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[2006] VSC 235
Supreme Court of Victoria
2006-07-04
HABERSBERGER J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Solicitor's defalcation - Deficiency in trust account - Dishonestly obtaining a financial advantage by deception - False accounting - Major depressive disorder.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 Stephen Michael Grant, you have pleaded guilty before me to six counts of having a deficiency in your trust account as a solicitor, contrary to s.188(1)(a) of the Legal Practice Act 1996; three counts of dishonestly obtaining a financial advantage by deception, contrary to s.82(1) of the Crimes Act 1958; and one count of dishonestly producing an accounting document knowing it to be false with a view to gain for yourself, contrary to s.83(1)(b) of the Crimes Act 1958.
2 The counts on the presentment span a relatively short period from 2 December 2003 to 30 June 2004. During this period you were one of two partners of the firm of solicitors known as Nanscawen Grant.
3 It is sufficient at this stage to note that it would appear that your offending followed the receipt by you towards the end of 2003 of a demand for payment of over $200,000 by the Australian Taxation Office. In September 2003 you had belatedly filed seven outstanding tax returns for the financial years ending 30 June 1994 to 30 June 2000, followed later by the outstanding returns for the financial years ending 30 June 2001 and 2002. You were apparently not able to pay the amount claimed in full or by instalments and, accordingly, judgment for approximately $220,000 was entered against you in January 2004. Just over half of the tax bill was for overdue tax and the balance for interest and penalties for late payment.
4 The first count, one of dishonestly obtaining a financial advantage by deception, relates to a cheque drawn on your firm's trust account on 2 December 2003 in the sum of $5,445. This cheque was used to reduce the amount owed by you to the Australian Taxation Office by way of a proposed instalment plan. The $5,445 was debited to the funds held in your firm's trust account on behalf of Kadesh Christian Community Incorporated. That body had resolved in April 2002 that it be wound up voluntarily and that its funds be distributed to another named non-profit organisation. Some $7,262 remained in trust at this time. The withdrawal was falsely recorded in the relevant ledger as one for "GST and Tax Liability" of the Kadesh Christian Community Inc.
5 Count 2 is the false accounting document charge. In December 2003 a client of your firm was Mrs Gladys Potter. She had recently been repaid the sum of $100,000 previously lent by her, unsecured and interest free, to assist friends in the purchase of a motel business. You prepared an agreement whereby Mrs Potter agreed to lend the sum of $90,000 interest free to a fictitious person Matthew Gunnerson. The loan was repayable by four equal annual instalments of $10,000, commencing nine months after the advance of the principal sum, with the balance of $50,000 repayable five years after that date. Although the loan was said to be secured by a charge over the borrower's interest in any freehold or other assets, it was totally unsecured. The agreement was possibly signed by Mrs Potter. However, the signatures of Mr Gunnerson and the two witnesses were forged by you. The agreement, which was dated 8 January 2004, was supported by false file notes allegedly recording instructions from Mrs Potter and Mr Gunnerson and by false correspondence.
6 Count 3 was another of the dishonestly obtaining a financial advantage by deception charge. On 8 January 2004 a cheque was drawn on your firm's trust account in the sum of $79,000 payable to a fictitious company DCT Pty Ltd and purportedly sent to Mr Gunnerson as part of his $90,000 borrowing from Mrs Potter. In fact, you altered the payee's name to the Deputy Commissioner of Taxation and used it to further reduce your personal taxation debt. The drawing of this cheque reduced the amount held in trust for Mrs Potter to $16,500.
7 Count 4 is the first of the deficiency in your trust account charges. On 20 January 2004 a cheque was drawn on your firm's trust account in the sum of $7,414.55 payable to a fictitious person "D. Grant". The amount, which was described in the relevant ledger and on the cheque butt as being for "D. Grant Repayment-Estate", was debited to the Estate of Melva June Grant ("the Estate of Grant"). It was not, however, paid to the Estate of Grant or as directed by the executors of that estate. Instead, the cheque was made payable to your former sister-in-law who was pressing you for payment of her share of some legal costs which she was entitled to receive following a building case dispute, but which you had not got around to recovering from the other side. The drawing of this cheque reduced the amount held in trust for the Estate of Grant to $3,219.62.
