PROPERTY LAW - Order for modification of a restrictive covenant made and authenticated - Court subsequently alerted by a third party to an earlier failed application in respect of the same land - Whether order for modification can be re-opened of the Court's own motion - Held: no. Bailey v Marinoff

PRACTICE AND PROCEDURE - Overarching obligation not to engage in conduct that is misleading or deceptive or likely to mislead or deceive - Whether Court has jurisdiction to enquire of its own motion into potential breach of the obligation after proceeding concluded - Held: no - Civil Procedure Act 2010 (Vic) ss 21, 29, 30, 31.

LEGAL PRACTITIONERS - Obligations to the Court - Earlier application not disclosed by practitioners for the plaintiff - Inherent jurisdiction of the Court to enquire into breach of an obligation to the Court - Whether that jurisdiction enlivened - Held: no.

1 In this proceeding on 12 February 2018 I made an order for the modification of a restrictive covenant, which was authenticated on 14 February 2018. Shortly thereafter, the Court was informed by a third party that a previous application for a less extensive modification of the same covenant over the same land had only recently been refused, by a different judicial officer. Neither the plaintiff nor its lawyers had informed me of that fact prior to the order for modification in this proceeding being made and authenticated. On being informed of that fact, I caused the proceeding to be relisted. My concern related to the proper administration of justice.

2 These reasons relate to two principal matters. The first is whether the Court has power to re-open the final order made and authenticated in this proceeding for the modification of the covenant. The short answer to that question is no. I gave brief reasons orally for that conclusion on 16 March 2018. These written reasons expand on those oral reasons.

3 The second matter relates to the obligations of solicitor and counsel appearing for the plaintiff in such an application. This is particularly important because applications for modification of a restrictive covenant are made at least in the first instance without a defendant. In this case, all beneficiaries of the covenant were notified of the application, and none sought to oppose it. It follows that the whole proceeding was heard without a defendant.

4 After being informed about the earlier proceeding, the Court enquired of the solicitor and counsel if they had been aware of it, and, if so, why it was not drawn to the Court's attention. Each gave evidence on oath, and put detailed and helpful submissions. After hearing those submissions, I did not consider that any further action was warranted, even if available, and indicated that in court on 7 May 2018. However, I do consider that there is merit in publishing reasons that record what occurred and, to the extent necessary, the detailed and helpful submissions put as to the Court's powers of enquiry into the conduct of legal practitioners, and my conclusions in respect of same. As I concluded that no further action was warranted, I will not identify the legal practitioners and expert concerned by name, and will redact the name of the plaintiff and other identifying details prior to publication of these reasons beyond the plaintiff and legal practitioners concerned, if so requested.

5 On 28 November 2017, the plaintiff ('Castlerea') made application for the modification of a single dwelling restrictive covenant ('Covenant') that burdened land at 33 Wilson Boulevard, Reservoir ('Land'). Castlerea was at that time the purchaser of the Land pursuant to a contract for sale from the registered proprietors, Katherine Scerri, Tessi Magro, Rita Magro and Michelina Borg as legal personal representatives of the former registered proprietor. Castlerea sought modification of the Covenant to permit up to five dwelling houses to be built on the Land. The application was made pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) ('PLA'), which enables modification of a restriction imposed by covenant where the Court is satisfied that the modification will not substantially injure the persons entitled to the benefit of the restriction.

6 The application was supported by an expert report ('Expert Report') prepared by a person with both titles and planning experience ('Expert'). The Expert Report identified the land that benefited from the restriction in the Covenant and made comment on previous modifications of covenants and other changes in the surrounding area. The application proceeded in the usual way in that it was made returnable initially for orders to be made for appropriate notification to beneficiaries of the Covenant. I made orders on 11 December 2017 requiring notification in the manner suggested by counsel for the plaintiff, being direct postal notification to the registered proprietors and registered mortgagees of all of the residential lots identified by the Expert as benefited, and notification to Darebin Council in respect of the benefited parkland or laneways. The order did not require notice of the application to be placed on the Land itself. As is usual, the order required the beneficiaries to be given information about the application and its adjourned date so that any beneficiary who wished to oppose it could appear on that day to do so.

7 I adjourned the application to 12 February 2018. On that day, I was satisfied on the basis of an affidavit of service sworn by the solicitor for Castlerea ('Solicitor') that the notification orders had been complied with, and no beneficiary had indicated any objection. No person, in particular no beneficiary, attended Court on 12 February 2018 to oppose the application. I was satisfied that the beneficiaries of the Covenant would not be substantially injured by the increase in the number of permitted dwellings, in particular on the basis of the Expert's evidence and the submissions of counsel for Castlerea ('Counsel'). I pronounced in court an order that the Covenant be modified to permit the construction of up to five dwellings on the Land. I authenticated that order on 14 February 2018.

Notification that there had been a previous application

8 Thereafter, events took an unusual turn. On 20 February 2018 my associate received a letter from landowners of a nearby property, 107 Broadhurst Avenue, Reservoir, Kevin and Dimmity O'Donnell (the 'O'Donnells'). In that letter, the O'Donnells said that they wished 'to ensure that the decision of Re Katherine Scerri & Ors (as Legal Personal Representatives of Giovanna Scicluna, Deceased) [2017] VSC 368, regarding the same land, was brought to the Court's attention in this matter'. In that case, which I will henceforth refer as Scerri,[1] Ierodiaconou AsJ had dismissed an application for modification of the Covenant i.e. the same covenant over the same land, by the vendors to Castlerea, to allow three dwellings. Her Honour published reasons for that decision.

9 The O'Donnells said in their letter that they had a 'two-fold interest in this matter'. The first was that they were defendants to an application for the modification of a single dwelling covenant burdening 6 Wilson Boulevard, Reservoir in which the plaintiff relied on the modification I had ordered in this proceeding as a precedent. That proceeding, Foudoulis v O'Donnell (S CI 2017 00193) ('Foudoulis'), is the subject of a reserved decision by Associate Justice Mukhtar. The second interest identified by the O'Donnells was that they had initially sought to object to the application in Scerri, until they established that they were not beneficiaries to the Covenant, and so had no standing to do so. They said that they had become aware of the application in Scerri because the Court in that application had ordered that a notice be placed on the Land, but were not aware of this later application by Castlerea in the absence of such a notice until 16 February 2018.

10 The Court requested a response from the Solicitor to the O'Donnells' letter, noting that I did not recall that 'the making and refusal of this earlier application over the same land, for a less extensive modification, was drawn to (my) attention in this application'. The request for a response further noted that:

Her Honour is concerned that the order for modification made by her in the purchaser's proceeding may have been made without reference to the earlier unsuccessful application by the vendors. This may raise an issue as to whether the order was made on the basis of a material mistake or non-disclosure, and for that or other reason is liable to be vacated, and the merits of the application for modification reconsidered.[2]

11 It was later established that none of the Solicitor, Counsel, or the Expert had informed me of this previous application for modification of the Covenant. In particular, I was not directed to the decision reported as Scerri. As it happened, however, I had dealt with that previous application at an early stage, and on the first return date of this application recalled the names of the legal personal representatives. The following exchange with Counsel took place on the first return date of this application:

Her Honour: Yes. So this is 33 Wilson Boulevard, Reservoir.

Counsel: Yes, Your Honour.

Her Honour: Now, it's currently owned by Scerri, Magro, Magro and Borg as executors.

Counsel: Yes.

Her Honour: Those names are familiar. Do you know if there's been a previous application made by those people?

Counsel: No, I don't have any instructions on that, Your Honour.

Her Honour: I might just ask my associate just to check.[3]

12 At my direction, my associate then checked the internal Court database to ascertain if there had been any previous application for modification by those persons. The database did not reveal any such application and I subsequently noted this to Counsel in the following exchange:

Her Honour: Yes. All right. So your proposed form of order - now, I'll just ask did we find any previous application by those people? There was a previous application but it was in a probate matter.

Counsel: Your Honour has got a very good memory.

Her Honour: Well, yes, it was sort of an unusual combination of names.

Counsel: Yes, I suppose four Maltese women ---

Her Honour: Yes.

Counsel: --- owning property together is ---

Her Honour: Yes. Well, presumably they were the children.

Counsel: And it must be, yes, as a result of a probate application that they became the ---

Her Honour: Yes, the legal personal representatives.[4]

13 Subsequent internal inquiries established that the previous application had not been correctly entered into the database, and because of that error it did not appear when the database was searched by my associate.

14 The Solicitor provided a written response to the Court's email of 21 February 2018 by letter dated 23 February 2018. That letter confirmed that Castlerea had purchased the Land from the applicants in Scerri and that Counsel did not refer to Scerri on 12 February 2018, but it did not indicate whether or not Castlerea, the Solicitor or Counsel were aware of the previous failed application in Scerri and that it related to the same land. The letter sought to distinguish the decision in Scerri from the decision in this application on the facts, because in that case there were no detailed plans and in this case there were. The Solicitor also submitted that as the O'Donnells were not beneficiaries of the Covenant it would not be appropriate to re-open this application and invite submissions from them.

15 As the issue appeared to me to be one of disclosure, in response to this letter I caused the Solicitor and Counsel to be informed that:

... her Honour wishes to hear the plaintiff, and may seek evidence on oath, on the following questions:

1. Did the directors of the plaintiff in S CI 2017 4818 know, at any time prior to the making of the order for modification in the plaintiff's favour, about the previous unsuccessful application made by the vendors of the subject land?

2. If so, did they tell their solicitors or counsel?

1. If so, why was the previous unsuccessful application not drawn to the Court's attention prior to the making of the order for modification?

