the Costs Court, a division of this Court, pursuant to Order 63 of the Rules. The process of taxation requires the party entitled to the costs to prepare a detailed bill of costs, on the scale allowed by the Rules. The other party is entitled to object to items in the bill on the basis that they are not recoverable or on the basis of the amount sought, and the items which are disputed are determined by a costs registrar or other member of the Costs Court.

76 The process of taxation can be costly and time consuming. It is made more complex where the costs sought cover different years, as is the case in relation to the costs in question here, because the cost scales generally increase annually. The task for the parties is also made more complex in this instance because while most of the costs were incurred prior to 1 April 2013 some were incurred after that date. The basis on which recoverable costs are calculated changed from on 1 April 2013. The effect of the transitional provision contained in r 63.90 is that costs incurred prior to 31 March 2013 are to be taxed on the basis that then applied, being (unless otherwise ordered) 'party/party'.[58] Costs ordered to be paid by one party to another party that were incurred after 1 April 2013 are taxed (unless the Court otherwise orders) on the more generous 'standard' basis, being 'all costs reasonably incurred, and of reasonably amount' (r 63.30). These complexities can make taxation more expensive. While there are rules that penalise in costs a party who challenges items in a bill unsuccessfully, the ultimate cost for the successful party may still make taxation an unattractive option if there are limited prospects of recovery.

77 The Court retains a discretion to fix the amount of the recoverable costs on the making of a costs order, but this is most often done where the costs in question are very limited and easily capable of being ascertained, for example the costs of a single appearance. In most other instances, the Court on the determination of a dispute will only make an order determining whether a party is to recover its costs from another party, and, if so, who is to pay whom; but will leave the task of fixing the amount of those costs to the parties, who can always agree on a sum, or to the expertise of the Costs Court. This was the approach that I took in making the costs order on 18 November 2013.

78 There is a further complexity to the fixing of an amount for the costs I ordered to be paid by the plaintiff to the defendants in November 2013. That is that the costs were incurred in respect of interlocutory applications. As part of the changes to O 63 that came into effect on 1 April 2013, the costs rules were changed to insert r 63.20.1 which now provides:

If an order for costs is made on an interlocutory application or hearing, the party in whose favour the order is made shall not tax those costs until the proceeding in which the order is made is completed, unless the Court orders that the costs may be taxed immediately.

79 Most of the costs the subject of the costs order made 18 November 2013 were incurred prior to 1 April 2013, but the costs order itself was not made until after that date. Whether or not r 63.20.1 would apply to the costs the subject of the order if taxation was sought prior to the finalisation of the proceeding was not the subject of detailed argument before me, although the defendants assumed in argument, and assume in their Further Submissions[59], that it does. I have not located any specific transitional provision or authority on the point. It could perhaps be argued that to apply this provision to interlocutory costs incurred before it would be to impermissibly give it retrospective effect. I think, however that the better view is that the rule applies from the date of the order, not from the date the costs were incurred, and so here would apply because the order was made after 1 April 2013. Accordingly, the effect of r 63.20.1 in respect of the costs ordered 18 November 2013 is that if the defendants wished to tax those costs prior to the finalisation of this proceeding, they must make application for an order permitting them to do so. Such an application can be made after the order itself is made.[60] Delay in the proceeding can be a ground for the exercise of the discretion to grant an order for immediate taxation.[61]

80 At least as at the date of the hearing, the parties had not agreed on a sum for the defendants' costs ordered to be paid by the plaintiff on 18 November 2013. The defendants have not made an application that they be at liberty to tax those costs prior to the finalisation of the proceeding. Rather, they seek by their application to avoid a taxation by a gross costs order, and they seek that I, rather than a member of the Costs Court, fix those gross costs. I turn now to the detail of that application.

81 The evidence in support of the defendants' summons gives an estimate of the defendants' costs incurred in respect of the defendants' summons filed 4 June 2012 and the plaintiff's summons filed 30 October 2012 calculated by the solicitor for the defendants. On what he describes as a conservative basis the defendants' costs of both summonses would be $76,912 inclusive of GST.[62] The order of 18 November 2013 ordered the plaintiff to pay 50% of the defendants' costs of both summonses.[63] Accordingly, on the estimate given by the solicitor for the defendants the amount the plaintiff is liable to pay pursuant to the order of 18 November 2013 is $38,456. The defendants seek that in lieu of taxation, the Court fixes the costs recoverable by way of gross costs order in the sum of $19,000 i.e. less than half that sum. Counsel for the defendants says on instructions based on the experience of his instructors that it the costs went to taxation they would likely recover considerably more than this, and potentially in the range of 70% of 50% of the defendants' costs.

82 The plaintiff makes no comment on the appropriateness of the sum sought, $19,000. She asserts on oath[64] (without corroborating evidence or detail) that she cannot pay that amount, and so if payment of it is made either a condition of the grant of leave or a requirement for the proceeding to progress, the proceeding will be effectively permanently stayed and she will be denied the opportunity to have her case heard. In answer to a question from me during the hearing about evidence in support of this contention, she said from the bar table that she was on Newstart of $535 per fortnight and was looking for work. There is no evidence or submission as to her asset position, and the defendants said that they had not undertaken any searches in that regard.

83 In addition to the costs I ordered that she pay, the plaintiff was also ordered by the Court of Appeal to pay the then defendants' costs of her application for leave to appeal my orders and the appeal.[65] The defendants have estimated the recoverable amount of the costs as ordered by the Court of Appeal in the sum of $143,439.[66]

84 The plaintiff is also liable as her husband's litigation guardian for certain costs arising from his proceeding.[67] I was informed by counsel for the defendants at the hearing that the costs for which the plaintiff is liable as her husband's litigation guardian may exceed $500,000 and that the defendants had not at that stage sought to tax those costs, or the costs for which she is directly liable arising from the appeal to the Court of Appeal from my orders.

85 Thus it is apparent that the total sum, once fixed, for which the plaintiff will be liable arising out of this proceeding to date and her husband's proceeding is likely to be very considerable, and to far exceed the amount currently sought by the defendants, which is only in respect of the past interlocutory costs in this proceeding.

86 The principles that this Court should apply in the exercise of the discretion conferred by r 63.07(2)(c) were first authoritatively stated by a judge of this Court in Sunland Waterfront (BVI) Ltd v Prudential Investments Pty Ltd (No 3)[68] ('Sunland'). In Sunland Croft J adopted the analysis of the principles to apply that was formulated by Sackville J in respect of the equivalent provision of the Federal Court Rules as follows (here quoted without citations):

The clear object of rule 63.07 of the Rules is, in my view, similar to the object of the corresponding Federal Court rule, as discussed by Sackville J in Seven Network Limited v News Limited, as follows:

(i) The purpose of the subrule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum v Johnson (No 2), at 120, per von Doussa J, applying Leary v Leary [1987] 1 All ER 261; Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, at 742 [21] per Giles JA.

(ii) An order that costs be assessed as a gross sum does not envisage that any process similar to that involved in taxation should take place. On the contrary, the Court applies a much broader brush than would be used on a taxation of costs pursuant to O 62: Beach Petroleum v Johnson (No 2), at 120, 124, per von Doussa J; Harrison v Schipp, at 743 [22], per Giles JA.

(iii) The Court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable. The Court should be astute to avoid both overestimating the recoverable costs and underestimating the appropriate amount, for example by applying an arbitrary discount to the amounts claimed: Beach Petroleum v Johnson (No 2), at 123, per von Doussa J.

(iv) Although the power to assess a gross sum for costs involves the exercise of a discretion, it is necessary to bear in mind fundamental principles applicable to an assessment of costs on a party and party basis. These include the principles contained in O 62 r 19 (embodying the 'necessary or proper' test) and those stated in Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470, at 478, per Barwick CJ (on a party and party taxation the emphasis is upon obtaining adequate representation to enable justice to be done, not upon the propriety of steps taken to ensure maximum success in the cause): Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1, at 4-5 [12]-[15], per O'Loughlin J; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629, at [6]-[8], per Mansfield J.

