... had been aware of Part 3A, it most likely would have dropped the claims for exemplary damages, thereby reducing the claim amount ... so that the matter could have been heard in the Magistrates' Court.

1. Thunderbird supported its proposed third ground of appeal by reference to the reasons it had advanced in support of its proposed first and second grounds of appeal. It further submitted that any costs considerations in this matter should be determined in accordance with Division 8 of the VCAT Act.

1. The first and second respondents, Internode and NBN Co, submitted that leave ought not be granted because the judge did not err for any of the reasons identified by Thunderbird. Internode adopted the written submissions filed by NBN Co. These submissions will therefore be referred to hereafter as 'the respondents' submissions'.
2. In response to Thunderbird's proposed first ground, the respondents submitted that Silberman was, as its facts disclosed, intended to apply to matters that commenced in VCAT and subsequently found their way to a court. Further, in the respondents' submission, the factors to which Silberman referred were of general application. The respondents contended that Thunderbird's statement that its situation was different from the circumstances in Silberman, in that its proceeding is 'at a stage ... where it is normal not to engage a solicitor' was incorrect, because it was not 'normal not to engage a solicitor' in the County Court. They argued that the 'very existence of r 1.17' showed that it was 'abnormal for a corporation not to engage a solicitor'; and that Thunderbird's approach was perverse in so far as it was 'to require the County Court to inherit the Tribunal's rules'. It would be wrong, they said, 'to require the County Court to ignore its own Rules in favour of the Tribunal's rules' in such a case.
3. The respondents submitted that there was no error in the judge's statement that:

the fact that proceedings have been transferred to this court from VCAT - against a corporate party's wishes - [was] not, in itself, a sufficient, or even weighty, reason to grant leave for that corporation to be represented by its director.

1. The respondents maintained that there was no 'inherent unfairness' in the judge's decision and that Thunderbird 'has steadfastly refused to address whether it can afford a solicitor'. The respondents noted that Thunderbird had 'agreed to this matter being transferred to the County Court from the Tribunal'.
2. As to Thunderbird's proposed second ground, the respondents commenced by noting that Thunderbird's submissions before the judge focussed on Thurin and characterised Silberman as 'irrelevant'. They also noted that Thunderbird did not challenge all the judge's reasons for confirming the judicial registrar's decision: that is, Thunderbird did not challenge his Honour's statement that it had not 'provided any material suggesting that it lacks the resources to engage a solicitor; and that Mr Matysik specifically declined to rely on any such matter'. The respondents submitted that it was open to the judge to draw the conclusions he did about Thunderbird's claim and Mr Matysik's ability to conduct its proceeding efficiently without the assistance of a solicitor. It was also open to the judge, in the respondents' submission, to conclude that, without a solicitor, 'it was likely the case would be more costly for the defendants and require more court time'. The respondents submitted that Thunderbird failed to show that the judge took into account an irrelevant consideration or failed to consider a relevant consideration; or otherwise made an error of the kind referred to in House v The King.
3. As to proposed ground 3, the respondents submitted that the County Court is not required to apply VCAT's rules.[34] Regarding costs, the respondents submitted that, pursuant to s 78A of the County Court Act, 'the costs of and incidental to proceedings are in the discretion of the County Court'. The respondents went on to submit that the usual order as to costs is that costs follow the event, so that a successful party is entitled to an award of costs against the unsuccessful party. Since Thunderbird's application to review the decision of the judicial registrar was unsuccessful, they submitted that it was open to the judge to exercise the discretion as to costs in favour of the respondents.
4. Having regard to these submissions, the respondents submitted that Thunderbird's application for leave to appeal should be refused. They further submitted that Thunderbird's proposed grounds were 'totally without merit', referring to their submissions on Thunderbird's grounds, and noting that Thunderbird had not shown that it could not afford a lawyer or that its case would be disadvantaged by having a lawyer.

