Smith v Gannawarra Shire Council and Anor [2002] VSCA 69

7. The appellants in this matter, Mr and Mrs J.C. Smith, now the applicants, have challenged the municipal valuation of their property at Kerang and the rate notice in respect thereof for the year 1 July 2000 to 30 June 2001. After initially serving a notice of objection, the council valuer of the Gannawarra Shire reduced the value of the property somewhat and the Valuer-General thereafter confirmed the adjustment to the valuation in accordance with the recommendation notice. The appellants however were not satisfied and by letter dated 13 July 2001 requested the council, pursuant to the Valuation of Land Act 1960, to refer the matter to the Victorian Civil and Administrative Tribunal (VCAT) for determination. On 31 October VCAT ordered the Valuer-General to be joined as a party to the VCAT proceeding. Then on 26 February this year the Valuer-General served upon the appellants a summons seeking that the VCAT proceeding be treated as an appeal to the Supreme Court.

10. On 28 February 2002 a judge of the trial division ordered that the proceeding be treated as an appeal to the Supreme Court and the matter was adjourned to 8 March for directions.

13. On 3 March the appellants' solicitors retained a Bernard Murray Treseder, a valuer, to give expert valuation advice and opinions in relation to the Kerang property. Treseder told the solicitors that approximately two months would be required to prepare affidavit material for the hearing of the valuation appeal.

16. At the directions hearing of 8 March before the judge, Mr Hammond, for the appellants, informed her Honour that the valuer retained by the appellants would require two months in which to provide his valuation evidence. Directions were given by the judge which however included a direction requiring the appellants to file and serve any affidavit upon which they wished to rely by 4 p.m. on 22 March and any affidavits in reply were to be filed and served by 18 April. The proceeding was fixed for trial on 9 May this year.

19. On 22 April the appellants served a summons on the respondents returnable on 24 April which sought to vacate the trial date to allow for the receipt of further affidavit evidence from Treseder and because of Treseder's non-availability on 9 May. Then on 23 April an affidavit from Treseder was filed and served. From this affidavit it appears that in order to verify and supplement the information relied upon by him in his valuation of the property access was required to all sales of rural properties in the Gannawarra Shire from the period 1 July 1998 to 30 June 2000. A number of sales relied upon by the council's valuer, Edward James McEniry, were not listed on a print-out of the sales of rural land in the Shire between 1 July 1998 and 30 June 2000. According to Treseder, the council did not allow him to inspect its records, although this is a matter vigorously contested by the council.

22. On 24 April the matter came before the judge and submissions were made on behalf of the appellants that the trial date be vacated. The affidavit material which was before her Honour contained assertions that on 27 or 28 February 2002 one of the appellants (Mrs Smith) had endeavoured to engage the services of six local valuers but had been unsuccessful in every case. On or about 15 March the appellants' solicitor, Mark Jonathan Walter, discovered that Treseder would not be available to attend the hearing set down for 9 May due to his being overseas until 13 May. Walter formed the view that Treseder would, nevertheless, be able to give evidence as it was believed that the trial would last more than four days. Walter said he thought it prudent to continue to engage the services of Treseder as the valuer had already commenced his valuation assessment and there was little prospect of obtaining a suitable alternative valuer. On 27 March Walter informed the council's solicitors of the delay in preparing Treseder's affidavit material and that the date for filing and serving would shortly be notified. The Victorian Government Solicitor, in response, told the appellants' solicitors on several occasions that their affidavit material was late thus not complying with the orders made by the judge on 8 March.

25. At the hearing before the judge on 24 April, Mr Hammond, for the appellants, submitted that the trial date should be vacated. Essentially the reasons given for vacating the trial date of 9 May were Treseder's absence for the first days of the trial until 14 May, the extra time required to obtain from the council all sales of rural properties from the period 1 July 1998 to 30 June 2000, and the appellants' need for that information to enable them properly to prepare for and conduct the trial.

28. After hearing submissions from counsel for the various parties the judge noted that the "matter was listed in an atmosphere of urgency of 8 March for 9 May on the understanding that it would take two months for the preparation of the appellants' case. The legal advisers of the appellants have known since a week after that day of Mr Treseder's unavailability and this proceeding was not brought until after he left the country...". In view of this and other considerations such as the public interest attending the matter, the judge decided that it was appropriate to retain the trial date. Her Honour accordingly confirmed the hearing date of 9 May and extended the time for the respondents to file and serve any affidavits in reply to 30 April.