The proceeding will be listed on the date you have indicated is convenient, being 7 March 2018, to consider any evidence and submissions on these questions, and whether the consideration of the plaintiff's application should be re-opened as a consequence, bearing in mind the obligations of disclosure on an ex parte application.[5]

Determination of the previous application: Scerri

16 It is convenient at this point to set out the course of the application in Scerri and discuss the reasoning.

17 The application for modification in Scerri was filed on 7 December 2016. It sought removal of the Covenant entirely, or its modification to permit three dwellings. Neither the Solicitor, Counsel, nor Expert who acted for the then legal personal representative plaintiffs were the same as those in this proceeding. The application first came before the Court, constituted at that time by me, on 2 March 2017. It was not ready to proceed, and was adjourned to 29 March 2017. On that day, the Court, also constituted by me, ordered direct postal notification of the application in respect of a small number of benefited lots, and that a notice advertising the application be placed on the Land.

18 It transpired that I was unable to sit on the adjourned date of the application, 1 June 2017, and on that date the Court was constituted by her Honour Associate Justice Ierodiaconou. The O'Donnells attended Court that day as potential objectors, and sought time to clarify if they were in fact beneficiaries of the Covenant. As a consequence, the application was further adjourned to 21 June 2017. The O'Donnells subsequently ascertained that although their property was derived from the same parent title as the Land, they were not, in view of the sequence of transfers out of that parent title, beneficiaries of the Covenant. Nevertheless, they filed an affidavit in which they made submissions against the application, which they requested that the Court, in its discretion, consider. The then plaintiffs through an affidavit of their solicitor responded in detail to those submissions.

19 Her Honour dismissed the application at the adjourned hearing on 21 June 2017. She published reasons that day.[6] Her Honour did not place any weight on the submissions put by the O'Donnells, who had conceded that they were not beneficiaries. On my analysis, she refused the application for one, or possibly, two principal reasons. First, the plaintiffs in that application sought to sell the Land with the Covenant modified, rather than develop it in an identified way. There were no specific proposals or plans before the Court. Her Honour also stated that there may be future injury to beneficiaries by reason of the precedent set by the modification.

20 These conclusions were distilled in the following paragraphs:

The plaintiffs have not provided any plans with specificity. This is unsurprising, as they seek the modification in order to sell the property. Nevertheless, as Riordan J stated in Oostemeyer, they have the burden of proving, as a matter of fact, that the proposed discharge will not substantially injure the relevant persons. That is, those with the benefit of the restrictive covenant. They must prove the negative.

In my view, they have failed to do so. The absence of objectors does not vitiate this conclusion. Nor does the fact that the land size is large with considerable depth, that the Tract report identifies the land as suitable for development, or that the plaintiffs are seeking to build up to three dwelling houses.

Without any plans with specificity, I do not accept the conclusion in the Tract report that there can be no substantial injury if the modification is made.

Indeed, if the land is modified, those with the benefit of the restrictive covenant may be injured, in the future, by the precedent created by the modification. There is no evidence to suggest anything other than the restrictive covenant remaining largely intact and unmodified on affected land, so that beneficiaries being able to enjoy its benefits. I do not accept the plaintiffs' submission that the Court can rely upon planning controls or zoning to ensure that there is no substantial injury in modification of the restrictive covenant. The burden of proof lies with the plaintiffs.[7]

21 To the untrained eye, these paragraphs are potentially capable of two readings. The broader reading is that her Honour considered that precedent was a potential injury that could arise from any modification (even if with detailed plans). The narrower reading is that the application was refused on the more limited basis that there were no such plans on the basis of which any injury could be assessed. Her Honour also considered and rejected other submissions put by the plaintiffs through their counsel.

22 On the narrower reading, Scerri was distinguishable from this application. On the broader reading, less so. Irrespective of how these paragraphs may be interpreted by non-lawyers, however, on correct legal analysis, it is the narrower reading that is, and must have been intended to be, the ratio i.e. rationale of the decision. This is because applications are determined on the evidence then before the presiding officer, which may of course be different in a subsequent application.

23 Shortly prior to the relisting on 7 March 2018 the Court was contacted by the solicitors acting for Counsel, who advised that he would appear through counsel on that day. Both Counsel and the Solicitor swore affidavits for that day in response to the Court's emails, which I will discuss shortly. New counsel for Castlerea also filed written submissions. Those submissions were directed to potential re-opening of the final authenticated orders, rather than to any question relating to the conduct of the legal practitioners. I raised the issue of the conduct of the legal practitioners in court, and adjourned the hearing to allow consideration of both questions on a later date. In particular, I sought submissions and any further evidence on two issues, identified in paragraphs 15 and 16 of Other Matters of the orders of 7 March 2018 to the following effect.

24 First, whether the Court has power to re-open the final order, and, if so, whether it should, 'due to the non-disclosure of the previous unsuccessful application in respect of the same covenant over the same land.' Secondly, whether either or both of the Solicitor or Counsel had breached the overarching obligation imposed on each of them by s 21 of the Civil Procedure Act 2010 (Vic) ('CPA') not to engage in conduct which is misleading or deceptive, or likely to mislead or deceive.

25 The proceeding was relisted on 16 March 2018 to that end. On that day, I ruled that the Court did not have power to re-open the final authenticated order for the modification of the Covenant, giving brief oral reasons. The issue of the conduct of the practitioners relating to the absence of disclosure of the previous application was further adjourned to 7 May 2018, in part because some further questions relating to that issue had emerged in the course of discussion between the bench and counsel on 16 March 2018.

26 The questions to be considered on that day were submitted in draft by counsel for the practitioners, and settled by me. I will set them out shortly. Ultimately, each of the Solicitor and the Counsel swore two affidavits, on which they relied. Two sets of written submissions were filed for each of the Solicitor and Counsel relating to the potential conduct issues, in addition to the initial submissions directed to whether the Court had power to re-open the final authenticated orders.

27 After consideration of all the submissions and evidence on 7 May 2018, I indicated that I would publish reasons and make some observations but said that I did not propose to take any further action in relation to the legal practitioners.

28 These reasons will address the two broad issues identified earlier. Firstly, whether the Court has power to re-open the final orders, and if so, whether it should. Secondly, to the extent the Court has jurisdiction, the questions relating to the conduct of the practitioners. Those questions as settled were as follows (with continuous numbering for ease of reference):

Civil Procedure Act

1. Where a civil proceeding has been finalised within the meaning of s 30(2) of the Civil Procedure Act 2010 ("the Act"), is the Court thereafter precluded from conducting an inquiry of its own motion into the conduct of a legal practitioner in the proceeding for the purpose of ascertaining whether the practitioner may have breached an overarching obligation prescribed by Part 2.3 of the Act?

2. If the answer is "no" to question 1, does the Court have jurisdiction to make orders, and if so, what orders concerning such conduct pursuant to:

(a) the inherent jurisdiction of the Court; and/or

(b) some other source of jurisdiction conferred upon the Court?

3. If the answer is "no" to question 1, is it open for the Court to find on the evidence before it that the solicitor for the plaintiff or counsel for the plaintiff engaged in conduct in breach of the overarching obligation imposed by s 21 of the Act, being conduct which was misleading or deceptive or likely to mislead or deceive, by reason of not informing the Court of the previous unsuccessful application for modification of the covenant?

Obligation of good faith on an ex parte application

4. Was the first return date of the application before the Court on 11 December 2017 an occasion to which the obligation of good faith (also described as an obligation of full disclosure) on an ex parte application attached?

5. If so, what was the content of that obligation? In particular, was it for the Court rather than the plaintiff to determine if the fact of the previous unsuccessful application was, or was not, material?

6. Did the obligation continue until the making of final orders?

7. Was the failure of the solicitor for the plaintiff to disclose to the Court the previous unsuccessful application for modification of the covenant in his affidavits sworn 27 November 2017 and 5 February 2018 or by express instruction to that effect to counsel a breach of that obligation?

8. Did counsel for the plaintiff breach that obligation on 11 December 2017; 12 February 2018 or at any time before the making of final orders?

29 My conclusion in relation to the first broad issue is that the Court does not have power to re-open the final authenticated orders in the circumstances before it.

30 The answers I would give to the questions relating to the second broad issue are:

Civil Procedure Act

1. Yes.

2. This Question was intended to elicit the source of any other disciplinary jurisdiction if the answer to Question 1 was 'Yes', not 'No' as the Question states. The answer to this Question, so corrected is: Yes the Court has a disciplinary jurisdiction in relation to professional misconduct, but it is not here enlivened.

3. Does not arise.

Obligation of good faith on an ex parte application

4. Yes.

5. The content of the obligation in the context of an application for modification of a restrictive covenant is to disclose fully and fairly the law and facts material to the identification and notification of beneficiaries. The legal practitioners for the plaintiff must make proper enquiries regarding such law and facts. Depending on the circumstances, the fact of a previous application concerning the same land may be material to the identification and notification of beneficiaries. It is for the Court to determine the materiality of a previous application. Accordingly, the prudent course is for all prior applications concerning the subject land, either known to the plaintiff or which could with reasonable diligence be discovered, to be disclosed to the Court.

6. Not in this case, because in this case the earlier application was not material to the notification of beneficiaries. In another case, an earlier application may be relevant to the identification or, or form of notification to, beneficiaries in which case the obligation of full disclosure would continue until the making of final orders. Further, the practitioners for the plaintiff remain under an obligation after notification to beneficiaries not to mislead the Court, and that includes an obligation to correct a misapprehension, such as to whether or not there had been a prior application, if the practitioner became aware that the Court was operating under that misapprehension. That did not, however, here apply.

7. Jurisdiction to answer not enlivened.

8. Jurisdiction to answer not enlivened.

31 The Solicitor deposed in his first affidavit that he first became aware of the previous application and the reasons for its refusal published as Scerri in late August 2017 when the O'Donnells referred to it in an affidavit filed in the Foudoulis proceeding. The Solicitor also acted for the applicant, Foudoulis, in that proceeding. He deposed that he sent a copy of the decision to the Expert, and to counsel in Foudoulis (who was not Counsel in this application). The Solicitor deposed that he received instructions to act for Castlerea in this application on 11 September 2017; realised at that time that Castlerea's application concerned the same land as in Scerri; and gave the directors of Castlerea a copy of Scerri.

