//
[2025] VSC 577
General information, not legal advice.
Supreme Court of Victoria
2025-09-12
Keogh J
Original judgment source is linked above.
APPEAL - Appeal from decision of Associate Judge to refuse defendants' application to summarily dismiss or permanently stay proceeding on grounds that it is an abuse of process - Proceeding is an attempt to re-litigate claims that were or should have been made in previous proceeding which were dismissed by consent - Proceeding is unjustifiably oppressive to defendants - Proceeding likely to undermine finality of litigation and give rise to adverse perception of administration of justice - UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 23.01(1)(b) - Appeal allowed.
1 This is an appeal from a decision by an Associate Judge to refuse an application made under r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') to summarily dismiss or permanently stay the proceeding as an abuse of process ('refusal decision').[1]
2 The first plaintiff, I Cook Foods Pty Ltd ('ICF'), was engaged in the business of producing and supplying food products primarily for consumption by patients in the health care industry. The second plaintiff, Ian Cook ('Cook'), is the sole director of ICF.
3 The ICF business premises was located in the municipal district of the first defendant, Greater Dandenong City Council ('Council'). The Council is vested with powers and functions under the Food Act 1984 (Vic) ('Food Act').[2] The second and third defendants, Leanne Johnson and Elizabeth Garlick respectively, were employees of the Council and 'Authorised Officers' under the Food Act.[3] This proceeding concerns allegations by the plaintiffs that the defendants are guilty of malicious prosecution and misfeasance in public office, related to charges brought against ICF and Cook for offences under the Food Act that were ultimately withdrawn.
4 In an earlier proceeding in this Court, ICF brought claims against the Council and another defendant, the State of Victoria ('State'), based on the same facts that underpin this proceeding ('ICF Proceeding'). ICF claimed misfeasance in public office against the Council and foreshadowed, but ultimately did not pursue, a claim of malicious prosecution. The ICF Proceeding was litigated against the Council for two and a half years before settling on the basis of consent orders that it be dismissed with no order as to costs.
5 The plaintiffs commenced this proceeding after the ICF Proceeding was finally determined against the State. The defendants contend that this proceeding is an abuse of process because it is an attempt to litigate claims that were made, or that were foreshadowed and should have been made in the ICF Proceeding.[4]
6 For the following reasons, the defendants' appeal should succeed.
7 An appeal from a decision of an Associate Judge under s 17(3) of the Supreme Court Act 1986 (Vic) and r 77.06 of the Rules is by way of rehearing. Ordinarily, an appellant must show factual, legal or discretionary error before the appellate power may be exercised.[5]
8 In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore ('GLJ'),[6] the High Court determined that the applicable standard for appellate review of an order granting or refusing an application to permanently stay a proceeding on grounds of abuse of process is the 'correctness standard'[7] identified in Warren v Coombes.[8] Accordingly, while the Court's assessment of an application for a stay on the grounds of abuse of process is evaluative, it is not discretionary and there can be only one correct answer.
9 The decision in GLJ was made in the context of an application for a permanent stay on grounds that a trial in the proceeding would be so unfairly and unjustifiably oppressive to the defendant as to constitute an abuse of process. In their written submissions, the plaintiffs in this proceeding sought to draw a distinction between the class of abuse of process with which the High Court was concerned in GLJ and that alleged by the defendants in this proceeding, and submitted that the jurisdiction exercised by the Associate Judge in determining the defendants' application for a stay was discretionary. That submission was contrary to the statement of principle by the plurality in GLJ.[9] At the hearing of the appeal, the plaintiff conceded the point. Accordingly, it was common ground that the appeal is to be determined on the basis that there is only one correct answer to the question posed by the defendants' summons.
10 It is an extreme step to deny a person the right to have their case heard and determined by a court. A party seeking to permanently stay a proceeding bears a heavy onus. The jurisdiction is only to be exercised in an exceptional case.[10]
11 The determination of whether a proceeding constitutes an abuse of process requires consideration of all of the circumstances of the case.[11] While the categories of abuse of process are not closed and the range of circumstances that justify exercise of the jurisdiction by a court is infinite,[12] an abuse of process will usually fall into one of three categories:
(1) the court's procedures are invoked for an illegitimate purpose;
(2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or
(3) the use of the court's procedures would bring the administration of justice into disrepute.[13]
12 Analysis of circumstances that might give rise to an abuse of process should focus on the substance and not the form of proceedings.[14]
13 Consideration of oppression should take into account the strain that litigation imposes on litigants, especially where litigation is long-running and involves serious allegations being advanced against the party or participant.[15]
14 It is relevant for a court to consider whether an attempt to re-litigate issues is consistent with a litigant's obligations under the Civil Procedure Act 2010 (Vic)[16] and the duty of the court to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute,[17] having regard to the need to deal with a civil proceeding in a manner that is proportionate[18] and makes efficient use of judicial and administrative resources.[19]
15 A party that brings a proceeding can choose what claims to make and how they are formulated. It is relevant to consider whether a party had a sufficient opportunity to identify the issues and make the claims it seeks to advance.[20] A claim in a proceeding that should have been made in an earlier proceeding and that results in injustice or wasted court resources may constitute an abuse of process.[21]
16 The appeal in UBS AG v Tyne ('UBS')[22] concerned a claim for damages and equitable compensation brought in the Federal Court by the respondent, as trustee of a family trust, arising out of investment advice and representations made by the appellant bank. An earlier proceeding brought by the former trustee, a related company and the respondent in his own right in the Supreme Court of New South Wales, in which similar claims were made based on the same facts, was discontinued by the respondent and the former trustee and permanently stayed in relation to the company. The majority in the High Court concluded that the Federal Court proceeding should be permanently stayed as an abuse of process. The plurality said:
... there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose.[23]
The plurality described and commented on the choices made by the plaintiffs which led to the two proceedings as follows:
Mr Tyne assessed that 'in dollar terms' this proceeding was likely to be of lesser value than Telesto's claim in the SCNSW proceedings. Had Telesto 'been made whole' in the SCNSW proceedings, Mr Tyne said, it was very likely that that outcome would have obviated the need for this proceeding. Mr Tyne considered that the concurrent prosecution of Telesto's and the Trust's claims would have been more burdensome and expensive than prosecuting Telesto's claims in that the Trust would be required to prove all of the matters that Telesto was required to prove in its case and additionally the Trust would have to prove the provenance of the 'lent securities'.
