William Cooper Justice Centre, 223 William St, Melbourne

Secretary to the Department of Planning and Community Development v Muto (No 5) (Review and Regulation) [2013] VCAT 1378

1. Mr Muto's application pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in each of proceedings Nos B82/2012 and B87/2012 is dismissed.
2. In proceedings B82/2012 and B87/2012, Mr Muto is to pay the costs of the Secretary to the Department of Planning and Community Development, which was the respondent in B87/2012 and a joined party in B82/2012, such costs fixed in the sum of $9262.00.
3. In proceedings B82/2012, Mr Muto is to pay the respondents' costs on the County Court Scale to be assessed by the Costs Court in default of agreement.

Dr R Freckelton SC, barrister, appeared on the instructions of the Victorian Government Solicitor, solicitors for the respondent in B87/2012 and the joined party in B82/2012.

Ms R Ellyard, barrister, appeared on the instructions of the firm of Faram Ritchie Davies, solicitors for the respondent in B82/2012.

**1 This is an application by Mr Muto under s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the Act) (the s 120 application) for the reopening on substantive grounds of orders made by the Tribunal, constituted by Senior Member Byard and Member McNamara, on 10 July 2013, following a full hearing of two matters:

• B87/2012: an application brought by the Secretary to the Department of Planning and Community Development alleging gross misconduct; and

• B82/2012: an application brought by named councillors alleging serious misconduct.**

**2 The matters were heard together, over three days: 6, 7 and 12 June 2013.

3 The orders made on 10 July 2013 were as follows:**

1. Having found gross misconduct on the part of the respondent in proceeding B87/2012 we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is disqualified as a councillor for four years from 1 July 2013 and this office as councillor is vacated.

2. In relation to our finding of serious misconduct in relation to proceeding B82/2012, we order that Councillor Milvan Muto of the council of the City of Greater Shepparton is suspended from office as a councillor for a period of six months commencing on 1 July 2013 and that he is ineligible to hold the office for four years from 1 July 2013.

3. Costs in relation to each of these proceedings are reserved.

4 The details of Mr Muto's appearance at the hearing are noted in the "Appearances" section at p 3 of the Tribunal's Reasons for Decision as follows:

Councillor Muto appeared in person on 6 June 2013 when he made various oral applications and submissions. He was briefly represented during part of the morning of 7 June 2013 by a barrister named Jema Cooper, who appeared on limited instructions of Voitins, solicitors of 114 William Street, Melbourne, for Councillor Muto, her instructions being limited to making a further application for an adjournment of the hearing.

5 At paragraphs 9-14 of the Tribunal's Reasons for Decision, the Tribunal further described the appearances at the hearing by or on behalf of Councillor Muto

9. When the hearing commenced on 6 June 2013, Councillor Muto, appearing in person for himself. He made applications seeking delay of the commencement of the hearing of the case and when those applications were refused, he renewed an application he had made at a Directions Hearing on the previous Friday 31 May 2013. On that occasion he had sought adjournments and when that application and another were not successful, he then had sought a reconstitution of the Tribunal for the hearing of these proceedings on the basis of his allegations that each of us was biased against him or might not bring unbiased minds to the determination of the proceedings. That application had been refused on the previous Friday and was refused again when renewed on Thursday 6 June 2013.

10. At the conclusion of the hearing on the Friday, he had said that he would apply to the President of the Tribunal for reconstitution of the Tribunal for the purpose of these proceedings on the basis of such alleged bias or ostensible bias. Arrangements were made by the Tribunal for the hearing of such a foreshadowed application on the afternoon of Tuesday 4 June 2013. As the President of the Tribunal was on leave or otherwise absent from the Tribunal during that week, arrangements were made for the Acting President, Vice President Judge Michael Macnamara, to hear that matter. The other parties' representatives made themselves available but Councillor Muto declined to appear and take advantage of that opportunity to make his application.