32 He deposed that he briefed Counsel to appear for Castlerea, and Counsel told him that he was aware of Scerri. The Solicitor also had a joint exchange about Scerri with Counsel and with counsel for Foudoulis in relation to another proceeding in October 2017. Further, the Solicitor deposed that he had several conversations with Counsel in the course of this proceeding in which reference was made to the reasoning in Scerri. However, the Solicitor deposed that he did not, in his written communications with Counsel, state that Scerri related to the same land as in this application, and that he had no recollection of doing so orally.

33 In relation to the fact that the Court was not referred to Scerri in the determination of this application, the Solicitor deposed that:

The Castlerea proceeding came on for final hearing in this Honourable Court on 12 February 2018. I was not present in Court that day. No instructions were given to counsel that the Scerri proceeding was not to be brought to the Court's attention. I did not turn my mind to whether the Scerri proceeding was to be brought to the Court's attention. As far as I was concerned, the question was whether any beneficiary of the covenant was likely to be substantially injured by the proposed modification of the covenant in respect of an appropriately defined proposed development, which I saw as a question of fact unrelated to the previously determined application by the executors of the vendor. If this view was incorrect, I sincerely apologise. I most certainly had no intention to mislead the Court by not disclosing the decision in the Scerri proceeding in the Castlerea proceeding.[8]

34 In his second affidavit, the Solicitor deposed that he was unaware until the day the proceeding was relisted, 7 March 2018, that the Court had asked Counsel on the first return date whether there had been a previous application. He expanded on some personal matters to which he had referred in his first affidavit that meant his attention was focused elsewhere in January to 7 February 2018. The Solicitor then had two days at work, during which he was mainly preoccupied by the preparations for the Foudoulis hearing, before leaving for Tasmania for a week on the afternoon of Friday 9 February 2018. He deposed that, although Counsel had copied him into the email to the Court Counsel sent Friday 9 February 2018 containing the submissions for the hearing on 12 February 2018, he did not read them before the hearing. He did not consider that there was anything novel or out of the ordinary in this proceeding. In particular, he did not turn his mind to whether or not the written or oral submissions should refer to Scerri.

35 The Solicitor further deposed that he first became aware that 'Scerri might not have been referred to in the course of the hearings on 11 December 2017 and 12 February 2018' as a result of an enquiry made on 16 February 2018. That enquiry was made by counsel for the defendants in the Foudoulis proceeding, who were of course the O'Donnells, to counsel for Foudoulis. The Solicitor does not set out the nature of that enquiry, but it seems it was whether the Court had been informed of Scerri in this proceeding.

36 In his first affidavit, Counsel deposed that he became aware of Scerri in the course of his regular review of recent decisions of the Court relating to covenant modification. He did not depose as to when that occurred. He agreed that the Scerri decision was brought to his attention by the Solicitor in relation to another proceeding in early October 2017. He also agreed that thereafter he and the Solicitor had a number of discussions about the reasoning in Scerri in relation to various applications for modification of covenants, but did not recall if this proceeding was one of those in which they discussed Scerri.

37 Counsel deposed that he received the brief for Castlerea in this proceeding on or about 8 November 2017. The brief contained the contract of sale, and so revealed the names of the vendors. However, Counsel deposed that:

I did not, however, draw the connection at that time with the names of the plaintiffs in the Scerri decision. Nor did I draw the connection between the identity of the land to be the subject of the application in this proceeding and the land in the Scerri decision. Neither the contract of sale nor the section 32 statement made reference to the Scerri decision.[9]

38 Counsel deposed that he prepared draft orders proposing direct notification to all beneficiaries '(a)s the number of lots with the benefit was not considerable' and that on that basis no public notice would be required. He repeated those submissions before me on 11 December 2017. He deposed that 'At no time when making these submissions did I realise that the land that was the subject of the application before the Court in this proceeding was the same land as in the Scerri decision'.[10]

39 In relation to his submissions on 12 February 2018 in support of the modification, Counsel deposed that:

In preparing my submissions, I was aware of the reasoning in the Scerri decision. However I did not think it was relevant as a legal precedent and I still did not realise that it related to the same land and to the vendors in the contract of sale which was the subject of evidence on which I was relying in my submissions. I therefore did not bring the Scerri decision to the attention of the Court.[11]

40 In his second affidavit, Counsel deposed that he first learnt that the Land was the same as the land the subject of Scerri in the early evening of Friday 16 February 2018, after the Solicitor contacted him in relation to the enquiry by counsel for the O'Donnells in Foudoulis. He deposed that he told the Solicitor that he had not raised Scerri in this proceeding, because he was unaware that it concerned the same land. The Solicitor asked Counsel if the Court should now be informed that this application concerned the same land as in Scerri, and Counsel advised against it, as final orders had been made, and it appeared that the O'Donnells would raise it in the Foudoulis proceeding.

41 Counsel deposed that he checked the Solicitor's earlier general request for advice, and the advice given by him and another counsel, and confirmed that those documents did not give the address of the land in Scerri. He then checked his instructions in this proceeding and confirmed that they did not refer to Scerri, or instruct that the subject land was the same as in Scerri. He had deposed in his earlier affidavit that his brief included the contract of sale and s 32 statement, which would of course give the names of the vendors, the plaintiffs in Scerri.

42 I set out below the essential submissions put on the law. I will refer to the submissions put in relation to the facts of this case, the extent appropriate, in the discussion portion of these reasons.

Jurisdiction to re-open the order for modification of the Covenant

43 Both the Solicitor and Counsel submit that the order made on 12 February 2018, once authenticated, was final - whether characterised as a final order or a judgment. They submit that it follows that, in the absence of a specific statutory power to re-open it, the Court has no such power. Further, they both submit that none of the statutory powers that enable re-opening of a final authenticated order here apply.

44 The submissions of Counsel make two further points. First, if it was alleged that the judgment was procured by fraud that it would have to be at the instance of an affected party and prosecuted by a fresh proceeding. Secondly, that the jurisdiction conferred by s 29 of the CPA to make orders on breach of an overarching obligation would not enable re-opening of the substantive order as against Castlerea for two reasons. First, this jurisdiction in relation to an enquiry instigated by the Court ceases on the making of final orders. Second, even if the Solicitor or Counsel had breached any overarching obligation by the non-disclosure of the previous application, as Castlerea was not involved in that breach the orders could not be re-opened as against it.[12] I discuss the submissions on termination of this jurisdiction as it relates to an enquiry by the Court of its own motion under the next heading.

Jurisdiction under the CPA to consider the conduct of the legal practitioners

45 The first of the settled questions relates to the extent of the Court's power to enquire into possible breach of an overarching obligation imposed on a practitioner by the CPA. The obligation identified by me as potentially relevant in this case is that imposed by s 21. That section provides as follows:

21 Overarching obligation not to mislead or deceive

A person to whom the overarching obligations apply must not, in respect of a civil proceeding, engage in conduct which is -

(a) misleading or deceptive; or

(b) likely to mislead or deceive.

46 Section 29 of the CPA empowers the Court to enquire into possible breach of an overarching obligation. The section provides as follows:

29 Court may make certain orders

(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to -

(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;

(b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;

(c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including -

(i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or

(ii) an order for no interest or reduced interest;

(d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;

(e) an order that the person not be permitted to take specified steps in the civil proceeding;

(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

(2) An order under this section may be made -

(a) on the application of -

(i) any party to the civil proceeding; or

(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or

(b) on the court's own motion.

(3) This section does not limit any other power of a court to make any order, including any order as to costs.

47 It is apparent that s 29(2)(b) permits the Court to initiate an enquiry into possible breach of an overarching obligation of its own motion. However, both the Solicitor and Counsel submit that this is only possible until the making of final orders. They rely on ss 30 and 31 of the CPA in support of this proposition. Those sections provide:

30 Applications for orders under section 29

(1) An application for an order under section 29 is to be made -

(a) in the court in which the civil proceeding was, or is being, heard; and

(b) in accordance with the rules of court.

(2) An application for an order under section 29 must be made prior to the finalisation of the civil proceeding to which the application relates (excluding any period for appeals).

(3) For the purposes of subsection (2), if an order, including an order in respect of costs, is made after the date of finalisation of the civil proceeding to which the application relates, the date of making of the last of the orders is taken to be the date of finalisation of that proceeding.

31 Extension of time for application

(1) Despite section 30(2), a person may apply to the court for an extension of time to apply for an order under section 29 after the finalisation of the civil proceeding.

(2) The court may grant an extension of time for making an application under section 29 if satisfied that the person making the application was not aware of the contravention of the overarching obligations until after the end of the period specified in section 30(2).

(3) An application under this section may be made by -

(a) any party to the civil proceeding; or

(b) any other person who has a sufficient interest

48 The Solicitor and Counsel both submit that while s 31 permits the time for an application pursuant to s 29 to be extended beyond the finalisation of the civil proceeding, this is only on the application of a party, or other person who has a sufficient interest. In other words, the Court has no power of its own motion to extend the time, for the purpose of an own motion enquiry.

Other sources of jurisdiction to consider the conduct of the legal practitioners

49 The premise of settled question 2 was intended to be that the jurisdiction pursuant to s 29 of the CPA was not available i.e. that the answer to Question 1 was 'yes', not 'no' as the Question mistakenly states. Both Counsel and the Solicitor correctly recognised that this was the intention of the Question.[13] It was intended to ask if the Court had other disciplinary jurisdiction, particularly in the case of an egregious breach of a practitioner's duty to the Court not discovered until after final orders had been made and authenticated in the proceeding in which the breach occurred.