31. The appellants now make application under s.17A(4) of the Supreme Court Act 1986 for leave to appeal from the orders made by the judge on 24 April, confirming the trial date and requiring them to pay the respondents' costs. Since the order fixing the trial date for 9 May was made by the judge on 8 March, the appellants are, of course, out of time to seek leave to appeal from that order and accordingly they must also apply to this Court for an extension of time to the extent necessary to enable them to seek such leave. In the circumstances the application was heard by the Court as a matter of urgency and treated, without objection, as the appeal also in the event that leave was granted.

34. The decision from which leave to appeal is sought is both interlocutory and discretionary. Leave will only be granted in such cases where the decision is wrong or attended by sufficient doubt to justify the grant of leave, and substantial injustice would be done if the decision were to stand: Niemann v. Electronic Industries Ltd [1]. Furthermore, the judge's decision involved an exercise of discretion in a matter of practice and procedure and the restraint which an appellate court will exercise before reviewing a discretionary decision of any kind is even greater in such a case - In the Will of Gilbert (dec'd)[2]. Still more is this so when the Court of Appeal is asked to interfere with a decision of a judge as to the conduct of business in his or her own court. The application now before this Court invites us to interfere with the judge's decision to fix a date for hearing a matter after having heard the parties, and there is a long line of authority which establishes that an appellate court should be very slow indeed to interfere with the discretion of a trial judge on such a question as the adjournment of a trial: see Sackville West v. Attorney-General[3]; Maxwell v. Keun [4]; Bloch v. Bloch [5]; Apex Pallet Hire Pty Ltd v. Brambles Holdings [6]. Maxwell and Bloch were both referred to by Kaye, J. in McColl v. Lehmann [7], in a passage where his Honour said:

"The decision whether to accede or to refuse the application for adjournment of the hearing was within the Magistrate's discretion. An appellate court will rarely interfere with a trial judge's exercise of discretion upon such an application ... However the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence. In some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action, whether civil or criminal, that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge's discretion."

As Atkin, L.J. said in Maxwell v. Keun[8]:

"If it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

40. It is convenient to turn first to the issue of injustice. The appellants contend that they will suffer substantial injustice and their rights will be defeated unless the trial date is vacated for the following reasons. First, their principal witness will not be available to provide advice prior to the commencement of the hearing, to verify and supplement his affidavit, to provide an affidavit in reply to the council valuer's affidavit, to advise as to the cross-examination of McEniry, and to examine and advise upon the documents the appellants propose to subpoena. Secondly, the appellants' legal advisers will be unable properly to prepare for the hearing to enable a full and proper presentation of the appellant's case without Treseder's assistance and advice. Thirdly, Treseder will not be available at the commencement of and during the hearing, or at least not before 14 May, to advise and assist the appellants' lawyers. Fourthly, the hearing has been ordered to be by affidavit, with cross-examination only by leave, and there will accordingly be insufficient time to prepare and file any further affidavit by Treseder or by any other possible witness. Furthermore on the afternoon of 30 April the council's solicitors served the appellants' solicitors with an affidavit in reply and a proposed affidavit in reply to Treseder's existing affidavit, in which Treseder's evidence already on affidavit is challenged. In the absence of Treseder the appellants are unable to prepare any replying affidavit or, so it is said, properly to prepare cross-examination in relation to the new material.

43. The appellants also challenge the "atmosphere of urgency" upon which the judge relied on 8 March in setting down the trial for 9 May. They concede that the resolution of the question of water rights, a critical issue in the present case, is one of general importance and therefore of public interest. However, it does not follow, so the argument runs, that that automatically equates with the need for an urgent or speedy hearing. It is submitted that on 8 March there was no evidence before the judge to provide any reason for so speedy a hearing of the proceeding. The judge was informed, as I have said, that the appellants' valuer would take about two months to provide his valuation evidence. We were told this morning that the appellants were taken by surprise at this hearing because the council, unknown to them, had communicated with the court and found that 9 May was a date available for the trial to begin. No impropriety is suggested in the council having done so but when the council put this date to the judge, counsel for the appellants did not have instructions which permitted him to inform the court why the valuer took the view that a period of two months was required to complete his affidavit. In any event, notwithstanding being told by counsel that such a period was needed, the judge ordered the appellants to file and serve their affidavits within a fortnight from 8 March, and the appellants complain that the judge then fixed the trial date for 9 May before any substantive affidavit material had been filed and thus before the issues had been defined.