(v) Although the methodology permitted by O 62 r 4(2)(c) initially involves a broader approach than on a normal taxation, the provisions of O 62 and Sch 2 provide assistance in fixing an appropriate gross sum: Charlick Trading Pty Ltd v ANRC, at [10], per Mansfield J.

87 In Sunland Croft J made an order that the plaintiffs pay the defendants' gross costs on an indemnity basis and referred the quantification of those gross costs to the Costs Court for determination. Subsequently, Wood AsJ assessed the gross costs in sums that in total exceeded $ 6 million.[69] In another case where Croft J was also the trial judge, ACN 074 971 109 (as trustee for the Argo Unit Trust) & Pegela Pty Ltd v National Mutual Life Association of Australasia Ltd [70] he referred the whole of the application for a gross costs order to the Costs Court, and Wood AsJ refused the application.[71] In that judgement, which I will call Pegela, Wood AsJ referred with apparent approval to the analysis by one of the parties before him of a number of propositions in addition to those previously identified by Croft J in Sunland.

88 Wood AsJ also made the following comment of relevance in Pegela:

It is a given that the quantification of costs is invariably the result of a full taxation if the parties do not resolve the matter. A precise figure that represents the liability of the losing party is then arrived at in the taxation process. A gross sum is, just that. It is not arrived at with the same rigour and precision. It is a rare event when an unsuccessful party is not afforded the opportunity to participate in a full taxation. As the cases make clear there needs to be sufficient justification for the less precise option to be adopted, and the application of arbitrary discounts is not permitted if a gross sum exercise is selected as the option of quantification.[72]

89 Sunland and Pegela were both cases where the costs were enormous.[73] Both of those cases concerned complex litigation conducted until determination at trial. Those factual instances of the grant or refusal of a gross costs order are entirely dissimilar to the situation presented by the defendants' application.

90 A case with more parallels to the facts before me is Sheehan v Michael Brett-Young and Ors (No 4)[74] ('Sheehan No 4'). The plaintiff in that proceeding is or was an Australian legal practitioner. He brought proceedings against multiple defendants alleging an error in the issue of a certificate by the Law Institute of Victoria, the error being the assertion that he did not hold a practising certificate for the period commencing 1 July 2008 and ending 29 April 2009. On the strength of that information, the plaintiff was charged in April 2009 with a number of charges of engaging in legal practice without a practising certificate and related charges. All the charges were later withdrawn.

91 The plaintiff brought a proceeding seeking damages against a number of defendants, including authorities that regulate the legal profession and the State of Victoria as vicariously liable for the acts of the police in laying the charges. His proceeding came before Justice John Dixon and another judge on a number of occasions on pleading issues. In Sheehan No 4 John Dixon J (henceforth 'Dixon J') refused leave to the plaintiff to file and serve an amended statement of claim on all of the Law Institute of Victoria, an employee of the Legal Services Commissioner, and the State of Victoria. Dixon J then gave summary judgment for the defendants because he concluded, having regard to the history of the proceeding, including a number of opportunities afforded to the plaintiff to revise his pleading, that the plaintiff was not reasonably able to prosecute the claims he proposed.

92 The State of Victoria had made application to Dixon J for a gross sum costs order in respect of interlocutory costs ordered in its favour on previous occasions. Dixon J held that it was unnecessary to consider that application given that he had dismissed the proceeding, and made an order that the plaintiff pay the State's costs of the proceeding. There is no indication as to whether the State sought to avoid taxation of those costs by seeking a gross costs order. Other defendants, described in the judgment as the 'regulatory defendants', did, however, do so. In determining that application, Dixon J recited the statement of principles by Croft J in Sunland and also the statement quoted in the preceding paragraph by Wood AsJ in Pegela with approval. He also adopted the propositions that Wood AsJ had drawn in Pegela from submissions and cited them, with some additions, with approval. As stated by Dixon J those additional propositions are as follows:

(a) Complex cases are especially suitable for the application of the rule, particularly cases where it is the taxation that would be complex.

(b) The discretion can be exercised at any stage of the proceedings, or after the conclusion of the proceedings, and even where orders previously made envisage that costs would be taxed.

(c) There may be occasions on which the judge will make a discount on the figures produced to him, although there is no statutory obligation to do this and care should be taken not to cause injustice to the party entitled to costs. The cases reveal significant variation in gross sum costs orders allowed as a percentage of the sum claimed.

(d) Where the liability for costs may be expected to be large and a taxation complex and expensive, the financial position of the party liable is a matter relevant to be taken into account in exercising the discretion.[75]

93 After this review of the authorities, Dixon J made the order for gross costs of the proceeding sought by the regulatory defendants. In doing so he relied on the evidence of an experienced costs consultant. He fixed the costs of the regulatory defendants of the proceeding in the sum of $114,824.67. Dixon J also followed this approach in a subsequent case, Butler and Ors v JSL Racing Pty Ltd and ors[76] ('Butler'), in which he fixed the gross costs of a proceeding finalised a year and a half earlier in the sum of $70,000.

94 Sheehan No 4 and Butler are clear examples of the Court making a gross costs order and going on to actually fix those gross costs where the costs are comparatively modest and the litigation not complex. Indeed, Dixon J expressly noted in Sheehan No 4 that the taxation would not be complex. In these respects, Sheehan No 4 is a departure from previous instances of a gross costs order where the order was considered appropriate or potentially appropriate because of the complexity of the litigation, which in turn had generated very significant costs and would likely generate a significantly costly taxation. It is more similar to instances of the Court that determines a matter itself fixing the quantum of the costs ordered to be paid, rather than sending the issue to taxation.

95 In his summary of the factors he had considered in reaching his decision, Dixon J identified the following particular factors:

• The quantum of costs was modest and so '(t)he prospect of the costs of a taxation being a substantial proportion of the costs cannot be discounted.'

• He had the benefit of expert evidence that 'informed the process of gross sum assessment in a principled way'.

• The plaintiff's financial position suggested that 'the costs debt may not be recovered let alone the costs of taxation and there may be a motive for delay and expense in the taxation process'.

• The burden on court resources of a taxation is also important.

• As against these factors, 'the plaintiff loses the opportunity to secure a precise and rigorous assessment of his costs liability'.[77]

Application of the legal principles to these facts

96 I now apply the principles set out in the previous section to this application.

Amount sought compared to the costs of taxation

97 The costs in dispute here are even more modest than those in contention in Sheehan No 4 or Butler. Accordingly, the first factor identified above by Dixon J in Sheehan No 4 also applies here. Indeed, it may apply to an even greater extent because the costs in question here are interlocutory costs, and so if a gross costs order is refused and the defendants wish to obtain an enforceable order for the recovery of their costs prior to the determination of the proceeding then they must also apply for an order to allow them to do so.

98 There is no evidence before me as to the likely cost of taxation, or the likely costs of such an application, but viewed together I think it likely that those costs could approach the amount sought by the gross costs order, if both the application and the taxation were opposed. As I discuss below, I find that the plaintiff has refused reasonable offers to date in respect of the disputed costs, and so an application to tax now and the consequent taxation, if that application is allowed, may well both be opposed. Thus, there is a real issue of disproportion, if a gross costs order is refused.

99 In relation to the capacity to pay, including the costs of a taxation, the plaintiff herself says that she cannot pay. I will assume that to be the case, although she has not produced any documentary or other evidence to corroborate her assertion. The facts that the defendants will likely be required to incur further costs before they can obtain an enforceable order in respect of the past costs, if their application for a gross costs order is refused, coupled with the limited prospects of recovery of any of these costs, support the making of a gross costs order.

