Swan Hill Chemicals Pty Ltd v MA & J Tripodi Pty Ltd [2016] VSCA 264

PLEADINGS AND PARTICULARS - Plaintiff failed to particularise damage - The effect of the failure to prove a particular.

1 The applicant ('SHC') applies for leave to appeal against an order made in the County Court on 10 August 2016, that the respondent ('Tripodi') have leave to further amend its statement of claim.

2 This matter was heard on 28 October 2016 and the application for leave to appeal was dismissed, with reasons to be published at a later date. These are those reasons.

3 Tripodi conducts an orchard business in the Swan Hill region.

4 SHC is the supplier of chemicals and other agricultural materials to farming and orchard operations.

5 By a writ filed in the County Court of Victoria in August 2013, Tripodi claims damages from SHC on the basis of the following allegations:

(a) In about 2010, Tripodi decided to diversify its business by growing borlotti beans.

(b) Tripodi sought advice from SHC about the growing of a borlotti bean crop and, in particular, the appropriate chemicals which should be applied to protect such a crop.

(c) As a result of negligent advice, recommendations and monitoring by SHC, seven plantings of borlotti beans made by Tripodi in the 2012/2013 growing season failed.

(d) As a result of the negligent advice, recommendations and monitoring, Tripodi had suffered damage consequential on it being unable to fulfil a supply agreement with Woolworths Supermarkets ('Woolworths') during the 2012/2013 growing season.

6 SHC denied Tripodi's allegations and made the following allegations:

(a) It had a limited retainer to advise Tripodi as to appropriate chemicals for weed protection.

(c) A number of the plantings had died from an unrelated cause being summer death virus.

(d) The balance of the crops, if they had not been ploughed-in, would also have died from summer death virus.

(e) Tripodi had failed to have regard to the warnings on the label of the relevant chemical container.

(f) Tripodi had not entered into an agreement to sell borlotti beans to Woolworths as alleged.

7 By the commencement of the trial on 11 July 2016, the relevant claims with respect to quantum were as follows:

(a) The amended statement of claim filed 10 April 2015 stated, in paragraph 50, that 'Particulars of the Plaintiff's loss and damage will be provided upon completion of an expert report as to those matters'.

(b) Tripodi's further and better particulars similarly stated, in paragraph 15, that 'The Plaintiff will provide particulars of loss and damage once its expert reports are finalised and before trial'.

(c) Tripodi served two expert reports prepared by Mr Peter Wilkinson, a chartered accountant, dated 12 August 2015 and 31 October 2015 which identified the following losses suffered by Tripodi on the assumption that all borlotti beans produced by Tripodi would have been sold to Woolworths at an 'agreed price' of $13.20 per kilogram:

(i) a loss in the 2012/2013 growing season of approximately $1.37 million;

(ii) future losses from 2013 to 2018 of approximately $2.9 million.

(d) The amended statement of claim specifically alleged in paragraph 7 that Tripodi had a supply agreement with Woolworths to supply it with packaged shelled borlotti beans during the 2012/2013 season and the further and better particulars stated that the agreement was oral and consisted of face to face conversations between representatives of Tripodi and Mr Anthony Klatt representing Woolworths in or about early July 2011 and a subsequent telephone conversation with Mr Klatt 'on a date the Plaintiff is unable to advise'.

(e) In its defence to the amended statement of claim, SHC denied 'each and every allegation in paragraph 7'.

8 During the course of the plaintiff's opening on 11 July 2016, senior counsel for Tripodi referred to the discussions with Mr Klatt which resulted in the following exchange with the bench:

HIS HONOUR: Does the plaintiff say that amounts to a fix [sic] contract?

MR TWIGG: No, it doesn't.

HIS HONOUR: Has something more fixed happened in terms of contractual

- - -

MR TWIGG: No, it doesn't, nothing more fixed than that. There is an argument between the parties about that and about its nature. The case that the plaintiff brings with respect to that is - we will be leading evidence from Mr Klatt and he will be saying so far as the peas are concerned which did come on-line toward the end of 2012, that was in effect a trial run of the whole range.