8 Count 5 is another of the deficiency in your trust account charges. On 14 April 2004 a cheque was drawn on your firm's trust account in the sum of $3,206.00. The amount, which was described in the relevant ledger and on the cheque butt as being for "Refund of Monies", was debited to Mrs Potter. It was not, however, paid to Mrs Potter or as directed by her. Instead, the cheque was made payable to McPherson & Kelley for some legal costs which another of your clients had incurred but which you recognised were your responsibility. A letter dated 14 April 2004 falsely showed the trust account cheque for $3,206.00 being sent by you to Mrs Potter in accordance with her purported request.
9 Count 6 is the third dishonestly obtaining a financial advantage by deception charge. At this time, you held the title to your parents' unit as you had previously carried out the conveyancing of the sale of their previous home and of the purchase of their unit. That property was mortgage free, which was how you came to have the title to the unit still in your possession. You decided to use your parents' unit as security for a loan of $175,000 to pay out the balance of your debt to the Australian Tax Office. As a valuation was required for mortgage purposes, you falsely told your parents that it was being obtained for the purposes of the body corporate. Also, you falsely told your parents that they needed to sign some papers for the same reason and thereby obtained their signatures on the mortgage. You presented the documents to them in such a way that they had no opportunity to read them. In any event, your mother was then aged 75 years and suffering from short term memory loss, whilst your father was aged 82 years and no doubt they both trusted you to look after their interests. Finally, you forged the signature of a solicitor friend of yours on the required independent certificate of witness of execution of mortgage which you provided to the mortgagee. The $175,000 was obtained on or about 22 April 2004.
10 Count 7 is the third deficiency in your trust account charge. On 25 June 2004 a cheque was drawn on your firm's trust account in the sum of $2,220.60. The amount, which was described in the relevant ledger and on the cheque butt as being for "FCS Repairs and Inspections", was debited to the Estate of Gladys EM Potter ("the Estate of Potter"), Mrs Potter having died on 29 May 2004. It was not, however, paid to the Estate of Potter or as directed by the executors of that estate. Instead, the cheque was made payable to Julian M Abrahams for some legal costs which another of your clients had incurred but which you recognised were your responsibility. A file note which appears to be dated 18 June 2004 purportedly recorded a telephone conversation you had with Mr Gunnerson in which he requested this payment as a further advance from Mrs Potter, pursuant to the loan agreement the subject of count 2.
11 Count 8 is another deficiency in your trust account charge. On 30 June 2004 a cheque was drawn on your firm's trust account in the sum of $1,800.99. The amount, which was described in the relevant ledger and on the cheque butt as being for "Reimb. of Funds" and "Reimbursement" respectively, was debited to the Estate of Potter. It was not, however, paid to the Estate of Potter or as directed by the executors of that estate. Instead, the cheque was made payable to Kim Cricket, the daughter of Melva June Grant and the executrix of her mother's estate. The funds needed to be taken from the Estate of Potter because of the previous defalcation in respect of the Estate of Grant, the subject of count 4. Again, the file note dated 18 June 2004 purportedly recorded Mr Gunnerson requesting this payment as a further advance from Mrs Potter, pursuant to the loan agreement the subject of count 2.
12 Counts 9 and 10 are yet further deficiencies in your trust account charges. On 30 June 2004 two cheques were drawn on your firm's trust account in the sum of $694.00 and $290.64. The first amount, which was described in the relevant ledger as being for payment of an insurance premium to "AAMI", was debited to the Estate of Potter. The second amount, which was described in the relevant ledger as being for payment of an insurance premium to "Over 50", was also debited to the Estate of Potter. Neither payment was, however, paid at the direction of the executors of the Estate of Potter. Instead, the payments were made on behalf of the Estate of Grant. The funds were needed because of the previous defalcation in respect of the Estate of Grant, the subject of count 4. Again, the file note dated 18 June 2004 purportedly recorded Mr Gunnerson requesting the payment of $694.00 as a further advance on his loan from Mrs Potter, pursuant to the loan agreement the subject of count 2.
13 The total loss suffered by your clients as a result of the ten offences was $275,071.78. Over 60% of that amount related to count 6, the dishonest mortgaging of your parents' unit, and over 90% of that amount related to count 6 and count 3, the dishonest advance of $79,000 to the fictitious Matthew Gunnerson. Thus, the remaining seven offences together resulted in a loss of only $21,071.78. (Count 2 did not result in any financial loss.) Even though the amounts were in some cases very small, the breach of trust on your part was still significant. I was told that none of the clients remain out of pocket as they have been reimbursed by the Legal Practitioners' Fidelity Fund ("the Fidelity Fund").