11. On 6 June 2013, after we had refused his application for reconstitution and had refused to disqualify ourselves on the basis of actual or ostensible bias, the case was stood down to enable Councillor Muto to make such application to the Acting President. In the event, we were informed, when the hearing resumed before us, that he declined to have Judge Macnamara deal with the matter because, he alleged, the Acting President was also biased against him. Judge Macnamara had heard an application Secretary to the Department of Planning and Community Development v Muto[1] in relation to Councillor Muto after the Ross decision. We will refer again to that decision later in these reasons. Ultimately, Judge Jenkins, a Vice-President of this Tribunal, heard Councillor Muto's application under delegation from the President. The application for reconstitution was dismissed and an order for costs was made against Councillor Muto on the basis that the other parties had been unnecessarily disadvantaged by his vexatious conduct of the application, the unreasonable prolonging of the proceedings and having regard to the application having had no tenable basis in fact or law. Her Honour ordered that the case should proceed before ourselves.

12. Upon the resumption before us, Councillor Muto expressed dissatisfaction and, while gathering together his papers and materials, declared that he was leaving to seek an injunction from the Supreme Court. Before he left, he was informed that the hearing would proceed in his absence unless and until it was restrained.

13. The hearing then proceeded in his absence on that day and also on 7 and 12 June 2013.

14. Approximately halfway through the morning on 7 June 2013, Ms Jema Cooper, barrister, appeared for Councillor Muto to seek an adjournment. She did not have a brief but informed us that she appeared on instructions of Voitin Lawyers of 114 William Street, Melbourne, for the limited purpose of seeking the adjournment. The basis of that application was that Councillor Muto was in hospital. The case was stood down to afford her an opportunity of obtaining evidence to support the application. Upon the resumption, the only further evidence available was a medical certificate from a medical general practitioner in Shepparton. It was clear that Mr Muto was not in hospital at all. A ruling was given that the case was to proceed because the basis for seeking an adjournment did not warrant an adjournment in the circumstances. Ms Cooper then withdrew and thereafter the hearing proceeded with no further appearance by or for Councillor Muto.

The hearing of the s 120 application

**6 Mr Muto has provided as reasons for his application:[2]

7 No other material was filed by Mr Muto in support of his application prior to the hearing before us on 26 July. He appeared in person before the Tribunal. Dr Freckleton SC of counsel appeared on behalf of the Secretary to the Department of Planning, and Community Development, the applicant in proceeding B87/2012 and the joined party in proceeding B82/2012. Ms R Ellyard of counsel appeared on behalf of the councillors who were the applicants in proceeding B82/2012.[3]

8 Dr Freckleton relied on written and oral submissions and a number of authorities which were provided to Mr Muto. Dr Freckleton tendered a letter dated 7 June 2013 from the Victorian Government Solicitor's Office (VGSO) to Mr Muto which was sent to him by email at 6.30 pm[4] and the response from Mr Muto received by email at 6.41 pm on the same day[5]. The letter from the VGSO was in the following terms:**

We refer to the continuation of the hearing in these proceedings today in the Tribunal.

We write to inform you of the matters dealt with by the Tribunal today, which was conducted in your absence.

As was indicated to you by the Tribunal yesterday as you left the hearing room, the Tribunal for the time being intended to continue with the hearing of these matters notwithstanding your departure. Accordingly, following your departure yesterday, the Secretary commenced his case with opening submissions in respect of Proceeding B87/2012, before the Tribunal adjourned at approximately 4.30 pm.

Today, the hearing resumed at 10 am and the Secretary lead the evidence in support of his application. The following witnesses gave evidence on behalf of the Secretary: 1. Julie Salomon; 2. Dean Rochfort; 3. Tina Zappala; and 4. Cherie Crawford.

At approximately 11am, a Ms Cooper of Counsel entered the hearing room and announced an appearance on your behalf. Ms Cooper indicated that she was instructed by Voitin Lawyers and proceeded to apply for an adjournment of the hearing, on the grounds that you were not medically fit to attend and participate. After giving due consideration to a medical certificate received on your behalf and the submissions of the parties, the Tribunal refused to grant your application for an adjournment. Accordingly, the hearing of the matters continued for the remainder of the day.

Following the completion of the evidence by the Secretary's witnesses, the Applicants in Proceeding B82/2012 commenced to lead the evidence in support of their application. The following witnesses gave evidence: 1. Cherie Crawford; 2. Geoffrey Dobson; and 3. Michael Hazelman.