Once they were satisfied with the quality of the product they would have then been able to receive deliveries of borlotti beans and any other range of product. The evidence from Mr Klatt will be they don't enter into those sorts of fixed arrangements until such time as they have actually acquired security of supply. So it was the start-up of that relationship in effect, Your Honour.

HIS HONOUR: So is the claim for actual losses as if they were a contract or is it for - - -

MR TWIGG: It is for actual losses as if it were a contract.

9 On the same day, senior counsel for SHC opened and with respect to the quantum of the claim said as follows:

The third issue goes back to the way in which the claim is structured against the defendant, it goes solely to the issue of was there a contract before (indistinct) in essence the plaintiff's case is based on an ability to sell to Woolworths limited parts of borlotti beans at $13 a pea [sic] kilo from whenever, we don't care as to when they say the first delivery would have taken place. So in substance the plaintiff's claim is premised upon, and the court will have to consider this issue, a long-term supply contract being in place between the plaintiff and Woolworths to buy all of the borlotti beans the plaintiff could grow and package into parts with the required quality.

10 On 14 July 2016, Mr Klatt was called by Tripodi and gave evidence.

11 On 18 July 2016, the sixth day of the trial, Tripodi closed its case.

12 SHC called evidence on the seventh, eighth and ninth days of the trial including evidence from Mr Mario Saad, a category manager at Woolworths, and Mr Chris Chase, the category manager at Woolworths who took over from Mr Saad.

13 On the ninth day of the trial, 21 July 2016, SHC closed its case.

14 On 27 July 2016, senior counsel for SHC delivered his closing address and, with respect a question from the trial judge as to the plaintiff's quantum, responded as follows:

HIS HONOUR: What I'm saying is if you assume for the purposes of argument there's no contract between Woolworths and the plaintiff to buy beans, what impact do you say that has on the case?

MR MARGETTS: We say that the plaintiff's claim must fail. It doesn't matter what happened before that date, because as in Hogan's case, there's no alternative claim put forward.

15 After completion of SHC's submissions on 27 July 2016, junior counsel for Tripodi commenced final submissions by referring to the decision of Hogan v BPW Transpec Pty Ltd,[1] upon which senior counsel for SHC had relied in support of the proposition that the proof of a binding contract was a precondition to a finding for Tripodi. He sought to distinguish Hogan's case[2] and submitted that it was only necessary to prove that 'if the borlotti beans had been grown ... would Woolworths on the balance of probabilities, agree to purchase those beans?' Counsel submitted as follows:

That's [Hogan's case] not the case here, Your Honour, and indeed it's not that we have to prove an agreement, Your Honour. What has to be proved on the balance of probabilities was that if the borlotti beans had grown without - in a proper, normal way - well this is one of the questions, but insofar as the Woolworths issue is concerned - if the borlotti beans had grown in a normal way as they had in the last four plantings for instance, would Woolworths on the balance of probabilities, agree to purchase those beans? That's the question for the court. It's not, oh there's no contract. We know, Your Honour, that the way Woolworths works, there wasn't a contract for the peas. The first thing we get in writing is the MOU. The MOU which is at p.1039 is dated July 2013. It's seven months after peas have been supplied. The way Woolworths works, Your Honour, is that you go through a quality assurance and we know [t]hat Mr Klatt's evidence is that.

16 This submission prompted Judge Cosgrave to ask whether the submission was consistent with the pleading of an oral contract.

17 At the commencement of the tenth day of the trial, junior counsel for Tripodi applied for leave to further amend the statement of claim to introduce an alternative claim based on the loss of the opportunity to sell the borlotti beans to Woolworths if the court was not satisfied that there was in existence a binding contract with Woolworths. The draft amendment incorporated the addition of the following two paragraphs:

7A Further and in the alternative to paragraph 7, the Plaintiff had an opportunity to sell its Borlotti Beans to Woolworths Supermarkets and made a commitment to and/or provided an opportunity to the Plaintiff to sell to Woolworths Supermarkets the Plaintiff's range of freshly shelled legumes including Borlotti Beans when they became available.