50 The Solicitor and Counsel agree that the Court has inherent jurisdiction to make disciplinary orders in respect of the common law duties owed by a legal practitioner to the Court, which jurisdiction is independent of, and in addition to, the powers conferred by s 29 of the CPA. They submit that the inherent jurisdiction is only in respect of conduct that amounts to professional misconduct, being conduct that would reasonably be regarded as disgraceful or dishonourable by his or her professional brethren of good repute and competency. If professional misconduct in the conduct of a proceeding is alleged, the Court's disciplinary jurisdiction does not end at the conclusion of the proceeding. A disciplinary proceeding pursuant to this inherent jurisdiction requires a clear allegation, would ordinarily be, and in the submission of the Solicitor should only be, instituted by a prosecutor (rather than by the Court of its own motion) and while the burden of proof is civil, the Briginshaw standard applies.

51 Both Counsel and the Solicitor also identify the powers conferred on the Legal Services Board and Commissioner under the Legal Profession Uniform Law Application Act 2004 (Vic). That Act applies the Legal Profession Uniform Law ('Uniform Law') to Victoria. A 'disciplinary matter' under the Uniform Law is conduct which if proved would amount to 'unsatisfactory professional conduct' or 'professional misconduct' as defined.[14] Jurisdiction in respect of disciplinary matters is conferred on the Victorian Civil and Administrative Tribunal ('VCAT') under the Uniform Law, and the Court has only appellate jurisdiction. The Court may, of course, refer a question of professional conduct to the Legal Services Commissioner for investigation.

52 The Solicitor and Counsel agree that legal practitioners have obligations at common law and under s 21 of the CPA not to mislead the Court. They both characterise the duty of good faith on an ex parte hearing as an additional or heightened duty, that arises only on an ex parte hearing.

53 However, they differ as to whether or not this duty of good faith applied to the initial hearing. The submissions for Counsel accept that this was the hearing of an ex parte application, at which a legal practitioner's general common law duty of disclosure is heightened. He submits, in answer to Question 5, that:

The content of the obligation is to disclose, fully and fairly, the law and the facts material to the particular application, and which are known to the legal practitioner. It is for the Court to determine whether a matter of law or a fact would have been a matter of substance in its decision making process.[15]

54 By contrast, the Solicitor submits that what the Court was concerned with at this initial hearing was not the exercise of a judicial or quasi-judicial power, and so the heightened obligation of disclosure at an ex parte hearing did not apply.

55 As I held in court on 16 March 2018, I agree with the submissions of the Solicitor and Counsel that the Court does not have power of its own motion to re-open the order made on 12 February 2018. The hearing on that day was not an ex parte hearing, so no question arises as to the power to re-open orders made at such a hearing. It was the undefended trial of the proceeding, after notification to all potential defendants, none of whom had chosen to appear to oppose the application or made any objection to it. Even if the O'Donnells had been aware of the application, they would have had no right to oppose it, because, as they conceded in the previous application, they are not beneficiaries of the Covenant. The order of 12 February 2018 was made at the conclusion of the trial of the proceeding, albeit an undefended trial. It was final and intended to substantively dispose of the proceeding. It was perfected and recorded in the Court record by being authenticated on 14 February 2018.

56 At the simplest level, this conclusion flows from the straightforward application of Bailey v Marinoff,[16] in which the High Court by majority held that there is no inherent power to re-open a final and perfected order, made in that case in an appeal. The New South Wales Court of Appeal had dismissed a civil appeal for want of compliance with a procedural requirement and sought to reinstate it on purported later compliance with that requirement. The following portion of the judgment of Barwick CJ in the majority is often cited to state the principle:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.[17]

57 The principle has been affirmed in many subsequent cases, including by the High Court in the context of a criminal appeal, in Burrell v R ('Burrell').[18] Although that case concerned a criminal appeal, the High Court expressed its judgment as generally applying to the powers of a superior court of record to reopen a proceeding and reconsider the orders that have been made.

58 In Burrell, the appellant had been convicted of and sentenced for kidnapping and murder. His appeals against conviction and sentence failed, and orders to that effect were pronounced and formally recorded by the New South Wales Court of Criminal Appeal. Shortly thereafter, the Court discovered that its reasons contained substantial factual errors. The Court purported of its own motion to re-open the orders dismissing the appeals, and to re-consider the appeals. The Court then purported to confirm the original orders. On appeal to the High Court, Mr Burrell successfully argued that the Court of Criminal Appeal had had no power to re-open the appeals, so that the 'confirmation' orders should be set aside for want of jurisdiction. He further submitted successfully that the original orders dismissing the appeals should also be set aside, because of the factual errors, and the appeals remitted to the Court of Criminal Appeal for rehearing.

59 The judgment of the plurality, Gummow A-CJ, Hayne, Heydon, Crennan, and Kiefel JJ, contains a discussion of the rationale of the rule. In particular, their judgment discusses why it is that authentication, or formal entry of the order into the records of the superior court below, is the point at which that court loses the power to alter the substance of the order, subject to statutory power to the contrary. Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules') confers a power on the Court to 'correct' an order, even if authenticated, for 'clerical mistake' arising from 'accidental slip or omission' and in Burrell the plurality of the High Court recognised a similar inherent power in superior courts.[19] However, neither the statutory or the inherent jurisdiction could apply in that case, or in this, as in neither was there any clerical mistake - the order made and authenticated correctly expressed the then intention of the Court. Neither the statutory power nor the inherent power allow alteration of the substance of the authenticated order.

60 The preceding discussion is concerned with the Court's power to re-open a perfected judgment of its own motion. Pursuant to rr 46.08 and 49.02 of the Rules, a party who was absent when an order was made and subsequently authenticated may seek to re-open the order. Similarly, pursuant to r 21.07 of the Rules, a party against whom judgment has been entered in default of appearance or defence also may seek to set aside judgment. None of these statutory provisions here apply, as no defendant sought to be joined to the proceeding after notification to beneficiaries, and prior to the final order, and no beneficiary now belatedly seeks to re-open the order.

61 For completeness, I refer briefly to two other matters. First, there is no allegation in this matter of fraud, or any basis on the evidence before me, for such an allegation. In the case of fraud a superior court does have power to set aside a perfected judgment in its inherent equitable jurisdiction. That power, which would ordinarily be exercised at the suit of the aggrieved party, was the subject of the recent decision of the High Court in Clone Pty Ltd v Players Pty Ltd (in liq) (receivers and managers appointed) & ors,[20] which limits the exercise of the power to cases of actual fraud, pleaded and proved in a fresh proceeding.

62 In that case, the appellant ('Clone') had been successful at trial and a perfected judgment entered into the records of the Supreme Court of South Australia accordingly. The first respondent ('Players') subsequently ascertained that the lawyers for Clone had been aware at the trial of certain documents which may have altered the outcome, but had not disclosed them. Players brought two applications to set aside the judgment against it and obtain a fresh trial. The second application was by way of a fresh proceeding. Players alleged that the judgment should be set aside by reason of the malpractice of the lawyers for Clone, including failing to discover the documents in question, and misleading the court. The trial judge of the fresh proceeding held that the misconduct was sufficient to set aside the judgement in favour of Clone at the first trial (as varied on appeal), and this was upheld by majority on appeal to the Full Court.

63 The High Court held, in a joint five judge judgment, that the power requires the pleading and proof, in a fresh proceeding, of actual fraud. As Players had not alleged actual fraud, the findings at trial and on appeal to the Full Court did not address fraud and Clone's appeal was allowed on that ground. In its closing remarks, the Court emphasised the importance of finality in litigation, quoting Burrell to the effect that '(l)ater correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.'[21]

64 Finally, as is plain, none of the preceding discussion relates to the setting aside of a judgment on appeal. Here there was no defendant who could seek to appeal the order made 12 February 2018, and no person who now seeks to re-open it on the basis that he or she has standing to be a defendant.

Consideration of the conduct of the legal practitioners for the plaintiff

65 The Questions focused on two specific sets of issues. The first was whether there had been any breach of the obligation imposed on the practitioners by s 21 of the CPA, and, if so, whether the Court had jurisdiction pursuant to s 29 of that Act to take disciplinary action, given that the proceeding had been finalised. The Questions also sought to elicit any sources of the Court's disciplinary jurisdiction other than s 29 of the CPA. The second half of the Questions related to the obligations imposed on practitioners for the plaintiff at the first hearing in an application under s 84 of the PLA, which is necessarily without any contradictor, and whether there had been a breach of those obligations in this case.

66 The submissions approach these issues through the broader lens of the duties of legal practitioners to the Court, and the Court's disciplinary jurisdiction generally i.e. not just the duty of practitioners at ex parte hearings, and not just the jurisdiction conferred by s 29 of the CPA. This is a helpful way to approach the issue. It puts the obligation not to mislead or deceive in the broader context of the proceeding as a whole. It is important to consider the obligations on Counsel and the Solicitor throughout the proceeding, and not just at the notification stage.

67 The broader lens adopted by Counsel and the Solicitor also illustrates how the various sources of disciplinary jurisdiction intersect, and how they differ. This is relevant to my conclusion that no further action should be taken in this matter.

68 Finally, I consider it helpful to view the question of disclosure more generally because it militates against any undue emphasis on my enquiry of Counsel at the first hearing. I accept the submissions of Counsel,[22] which were also adopted by the Solicitor,[23] that it is not appropriate to give too much significance to that enquiry. Counsel answered honestly that he had no instructions on the point, and I did not require him to seek those instructions, relying instead on the Court's own internal systems. It transpired that those systems were faulty and failed to record the earlier application. That is not, however, a reason to retrospectively impose a burden on Counsel that was not required at the time.

69 Accordingly, I will begin my analysis with the obligations on practitioners not to mislead the Court, including the obligation of disclosure in relation to an ex parte application. I will then consider whether the Court has, in the circumstances of this matter, jurisdiction to enquire into whether or not those obligations were breached. Finally, I will apply those conclusions to the facts in this case.