At the conclusion of today, the Tribunal adjourned the hearing until 10 am on Wednesday 12 June 2013. The Tribunal adjourned the matter to Wednesday, rather than Tuesday, having regard to your previous indication that you have a requirement to appear at Shepparton Magistrates' Court on Tuesday, 11 June.

At the resumption of the hearing on Wednesday, it is expected that the Applicants in Proceeding B82/2012 will call two final witnesses, Jenny Houlihan and Michael Polan. Following those witnesses, the Tribunal intends to hear final submissions from each of the parties.

9 The response from Mr Muto was sent by email at 6.41 pm on 7 June 2013 to the Tribunal in the following terms:

Dear Daniel as the leader of a supposed model litigant team you should be ashamed of yourself, I can only hope that you and your corrupt team and tribunal have the misfortune to fall ill one day.

**10 Mr Muto made oral submissions and read from some written submissions he had prepared. He referred me to a number of authorities. After the conclusion of the hearing he filed additional written submissions.

11 Mr Muto relied on a number of documents. The first of these was a short medical certificate by Dr Glen Russell dated 7 June 2013,[6] which certified that Mr Muto: "is not fit to drive to Melbourne today, nor is he fit to represent himself at VCAT. He should be fit to resume in July 2013". Mr Muto tendered a further medical certificate by Dr Russell dated the same day[7], which stated that he:**

is unfit to attend VCAT today.

He is quite agitated and hypertensive today (bp 134/108) and should not be on the roads. I do not feel that his mental state is well enough to represent himself adequately at present.

He should be fit to resume in July 2013.

**12 Counsel for the respondents indicated that they were aware of this second certificate, a copy of which was located on the Tribunal file and marked 'received on 7 June 2013', but not the first. Nothing turns on this, however, as the two certificates are in similar terms.

13 Mr Muto also relied on a further certificate by Dr Russell dated 11 June 2013[8] which he said he sent by email to the Tribunal under a covering letter dated 11 June 2013.[9]

14 The covering letter was in the following terms:**

Dear Mr Nelms

Please find attached further letter of today's date from Dr Russell.

I wish I was well enough to proceed in these matters to prevent further heartache and distress for my family and myself. This is the second time VCAT has been informed of my ill health from a local doctor.

Please consider this as a formal application for adjournment of matters B82-2010 and B87-2012.

15 The medical certificate was in the following terms:

Mr Muto is suffering from an acute situational reaction.

His mood is quite low. He has a headache and cannot concentrate. He presently has trouble reading and comprehending. He also has a tremor and has difficulty writing. He is having extreme difficulty sleeping.

Medically he is a heavy smoker with high blood pressure. (164/123)

It is my opinion that he is not psychologically or medically fit to represent himself in any court.

We have instituted a mental health plan to help him recover.

16 Finally, Mr Muto relied on two automatic email response documents which he said indicated that the documents dated 11 June 2013 sent by him by email had been received at the Tribunal's email address: an automated response from Agents.DOJ@justice.vic.gov.au dated 11 June 2013 at 6 pm[10] and a further automated response from Carol.Lloyd@justice.vic.gov.au sent on 12 June 2013 at 8.38 am[11]. Each of the automated responses acknowledges the receipt of an email. Counsel for the respondents indicated that they had no knowledge of these two documents dated 11 June 2013, that neither of these had been put before the Tribunal at the hearing in June 2013, and that there was no evidence that the Tribunal members presiding over the hearing in June 2013 had ever received these two documents.

**17 Mr Muto's submissions can be briefly summarised. He sought a 4 hour adjournment at 3.25 pm on 6 June which was refused and left the hearing at 3.35 pm to seek legal advice concerning a Supreme Court injunction. He saw Voitons Lawyers and was advised that an application to the Supreme Court would cost him $10,000. He did not have the funds. He went to his son's house and had a beer. The next morning he was feeling unwell but got dressed for the VCAT hearing; his friends drove by and took him to hospital. He was referred directly to a general practitioner, Dr Russell, who arranged a mental health plan. He assumed that Voitons Lawyers arranged for Dr Russell to write the medical certificate dated 7 June which was provided to the Tribunal by Ms Cooper. Dr Russell gave him an appointment for 11 June in the afternoon. Mr Muto attended court in Shepparton on the morning of 11 June for a mention in another matter. When he attended Dr Russell in the afternoon Dr Russell found he was "worse" and gave him another certificate which was sent to the Tribunal's registry.