46. The appellants also contend that on 24 April there was no evidence before the judge which provided any reason for retaining the trial date of 9 May and no evidence of any prejudice the respondents would suffer if the trial date were vacated, having regard on the other hand to the prejudice the appellants would suffer if their application to vacate the trial date were refused.

49. In these circumstances Mr Hammond submitted that the judge erred in the exercise of her discretion and the result is a denial of justice to the appellants. It was submitted that the judge placed excessive reliance on two factors, first, the public interest and, secondly, case management, without giving any or any sufficient weight to the fact that unless the trial date were vacated the appellants would not be able to present their case as fully as necessary and within the limits of the law; their rights would accordingly be denied and substantial injustice and prejudice would be suffered by them.

52. Mr Delany, for the second respondent, the Valuer-General, put before this Court a chronology which asserts that the appellants made a deliberate decision to persist with Treseder knowing on 8 March that the trial was fixed for 9 May and on 15 March that he would be overseas until 13 May. The Valuer-General's position that any application to vacate the trial date would be opposed, was expressly made known to the appellants by letter dated 8 April. Despite being on notice of this fact, no application to vacate had been mentioned to the respondent's solicitor until 22 April. The affidavit in support of the summons was not served until Treseder had departed overseas. Accordingly it was submitted that if any problems were occasioned to the appellants by reason of the refusal to vacate the trial date those problems are of the appellants' own making. Mr Delany submitted that the court must balance the interests of all parties to have the proceeding heard and determined as soon as the business of the court allows. It was submitted that this proceeding has been held to raise questions of general importance in the valuation of land in this State, whether land should be valued by including an allowance for water rights attaching to such land. Having regard to the 2002 general valuation presently being undertaken in Victoria, the prompt determination of the issues raised is of considerable importance. Mr Delany relied on the fact that the appeal also appears to have led directly or indirectly to persons in the respondent Shire having refused to pay rates imposed by reference to the year 2000 valuation, and legal proceedings to recover those rates are presently stayed.

55. Mr Delany submitted that there could be no injustice, let alone substantial injustice, to the appellants occasioned by the refusal to vacate the trial date. This was said to be because the appellants knew from 15 March that Treseder would not be available to be present for the trial prior to 13 May. Next, the judge was informed on 24 April that the council was prepared to present its case and evidence first; if the case otherwise concluded before Treseder's return from overseas both respondents were agreeable to the court taking Treseder's evidence out of sequence and on 15 or 16 May; no objection would be taken to the filing of a further affidavit concerning valuation matters on behalf of the appellants notwithstanding that such affidavit would be out of time. In other words the respondents had proposed a sensible and flexible resolution of the difficulties claimed to be suffered by the appellants and which should ensure that they would not suffer serious injustice by maintaining the trial date. Accordingly it was submitted that the application for leave to appeal should be refused.

58. Mr Lucarelli, for the first respondent, the council, submitted to the Court that at the hearing before the judge on 8 March the appellants put to her Honour that they required two months from that date to prepare affidavit material from their valuer, without explaining why it was that two months were required to prepare the material. On that date the council advanced reasons as to why the proceeding ought be heard as a matter of urgency, including, first, that 22 per cent of the council's rates were related to water rights, there being therefore massive ramifications for the Shire, its rate base and budget so that any postponement of this case had the potential to undermine good public administration in the area, and secondly, that the matter had wider ramifications for other rural municipalities in Victoria. Counsel for the Valuer-General apparently also submitted to the judge that the determination of the proceeding was of general importance to enable valuers in this State to know with certainty the position as far as water rights are concerned, a matter critical in relation to the current municipal revaluation now being done as at 1 January 2002.

61. Next, Mr Lucarelli submitted that at the hearing on 24 April the judge gave reasons for declining to vacate the trial date consistent with those already mentioned, and that those reasons are sound. No irrelevant matter was, so it was said, taken into account by the judge in the exercise of discretion. Mr Lucarelli denied that the appellants' rights would be defeated if the trial proceeds on 9 May having regard to the preparedness of the respondents to adopt a flexible approach at the trial. He challenged the view that the appellants would suffer any substantial injustice or prejudice if the trial proceeds on 9 May. Mr Lucarelli relied strongly on the line of authority beginning with Sackville West, saying that the judge's order should not be disturbed without very powerful reasons, and that, having regard to the flexibility in procedure which was contemplated by what had been offered by the respondents and plainly accepted by the judge, it was not appropriate for this Court to make assumptions about what will occur and how her Honour will deal with difficulties which might arise at trial. He submitted that the appeal had already been effectively on foot since October 2000, but in my view was not able to make good any suggestion that the appellants had been guilty of delay or were reluctant to bring on the appeal.

