1. In 2023, the respondent/third defendant ('Fenton') carried out works comprising the installation of a below ground sewer system and below ground storm water drainage as a component of the construction of four townhouses at a property owned by the applicant.
2. The plumbing work was subsequently covered with a concrete slab upon which further residential building works were constructed.
3. The applicant alleges that the plumbing work was performed negligently and claims damages for the rectification works and consequential loss.
4. In the first instance, the proceeding was instituted against the builder responsible for the building works as a whole together with a principal of that company. The builder joined Fenton as a third party and upon the claim against the builder being stayed due to insolvency, the applicant joined Fenton as a defendant.
5. The claim is potentially substantial. By a joint experts' report dated 21 August 2023, it was agreed that the plumbing works were defective and that the only practical rectification method was to demolish the buildings, rectify the plumbing and rebuild the buildings.
6. The claim is disputed, and as we understand it, the defence raises issues as to the causation of loss, proportionate liability, cost of rectification works, the right to claim damages for consequential loss, and the quantum of any such damages which are recoverable.
7. The aspect of the proceedings which has led to the application before this Court is a collateral dispute between the applicant and Fenton's insurer.
8. At the time of the performance of the works, Fenton held a policy of insurance issued by Chubb in accordance with the Licensed Plumbers General Insurance Order 2002.[1] That order is made pursuant to s 221ZQ of the Building Act 1993.
9. The applicant alleges that in or about June or July 2023, having instituted proceedings against the builder, she requested Fenton (which was not a party to the proceeding) to make a claim on its insurer in respect of the defective work.
10. The applicant alleges further that at that time Fenton refused to make a claim on the ground that it had no liability to the applicant. Section 221ZQ of the Building Act 1993 envisages in part that:

(5) For the purposes of this Part, a person is covered by the required insurance if -

...

(c) the person is not a party to the required insurance but is specified or referred to in the insurance, whether by name or otherwise as a person to whom the insurance cover extends.

1. In turn, cl 9 of sch 2 of the Ministerial Order provides:

9. Claimant may enforce policy direction in certain cases

We and you both agree -

(a) that a person who is entitled to claim against you in respect of any liability for which you are indemnified under this policy may enforce this policy directly against us for the person's own benefit if -

...

(ii) you refuse to make a claim against us; ...

(b) that for the purpose of that enforcement the person has the same rights and entitlements as you would have had under any legislation applicable to you; and

(c) that we will pay the person the full amount of any liability for which you are indemnified under this policy despite any failure by you to pay any excess that you are required to pay.

1. In reliance upon these provisions, the applicant then made a 'direct' claim against Chubb seeking to be indemnified under Fenton's policy. She maintains that she was entitled to make such a claim independently of her claim against Fenton. Fenton accepts that the applicant honestly believes that she has a right to bring this direct claim against Chubb under the Ministerial Order, which she considers is another 'pathway' to success in her claim against Fenton.
2. On 9 October 2023, the applicant's claim was denied by Chubb without reasons for its decision. The applicant alleges that Chubb further advised the applicant that she had a right to make a complaint to the Australian Financial Competition Authority ('the Authority') with respect to its decision.
3. The applicant made an application to the Authority but Chubb disputed that the Authority had jurisdiction to review its decision to deny liability and the Authority agreed. At this point in time, the applicant formed the view that Chubb was wilfully and wrongfully obstructing her direct claim against it.
4. Since that time, the applicant has sought to agitate her direct claim in correspondence with Chubb and its representatives whilst simultaneously prosecuting the claim against Fenton. Wooton + Kearney are the solicitors on record for Fenton. Mr Stuart Moore is the solicitor handling the matter. Relevantly, the applicant formed the view that Mr Moore has improperly refused to acknowledge her direct claim against Chubb with the result that he was not willing to engage in settlement discussions with her.