18 Mr Muto said that he was not present when the evidence was called in his case and did not get the opportunity to test it. In his additional submissions filed on 29 July 2013,[12] Mr Muto submitted that the hearing had not commenced because the first day was taken up with preliminary argument and various applications made by him.

19 Mr Muto relied on a number of cases.[13]

20 Dr Freckleton submitted that Mr Muto's application should fail because he had not met the preconditions set out in section 120(1) of the Act. The pre-conditions were, firstly, that the person applying did not appear and was not represented at the hearing, and secondly, that the Tribunal was satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing. Only if satisfied of these pre-conditions could the Tribunal exercise the residual discretion to revoke or vary the order.

21 Dr Freckleton submitted that Mr Muto appeared in person at the Tribunal hearing on 6 June 2013, then absented himself after his applications for an adjournment and for reconstitution of the Tribunal failed. He absented himself ostensibly to enable him to make an application for an injunction in the Supreme Court to prevent the hearing from continuing. He did not attend the Tribunal hearing thereafter, but was represented by counsel on the morning of 7 June for the limited purpose of an application for an adjournment supported by a medical certificate of a General Practitioner, Dr Russell, dated 7 June 2013. After hearing argument, the Tribunal refused the adjournment application made by Ms Cooper on Mr Muto's behalf. Mr Muto did not appear on 12 June 2013 when the hearing resumed. On these facts, Dr Freckleton submitted, it was clear that Mr Muto attended the first day of the hearing and represented himself, and was represented on the second day of the hearing through counsel, albeit that his counsel appeared for the limited purpose of applying for an adjournment. Dr Freckleton submitted that Mr Muto's departure from the hearing was a deliberate one and that he left the hearing in order to attempt to delay the hearing taking place.

22 Dr Freckleton conceded that, on the authorities, the Tribunal is to construe the words "reasonable excuse" "very liberally" where, for example, the failure to attend a hearing is due to oversight,[14] or accident, or the reliance upon ones solicitors,[15] but submitted that these situations are very different to a situation where the failure to attend arises from a deliberate decision or from a person "hiding".[16] He submitted that, having appeared in person on the first day of the hearing and having been represented on the second day even for the limited purpose of applying for an adjournment, Mr Muto could not bring himself within the terms of s 120(1) of the Act. For this reason, he submitted, it was not necessary to consider the issues concerning the reasonableness of excuse for non-attendance.

23 Dr Freckleton submitted that, in any event, there was no proper evidentiary basis to conclude that he had a reasonable excuse for not attending or not being represented at the hearing, as he chose, after the first day, not to attend further. He submitted that the Tribunal heard argument from Mr Muto on the adjournment application at the end of the first day of the hearing, that is, on 6 June 2013 and concluded that no proper evidentiary ground had been made out for adjourning the hearing.

24 As for the additional material said by Mr Muto to have been sent to the Tribunal by email on 11 June 2013, Dr Freckleton submitted that there was no evidence that this material had reached the Tribunal members or that they knew of its existence. Dr Freckleton submitted that we should consider only the material which the Tribunal referred to in its Reasons for Decision, that is, the matters raised by Ms Cooper on behalf of Mr Muto on 7 June 2013 when she applied for an adjournment of the hearing.

25 Finally, Dr Freckleton submitted that, even if the discretion to reopen were enlivened, the Tribunal should take into account the strength of the case against Mr Muto and therefore dismiss his application.

26 Ms Ellyard adopted the oral submissions made by Dr Freckleton. She submitted that Mr Muto could not bring himself within the terms of s 120(1) because he knew about the hearing, attended the first day and represented himself, was represented on the second day, tried everything he could on the first day to stop the hearing, then left it, then tried to have it stopped on the second day through his counsel. She submitted that an application under this section is designed for people who miss the hearing because they do not receive the hearing notice, or forget the date or are prevented from attending by some accident. She submitted that Mr Muto also failed on the second hurdle, as he chose not to attend the hearing after 6 June 2013 and chose not to be represented after the failure of the adjournment application on 7 June 2013.

