Plaintiffs v Defendants

2 The current issue before the court on the defendants' application by summons is a narrow one. It is whether an order should be made pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that there be a trial of the following separate question:

Whether the plaintiffs have released and discharged the defendants in respect of the claims made in the proceedings, which release is a complete defence to these proceedings, pursuant to the agreement pleaded at paragraphs 35A to 35D of the defendants' amended defence.[1]

3 The terms of the proposed separate question were addressed and refined in exchanges with the Bench during the hearing, and the separate questions now proposed for determination are set out in the proposed orders at the end of these reasons (Separate Questions).

4 In the paragraphs of the amended defence referred to above, the defendants allege that a settlement agreement was reached between the parties on 8 December 2022 pursuant to which the plaintiffs released the defendants from each of the claims made in the proceeding (Release Agreement). The Release Agreement is said to be partly in writing and partly oral. It is said to arise from oral and written communications between the defendants' solicitor and the then plaintiffs' solicitor[2] in the lead up to the directions hearing held on 9 December 2022 before Button J.

5 Briefly, it is alleged that an agreement was reached between the parties that the claims made by the plaintiffs against the defendants would be dismissed by consent with no order as to costs on the basis of mutual releases. The defendants allege that it was a term of the Release Agreement that the plaintiffs released the defendants and forever discharged them in respect of the claims made in the proceeding and any other claim whatsoever that the plaintiffs had against the defendants arising from, incidental to, or in connection with, any matter raised in the proceeding and in the plaintiffs' statement of claim.

6 The application was supported by an affidavit of the defendants' solicitor, Mr Hancock, affirmed 30 January 2023, and a written submission filed 28 April 2023, which was supplemented orally at the hearing by counsel for the defendants.

7 The application was originally opposed by the plaintiffs. Prior to the hearing of the application the plaintiffs' position was recalibrated and the court was informed that the plaintiffs no longer opposed the application. During the hearing the plaintiffs' solicitor, Mr Rees, informed the court that the plaintiffs now supported the application and consented to orders being made directing that there be a trial of the Separate Questions.

8 The plaintiffs did not file any affidavit material in reply or file a written submission.[3]

9 At this stage the issue before me is whether an order should be made directing that there be a trial of the Separate Questions, not the assessment of the merits or otherwise of the parties' contentions regarding how the Separate Questions should be determined.

10 Subject to further addressing aspects of the precise terms of the Separate Questions with the parties, I have concluded that it is appropriate to make an order that there be a trial of the Separate Questions pursuant to r 47.04 of the Rules.

11 The background to the application was addressed in the affidavit of Mr Hancock, the defendants' written submission, and the defendants' amended defence, which I have read and considered, and also in aspects of the oral submissions made at the hearing.

12 It is not necessary to recite the detail of the content of Mr Hancock's affidavit. Mr Hancock deposed to some aspects of the background to the proceeding and a possible sale of one of the relevant businesses. More relevantly for present purposes, Mr Hancock addressed an alleged exchange of oral and written communications during the period 1 December and 9 December 2022 between the defendants' solicitor and the plaintiffs' then solicitor. It is alleged that these communications gave rise to a legally binding settlement agreement between the parties, being the Release Agreement.

13 In their written submission the defendants referred to large parts of the evidence of Mr Hancock regarding the communications between the solicitors for the parties in December 2022, submitting in part that the exchange demonstrated the defendants' sound position on the Release Agreement issue.

14 Although the plaintiffs did not file any affidavit material or submissions in response or oppose the application, the plaintiffs' solicitor informed the court during the hearing that the plaintiffs denied that any concluded settlement agreement had been reached. The court was further informed that if this contention was not successful, and there was found to be a Release Agreement between the parties as alleged, then the plaintiffs accept that the release the subject of the Release Agreement would apply in respect of the plaintiffs' claims against the defendants in the proceeding.[4]

15 The relevant principles were not in dispute and the defendants' counsel referred to the principles set out by Derham AsJ in Vale v Daumeke.[5] Having regard to the applicable principles and the matters referred to in the affidavit of Mr Hancock that were addressed in the written and oral submissions, in substance the defendants submitted that the following matters clearly supported the application.