1. The allegation that the applicant has breached the overarching obligation in s 19 of the CPA is founded on 29 items of correspondence sent by the applicant between 5 September 2024 and 17 October 2024. The items were variously sent to the solicitor for Fenton, employees of Chubb, and the solicitor for Chubb. These are itemised in Appendix A together with further communications between 24 October 2024 and 11 November 2024.
2. The essential course of events was as follows:
   • on 5 September 2024, the applicant emailed Mr Moore accusing him of misleading the court and questioning if he was 'stepping in Fenton's shoes'. The applicant stated 'failing a response I am reporting you to the LSC [Legal Services Commission]';
   • on 24 September 2024, the applicant emailed Mr Moore, other representatives of Wotton + Kearney Solicitors and Mr Michael Babington (Head of Claims, Australia & New Zealand, Chubb) asserting her right to make a direct claim;
   • on 25 September 2024, the applicant emailed the CEO of Chubb in the USA;
   • at about this time, the applicant had a telephone conversation with and initiated by Ms Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America);
   • sometime before 1 October 2024, the applicant had telephone discussions with and initiated by Mr Scott Jordan (Team Leader Casualty Claims, Chubb);
   • on 1 October 2024, the applicant sent a follow up email of a telephone conversation to Mr Jordan and copied in Mr Babington;
   • Chubb retained Mr Richard Johnson of McCabes Solicitors to act on behalf of Chubb;
   • on 9 October 2024, Mr Johnson emailed the applicant with respect to her direct claim;
   • the applicant responded with emails to Mr Johnson and employees of Chubb;
   • on 11 October 2024, Mr Johnson emailed the applicant again;
   • the applicant responded to Mr Johnson and continued to email Mr Babington;
   • on 12 October 2024, the applicant emailed Ms Teague;
   • on the same day the applicant forwarded a further six emails to Ms Teague;
   • on 14 October 2024, the applicant again emailed Mr Johnson, copying that email to Mr Babington and Mr Jordan;
   • on the same day Mr Johnson emailed the applicant;
   • the applicant responded to that email from Mr Johnson and forwarded that email and other correspondence to Mr Johnson to Ms Teague;
   • on 15 October 2024, the applicant emailed Mr Johnson, Mr Jordan and Mr Babington;
   • on 16 October 2024, the applicant sent an email to Ms Teague outlining her grievances with Chubb and urging her to respond;
   • on 16 October 2024, the applicant sent an estimate of costs of building rectification to Mr Moore, Mr Jordan and Mr Babington;
   • on 17 October 2024, Mr Johnson again emailed the applicant;
   • later that day the applicant telephoned Mr Babington.
3. It is necessary to elaborate the most significant elements of that correspondence.
4. On 25 September 2024, the applicant sought to escalate her direct claim against Chubb and wrote directly to the CEO of Chubb in the United States of America attaching an email she had sent to Mr Moore. The contents of that email are indicative of the thrust of the relevant correspondence of the applicant which formed the basis of the breach of the overarching obligation in s 19 of the CPA. In the attached email to Mr Moore, the applicant detailed why she asserted a valid claim against Chubb and was entitled to consequential damages. She also raised complaints regarding delays she had experienced. Among other things, she stated:

You have been incredibly deceitful in depriving me of my legal entitlements Mr Moore and made this extremely personal against me, which has greatly upset and distressed me no end ... I don't know how my situation with Chubb's refusal to pay my claim out in full would sit well with any honest person. All I can say is , I have said in the past, there is a whole lot of bad karma coming back to anyone associated with refusing my valid claim . It defies reasonable comprehension.

This situation has got out of hand now. This exercise has just been nothing but a complete money making exercise for the solicitors Wotton Kearney [sic], 'to milk' the insurance company for money, keeps solicitors employed and drag out endlessly my valid claim.

If not settled I will be seeking to join Chubb to the proceeding. If this proceeding goes to trial and judgement made against Chubb which will happen as the defects are well-established, Chubb will be exposing themselves to million in fines from ASIC for failure to act in the utmost good faith and failure to pay my valid claim.

1. The email also accused Chubb of having failed to act in the 'upmost [sic] good faith' and of having acted dishonestly.
2. Despite these accusations the email concluded:

Since writing the above I have had Mr Michael Babington of Chubb, have Scott Jordan of Chubb claims contact me this afternoon. I was very grateful that Scott was incredibly calm and pleasant and we walked through the sections of the Ministerial Order. Scott is reassessing Chubb's position and I asked he revert to me as soon as possible.

1. At about this time, Ms Teague, a senior officer of Chubb in the USA, had telephoned the applicant and discussed the applicant's grievances with her. In turn, Mr Jordan, a local claims officer employed by Chubb, had also contacted the applicant and had direct discussions with her concerning her claim.
2. On 1 October 2024, Ms O'Connell emailed Mr Jordan, copying Mr Babbington. The email stated:

Thank you for your time on the phone yesterday afternoon. It's emotionally draining and exhausting this backwards and forwards .I want this settled as much as you do because the cost of building is rising daily with the mess the Victorian building industry is in. Soon we won't have a building industry in Victoria if this keeps up. I am asking you to be fair, honest and reasonable after everything Chubb have put me through .This saga should have and could have ended some 17months ago when I lodged a direct claim to Chubb which I was entitled to do under the Ministerial Order. NO valid reason was ever given by Paul Hardy for rejecting my claim re Mary ST within the 90 days so it was accepted by default. This is LAW.