27 She submitted that the material allegedly emailed to the Tribunal's premises on 11 or 12 June by Mr Muto did not advance his case because there was no evidence that these letters reached the Tribunal members hearing his case. She said that in the event of an appeal by Cr Muto against the decision of the Tribunal handed down on 10 July 2013, the Supreme Court could consider whether the material dated 11 June could stand as new and sufficient evidence of reasonable excuse but that it was inappropriate for us to go behind the reasons of the Tribunal.

28 Finally, Ms Ellyard submitted that even if the discretion to re-open the Tribunal's order was enlivened, the case against Cr Muto was overwhelming and the Tribunal should not exercise the discretion in his favour.

29 At the conclusion of the hearing Mr Muto indicated that he had not been able to print off all of the cases on which he wished to rely and sought leave to file and exchange those after the conclusion of the hearing. I gave him leave to do so by 1 pm on Monday 29 July 2013, with leave to the applicants to respond to the cases referred to. Mr Muto provided the case citations, along with some brief additional submissions, in an email dated 29 July 2013 at 12.47pm Dr Freckleton provided written submissions in reply on 30 July 2013. We have considered all of the written submissions filed by the parties in addition to the oral submissions made before us.

The law in relation to s 120 orders

(1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

(2) An application under sub-section (1) is to be made in accordance with, and within the time limits specified by, the rules.

(3) The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.

(4) The Tribunal may -

(a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and

(b) if it thinks fit, order that the order be revoked or varied.

(5) Nothing in Division 3 of Part 3 applies to a review under this section.

**31 On the authorities, before granting an order under s 120 of the Act, the Tribunal must be satisfied, firstly, that the party seeking the order did not appear at a hearing and was not represented at that hearing.[17] If a person appears through lawyers, then they will be taken to have been represented at the hearing.[18]

32 Mr Muto did not dispute any of the chronology of events outlined by Dr Freckleton. We reject the contention made by Mr Muto in his additional written submission to the effect that because he was not present for the opening addresses or the evidence the "hearing" had not commenced. We are satisfied that the hearing before the Tribunal commenced on the morning of 6 June 2013. The fact that the first day was occupied largely with resolving adjournment and reconstitution applications made by Mr Muto does not alter the fact that the hearing had indeed commenced. We are also satisfied that Mr Muto appeared in person on the first day of the hearing, for almost the entire day, until 3.35 pm. We are satisfied that on the morning of the second day of the hearing, he was represented by counsel, if only for the limited purpose of making an application for an adjournment of the hearing on his behalf.

33 We note that in his additional written submissions filed after the conclusion of the hearing,[19] Mr Muto relied on a number of cases. It is appropriate to refer to these briefly in turn.

34 Vero Insurance v Body Corporate[20] is of no relevance to the current case because the decision under review by the Court was that the Tribunal was functus offico.

35 Melbourne Estate Agents Pty Ltd v Romanos[21] and Turner & Cathro v Hidayat[22] are relevant in that each of the decisions emphasise that s 120 is only engaged if there is absence from the hearing or lack of representation. These decisions support the respondents' case, not Mr Muto's. The decisions of Milo Engineering (Sales) Pty Ltd v Quantum Superannuation Pty Ltd;[23] TSA Architects v Boroondara CC;[24] Guss v Aldy Corporation Pty Ltd;[25] Panwell Pty Ltd v Zekiri;[26] do not assist Mr Muto because in each of those cases, critically, the relevant party had not appeared before the Tribunal and was not represented. That is, in each of the cases the applicant met the first requirement for the engagement of s 120 - the absence of the applicant either in person or via legal representation.

36 The case of MacKay v Knight[27] deals with the issue of "reasonable excuse" which is not reached in this matter because of the matters set out in paragraph 32 above.

37 We therefore consider that Mr Muto has not met the first requirement for an application under s 120 of the Act, namely, in the words of s 120(1), that he "did not appear and was not represented at the hearing at which the order was made". For this reason, his application must fail.

38 In light of this determination it is not appropriate for the Tribunal to consider the matters which fall within s120(4) of the Act.**

**39 Dr Freckleton submitted that the application by Mr Muto in both proceeding B82/2012 and B87/2012 was ill-conceived and unmeritorious and that in the circumstances costs should follow the event. He quantified his client's costs in the sum of $9262.00.

