Plaintiffs v Defendants

2 On 9 November 2021, the Victorian Legal Services Board ('the Board'), appointed Mr Damian Neylon to conduct a compliance audit of the law firm operated by People Shop Pty Ltd, Erudite Legal ('the Firm'). On 10 May 2022, the Board issued Management Systems Directions to the Firm. On 18 August 2022, the Board appointed Mr Gordon Cooper as an investigator into suspected offences in connection with the Firm. On 20 August 2022, the Board appointed Mr Howard Rapke as an external manager to the Firm pursuant to a power given by s 334 of the Legal Profession Uniform Law.[2] On the appointment of Mr Rapke, persons were unable to participate in the affairs of the practice except under his direct supervision.[3] On 22 August 2022, Mr Rapke, with the assistance of the Board, entered the firm's premises and took possession of its files and other assets. 'A Current Affair'[4] filmed those events.

3 On 29 September 2022, Mr Shivesh Kuksal, Ms Maria Di Gregorio, Ms Lulu Xu, People Shop Pty Ltd and Mr Peter Ansell (the first to fifth plaintiffs respectively) filed an originating motion. Mr Kuksal is the beneficial owner, through some intermediary companies, of People Shop Pty Ltd. Ms Di Gregorio is (or has been) a director of People Shop Pty Ltd. Mr Ansell is a solicitor who, for some time at least, worked for or with the Firm. He has not had a practising certificate since 18 October 2022, although the validity of the decision by which his practising certificate was taken away or not renewed is not accepted by him or the other plaintiffs.[5] Ms Xu, as I understand it, is a 'close business associate' of Mr Kuksal and has previously been a director of People Shop Pty Ltd.

4 The originating motion seeks, among other things, declarations that various decisions made by the Board including the appointments of Mr Neylon, Mr Rapke and Mr Cooper were 'nullities'. The Board is the first defendant, and Mr Neylon, Mr Cooper and Mr Rapke are the second to fourth defendants respectively. By the first three paragraphs of a further amended summons filed on 3 November 2022, the plaintiffs asks the Court to:

1. Determine and declare that the appointments of:

1.1. Mr Damian Neylan to investigate whether Mr Allan McGregor was fulfilling his responsibilities to pursuant to section 34 of the Uniform Law as the Firm's Principal Solicitor ...;

1.2 Mr Howard Rapke as the Firm's External Manager ...;

1.3. Mr Gordon Cooper ... to investigate any civil penalty contraventions in connection with the Firm;

Were effected for an improper purpose and were nullities at law.

2. Determine and declare that even if Mr Neylon had been lawfully appointed to investigate whether Mr McGregor was fulfilling his responsibilities pursuant to section 34 of the Uniform Law, his appointment would have reached its natural conclusion on 25 November 2021 when he had been concluded in his First Interim Compliance Audit Report ... that:

"I am concerned about Mr McGregor's capacity to hold a practising certificate. I recommend that a medical report as to Mr McGregor's cognitive function be obtained to assess whether he should continue to hold a practising certificate"

1. Determine and declare that even if Mr Neylan had identified legitimate issues that would have given [the Board] reasonable grounds to commence further investigative procedures against the Firm are one of its solicitors or lay associates, it would have been necessary for a fresh appointment of an external intervener to take place to investigate the issues under an instrument of delegation that clarified that their appointment had been effected to investigate those specific issues.

5 The proceeding came before Keith JR on 9 November 2022 for directions. Mr Kuksal, Ms Di Gregorio and Ms Xu appeared for themselves. Mr Ansell was absent and apparently unwell. It was not clear whether Mr Kuksal spoke for People Shop Pty Ltd. The defendants were represented by counsel. Mr Kuksal explained that the plaintiffs sought to proceed first with the first three issues contained in their originating motion and summons. Mr Kuksal said to Keith JR:

We think that those three questions are, in essence, the crux of the matter, and they will surely dispose of the proceeding completely.

6 It was confirmed to me that this was a reference to the three paragraphs from their further amended summons set out in para 4 above.