100 The defendants also rely on statements that the plaintiff made in her husband's proceeding after Kyrou J pronounced the costs orders which affected her, as well as her husband, in support of their submission that she would not, in any event, voluntarily meet the costs orders. The plaintiff then said:

The defendants will never get costs from me unless that police officer that threatened my children that they're gunna slice their throats - until we - until we stop the proceedings I will never pay them nothing, Your Honour, so, let it be. I can- even if I get charged I'm telling in open court they'll never get a cent from me, Your Honour... [78]

101 The defendants rely on the fact that this proceeding has been on foot since November 2011 but has not progressed beyond disputes about pleading. The implication of their submission is that this is due to delay at the hands of the plaintiff.

102 Further, the defendants submit that the plaintiff's motive in protracting this proceeding is to avoid her liability for costs as litigation guardian in her husband's proceeding, Slaveski. That would be speculation save for the fact that the plaintiff herself in the correspondence she has exhibited to her affidavit[79] and in her open offer in court has linked the question of costs in Slaveski and the continuation of this proceeding. The offer she made in court was that she was still prepared to 'settle everything' including the costs awarded against her as litigation guardian for her husband in his proceeding.

103 The course of the parties' negotiations in shown by the correspondence between them. The plaintiff and Mr Jones for the defendants have each exhibited to their respective affidavits the communications that they respectively sent to the other. That correspondence was all marked 'without prejudice' when sent, and settlement negotiation privilege pursuant to s 131 of the Evidence Act 2008 (Vic) is a joint privilege. Accordingly, I can only take that correspondence into account if both parties have consented to its use in these applications or another of the exceptions set out in s 131(2) applies. As noted both parties have put into evidence their own 'without prejudice' communications. Neither has objected to the replies from the other party also being put into evidence. The plaintiff repeated her offer in court and the defendants in response to a question from me confirmed that they also consented to the communications going into evidence. Further, the correspondence is relied upon in relation to costs. Accordingly, I conclude that the exceptions contained in s 131(2) (a), (c), and (h) and/or (e) and (g) apply and I am entitled to rely on the whole of the settlement correspondence in evidence.

104 By letter dated 10 December 2015,[80] the defendants offered to withdraw their applications for a gross sum costs order and a stay of the proceeding until those costs are paid, and consent to the plaintiff's application to file the Proposed FASOC provided she withdrew paragraphs 14, 15 and 20 and made consequential amendments to the schedule of parties and to paragraph 31. The defendants, however, reserved their rights in this offer to enforce in the usual manner any costs order made in their favour against the plaintiff in the future, including the taxed costs of the costs order I had made on 18 November 2013, and also to recommence any application for a stay pending payment of costs should the plaintiff's actions unreasonably cause the defendants to incur further interlocutory or appeal costs.

105 The plaintiff refused the offer on the basis that her position was that if she were to withdraw paragraphs 14, 15 and 20 of her Proposed FASOC then the defendants should agree to not enforcing any costs order until the end of the trial.[81] She added that if the defendants claimed a right to enforce future costs orders she should have the right to reinstate the paragraphs in question. This statement shows a complete misapprehension of the legal position - if the paragraphs in question are without legal foundation, the plaintiff could not obtain a right to reinstate them if the defendants sought to enforce a costs order the Court had made in their favour.

106 After the timetabling orders made on 14 December 2015, the negotiations between the parties expanded to include other costs. The defendants made an offer to the plaintiff by letter dated 23 December 2015 in relation to the costs awarded to them arising from the appeal, which was to accept $86,000 in full settlement of the costs, which they estimated at $143,439. The plaintiff responded by email of 30 December 2015.[82] She put two proposals. By the first, she offered to withdraw the paragraphs to which the defendants objected (14, 15 and 20) in return for them withdrawing their foreshadowed applications for gross sum costs and a stay. This would have been a belated acceptance of the proposal put by the defendants on 10 December 2015, save that the plaintiff also proposed that the defendants agree not to seek any other costs until trial. The plaintiff's second proposal in her email of 30 December 2015 was her offer to withdraw the whole of this proceeding if the defendants agreed not to pursue her for their legal costs in her husband's proceeding.

107 The defendants put a counter offer by letter dated 20 January 2016.[83] That counter offer was to the effect that the defendants would 'walk away' i.e. bear their own costs of this proceeding, notwithstanding the costs ordered in their favour in November 2013 and by the Court of Appeal in August 2015, if the plaintiff agreed to dismiss this proceeding, withdraw her appeal to the High Court and execute a suitable release and indemnity. The defendants made it plain in that letter that they did not agree to include any costs for which the plaintiff was liable in her husband's proceeding, but stated that they would enter into good faith negotiations in relation to those costs. Negotiations continued, with the plaintiff continuing to propose that she be relieved of responsibility for the defendants' costs of her husband's proceeding as the price of the dismissal of this proceeding.[84] No agreement was reached.

108 The plaintiff does not dispute the questions of the cost of taxation or her capacity to pay. In relation to delay, she makes the fair point that she has not been responsible for all the delay in the proceeding, and, in particular is not responsible for delay occasioned by the delivery of my judgment, and judgment on her subsequent appeal.[85] It must also be remembered that the plaintiff was successful to some degree in that appeal, although that success was outweighed by new arguments put by the defendants on the appeal which were successful.

109 In relation to whether she would pay costs, if she could, the plaintiff says that at the time she made her comments to Kyrou J on which the defendants rely she was angry and 'not thinking straight' and that her comments were motivated by her concern for her children. I accept that what the plaintiff said at that time must be viewed in its context, and that her attitude may have changed.

110 Generally in relation to the defendants' applications and contention that there may be future delay at her hands, the plaintiff says that:

Why should I pay costs to the defendants upfront for my case to be heard. I believe that is not justice.

All I want is to continue with my case in a nice and smooth manner. I do not wish to waste anyone's time and costs. A Judge hearing the Trial should determine who loses or wins.

I have no intention to mislead the court or waste courts and parties time as I have applied to be admitted as an Officer of the Court. I did not study for nothing.[86]

111 I accept that the plaintiff may have the reason she gives to proceed efficiently and co-operate with the defendants in the future conduct of this proceeding. I note, however, that the plaintiff has not taken the opportunity to expressly retract her earlier expressed intention to refuse to pay costs, or to say in this application that she would endeavour to pay costs for which she is liable, subject to her means. On the contrary - the plaintiff's submission is that a gross costs order should not be made prior to trial because she is entitled to have her case heard at trial.

112 Further, I consider that the settlement correspondence that the parties have exhibited is not consistent with the plaintiff's professed desire to not to waste time in the conduct of this proceeding. On the basis of that correspondence, I accept the defendants' submission that at least a significant reason for the continuation of this proceeding to date by the plaintiff is her desire to thereby obtain relief from what would otherwise be her cost liability as litigation guardian for her husband in his proceeding. I infer that the same motivation may apply to the plaintiff's future conduct of this proceeding, including questions of past costs, if an order for gross costs is refused.

113 In reaching this conclusion, I rely on the fact that the plaintiff has declined the opportunity to agree the past interlocutory costs and the Court of Appeal costs in the sums proposed by the defendants; has declined the opportunity to resolve the pleading dispute without immediate cost liability for the past interlocutory costs; and has declined the opportunity to be relieved of the whole of her cost liability in the proceeding if it is withdrawn. She was given the opportunity to withdraw the offending paragraphs without immediate liability for the past costs by the defendants' offer of 10 December 2015. She was given the opportunity to agree on the amount of costs in respect of the Court of Appeal costs by the defendants' offer of 23 December 2015. She was given the opportunity to walk away from the proceeding with no liability for costs at all by the defendants' offer of 20 January 2016. The plaintiff did not accept any of these offers within the time afforded her. Her responses did not express any concern about the amount of costs proposed to be agreed, or respond with any counter amount. Most tellingly, her response to the proposal that the proceeding end with no order for costs, was not that she wished her claims to be heard, but that she also wished to be excused from liability for costs arising from her husband's proceeding.