Mr Tyne perceived a forensic advantage to the Tyne-related parties in holding back the Trust's claim. This was a decision that, were Telesto's claim to be stayed, would lead to duplication of resources and increased cost, and would delay the resolution of the dispute between the Tyne‑related parties and UBS. Hiving off the Trust's claim, with a view to bringing it in another court after the determination of the SCNSW proceedings, was the antithesis of the discharge of the duty imposed on parties to civil litigation in the Supreme Court of New South Wales and in the Federal Court. That duty is to conduct the proceedings in a way that is consistent with the overriding/overarching purpose.[24]
The fact that UBS is a large commercial corporation does not deny that permitting the Trust's claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that should have been resolved in the SCNSW proceedings. The fact that UBS has not been required to admit or defend the Trust's claim does not lessen that vexation. Between December 2010 and May 2013, when the SCNSW proceedings were finally determined, UBS was engaged in litigation with a party controlled by Mr Tyne, arising out of its alleged dealings with Mr Tyne in respect of the loss that is claimed by the Trust in these proceedings. On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.
For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the processes of the Federal Court.[25]
18 An order dismissing a proceeding by consent constitutes a judgment on the merits.[26]
19 The defendants rely on three affidavits of solicitor Michelle Dixon sworn on 7 February, 22 April and 8 November 2024.
20 The plaintiffs rely on an affidavit sworn by Cook on 11 March 2024.
21 The following summary is drawn largely from the reasons for Judgment of McDonald J in the ICF Proceeding and the reasons for the refusal decision:
(a) In February 2019, ICF was operating its longstanding business making ready to eat meals for local government authorities, nursing homes and private hospitals. One of ICF's customers was Knox Private Hospital.
(b) On 4 February 2019, an 86-year-old woman died whilst an inpatient at Knox Private Hospital. During her hospitalisation, meals provided to her included sandwiches which had been made at ICF's premises in Dandenong. The patient's death certificate recorded listeria meningoencephalitis as a significant condition contributing to her death.
(c) At the request of the State, samples of food made at ICF's premises were taken for testing.
(d) At the further request of the State, the Council inspected ICF's premises. On 19 February 2019, following one such inspection, Garlick made an order under ss 19(1) and 19(2) of the Food Act requiring 37 corrective actions to be taken to restore the ICF premises to a clean and sanitary condition ('clean order'). Garlick also issued a food safety direction under s 19W of the Food Act directing Cook, as proprietor of ICF, to take specified record keeping compliance steps by 18 March 2019 ('food safety order').
(e) In February 2019, the State's then-acting Chief Health Officer made orders under the Food Act requiring ICF to cease production ('closure orders'). ICF did not resume trading after that date.
(f) The Council subsequently charged ICF and Cook with 48 offences each under the Food Act ('charges'). Johnson was the named informant in those prosecutions. All of the charges were ultimately withdrawn.
22 Cook instructed solicitors to commence the ICF Proceeding against the State Department of Health and Human Services ('DHHS') by writ and statement of claim filed 24 June 2020. Cook was not a party to the proceeding. He thereafter engaged and instructed ICF's legal representatives in the conduct of the proceeding. ICF alleged that the closure orders were invalid and claimed consequential damages against the State for business losses.
23 By orders made on 7 October 2020, the proceeding was fixed for trial on 7 February 2022 on an estimate of five to seven sitting days.
24 ICF was granted leave on 18 February 2021 to join the Council as a defendant to the ICF Proceeding. The allegations of misfeasance in public office pleaded by ICF against the Council in the amended statement of claim filed in February 2021 included that:
(a) Garlick and Johnson were officers of the Council, and acted with its actual or implied authority in administering the Food Act;
(b) on 18 February 2019, Garlick carried out an inspection of the ICF premises in her capacity as an authorised officer under the Food Act;
(c) during the 18 February 2019 inspection Garlick did not wear a body worn camera, planted a live slug on ICF's premises, and prepared a handwritten report of her inspection;
(d) Garlick subsequently told Johnson that she had found a live slug at ICF's premises and provided her with a copy of her inspection report;
(e) Johnson formed the view that the ICF premises was not fit for food production and directed Garlick to issue the clean order and the food safety order, in circumstances where those orders were not supported by Garlick's inspection report and were based on a false observation;
(f) on 20 February 2019, and again on 21 February 2019, Johnson and Garlick inspected ICF's premises in their capacities as authorised officers under the Food Act;
(g) prior to or around 23 February 2019, Johnson and/or Garlick gave a copy of the clean order and food safety order to DHHS, along with a food safety audit report and an inspection report from 2015 which identified safety issues in relation to ICF;
(h) the provision of the food safety audit and inspection reports from 2015 was intentionally misleading in that the safety issues identified by those reports had subsequently been remedied;
(i) on 21 February 2019, Johnson informed an officer of DHHS that she had attended ICF's premises and found its cleaning practices to be unsatisfactory and that a closure order should be issued to shut down food production at the ICF premises, which was intentionally or recklessly misleading as, among other things, ICF had satisfactory cleaning practices in place;
(j) the then-acting Chief Health Officer was influenced by the clean order and food safety order, the 2015 safety audit and inspection reports and the information provided by Johnson in making the decision to shut down ICF's operations;
(k) Garlick, in preparing her inspection report and providing it to Johnson and/or DHHS, acted maliciously and/or with reckless indifference, and with the intention of closing ICF down;
(l) Johnson made intentionally or recklessly misleading statements to DHHS and acted maliciously and/or with reckless indifference, and with the intention of closing ICF down;
(m) as a result, ICF suffered loss and damage; and
(n) the Council is vicariously liable for the acts and omissions of Garlick and Johnson.
25 On 6 April 2021, the Council filed a defence denying ICF's allegations against it and many of the allegations made against Garlick and Johnson, and denying that on the facts alleged, Garlick or Johnson had committed any tort. The Council admitted that if, despite that denial, Garlick or Johnson were found to have committed any tort, then it was liable for that tort.