70 The submissions for Counsel, with which, in these respects, the submissions for the Solicitor broadly agree, identify three sources of the general duty of counsel to disclose and not to mislead the Court. The first is at common law; the second under the conduct rules with which counsel are required by the Uniform Law to comply; and the third is under s 21 of the CPA. These duties are independent and co-existent.[24]

71 At common law, counsel is under a duty not to 'keep back from the court any information which ought to be before it' and counsel 'must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court'.[25] The same obligations apply to a solicitor.[26] The obligation thus expressed focuses on intentional or knowing conduct, but there is an important gloss. If a misleading impression has been created, even if innocently, the practitioners concerned have an obligation to correct that impression, as soon as they become aware of the true position. That obligation continues until judgment is given.[27]

72 The Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ('Solicitors' Conduct Rules') and the Legal Profession Uniform Conduct (Barristers) Rules 2015 ('Barristers' Conduct Rules') (collectively, the 'Conduct Rules') essentially restate these common law obligations as they respectively apply to acts of a solicitor or barrister. Rules 19.1 and 24 of the Conduct Rules provide that a solicitor and barrister respectively must not 'deceive or knowingly or recklessly mislead the court'.[28] Rules 19.2 and 25 respectively provide that:

A (solicitor or barrister as the case may be) must take all necessary steps to correct any misleading statement made by (the solicitor or barrister) to a court as soon as possible after the (solicitor or barrister) becomes aware that the statement was misleading.[29]

73 The overarching obligation imposed by s 21 of the CPA is in addition to the duties imposed at common law and under the Conduct Rules. It is differently expressed, and so it is conceivable that conduct may breach that obligation without in turn breaching a professional obligation, or the duty of a lawyer to the court at common law.

74 The elements of the obligation imposed by s 21 of the CPA not to engage in conduct which is misleading or deceptive, or likely to mislead or deceive, were elaborated in Hudspeth v Scholastic Cleaning and Consultancy Servies Pty Ltd & Ors (No 8).[30] In that judgment, John Dixon J contrasted the obligation imposed on the lawyers for a party by s 21 with the duty owed by them to the court at common law. He held that the obligation imposed by s 21 adopts the language of the obligation imposed by what is now s 18 of the Australian Consumer Law, formerly s 52 of the Trade Practices Act 1974 (Cth). In particular, breach of the overarching obligation imposed by s 21 does not require an intention to mislead or deceive. What is relevant is the conduct, and the effect of that conduct, not the motive or intention.

75 Indeed, John Dixon J held that s 21 is not concerned at all with the mental state of the person said to have engaged in conduct of the required character. The inquiry as to whether or not the obligation has been breached is directed only to the conduct in question, and then as to whether it had the required character of being misleading or deceptive, or likely to mislead or deceive. For that reason, John Dixon J rejected the contention that a requirement of knowledge be read into s 21. He observed that the obligation imposed by s 21 is in this respect broader than the duty to the court of the lawyers for a party at common law and the duties imposed by professional conduct rules.[31]

76 The overarching obligations, including the obligation imposed by s 21, apply to every aspect of a proceeding, including interlocutory applications or procedural steps.[32]

Obligation of good faith on an ex parte application

77 Both at common law and under the Conduct Rules, there is a heightened obligation of disclosure in ex parte applications. The Conduct Rules provide for this in rr 19.4 and 27. Those rules provide:

A (solicitor or barrister) seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:

(i) are within the (solicitor or barrister's) knowledge;

(ii) are not protected by legal professional privilege; and

(iii) the (solicitor or barrister) has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.[33]

78 The Conduct Rules limit the obligation of disclosure on an ex parte application to those matters which reasonably could be considered adverse to the moving party. This reflects the rationale of the different approach to disclosure where an application is opposed. In an opposed application, the adversarial nature of litigation assumes that matters adverse to the moving party will be raised by the opponent, and hence there is no obligation on the moving party to do so. The obligation on the moving party is not to mislead, but subject to that obligation, it is not required to disclose matters adverse to its case.[34]

79 The disclosure obligation in an ex parte application at common law is expressed differently in a number of respects. First, at common law, the party seeking an order ex parte has an obligation to make 'full and fair disclosure of all matters within its knowledge and which are material'.[35] The obligation is thus expressed in terms of materiality, rather than matters adverse to the moving party. Material facts are those which are 'relevant to the court's determination' and 'a matter of substance in the decision-making process'.[36] It seems to me that this is potentially of wider scope than matters adverse to the granting of the application.

80 Next, 'materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers'.[37] This contrasts with the determinant of disclosure under the Conduct Rules, which is the practitioner's subjective belief, on reasonable grounds, that the fact in question is adverse to his or her client's case.

81 Last, ignorance of the material fact is not necessarily sufficient at common law (as opposed to under the Conduct Rules). The applicant for an ex parte application must make proper enquiries before making the application, and the duty of disclosure applies not only to material facts known to the applicant, but also to any additional material facts which he or she would have known if such enquiries had been made. The extent of the inquiries necessary will depend on all the circumstances of the case, including the nature of the case which the applicant is making, the order for which application is made, and the amount of time available for the making of enquiries.[38]

82 For these reasons, I consider the obligation of disclosure at common law is wider than the obligation under the Conduct Rules.

83 The obligation most commonly arises in respect of ex parte injunctions, but it is not confined to such applications.[39] An ex parte application is one made in the absence of a party, because no notice has been given to that party. It is to be contrasted with an application made in the absence of the other party, or a person entitled to become an opponent, after notice to that party or person.[40] The duty arises where the ex parte application is made for the exercise of a judicial, or quasi-judicial, power.[41]

84 If there has been such a material non-disclosure, then the order in question may be set aside. In Garrard and ors v Email Furniture Pty Ltd ('Garrard'),[42] the New South Wales Court of Appeal set aside a certificate of taxation, the plurality reasoning that there had been a material non-disclosure in an ex parte application. The party entitled to the costs had served the bill, and so the taxation as commenced was not ex parte, but applied for the certificate on the basis that no objections had been filed without notice to the other party. In that application, it failed to disclose that the other party had sought an extension of time to file its objections.[43]

85 Whether the order will be set aside is a matter of discretion.[44] It is not necessary that the non-disclosure be deliberate, and an innocent non-disclosure of a material matter will still breach the obligation. However, the innocence or otherwise of the non-disclosure, or the failure to understand its relevance, are important factors in the exercise of the discretion, together with factors such as the significance of the omitted information to the decision making process, delay and prejudice.[45] Where the non-disclosure is deliberate, the order would ordinarily be discharged.[46]

86 Whether or not this heightened obligation applied to disclosure of the decision reported as Scerri, which the Solicitor knew to relate to the same land, turns on whether either the first or the second hearing is properly characterised as an ex parte hearing.

Were either of the hearings ex parte hearings?

87 In Redwin Industries Pty Ltd v Feetsafe Pty Ltd ('Redwin'),[47] Habersberger J drew a distinction between an application heard in the absence of a defendant because the defendant has not been given notice of the application, and one where the defendant is on notice, but has chosen not to appear.[48]

88 The Solicitor and Counsel adopt that distinction, and I accept that it is correct. The purpose of the first hearing in this proceeding, as in all applications made pursuant to s 84 of the PLA, was to determine the extent of the benefited land, and make appropriate directions for the notification of the application to the beneficiaries of the restriction. That being the case, the first hearing is, by definition, almost routinely without a named defendant, and without notice to any potential defendant. Applying the distinction identified in Redwin in the context of a named, but initially unserved, defendant to an application made under s 84, which commences with no named defendant, the question becomes whether the first hearing is for the exercise of a judicial, or quasi-judicial power.

89 The Counsel submits that the first hearing was of this character. The Solicitor disagrees. He submits in his written submissions that the first hearing was administrative only, as '(i)t did not determine any rights' and '(t)here was no occasion for the Court to make an adjudication or to give reasons for decision.'[49] In oral submission, counsel for the Solicitor described the initial hearing as being simply a directions hearing, or scheduling or timetabling exercise.[50] He submits that the matters with which the Court is concerned at this first hearing do not engage judicial or quasi-judicial power because the notification orders made do not change or enhance any rights of a beneficiary, they merely facilitate the exercise of those rights. He contrasts this with other instances of orders often made without notice to the party affected, such as the extension of time for service of a writ, or substituted service, on the basis that orders of that type do change the legal position of the person against whom the order is made.[51]

90 Counsel for the Solicitor accepts that the ordinary duty on a legal practitioner not to (knowingly) mislead the Court would apply at the first hearing, and the concomitant duty to correct any misleading impression which to the knowledge of the practitioner had been created, even innocently. However, in the submission of the Solicitor, the heightened obligation of full and frank disclosure attendant on an ex parte application did not apply to the notification hearing.

91 In amplification of this submission, counsel for the Solicitor submits that the disclosure obligation only applies to a substantive determination, on an interlocutory application, which application is only allowed to proceed in the absence of the other party because the interests of justice require it, and which will later be served.[52]

92 I consider the submissions of the Solicitor to be incorrect, for the following reasons. First, on the authority of Garrard, the requirement for an act to be a judicial, or quasi-judicial act, is a relatively low one. In that case, the relevant court rules provided that a certificate be issued not by a judicial officer but by 'an officer of the court', a person whom the Court of Appeal described as a 'taxing clerk'. Further, the rules gave no express discretion to that officer to refuse the issue of a certificate, once application was made in accordance with the rules. Nevertheless, the Court held that the power to issue a certificate of taxation was judicial or quasi-judicial_._ The Court held that despite the absence of an express conferral of a discretion to refuse the issue of a certificate, and indeed the use of the imperative 'shall' issue, the taxing officer had a discretion, and in some circumstances, a duty to refuse to issue the certificate. The Court equated the existence of this discretion with the power to issue the certificate being of the necessary character to attract the obligation, describing it as 'quasi judicial or discretionary' as opposed to being 'purely ministerial'.[53]

93 In contrast to the power under consideration in Garrard, the power to make directions for notification conferred by s 84(3) is conferred upon a judicial officer, and is expressly discretionary. If the power in Garrard was discretionary, despite the absence of these features, the presence of these features in s 84(3) provides a strong indication that the power there exercised is judicial.