114 I infer from the nature of her responses that the plaintiff's refusal of the offers put is not because of the strength of her commitment to her claims in this proceeding or disagreement with the amount proposed by way of costs, but because she sought to use the refusal, with the necessary consequence of further delay and cost if the proceeding continues or if a taxation is undertaken, as leverage in her desire to avoid or reduce liability for the costs in her husband's proceeding. This is best demonstrated by the plaintiff's emails following the offer put by the defendants by their letter of 20 January 2016. That offer by the defendants was to entirely bear their own costs of this proceeding if it came to an end, and the issues raised were not further litigated by the plaintiff. It is not appropriate at this stage to make any comment in relation to the defendants' assertion that the prospects of success of any of the plaintiff's claims are very weak. I note only in this application that at least in relation to the amount of costs foregone the offer had significant advantage to the plaintiff. The plaintiff did not accept the offer, for the sole expressed reason that she also wished to be relieved of her liability for costs as litigation guardian for her husband.

115 Further support for my conclusion that the plaintiff may continue to draw out this proceeding unnecessarily appears in the plaintiff's further submission, in which she refers to her letter of 30 December 2015 to the defendants and repeats her assertion that she wishes to 'settle with the defendants' and 'will continue to negotiate until we settle'.[87]

Summary of matters favouring a gross costs order

116 In summary, a number of factors all powerfully support the making of an order that will obviate the need for a taxation of the November 2013 orders. These are that the defendants will be required to incur further and potentially disproportionate costs to recover their awarded costs from November 2013 if the gross costs order is refused; that the costs so taxed may not be recoverable in fact; and that the plaintiff has a motive for further delay. I have, however, three reservations.

Is a gross costs order appropriate in respect of interlocutory costs?

117 First, the costs orders in question are for interlocutory costs. In Sheehan No 4 the costs the subject of the gross costs order were final costs i.e. the costs of the proceeding, although the order arose from an interlocutory application. I have not been referred to, or myself identified, any case where a gross costs order has been made in respect of interlocutory costs. That would not necessarily be a significant matter, if it were not for r 63.20.1. Is the presumption implicit in that rule, that the payment of interlocutory costs should generally await the final determination of the proceeding, applicable to an application for a gross costs order in respect of interlocutory costs?

118 The defendants submit that there is no need for an order pursuant to r 63.20.1 as an order for gross costs, not for immediate taxation, is sought.[88] Technically, this is correct. In r 63.07(2)(c) a gross sum is expressed as an alternative to taxed costs. Similarly, r 63.20.1 in its terms applies only to the taxation of costs. However, I am concerned that the approach that the defendants have taken in seeking a gross costs order rather than immediate taxation could potentially undermine the purpose of r 63.20.1. The purposes of that rule include the following: to limit the cost and burden of multiple taxations in the one matter, which is a cost and burden to the Court as well as to the parties; to allow for the possibility that there may be in the course of a proceeding costs orders that go each way, and so a taxation of one set of costs alone may result in unfairness; and to prevent interlocutory applications being used as a means to exhaust the funds of the opposing party.[89] I note that the default position, that interlocutory costs are not taxed until the end of the proceeding, also allows for the possibility that questions of costs may be overtaken by settlement. Not all of these rationales apply to a gross costs order, as opposed to permitting taxation, but some do.

119 With the exception of the comment in the defendants' Further Submissions, the parties have not addressed me on the relationship between r 63.20.1 and an application for a gross costs order, or as to how the facts on which they respectively rely in relation to the application for, or refusal of, a gross costs order might overlap with, or differ from, the factors that apply to the exercise of the discretion pursuant to r 63.20.1. That discretion must be exercised judicially, and the cases give some illustrations as to its exercise.[90] In the interests of fairness and efficiency, I will allow further submissions on these issues after delivery of these reasons and prior to the making of orders on the current application. Subject to those further submissions, my preliminary view is that a gross costs order should not be utilised if it would avoid the intent of r 63.20.1 and so is only appropriate in respect of interlocutory costs where an order for immediate taxation would otherwise be appropriate.

120 My second reservation is that, unlike the position in Sheehan No 4 or Butler, I have no expert evidence before me of the appropriateness of the amount sought. Costs is a specialist area, and for that reason taxations are conducted by specialists and evidence on security for costs applications or other special cost applications where the Court, as opposed to the Costs Court, is called on to fix a figure, is often given by a costs consultant. The defendants have chosen not to follow that course here. The only evidence in relation to the appropriateness of the amount sought is that of Mr Jones, the solicitor for the defendants. His evidence is that he has reviewed the invoices for professional fees and disbursements which the VGSO has issued to the defendants, which they have paid, and other records of the disbursements. On the basis of those invoices his 'conservative' estimate of the total professional fees and disbursements incurred by the defendants that correspond to the order made 18 November 2013, without the 50% reduction, is $76,912 inclusive of GST. He asserts that an additional amount of approximately $5,000 could be said to properly relate to the summonses the subject of the order.[91] The defendants' evidence as to the costs is the only evidence on the point because the plaintiff has not adduced any evidence, or made any submission, as to whether the claimed costs are properly recoverable, or as to their amount.

121 I am conscious that, according to the principles that I set out earlier, the fixing of a gross costs sum is not to simulate a taxation, but nor is it to ignore the principles that would underpin a taxation. In this case, there is the additional factor that the plaintiff, although not entirely inexperienced in litigation and the law,[92] is not a legal practitioner and so may be unlikely from her own knowledge to be equipped to challenge costs that are claimed. For these reasons, it is not appropriate that I simply accept Mr Jones' evidence at face value, even though it is unchallenged.

122 I have read the 14 invoices for professional fees that Mr Jones exhibits to his affidavit, and perused the invoices for counsel fees exhibited. In large part, that examination supports Mr Jones' evidence that the items charged relate to either the defendants' summons or the plaintiff's summons. However, there are exceptions. Without seeking to be exhaustive, the first invoice dated 11 April 2012 appears to include items for professional costs that relate to the commencement of the proceeding, rather than to the summonses; the invoice dated 13 November 2012 includes items apparently relating to other proceedings; and the whole of the solicitors' costs claimed in the invoice dated 15 January 2014 relate to work done after the orders of 18 November 2003 were made, being work done in relation to the appeal. That work, if compensable, would ordinarily be embraced by orders made in the appeal. By contrast, the counsel fees claimed in that invoice appear, from examination of the invoices for counsel fees, to relate to appearances to obtain the judgment and for work consequent upon it, being perusal of the judgment and preparation of the orders. On balance, I consider the more appropriate course for this application is to deduct the whole of that invoice, in the sum of $4,183.44.

123 The solicitors' time claimed in respect of the items of professional fees in most instances appears at first blush to be modest and the invoices contain entries for items for which no charge is rendered. I have not checked the rate claimed for professional fees, or counsel fees, as against the scale fees then in operation. That is a task that would be undertaken on a taxation. I am concerned, however, that the invoices, on the basis of which the recoverable costs have been estimated, have, as conceded by counsel for the defendants in argument, been calculated on a solicitor/client basis, not on the party/party basis on which costs incurred prior to 1 April 2013 are recoverable. There is no evidence from the defendants as to the likely relationship between the costs they charged to their client and costs that are recoverable on a party/party basis.

124 Further, I am not confident that the defendants have entirely appreciated the basis on which a taxation would be conducted. The defendants gave the plaintiff an estimate of their recoverable costs arising from the orders made 18 November 2013, if those costs were taxed, in the sum of $23,608.[93] This estimate was, however, stated to have been on the standard basis. That is not the basis on which most of the costs would be taxed, because they were incurred prior to 1 April 2013 when the usual basis of taxation was the more restrictive party/party basis. This possible error adds to my unease in simply relying on the estimates given by the solicitors for the defendants, in the absence of any expert evidence.