14 Mr Lasry QC, who appeared on your behalf, submitted that, although there was significant culpability involved in the creation of false documents, particularly in relation to the mortgage, and that this conduct involved some degree of planning and calculation, the offending demonstrated more a spontaneous and simplistic reaction to an urgent crisis rather than a carefully planned crime. As the difficulties arose, you attempted to plug a hole, and then the next hole, and so on, becoming more and more desperate. Whilst I do not disagree with this submission, I consider that the degree of planning and calculation should not be understated. The creation of the fictitious borrower Matthew Gunnerson was assisted by the making of false file notes of conversations allegedly held with Mr Gunnerson and Mrs Potter and the making of false correspondence to Mr Gunnerson and Mrs Potter and even false correspondence from Mr Gunnerson. Moreover, the borrowing of the $175,000 against the security of your parents' unit must have involved considerable planning and calculation.
15 On the other hand, I take into account that you did attempt to repay some of the money wrongfully taken from your clients. On 17 November 2004 the sum of $10,650.00 was credited to the Estate of Potter account. This money, which came from a surrendered life insurance policy, was dressed up as a payment by Mr Gunnerson.
16 I turn then to your personal circumstances. You are now 47 years of age, having been born on 21 July 1958. You were the third of four brothers. All three of your brothers are qualified medical practitioners and, in addition, one was also an athlete who competed at the Montreal Olympic Games. Mr Lasry explained in the course of a well presented and persuasive plea that he only mentioned these matters because of their relevance to the fact that you had formed the view that you had failed to meet the expectations of your family by not matching the achievements of your siblings. Nevertheless, you were in the top five percent of students at Marcellin College, the school which you attended. You obtained a Bachelor of Laws from the University of Melbourne and were admitted to practice in August 1981. You have been married to Jane Fincham, a teacher, for 24 years and you have one son aged 14 years.
17 You worked as an employee solicitor for approximately 11 years until on 1 December 1992 you went into partnership with Mr Peter Nanscawen. The firm had three offices, one in the city, another at Moonee Ponds and the third at Laverton on a part time basis. Nine staff, including one employee solicitor, were employed by the firm. Your area of practice was mainly in the commercial and conveyancing area. The partnership was dissolved in March 2005.
18 It would seem that the transition from employee solicitor to self-employed partner contained the seeds of your subsequent downfall. The last tax return filed by you for a significant number of years was your last return as an employee. It was said that this was done in 1994 for the financial year ended 30 June 1993 or 1994, although this does not appear to match other information. Nevertheless, despite the urgings of your personal accountant no tax return was filed by you for nine years. The Tax Office did not chase up the missing returns because it was unaware of your new status as a partner apparently because the partnership was also not filing tax returns. It was not until the Tax Office began a concentrated campaign against the legal profession that you succumbed to your personal accountant's badgering and lodged the nine outstanding returns in two batches in the second half of 2003. The modest nature of your earnings from legal practice is demonstrated by the fact that about $106,000 of the amount claimed by the Tax Office was for the tax outstanding over the seven years from 1994 to 2000, whereas $98,000 was for interest and penalties. Another $36,000 in back tax was claimed for the 2001 and 2002 financial years with another $4,000 in interest and penalties.
19 The explanation for the failure to lodge tax returns on time was said to be that you were suffering from a major depressive illness and could not cope with the pressures of professional life. That pressure was no doubt magnified as each year went by. Other illustrations of what was said to be your inability to cope with the demands of life as a partner in a small practice were your errors and delays in managing files which resulted in you taking funds from clients to pay to other clients to avoid disclosure of your mistakes (such as the conduct the subject of counts 4, 5 and 7) and that you carried around huge volumes of unopened mail because it was easier to ignore it rather than to deal with it.