Chubb have now accepted the claim and indemnified Fenton however :

I do not have to prove my case Scott, contrary to what you say, as the defects and non compliant pre slab plumbing is well established by more than 10 parties at Mary ST . The VBA has prosecuted .All that is outstanding that you want to justify to your share holders (you say) is the difference in build price, which is a major consequential loss I am entitled to be paid under the Ministerial Order and Judge Burchell already made mention of this, so all parties were acutely aware.

As I said yesterday the builder did lay the concrete slab at the finished level but if I had to make a decision on whether or not I pulled up the slab simply because of this re hydronic heating coils, I would have not done so and just put hydronic heating panels on the walls. The brick walls were determined to be within VBA tolerances .The builder is not to blame for the underground pre slab defective plumbing as this is the sole responsibility of the plumber, and that is why the Ministerial Order is in existence.

I did not ask for this to happen to me Scott and Chubb could have settled my claim honourably close to 17 months ago, so now Chubb have to accept responsibility for the increase in building prices NOT me. I have tried relentlessly to settle this matter . Stuart Moore has been incredibly deceitful and its shameful as your legal team Stuart Moore does not know the Ministerial Order and I keep harping on this. My rent and storage costs, Stuart Moore already has those receipts and the leases . If this is not settled and dragged out another year, it will cost in legal fees and increase in build costs and my consequential damages what you are now arguing about and I will still win . This is pure insanity .

Chubb just can't refuse a claim on no valid grounds which they did , 17 months ago and when they had the chance to settle it and now that building prices have tripled and quadrupled , Chubb think they don't have to pay the price of their past mistake in not paying the valid claim when they had the chance to do so. How is that fair to me ? None of this is my fault , I just want to get my building built and get on with my life.

You have to get your own builder quote and for him to go on Affidavit that he will proceed to contract and do the build. The build can then be Chubb's responsibility not mine. Less headache for me . All I am saying is I have a building quote on which the builder Image has committed to proceed to contract to build and you have to do the same .When you explain the history to this site and the builder of your choice does a site visit, you will have as much difficulty as I have had in securing a builder. No one wants this job now with the bad history of defects and difficult rectification .The neighbour are going to be a nightmare to deal with as its a boundary to boundary build that has to be demolished .Protection works alone for these properties either side will be huge .I thought last night that the PBS will require dilapidation reports now which the builder will have to do to cover himself for damage to the boundary properties .These are all things Image has not included and quoted which will no doubt be covered under contingency .

Qs figures are not indicative of what is reflected in the market place and what it will cost to build .You simply can't take such a simplistic approach in today's environment . Ken Ryan made this very clear to the Court in his reports and the conclaves and he tore apart the QS reports .No builder will proceed to do a build on a QS quoted price in the current market in Windsor Victoria 3181, which is an upmarket suburb . We are not talking about a build in Werribee, in the Western suburbs. Look at the extra costs on top of what the build price is . 35% builder margin as this is a rectification job and Ken Ryan my building inspector told me some builders charge upwards of 40% on rectifications, that he has seen. There is also the contingency percentage as I wanted a fixed price build and GST is massive .Image did not include any traffic management which will be a huge cost Ken Ryan alerted to and I didn't bring that up with Image as missing . I do not want a building contract that obtains escalation clauses. I want a fixed price contract and I made that clear to Image .There is an error in the SOC as Croft Legal forgot the GST component on the defects with the 2nd August increase . Moray Agnew ,VMIA settlement letter acknowledged this did not stop me going after the plumbers as my rectification and rebuild was massive, and I would be severely out of pocket .

I spoke to the builder at Image this morning and said Chubb are quering [sic] his build price. He said this has been going on for 2 years now and parties were constantly updated re the builder price which builders usually only hold for 2 -3 months tops . There have been at least 4 updates . Chubb had the ability to settle this claim last June 2023 and chose not to instead engaging in very deceptive conduct. I am not responsible for the increase in build costs and I keep saying that. Chubb MUST accept responsibilty [sic] for their behaviour !

Phil said this is not a standard build at Mary St. It's messy and he asked has your QS looked at the highlighted specifications . Has your QS looked at the engineering plans?Stuart Moore has these .

Eg my bricks are recycled bricks outside and interior which are now upwards of $2.50 a brick and they are not the standard 80c-$1 brick and I have the polished concrete through out which is super expensive and hydronic heating

Please separate rent and accomodation [sic] and legals(which I have all receipts for) and give me your best offer as this has to end Scott .

We arranged to reconvene in 48 hours .