125 Coupled with this, is the fifth factor that John Dixon J identified in Sheehan No 4, which also militates against a gross costs order. That is that by making a gross costs order, the party liable is deprived of the opportunity of objecting to the claimed costs, or, even if no objection is made, of expert evaluation by a taxing officer of the recoverable costs. This is not something that the plaintiff herself as stressed. As noted, in her opposition to the order the plaintiff has not focused on her rights to seek a taxation. She has opposed the order on the basis that she is entitled to go to trial, not because she disputes the items claimed or their amount.

126 To test the second and third of these concerns, I notionally reduced the total defendants' costs on a solicitor/client basis to $70,000 by removing the invoice dated 15 January 2014 and making some allowance for costs included in the other invoices that may relate to matters other than the summonses. That exercise reduces the claimable costs, calculated as solicitor/client, to $35,000. Experience suggests that party/party costs recoverable prior to 1 April 2013 were usually about two thirds of solicitor/client costs. If that reduction were applied, the costs recoverable would be in the order of $23,000. This does not allow for the fact that costs incurred after 1 April 2013 are taxable on the higher standard basis, which could result in a higher figure.

127 The figure I arrived at by this exercise exceeds the gross costs figure sought and is, in fact, similar to the estimate given to the plaintiff by the defendants. The figure sought by the defendants on this application was arrived at by the defendants applying a 50% reduction to the amount they say is claimable. There is no disclosed rationale for the size of this reduction, but I infer that it is to allay any concern by the Court that the plaintiff might be penalised by a gross costs order. Given the testing I have done of the evidence, as set out above, I consider that it does so.

128 After taking all these matters into account, on balance, I consider that if an order for immediate taxation of the interlocutory costs would be appropriate, then the gross costs order that the defendants seek is an appropriate alternative. As noted above, I will allow further submissions on the appropriateness or otherwise of an order allowing taxation of the interlocutory costs after delivery of these reasons and prior to making orders.

129 A gross costs order is, however, only the first aspect of the defendants' application. The defendants seek that the payment of past costs as fixed by the gross costs order be a pre-condition to the proceeding continuing. They propose two alternative means to this end- first, that payment of the gross costs should be a condition of the grant of leave to the plaintiff to amend her statement of claim (which they say is their primary application), or in the alternative that the proceeding be stayed until the costs are paid.

Payment of costs as a condition of the grant of leave

130 The defendants rely on ss 1, 9 and 49(1)(k) of the Civil Procedure Act 2010 as conferring on the Court power to order payment of costs as a condition of the grant of leave to amend. There is no doubt that the Court has power to order the payment of costs as a condition of the grant of leave. In a proper case, this would fall within the inherent jurisdiction of the Court, the discretion in relation to costs that is conferred by s 24 of the Supreme Court Act 1986 and also s 65C of the Civil Procedure Act 2010. Section 65C(1) provides that:

In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.

131 The 'overarching purpose' is set by s 7 of that Act which provides:

7 Overarching purpose

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by -

(a) the determination of the proceeding by the court;

(b) agreement between the parties;

(c) any appropriate dispute resolution process -

(i) agreed to by the parties; or

(ii) ordered by the court.

132 I accept that in a particular case, it may be appropriate for the payment of past costs to be a condition of an amendment, in order to further this overarching purpose, with particular emphasis on a just outcome as between the parties, and whether the party liable for the costs has been responsible for delay or undue expense. Here the defendants assert that the plaintiff has unreasonably delayed the course of the proceeding and caused the State unnecessary expense.

133 The history of the proceeding is set out in detail in the Third Further Affidavit of Daniel Jones which supports the defendants' summons. The proceeding has undeniably moved slowly. I am not persuaded, however, that it is fair to apportion the whole of this delay to the plaintiff. As noted earlier, she is not responsible for the periods of time required to give judgment after the contested applications before me, and the appeal before the Court of Appeal. I consider that she is, however, responsible for some undue delay and consequent cost since the orders made by the Court of Appeal. I elaborate this conclusion as follows.

134 The orders of the Court of Appeal required her to redraw her statement of claim by 10 July 2015. At her request, the defendants agreed to extend this time to 7 August 2015. The plaintiff complied with that extended time. The document she prepared, a proposed further amended statement of claim dated 7 August 2015, included the claims that later became paragraphs 14, 15 and 20 and was objectionable in other respects as well. The defendants then occasioned some delay by their failure to attend at the directions hearing scheduled for 24 August 2015. That directions hearing was adjourned to 7 September 2015, and the parties consented to a further adjournment to 19 October 2015 to allow the defendants to communicate their objections in writing to the plaintiff. They did so by letter dated 29 September 2015.[94] Shortly prior to the matter next coming before the Court, the plaintiff notified the defendants that she had accepted all their objections, save for the objection to what is now proposed paragraph 20. In fact, her proposed further amended statement of claim dated 14 October 2015 also still retained the claims that now appear in paragraphs 14 and 15.

135 By my orders of 19 October 2015 I noted that the parties were now in agreement, save for paragraphs 14, 15 and 20, and that the defendants had supplied the plaintiff with the authorities on which they relied for their objections to those paragraphs, and that the plaintiff would consider them. I ordered her to notify the defendants by 16 November 2015 if she agreed to withdraw the paragraphs. The plaintiff informed the defendants by her email of 16 November 2015[95] that she did not agree to remove the paragraphs. The defendants reiterated their objections to those paragraphs in a further letter to the plaintiff dated 26 November 2015.[96] The plaintiff did not change her view in response- the proposed FASOC for which she now seeks leave, dated 30 November 2015, retains paragraphs 14, 15 and 20 with only minor changes to the form in which they appeared in her proposed further amended statement of claim dated 14 October 2015. There was further ventilation of the defendants' objections at and pursuant to two further directions hearings, on 7 and 14 December 2015, that did not result in withdrawal of the paragraphs.

136 The defendants' letter of 26 November 2015 succinctly and clearly spelt out their objections to those paragraphs. The plaintiff did not give her reasons for the minor changes that she made to the paragraphs in the Proposed FASOC, but it may be that the changes to paragraphs 14 and 15, which gave greater focus to the particular call made 20 July 2008 and the time at which a recording of it was supplied for the second time, were directed at some aspects of the objections made by the defendants. The changes did not, however, go to the real heart of the objections, which was in the case of paragraphs 14 and 15 that there was no duty to investigate the plaintiff's complaint, and in respect of paragraph 20 that the State could not be sued directly in tort.

137 In this application for leave to file the Proposed FASOC, necessary only because the plaintiff did not agree to withdraw the offending paragraphs, I have accepted the defendants' objections. I do so after a more lengthy process of reasoning and after consideration of further authorities than the defendants' letter alone might suggest was necessary. Nevertheless, I consider that the plaintiff was sufficiently equipped with the nature of the objections, and the authorities on which the defendants relied, by 30 November 2015 to reach a reasonable view about the objections. If she had withdrawn those paragraphs then the proceeding could have continued from 30 November 2015, as the defendants did not otherwise object to her Proposed FASOC, without the applications subsequently filed and the delay and cost thereby occasioned. Accordingly, I consider the plaintiff responsible for undue delay and cost occasioned in the proceeding, but only from 30 November 2015 to the hearing of the applications on 4 March 2016, and the costs incurred in relation to further submissions.

Connection between the plaintiff's current application and past costs

138 The matters I identify above relate directly to the costs of the current applications. In relation to the plaintiff's application, they may be sufficient reason to depart from the usual position established by of r 63.17, that costs of and occasioned by an amendment and the costs of an application for leave to amend are the parties' costs in the proceeding. That is a matter on which I will hear the parties in due course.

139 The fact that the plaintiff has occasioned cost and delay in relation to her current application for leave to amend does not, however, have any obvious causal connection to her liability for the past costs. Nor have the defendants sought to identify such a connection. I would have thought that ordinarily such a connection would be necessary.