94 Next, examination of s 84 itself supports this conclusion.

95 Section 84 relevantly provides (emphasis added):

84 Power for Court to modify etc. restrictive covenants affecting land

(1) The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied -

(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material the restriction ought to be deemed obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction whether in respect of estates in fee-simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed have agreed either expressly or by implication by their acts or omissions to the same being discharged or modified; or

(c) that the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction:

...

(2) The Court shall have power on the application of any person interested -

(a) to declare whether or not in any particular case any land is affected by a restriction imposed by any instrument; or

(b) to declare what upon the true construction of any instrument purporting to impose a restriction is the nature and extent of the restriction thereby imposed and whether the same is enforceable and if so by whom.

(3) The Court may before making any order under this section direct such inquiries (if any) to be made of any local authority or such notices (if any) whether by way of advertisement or otherwise to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified or dealt with as, having regard to any inquiries, notices or other proceedings previously made given or taken the Court thinks fit.

(4) Any order made under this section shall be binding on all persons whether ascertained or of full age or capacity or not then entitled or thereafter capable of becoming entitled to the benefit of any restriction which is thereby discharged, modified or dealt with and whether such persons are parties to the proceedings or have been served with notice or not.

(5) Not here relevant

(6) Not here relevant

96 As the emphasised words show, the power conferred by s 84(3) is antecedent to what is not disputed to be the exercise of judicial power conferred by s 84(1). Further, the power conferred by s 84(3) requires the exercise of a discretion, or achievement of a state of satisfaction, by the Court i.e. by a judicial officer constituting the Court in at least the following respects:

• whether to exercise the power to direct inquiries or notices at all;
• as to who appears to be entitled to the benefit of the restriction;
• as to the form of notice to be given to those persons; all of which is to be determined; and
• having regard to regard to any inquiries, notices or other proceedings.

97 Counsel for the Solicitor submitted that at this stage of the proceeding there is no exercise of judicial power because there is no 'contest' as to the extent of the benefited land, as it is a 'given' on the evidence put forward by the plaintiff.[54] In my view that is incorrect. The Court must decide whether or not to accept that the plaintiff's evidence as to the identification of beneficiaries is, at least prima facie, correct for the purpose of s 84(3). In my view, that is the exercise of judicial power.

98 This conclusion is supported by r 52.09 of the Rules. That rule provides as follows:

52.09 Restrictive covenant

(1) This Rule applies where on an application under section 84 of the Property Law Act 1958 an order is made under subsection (3) of that section directing the plaintiff to make inquiries or give notices.

(2) Whether the plaintiff has made inquiries and given notices in accordance with the order and what the results of the inquiries are shall be determined by an Associate Judge after inquiry.

(3) The Associate Judge shall by order declare what the Associate Judge has determined under paragraph (2) and the application shall not proceed until the order is made.

99 The power required to be exercised by r 52.09, the making of a declaration, would seem to be plainly judicial. It is of course entirely possible that judicial power may be engaged to rule on the earlier exercise of an administrative function, and indeed that is at the heart of judicial review of administrative action. However, it would be inconsistent with the exercise of judicial power for the purpose of this ruling for the earlier exercise, also by the Court, and commonly by the same judicial officer of the Court, to be administrative only.

100 There are also textual indications in r 52.09, as in s 84, that support my view that the power granted by s 84(3) is judicial. The rule describes the power exercised under s 84(3) as the making of an 'order'; requires an assessment of compliance with that 'order' by an associate judge (presumably whether or not the initial order was made by an associate judge or a judge); and an order as to that compliance. Further, that order is a precondition to the application for modification or declaration proceeding to a determination. The Solicitor and Counsel do not dispute that the merits determination is plainly the exercise of judicial power.

101 Finally, I do not accept that it is correct to say that the exercise of power can only be judicial or quasi-judicial if it effects a change in the rights, or the legal position, of the person named as defendant, or potential defendant. The character of the power derives in my view from the task the Court is required to perform, which in the case of s 84(3) requires the consideration of evidence and achievement of various conclusions, not the effect on the defendant.

102 For all these reasons, I consider the power conferred by s 84(3) is judicial. It follows that the obligation of disclosure at an ex parte hearing applies at that stage of the proceeding.

Merits hearing: s 84(1)

103 There is no dispute that the power the Court may exercise under s 84(1) is a judicial one. The Solicitor and Counsel both assert that the occasion for its exercise, after notification to beneficiaries who may become defendants, is not, however, an ex parte hearing. I agree. Once potential defendants have been adequately notified, then, whether or not they choose to become defendants, the application is now on notice to them, and so is no longer ex parte. If no beneficiary becomes a defendant, as occurred in this proceeding, the application when determined on the merits is unopposed, but is not ex parte.

104 There are two qualifications to this conclusion. The first is that the potential defendants have been properly identified. The second is that they have been notified in accordance with the directions made on the first occasion. Dealing with these in reverse order, if the notification orders have not been complied with, then plainly the matter remains ex parte, at least as regards that or those beneficiaries. Even if the notification orders have been complied with, however, if a previous relevant application is not disclosed, the notification orders may have been insufficient. For example, if a beneficiary who has objected to a previous application concerning the same land, or a previous application concerning an identical covenant in proximate land, is not identified at the first hearing, and as a consequence the notification orders did not require direct notification to that beneficiary, then it may be appropriate to make further notification orders before consideration of the merits. This was the situation in Re Sanders & anor.[55]

105 Further, the fact that a hearing after notification is no longer ex parte does not necessarily mean that the obligation of disclosure attendant on the first and ex parte hearing may no longer be invoked to set aside an order made at the second, unopposed but not ex parte, hearing. In Redwin, an asset preservation order was granted ex parte against a named, but unserved, defendant, at an initial hearing. The defendant was subsequently served, but chose not to appear at the return of the initial order. The asset preservation order was continued on the second occasion. The defendant subsequently sought to set aside both orders, on the grounds of non-disclosure.

106 Habersberger J held that although the first order was made ex parte, the second was not, because there had by that stage been notice given to the defendant. However, he held that if there was non-disclosure to the Court on the first (and ex parte) occasion, 'that non-disclosure should be regarded as tainting the second order, because the very basis of the second order would be the first order which had been obtained without full and fair disclosure'. He continued:

Just as a party must make full and fair disclosure to the Court when applying for an ex parte order, so it seems to me that it should be obliged to make full and fair disclosure when the proceeding returns to the Court on the hearing of the application on notice. In particular, why should the applicant not be obliged to correct any errors in the material put before the Court on the first occasion when, as will usually be the case, the ex parte application will have been made in some haste because of the perceived urgency? And why should that obligation not be imposed on the applicant regardless of whether or not the defendant appears at the other party appears at the second hearing? Thus, in my opinion, the principle would still be applicable.[56]

107 Habersberger J held that the applicant for the order had not complied with its duty of full and fair disclosure of all material facts on the first, ex parte, occasion, and that this duty extended to the order made on the second, unopposed, occasion. He discharged the asset preservation order made on the second occasion, the first such order having expired on the making of the second.

108 The Solicitor and Counsel do not quibble with the general proposition that if proper disclosure has not been made on an ex parte application, the duty to rectify the position continues to the next hearing day, even though the application has become inter partes. However, counsel for the Solicitor submits that one must have regard to any different character between the two hearings. In Redwin, the information provided to the Court on the first occasion and which resulted in the ex parte order also informed the same application made at the second hearing, which was not ex parte, and at which the very same order was continued. There was a clear link between the two hearings. Is that reasoning applicable to an application under s 84? The situation is not as clear cut, but in some circumstances I consider that a non-disclosure of a material fact at the notification stage can taint the merits stage, for the reasons set out below.

109 In the case of an application under s 84, the merits hearing is not concerned with the questions of notification that are at the heart of the first, and ex parte, hearing. The merits hearing, even if unopposed, proceeds only on the basis that potential defendants have been adequately notified. In other words, notification is not generally a question for determination at the merits hearing and the orders made are not merely a continuation of the same orders made at the first and ex parte hearing.

110 However, the same is not always true in reverse. In other words, matters relevant to merits can on occasion also be relevant to the notification stage. This is because the type and extent of notification to beneficiaries can be informed by matters that will be considered in more detail at the merits stage, such as whether this is the first modification application in the relevant area, and so may set a precedent, and the extent of the modification sought. For example, if the proposed change is modest, and of similar type to further development that has already taken place in the proximate area, then the Court may consider that direct postal notification is not required to all beneficiaries, and a notice on the land is sufficient in respect of those beneficiaries not directly notified. Practitioners are informed by the Guide to Practitioners published on the Court's website that to this extent the merits may be relevant at the notification stage.[57] In other words, non-disclosure at the notification stage of a matter that is material to the merits may be a breach of the obligation of full and frank disclosure attendant at that ex parte stage. In a case of that type, the obligation to make full disclosure continues to the merits hearing, and to the making of authenticated final orders.

Jurisdiction to enquire into any breach of the obligation to disclose or not mislead

Pursuant to the Court's inherent jurisdiction

111 The Court has an inherent disciplinary jurisdiction, which does not cease on the conclusion of a proceeding.[58] This inherent disciplinary jurisdiction is enlivened by conduct properly characterised as professional misconduct, being conduct which would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competency.[59]

112 Knowingly misleading the Court plainly may amount to professional misconduct. However, an intention to deceive is not necessary. Recklessness as to the accuracy of evidence or submissions, or even gross carelessness, may also, depending on the circumstances, amount to professional misconduct.[60]

113 I accept the submission put by the Solicitor that this jurisdiction is ordinarily, and properly, exercised in an adversarial manner, where the charge of professional misconduct is brought by a prosecutor, rather than in an enquiry of the Court's own motion. I will return to this issue shortly in relation to whether any findings can or should be made.