PARTICULARS

The commitment was oral and given at a face to face meeting held 3 July 2012 between Tony Klatt and Mario Saad of Woolworths and Michael and Jina Tripodi and Lisa Cork of the Plaintiff and in a subsequent telephone conversation between Michal Tripodi and Tony Klatt.

The substance of the commitment was that Woolworths would purchase the whole range of freshly shelled legumes, including Borlotti Beans, of the Plaintiff when they became available.

The commitment is confirmed in the evidence of Tony Klatt at Transcript pp 365 L 18-23, 366 L 13-22, 368 L 1-2, 371 L2-15, 359-362, 368 L 23-28, 377 L 24-27, 379 L 2-17 and also in an email dated 18 July 2013.

7B By reason of the actions of the Defendant summarised in paragraph 50 herein, the Plaintiff lost the opportunity to supply Borlotti Beans to Woolworths Supermarkets and suffered loss and damage.

The loss and damage suffered by the Plaintiff is set out in two reports of Bruce Wilkinson's reports dated 11 August 2015 and 9 October 2015 respectively.

18 SHC opposed Tripodi's application to amend and pursuant to directions of the trial judge:

(a) Tripodi filed submissions in support of the application and an affidavit sworn by Tripodi's solicitor on 1 August 2016;

(b) SHC filed submissions in opposition to the application and an affidavit sworn by SHC's solicitor on 4 August 2016; and

(c) Tripodi filed a further affidavit on 4 August 2016.

19 On 10 August 2016, the trial judge allowed Tripodi's application and delivered written reasons for the ruling.

20 On 1 September 2016, the trial judge made further directions for the conduct of the proceeding including that Tripodi pay SHC's costs of and incidental to the amendment on an indemnity basis.

21 On an application for leave to appeal, the Court is required to take into account the following considerations:

(a) The power to order an amendment to a pleading is discretionary and is therefore subject to the limitations identified in House v The King.[3]

(b) The decision of the trial judge was interlocutory in character. In Livingspring Pty Ltd v Kliger Partners,[4] this Court recognised the legislative policy in respect of the hearing of appeals against interlocutory orders and endorsed the statement of the Full Court in Perry v Smith,[5] that 'the object [of cutting down the number of interlocutory appeals] which Parliament had should be recognised by this Court in a liberal manner, and not begrudgingly'.[6] As a consequence, appeals from interlocutory orders should not be permitted except in special circumstances.[7]

(c) The exercise of the discretion to allow an amendment does not determine substantive rights. It is a matter of practice and procedure. Accordingly, an appellate court should exercise particular caution in considering an application for a grant of leave to appeal decisions of that kind.[8] In Livingspring's case,[9] the Court said that we should be guided by the following statement of Sir Frederick Jordan in Re Will of Gilbert:

If a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.[10]

22 Accordingly, leave to appeal should only be granted where there is sufficient doubt attending the decision below and substantial injustice would be done were the decision to stand.[11] These are stringent requirements.[12]

23 SHC submitted that, in allowing the amendment, the trial judge made the following errors:

(a) Failing to take relevant matters into account - being case management considerations, the unsatisfactory explanation for seeking the amendment, prejudice caused to SHC and the principles relevant to reopening a case;

(b) Taking an irrelevant matter into account - being the possibility that Tripodi could bring another claim for loss of opportunity if the amendment were not allowed;

(c) Mistaking the facts in respect of Tripodi's failure to plead loss of opportunity prior to trial; and

(d) Making a decision that is unreasonable and plainly unjust in the circumstances.

Ground 1 - failure to take relevant matters into account

24 Tripodi conceded that the trial judge correctly identified the current approach to pleading amendments as those identified in Aon Risk Services Australia Ltd v Australian National University[13] and the Civil Procedure Act 2010. However, Tripodi submitted that the trial judge only had regard to the effect on court resources and other litigants. In particular, SHC contends that 'the amendment affects the real controversy between the parties and is not only relevant to the quantum of damages claimed. It amounts to a completely new case'. Further, it was submitted that the trial judge failed to take into account that SHC would be required to reopen its case and lead further witnesses.