140 Further, the defendants did not seek to draw any connection between the plaintiff's refusal to withdraw paragraphs 14, 15 and 20 and the earlier costs order in their favour against her until immediately prior to the directions hearing on 7 December 2015. The plaintiff says that the defendants had not at any prior time sought to enforce the November 2013 costs against her, and that statement is unchallenged. Plainly, the State of Victoria, who is paying the costs of all defendants, does not need payment of the costs to allow their further defence of the proceeding, although ultimately taxpayers will bear the costs if the plaintiff does not. The time at which the defendants first raised the costs issue, and the absence of earlier request, suggest that the real link is exasperation on the part of the defendants at the plaintiff's intransigence on the contested paragraphs.

141 The plaintiff goes further. She says that she feels blackmailed by the defendants' application, and submits that she is entitled to have her claims go to trial without enforcement of costs orders before that time.

142 I do not consider that blackmail is an appropriate characterisation of the defendants' application. It may be the case that the defendants sought to use the threat of this application as a negotiating tool in their quest to secure the withdrawal of the objectionable claims. The defendants' letter of 10 December 2015 which offers to withdraw the application if the paragraphs are not pressed certainly supports that inference, and I conclude that that was the defendants' intention.[97] I have found, however, that the plaintiff has also sought to use aspects of her claim, being the inclusion of the paragraphs, and potentially the whole proceeding, in her quest to be relieved of liability for costs arising from her husband's proceeding.

143 The parties have chosen to reveal that each has negotiated hard. The difference is that the defendants have a current entitlement to the lever they have sought to utilise, being past costs ordered in their favour. They are entitled to seek to enforce that entitlement by seeking to fix the amount recoverable. The fact that they have not done so until now does not make it illegitimate to now do so. By contrast, the plaintiff does not have an existing entitlement in respect of the lever she has sought to use, being continuation of the proceeding with the objectionable paragraphs. Her entitlement to an award from the defendants is a potential one only, if this proceeding is successful, and there is no basis in law for the claims sought to be made by the objectionable paragraphs. Further, the plaintiff has delayed the progress of this proceeding by inappropriately insisting on retaining those claims to secure relief not just from her obligations to pay costs in this proceeding, but also her obligations to pay costs in her husband's proceeding.

144 Although the defendants have not sought to draw it, there is, on analysis, some connection between the grant of leave to amend and the past costs orders. That connection is that the need or desire to amend arises at least in part from the orders that I made in November 2013 and the subsequent orders of the Court of Appeal. The combined effect of those orders is that of the plaintiff's original claims, only the claims made in respect of incident 16 survived unscathed. The claims sought to be made by incidents 13,15 and 17 were struck out and so if the plaintiff wishes to rely upon them, she is required to re-plead them. In addition, of course, the plaintiff has added new claims, without objection from the defendants. Because aspects of the proposed new statement of claim were the subject of sustained objection, I required the plaintiff to make application for leave to amend, rather than merely rely on leave to re-plead given by my orders of 18 November 2013 and the orders of the Court of Appeal of 10 June 2015.

145 The exercise of determining what has survived the various strike out and summary dismissal orders made, coupled with later concessions by the defendants in relation to new claims, would be a complex one. To reach a completely concluded view, I would need to hear further from the parties. What this analysis shows is that in any event the imposition of a condition of the payment of the past costs on the grant of leave to amend will not have the effect of ending the proceeding if the condition is not met. At a minimum, the proceeding could continue in respect of the claims made in respect of incident 16, or possibly those claims and the claims later added without objection.

146 Given the complexity of the proceeding to date, with the attendant cost and delay for the parties, and burden on the Court, I consider that if it is appropriate for the plaintiff to be required to meet her past costs liability now, it should be as the price of continuing with her proceeding at all. For these reasons, I think the more appropriate avenue would be a stay. I now turn to that issue.

147 The defendants' alternative proposal is that the Court make an order pursuant to r 63.03(3) of the Rules that the proceeding is stayed until payment of the gross costs. Rule 63.03 provides as follows:

63.03 Time for costs order and payment

(1) The Court may, in any proceeding, exercise its power and discretion as to costs -

(a) at any stage of the proceeding; or

(b) after the conclusion of the proceeding.

(2) Costs which a party is required to pay under any of these Rules or an order of the Court shall, unless the Court otherwise orders, be paid forthwith.

(2.1) Costs which a party is required to pay under an order of the Costs Court shall, unless the Costs Court otherwise orders, be paid forthwith.

(3) Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so -

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant's defence shall be struck out.

(4) In paragraph (3) -

defendant includes any person against whom a claim is made in a proceeding;

plaintiff includes any person who makes a claim

148 In Gao v Zhang[98] the Court of Appeal emphasised that the power to order a stay conferred by r 63.03 (3) should be exercised sparingly, and in particular should not be used as a routine means of debt collection.[99] I analysed Gao v Zhang in detail in Rozenblit v Vainer and anor (No 3),[100] ('Rozenblit'). I rely on that analysis in this application. In Rozenblit I granted a stay in the proceeding pending payment of past interlocutory costs, which had been agreed at taxation, notwithstanding the then plaintiff's contention that as he did not have the capacity to pay the costs, the stay would effectively bring the proceeding to an end. I held that Gao v Zhang established two essential requirements for the exercise of the power to grant a stay. First, that the reason for the exercise of the power must be 'serious', and the exercise of the power is 'the only practical way to ensure justice between the parties'. Secondly, that if an order for stay is to be made, 'there must be seen to have been some conduct on the part of the party in default which falls for condemnation to the extent of making so draconian an order'.[101]

149 I also noted that Gao v Zhang should be seen in its historical context, in particular that at that time interlocutory costs could be routinely taxed prior to the finalisation of the proceeding, without the extra precaution of an order for immediate taxation being required. This meant that the Court needed to be vigilant to guard against abuse of the power conferred by r 63.03(3).

150 My analysis of Gao v Zhang and other cases, and the order I made in Rozenblit, were affirmed by Cameron J on appeal.[102] Amongst other matters, Cameron J accepted the significance of the fact that now an order for immediate taxation would ordinarily have already been made if non-payment of interlocutory costs was to form the basis of a stay application.[103] That analysis fortifies me in my conclusion, subject to further submissions, that a gross costs order should not be made and then form the reason for a stay, unless an order for immediate taxation could also have been made.

151 I accept that if a stay is ordered, contingent on the payment of the past costs, as fixed by a gross costs order, then although expressed as a temporary stay it may in fact result in the proceeding coming to an end if the plaintiff does not have the resources to pay the costs. This is a very significant factor that weighs against the grant of a stay. Although the same outcome was possible in Rozenblit, I also found that the plaintiff in that case may have some resources on which he could draw, which he had not disclosed, because his proceeding would require substantial expert evidence, and he was represented by solicitor and counsel. There is no basis for such an inference in this case as the plaintiff is unrepresented, represented her husband as litigation guardian without lawyers, and so may well intend to do so for herself in this proceeding. Her case may be assisted by medical evidence, but that is unlikely to be of the same order of cost as the expert evidence that was required in Rozenblit.

152 The plaintiff is also correct in her assertion that ordinarily a plaintiff, particularly an individual as opposed to a corporate plaintiff, is permitted to litigate her claims to trial even if there are outstanding costs orders against her, and even if she has limited capacity to pay those costs. This is not an absolute principle, however, and the Rules provide for the possibility of a stay in an appropriate case.[104]

153 As against these matters, which tend against the grant of a stay, there are significant factors that satisfy the two requirements for the imposition of a stay as determined in Gao v Zhang. Dealing with the second requirement first, I consider that aspects of the plaintiff's conduct fall for condemnation, to the extent of justifying such a draconian order. That conduct also provides serious reason for the exercise of the power, which is the first limb of the first requirement. I have found that at least a significant reason for the plaintiff continuing to press paragraphs to which the defendants had taken legitimate objection was the plaintiff's desire to use it as a negotiating tool in her quest to be relieved of her costs liability arising from her husband's proceeding. It is not illegitimate for parties to seek to negotiate all matters in dispute, including multiple proceedings, between them collectively. However, where the reason for occasioning unnecessary cost and delay to the other party in one proceeding is to secure the release of an obligation owed to that party in another proceeding, the conduct verges on abuse of process. That is my view of the plaintiff's conduct in refusing to withdraw the contested paragraphs. It is a serious reason for the exercise of the power to grant a stay, and conduct that justifies the defendants seeking that the plaintiff pay at least some of her existing cost liability to them in this proceeding, before being permitted to continue it.