Pursuant to s 29 of the CPA

114 The Court has jurisdiction conferred by s 29 of the CPA to sanction a practitioner for the breach of an overarching obligation. There are now a number of instances in which the Court of its own motion, pursuant to s 29(2)(b) of the CPA, has instigated an enquiry into potential breach of an overarching obligation.[61] In each of these instances, however, the Court instigated this enquiry prior to the making of final orders.

115 In Gippsreal Ltd v Kenny and anor the Court of Appeal observed that:

...ss 30 and 31 of the CPA evince a clear legislative intention that applications for relief based on a breach of an overarching obligation must be made prior to final orders being made in the relevant litigation, subject to the power of the Court to grant an extension where the person making the application was not aware of the breach prior to the making of final orders.[62]

116 These observations were made in relation to an application made by a party against the solicitors for the opposing party more than two years after the proceeding had finalised. The Court was not there concerned with the exercise of the own motion power contained within s 29(2)(b) of the CPA. However, the observations support the conclusion that I have reached by way of textual analysis.

117 That analysis starts and ends with the proposition that the power conferred by s 29 of the CPA is statutory and time limited. To extend the time for the exercise of that power accordingly requires statutory authority. I accept the submissions of the Solicitor and Counsel that the only statutory power of the Court to extend the time for making an application under s 29 of the CPA is that conferred by s 31, and that is plainly only conferred on the application of 'a person'. The Court cannot apply to itself. Thus, I accept that the Court has no power under s 29 of the CPA to consider of its own motion whether or not a practitioner has breached an overarching obligation once final orders have been made and authenticated.

118 Where the Court believes that there may have been a breach of the Conduct Rules or other conduct infringing the Uniform Law, or indeed professional misconduct or unsatisfactory conduct, the Court may refer the matter to the Legal Services Commissioner for investigation. Disciplinary action could then be taken, if warranted, by the Commissioner, or in a more serious case instituted in VCAT.

119 The conduct in question in this enquiry took place in a proceeding that concluded in the making of final and authenticated orders. No person with a right to be heard in opposition to the orders made seeks that they be discharged, or that the practitioners' conduct be examined - the Court has instigated this enquiry of its own motion.

120 The Court has jurisdiction of its own motion to examine whether the conduct of a practitioner in a proceeding constituted a breach of an overarching obligation, but that jurisdiction ends on the making of final authenticated orders. The Court has inherent jurisdiction to examine the conduct of the practitioners in a proceeding, notwithstanding the finalisation of that proceeding, but should do so as umpire in an adversarial proceeding, rather than as inquisitor. Finally and critically, the Court's inherent disciplinary jurisdiction is only enlivened when the conduct in question can properly be characterised as professional misconduct. That in turn would require not just a breach of the obligation not to mislead or to make full disclosure in an ex parte application, but an egregious breach.

121 Both the Solicitor and Counsel submit that the Court's jurisdiction to make any orders against the Solicitor or Counsel is not enlivened, as the power to conduct an enquiry under the CPA has ceased, and, in relation to the inherent jurisdiction, the conduct in question could not amount to professional misconduct.

122 The Solicitor appears to go further, as he submits that the inherent jurisdiction could only properly be exercised in an adversarial proceeding. He has complied with the Court's requests for information in this enquiry, but his counsel in essence may go so far as to contend that the enquiry instituted by the Court was inappropriate.

123 Both Solicitor and Counsel submit that, for want of jurisdiction, the Court should make no findings on the facts in relation to the practitioners' conduct. This presents a dilemma, because, as indicated at the conclusion of the last hearing day, I do not propose to make any orders and take the enquiry into the practitioners' conduct any further. I did, however, indicate that I intended to publish reasons, as some of the issues considered are of general interest, and in these reasons I consider that at a minimum, and in the interests of the practitioners, I should indicate why I do not consider that the Court's inherent jurisdiction is enlivened, and no further action is warranted. To that extent only, I set out below my analysis of the facts.

124 Given the Court no longer has jurisdiction to consider whether there was any breach of the overarching obligation imposed by s 21 of the CPA, I make no findings as to potential breach.

125 This jurisdiction is only enlivened if there has been an egregious breach of a professional obligation, in this context in relation to either the obligation not to mislead the Court or the heightened obligation of disclosure at the first hearing.

126 On the particular facts of this case, I do not consider that there was any breach of the obligation on the Solicitor and Counsel to make full and frank disclosure at the initial hearing. I will explain my reasons for that conclusion shortly. However, the prudent course would have been to disclose the previous application and its outcome to the Court at the earliest opportunity. At a broad level, it was potentially material because it concerned the same land, by the immediate predecessors in title to the later applicants, was only shortly before the current application, had excited opposition (although not from a benefited person), sought a more modest modification, and was refused, for published reasons. The fact that reasons had been published made it more easily known, and it was in fact known to both the Solicitor and Counsel, although Counsel did not appreciate that it related to the same land as the application in which he appeared. Neither considered it relevant, and it was undeniably distinguishable, but, if potentially material, it was for the Court to decide its relevance, not for the practitioners.

127 On close examination of the particular facts in this case, however, I do not consider that either the Solicitor or Counsel breached his obligation to make full and frank disclosure by not informing the Court of the earlier application. This is because on analysis it was not material to the questions to be determined at the first hearing or the orders there made.

128 First, it was not relevant to the identification of the beneficiaries of the restriction. That was determined afresh on the evidence in this proceeding; there is no suggestion that that evidence was incorrect; and in particular there is no dispute that the O'Donnells are not beneficiaries. In different circumstances, however, the identification of beneficiaries in an earlier application may be relevant to the identification of beneficiaries in a later application. For example, had there been a beneficiary who objected to the earlier application, whether or not that objector became a defendant, then it may be material to know the identity of that objector, to ensure that he or she was given sufficient notice of the second application.

129 I raised with the Solicitor and Counsel whether the form of notification adopted in the earlier application was a material matter for consideration in the second. They submitted that a notice on the land, which elicited the initial objection from the O'Donnells in Scerri, was not necessary in this proceeding as the plaintiff sought, and I directed, that postal notice be given to all beneficiaries. On consideration, I accept that in those circumstances the form of notification adopted in Scerri was not material in this proceeding. Again, in different circumstances that may not be the case. If, for example, the form of notification in the earlier application had been more extensive than that proposed in the second, then it may be material for the Court to know that, to ensure that all potential beneficiaries are given the same opportunity in the later application, as in the earlier.

130 Finally, as I noted earlier, the merits of an application may be relevant at the notification stage, and the fact that an earlier application for a more modest modification to the same covenant had been recently refused would at first blush appear to be at least potentially relevant to the merits of a later application. That interconnectedness of merits and notification applies where less than full notification to every beneficiary is contemplated, however, and in this case every beneficiary was directly notified.

131 For these reasons, specific to the facts in this case, I conclude that Scerri was not material to the orders made at the ex parte hearing, and so there could be no breach of the obligation of disclosure attendant at such a hearing, let alone the egregious breach that could enliven the inherent jurisdiction. Had I considered that there potentially was a breach, I would have made no findings to that effect, but referred the matter to the Legal Services Commissioner for such further action as that office may consider appropriate.

132 The Solicitor and Counsel submitted that nor was Scerri material, in the legal sense, and as opposed to being of background interest, at the merits hearing. Their proposition that an application must be determined on the basis of the evidence in that application, and not the evidence in a previous application, is of course correct. To seek to resolve the issue of any breach in this way, is, however to my mind, not very helpful. The question really is whether the practitioners for the plaintiff in a subsequent application are obliged as part of their obligation not to mislead the Court to ensure that evidence about an earlier application is put in the subsequent application.

133 The better analysis in my view is that a plaintiff may not be obliged to do so because the nature of the obligation changes once beneficiaries have been notified. The obligation is no longer the positive one of full and frank disclosure (subject to the qualifications expressed above) but the negative obligation not to mislead, and to correct any misleading impression known to the practitioner. Thus, it may not be necessary to disclose an earlier application at the merits hearing if the earlier case is legally and factually irrelevant (and so the obligation not to mislead is not breached). At the merits hearing, it is for a beneficiary opposing the application to raise any fact on which he or she relies. In this case, that could have been the fact that a more modest application concerning the same land had recently been dismissed, but no beneficiary sought to do so.

134 At the outset, and in fairness to the practitioners, I record that I accept that neither had any intention to mislead the Court, and, in the case of Counsel, no knowledge of the identity of the land in Scerri with the land in this application.

135 The Solicitor properly discloses that he knew that Scerri concerned the same land. However, he considered Scerri factually distinguishable from the application by Castlerea, because in Scerri there was no specific proposal before the Court, and the plaintiffs were not proposing to themselves develop the Land. By contrast, in this application there was a specific proposal, which the plaintiff itself proposed to undertake. That was a rational basis for concluding that Scerri was factually irrelevant.

136 Had the Solicitor become aware of the exchange between Counsel and the Court on the first return date as to whether there had been a previous application over the same land, and the Court's erroneous conclusion that there had not, he would have been bound to alert the Court to the true position before final orders were made. I accept his evidence that he was not aware of that exchange until after the final order had been authenticated.

137 In these circumstances, the Solicitor's conduct could not amount to conduct enlivening the inherent jurisdiction.

138 Counsel deposes that although he was well aware of Scerri, he did not appreciate at the time of the orders for notification and later modification made in this proceeding that it concerned the same land. He considered it to be legally irrelevant, for the same reasons as did the Solicitor. That was a rational basis for concluding that he was not obliged to draw the Court's attention to Scerri, as a relevant legal authority.

139 Had Counsel realised after that date that the case he knew as Scerri related to the same land, he would have been bound to alert the Court to it. I accept his evidence that he did not realise that Scerri related to the same land until after final orders had been made and authenticated, and thought of it until that time as illustrating only a legal principle not relevant to the application made by Castlerea.