26 In late January 2022, ICF foreshadowed an application to amend its pleading. The proposed amendment sought to introduce a claim for malicious prosecution against the Council in relation to withdrawal of the charges against ICF and Cook. By summons filed on 18 January 2022, ICF applied for leave to file and serve a further amended statement of claim ('first proposed FASOC') and to vacate the trial date. The malicious prosecution claim foreshadowed by ICF against the Council in January 2022 in the first proposed FASOC was based on the following:
(a) reliance on many of the facts pleaded in support of a misfeasance in public office claim;
(b) that on or about 23 May 2019, Johnson falsely and maliciously and without reasonable or probable cause issued the charges.
(c) that Johnson and/or Garlick altered body camera footage and photographs taken during their inspections that were included in the prosecution brief, and that another Council officer influenced a witness (also a Council officer) to amend her witness statement to include observations of the ICF premises that were never made by her and were incriminating;
(d) that on or about 3 October 2019, Johnson and/or the Council withdrew all the charges; and
(e) the conduct of Johnson and/or the Council contributed to the complete loss of the ICF food business.
27 The Council opposed the application to amend the pleadings on grounds that inadequate reasons had been given explaining why the application to add a claim of malicious prosecution was made at such a late stage, and that the claim was inadequately pleaded. In advance of the directions hearing scheduled for 31 January 2022, the Council filed an affidavit of its solicitor Siobhan Sheppard which, in so far as it concerned the malicious prosecution claim, complained that the allegations had only been raised on the eve of trial when the matters the subject of the allegations had been the focus of extensive prior media reporting, police investigations and a parliamentary inquiry.
28 At a directions hearing on 31 January 2022, Baker JR made orders vacating the 14 February 2022 trial date, that ICF pay the defendants' costs thrown away as a result, and that the hearing of the 18 January summons be adjourned to 23 February 2022.
29 On 3 February 2022, the Council's solicitors sent a letter to ICF's solicitors setting out the Council's reasons for opposing the proposed amendments. In respect of the malicious prosecution claim, the letter criticised the lack of adequate explanation for seeking to raise the new claim a year after the Council had been joined as a defendant. It asserted that the claim would lengthen the trial 'considerably' and complained about the adequacy of the pleaded allegations. The Council did not assert that the ICF Proceeding was an inappropriate vehicle for the malicious prosecution claim.
30 On 15 February 2022, ICF delivered a revised proposed amended pleading from which the allegations of malicious prosecution set out at [26] above had been removed. The only explanation given for this revision in the covering letter from ICF's lawyers was as follows:
We refer to previous correspondence and have considered the matters raised by you and have made substantial amendments to our proposed FASOC, and enclose a final draft [.]
ICF pressed its application in respect of a substantial number of its other proposed amendments.
31 Cook said, in relation to the application to add a malicious prosecution claim and the decision not to pursue it:
The view that was [taken] by me was that the amendment of the first proceeding so as to introduce a claim for malicious prosecution did not really serve to add anything to the overall claim for damages that was [being] primarily pursued against the State of Victoria...
At that time the proceeding was dragging on and the harm which had been occasioned to ICF was significant in terms of its ongoing losses. I was keen to ensure that the proceeding could be brought to trial at the earliest opportunity. I was also concerned about the extent of the costs of the first proceeding which was being wholly funded by me...
32 On 4 and 7 March 2022, the 18 January summons was heard by Baker JR. On 22 July 2022, Baker JR made orders granting leave to ICF to file and serve the proposed revised further amended statement of claim excluding some new allegations sought to be pleaded in support of a misfeasance claim. In his Ruling of the same date, Baker JR accepted ICF's submissions that allowing the amendments would:
... assist in elucidating the real issues in dispute, and that allowing full scope of the dispute (that is, the issues arising from events both up to and including, and after, the issue of the February notices) to be dealt with at once will facilitate the timely and cost-effective resolution of the dispute by avoiding multiplicity.
33 On 28 October 2022, John Dixon J dismissed ICF's appeal from the orders made by Baker JR.[27] On 9 November 2022, an order was made fixing the proceeding for trial on 24 July 2023 on an estimate of 15 to 20 sitting days.
34 ICF filed a summons on 9 June 2023 applying for leave to make further substantive amendments to its pleading ('second proposed FASOC'), including the addition of particulars of conduct alleged to demonstrate Garlick's bad faith in issuing the Food Act orders. Those particulars included that:
(a) on 18 February 2019 Garlick attended ICF's premises, planted the live slug, photographed the slug and prepared her handwritten report on the state of ICF's premises citing the presence of the slug;
(b) Garlick acted maliciously and/or with reckless indifference, with the intention of prosecuting ICF in order to progress her own career at the Council by creating a basis for issuing or causing the issue of the charges;
(c) in May 2019, Garlick wrongfully and without a proper basis, and together with Johnson, caused the charges to be laid;
(d) Garlick doctored or caused to be doctored the slug photograph;
(e) Garlick included the doctored slug photograph in the brief of evidence in the criminal proceeding;
(f) Garlick and Johnson knew the Council would offer career progression opportunities for officers who were able to recover substantial monetary fines from ICF;
(g) Garlick and Johnson sought to progress their careers with the Council by creating a basis for issuing or causing the issue of the charges, which would likely attract significant monetary penalties for the Council;
(h) on 3 October 2019, the Council unequivocally withdrew all the charges; and
(i) by reason of the matters alleged against Garlick and/or the Council, including the above, they contributed to the loss and damage to ICF including the total loss of the ICF food business.
35 In its submissions in support of the application, ICF argued that the amendments were necessary to ensure that the real controversy between the parties could be determined at the trial of the ICF Proceeding and to establish the necessary elements of the pleaded causes of action. It submitted that the amendments did not seek to revive any allegation of malicious prosecution, but rather served to particularise the allegation of bad faith. However in an affidavit filed in this proceeding Cook described the application as '[raising a] claim for malicious prosecution'.