64. The case management system was introduced at the start of 1997 for the clear purpose of managing cases efficiently and economically in the Supreme Court and ensuring (inter alia) that cases would be brought to trial and disposed of as expeditiously as the interests of justice dictate; see Spitfire Nominees Pty Ltd v. Hall & Thompson[9] where the introduction of this system was discussed. Obviously it is essential that parties co-operate with the court in bringing matters to trial and in complying with directions given by the court. Practice Note No. 1 of 1996 - Civil Case Management[10] includes the following statement:

"All proceedings should be brought to an end as soon as that can be done, consistently with the need of each party to have a reasonable opportunity for considering its position and preparing and presenting its case."

68. But while litigation must be disposed of expeditiously, that expedition must be consistent with the interests of justice and, as the Practice Note says, must enable each party to have a reasonable opportunity for considering its position and preparing and presenting its case. Dawson, Gaudron and McHugh, JJ. said in State of Queensland v.J.L. Holdings Pty Ltd[11]:

"Case management, involving as it does the efficiency of the proceedings of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."

72. The evidence before the judge showed clearly enough that the issues involved in this matter were important to the Gannawarra Shire and, indeed, of general importance, and that the action must be dealt with expeditiously. But it has not, in my view, been shown that the issues are of such urgency that a delay of the order of one month in the date fixed for trial would be detrimental to the public interest.

75. Before us Mr Lucarelli could not point to any prejudice that would flow from an adjournment of one month in the date fixed for trial. Mr Delany, for the Valuer-General, pointed to the fact that municipal revaluations are now done on a two-yearly basis, and the current municipal revaluation is now being done as at 1 January 2002. For this purpose municipal valuers are, as I have said, required to complete their valuations by 30 June. But it seems to me that there was little or no possibility that the trial judge, having heard a complex matter over the period at least from 9 to 14 May, would have been in a position to give judgment before 30 June, having regard also to the fact that her Honour had informed the parties that she would be overseas from a date (I think 19 May) shortly after the completion of the hearing for at least three weeks. In these circumstances valuers would almost certainly be required to complete their present valuations without the benefit of the judgment in this case. Accordingly, I think Mr Delany also was unable to establish that any real detriment would be caused by the adjournment of the matter for a month.

78. On the other hand the evidence establishes, I think, that substantial damage is likely to be suffered by the appellants if the trial of the action commences on 9 May. The appellants are presently required to be in readiness to start the trial, and to cross-examine the respondents' expert witnesses, without the assistance of their principal witness and without his presence to give instructions to counsel during the first few days of the hearing. The appellants, on all the evidence, are plainly not ready to proceed to trial next week, and their case would inevitably be presented in an unsatisfactory fashion if they were forced on.

81. The appellants' legal advisers have, I think, contributed to this unfortunate state of affairs which left the judge in a most difficult position on 24 April. The appellants' problems were not satisfactorily explained to her Honour on 8 March and the appellants' advisers appear to have delayed informing the other parties and the judge of their difficulties with Treseder, notwithstanding having become aware of such problems by 15 March. On the other hand, the judge did, I think, fix an extremely tight timetable on 8 March, allowing the appellants only two weeks to file affidavits. Having heard the case argued this morning I can understand why it would have been difficult, if not impossible, for the appellants to comply with this requirement. The matter is complex and there is plainly a large amount of investigation which the appellants' valuer would have to undertake before being ready to finalise the affidavit material.

84. On 24 April her Honour said that the matter had been fixed on the understanding that it would take two months for the preparation of the appellants' case. In the affidavit sworn by the appellants' solicitor, it is said that her Honour was then told that the appellants' valuer would require two months in which to provide his valuation in evidence, which is a rather different matter. Furthermore it is clear that Treseder has not yet had access to all the relevant council records.

87. There is a further matter. Both respondents press on the Court that this is a matter of considerable general importance with massive ramifications for the Shire, and wider ramifications for other rural municipalities in Victoria. This is, in effect, a test case. It is therefore very much in the public interest that the appeal be correctly decided. If the hearing of the appeal commences with one party inadequately prepared and not ready to proceed, there is likely to be an increased risk of the appeal being decided on an unsatisfactory basis, with the judge receiving inadequate assistance from the unprepared appellants' and their counsel. It is a matter to which I think the judge did not have her attention sufficiently directed before making the orders on 24 April, and which is not mentioned in her Honour's short oral reasons.