1. Thunderbird sought leave to be represented in the proceeding in this Court by Mr Matysik. The respondents did not contest this application and, for the purpose of determining Thunderbird's application for leave to appeal, the Court would grant such leave.
2. Thunderbird specifically stated that it did not seek an oral hearing of its application for leave to appeal.[35] In written submissions, the respondents agreed that the matter should be determined on the papers.[36] Subsequently, by emails on 1 and 2 September 2025, each of the parties confirmed that it wished to have the matter determined on the papers. Bearing this in mind, and to lessen costs and other burdens on the parties[37] and to conserve court resources, the Court has determined the matter on the papers.[38]
3. Under s 14C of the Supreme Court Act 1986 ('Supreme Court Act'), this Court can grant an application for leave to appeal 'only if it is satisfied' that the proposed appeal 'has a real prospect of success'.[39] The Court will not always grant leave even if it is so satisfied; rather, it may refuse leave in the exercise of what is sometimes called its residual discretion.[40] Section 14D of the Supreme Court Act is also relevant if the Court dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit. In that circumstance, 'the applicant has no right to apply to have the dismissal set aside or varied'.[41]
4. In the present case, Thunderbird seeks to challenge the judge's order confirming the order of the judicial registrar that that the proceeding be stayed unless and until Thunderbird appoints a solicitor. An order of this kind is interlocutory and concerns a matter of practice and procedure.[42] Since the judge's decision to confirm the judicial registrar's order involved an exercise of discretion, in order to show relevant error, Thunderbird must show that there was a material error in the exercise of that discretion of the kind recognised in House v The King.[43] For the reasons stated below, it has not done so.

1. By its proposed first ground, Thunderbird submitted that the judge erred by considering the wrong criteria when exercising the discretion in r 2.04 of the County Court Rules. In substance, in Thunderbird's submission, this was because Silberman was relevantly different from the present case, and that difference made the criteria in Silberman inapplicable.
2. The applicant in Silberman, World Wide Enterprises Pty Ltd ('World Wide Enterprises'), sought leave in the Supreme Court to appeal a decision of VCAT that it did not have jurisdiction over its claim for pecuniary losses. The respondents sought an order under r 1.17(1) of the Supreme Court (General Civil Procedure) Rules ('Supreme Court Rules') that the Supreme Court proceeding be stayed unless World Wide Enterprises retained a solicitor. In response, World Wide Enterprises applied for dispensation from the need to retain a solicitor under r 2.04 of those Rules. Both rr 1.17(1) and 2.04 are in very similar terms in the Supreme Court Rules and in the County Court Rules.
3. Plainly enough, the circumstances in which Thunderbird found itself in the County Court, having commenced its case in VCAT, were not identical to the circumstances in Silberman. For the following reasons, however, this does not mean that the judge considered the wrong criteria when he had regard to the criteria in Silberman.
4. The Court in Silberman accepted that the requirement that a company proceed by a solicitor was intended to promote the proper administration of justice.[44] As Weinberg JA stated:

... The Court must have regard to the difficulties posed when a lay individual endeavours to conduct a complex piece of litigation. Experience has shown that cases conducted by litigants in person, particularly those who happen to be of a querulous disposition as some such litigants are, can be very protracted. This means that valuable court time is wasted, at the expense of other prospective litigants who are denied timely resolution of their disputes. As well, significant costs are likely to be unnecessarily incurred.[45]

1. The Court accepted that, relatedly, there were a number of considerations relevant to the exercise of the discretion in r 2.04 of the Supreme Court Rules to dispense with the need for a solicitor. The considerations were as follows:

(a) The manner in which the case had progressed at the time that the application was made; > > (b) The manner in which the case could proceed in the future without a solicitor; > > (c) The complexity of the issues involved in the case; > > (d) Whether the lack of legal profession disciplinary measures in relation to the person seeking to represent the company would affect the administration of justice; > > (e) Whether the case could be conducted in an orderly and responsible fashion without a solicitor; > > (f) Whether there were financial considerations which would inhibit a company from obtaining legal representation; > > (g) The stage which the case had reached; > > (h) Whether the defendant was likely to expend more funds in defending the claim absent a solicitor acting for the company; and > > (i) What effect, if any, permitting a company to appear without a solicitor would have on court resources and, particularly, the effect upon other litigants in the Court list.[46]