Please just let me know . I have an appointment on Thursday in Qld so please make an appointment for Friday which will give you an extra day . I asked Image to be patient with me .I will sign a confidentiality clause and we can all move on

1. After this email, Chubb retained McCabes Solicitors to represent its interests separately from the interests of Fenton. Thereafter, Mr Johnson of McCabes corresponded with the applicant on behalf of Chubb in respect of the direct claim.
2. In correspondence, Mr Johnson sought to explicate difficulties with the direct claim and dissuade the applicant from pursuing it whilst also conveying an offer to settle the applicant's claim.
3. Thus, on 9 October 2024, Mr Johnson wrote to the applicant in the following terms (omitting formal parts):

Our client: Chubb Insurance Australia Limited

Chubb Claim No.: 5330143611

Insured: JD Fenton Plumbing & Drainage Pty Ltd

Your claim relating to 14 Mary Street, Windsor, Victoria

Introduction

1. We have been instructed to act on behalf of Chubb Insurance Australia Limited (Chubb) in relation to your claim against JD Fenton Plumbing & Drainage Pty Ltd (JDF) with respect to alleged defective plumbing works at your property at 14 Mary Street, Windsor, Victoria (Property), and the alleged loss and damage flowing from those works (Claim).
2. As you are aware, Chubb is the insurer of JDF pursuant to a public liability and plumbers' warranty insurance policy (Policy). Jarrod Fenton, the director of JDF and a licensed plumber, is also insured under the Policy.
3. Wotton + Kearney (W+K) has been instructed by Chubb to defend JDF in County Court of Victoria proceeding number CI-22-03763 (Proceeding).
4. We are instructed because you have made a number of attempts to contact Chubb to discuss the Claim, seemingly on the assumption that there is some direct entitlement under the Policy with respect to the Claim and the Proceeding.

Your entitlements under the Policy

1. The Policy is a third party liability policy and includes provisions that comply with the Licensed Plumbers General Order 2002 (Vic) (Ministerial Order).
2. The Ministerial Order does not confer any automatic rights on a building owner to bring a claim directly against an insurer who issues an insurance policy to a plumber in compliance with the Ministerial Order, although clause 9 of Schedule 2 of the Ministerial Order (which is incorporated into the Policy) provides a building owner (or claimant) with some, limited, rights to bring a claim against an insurer.
3. The purpose of this clause is to protect consumers in circumstances where the plumber insured under the policy is not in a position to respond to the claim, refused to make a claim under the policy, or a communication issue has arisen between the plumber and the insurer. None of these circumstances apply.
4. The clause does not change the nature of the policy from being a third party liability policy; that is, the Ministerial Order does not make a building owner an insured under the policy, and it does not create some additional rights that would otherwise not exist. The insurer is still entitled to rely upon the provisions and terms of the policy as required by the Ministerial Order in responding to the claim, both from a liability and policy response perspective.
5. Despite your misconceived views about the operation of the Ministerial Order and the Policy, JDF and Chubb are entitled to defend the Claim and the Proceeding. Significant disputes remain in the Proceeding, including:

(a) the extent that JDF caused or contributed to the loss and damage alleged on a proportionate basis;

(b) the extent that the builder, Lentelle Pty Ltd, caused or contributed to the loss and damage alleged on a proportionate basis (this still needs to be determined regardless of any payment you received from the Victorian Managed Insurance Authority); and

(c) the correct amount of your total claim.

1. Further, the Proceeding is on foot against JDF. None of the provisions of clause 9 of Schedule 2 have been met with respect to JDF, and JDF is cooperating with W+K and Chubb.
2. Accordingly:

(a) you are not an insured for the purposes of the Policy, nor are you a third party beneficiary within the meaning of section 48 of the Insurance Contracts Act 1984 (Cth); and

(b) you are not entitled to make a direct claim against Chubb under the Policy.

1. In addition, we note you continue to assert that Chubb has been deemed to have accepted liability for your claim in accordance with clause 4 of Schedule 2 of the Ministerial Order, which is incorporated into the Policy. That position is misconceived for the following reasons:

(a) You have never had, and continue not to have, an entitlement to make a direct claim against Chubb for the reasons outlined above.

(b) Even if you were entitled to make a claim, your purported claim lodged on 13 July 2023 was disputed by Chubb in writing on 9 October 2023. Further, there is nothing in clause 4 of Schedule 2 that requires a reason to be provided as to why the claim is disputed despite your continued assertions to the contrary.

(c) Even if the claim was accepted, or deemed accepted, Chubb is only required to pay any amounts for which JDF is liable, subject to the limits under the Policy and Ministerial Order. It does not mean Chubb is required to pay for all losses you claim. Instead, it requires an assessment of the matters set out at paragraph 9 above to determine the extent of JDF's (and Chubb's) liability. This has not occurred, and is highly likely to be a small fraction of the amount you claim.