154 The grant of a stay must also be the only practical way to ensure justice between the parties, bearing in mind that it may bring the proceeding to an end. In my view, the history of the proceeding and the attitude taken by the plaintiff in the negotiations surrounding these applications have shown that a stay is the only practical way to afford justice to the defendants, at a cost to the plaintiff which is not unjust.

155 The first relevant matter is the history of the proceeding, and the costs thereby occasioned to the defendants, and the likely future costs if it continues to trial. The claims that the plaintiff has wished to bring have been found now on three occasions to be untenable- those occasions being her application for extension of time before me (which was partially overturned on appeal in respect of some claims); her appeal (the defendants being successful in their argument that some surviving claims were an abuse of process); and now in her current application for leave to amend. Certainly some of the plaintiff's proposed claims have survived, but the majority have not. I take into account that in relation to the current proposed version of her statement of claim, the plaintiff has not been entirely unreasonable, and has accepted some objections made by the defendants. However, she has persisted in this application for leave to amend with proposed claims that have now failed despite being sufficiently informed prior to her application of their defects.

156 Thus, viewed overall, the defendants have been required to expend cost on three occasions to arrive at a statement of claim that is arguable. These costs have included the costs of analysis of pleadings drawn by an unrepresented person and ensuring the plaintiff, as an unrepresented party, fully understands the objections taken. If the proceeding continues, the defendants will be required to expend further cost to defend the remaining claims, which may also be inflated by the fact that the plaintiff is not represented. The time taken to arrive at this point, coupled with the delay in commencement of the proceeding, means that if the trial takes place at the earliest possible time, early next year, almost ten years will have elapsed from the earliest surviving claim. This delay has no doubt imposed a personal strain on the individual defendants, as well as the plaintiff. It will make recollection of events and so the adducing of evidence more complicated than in a case that has come to trial more quickly after the events in issue, and so potentially cause extra cost to the defendants. In summary, the defendants have incurred significant costs to date due to the manner in which the plaintiff has conducted the litigation, and will be required to incur significant costs in future even if all now goes smoothly.

157 The costs of the individual defendants are being borne by the first defendant, the State of Victoria. As noted earlier, it can be assumed that the State does not require payment of its costs to allow it to continue with the litigation. This is not the only circumstance in which a stay may be justified, however,[105] and ultimately it is the community that will be required to bear the defendants' costs, if the plaintiff does not.

158 The next relevant matter is whether the usual control on the conduct of litigation, the sanction of costs to be paid at the end of the proceeding, is sufficient protection for the defendants. The history of the proceeding shows that it has not been in the past. The defendants have obtained cost orders in their favour on two occasions prior to this, but those past cost orders have not deterred the plaintiff from pursuing the defective claims the subject of her current application for leave to amend. Nor did the costs orders made against her in her husband's proceeding deter her from commencing this proceeding, and attempting to litigate the same claims again in her own right. The plaintiff is not herself incurring legal costs. Thus it is only the defendants who have suffered to date from conduct for which the plaintiff has been found liable in costs.

159 As noted earlier, the plaintiff's claimed incapacity pay the costs is an important consideration against the grant of a stay pending payment. It is, however, also relevant to whether the potential sanction of costs will be an effective control over her future conduct of the proceeding. If it is the case that, as she contends, the plaintiff does not have the means to pay the existing costs orders, this may also mean that the plaintiff has little to lose in continuation of the proceeding in a manner that results in further costs orders against her. I accept that the plaintiff has reason to prosecute this proceeding in a proper way, given her wish to be admitted as a legal practitioner. However, as noted earlier, given her past conduct I cannot exclude the possibility that she may continue to use this proceeding, or applications within it, to vex the defendants in continued endeavour to obtain the outcome she seeks in the Slaveski proceeding, at cost to the defendants but at limited financial risk to her. Ultimately, she may not be able to pay the defendants' costs of the proceeding even if ordered against her at trial. In short, the plaintiff on her own account is not at financial risk from future costs orders, but the defendants are.

160 In Rozenblit, the plaintiff contended that the defendants were the cause of his inability to meet the costs orders against him. Here, by contrast, the plaintiff has not made that assertion or pleaded that the defendants' actions are the cause of any incapacity or loss of capacity to work, or otherwise a cause of her impecuniosity.

161 Ordinarily, the termination of a proceeding for incapacity to pay would be a cause of significant injustice to a plaintiff. However, here, that potential injustice must be judged against the plaintiff's willingness to abandon this proceeding if she had secured the result that she sought in relation to the Slaveski costs. She filed her application for leave to amend only after that proposal was not accepted. That application was only necessary because of her refusal to withdraw paragraphs 14, 15 and 20 despite the well-grounded reasons for objection to those paragraphs being made known to her.

162 A final matter is that the defendants seek both the fixing of the quantum of costs and the grant of a stay until they are paid in the one application. In other words, there is no opportunity proposed to be given to the plaintiff to pay the costs after they are fixed, prior to the imposition of a stay. I have given thought to whether justice to the plaintiff requires that she be given that opportunity. The plaintiff in Rozenblit had had such an opportunity, as the interlocutory costs there in question had already been the subject of successful applications for immediate taxation, had been fixed prior to the stay application, and unsuccessful attempts had been made at enforcement. The plaintiff's attitude to those attempts was a factor that I took into account in the grant of a stay, and the relevance of that factor was upheld on appeal.

163 Here, by contrast, the defendants had not previously sought to recover these costs at all until the plaintiff declined to remove the offending paragraphs.

164 As set out earlier, unless persuaded otherwise by further submission, I do not think it appropriate to make a gross costs order unless it would also have been appropriate to order immediate taxation. Had that course been taken, there would have been a further interval of time within which the amount of the costs would be fixed on taxation. No such interval of time is proposed in relation to a gross costs order.

165 Nevertheless, I do not think that it would be unjust to the plaintiff to both set the sum of costs by a gross costs order and require payment prior to the proceeding continuing in the one application, without an interval of time being afforded for payment to judge her attitude to payment. This is for two reasons. First, the plaintiff has been aware at least from 4 December 2015[106] of the amount of costs sought, and has on the evidence before me made no attempt to pay them, or put forward any proposal for part or instalment payment. Time for her to absorb the amount she is required to pay is not necessary. Secondly, is in the nature of a stay that it affords time for payment, if that is what she is willing and able to do.

166 For all these reasons, I consider that, if a gross costs order for the past interlocutory costs should be made notwithstanding the presumption that interlocutory costs are not taxable prior to the end of the proceeding, then the plaintiff should be required to pay those costs before the proceeding continues.

167 For these reasons, if on further submission I consider that it would have been appropriate to allow taxation of the interlocutory costs I ordered in November 2013 prior to the finalisation of the proceeding, I will accede to the defendants' application that those costs be fixed by the gross costs order that they seek, rather than taxed, and will stay the proceeding until those costs are paid.

168 The defendants seek that payment of the costs be made prior to the filing and service of the further amended statement of claim, if leave would otherwise be granted for such filing and service. This is the course I took in Rozenblit. In this case, subject to further submission, I think it would be preferable to allow the plaintiff to make the permitted amendments before payment of the costs, but then stay the proceeding until the gross past costs are paid. Given the complex history of the proceeding and the many changes to what is permitted in the statement of claim to date, I think it is probably preferable to settle the permitted statement of claim now, rather than at some future time. Imposing a stay immediately after the filing and service of that statement of claim is intended to protect the defendants against all future costs, including the costs of amended defences. If the parties take a different view on this issue of timing, I will hear them further before making orders.