2. These are considerations of general application. They reflect the nature of the potential risks to the proper administration of justice that might be realised if there were no provision such as r 1.17(1) in the Supreme Court Rules and, similarly in the County Court Rules, requiring the company to proceed by way of a solicitor, subject to the dispensation discretion in r 2.04 in both sets of Rules.
3. The fact that World Wide Enterprises and Thunderbird entered the different jurisdictions of the Supreme Court and the County Court is of little moment as the relevant rules are very similar in both jurisdictions. Further, the fact that each of them encountered a different jurisdictional issue preventing them from proceeding in VCAT has no bearing on the application of r 1.17(1) or on the exercise of discretion in r 2.04. This is because the focus of r 1.17(1) and any associated exercise of discretion to dispense with the requirement to retain a solicitor will always be on the proper administration of justice in the court in which the proceeding is to be run, whether in the County Court or the Supreme Court. As a consequence, the generally expressed considerations referred to in Silberman will be relevant in any case where a corporate litigant seeks a dispensation from the requirement in r 1.17(1), in exercise of the discretion in r 2.04, whether in the County Court or the Supreme Court.
4. This is not to say that these considerations will always be the only relevant considerations when such a dispensation is sought. Depending on the circumstances of the case, there may perhaps be some further matter falling for consideration, although there was none such in this case. Moreover, some of the considerations to which reference is made in Silberman may weigh more heavily than others in the exercise of discretion, also depending on the circumstances of the case.
5. The circumstance that led to the transfer of Thunderbird's case from VCAT to the County Court was relevant only in so far as it explained why the case had arrived in the County Court. Once in the County Court, however, the focus of the exercise of the discretion to dispense with the need to retain a solicitor was on the proper administration of justice in that Court, in relation to the proceeding in which the dispensation was sought and in relation to other proceedings in the Court. How the matter arrived in the Court does not bear on this inquiry, although associated matters, such as the manner in which the case has previously progressed, are relevant because they inform the assessment of what the administration of justice is likely to require.
6. Whilst the VCAT Act permitted Mr Matysik to represent Thunderbird in VCAT, that Act had no application to a proceeding in the County Court. Once Thunderbird's case was transferred to the County Court, the case was instead subject to the County Court Act and the County Court Rules. As the respondents submitted, in that Court, it was not open to the judge to allow the matter to proceed as if governed by the VCAT Act.
7. In the circumstances of the case, there was no 'inherent unfairness' in the judge's decision not to allow Thunderbird to proceed without a solicitor. Thunderbird did not submit that it could not pursue its case if required to retain a solicitor because it could not afford to do so. As his Honour specifically noted, 'Thunderbird has not provided any material suggesting that it lacks the resources to engage a solicitor; and Mr Matysik specifically declined to rely on any such matter'.[47]
8. For the foregoing reasons, Thunderbird's proposed first ground has no real prospect of success. Moreover, it has not shown any rational basis on which it might be concluded that the judge made an error of the kind suggested.