25 We reject these contentions. The trial judge specifically considered the following matters:

(a) There would be substantial delay and the effect that that would have on the parties and the court.[14]

(b) The extent of wasted costs that would be incurred[15] and the fact that SHC would be permitted to reopen its case, recall witnesses for cross-examination and lead further evidence.[16]

(c) Whether the circumstances were such that there would be irreparable prejudice caused by the amendment which could not be adequately compensated for by a costs order.[17]

26 Contrary to the submissions of SHC, the trial judge, in our opinion correctly, found that Tripodi was not putting forward 'an entirely different case'.[18] Tripodi's case on damages (although unfortunately never particularised) was always a loss of opportunity case. Tripodi's case was required to prove on the balance of probabilities that by reason of SHC's negligence, it had lost a commercial opportunity to grow a crop of borlotti beans 'which had some value (not being a negligible value)'.[19] The value of the opportunity was then to be 'ascertained by reference to the degree of probabilities or possibilities'[20] that Tripodi would have made any and what profit. This assessment of quantum, this allegation was likely to give rise to issues such as:

(a) whether the crop would have been destroyed by unrelated problems such as summer death virus;

(b) whether the crop would have been as productive as alleged;

(c) whether Tripodi would have had the expertise and equipment to harvest and process the crop;

(d) whether Woolworths would have been interested in purchasing the crop;

(e) whether the crop would have met Woolworths' standards.

The issue of whether there was a legally binding contract with Woolworths was only one fact that may have affected the ascertainment of the value of the opportunity of selling the borlotti bean crop at a profit.

Unsatisfactory explanation for seeking the amendment

27 In support of the application for the amendment, Tripodi filed an affidavit of its solicitor Eric Vadarlis, sworn 1 August 2016. In substance, Mr Vadarlis deposed to the fact that it was only after the evidence of the Woolworths employees Mr Klatt, Mr Saad and Mr Chase that 'it became more apparent that a claim for loss of opportunity to supply Woolworths as opposed to a legal binding contract may be more appropriate'.

28 The trial judge considered the question of whether a satisfactory explanation had been given for seeking the amendment at the late stage and concluded that he did not consider the reasons in Mr Vadarlis' affidavit to be compelling or persuasive.[21] However, he stated:

I suspect the reassessment of Tripodi's position was prompted partly by the defendant's closing submissions, and partly by the lawyers' realisation that this alternate claim should have been included. I am at least satisfied that the failure to plead loss of opportunity was not a deliberate tactical decision for which Tripodi now seeks to resile.[22]

29 It was submitted on behalf of SHC that the trial judge's consideration of this issue was inadequate for the following reasons:

(a) There was no explanation as to why the application for the amendment was nearly two weeks after the evidence of Mr Klatt finished and over a week after the evidence of Messrs Saad and Chase finished.

(b) Tripodi was on notice that SHC's case was that the Woolworths contract did not exist because its defence denied the existence of the contract and its list of witnesses dated 7 June 2016 included Messrs Saad and Chase. Further, SHC senior counsel confirmed this denial in the opening of SHC's case.

(c) There was not a substantial difference between Mr Klatt's proof of evidence and his evidence at trial.

30 The trial judge stated that the explanation for the lateness was not particularly compelling or persuasive but he was satisfied that the failure to plead a loss of opportunity case was not a 'deliberate tactical decision'. In our opinion, the trial judge was in the best position to discern whether the failure to plead a loss of opportunity case had been a deliberate forensic decision. We are unable to detect any error in the trial judge's reasoning. On the contrary, we consider that the following facts would tend to support the conclusion that the failure to specifically plead a loss of opportunity case was an oversight by Tripodi's lawyers:

(a) There was no particularisation of Tripodi's claim for damages either in the statement of claim or in the further and better particulars. A calculation of the quantum was based on an expert report, which simply assumed the prices at which the borlotti beans would be sold to Woolworths.