7 On 2 November 2022, the defendants filed a summons by which they sought orders that the plaintiffs' originating motion and/or summons be struck out. The defendants had not served this summons prior to the 9 November 2022 directions hearing. The defendants submitted that their summons ought to be determined before the plaintiffs' summons and then sought directions for the exchange of material prior to the determination of the summonses. Mr Kuksal objected to orders being made in respect of the defendants' summons on the grounds that it had not been served.

8 Keith JR made directions for the exchange of material in relation to the paragraphs of the plaintiffs' summons referred to above, in the form that Mr Kuksal sought, and directions for the exchange of material in relation to the defendants' summons. In respect to the defendant's summons, the defendants were ordered to file and serve their material by 18 November 2022 and the plaintiffs were ordered to file and serve their material by 9 December 2022 (that is, a month after the directions hearing and three weeks after receiving the defendants' material). Both summonses were to be listed for hearing on a date to be fixed not before 14 December 2022. Keith JR noted that the 'priority and sequence' of the applications were to be determined by the judge hearing the applications.

9 On 15 November 2022, the plaintiffs filed a notice of appeal against the directions made by Keith JR that related to the defendants' summons. The notice of appeal is signed by Mr Kuksal, Ms Di Gregorio, Ms Xu and Mr Ansell. It is not signed by or on behalf of People Shop Pty Ltd, despite saying, on the front page, that it is filed on behalf of 'the Plaintiffs' and that 'the Plaintiffs' seek to appeal against Keith JR's order.

10 The filing of the notice of appeal did not operate as a stay of Keith JR's orders.[6] Accordingly, the parties were obliged to comply with them. The plaintiffs did not. Mr Kuksal said, in submissions that were adopted by the other plaintiffs save for Ms Di Gregorio, that a decision was made not to comply with the directions because the view was taken that they were invalid.

D. Legal representation generally and before me

11 Before dealing with the substance of the appeal, it is appropriate to record the situation with respect to legal representation. The originating motion itself indicates that it was 'prepared by' Mr Kuksal, and also that:

(a) Mr Kuksal, the first plaintiff, is self-represented;

(b) Ms Di Gregorio, the second plaintiff, is self-represented;

(c) Ms Xu, the third plaintiff, is represented by Peter Ansell, the fifth plaintiff, who is a lawyer;

(d) People Shop Pty Ltd, the fourth plaintiff, a legal practice firm, is represented by Peter Ansell; and

(e) Peter Ansell, the fifth plaintiff, is self-represented.

12 There may be an issue as to whether the originating motion and the plaintiffs' summonses have been validly filed. Both are said to have been prepared by Mr Kuksal on behalf of the plaintiffs. By r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2015, People Shop Pty Ltd, as a company, was not able to take a step in a proceeding other than by a solicitor. As I understand it, no dispensation from the operation of that rule has been sought or granted. Further, Mr Kuksal, who is not a lawyer, has no right to represent Ms Di Gregorio, Ms Xu, or Mr Ansell. I will assume, without deciding, for the purposes of the determination of this appeal, that the plaintiffs' originating motion and summons are validly on foot.

13 Before me, Ms Xu and Mr Ansell represented themselves, although they also adopted the submissions that Mr Kuksal made. I consider that there was no representation before me of People Shop Pty Ltd.

14 Ms Di Gregorio indicated that she did not wish further to participate in the proceeding, and she did not otherwise address me or adopt what Mr Kuksal had to say. Where, in the balance of these reasons, I refer to a submission or assertion made to me by 'the plaintiffs', I exclude Ms Di Gregorio.

15 Finally, Mr Kuksal anticipated making an application relating to the representation of People Shop Pty Ltd, or the prosecution of its claims, at the hearing of this matter. That is a matter that, in my view, and subject to some direction later being made to the contrary, ought probably to be made at the time of the hearing of the matter. This is because, unlike some cases with corporate litigants, there are natural person parties, in particular Mr Kuksal, who would likely be presenting the same arguments that People Shop Pty Ltd would be presenting in any event. If, ultimately, People Shop Pty Ltd as a corporation is not able to present argument at the hearing, that would probably not prevent the hearing from proceeding.