Effect of Ministerial Order

1. As noted above, the Ministerial Order does not confer some additional rights on building owners, unless there is an issue impacting the insured plumber's ability to participate in a claim. That has not occurred in this case.
2. Accordingly, there is no separate basis under the Ministerial Order upon which you can rely to being a claim against Chubb directly, or to join Chubb as a defendant to the Proceeding.
3. In light of that, we are instructed that if an application is made in the Proceeding seeking to join Chubb as a party, we will be instructed to appear and strenuously oppose such application on the basis that it is frivolous, misconceived and an abuse of process. We will also be instructed to seek the costs of such application against you on an indemnity basis, and this letter will be produced to the Court on the question of those costs.

Previous and continuing communication with Chubb

1. We note that you have made numerous attempts to engage Chubb directly in relation to the Claim, and have made various assertions regarding the conduct of some Chubb staff and the actions taken by W+K in the defence of the Proceeding and the Claim on behalf of JDF (acting on Chubb's instructions).
2. Those communications are frivolous, vexatious, misconceived and lacking in any substance. In some cases, they are likely defamatory, and they border on harassment.
3. In light of the above we request that you cease and desist from attempting to make direct contact with any Chubb employee globally in relation to the Claim or the Proceeding. If you believe there is a need to engage with Chubb staff directly for any other reason or by some other mode of communication, please contact me via email explaining the reason why you believe it is necessary, and I will seek instructions from Scott Jordan and his managers and revert to you within one business day.

[balance of letter redacted]

1. The balance of the letter is redacted on the basis that it refers to a without prejudice offer from Chubb. We have not had regard to the terms of the settlement offer in these reasons. Nonetheless, the fact that the previous communications resulted in a settlement offer is, in our view, relevant to whether there was any contravention of s 19. In our view, not to have reference to these facts in light of the evidence relied upon by Fenton in this kind of application would result in a misleading of the court as to the true context in which the correspondence was written.[2]
2. The applicant then corresponded with both Mr Johnson and Chubb directly asserting her right to make the direct claim and expressing her disappointment in relation to the without prejudice offer. It is apparent that a major difference between the position of the applicant and that of Chubb related to the fact that the applicant's building inspector Mr Ken Ryan, considered that the necessary rectification works required the demolition of all works undertaken including the slab by reason of the defective plumbing work and that Chubb's offer did not include the cost of all such rectification works. The applicant's email to Chubb dated 9 October 2024 attached an email from Mr Ryan which set out his opinion about the necessary rectification works. The apparent purpose of this email was not only to better inform Chubb of the applicant's claim but also to obtain a better settlement offer.
3. The tone of this correspondence from the applicant was at times strident, combative, pejorative and abusive. This included an assertion that Chubb was offering 'junk' insurance which assertion was made on the basis that such insurance did not comply with the Ministerial Order. Despite attacking the position adopted by Chubb and its solicitors, however, the applicant continued to try to settle her claim directly with Chubb employees. As she stated in her email of 9 October 2024 addressed to Mr Johnson with Mr Babington and Mr Jordan copied in:

I am sending a copy of your letter to the CEO of Chubb in America and consider this a threat . If you were put up to this by Scott Jordan I am bitterly disappointed in Scott as I was genuinely trying to settle this claim with him and I will win. All Chubb are doing is delaying the inevitable and each day delay is costing Chubb money ...

1. On 11 October 2024, Mr Johnson wrote to the applicant in the following terms (omitting formal parts):

Our client: Chubb Insurance Australia Limited

Chubb Claim No.: 5330143611

Insured: JD Fenton Plumbing & Drainage Pty Ltd

Your claim relating to 14 Mary Street, Windsor, Victoria

Introduction

1. We refer to the above matter and:

(a) our letter of 9 October 2024 sent by email at 4:13pm;

(b) your email of 9 October 2024 at 6:57pm;

(c) your email of 9 October 2024 at 5:57pm to Stuart Moore of Wotton + Kearney (W+K), to which we were copied; and

(d) your emails of 9 October 2024 at 5:09pm, 5:18pm, 7:13pm and 9:57pm to Scott Jordan of Chubb (copied to Michael Babington).