90. In all these circumstances it has, in my view, been established that the order made on 8 March, and confirmed on 24 April cause substantial injustice to the appellants and possible detriment to the public interest by requiring them to commence the trial of this appeal involving issues of considerable importance, both to them and the general public, when they are not ready to proceed, notwithstanding the respondents' offers to be flexible in relation to matters such as the late receipt of answering affidavits from Treseder. Consistently with the decision in J.L. Holdings, it follows, with great respect, that I think her Honour's exercise of discretion miscarried in preferring the public interest to the injustice the appellants will suffer in being required to commence the trial on 9 May; cf. Commonwealth of Australia v. Halleur[12], where a similar conclusion was reached.

93. I would accordingly grant the appellants leave to appeal from the orders of 8 March and 24 April, in the former case also extending the time to enable an application for leave to appeal to be brought out of time.

96. Both respondents then submitted that if the Court were moved to grant the application for leave, they should be permitted to rely upon further affidavit material, in the case of the first respondent, affidavits by Philip Leonard Sutton, Peter John Bollen and John Russell Humpris, and for the second respondent, an affidavit of the Valuer-General himself. In the first three of these affidavits Treseder's assertion that he was refused access to documents of the council is challenged and remains in dispute. The Valuer-General's affidavit emphasizes the general importance of the matter and the obligations of valuers to return valuations for the 2002 general valuation by 30 June this year. This is a matter to which I have already referred.

99. 31 Having considered these additional affidavits, together with the material previously before the Court, I would allow the appellants' appeal from both orders for the reasons already stated. I would set aside the whole of the order made on 24 April and paragraph 6 of the order made on 8 March. I would also order that the trial date of 9 May be vacated and that the appeal be referred back to the trial judge for fixing for trial at a date not before 14 June 2002 and for further directions as to the filing and service of any further affidavit material by the appellants. I would reserve the costs of the application of 24 April, and this appeal, to the judge hearing the appeal itself.

104. I agree, for the reasons given by Charles, J.A., that the application for leave to appeal and the appeal should be allowed.

107. Normally this Court will be very reluctant to interfere with discretionary orders of trial judges in matters of practice and procedure as distinct from those which affect substantive rights; and particularly is this so where the order is made by a judge who is in control of the list of cases of which the instant case is one[13]. However, there are some occasions where orders made in matters of practice and procedure and, in particular, orders refusing an adjournment upon the application of a party will have the capacity to impact upon the substantive rights of that party in the sense that the balance of justice between the litigants has tended to be distorted by the order. The case of Commonwealth of Australia v. Halleur[14] was such a case.

110. In this case it seems to me that the respondents are alert to the possible impact of her Honour's orders as evidenced by their preparedness to adjust the procedures by presenting their cases in advance of that of the appellants, but such a distortion in procedure will not, as I see it, facilitate the reasonable opportunity in the appellants to present their case in an orderly fashion, which is their right[15].

113. In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial processes, the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position, within the bounds of reason, to present his or her case to the court in its best light and in an orderly fashion. As Dawson, Gaudron and McHugh, JJ. pointed out in State of Queensland v. J.L. Holdings Pty.Ltd.[16], in matters like this "Justice is the paramount consideration."[17] In other words, courts should be astute to ensure that expediency is not permitted to usurp justice by refusing to grant an adjournment at the instance of a party in circumstances which will significantly interfere with the ability of that party to present his or her case effectively[18]. I have no doubt that the issues raised by the appellants' appeal has consequences for the respondent Shire and rating practices in rural shires generally. However, those considerations, which no doubt have influenced a tight timetable, should not be permitted to obscure the fact that this is the appeal of the ratepayers and is equally significant to them. Indeed, the fact that the issues have become a matter of public significance requires that in the interests of justice the Court be fully informed upon those issues which are in dispute between the parties. It seems to me that very little had been put before her Honour or, indeed, has been put before this Court, which would suggest that the resolution of the issues is required with such urgency that the case should commence in the absence of the appellants' chosen valuer and the principal witness and before that valuer and principal witness can complete his work; or that the respondents will suffer irreparable prejudice if an adjournment of short duration is granted.