16 On 29 June 2023, Ginnane J made directions for the hearing of this appeal, which is, as noted above, against some of Keith JR's 9 November 2022 directions. Ginnane J directed that the plaintiffs file and serve any further affidavits on which they intend to rely of no more than 20 pages in total with exhibits not to exceed 80 pages in total by 7 July 2023, the defendants (with the same restrictions) by 21 July 2023, the plaintiffs file and serve a written outline of submissions of no more than 15 pages by 28 July 2023, and the defendants (with the same restriction) by 4 August 2023. His Honour also provided that if any party sought to file and serve any affidavits or exhibits or to rely on any submissions of greater length that permitted by his orders, then they may make such application at the hearing of the notice of appeal.

17 The defendants had already filed, on 30 November 2022, an affidavit sworn by Mr Anstee. In accordance with the orders of Ginnane J, on 4 August 2023 they filed a six page submission directed at the notice of appeal.

18 Mr Kuksal had, by the time of Ginnane J's orders, filed and served his 15 November 2022 affidavit in support of the appeal. The plaintiffs had also, by the time of Ginnane J's orders, filed the following affidavits in the proceeding:

(a) On 17 October 2022, an affidavit by Ms Di Gregorio. This affidavit is five pages long, but the exhibits are some 2,892 pages long. It was said to be prepared by Mr Ansell and filed on behalf of the plaintiffs;

(b) On 25 October 2022, another affidavit by Ms Di Gregorio. This affidavit is four pages long, but the exhibits are some 2,782 pages long. It was said to be prepared by Ms Di Gregorio and filed on behalf of the plaintiffs;

(c) On 15 November 2022, a third and fourth affidavit by Ms Di Gregorio. The third affidavit is 10 pages long, but the exhibits are some 4,209 pages long. The fourth affidavit is two pages long and the exhibits are some 2,103 pages long. Both affidavits were said to be prepared by Ms Di Gregorio and filed on behalf of the plaintiff (which I take to be a typographical error and that it was meant to say that it was filed on behalf of the plaintiffs);

(d) On 9 December 2022, an affidavit by Mr Ansell. The affidavit is 42 pages long. The exhibits are some 1,771 pages long. It was said to be prepared by Mr Ansell and filed on behalf of the plaintiffs; and

(e) On 23 December 2022, another affidavit by Ms Di Gregorio. That affidavit is 19 pages long. The exhibits are 849 pages long. It was said to be prepared by Ms Di Gregorio and filed on behalf of the plaintiffs.

19 None of the plaintiffs filed a written submission by 28 July 2023. On the morning of the hearing, Mr Kuksal circulated a written submission on behalf of the plaintiffs other than Ms Di Gregorio that was 50 pages long and said to be 'prepared by' People Shop Pty Ltd. When asked about this, he contended that Ginnane J's orders gave him a choice: either to file and serve a 15 page submission by 28 July 2023, or simply to file and serve a submission of any length on the day of the hearing of the appeal and to seek leave to rely on that. That interpretation of Ginnane J's orders is not open to someone attempting to interpret them in a reasonable manner. Be that as it may, I gave leave to Mr Kuksal leave to rely on his 17 August 2023 submission. It was 50 pages of legal principles but did not in fact make any submission directed at the disposition of the appeal. Ms Xu and Mr Ansell adopted it.

20 The appeal is in the nature of a hearing de novo.[7] Accordingly, and due to the effluxion of time, it will be necessary for me to make directions for the further disposition of the matter. In that respect, the plaintiffs contended that their application had to be treated with great expedition. I will, however, first consider the assertions that Keith JR had erred, and then consider what orders ought now to be made.

21 Mr Kuksal asserted, in his affidavit, that Keith JR had failed 'to protect the Plaintiffs' rights pursuant to the guarantees implied within Chapter III of the Constitution, article 14 on the International Covenant on Civil and Political Rights and long standing common law principles' and that he had 'failed to give effect to the overarching purpose of the Court Rules as set out in section 7 of the Civil Procedure Act.' His written submission set out cases emphasising, among other things, the need to comply with the overarching purpose of the Civil Procedure Act 2010, the high bar that needs to be crossed before a proceeding is summarily dismissed, the need to accord procedural fairness including in the exercise of a discretion, the obligations on model litigants, and the right to obtain declaratory relief.