20 Following a complaint from the executors of the Estate of Potter, investigations were commenced by the Law institute of Victoria into your firm's trust account. By January 2005 the investigator was in your office examining documents and you realised that some or all of your actions would soon be discovered. You began accumulating pain killing drugs and making other preparations. On 28 February 2005 you were informed that certain documentation in relation to the investigation could be collected from the Law Institute. Although you commenced to drive to the city you were physically unable to complete the journey. You rang and gave an excuse for not collecting the documents that day. On the next day, 1 March 2005, you attempted to take your own life in the Wombat State Forest. I was told that it was only through your wife's intuition on reading a suicide note left by you at the city office and the consequential intervention of a police officer that the attempt was not successful. You were taken to the Ballarat Base Hospital and then the Melbourne Clinic.
21 On 8 March 2005 you voluntarily surrendered your practising certificate. You then made a complete disclosure both to the Law Institute and later to the police. In March of this year, the relevant arm of the Victorian Civil and Administrative Tribunal ("VCAT") disqualified you from holding a practising certificate for a period of five years and ordered that for a further period of five years you can only hold an employee certificate with no access to a trust account. You were ordered to pay costs of $6,180, with a stay of six months. Mr Lasry told me that you do not intend to seek to practise as a lawyer in the future.
22 Although you have an income protection policy which is currently providing you with an income, as part of your recommended medical treatment you have obtained employment at a call centre. I was told that you really enjoy this work. It is heavily structured and supervised and you find satisfaction in helping people with their problems, so long as there is no conflict.
23 Not surprisingly, your financial situation is now poor. The family home, which was in your wife's name and in respect of which she made the mortgage payments from her salary, has been sold. However, after payment of the mortgage, your share of the firm's overdraft, the costs of the VCAT hearing and other expenses, a sum of about $280,000 is all that is left. Your family now live in rented accommodation and your son no longer attends a private school.
24 On your behalf, Mr Lasry told me that you wished to repay your debt to the Fidelity Fund but were caught between the desire to put matters right in that regard and the need to provide for your wife and son. Mr Lasry said that an immediate payment of $80,000 was to be offered to the Fidelity Fund with further payments to be made over time, if at all possible. I note that the remaining $200,000, after payment of the promised $80,000, would represent roughly a half share of the net proceeds of the former home after payment of the mortgage. That is now your wife's sole asset. I accept that you are genuine in your desire to do everything possible, within the constraints imposed by other demands, to ensure that the debt owed to the Fidelity Fund is eventually repaid.
25 Turning to the broader sentencing considerations, s.188(1)(a) of the Legal Practice Act 1996 provides that the maximum penalty for having a deficiency in your trust account is 15 years' imprisonment and s.82(1) and s.83(1)(b) of the Crimes Act 1958 provide that the maximum penalty for the respective offences of dishonestly obtaining a financial advantage by deception and of dishonestly producing an accounting document knowing it to be false with a view to gain for yourself is 10 years' imprisonment.
26 In R v Howse Flatman J said:
"The community is entitled to expect high standards of integrity and responsibility from the legal profession. It is perhaps well expressed in Cole, unreported, 10 May 1974:
'Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations. In this regard the solicitor stands in a particular position. He is an officer of this court, he is held out by it as a fit and proper person to practise his profession, to receive his clients' money and to be the recipient of their justified financial trust and confidence. It is not possible for the courts to regard lightly the defaulting solicitor whose actions tend to undermine the security of ordinary people and the fabric of a profession on which and on whose integrity the public are to such an extent dependent. This is particularly the type of case in which the court is entitled to express on behalf of the community, its disapproval of a particular type of breach of trust involved'."[1]
I respectfully agree with these statements about the position of defaulting solicitors.
27 It was common ground that you are entitled to have taken into account in your favour that you pleaded guilty at the earliest possible opportunity. It was also accepted by the Crown that there had been an entirely satisfactory level of co-operation with the investigating authorities. Indeed, Mr Lasry submitted, without contradiction, that the events the subject of count 1 may not have come to light so easily without your admissions, because of the lack of any personal interest in the fate of the funds of the Kadesh Christian Community Inc following its winding-up. Some delay might also have been experienced in discovering the fraud upon your parents without your full and timely admissions. I take this co-operation into account in your favour.
28 I consider that this conduct also illustrates your genuine remorse, which you expressed several times during the course of the police interview. Further, I also accept Mr Lasry's statement that you feel enormous shame and remorse over your conduct towards your parents and the fact that you will never be able to apologise to them. This is because your mother died in May 2005 having suffered severe Alzheimer's disease and your father is so affected by severe dementia that those responsible for his care have considered it would be detrimental to his wellbeing for him to be informed of these events. As Mr Lasry said, you will be saddled with this particular regret for the rest of your life.