36 The defendants opposed ICF's application on the grounds that the amendments would require further discovery and evidence, and permitting them would necessitate the vacation of the trial date in circumstances where no adequate explanation was provided for the delay in raising the allegations, especially those which had previously featured in ICF's earlier amendment application. In this regard, the Council contended that the particulars which referred to Garlick and/or Johnson having caused the prosecution of ICF and Cook on the charges in the absence of reasonable and probable cause effectively sought to re-introduce the claim for malicious prosecution that ICF had abandoned in mid-February 2022.
37 On 20 and 23 June 2023, Matthews J heard ICF's application. Her Honour made orders on 23 June 2023 dismissing the application and giving her reasons in 'Other Matters'. The orders summarised the parties' submissions as set out above. Her Honour said, at paragraph III of 'Other Matters', that her 'main reason' for dismissing the application was 'that [allowing] it would mean that the trial date would have to be vacated'. At paragraph EEE of 'Other Matters', her Honour said:
... In respect of the abandoned amendments, ICF submits that previously abandoning proposed amendments does not present a barrier to them being raised now, that it is different say to trying to revive allegations which were previously struck out. That may well be the case, but it does beg a fairly obvious question: what is the explanation for seeking to include those amendments now when ICF clearly turned its mind to them around 18 months ago and then abandoned them over a year ago? I accept the submissions of the State and the Council in this regard. ICF may be right that the prosecution of ICF and Mr Cook may be being used differently in the [second proposed FASOC] than what [it] was in the [18 January 2022 application], but that is not significant. What is significant is that the same factual matters to support the malicious prosecution allegation are now sought to be relied upon as an instance of the bad faith allegation, and that requires additional discovery and evidence as the Council submits.
... ICF was then left in the position of pursuing its primary complaint against the State of Victoria with a residual claim against the Council for misfeasance. I understood that the damages in respect of the misfeasance issue were of the same nature as the damages which were sought against the State of Victoria. Some of the allegations in the misfeasance claim were relevant to the claim against the Council.
39 Despite there being no claim for malicious prosecution in the ICF Proceeding, ICF's written opening trial submissions referred to:
[Johnson], as the informant for [the Council] initiated a prosecution containing approximately 96 charges against ICF and Ian Cook personally in the Magistrates [sic] Court. [The Council] unequivocally withdrew all charges in open court at hearing.
40 On 25 July 2023, the ICF Proceeding settled as between ICF and the Council. The following orders were made by McDonald J by consent on that date:
The trial of the first proceeding was listed to commence on 31 July 2023. One of the areas of concern that I had on behalf of ICF, was the possibility that continuing with the claim against the Council might serve to be something of a distraction from the pursuit of the main complaint against the State of Victoria Given that ICF had not been able to pursue its claim for malicious prosecution it seemed to me that there was a benefit to be had in contracting the issues which were to be the subject of the forthcoming trial by removing the Council from the first proceeding. It would mean that the trial could proceed as against the State of Victoria only, with a consequential saving of time and cost as far as trial duration was concerned.
All parties in the first proceeding participated in a mediation on 25 July 2023. An agreement was reached between ICF and the Council for the dismissal of the claim as against the Council and a waiver of all cost orders by either party. ICF did not provide a release to the Council.
I was well aware that in the first proceeding we were up against two governmental bodies whose resources were well beyond those of ICF. The prospect of engaging in a prolonged trial with both the State of Victoria and the Council was a matter of real concern to ICF. By this time we had been displaced from our business for more than 4 years and the losses that had been incurred by ICF were enormous. We had a limited capacity to fund the trial, which depended wholly on my personal capacity to raise funds, and I was running out of resources. I had already borrowed funds to pay for some of ICF's costs.
42 After ICF's claim against the Council was dismissed, the following matters were published in the media:
(a) In an article in the Herald Sun on 26 July 2023:
But the matter is not over, an I Cook spokesman said on Wednesday. 'ICF is about to immediately launch new proceedings against the [Council] on a new legal basis' ... 'The new case against council is malicious prosecution and it will be all about the slug.' A key plank of the I Cook case was that a health inspector left a slug in the kitchen of the business in an act of sabotage.
(b) In an article published in the Dandenong Star on 26 July 2023:
Case not over: I Cook's new 'malicious prosecution' claim
I Cook Foods has announced it will launch "malicious prosecution" claims against Greater Dandenong Council officers - a day after dropping a civil case against Greater Dandenong Council.
...
However, ICF owner Ian Cook said ... 'All of the allegations are true. This is not over by a long shot.' ... [ICF] settled with Council yesterday IN THIS CASE ONLY.' ICF would launch a new civil case against the council for 'malicious prosecution', Mr Cook said.
(c) In a post on X (formerly Twitter) on 26 July 2023 under the name Ben Cook:
I Cook Foods - Food Manufacturer - Delivered Meals on Wheels, Hospital Food Service, Aged Care. Fighting for my family, our business and our employees.
Our action against the Dandy Council is not over. New advice to let Council out of the current case and then sue them in a separate case was the best way forward, Council didn't know the 2nd case was coming but they do now it doesn't stop here!
(d) In an interview on Sky News on 27 July 2023, Cook said:
... we were advised to let the City of Greater Dandenong out as a tactical thing ... surprised Dandenong took the bait and said yes because we had every intention on [sic] taking them on in a more appropriate forum and that is for malicious prosecution.
The city of Dandenong may have popped a few champagne corks last night and thought that they were off the hook. They're not you know the steam train's still coming towards them. Myself and my family on behalf of my previous employees we're not going away. We're going to take this fight up to them. The advice was this was a much more appropriate way of doing it and would have a greater likelihood of success ...
(e) In an article in the Herald Sun on 3 August 2023:
Once [the ICF Proceeding] is out of the way, says Cook, he is going to personally reissue a fresh set of claims against Dandenong Council employees for malicious prosecution.
Cook gave no evidence in this proceeding explaining the above media publications.