1. Under its proposed second ground, Thunderbird maintained that the judge erred in applying the factors identified in Silberman as relevant to the exercise of discretion to dispense with the requirement for a solicitor in r 1.17(1). For the reasons that follow, this proposed ground also has no real prospect of success.
2. No party contended that Thunderbird's case had progressed satisfactorily as at the date the judge heard Thunderbird's review application. Thunderbird had commenced the case in VCAT more than three years before. The judge specifically noted that Mr Matysik had not yet been able to articulate the basis of his claims in a way that could readily be understood by the defendants or the court.[48] There was a clear basis for his Honour's assessment, as reference to the amended points of claim dated 1 December 2022 ('December points of claim') makes clear. The 62 pages of the December points of claim fail to afford the reader any clear and coherent understanding of the legal and factual bases of Thunderbird's claim.
3. Thunderbird's submission that the proceeding in the County Court might proceed on the basis of the December points of claim indicated a significant misunderstanding on its part of the requirements for an adequate statement of its claims. It also indicated a failure to appreciate the difficulties the December points of claim presented for anyone seeking to understand the facts and the law on which Thunderbird relied to make out its case. Further, it is doubtful that a redrafting, as proposed by Thunderbird, would cure the problem. The fact that Thunderbird has already produced numerous versions of its claims that have failed to satisfy VCAT was (and remains) indicative of the difficulty Thunderbird has had in stating its case adequately.
4. Further, having regard to the December points of claim, it was also clearly open to the judge to conclude that Thunderbird's case involved 'considerable legal and factual complexity'; and that it would require witness and documentary evidence, and legal argument.[49] The judge's assessment in this regard is confirmed by Thunderbird's most recent statement of its case.[50] It was also clear enough from Mr Matysik's submissions before the judge, and in writing in this Court, that he has failed to appreciate that the task of placing evidence before the Court in order that the Court can find the relevant facts is not straightforward.
5. In these circumstances and in view of this history of Thunderbird's case, it was clearly open to the judge to conclude that Mr Matysik would have difficulty conducting Thunderbird's case in an orderly or efficient way; that if he were to conduct Thunderbird's case, then the case would take up more court time than if Thunderbird were represented by a solicitor; and that the case would be 'harder and more costly for the defendants to defend'.[51]
6. The last-mentioned matter did not signify, as Mr Matysik contended, that 'the judge had effectively confirmed' that '[i]f the Applicant's director presents the case, it will give the Applicant a greater chance of success than if it used a solicitor, as a result of it being harder to defend'.[52] Rather, his Honour was stating his conclusion that the burden on the defendants, including the costs burden, was likely to be more than they would encounter if the litigation were pursued in the orderly and efficient way that representation by a solicitor is designed to secure.
7. To submit, as Thunderbird did in this Court, that 'it is now only a matter of presenting the facts, establishing the events ... and then making submissions as to how those facts gave rise to causes of action' entitling Thunderbird to the relief it seeks' greatly underestimates what will be involved in conducting Thunderbird's case. Further, Mr Matysik's submissions that Thunderbird's case was ready to run is plainly mistaken; and, contrary to Mr Matsik's submission, dispensing with the requirement for a solicitor would be unlikely to assist bringing about a 'faster' - and at the same time just - resolution of Thunderbird's case.[53]
8. In the circumstances to which the judge referred, it was also relevant that Thunderbird did not provide any material indicating that it would be unable to afford to engage a solicitor and, indeed, declined to rely on a consideration of this kind.
9. In light of the forgoing, it simply cannot be said that the judge erred in his application of the criteria identified in Silberman. The proposed second ground has no real prospect of success. Further, Thunderbird has shown no rational basis to support the contention that the judge made an error of the kind proposed.

1. Essentially for reasons already stated, there is no substance at all in Thunderbird's proposed third ground.
2. As already stated, when Thunderbird's case was transferred to the County Court, the case became subject to the County Court Act. Pursuant to s 78A(1) of that Act, the costs of and incidental to all proceedings in the Court are 'in the discretion of the Court'.[54] In the exercise of this discretion, a judge is, of course, subject to the general law. As McHugh J explained in Oshlack v Richmond River Council, in courts, the 'usual order as to costs' is that a successful party is entitled to an award of costs in its favour and the unsuccessful party bears the costs of the successful litigant.[55]
3. Given that Thunderbird's application to review the decision of the judicial registrar was unsuccessful, it was open to the judge, in the exercise of his discretion, to make the usual order as to costs in favour of the respondents and against Thunderbird.
4. Proposed ground 3 has no real prospects of success. There is simply no rational basis on which it might be concluded that the judge made an error of the kind suggested.

1. For the reasons stated above, Thunderbird's application for leave to appeal must be refused, since none of its proposed grounds has any real prospects of success. Moreover, for the reasons indicated, the application for leave to appeal is 'totally without merit' within the meaning of s 14D(3) of the Supreme Court Act.
2. In written submissions, the respondents submitted the application for leave to appeal should be refused, with costs.[5] Costs would ordinarily follow the event upon the refusal of an application for leave to appeal. Nonetheless, we would give Thunderbird the opportunity to make written submissions (not exceeding 2 pages) about costs, including why they should not follow the event in this case.

[1] Asymmetric Digital Subscriber Line, a type of internet connection that supplies data using copper telephone wires.

[2] Also known as NBN Co Limited or 'nbn'.

[3] NBN Co is a public company, which is wholly-owned by the Commonwealth of Australia.

[4] See Australian Consumer Law and Fair Trading Act 2012, ss 182, 183 and 185.