29 Mr Lasry also submitted that the offences were not committed out of any sense of greed or desire to indulge yourself but rather to meet the crisis brought about by your inability to cope. I must point out, however, that the non-payment of tax for some nine years obviously gave you some, albeit temporary, financial benefit.
30 Your prospects of rehabilitation are excellent. You have no prior convictions and before the occurrence of these offences you were obviously a person of good character. The testimonials from your family and friends were extremely impressive. They have provided you with remarkable support. I therefore consider the importance of specific deterrence to be extremely low. I am quite satisfied that there is no risk that you will commit any offence in the future. Nevertheless, as Eames J, as his Honour then was, said in Director of Public Prosecutions v Serong:
"... breaches of trust by solicitors involving substantial sums of money are matters which the appellate courts have repeatedly said prima facie justify a sentence of imprisonment, notwithstanding the fact, which is common in all such instances, that the offender has no prior convictions and invariably has an exemplary previous reputation: see the unreported decisions of the Court of Criminal Appeal in The Queen v Moffat, 4 December 1992; The Queen v Gough, 11 June 1993; The Queen v Bieske, 18 March 1994. In all of those cases their Honours accepted that special considerations might apply to mitigate that result."[2]
31 It is quite clear that the most important consideration in terms of the proper exercise of the sentencing discretion in this case is your mental condition at the time of the offences, a matter to which I have referred several times already. Since your admission to the Melbourne Clinic you have been receiving treatment from a consulting psychiatrist, Dr Andrew Stocky, who diagnosed that you were suffering from "a severe and dangerous major depressive disorder". In his report dated 8 June 2005 Dr Stocky said that you:
"had a full hand of depressive symptoms, including low mood, sleep disturbance, loss of energy, loss of motivation, poor memory, poor concentration and an overall inability to perform [your] work or to function within the home environment."
"From my first contact with Mr Grant and his family, and has [sic] become clearer since that Mr Grant had become absolutely overwhelmed in his role as a solicitor. Mr Grant had become increasingly unable to cope with the pressures and responsibility of being a solicitor, and functioning in a partnership, and had made errors that he was unable to repair. This led to a vicious downward spiral, associated with deteriorating mood and profound guilt, and was only halted when he had a somewhat surprising survival from his serious and carefully planned suicide attempt that involved an overdose, gassing and cutting his neck, with his car parked in a remote and hidden location.
I believe it is significant that Mr Grant's mood has continued to improve significantly since he surrendered his practising certificate as a lawyer, and he has found himself able to work effectively in the unskilled role in telesales."
32 Similar views were expressed in Dr Stocky's later reports. In his latest report dated 19 May 2006 Dr Stocky recommended that you continue to take your medication, to attend the Ongoing Day Program at the Melbourne Clinic and to receive ongoing psychiatric supervision on a weekly or fortnightly basis. Dr Stocky also gave evidence. He was an impressive witness. Dr Stocky said that doing the best he could, looking back, there would seem to have been a change in your behaviour around 1992 and that your life started "becoming disorganised" in about 1994. Dr Stocky also said:
"I have no real doubt that Mr Grant has a biological predisposition to a major depression. My guess is, and I can only make assumptions here because I don't know Mr Grant from the past, is that in fact being a partner, while it was something that seemed to be a thing to aim for and something to impress his family, in fact proved not to be as successful as he had thought. I think it was difficult, I think there was a lot of detailed stuff that he had trouble with, conflict resolution he has trouble with, and I think this very intense relationship with a law partner is in fact very difficult for him."
33 Mr Lasry submitted that it is your past mental condition which explains your offending. He submitted that your major depressive condition, which was physiological as well as a problem of mood, was at the base of everything that happened. It was at the base of your non-compliance with your obligations as a taxpayer, it was at the base of your non-compliance with the day to day things that you from time to time failed to carry out properly in your work as a solicitor, and it was at the base of your hole plugging which resulted in the offences I have already described. Mr Lasry further submitted that the significance of general deterrence, whilst not eliminated, was diminished by virtue of your mental condition. Mr Lasry therefore submitted that there was a proper factual basis for suspending the whole, or the majority, of the prison sentence which he recognised had to be imposed.