43 In a letter dated 22 August 2023, the Council's solicitors wrote to ICF's solicitors referring to the media statements extracted above. The letter explained why any new proceeding issued would likely be met with an application by the Council to have it dismissed or stayed on the basis of abuse of process. The letter stated:
It is clear that your client's proposed malicious prosecution claim would raise the same controversy about Ms Garlick's inspection of the ICF Food Premises on 18 February 2019 and the observations of Ms Garlick that informed the 37 specified steps in the Clean Order, including the allegation that Ms Garlick planted the slug. Indeed, Mr Cook and the unnamed ICF spokesman have said as much in their recent media statements (eg "The new case against council...will be all about the slug" and "the slug... represented four of the charges"). These were central issues in the Proceeding, and both parties filed expert evidence in relation to these matters.
44 The trial of the ICF Proceeding was heard by McDonald J in August and September 2023. His Honour delivered Judgment on 13 November 2023.[28]
Following the completion of the trial against the State of Victoria I then considered the pursuit of a claim for malicious prosecution against the Council. That would include a claim not only by ICF but also by myself. We had each been charged separately with 48 offences under the Food Act.
I subsequently instructed lawyers on behalf of myself and ICF to draft a statement of claim against the Council so as to allege malicious prosecution. I was keeping my options open as I was aware of the possibility that ICF's claim for damages in the first proceeding might not be successful.
In the circumstances where no damages had been ordered in favour of ICF, the possibility of pursing the Council for damages for malicious prosecution became all the more important from the perspective of myself and ICF. On 24 November 2023 I, together with ICF, filed the current proceeding seeking damages against the Council.
46 The plaintiffs commenced this proceeding by writ and statement of claim filed 23 November 2023. The plaintiffs plead claims of malicious prosecution and misfeasance in public office against the Council, Johnson and Garlick. Those claims are based on the same essential material facts pleaded and proposed to be pleaded in the ICF Proceeding.
47 By summons dated 13 February 2024, the defendants applied for orders dismissing the proceeding, or in the alternative to permanently stay the proceeding, pursuant to r 23.01 of the Rules. The application was heard by an Associate Judge on 23 April 2024.
48 On 27 August 2024, the Associate Judge delivered the refusal decision dismissing the application.
49 On 10 September 2024, the defendants filed a notice of appeal from the refusal decision.
50 The Associate Judge found there was a sufficient identity of parties and a significant overlap in the matters pleaded in the two proceedings. The Associate Judge then said:
However, as the cases reveal, a connection between parties and an overlap in issues is not sufficient. Those matters might serve to answer the question whether the claims 'could' have been brought in the earlier proceeding, but not whether they 'should' have been. To determine if there is an abuse, the Court must undertake 'a broad, merits-based judgment', taking into account all of the circumstances, where the 'guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice'.[29]
51 The Associate Judge said it was relevant that while a malicious prosecution claim had been foreshadowed in the ICF Proceeding, pleading amendments to advance that claim by ICF were either not pursued or disallowed, and no malicious prosecution claim was ever foreshadowed on behalf of Cook personally.[30] The Associate Judge considered that had a malicious prosecution claim been made in the ICF Proceeding, additional discovery and evidence would have been required. The Associate Judge did not accept that the Council was 'being twice, or otherwise unduly, vexed' in respect of the malicious prosecution claim.[31]
52 The Associate Judge found that while the misfeasance claim was litigated against the Council in the ICF Proceeding, that claim was not 'finally determined' and there was no 'determination on the merits of the claim'.[32] The Associate Judge concluded that this reduced the degree of oppression because 'none of the Council's witnesses were required to give evidence or submit to cross-examination, and the alleged conduct of the Council was not the subject of any public examination'.[33] The Associate Judge concluded that the degree of duplication of interlocutory steps between the two proceedings could be reduced by appropriate case management. The Associate Judge said:
Responding to interlocutory applications is a fairly ordinary incident of hard fought litigation, as are attempts at appropriate dispute resolution. Aside from these matters and its duration, the defendants do not point to any other particular or extraordinary feature of the manner of conduct of the ICF Proceeding to lend further support to their oppression argument.[34]
53 The Associate Judge did not accept the defendants' submission that the psychological impact of the two proceedings on Johnson and Garlick was a significant element of oppression. The Associate Judge said that:
... the oppression described by the defendants does not extend unreasonably beyond the normal level of oppression, impact or inconvenience that attends all litigation.[35]
54 The Associate Judge addressed the submission by the defendants as to the importance of the public and private interest in the finality of litigation, noting that the claim against the Council in the ICF Proceeding was withdrawn and that 'no releases were given'. The Associate Judge said:
In these important respects, this case stands in contrast to that of UBS where one plaintiff pursued its claims in the NSWSC to final determination against UBS while the other plaintiffs discontinued their claims against UBS with a 'view to bringing [the dispute] in another court after the determination'. In that case, the plaintiffs sought to remove themselves from the NSWSC proceedings to avoid being bound by the outcome. Here, ICF withdrew its claim against the Council entirely. Mr Cook's evidence on this issue, which I accept, is that ICF did so in order to focus its attention and finite resources on its pursuit of separate claims regarding the making of the closure order against an unrelated defendant, being the State of Victoria. It did not keep a claim on foot against the Council and hive off other claims against it with a view to pursuing them based upon whether that initial claim succeeded.[36]
55 The Associate Judge did not accept that Cook and ICF employed a strategy to bring the current proceeding in the event that they were unsuccessful in the ICF Proceeding, or that any such strategy amounted to an abuse of process:
(a) First, I do not accept that ICF or Mr Cook had any 'stratagem' in 2022 which could be described as '[h]iving off [a claim], with a view to bringing it ... after the determination' of the earlier proceeding. ICF's decision to remove the malicious prosecution allegations from its draft proposed amended pleading in February 2022 was made long before the dismissal of the ICF Proceeding. That decision is explained by Mr Cook, in evidence that I accept, as a decision to rationalise the issues before the Court in early 2022 to preserve ICF's scarce financial resources and to enable it to pursue its primary claim against the State. I do not consider that such a decision involves any underhanded or improper use of court resources, or in itself causes improper oppression to the present defendants.