1. Capitalised terms used below have the same meaning as in our letter of 9 October 2024.

Your entitlements under the Ministerial Order and the Policy

1. We strongly disagree with the assertions you make regarding the operation of the Ministerial Order and the Policy. Your position is misconceived and the advice that you continue to refer to is incorrect, or has been misinterpreted or misunderstood.
2. As noted yesterday, you are not an insured under the Policy, nor are you a third party beneficiary for the purposes of section 48 of the Insurance Contracts Act 1984 (Cth).
3. The advice you have received from the Victorian Building Authority and the officer of the Minister for Planning has been misinterpreted. No one is disputing that there is an entitlement under clause 9 of Schedule 2 of the Ministerial Order and the Policy to make a direct claim. However, it can only occur in certain circumstances. Those circumstances have not been met in relation to the Claim or the Proceeding.
4. Clause 9 of Schedule 2 protects consumers in circumstances where the plumber insured under the policy is not in a position to respond to the claim, refused to make a claim under the policy, or a communication issue has arisen between the plumber and the insurer. None of these circumstances apply, despite your assertions.
5. That clause does not change the nature of the Policy. The Policy, which incorporates the provisions of the Ministerial Order required and permitted exclusions, provides cover to JDF for its liability to you in respect of the Claim. It does not provide coverage beyond that. You are not entitled to recover losses beyond the amount for which JDF is liable.
6. The only way this can be determined is by assessing:

(a) the extent that JDF caused or contributed to the loss and damage to the Property on a proportionate basis;

(b) the extent that the builder, Lentelle Pty Ltd, caused or contributed to the loss and damage to the Property on a proportionate basis (which still needs to be determined regardless of the payment you received from the Victorian Managed Insurance Authority); and

(c) the correct amount of your total claim.

1. Further, we maintain you are not entitled to bring a claim against Chubb direct, because:

(a) You have not produced any evidence that JDF failed to make an insurance claim. The fact that JDF was represented by its private lawyer at the directions hearing on 16 October 2023 is of no relevance.

(b) Even if you were entitled, the claim was validly disputed by Chubb by way of the email from Paul Hardy on 9 October 2023. Despite your continued assertions, there is nothing in the Ministerial Order or the Policy that required Chubb to provide reasons for disputing the claim. In any event, the reasons set out above explain the basis for the dispute.

(c) You elected to sue JDF despite your assertion that you are entitled to make a claim against Chubb. You are aware Chubb is indemnifying JDF in accordance with the terms of the Policy. A claim against Chubb does not provide any greater entitlement to damages under the Policy or the Ministerial Order than your existing claim against JDF.

1. Finally, we must point out that none of the prohibited provisions in clause 22 of the Ministerial Order are incorporated into the Policy, as you suggest. Even if they were, clause 22 does not override the limits permitted by clause 18 of the Ministerial Order.
2. Accordingly, if, as you have threatened, you apply to join Chubb to the Proceeding, that application will be strenuously opposed on the basis that you do not have a valid cause of action, it is vexatious, and it is an abuse of process. The costs of opposing the application will be sought against you on an indemnity basis, and this correspondence will be produced to the Court on the question of costs.
3. Should an application be made, we are instructed to accept service of the proposed application on behalf of Chubb by email to my email address.

AFCA complaint

1. In your emails you note you have raised your complaint to the Australian Financial Complaints Authority (AFCA) following Chubb's internal dispute resolution process which reviewed the decision to dispute your claim. AFCA confirmed that it did not have jurisdiction to address your complaint because you were not the insured under the Policy.
2. You assert that Chubb directed you to make the complaint to AFCA. This is simply untrue.
3. Chubb, as an AFCA member, was legally obligated to advise you of your "right" to make a complaint to AFCA following the internal dispute resolution process and outcome. It is a legal requirement that when Chubb provides its final internal dispute resolution response that it advises you may lodge a complaint with AFCA.
4. You made the choice to lodge a complaint with AFCA. Regardless, the Proceeding continued, and does not appear to have been delayed by the AFCA process.
5. Your assertions regarding the AFCA complaint are misconceived and without merit.

"Junk" insurance

1. Finally, you have also variously referred to the Policy as "junk" insurance. This, again, is misconceived.
2. Your assertions appear to operate under the continued misconception that the Policy provides cover to you as if you were the insured, and the Policy provides first party property insurance cover. That is, simply, not the case.
3. As we have repeated above, the Ministerial Order only provides coverage for the loss and damage suffered by you as a result of JDF's liability and as is permitted to be limited under the Policy. Any entitlement to make a direct claim on Chubb (which is disputed) does not increase the amount you are entitled to be compensated for.
4. This does not mean the Policy is "junk". The Policy provides the coverage it is required to provide in accordance with the Ministerial Order.