(b) In the opening of Tripodi's case, senior counsel said that the claim was based on the fact that the borlotti beans would be sold to Woolworths pursuant to a contract but did not state that the case hinged on a finding of an existing legally binding contract between Tripodi and Woolworths. On the contrary, senior counsel identified the uncertainties of dealing with Woolworths prior to the product being accepted.

(c) In final submissions, junior counsel for Tripodi commenced by dealing with the proposition put by SHC that Tripodi's claim was dependent on proving a legally enforceable contract. He contended that Tripodi was entitled to put the claim on the basis of a loss of opportunity to supply the product to Woolworths. It appears very likely that the decision to amend the statement of claim was made after the lawyers considered that, in response to that submission, the trial judge had indicated that it was contrary to the pleading of a contract with Woolworths.

31 In any event, in our opinion, the trial judge gave proper consideration to the explanation of Tripodi and, in finding that it was not satisfactory, the trial judge was entitled to find that the lack of an adequate explanation was not determinative of the application.

32 The trial judge gave detailed consideration to whether the amendment would cause substantial delay, wasted costs and irreparable prejudice.

33 SHC acknowledges that the trial judge noted that the lengthy break between July 2016 and February/March 2017 would mean that he would have to re-familiarise himself with the details of the case, which would make the judgment more burdensome. However, SHC submits that, despite noting these matters, the trial judge did not take them into account in deciding to allow the application.

34 We reject this submission. The trial judge properly considered that these considerations weighed against the grant of the amendment but, after properly weighing all considerations, the fact that he did not consider them to be determinative was well within his discretion.

35 It was further submitted on behalf of SHC that, if Tripodi had particularised a loss of opportunity claim, it would have cross-examined Tripodi's witnesses differently. For example:

(a) The cross-examination of Mr Tripodi about problems affecting the processing equipment after the 2011/2012 growing season would have been further pressed.

(b) The cross-examination of Mr Tripodi about his ability to sort borlotti beans prior to packaging would have been further explored.

(c) There would have been cross-examination as to the credit of Mr Klatt.

36 The trial judge identified that SHC would wish to further cross-examine witnesses and lead further evidence, which would result in substantial delay. However, we do not consider that the trial judge failed to consider any relevant aspects of irreparable prejudice for the following reasons:

(a) Although SHC, in its submissions to the trial judge, indicated that further cross-examination would be necessary, it did not contend that, apart from delay, it would suffer prejudice by being required to cross-examine the witnesses on two separate occasions.

(b) In its submissions to this Court, apart from generally submitting that the Court may have formed 'assessments of evidence previously given which can not now be undone', SHC was unable to identify any specific prejudice or any reason why further cross-examination as to credit or otherwise would be less effective when the witnesses are recalled.

(c) Although it was contended that the cross-examination of Mr Tripodi about Tripodi's ability to produce the borlotti beans for Woolworths was not pressed, as referred to above, it was plainly a live issue in the trial before the application for amendment. Given the complete absence of particularisation of Tripodi's loss, it would have been a bold forensic decision not to explore Tripodi's capacity to produce the borlotti beans for Woolworths on the basis that there was no legally binding contract with Woolworths.

37 SHC contended that the trial judge erred in failing to take into account principles relevant to the reopening of a case. In particular, it was contended that the reopening of a case should not be permitted except in exceptional circumstances. SHC contended that the following factors should have been considered by the trial judge:

(a) the unsatisfactory explanation of Mr Vadarlis as to the reasons for the delay in making the application for the amendment in his affidavit;

(b) the delay in the finalisation of the litigation;

(c) the 'lack of discipline' of Tripodi's lawyers in failing to properly particularise its claim for damages at an earlier time; and

(d) the difficulties about whether Tripodi would be entitled to call further evidence, for example rebuttal evidence to any new expert evidence called by SHC.

38 We reject this submission on the basis that the trial judge plainly did take into account the adequacy of the explanation for the late amendment, the delay, the need for finality in litigation and the conduct of Tripodi's lawyers. Further, the future conduct of the trial and, in particular, the issue of whether and on what terms Tripodi might be able to call further evidence in rebuttal or otherwise is a matter that is properly within the control of the trial judge.