16 First, it was submitted that the Separate Questions could readily be framed with clarity and with regard to the defendants' amended defence.

17 Second, it was submitted that there was a clear demarcation between the Separate Questions and the issues in the balance of the proceeding. In this context it was contended that there was no factual or legal overlap between the issues in the main oppression claim and the issues the subject of the Separate Questions application.

18 Third, it was contended that resolution of the Separate Questions in favour of the defendants would inevitably bring the proceeding to an end. In this context it was submitted that:

(a) The trial of the Separate Questions would not prolong the litigation.

(b) The interlocutory steps relating to the oppression claims were still being carried out by the parties and the proceeding had not otherwise been listed for trial so there would be no delay.

(c) If the Separate Questions are not determined it could lead to an absurd result at the trial of all of the issues if the court found that there had been oppression, but that a binding settlement agreement in the form of the Release Agreement was entered into in December 2022.

(d) If the claimed absurd result occurred it must follow that there will have been significant and unnecessary delays and costs incurred by all parties, as well as consequent inefficient use of court resources.

19 Fourth, the defendants contended that there was unlikely to be much dispute regarding the relevant factual matters, submitting that the facts underpinning the Separate Questions concerned a very short period of time, that the relevant interactions were almost exclusively contained in written correspondence, and that no discovery will be necessary.

20 In this context it was submitted that there could be little or no issue of principle between the parties regarding the substantive principles to be applied at the trial of the Separate Questions which, so it was said, would be confined to a disputed question of fact and the application of established legal principles to those facts about the existence or otherwise of a concluded legally binding agreement.

21 Fifth, it was submitted that there was no disadvantage to the plaintiffs occasioned by the trial of the Separate Questions, with emphasis also being placed upon the plaintiffs' support of the application.

(a) Counsel for the defendants underscored various points made in the written submission, including the submissions regarding the clarity of the Separate Questions, the absence of overlap with the other issues, and the claimed absurd result said to follow if the application did not succeed.

(b) It was confirmed that the defendants rely on the parties' respective solicitors being the authorised agent of the parties, and confirmed that it was appropriate that the agency allegation be pleaded by way of further amendment.

(c) It was confirmed that the defendants contend that the terms of the Release Agreement contained mutual releases as follows:

(i) In consideration for the Defendant Parties' consent to the proceeding being dismissed with no order as to costs, the Plaintiff Parties hereby release and forever discharge the Defendant Parties in respect of the claims made in proceeding S ECI 2021 02630 ("Proceeding") and any other claim whatsoever that the Plaintiff Parties have against the Defendant Parties arising from, incidental to or in connection with any matter raised in the Proceeding and the statement of claim filed therein, and the Plaintiff Parties acknowledge that this release may be relied upon by the Defendant Parties as a complete defence to any action, suit or proceeding commenced, continued or taken by the Plaintiff Parties in connection with any matter the subject of this release.

(ii) The Defendant Parties hereby release and forever discharge the Plaintiff Parties in respect of the claims made in the Proceeding and any other claim whatsoever that the Defendant Parties may have against the Plaintiff Parties arising from, incidental to, or in connection with any matter raised in the Proceeding and the statement of claim filed therein, and the Defendant Parties acknowledge that this release may be relied upon by the Plaintiff Parties as a complete defence to any action, suit or proceeding commenced, continued or taken by the Defendant Parties in connection with any matter the subject of this release.

(d) It was confirmed by all parties that it was anticipated that the only oral evidence to be given at the trial of the Separate Questions would be from the two solicitors regarding their two short telephone conversations.

(e) The plaintiffs' solicitor confirmed that the plaintiffs supported the application and that they would be filing a reply to the proposed further amended defence raising their 'no concluded agreement' contention.