Further contact with Chubb

1. It is clear from your various emails of 9 October 2024 that you have ignored our request that you cease contact with Chubb. The sole purpose of those emails was to harass, threaten and attempt to bully Chubb staff, because Chubb and its lawyers do not agree with your position.
2. Any contact with Chubb must now cease. Any further correspondence sent to any Chubb representative globally will not be responded to.
3. All further communication intended for Chubb must be to me in writing. Upon receipt I will seek instructions from Chubb and, as previously indicated, revert to you with a response within one business day.
4. Otherwise, any queries regarding the Proceeding should be directed to Stuart Moore at W+K.

1. The applicant did not accept Chubb's position and continued in correspondence to aggressively assert her right to bring a claim against Chubb, ultimately foreshadowing an application to join Chubb to the proceeding. On 11 October 2024, she emailed Mr Babbington. On 12 October 2024, she sent seven emails to Ms Teague and two further emails to Mr Babbington. In an email to Ms Teague dated 12 October 2024, the applicant wrote that Chubb's conduct was 'bullying' and that this 'matter has gotten out of hand'. She requested Ms Teague make 'urgent' contact with her. She stated at one point 'I am unsure what you said or did last time when we spoke but your actions ... had a VERY positive effect'.
2. On 14 October 2024, the applicant sent emails to Mr Johnson (and copied Mr Babbington and Mr Jordan) noting that she had spoken to her builder and 'his price is his price' (relating to the quote for rectification works), and suggesting that Chubb send out their person to provide a quote. In her emails she also stated:

I want my claim paid in full and if not advised by 5pm tonight ,I intend to write to Mr Greenberg CEO and advise hm [sic] of the fraudulent conduct of Chubb's employees in Australia.

I request an urgent response and I am NOT going to report you to the LSC if you stop the threats and bullying to me Mr Johnson and engage in meaningful negotiation. You are way out of line and your advice was grossly incorrect .Bullying me and punching out wasted threats and making outrageous allegations will get you nowhere.

1. On 14 October 2024, Mr Johnson wrote further to the applicant in the following terms (omitting formal parts):

Our client: Chubb Insurance Australia Limited

Chubb Claim No.: 5330143611

Insured: JD Fenton Plumbing & Drainage Pty Ltd

Your claim relating to 14 Mary Street, Windsor, Victoria

Introduction

1. We refer to the above matter and your emails of 12 October 2024 at 12.13am and 11.10am, and your email this morning at 9.58am.
2. Save for the matters raised below, we do not propose to respond to your emails in detail.
3. This should not be considered or treated as an acceptance or agreement to any of the matters raised in your emails that are not addressed. Rather, those matters are not addressed because:

(a) your comments are without foundation or merit, and are misconceived;

(b) you continue to make assertions based on misunderstandings, misinterpretations or (potentially deliberate) mischaracterisation of orders made by the County Court of Victoria and correspondence from other parties;

(c) you make assertions about the conduct of Chubb in respect of other claims, without providing any evidence to support them; and

(d) as a consequence, there is no point in continuing to engage with you on those topics.

1. Again, capitalised terms below have the same meaning as in our letter of 9 October 2024.

"Junk" insurance

1. The Policy is not "junk" insurance. The fact that Chubb is not prepared to pay the full amount of the loss and damage you, mistakenly, believe you are entitled to claim has no relationship with the liability the Policy covers.
2. Again, your assertions operate under the continued misconception that the Policy provides cover to you as if you were the insured under a first party property policy, which is, simply, not the case.
3. The Policy provides the cover required by the Ministerial Order. That is, it provides cover for JDF's liability for your loss and damage as may be agreed between you, JDF and Chubb, or as assessed by the Court. It does not provide any additional cover.
4. The fact that there is clearly cover available under the Policy that complies with the Ministerial Order means that the Policy cannot in any way be described as "junk" insurance.

Status of the Proceeding

1. As a consequence of forensic decisions you have taken throughout the course of the Proceeding, a direct claim against JDF has only recently been made by you. In fact, JDF has not even had an opportunity to file a defence.
2. Despite this, JDF filed and served expert evidence in the Proceeding on 22 March 2024 when it was a third party in response to the claim by the builder, Lentelle Pty Ltd (Builder) . However, as a consequence of ongoing difficulties with the claim against the Builder, including its liquidation, there have not been further expert conclaves between your experts and the experts engaged on behalf of JDF.
3. It is clear that such a process needs to occur to determine whether any agreement can be reached between the experts and, if not, to reduce the issues in dispute.
4. Accordingly, the Proceeding as against JDF remains in its infancy in circumstances where you only added JDF as a defendant following a directions hearing on 6 September 2024. This is very important in terms of the ongoing conduct of the Proceeding and the position you are taking with respect to your perceived entitlement to join Chubb to the Proceeding.
5. We confirm that any application to join Chubb to the Proceeding will be opposed on the basis that it is vexatious, frivolous, misconceived and an abuse of process in circumstances where JDF is a party to the Proceeding and Chubb has indemnified JDF.
6. Further, we remind you that when you issued the Proceeding on 9 September 2022 you filed an overarching obligations certification. By making that certification you agreed to conduct the Proceeding in accordance with the overarching obligations set out in the Civil Procedure Act 2010 (Vic) (CP Act). Our view is that your recent conduct, particularly your recent attempts to engage with Chubb staff, are in breach of your obligations under the CPA.