Ground 2 - taking an irrelevant matter into account

39 The trial judge considered that 'the issue sought to be raised by the amended pleading is part of the real question in controversy because it goes to the damage which Tripodi suffered if it is entitled to recover from SHC for alleged negligence'.[23] He went on to consider that the proposed amendment would avoid the possibility of another action where the point regarding damage 'might be argued', but noted that such an action would raise arguments about abuse of process and Anshun estoppel.[24]

40 SHC submits that the trial judge's observations about the issues of such a claim giving rise to an abuse of process or Anshun estoppel were correct 'but did not go far enough'.

41 The trial judge's observations need to be seen in light of the fact that he is referring to r 36.01(1) of the County Court Civil Procedure Rules 2008 which provides that a court may amend any document for the purpose of determining the real question between the parties and to avoid multiplicity of proceedings. The trial judge correctly identified that the question raised by the amendment was a real question between the parties; and any further proceeding arguing the same issue would face substantial obstacles.

42 We do not consider that the trial judge took an irrelevant matter into account.

43 SHC contended that the trial judge's conclusion that the failure to properly particularise Tripodi's loss to include a loss of opportunity claim was an error because it was not consistent with the explanation contained in the affidavit of Mr Vadarlis.

44 For the reasons set out in [29] above, we reject the contention that it was not open to the trial judge to reach the conclusion that the failure to particularise a claim for loss of opportunity 'was not a deliberate tactical decision for which Tripodi now seeks to resile'.

Ground 4 - decision is unreasonable and plainly unjust

45 It was contended on behalf of SHC that, apart from any specific error, the matters upon which SHC relies, as summarised above, renders the decision to allow the amendment both unreasonable and plainly unjust.

46 We reject this contention. In our opinion, the detailed reasons provided by the trial judge indicate that the trial judge properly weighed all considerations in reaching his conclusion to allow the amendment on the terms as ordered. In particular, the trial judge identified that 'the ultimate aim of any court is the attainment of justice'.[25] The decision to allow the amendment was plainly within the ambit of his discretion.

47 For the reasons set out above, we do not consider there is sufficient doubt attending the decision below. Nor do we consider that SHC has established that any substantial injustice would be done by the decision being permitted to stand. Accordingly, we dismiss the application.

48 In our opinion, the underlying difficulty in this case was that Tripodi failed to properly particularise the damage which it proposed to claim and simply relied on expert reports.

49 SHC took no objection to the lack of particulars and sought to fix Tripodi's position to its plea that it had entered into a 'supply agreement' with Woolworths, which it appears to contend meant a legally binding agreement. The failure to prove a pleaded aspect of Tripodi's loss of opportunity claim (being whether there was a legally binding agreement) should not of itself have resulted in the failure of Tripodi's claim for damages.[26] However, its plea of an agreement and the failure to properly particularise its damages claim allowed the issue of the nature of the agreement with Woolworths to be given a prominence it did not warrant.

[1] [2013] VSC 249 (Elliott J) ('Hogan's case').

[3] [1936] HCA 40; (1936) 55 CLR 499, 504-5.

[4] [2008] VSCA 93; (2008) 20 VR 377 (Maxwell P and Buchanan JA) ('Livingspring's case').

[5] [1901] ArgusLawRp 51; (1901) 27 VLR 66, 68.

[6] [2008] VSCA 93; (2008) 20 VR 377, 379 [6] citing Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66, 68. See also Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 437; Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401, 408.

[7] Livingspring's case [2008] VSCA 93; (2008) 20 VR 377, 379 [6] citing Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 438 (Murphy J).

[8] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

[9] [2008] VSCA 93; (2008) 20 VR 377, 380 [7].

[10] [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, 323.

[11] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 433 (McInerney J).

[14] MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd (No 1) [2016] VCC 1139 ('Reasons') [39]-[40].

[19] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1998) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[24] See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[26] Hadgkiss v CFMEU [2008] FCAFC 22; (2008) 166 FCR 376, 390-91 [71]-[76] (Buchanan JA); Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322; (2014) 45 VR 540, 567 [133] (Warren CJ and Osborn JA and Ginnane AJA).