22 It emerged in argument that his fundamental contention was that it was unfair for Keith JR to have entertained the defendants' summons at the directions hearing at all when it had not been served on him. It was common ground in the appeal, as it was before Keith JR, that the defendants had not served their 2 November 2022 summons prior to the directions hearing. He asserted, among other things, that by making orders in relation to it, Keith JR had:

(a) 'incentivised' the Board to bring improper, frivolous applications and 'rewarded' their 'misbehaviour';

(b) failed to accord him procedural fairness; and

(c) caused him prejudice.

23 His contention was that Keith JR should have made the directions that he did in relation to the plaintiffs' summons, but scheduled the defendants' summons for a later time. He contended that I ought to make directions, now, for the urgent hearing of the plaintiffs' application as summarised in para 4 above, and not make any orders that provided for the hearing of the defendants' summons. To do otherwise would fail, he submitted, to prevent 'ongoing abuse' by the Board.

24 Although there is no doubt that the defendants should have served the summons prior to the directions hearing, there are a number problems with Mr Kuksal's position. One is that it proceeds, at least in part, on the assumption that the defendants' application for summary dismissal is frivolous, but that is not a matter that I am now, or Keith JR was then, in a position to decide. Another is that it assumes, in effect, that the defendants deliberately chose not to serve the affidavit and that was misconduct that ought to face consequences. I do not draw that inference. I consider it just as likely that the failure to serve the summons was a mistake or an oversight. But more fundamentally, Mr Kuksal's position fails to grapple with the facts that:

(a) The orders that Keith JR made were procedural only, and did not affect, at all, any substantive rights;

(b) Keith JR offered, twice, to adjourn the directions hearing and to come back when Mr Kuksal and the others had had time to consider the defendants' summons, but Mr Kuksal did not take up that invitation;

(c) The orders that Keith JR made contained safeguards in the event that the plaintiffs, when they had had the opportunity to consider the matter in more detail, wished to have his orders varied; and

(d) Mr Kuksal was unable to establish that the making of the orders caused him any prejudice, beyond the prejudice of having to face the summons itself.

25 The first is self-evident: the orders the subject of this appeal were only directions that provided for the exchange of material. I will deal with the others in turn.

26 In the course of the hearing, Mr Kuksal asked Keith JR how he could 'make orders pursuant to a summons that was not served'. Keith JR said to Mr Kuksal (who was speaking for all the plaintiffs[8]):

Well, if you take that point, Mr Kuksal, I will vacate this hearing, I'll adjourn it to 23 November, and we'll come back when everyone has the documents. I won't make any orders today. Which do what wish me to do?

Mr Kuksal, if I'm not assisting you, I'll again restate I'll vacate the hearing and come back when everybody's ready.

28 Mr Kuksal did not take up that invitation. Although he was 'content for both the summary disposal applications to be heard at the same time' (by which he meant the first three paragraphs of the plaintiffs' summons and the defendants' summons), he wanted directions for the progression of the plaintiffs' summons, but resisted any directions then being made in relation to the defendants' summons. The effect of this would have been a second, and otherwise unnecessary directions hearing.

29 In the course of the directions hearing, Keith JR said to the plaintiffs:

I'm setting the timetable on the basis that the court file shows that there is a summons on file. It is listed for directions today. I'm setting the timetable on the basis that, prior to any step required by you in accordance with my orders, you will then be aware of the summons, you will be aware of the issues on the summons. If there is any difficulty arising from the terms of the summons, you will exercise liberty to apply to vary the timetable... And I'll set a timetable to ensure that the matter's properly prepared, giving you every opportunity, once the summons is served on you, to address any issues that arise.

30 Keith JR also noted in his Order the following in 'other matters':

1. By summons filed on 2 November 2022, the defendants seek orders, inter alia, that the plaintiff's summons originating motion be struck out ("Defendant Summons").

1. The parties informed the Court of disputes or questions as to as to service or notice of the summonses and amended summonses. These directions proceed on the basis that notice will have been received prior to any required step and without harm to any party. Liberty to apply should be exercised should any doubt remain.

31 Keith JR then gave the parties liberty to apply.

32 Mr Kuksal did not in his affidavit establish that the plaintiffs would not have been able to comply with the directions orders that were made or point to any prejudice to him or to the other plaintiffs that arose from the orders being made (beyond the fact of their being exposed to the application made by the defendants' summons).