23 The relevant principles are well known and were not in dispute.

24 In Murphy v Victoria & Anor,[6] Nettle AP, Santamaria and Beach JJA summarised the authorities regarding a separate trial of discrete questions as follows:

The judge's ruling

[28] It is evident from the judge's ruling of 8 August 2014[7] that his Honour was aware of the care which must be exercised before making an order for separate trial of discrete questions. He cited extensively from authority which, as his Honour said correctly, makes clear that:

1. A separate trial should be ordered under r 47.04 only with great caution and only in a clear case.[8]

2. The attraction of trials of issues rather than of cases in their totality, "are often more chimerical than real", so that separate trials should "only be embarked upon when their utility, economy and fairness to the parties are beyond question".[9]

3. The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding.[10]

4. There should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial.[11]

5. As a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or the defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[12]

6. Factors which tell against making order under r 47.04 include that the separate determination of the question:

a) may give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

b) may result in significant overlap between the evidence adduced on the hearing of the separate question and at trial; possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding; and

c) may prolong rather than shorten the litigation.[13]

25 In Vale v Daumeke & Others,[14] Derham AsJ addressed r 47.04 and the applicable principles from previous authorities in the following more expansive terms:

The Rules

[26] Rule 47.04 of the Rules provides:

The Court may order that-

(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;

(b) different questions be tried at different times or places or by different modes of trial.

[27] This rule should be read with r 47.05, which provides:

If the determination of any question in a proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order or give such judgment as it thinks fit.

[28] The term 'question' is defined in r 1.13 of the Rules, unless the context or subject matter otherwise requires, as follows:

...means any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest.

[29] However, as set out in Burns Philp & Co Ltd v Bhagat,[15] in r 47.04, 'question' has a more limited meaning, being a question that would, in the absence of an order under the rule, be determined as part of the trial of the proceeding. Usually, the sort of question with which the rule is concerned is raised on the pleadings, as it is in this case. A question not integral to the right to relief, or to the extent of that relief - such as a question as to the sufficiency of discovery of documents or of privilege arising during the examination of a witness at the trial - does not fall within r 47.04_._[16]

[30] In relation to the separate trial of a question of law, r 47.04 should also be read with r 13.02(2)(a), which provides that a party may by his pleading raise a point of law. If a point of law is raised in the pleadings, under r 47.04 the court may - on the application of any party - order that the point be tried separately.

[31] Ordinarily, all issues of fact and law in a proceeding will be determined at the one time by the Court following a trial.[17] There are a great many decisions relating to the matters to be considered in the exercise of the discretion to order the separate trial of questions in a proceeding. Many have gathered together considerations relevant to the particular facts and issues in the particular proceeding. All recognise that much depends on the facts at hand. Nevertheless, there are principles, relevant matters and cautions identified that provide guidance in the exercise of the discretion. They are as follows:

(a) The discretion must be exercised with great caution, and only in a clear case;[18]

(b) An order for the determination of a separate question before trial is generally only appropriate where the determination of the question will be likely to end the litigation or substantially narrow the issues in dispute, or where there is a clear demarcation between that issue and the other issues in the case;[19]

(c) Where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated (ensuring that the terms used have clear meaning) and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, as agreed facts or as facts to be judicially determined;[20]

(d) The separate determination of the question should not be attempted where there is uncertainty inherent in the definition of the facts upon which the substantive question must be determined;[21]

(e) In cases where the relevant facts are assumed by one party to be correct for the purposes of the preliminary determination, it is only possible to determine a question of law, not one of mixed law and fact;[22]

(f) Care must be taken in utilising the procedure provided for in r 47.04 of the Rules to avoid the determination of issues not 'ripe' for separate and preliminary determination - for example, where it is simply one of two or more alternative ways in which an applicant frames its case, and determination of the issue would leave significant other issues unresolved;[23]

(g) The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding;[24]

(h) Whether a question should be determined separately involves a two-stage process - the first stage requires that the questions for determination be identified clearly and with precision, while the second stage is the actual determination of the question - and the two stages should not be run together;[25]

(i) If the questions involve issues of fact that need to be determined or proved, and the Court cannot see, on the basis of the material presently before it, that the facts can be properly determined, it is inappropriate to make the order;[26]

(j) In some cases, perhaps most cases, it will be inappropriate to order the trial of preliminary questions before discovery of documents relevant to the questions, and before resolving grounds restricting production and inspection of them, such as client legal privilege or public interest immunity;[27]

(k) Factors that tend to support the making of an order include that the separate determination of the question may:[28]

(x) Contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(xi) Contribute to the settlement of the litigation; and

(l) Factors that tell against the making of an order include that the separate determination of the question may:[29]

(i) Give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(ii) Result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding - which will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii) Prolong rather than shorten the litigation.