169 I will provide these reasons to the parties for their consideration without the need for appearance. I will then allow further oral or written submissions about the relationship between r 63.20.1 and the gross costs order sought, and whether an order pursuant to r 63.20.1 would have been appropriate, before orders are made to give effect to these reasons. In that regard, I will also hear the parties if required on the relative timing of the filing of the Proposed FASOC without the offending paragraphs and with necessary consequential amendments, and the imposition of the stay.

170 I ask the parties to prepare orders in draft to reflect these reasons, and any further permitted submissions that they wish to make.

[1] Angelevska v State of Victoria and ors [2013] VSC 598.

[2] Angelevska v State of Victoria and ors [2015] VSCA 140.

[3] [2016] HCASL 5.

[4] Further affidavit of Daniel Quentin Jones sworn 4 December 2015 at [5] and DQJ-5.

[5] DQJ-36 and DQJ-37 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[6] Affidavit of Ms Angelevska sworn 7 December 2015 at [3].

[7] Slaveski v State of Victoria [2010] VSC 441,[1997]- [2121].

[8] Outline of Contentions on Behalf of the Defendants dated 5 February 2016 at [5].

[9] Outline of Contentions on Behalf of the Defendants dated 5 February 2016 at [8], citing Richards v Victoria [1969] VR 136 and s 23(1)(b) of the Crown Proceedings Act 1958 (Vic).

[10] Exhibit DQJ-5 to the Further Affidavit of Daniel Quentin Jones sworn 4 December 2015.

[11] Email of 14 October 2015 from the plaintiff to the solicitors for the defendant, exhibited as DQJ-29 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[12] Angelevska v State of Victoria and ors [2013] VSC 598 at [157].

[15] Angelevska v Victoria [2015] VSCA 140 at [229].

[16] Angelevska v State of Victoria and ors [2013] VSC 598 at [167].

[17] Outline of Contentions on behalf of the Defendants at [6.2]and Further Submissions on Behalf of the Defendants dated 6 September 2016 at [21]-[22].

[18] Judgment of Kyrou J, Slaveski v State of Victoria and ors [2010] VSC 441 (henceforth 'Slaveski')at [1943].

[19] Slaveski at [2082] and [2094], [2097].

[23] Outline of Contentions on behalf of the Defendants at [4].

[25] [2001] HCA 59; (2001) 207 CLR 562. Kyrou J also referred to Stuart v Kirkland- Veenstra [2009] HCA 15; (2009) 237 CLR 215 as another illustration of the same principle.

[26] [2002] HCA 35; (2002) 211 CLR 317.

[27] Slaveski at [2101] and earlier at [330]-[331].

[29] Slaveski at [335], citing Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2009] 1 AC 225, 278 [97]; 282-283 [122]-[123].

[30] [2008] UKHL 50; [2009] 1 AC 225.

[31] [2008] UKHL 50; [2009] 1 AC 225, 272-3 and 280.

[33] [2009] NSWCA 233.

[35] [2010] VSCA 113.

[39] Further Submissions on behalf of the Defendants dated 6 September 2016.

[40] Email from the plaintiff dated 6 September 2016 by way of further submission.

[41] [2013] VSC 165.

[42] [2013] VSC 165 at [41].

[44] [2012] VSC 30.

[45] [1995] VicRp 76; [1995] 2 VR 562.

[46] [2006] VSC 480.

[47] [2012] ACTCA 52.

[49] [2010] VSCA 113 at [8].

[50] (1992) 30 NSWLR 1, 5-6

[51] Wheelahan v City of Casey & Ors (No 3) [2001] VSC 15 at [37]- [38] the question as to whether the pleaded duty existed to be resolved at trial; Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168 at [124]- application by police for summary dismissal of alleged breach of duty refused in a representative action; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222 at [13]- application for summary judgment; Towercom Pty Ltd v Fahour (No 3) [2013] VSC 529 at [89]- application for summary judgment refused.

[53] Plaintiff's affidavit sworn and filed 3 February 2016.

[54] Slaveski, at [2011]-[2014]; [2078], [2086], [2091]-[2092].

[57] Plaintiff's affidavit sworn and filed 3 February 2016 at [12].

[58] Jane v Bob Jane Corp Pty Ltd (No 2) [2013] VSC 467.

[60] Fanissa Pty Ltd & anor v Versace and anor [2016] VSC 416 ('Fanissa') at [23] per Hargrave J, disagreeing with an earlier ruling of mine to the contrary in Shen v Ozbaby Dairy Pty Ltd and ors [2015] VSC 207.

[62] Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016 at [14]-[15].

[63] There is a clerical error in the costs order, in that the date of the plaintiff's summons is given as 30 October 2013, when in fact it was 30 October 2012.

[64] Plaintiff's affidavit sworn and filed 22 February 2016 at [23].

[65] Angelevska v State of Victoria and ors [2015] VSCA 213.

[66] Exhibit DQJ-43 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[67] Slaveski v State of Victoria [2010] VSC 569.

[68] [2012] VSC 399.

[69] [2013] VSC 669.

[71] [2013] VSC 137.

[72] Pegela at [15] as quoted in Sheehan No 4 at [74].

[73] In Pegela, the costs in question were estimated to exceed $5 million- Pegela at [14].

[74] [2016] VSC 53.

[76] [2016] VSC 110.

[77] [2016] VSC 53 at [84].

[78] Transcript of 10 December 2010 in Slaveski v State of Victoria and ors at page 8, lines 2-8, exhibited as DQJ-45 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[79] Exhibits SAS-1- 4 to the plaintiff's affidavit sworn and filed 22 February 2016.

[80] Exhibited as DQJ-8 to the second further affidavit of Daniel Quentin Jones sworn 11 December 2015. The jurat states that the affidavit was sworn on 4 December 2015, but having regard to its contents this must be an error. Accordingly, I assume that it was sworn on the date in the tracks- 11 December 2015.

[81] Email from the plaintiff to the solicitor for the defendants dated 14 December 2015 exhibited as SSA-1 to the plaintiff's affidavit sworn 14 December 2015.

[82] Exhibit SAS-1 to the plaintiff's affidavit sworn and filed 22 February 2016.

[83] Exhibit DQJ-43 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[84] Exhibits SAS-2, 3 and 4 to the plaintiff's affidavit sworn and filed 22 February 2016.

[85] Plaintiff's affidavit sworn 22 February 2016 at [4].

[86] Plaintiff's affidavit sworn 7 December 2015 at [4], [7] and [8].

[87] Further submission from the plaintiff by way of email to the Court dated 6 September 2016.

[88] Further Submissions on behalf of the Defendants dated 6 September 2016 at [26].

[89] This statement of purposes is drawn from Dale v Clayton Utz (No 3) [2013] VSC 593.

[90] The authorities on r 63.20.1 were recently reviewed by Hargrave J in Fanissa Pty Ltd & anor v Versace & anor [2016] VSC 416.

[91] Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016 at [14]-[15].

[92] Indeed the plaintiff says that she has studied law and is seeking to be admitted as a legal practitioner- plaintiff's affidavit sworn and filed 22 February 2016 at [15].

[93] Exhibit DQJ-43 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[94] Exhibit DQJ-28 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[95] Exhibit DQJ-32 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[96] Exhibit DQ-33 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[97] Exhibit DQJ-39 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.

[98] [2005] VSCA 200; (2005) 14 VR 380.

[99] Ormiston JA, with whom Vincent JA agreed, at [11].

[100] [2015] VSC 731.

[101] Rozenblit v Vainer (No 3) at [80], quoting excerpts from Gao v Zhang.

[102] Rozenblit v Vainer (No 4) [2016] VSC 451.

[104] Rozenblit v Vainer (No 4) [2016] VSC 451 at [53]- [55].

[105] Rozenblit v Vainer (No 4) [2016] VSC 451 per Cameron J at [46], [57] and [62].

[106] DQJ-37 to the Third Further Affidavit of Daniel Quentin Jones sworn 5 February 2016.