40 Ms Ellyard also sought her client's costs of the application in proceeding B82/2012 but was unable to fix these.

41 Mr Muto sought costs in the sum of $9262.00 against Dr Freckleton.

42 The general rule regarding costs in VCAT is that each party bears their own costs. However, section 109(2) provides that the Tribunal may at any time order that a party pay all or a specified part of the costs of another party in the proceeding. Section 109(3) provides that the Tribunal may make a costs order only if satisfied that it is fair to do so having regard to a number of matters including whether a party has made a claim that has no tenable basis in fact or law[28] and any other matter the Tribunal considers relevant.[29]

43 On a number of occasions the Tribunal has awarded costs against an applicant where the application is misconceived and/or wholly without merit.[30]

44 We note that it is well established that "costs" do not include the time taken by an unrepresented person (who is not a lawyer) in preparing and conducting his or her case.[31]

45 Mr Muto did not dispute his appearance on day 1 of the hearing nor the fact that he was represented on the second day of the hearing, albeit briefly, by Ms Cooper for the limited purpose of making a further adjournment on his behalf. In these circumstances, notwithstanding his belief that the Tribunal ought to have acceded to the adjournment application made on 7 June 2013, there was no tenable basis for his application before us.

46 We consider that Mr Muto's application under s120 of the Act is misconceived and that his claim has no tenable basis in fact or law. For this reason, we consider it appropriate to order that Mr Muto pay the costs of the Secretary to the Department of Planning and Community Development, which was the respondent in B87/2012 and a joined party in B82/2012, in the sum of $9262.00, and that Mr Muto also pay the costs of the respondents in proceeding B82/2012 on the County Court scale, such costs to be assessed by the Costs Court in default of agreement.**

[1] [2012] VCAT 1986

[2] See the handwritten application dated 22 July 2013.

[3] Dr Freckleton and Ms Ellyard had also appeared in the Tribunal hearing on 6, 7 and 12 June 2013.

[13] Melbourne Estate Agents Pty Ltd v Romanos [2005] VSC 408; Vero Insurance v Body Corporate [2005] VSC 56; Knight v Mackay [2008] VSC 602; Milo Engineering v Webb Pty Ltd [2006] VCAT 455; TSA Architects v Boroondara [2007] VCAT 1476; Guss v Aldy Coporation Pty Lt_d [2008] VCAT 912; Panwell Pty Ltd v Zekiri [2010] VCAT 417; Turner and Cathro v Hidayat_ [2010] VCAT 1906.

[14] Celona v Lillas & Loel Lawyers Pty Ltd [2012] VCAT 403 at [12].

[15] Avonwood Homes v Miodanovic [2005] VCAT 1297 at [34].

[17] Zolis v Vero Insurance Ltd [2004] VCAT 1753; Melbourne Estate Agents Pty Ltd v Romanos [2005] VSC 408 at [14]; Turnder and Cathro v Hidayat [2010] VCAT 1906 at [4].

[18] Kormilas v Housing Guarantee Fund Ltd [2004] VCAT 2184 at [16] per Cremean SM.

[20] [2005] VSC 56.

[21] [2005] VSC 408.

[22] [2010] VCAT 1906.

[23] [2006] VCAT 455.

[24] [2007] VCAT 1476.

[25] [2008] VCAT 912.

[26] [2010] VCAT 417.

[27] [2008] VSC 1612.

[30] Whittlesea CC v Dimitrioski [2005] VCAT 1129 at [4] per Gibson DP; Maher v Greater Bendigo CC [2005] VCAT 712 at [18] per Member Hadjigeorgiou; Avonwood Homes Pty Ltd (in liq) v Milodanovic [2005] VCAT 2205 at [8]; Mackay v Knight [2008] VCAT 1612 at [16]; Greater Bendigo CC v Rutledge [2008] VCAT 1639 at [11].

[31] See Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; Aussie Invest Corporation Pty Ltd v Hobsons Bay CC (2004) 22 VAR 2012 at [18]; Greenhill Homes Pty Ltd v Allianz Australia Insurance Ltd [2006] VCAT 184; The Gombac Group Pty Ltd v Vero Insurance Ltd [2006] VCAT 238 at [16]; Stewart v South Gippsland SC [2007] VCAT 108 at [16]- [18].