(b) Second, I am also not satisfied that there was any strategy to abuse the Court's processes when the ICF Proceeding against the Council was dismissed by consent in July 2023 before ICF and Mr Cook then commenced this proceeding. Mr Cook gives frank evidence regarding his concerns about resources and the need to streamline the ICF Proceeding once the application to amend was dismissed by Matthews J, which eventually lead to the consensual dismissal of the ICF proceeding against the Council. Mr Cook also gives frank evidence that after the judgment was delivered in the ICF Proceeding, and having not obtained damages against the State of Victoria, his claims against the defendants here assumed an even greater importance... I do not take Mr Cook's evidence to be anything more than an acknowledgement that, as a result of his failure to recover damages against the State, all of his, or ICF's, eggs were now in one basket. Even if by stating that '[he] was keeping [his] options open', Mr Cook means that he deployed a conscious litigation tactic of separating out proceedings and claims against different defendants to spare resources, that is vastly different to the strategy so obviously (and abusively) deployed in UBS of a plaintiff (and entities he controlled) pursuing claims against the same defendant in the hope of achieving a different outcome in a different forum.[37]
I am not satisfied that there has been, in this case, the kind of 'tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation', that was deprecated in UBS. The plaintiffs may never have needed to vex the Council, Ms Garlick and Ms Johnson with a further proceeding.[38]
56 The Associate Judge concluded that, having taken a broad merits-based approach to the question, she was not satisfied that the proceeding ought be dismissed or stayed as an abuse of process.[39]
57 The defendants rely on the following grounds of appeal:
58 It is convenient to consider these grounds together.
59 The following key features of the proceeding are relevant to this appeal:
(a) it substantially replicates the ICF Proceeding, which was litigated by ICF against the Council for two and a half years and which those parties agreed to have dismissed by this Court;
(b) the additional parties - Cook, Johnson and Garlick - are no more than the people through whom ICF and the Council acted in all circumstances relevant to both proceedings;
(c) the claim for malicious prosecution was not made in the ICF Proceeding, but that was because ICF had foreshadowed and abandoned it in January 2022, and then in June 2023 was unsuccessful in seeking leave to add it late, in light of the earlier abandonment;
(d) the underlying factual circumstances are identical to those in the ICF Proceeding, which proceeded to judgment in respect of the remaining defendant and involved significant fact-finding, giving rise to the potential for inconsistent fact-finding here; and
(e) ICF and Cook's explicitly 'tactical' strategy was to settle the ICF Proceeding with the Council, to continue that proceeding seeking damages from the State, and to 'reissue' this proceeding if ICF was unsuccessful in obtaining such damages.
60 The fact that a claim has not been heard on its merits cannot be determinative of whether the later proceeding is unjustifiably oppressive. The abuse complained of by the defendants is not that it would be twice vexed in respect of a claim for malicious prosecution, but that the plaintiffs are invoking the processes of this Court to litigate claims that could and should have been litigated in the ICF Proceeding. To the extent that the Associate Judge was not satisfied that the malicious prosecution claim should have been brought in the ICF Proceeding, that appears to be based on her Honour's erroneous endorsement of ICF and Cook's strategy in reserving that claim. The fact that those claims were not litigated in the earlier proceeding is entirely due to ICF's decision (made by Cook) to withhold the claim when it first occurred, and to seek to advance it (or something substantially similar to it) at a very late stage, with the effect that this Court quite rightly declined to permit the amendment. Had they wished to bring that claim, it was incumbent on them to bring it and join Cook as a plaintiff at an appropriate time in the extant proceeding,[40] or to appeal Matthews J's orders made in June 2023. It is not in the plaintiffs' favour, or to their credit, that the malicious prosecution claim was not made in the ICF Proceeding.
61 No careful case management may cure the oppression of having defended a claim for two and a half years and incurring significant costs; determining to settle it[41] on the basis that it would be dismissed, and foregoing substantial existing costs entitlements; then having to once more embark on defending it because the plaintiffs failed to obtain damages against a different party. The abuse is not in how ICF conducted the ICF Proceeding, but is in having to defend substantially the same litigation for a second time. It is additionally relevant that the claims that have been held in abeyance in this case - misfeasance in public office and malicious prosecution - are of a most serious kind that call into question the integrity and professionalism of those involved.[42]
62 The Associate Judge was plainly wrong to find that the dismissal by consent of ICF's misfeasance claim against the Council in the ICF Proceeding was something other than a final determination of ICF's claim of misfeasance. The law is clear that judgments or orders made by consent of the parties, including orders that a claim be dismissed, are 'as efficacious and binding as those pronounced after a contest',[43] and that '[t]he fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it'.[44] The claim was obviously conclusively determined by this Court on 25 July 2023 and cannot now be re-litigated.
63 The finding by the Associate Judge that the plaintiffs did not deliberately employ a strategy that was abusive of this Court's processes is contrary to the evidence.[45] The finding that 'ICF withdrew its claim against the Council entirely'[46] is inconsistent with the agreement that ICF's claim would be dismissed with no order as to costs (contrary to the ordinary costs position that would apply where a plaintiff withdraws or discontinues), and all costs orders as between ICF and Council are set aside.
64 In his evidence, Cook does not say that the decision not to bring a claim for malicious prosecution in the ICF Proceeding and the agreement to have the claim against the Council dismissed were a way of managing resources.
65 That the related parties in UBS continued to maintain a claim against UBS (as opposed to withdrawing or settling all claims) is not a relevant factor on which to distinguish the present proceeding. Contrary to the Associate Judge's conclusion, there has been, in this case, the exact 'tactical manoeuvring that impedes the 'just, quick and efficient' resolution of litigation' which was disapproved of in UBS.[47]
66 The combined effect of the foregoing submissions is that the Associate Judge was wrong to reject the defendants' submission that this proceeding 'is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys'.[48]
68 There is nothing exceptional to this case. Tactical decisions by a litigant are a part of the process of litigation, and public utterances as to the thrust of those tactics are meaningless. The summary dismissal of this proceeding is a serious step which of itself would undermine public confidence in the administration of justice. The proceeding raises serious allegations against an elected local government. There are no real impediments to the progression of this proceeding. The appeal should be dismissed.
69 There is nothing particularly unique about the history of the ICF Proceeding that makes the continuation of this proceeding oppressive. Even if an element of oppression is found, it does not follow that a stay is automatic. The next step is to consider whether the effects of oppression can be ameliorated by, for example, case management - a factor which was specifically addressed by her Honour. Case management can include discovery based upon the discovery in the first proceeding and expedited trial orders.