[32] In Tepko Pty Ltd v Water Board,[30] Kirby and Callinan JJ commented on the potential pitfalls associated with preliminary trials of separate issues. That case was one of a claim in negligence sounding in pure economic loss, and the comments need to be viewed with that in mind. Nevertheless, they made the following valuable general points:

(a) The attractions of trials of issues, rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have needed to make full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap;

(b) A party whose whole case is knocked out on a trial of a preliminary or single issue may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's (rather than the parties') interests;

(c) There is an additional potential for further appeals, to which the course of the trial on separate issues may give rise; and

(d) Single-issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question.[31]

Civil Procedure Act 2010 (Vic)

[33] By s 8 of the CPA, the court must seek to give effect to the overarching purpose of that Act in the exercise of any of its powers or in the interpretation of those powers. This is so whether those powers are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction.

[34] Under s 7, the overarching purpose of the CPA and of the Rules is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9(1) requires that in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to a number of identified objects. Section 9(2) provides that the court may have regard to certain other matters. It is not necessary to set out the objects and matters identified in ss 9(1) and (2) for reasons that will emerge later. Suffice it to say, Dixon J observed in Deutsch v Deutsch[32] that the considerations set out in s 9 are, by and large, matters that are ordinarily considered by a court in the exercise of the discretions enlivened by the application.

26 After referring to the principles set out in Murphy v Victoria & Anor,[33] Nichols J in Vicinity Funds RE Ltd & Anor v Commissioner of State Revenue,[34] observed that, in exercising any discretion as to whether or not to order the trial of a separate question, the Court must further the overarching purpose of the Civil Procedure Act 2010 (Vic) (CP Act) and the Rules, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[35]

27 In Harding v Sutton,[36] and after referring to Murphy v Victoria & Anor,[37] Richards J sounded a cautionary note regarding the application of the above principles in any given case:

[206] As the defendants submitted, these principles are not a rigid set of rules, and must be applied by reference to the circumstances of each individual case. The discretion in rule 47.04 is to be exercised in accordance with the overarching purpose in s 7(1) of the Civil Procedure Act 2010 (Vic), which is to facilitate the 'just, efficient, timely and cost-effective resolution of the real issues in dispute'. The defendants reminded me that there are cases in which the trial of a separate question furthers this purpose.[38]

28 For the reasons that follow I have concluded that, subject to hearing further from the parties regarding the precise terms of the Separate Questions, it is appropriate to order that there be a trial of the Separate Questions regarding the existence or otherwise of the alleged Release Agreement and its terms. In so concluding I have proceeded with caution of the kind addressed in the authorities referred to above, had regard to the objects referred to in s 9 of the CP Act, and sought to give effect to the overarching purpose, namely: to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.[39]

29 As a starting point it ought to be noted that even though the application was ultimately consented to, it remains necessary for the court to be satisfied, on a principled basis, that it is appropriate to order that there be a trial of the Separate Questions. That said, given the circumstances of the present application and the absence of any opposition to it, my reasons for being so satisfied can be shortly stated.

30 There is no doubt that the question of whether there is a binding Release Agreement between the parties is raised on the pleadings. The relevant allegations were the subject of the recent grant of leave to the defendants to amend their defence pursuant to orders made on 24 March 2023. The allegations are shortly stated and appear in paragraphs 35A-35D of the defendants' amended defence. These allegations are to be further refined in a further amended defence, and will also include agency and authority allegations.

31 I accept that if it is determined at the trial of the Separate Questions that the alleged Release Agreement was entered into between the parties it is almost inevitable that it will bring an end to the proceeding. It is to be recalled that it is alleged that there was a term of the Release Agreement that the plaintiffs released the defendants and forever discharged them in respect of the claims made in the proceeding and any claim whatsoever that the plaintiffs had against the defendants arising from, incidental to or in connection with any matter raised in the proceeding and in the plaintiffs' statement of claim (Release Term). Further, the plaintiffs' solicitor informed the court that if it was ultimately determined that there was such a binding Release Agreement then the Release Term would operate in respect of the plaintiffs' claims the subject of the statement of claim in the proceeding.