140 Thus, as in the case of the Solicitor, the Court's inherent jurisdiction is not enlivened.

141 Nor do I consider that there is any warrant for referral of either the Solicitor or Counsel to the Legal Services Commissioner for further investigation. The facts are fully disclosed by their evidence in this proceeding, and do not require any further investigation.

142 In fairness to the Solicitor and Counsel, it is also appropriate to make the following remarks. I had prior to the orders I made in this proceeding expressed the view in some other proceedings that previous applications, whether to a planning authority under the Planning and Environment Act 1987 (Vic) ('PEA') or the PLA, should be disclosed.[63] However, these observations were not, so far as I aware, the subject of any reported decision, either by me or any other judicial officer. I have now published decisions making such observations.[64] Nor was this a requirement included in the Guide to Practitioners. It is a perhaps a counsel of perfection then to expect a practitioner at that time to appreciate that the Court would expect disclosure of all previous applications, of which he or she is, or reasonably should be, aware.

143 In summary, the prudent course is for practitioners in applications pursuant to s 84 of the PLA to make proper enquiry of their clients, and carefully consider reported decisions, or decisions of which they are otherwise aware, to ascertain if there has been any earlier application in respect of the land in question. Any such application, whether pursuant to the PLA or the PEA, should then be disclosed at the earliest opportunity, for the Court to determine if it is material, and if so, in what respects. If such an application is not disclosed, the applicant for the order risks a later determination by the Court that it was material, with the attendant possibility of further delay and expense.

144 What transpired in this case also may suggest that careful thought should be given to limiting notification of an application for modification or discharge of a covenant to direct notification to the owners or mortgagees of benefited lots, without also a notice on the land. In this case, I accepted the submission of Counsel on the first return date that as all owners of benefited residential lots would be directly notified, there was no need for a notice on the Land. An application for modification of a covenant is of course a matter of private law, not public law, and the persons who may object are accordingly limited to those with a private interest, which may not include all proximate landowners with a legitimate public interest. A notice on the land can invite objection from neighbours who in fact have no legal right to object, and so cause unnecessary cost and inconvenience. Nevertheless, in retrospect, the prudent approach may well have been here, and in other similar cases, to require a notice on the Land as well.

145 There are sound practical and jurisprudential reasons for such an approach. The practical reason is to avoid what transpired in this case. Had there been a notice on the Land, as there was in the previous application, then events may have occurred that resulted in the Court being made aware of the previous application and being able to properly consider it in relation to this application. The costs and inconvenience of the relisting of this proceeding would thereby have been avoided.

146 The jurisprudential justification for directing a notice on the land, possibly even in cases where all beneficiaries are to be directly notified, is that the decision as to who is benefited will ordinarily be based on evidence solely in the plaintiff's case, as the proceeding is at this stage ex parte. The Court accepts that evidence, for the purpose of the notification orders, but does so without the benefit of any contradictor. There is nothing to suggest in this case that there was any error in the expert evidence as to the extent of the benefit. However, broad advertisement of the application is a safeguard against any error in the plaintiff's evidence as to the extent of the benefit, and the identification of particular beneficiaries.

[1] Re Katherine Scerri & Ors (as Legal Personal Representatives of Giovanna Scicluna, Deceased) [2017] VSC 368 ('Scerri').

[2] Email from the Court to the Solicitor and Counsel, sent 21 February 2018 at 5.32 pm.

[3] Transcript of Proceedings, IMO Castlerea Carpenters Pty Ltd (Supreme Court of Victoria, S CI 2017 04818, Lansdowne AsJ, 11 December 2017), 1 [20]-[28].

[5] Email from the Court to the Solicitor, copied to Counsel, sent 26 February 2018 at 5.53pm.

[8] Affidavit of the Solicitor, sworn 6 March 2018, [16].

[9] Affidavit of Counsel, sworn 7 March 2018, [11].

[12] Giles v Jeffrey and Anor [2016] VSCA 314, [113].

[13] Counsel, 'Outline of Submissions of [Counsel] for 7 May 2018', 27 April 2018, [13]; Solicitor, 'Outline of Submissions on behalf of [Solicitor] (Hearing Monday 7 May 2018)', 30 April 2018, [5].

[14] Legal Profession Uniform Law Application Act 2014 (Vic), s 270.

[15] Counsel, 'Outline of Submissions of [Counsel] for 7 May 2018', 27 April 2018, [13].

[16] [1971] HCA 49; (1971) 125 CLR 529.

[18] [2008] HCA 34; (2008) 238 CLR 218 ('Burrell').

[19] Ibid [21] (Gummow A-CJ, Hayne, Heydon, Crennan, and Kiefel JJ).

[20] [2018] HCA 12; (2018) 353 ALR 24 ('Clone').

[21] Ibid [69], quoting Burrell (n 18) 223 [16].

[22] Counsel, 'Outline of Submissions of [Counsel] for 7 May 2018', 27 April 2018, [126].

[23] Solicitor, 'Outline of Submissions on behalf of [Solicitor] (Hearing Monday 7 May 2018)', 30 April 2018, [84].

[24] Legal Profession Uniform Conduct (Barristers) Rules 2015 r 7 ('Barristers' Conduct Rules'); Civil Procedure Act 2010 (Vic) s 15.

[25] Re Gruzman: Ex parte the Prothonotary (1968) 70 SR (NSW) 316, 323. See also Meek v Fleming [1961] 2 QB 366, and the discussion by John Dixon J of the lawyers' duty to the court at common law in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & ors (No 8) [2014] VSC 567, [160]-[175] ('Hudspeth').

[26] Forster v Legal Services Board [2013] VSCA 73.

[27] Ibid [161] (Kyrou AJA, as he then was).

[28] Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ('Solicitors' Conduct Rules') r 19.1; Barristers' Conduct Rules (n 24) r 24.

[29] Solicitors' Conduct Rules (n 28) r 19.2; Barristers' Conduct Rules (n 24) r 25.

[30] Hudspeth (n 25), applied by me in Stewart v State of Victoria (No 2) [2015] VSC 373; see also Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 (McDonald J).

[31] Hudspeth (n 25) [176]-[194].

[32] Stewart v State of Victoria and ors (No 2) [2015] VSC 373.

[33] Solicitors' Conduct Rules (n 28) r 19.4; Barristers' Conduct Rules (n 24) r 27.

[34] Forster v Legal Services Board [2013] VSCA 73, [161].

[35] Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213, [22] ('Savcor').

[37] _Brink's Mat Ltd v Elcomb_e [1988] 1 WLR 1350 (Ralph Gibson LJ) ('Brink's Mat'), quoted with approval by Gillard AJA for the Court of Appeal in Savcor (n 35) [36].

[38] Ibid, also cited with approval by Habersberger J in Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427, [8] ('Redwin').

[39] Gillard AJA for the Court in Savcor (n 35) [25], citing Mahoney AP in Garrard and ors v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 676-677 ('Garrard').

[43] Garrard is relied upon by the Solicitor, and was also relied upon in Savcor, but it is an odd case in some ways not explored in the judgment itself, in Savcor or in this proceeding. In particular, it is not clear how the outcome sits with the principle of finality, the certificate apparently having been entered into the records of the Court.

[45] Ibid [33]-[34], [36], citing Brink's Mat (n 37).

[49] Solicitor, 'Outline of Submissions on behalf of [Solicitor] (Hearing Monday 7 May 2018)', 30 April 2018, [53].

[50] Transcript of Proceedings, IMO Castlerea Carpenters Pty Ltd (Supreme Court of Victoria, S CI 2017 04818, Lansdowne AsJ, 6 March 2018), 13.

[51] Transcript of Proceedings, IMO Castlerea Carpenters Pty Ltd (Supreme Court of Victoria, S CI 2017 04818, Lansdowne AsJ, 7 May 2018), 54-6.

[52] Solicitor, 'Outline of Submissions on behalf of [Solicitor] (Hearing Monday 7 May 2018)', 30 April 2018, [22]-[23].

[53] Garrard (n 39) 678-679 (Mahoney AP).

[54] Transcript of Proceedings, IMO Castlerea Carpenters Pty Ltd (Supreme Court of Victoria, S CI 2017 04818, Lansdowne AsJ, 7 May 2018), 60-1.

[55] [2019] VSC 217 ('Re Sanders & anor').

[57] Supreme Court of Victoria, A Guide to Practitioners - Applications for the Modification or Discharge of Restrictive Covenants, December 2016, [4]-[7]. The Guide to Practitioners refers to this information being in an affidavit accompanying a summons, but in practice a summons is not required, and the affidavit is in support of the originating motion.

[58] Misleading the court can also be reason for successful appeal where the judgment was potentially tainted by that misleading impression. Examples include Meek v Fleming [1961] 2 QB 366, and Vernon v Bosley (No 2) [1999] QB 18.

[59] Pham v Legal Services Commissioner [2016] VSCA 256, [77] (Redlich and Kaye JJA), summarising the train of authority establishing the meaning of professional misconduct at common law.

[60] Fidock v Legal Profession Complaints Committee [2013] WASCA 108, [100]-[102].

[61] Yarra Australia Ltd v Oswal [2013] VSCA 337; (2013) 41 VR 302: enquiry at the instance of the Court of Appeal; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 4) [2013] VSC 14: at the instance of John Dixon J; Gibb v Gibb [2015] VSC 35 (McDonald J); Re Manlio (No 1) [2015] VSC 733 and (No 2) [2016] VSC 130: at the instance of McDonald J; and the observations of the Court of Appeal in Melbourne City Investments Pty Ltd v UGL Ltd [2017] VSCA 128, [111]-[112].

[62] [2016] VSCA 319 [106].

[63] For example, in Re EAPE (Holdings) Pty Ltd [2019] VSC 242 ('Re EAPE (Holdings) Pty Ltd').

[64] Ibid; Re Sanders & anor (n 55).