70 The key consideration when determining whether there is an abuse of process on the basis of the re-litigation of a claim is 'the terms and finality of the findings as to the issue'.[51] Where there has been no trial, there has been no finding on any issue as between the plaintiffs and the defendants. The entry of a consent order dismissed the ICF Proceeding as against the Council, but not because of any determination of the Court.
71 The defendants' third appeal ground necessarily invites a determination that the fact-finding of the Associate Judge was 'glaringly improbable or contrary to compelling inferences'.[52] The finding that the plaintiffs were not engaged in the strategy was not made in the context of a trial where close scrutiny is applied to vive voce evidence, and was reasonably open on the basis of the affidavit evidence.
72 Even if there was such a strategy, it is not determinative of the question as to whether a stay should be ordered. While any such strategy might have minor relevance, whether a stay is granted is an objective question determined by matters of substance and not form. What is important is 'the objective effect of the continuation of the action'.[53] The Associate Judge's findings were open to her and were correct.
73 Cook was at all times the controlling mind of ICF.
74 At the heart of every claim made by Cook in each of the pleading iterations in the ICF Proceeding, and in the statement of claim in this proceeding, are allegations that:
(a) Garlick planted a slug at the ICF premises at an inspection on 18 February 2019;
(b) Garlick and Johnson falsely reported a failure to maintain the ICF premises in the manner required by the Food Act;
(c) Garlick and Johnson acted maliciously and for an ulterior purpose; and
(d) the conduct of the Council, Johnson and Garlick caused ICF/Cook loss and damage.
75 All material facts alleged by ICF and Cook to support the malicious prosecution claim were known by them when they joined the Council to the ICF Proceeding. Cook chose at that time what claims to make against the Council and how to formulate those claims.
76 In the first proposed FASOC, malicious prosecution was alleged not just in relation to ICF but also as against Cook. It was a matter of Cook's choosing that no application was made at that time or at any other stage in the ICF Proceeding for him to be joined as a plaintiff.
77 The timing of the application in January 2022 to add a claim of malicious prosecution in the ICF Proceeding, three weeks before the date fixed for trial, and the decision in early February 2022 not to proceed with that aspect of the amendment application after the trial date had been vacated, are matters that were exclusively in Cook's hands. The lateness of the application and the impending trial date were good reasons for it to be opposed by the Council. That basis for opposing the amendment largely fell away when the trial date was vacated. There is little apparent logic in Cook's explanation for not proceeding with the application to add the malicious prosecution claim in circumstances where he was intent at that time on proceeding against the Council for misfeasance in public office. Damages on the misfeasance claim against the Council would appear to be largely common with the damages claim advanced against the State. Presumably a choice was made to proceed with that claim at that time because of the obvious risk that the claim against the State may not succeed. The prosecution was initiated some months after the closure orders were made. Damages awarded on success in a malicious prosecution claim would be largely distinct from and additional to any damages awarded on the misfeasance claim.
78 I have no hesitation in concluding that Cook had a sufficient opportunity to make the malicious prosecution claim and the misfeasance claim, as they are now pleaded, in the ICF Proceeding.
79 The explanations given by Cook for agreeing to the ICF Proceeding being dismissed against the Council and for commencing this proceeding cannot be accepted. Although the claims made against the State and the Council in the ICF Proceeding were related, the outcomes of those claims were independent. Both claims were being vigorously defended. If the plaintiffs believed that there was merit in those claims, the logical course was to prosecute both in the one proceeding. The course adopted by Cook of agreeing to the ICF Proceeding being dismissed against the Council, then commencing the current proceeding, only added to his costs burden.
80 The media reports in late July and early August 2023 confirm that Cook always intended to bring a malicious prosecution claim against the Council. Cook has given no evidence on this application to explain the media reports. The inescapable inference to be drawn from those reports is that the agreement for the ICF Proceeding to be dismissed against the Council was not related to limited resources, but was a forensic choice by Cook to avoid an adverse outcome in that proceeding and to commence a fresh proceeding that included the malicious prosecution claim.
81 I accept Cook's evidence to the effect that the failure to recover damages from the State in the ICF Proceeding is likely to have increased his motivation to bring this proceeding.
82 The forensic choice Cook made to '[keep] his options open' by holding back the malicious prosecution claim and agreeing to the ICF Proceeding being dismissed against the Council with no order as to costs until he learned whether the claim against the State succeeded is precisely the type of conduct deprecated by plurality in UBS.[54]
83 The prosecution of this proceeding is clearly oppressive to the defendants. The Council was required to defend the claim in the ICF Proceeding, that was based on the same essential material facts, for almost two and a half years at considerable cost. It agreed to the proceeding against it being dismissed with no order as to costs on the basis that the claims made against it in respect of the pleaded allegations were at an end. Further, it is likely that defending the ICF Proceeding consumed considerable Council resources and resulted in significant lost time and distraction. Inevitably, the cost, time and resources that the Council will be required to expend in this proceeding will be a duplication of those wasted in defending the ICF Proceeding. It is not clear to me how case management in this proceeding can adequately protect the Council from the duplication of costs and waste of resources that will result if the proceeding continues.
84 Very serious allegations have been made by Cook against Garlick and Johnson in the ICF Proceeding and again in this proceeding. No doubt, from the time the Council was joined to the ICF Proceeding, Garlick and Johnson would have been acutely aware of the impact that adverse findings against them in a court proceeding may have on their reputations and careers. The stress and strain associated with litigation was likely compounded by the media reporting and the notoriety of the underlying circumstances. I conclude that the strain imposed by the litigation on Garlick and Johnson, and the stress they will have experienced as a result, is likely to be considerable.
85 The forensic choices made by Cook would result in the vexation of the defendants again being required to respond to allegations and claims that should have been resolved in the ICF Proceeding. When the order dismissing the ICF Proceeding was made, it was reasonable for the defendants to proceed on the understanding that the disputes between them and the plaintiffs were at an end.