32 I agree with the parties that the Release Agreement issue proposed for separate determination is a narrow one, both factually and legally. The trial of the Separate Questions should not take longer than a day. As the defendants submitted, the facts are of narrow compass and the applicable principles are unlikely to be the subject of dispute. Whilst there may be some limited contest on the facts insofar as the brief telephone conversations between the solicitors are concerned, this appears not to involve the parties to the proceeding directly. In any event, to the extent that there are to be any differences between the accounts of the solicitors, the conversations in question were very short and the factual issues will be able to be determined efficiently and without taking up too much court time.

33 I also accept that the evidence before the court and other circumstances did not point to any particular disadvantage to be suffered by the plaintiffs if the trial of the Separate Questions is ordered. The plaintiffs did not suggest otherwise and, although it is not determinative, it is relevant in this context that the plaintiffs consent to the application. This appeared to be an understandable position for the plaintiffs to take.

34 Further, there appears to be little if any scope for overlap between the evidence to be adduced at a trial of the Separate Questions and the evidence that would be adduced at a later trial of the remaining issues should such a trial proceed. This is a consequence of the discrete nature of the Release Agreement issue, to which the trial of the Separate Questions will be confined.

35 Given the discrete nature of the Release Agreement issue, the limited nature of the evidence that will need to be adduced to enable it to be determined, and having regard to the other matters referred to above, it is in my view clear that there is utility, economy and fairness in proceeding to order the trial of the Separate Questions.

36 To proceed in this way also well serves the overarching purpose in s 7 of the CP Act. As I have said, if the Release Agreement issue is determined in favour of the defendants, it appears inevitable that it will put an end to the proceeding. If that is so, it is plain that material cost, expense and time will be saved. Although I do not embrace the defendants' contention that if an order is not made the result would be absurd, I do accept that additional cost and expense will be incurred and potentially wasted if a trial on all issues proceeds and the Release Agreement issue is ultimately determined in favour of the defendants.

37 Finally, although I accept that as proposed the Separate Questions are reasonably clearly stated and confined, it is in my view appropriate to allow an opportunity to further address their precise terms with the parties in the light of these reasons and the issues addressed with the parties during the hearing.

38 The defendants' application for an order that there be a trial of the Separate Questions should succeed. Subject to addressing the precise terms of the Separate Questions with the parties, I propose to make orders to the following effect:

1. Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the following separate questions be tried before the trial of the other issues in the proceeding:[40]

a) Did the parties to the proceeding enter into a legally binding settlement agreement as alleged in paragraph [35A] of the defendants' further amended defence filed on [ ] May 2023 (Release Agreement)? > > b) If the answer to the question referred to in sub-paragraph a) is yes, were there terms of the Release Agreement as follows: > > > (i) The plaintiffs and defendants consented to the proceeding being dismissed with no order as to costs; > > > > (ii) In consideration for the Defendant Parties' consent to the proceeding being dismissed with no order as to costs, the Plaintiff Parties hereby release and forever discharge the Defendant Parties in respect of the claims made in proceeding S ECI 2021 02630 ("Proceeding") and any other claim whatsoever that the Plaintiff Parties have against the Defendant Parties arising from, incidental to or in connection with any matter raised in the Proceeding and the statement of claim filed therein, and the Plaintiff Parties acknowledge that this release may be relied upon by the Defendant Parties as a complete defence to any action, suit or proceeding commenced, continued or taken by the Plaintiff Parties in connection with any matter the subject of this release; and > > > > (iii) The Defendant Parties hereby release and forever discharge the Plaintiff Parties in respect of the claims made in the Proceeding and any other claim whatsoever that the Defendant Parties may have against the Plaintiff Parties arising from, incidental to, or in connection with any matter raised in the Proceeding and the statement of claim filed therein, and the Defendant Parties acknowledge that this release may be relied upon by the Plaintiff Parties as a complete defence to any action, suit or proceeding commenced, continued or taken by the Defendant Parties in connection with any matter the subject of this release?