[5] (2022) 73 VR 403; [2022] VSCA 226 ('Thurin').

[6] Thurin, 413 [42] (McLeish, Niall and Walker JJA), citing s 77(iii) of the Constitution.

[7] Thurin, 413 [44] (citations omitted).

[9] Constitution, s 76(ii).

[10] Thurin (2022) 73 VR 403; [2022] VSCA 226, 415 [55] (citations omitted).

[13] VCAT Act, s 62(3) provides that a party that is a body corporate may be represented in a proceeding by a director, secretary or other officer.

[14] Amongst other things, the County Court Act 1958 provides for the jurisdiction and powers of the Court, and for rules to be made to govern the conduct of civil proceedings: see s 78(1)(aab).

[15] Pursuant to r 84.03(6)(a) of the County Court Rules, the review of a decision of judicial registrar is conducted by way of hearing de novo.

[16] His Honour also ordered that Thunderbird pay the respondents' costs of and incidental to the review hearing on a standard basis.

[17] (2010) 26 VR 595; [2010] VSCA 17.

[18] Ruling, [6]. See also, in this regard, Ruling, [7] and [8(e)].

[27] Citing Gold Developments Pty Ltd v Sandgate Service Company Pty Ltd [2023] VSC 342, [11] (emphasis omitted).

[28] Emphasis omitted. See Civil Procedure Act 2010, ss 7 and 8. In this context, Thunderbird also relied on Thurin [2022] VSCA 226; (2022) 73 VR 403, 407 [14], 411-2 [32]-[36]; [2022] VSCA 226. This case concerned the application of time limitations, in connection with the transfer of a matter owing to the presence of a federal claim. Different considerations arise in this context, however.

[29] Thunderbird's submissions used this form of referencing to refer to the various matters that Weinberg JA identified as considerations relevant to the exercise of the discretion to dispense with the requirement for a solicitor in Silberman: see [50] below.

[33] Citing the VCAT and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021, Part 2.

[34] The respondents submitted that Thunderbird's approach was perverse in so far as it was 'to require the County Court to inherit the Tribunal's rules': see paragraph [37] above.

[35] Application for leave to appeal, [4].

[36] Written case in response for the first respondent, [6]; Written case in response for the second respondent, [40].

[37] Civil Procedure Act 2010, s 47. See, eg, Milfoil Pty Ltd v Commonwealth Bank of Australia Ltd [2020] VSCA 223, [3]

[38] See Supreme Court Act 1986, s 14D(1) ('Supreme Court Act').

[39] Supreme Court Act, s 14C.

[40] See, eg, Kajula Pty Ltd v Downer EDI Limited [2024] VSCA 236; (2024) 76 VR 75, 99 [83] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236 ('Kajula'); Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA).

[41] Supreme Court Act, s 14D(3).

[42] See Silberman [2010] VSCA 17; (2010) 26 VR 595, 598 [15]-[17] (Weinberg JA, Bongiorno JA agreeing at 607 [74]); [2010] VSCA 17. Even supposing error, for the court to grant leave to appeal in such a case, the applicant will ordinarily be required to show that it will suffer substantial injustice should the judge's decision be allowed to stand: see, for example, Kajula [2024] VSCA 236; (2024) 76 VR 75, 99 [83]-[84] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236.

[43] See House v The King (1936) 55 CLR 499, 504-5; [1936] HCA 40.

[44] Silberman [2010] VSCA 17; (2010) 26 VR 595, 601-2 [35] (Weinberg JA); [2010] VSCA 17.

[45] Silberman [2010] VSCA 17; (2010) 26 VR 595, 601-2 [35] (Weinberg JA), see also 607 [76] (Bongiorno JA); [2010] VSCA 17.

[46] Silberman [2010] VSCA 17; (2010) 26 VR 595, 602 [41] (Weinberg JA); [2010] VSCA 17.

[50] See [7] above.

[51] See [25] above.

[52] See [34] above.

[53] Whether Thunderbird might have taken a different path had it had different information, as it asserted, is unknown and, in any event, irrelevant to the present inquiry.

[54] County Court Act 1958, s 78A(1).

[55] [1998] HCA 11; (1998) 193 CLR 72, 97 [67] (McHugh J); [1998] HCA 11.