86 In the Full Federal Court decision in Tyne v UBS AG (No 2),[55] Dowsett J wrote a dissenting judgment that was ultimately vindicated in the High Court. His Honour expressed the interests of justice consideration as follows:
In considering whether conduct is likely to bring the administration of justice into disrepute, the Court will bring to the task its own experience as to the effect upon the right-thinking person of particular conduct in the course of legal proceedings. Without wishing to be prescriptive or exhaustive, I suggest that the right-thinking person would know that:
litigation is expensive, for the parties and for the public purse;
to engage in litigation is a serious business, causing stress and inconvenience, as well as cost;
there are delays in the legal system, and time spent on one case cannot be spent on other cases; and
a democratic society depends heavily upon the existence of a fair, efficient, effective and economical process for resolving disputes.
Such a person would expect that:
a party would only resort to the courts if he or she genuinely believed that he or she had a good case and intended to prosecute it to resolution, by judgment or agreement;
a party who has elected to go to court concerning a matter, would seek to resolve the whole dispute, not merely an aspect of it; and
where two or more persons claim to have suffered loss as the result of the same conduct, and those claimants are closely associated, personally or in business, they would generally seek to resolve their claims in the same proceedings, rather than in separate proceedings.
The right-thinking person would be aware that some or all of these considerations might not apply in a particular case, given the circumstances of that case. However, in general, where previous proceedings have been discontinued, and similar proceedings subsequently commenced, the right-thinking person would infer that there had been a loss of time, an increase in costs, some degree of repetition of process and undue vexation to the other party. Such a person would likely perceive that if the administration of justice allows such conduct, without any explanation, it is inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys.[56]
I adopt with respect his Honour's description of this consideration. I conclude that the public interest in facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties is not advanced by re‑litigation of the factual disputes common to the ICF Proceeding and this proceeding. Allowing the proceeding to continue is likely to give rise to the perception that the administration of justice in inefficient, careless of costs and profligate in its application of public moneys.[57]
87 Dismissal of the ICF Proceeding against the Council was a final determination of the misfeasance claim. There has been no hearing on the merits of the claims made in this proceeding. However, given that this is a result of the forensic choices made by Cook, it is not a consideration that weighs heavily against the unjustifiable prejudice to the defendants and the bringing of justice into disrepute that would result if the proceeding was to continue.
88 I conclude for the above reasons that the defendants have discharged the onus of establishing that the proceeding is an abuse of process. Given the test on appeal, it is not necessary that I address individually each of the defendants' grounds. However, my reasons make clear that I would allow the appeal on grounds 1, 3 and 5.
89 The defendants' appeal has succeeded. I will hear from the parties as to the form of orders which should be made.
[1] I Cook Foods Pty Ltd v Greater Dandenong City Council [2024] VSC 496 ('Refusal decision').
[4] The ICF Proceeding is S ECI 2020 02728, in which final Judgment was delivered by McDonald J in I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654.
[5] Wilson v Building Commission of Victoria [2015] VSC 629, [8]; Stubbings v Jams 2 Pty Ltd (2017) 53 VR 420 [31].
[6] [2023] HCA 32; (2023) 414 ALR 635 ('GLJ').
[7] Ibid [15], [17], [24], [26] (Kiefel CJ, Gageler and Jagot JJ), [95] (Steward J), [161] (Gleeson J).
[8] [1979] HCA 9; (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[9] GLJ (n 6) [26] (Kiefel CJ, Gageler and Jagot JJ).
[11] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 [7] (Kiefel CJ, Bell and Keane JJ) ('UBS').
[12] GLJ (n 6) [27] (Kiefel CJ, Gageler and Jagot JJ).
[13] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286.
[14] Angeleska (known as Slaveska) v State of Victoria [2015] VSCA 140; (2015) 49 VR 131 [156] ('Angeleska').
[15] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 214 [100], [101] (French CJ); Angeleska (n 14) [169].
[16] Civil Procedure Act 2010 (Vic) ss 23, 25.
[21] Ibid [39], [43]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25]-[26].
[23] Ibid [45] (Kiefel CJ, Bell and Keane JJ).
[24] Ibid [54]-[55] (Kiefel CJ, Bell and Keane JJ).
[25] Ibid [58]-[59] (Kiefel CJ, Bell and Keane JJ).
[26] Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 [35] ('Somanader'); Zphere Pty Ltd v Pakis [2022] VSC 496; (2022) 69 VR 338, 363 [81] ('Zphere').
[27] I Cook Foods Pty Ltd v State of Victoria & Anor [2022] VSC 649 (John Dixon J).
[28] I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654 (McDonald J).
[29] Refusal decision (n 1) [46]-[47] (citations omitted).
[40] Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [140]-[147] (Robson AJA, Harper JA and Neave AJA agreeing) ('Kermani').
[41] Johnson v Gore Wood & Co [2002] 2 AC 1, 32-33 (Lord Bingham).
[42] See Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 [205], [499], [503] (Ward CJ in Eq); Angeleska (n 14) [168].
[43] Somanader (n 26) [35]; Zphere (n 26) [69]-[83].
[45] Refusal decision (n 1) [53]-[55].
[47] UBS (n 11) [45] (Kiefel CJ, Bell and Keane JJ).
[48] Refusal decision (n 1) [56](e).
[49] Kermani (n 40) [97](2) (Robson AJA, Harper JA and Neave AJA agreeing).
[51] Kermani (n 40) [97](14)(c) (Robson AJA, Harper JA and Neave AJA agreeing).
[52] Fox v Percy (2003) 214 CLR 118 [29] (Gleeson CJ, Gummow and Kirby JJ).
[54] UBS (n 11) [54]-[55] (Kiefel CJ, Bell and Keane JJ).
[57] UBS (n 11) [59] (Kiefel CJ, Bell and Keane JJ).
I Cook Foods Pty Ltd
Greater Dandenong City Council
(2018) 265 CLR 77
(2017) 53 VR 420
(2023) 414 ALR 635
(1979) 142 CLR 531
(1994) 181 CLR 251
(2015) 49 VR 131
(2009) 239 CLR 175
(2015) 256 CLR 507
(2000) 178 ALR 677
(2022) 69 VR 338
(2012) 36 VR 130
(2003) 214 CLR 118
(2017) 250 FCR 341