39 I propose to make further directions to facilitate the expeditious hearing of the Separate Questions, the content and terms of which I will address with counsel for the parties. I will also hear from the parties on the question of costs.

[1] See defendants' written submission filed 27 March 2023 [1].

[2] Who are no longer acting for the plaintiffs.

[3] Although the interlocutory timetable provided them with an opportunity to do so.

[4] Which on the material before the court appeared to be a responsible position for the plaintiffs to take.

[5] [2015] VSC 342, [31]. These principles are referred to later below.

[6] [2014] VSC 238. These principles were recently re-stated by Forbes J in Midson & Anor v State of Victoria [2020] VSC 624, [7]-[9].

[7] [2014] VSC 363 ('First Reasons').

[8] Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341 at [181].

[9] Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 55, [168]-[170] per Kirby and Callinan JJ, Gaudron J agreeing at 18, [52].

[10] Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 at [29]; Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533-4 per Mason CJ, Dawson, Gaudron and McHugh JJ.

[11] Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 at 341-2 per Brooking J.

[12] Dunstan v Simmie and Co Pty Ltd [1978] VicRp 62; [1978] VR 669 at 671 per Young CJ and Jenkinson J.

[13] Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495 at 498-9, [8], cited in Village Building Co Ltd v Canberra International Airport Pty Ltd [2003] FCA 1195 at [8] ('Village').

[14] [2015] VSC 342.

[15] [1993] VicRp 13; [1993] 1 VR 203.

[17] Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [7].

[18] Dunstan v Simmie & Co. Pty Ltd [1978] VicRp 62; [1978] VR 669, 671 (Young CJ and Jenkinson J); Murphy v Victoria [2014] VSCA 238, [28.5]; Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341 ('Wells Fargo'), [181]; Murphy v State of Victoria [2014] VSCA 238, [28].

[19] Wells Fargo [2004] VSC 341; Sugar Australia Pty Ltd v Southern Ocean Pty Ltd [2013] VSC 535; Murphy v Victoria [2014] VSC 363; Murphy v Victoria [2014] VSCA 238, [28]; DC Payments Australasia v Vic Hotel Pty Ltd [2014] VSC 535; cf Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 113 ALR 643, 647; Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [8].

[20] Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 ('Jacobson'), 341 (Brooking J), referring to Nissan v Attorney-General [1969] UKHL 3; [1970] AC 179, 242-3 (Lord Pearson); Bass v Permanent Trustee Co Ltd [1999] HCA 9, [53]; Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [8]; Murphy v Victoria [2014] VSCA 238, [28.4].

[21] Wells Fargo [2004] VSC 341, [196].

[22] Jacobson [1995] VicRp 24; [1995] 1 VR 337, 342 (Brooking J).

[23] Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [8], referring to CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, 606 (Kirby P).

[24] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533-4; Murphy v State of Victoria & Anor [2014] VSCA 238, [28.3].

[25] Jacobson [1995] VicRp 24; [1995] 1 VR 337, 339 (Brooking J).

[26] Deutsch v Deutsch [2011] VSC 345, [43] (Dixon J).

[27] Murphy v Victoria [2014] VSCA 238, [30]-[43].

[28] Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [8]; Village Building Company Ltd v Canberra International Airport Pty Ltd & Ors [2003] FCA 1195, [8].

[29] Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495, [8]; Murphy v Victoria [2014] VSCA 238, [28.6].

[30] [2001] HCA 19; [2001] 206 CLR 1.

[31] Ibid 55 (Kirby and Callinan JJ, with whom Gaudron J agreed on these points); see also Murphy v Victoria [2014] VSCA 238, [28.2].

[32] [2011] VSC 345, [58].

[33] [2014] VSC 238.

[34] [2021] VSC 200.

[35] Civil Procedure Act 2010 (Vic), ss 7-9. See also Abdulrahim v Adult Parole Board [2023] VSC 101, [9] (John Dixon J).

[36] [2021] VSC 741.

[37] [2014] VSC 238.

[38] Citing Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, [51] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246, [6] (Bell P), [24] (Leeming JA).

[40] Noting that the further amended defence and the plaintiffs' reply is yet to be filed and therefore some further refinement may be needed.