33 In oral argument, when asked about prejudice, he emphasised, again, what he contended was misconduct on the part of the defendants, and that their summons was without merit. When pressed, he identified, as I understood, that the plaintiffs would have been prejudiced by an adjournment because it would have delayed the hearing of their summons.

34 Ms Xu adopted Mr Kuksal's submissions. She asserted, from the bar table, that Keith JR's tone was 'dismissive' of their concerns, and created in her the impressions that he thought their position to be unreasonable and was not treating the parties equally. She otherwise spoke in support of the need to have the issues determined promptly. Mr Ansell adopted Mr Kuksal's submissions and Ms Xu's submissions and submitted that, by reason of the toll that the events have had on him, the plaintiffs' application should be determined promptly.

35 It would have been unfair for Keith JR to make orders that affected the substantive rights of the plaintiffs in circumstances where they had not been served with the summons. But all Keith JR did was make directions for the exchange of material. There was no unfairness to the plaintiffs in the Court making directions for the hearing of the defendants' summons in the circumstances. The failure to have the summons served was, of course, wrong and unfortunate. However, there was no basis for Keith JR to conclude that the defendants' application was, in itself, frivolous or otherwise an abuse of process. Everyone seemed to agree, before him, that if the two applications were to be heard they should be heard together, and Keith JR made directions that would have permitted that to occur. Further, he offered to give the plaintiffs time to consider the defendants' summons before making any orders, and they did not take up that offer. He then made orders that were carefully framed to give the plaintiffs recourse to him in the event that, on reflection, they would not be able to comply with his orders. No relevant prejudice was, or could be, asserted. To not make orders on the defendant's summons would likely have required an additional, and entirely unnecessary, directions hearing.

36 The plaintiffs' bringing of this appeal, in the absence of any demonstrable relevant prejudice occasioned by the making of the orders under appeal, is, in my view, contrary to the provisions of the Civil Procedure Act 2010. It has resulted in wasted time for the parties and the Court and unnecessarily added to the cost of the proceeding. In my view, if the plaintiffs were interested in having this proceeding determined in a 'just, efficient, timely and cost-effective' manner,[9] they would not have brought this appeal.

37 The appeal has also delayed the determination of the proceeding generally. The plaintiffs asserted that they assumed that the appeal would be heard within a week or so. That may be so - but their acceptance of the inevitable delay even of that duration attendant on their bringing this appeal sits uncomfortably with their assertion that they did not want to take up the offer of a short adjournment of the directions hearing because they were concerned about delay. I observe, also, that the additional, and in my view unnecessary, costs of the appeal would have incurred even if the appeal were heard within a number of weeks.

38 As noted above, this is an appeal in the nature of a hearing de novo. Directions have now to be made. The plaintiffs sought to have the relevant paragraphs of their summons determined quickly - they said that they could file the balance of their material within a day - and that no orders be made allowing for the defendants' summons to proceed. The defendants sought orders that provided for their application for summary dismissal to be heard before the relevant paragraphs of the plaintiffs' summons.

39 I accept neither position. In my view, the preferable approach is, instead, to have the relevant paragraphs of the plaintiffs' summons and the defendants' summons heard and determined at the same time. I do not accept the plaintiffs' position that the defendant's summons can be effectively disregarded, at this stage, on the basis that it is devoid of merit. Given the plaintiffs' acknowledgement that the determination of the relevant paragraphs of its summons will not (or may well not) dispose of the entirely of their summons, it cannot be said that the defendants' summons is redundant if the relevant paragraphs of the plaintiffs' summons are determined on their merits. It is in the interests of justice that the arguments about the merits of the relevant paragraphs of the plaintiffs summons should only be argued once, and that to separate the hearing of the summonses would likely result in duplicated work and costs.

40 I accept that the events that have taken place have significantly affected the lives of those involved, and the lives of those involved will be affected by whatever conclusions are reached as to the validity of the appointments of Mr Neylon, Mr Rapke and Mr Cooper. However, it is often the case in proceedings in this Court that the lives of the litigants have been affected by the events the subject of the litigation and will be affected again by the results of the litigation. The plaintiffs referred generally also to a need to have findings in relation to the conduct of the Boad determined quickly as a matter of public policy. Even so, there is otherwise no identified date by which this proceeding must be determined. It is urgent in the same way that many proceedings in this Court are urgent.