34 It is well established that a person suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence.[3] As Mr Lasry recognised, in the case of an offender suffering from a mental disorder "general deterrence is not eliminated but still operates, sensibly moderated."[4] After carefully considering the evidence of Dr Stocky I have concluded that these principles are applicable in your case so that the need for general deterrence is moderated to some extent.[5]
35 Turning then to the individual sentences, it seems to me that count 6 and counts 2 and 3 require the heaviest sentences. Not only do they involve by far the greatest amounts of money but, as I have previously said, they also display the greatest degree of planning and calculation and the greatest degree of moral culpability. Other than the amounts of money involved, the remaining seven offences are very similar in terms of culpability.
36 Stephen Michael Grant, for the offences of dishonestly obtaining a financial advantage by deception you will be sentenced on count 1 to three months' imprisonment, on count 3 to twelve months' imprisonment and on count 6 to two years' imprisonment. On count 2 for dishonestly producing a false accounting document, you will be sentenced to eighteen months' imprisonment. On each of counts 4, 5 and 7 for a deficiency in your trust account you will be sentenced to three months' imprisonment. On each of counts 8, 9 and 10 for a deficiency in your trust account you will be sentenced to one month's imprisonment.
37 In terms of cumulation, it seems to me that there needs to be some degree of cumulation of count 2 on the head sentence of count 6 to take account of the fact that these were really two separate unlawful actions taken by you in an attempt to resolve your pressing taxation problem. On the other hand, I consider that the term of imprisonment for count 3 should be wholly concurrent because that offence was simply the carrying into effect of the fraudulent loan agreement, the subject of count 2. I also consider that there should be some small cumulation of counts 1 and 4 in recognition of the fact that those counts affected additional clients apart from your parents and Mrs Potter or her estate and some small cumulation of counts 4, 5 and 7 in recognition of the fact that the monies obtained from these offences were used for purposes other than payment of your debt to the Australian Tax Office. Finally, I consider that it is appropriate to make the sentences for counts 8, 9 and 10 wholly concurrent given the inter-relationship between those three counts and counts 2 and 4, as well as the relatively small amounts involved.
38 Accordingly, I order that eight months of count 2, one month of count 1, one month of count 4, one month of count 5 and one month of count 7 be served cumulatively upon the sentence of count 6, making a total effective sentence of three years' imprisonment. In terms of totality, I consider that to be an appropriate sentence. I also note that it is the same effective sentence as that imposed in John[6], Howse[7] and Halfpenny[8], which I was told by both counsel were the most relevant precedents.
39 Finally, I come to what I have found to be the most difficult question of all, namely whether to suspend the whole of your term of imprisonment. In answer to a question from me, the Crown prosecutor accepted that this option was open and described it as "a close run thing". After long and anxious consideration of all of the above matters, in particular the evidence relating to your mental condition, I have decided that this is a case where it would be appropriate to wholly suspend the term of three years' imprisonment. I therefore order that service of the entirety of that sentence be suspended for a period of three years. I am required by s.27(4) of the Sentencing Act 1991 to explain to you that the purpose and effect of a wholly suspended sentence is to impose a sentence of imprisonment on you, but that that sentence is not to be served by you unless you breach the order. A breach occurs if you commit, whether in or outside Victoria, another offence punishable by imprisonment during the period of suspension. Punishable means liable to be punished whether or not it was punished by imprisonment. If you commit such an offence it is very likely that you would then have to serve the full period of the sentence that has been suspended. I am confident, however, that you will not transgress again.
[3] See R v Anderson [1981] VicRp 17; [1981] VR 155 at 160 per Young CJ and Jenkinson J quoting from the judgment of Young CJ in R v Mooney, Unreported, 21 June 1978. See also R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400 per Charles and Callaway JJA and Vincent AJA.
[4] R v Yaldiz [1998] 2 VR 376 at 381 per Batt JA
[5] In reaching that conclusion I have been mindful of the warning given by Winneke ACJ in Yaldiz [1998] 2 VR 376 at 383.
[6] [2001] VSC 416 at [24] per Bongiorno J
[7] [2002] VSC 197 at [49] per Flatman J
[8] [2003] VSC 308 at [54] per Redlich J
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Grant [2006] VSC 235