116. Counsel for the Valuer-General has put before this Court reasons why it would be desirable for a decision to be made by 30 June so that rate notices can be issued following the completion of the 2002 general valuation. That, I suspect, however, would be a pious hope because we have been informed, as her Honour has informed the parties, that she herself will be on leave from some time in mid May until 17 June.

119. Like Charles, J.A., and for the reasons which he has given, I am of the view that the orders made by the judge on 8 March 2002 in paragraph 6 thereof, and on 24 April 2002, if permitted to stand, are likely to cause substantial injustice to the appellants and indeed to the public interest. I agree therefore that the application for leave to appeal against those orders be allowed and that the time be extended for appealing against the order contained in paragraph 6 of the orders of 8 March 2002. I also agree that the appellants' appeal from both orders should be allowed. The appropriate course, I think, is to set aside paragraph 6 of the orders made by the judge on 8 March 2002 (fixing the date of trial as 9 May 2002), and also to set aside the orders made on 24 April 2002. The matter should be referred back to the trial judge for the fixing of a trial date not before 14 June 2002. I should note that in formulating these orders in this manner I have also had regard to the affidavits tendered this morning to the Court on behalf of the respondents and to which Charles, J.A. has referred. The costs of the application before the judge on 24 April and of this appeal should be reserved to the judge who hears the trial.

122. The formal orders of the Court will therefore be as follows - - -

MR HAMMOND: Excuse me, Your Honours, before referring the matter back to the trial judge, Your Honours, it is not normal for counsel to suggest that the matter shouldn't go back to a trial judge but we submit in these circumstances - we are instructed to ask the Court for an order that in this case the matter not return to the trial judge. There are three sets of circumstances which have arisen.

MR HAMMOND: The order we would seek in that regard, Your Honours, is that so far as the matter is to return, Your Honours, we would submit that the order which the Court make is "the further conduct of this proceeding and the trial of this proceeding be before a judge of the Court other than the judge that heard the matter below".

131. The formal orders of the Court in this matter will be as follows:

1. We extend the time for appealing against paragraph 6 of the orders made by Balmford, J. on 8 March 2002;

2. The application for leave to appeal against paragraph 6 of the orders of Balmford, J. made on 8 March 2002 and the orders made by her Honour on 24 April 2002 be granted;

4. That paragraph 6 of the orders made on 8 March 2002 and the orders made on 24 April 2002 by Balmford, J. be set aside;

5. In lieu we order that the matter be referred to the judge in charge of the Commercial List with directions that it be listed for trial before a judge in that list on a date not before 14 June 2002 but heard with such expedition thereafter as may be found to be convenient;

6. That the costs of the proceeding conducted before Balmford, J. on 24 April 2002, plus any costs thrown away as a result of the vacation of the trial date, be reserved for the consideration of the judge who hears the trial;

7. We order that the costs of the appeal to this Court be paid by the respondents and we direct that the respondents be entitled to a certificate of indemnity pursuant to the Appeal Costs Act.

[2] (1946) 46 S.R.((N.S.W.) 318 at 323

[4] [1928] 1 K.B. 645, 653

[5] [1981] HCA 56; (1981) 37 A.L.R. 55, at 58-59 per Wilson, J.

[6] (unreported) Full Court of the Supreme Court of Victoria, 8 April 1998, at pp. 4-5

[7] [1987] VicRp 46; [1987] V.R. 503 at 506

[9] [2000] VSCA 245, especially at paragraphs 32-34

[10] [1997] 1 V.R. 257

[12] [1999] VSCA 225

[13] cf. In the Will of Gilbert (1946) 46 S.R. (N.S.W.) 318 at 323 per Sir Frederick Jordan, C.J.; Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. [1981] HCA 39; (1981) 148 C.L.R. 170 at 177; Maxwell v. Kuen [1928] 1 K.B. 645 at 653 per Atkin, L.J.

[14] Court of Appeal, unreported, 14 December 1999.

[15] See Apex Pallet Hire Pty. Ltd. v. Brambles Holdings Limited (Full Court of the Supreme Court of Victoria, unreported, 8 April 1988 per McGarvie, J. at p.5).

[16] [1997] HCA 1; (1997) 189 C.L.R. 146 at 155.

[17] See also Howarth v. Adey [1996] VICSC 4; [1996] 2 V.R. 535 at 543-4.

[18] See McColl v. Lehmann [1987] VicRp 46; [1987] V.R. 503 at 506 per Kaye, J.; Walker v. Walker [1967] 1 W.L.R. 327 at 330 per Sir Jocelyn Simon.