41 Finally, the plaintiffs, in their notice of appeal, seek a number of orders that were not sought before Keith JR:

(a) The plaintiffs seek leave 'to amend the Originating Motion to include any additional relief sought or grounds relied upon arising out of recent developments concerning the issues underpinning the Proceeding'. I am not prepared to make a blanket order to that effect.

(b) The plaintiffs seek directions for the exchange of material in relation to what they describe as their 'application for summary judgment'. The plaintiffs have not applied for summary judgment. As Mr Kuksal accepted in oral argument, they intend to have the relevant paragraphs of their summons determined on their merits, as it were: they do not want to be in a position where the Court concludes that the position is open to argument and so dismisses their application, which would be possible if their application was an application for summary judgment.

(c) The plaintiffs seek that the Court 'find the Defendants in breach of their obligations pursuant to the Victorian Government's Model Litigation Guidelines' and 'in breach of their overarching obligations under' the Civil Procedure Act 2010. They also seek that I 'require a representative from the Victorian Legal Services Board to certify compliance with all overarching obligations related formalities in all its current and future court proceedings with any of the Plaintiffs in relation to all matters connected with the issues raised by the Plaintiffs in the Proceeding'. I am not prepared to make the orders sought, even assuming that the plaintiffs are able to apply for them in this appeal. Clearly, the defendants should have served the amended summons that was filed on 2 November 2022 prior to the 9 November 2022 directions hearing. I am not prepared to infer that the failure to do so was deliberate. It seems more likely that it was overlooked. It should not have been overlooked. But I do not consider that the defendants' conduct warrants a finding that it was in breach of the model litigant guidelines or the Civil Procedure Act 2010.

(a) The appeal be dismissed.

(b) On or before 4pm on 15 September 2023, the plaintiffs file and serve any affidavit material upon which they intend to rely with respect to the determination of paragraphs one to three of the plaintiffs' summons.

(c) On or before 4pm on 29 September 2023, the defendants file and serve any affidavit material upon which they intend to rely with respect to the determination of paragraphs one to three of the plaintiffs' summons.

(d) On or before 4pm on 13 October 2023, the plaintiffs file and serve a written submission addressing to the determination of separate questions at paragraphs one to three of the plaintiffs' summons.

(e) On or before 4pm on 27 October 2023, the defendants file and serve a written submission addressing paragraphs one to three of the plaintiffs' summons.

(f) The hearing of paragraphs one to three of the plaintiffs' summons be listed for hearing on a date not before 6 November 2023.

(g) On or before 4pm on 15 September 2023 the defendants file and serve any affidavit material upon which they intend to rely in support of the summons.

(h) On or before 4pm on 29 September 2023, the plaintiffs file and serve any affidavit material upon which they intend to rely in opposition to the defendants' the summons.

(i) On or before 4pm on 13 October 2023, the defendants file and serve a written submission addressing the determination of their summons.

(j) On or before 4pm on 27 October 2023, the plaintiffs file and serve a written submission addressing the determination of the defendants' summons.

(k) The hearing of the defendants' summons be listed for hearing on a date not before 6 November 2023.

(l) The affidavits filed and served as permitted by these orders shall be no more than 20 pages in length and the exhibits to all such affidavits shall not exceed 80 pages in length.

(m) The submissions filed and served as required by these orders shall not exceed 15 pages in length.

(n) Subject to any order made by the trial judge to the contrary, paragraphs one to three of the plaintiffs' summons and the defendants' summons are to be listed for hearing together. The order in which the summonses are heard be in the discretion of the judge hearing them.

(o) In the event that any party seeks to rely on any additional affidavits or submissions that exceed the page lengths permitted by this order, then such an application may be heard by the judge hearing the summonses.

43 I will hear the parties on the question of costs and in the event that there is a difficulty with the dates by which the various steps are to be completed.

VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610)

[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05(3).

[2] Being Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).

[4] A television programme broadcast by Channel 9.

[5] See Ansell v Victorian Legal Services Board [2022] VCAT 1228.

[6] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05.

[7] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05(4).

[8] Or at least, the natural-person plaintiffs.

[9] Civil Procedure Act 2010 (Vic) s 7.