Further contact with Chubb

1. While the salutations of your emails of 11 October 2024 were addressed to me, the emails were sent to Scott Jordan and Michael Babington of Chubb and copied to me. Further, you copied Scott and Michael to my email this morning. In addition, you contacted Chubb staff in the United States on Friday evening or Saturday morning, Melbourne time.
2. It is clear that you continue to ignore the request that you cease contact with Chubb. Your belief that these "pressure tactics" will force Chubb to pay the full amount you mistakenly think you are entitled to claim is misconceived.
3. Chubb has clearly articulated its position to you. Further direct contact with Chubb must cease. Any further attempts to engage any Chubb representative globally will not be responded to.
4. All further communication intended for Chubb must be to me in writing. For clarity, that correspondence should not be copied to anyone at Chubb. As previously indicated, upon receipt I will seek instructions from Chubb and revert with a response within 2 business days.
5. In addition, given your ongoing failure to respect this request, an application is being prepared for an order against you under section 29 of the CP Act to restrain you from making any further contact with Chubb. The application will be made on the basis that you are in breach of the overarching obligations in sections 18, 20, 22, 23 and 25 of the CP Act, and the paramount duty set out in section 16 of the CP Act.
6. Chubb reserves its rights to produce this letter and all earlier open correspondence following our letter of 9 October 2024, including your emails direct to Chubb, to the Court in support of the application.
7. If the application is successful, and we anticipate it will be, the costs of the application will be sought against you on an indemnity basis. The justification for seeking costs on that basis is your continued and flagrant failure to respect the request that you cease contacting Chubb direct. Those costs are likely to be significant. This letter will also be referred to when seeking that costs order.
8. For sake of clarity, any matters relating to the procedure and substance of the Proceeding as are required to comply with the Court's orders should be directed to Stuart Moore at W+K.

1. The applicant responded by asserting at length that she had a right to bring a direct claim against Chubb. Thus, on 14 October 2024 she sent a lengthy email to Mr Johnson, Mr Jordan and Mr Babington. She denied many of the matters in McCabe's 14 October letter in strident terms. She denied that she was 'applying pressure tactics at all' stating 'Chubb can settle this as soon as possible as all they have to do is get their own building quote'. She noted that the 'costs are exploding into more than 3.5 million $'.
2. The email continued:

19. Threaten away as I have a live claim to Chubb separate to County Court proceedings that is "still live" and has not been addressed !

20. I also reserve my right to PRODUCE all emails where you have blatantly lied and deliberately mislead Chubb with regards to the provisions of Ministerial Order .I will also produce emails to me from Chubb . No comment from you re your lies and denial about Chubb referring me to AFCA which is a major breach of the Trade Practices Act !

21. Chubb contacted me and phoned me directly and I have all the emails .

22. I am contacting the LSC tomorrow as your threats have just gone too far this time.

23. For clarity I have an outstanding direct claim to Chubb entirely separate to the proceedings at the County Court . I am entitled to pursue all avenues to have my claim paid for in full under my entitlements of the Ministerial Order . If Chubb refuse to get their own building quote with a builder who will proceed to contract mine will be accepted by the Court .There is absolute [no] need to delay payments of my claim

24. It is my right to report Chubb committing FRAUD in not adopting ALL sections of the Ministerial Order if my claim is NOT settled immediately and then ASIC will become involved and it will be millions in fines .

DO not WRITE TO ME AGAIN!

1. The applicant directed further correspondence to Chubb's employees. In an email dated 15 October 2024 to Mr Johnson, Mr Jordan and Mr Babington, she maintained her direct claim against Chubb in strong terms. She referred to the impasse due to the increase in the 'build price' stating that the costs had not gone up 250% as Mr Moore had 'falsely' said. She referred to the fact that she had repeatedly asked Mr Jordan for Chubb to get its own building quotes from a builder. She suggested that 'Chubb start being honourable and settle my claim immediately'.
2. We pause to note that there was a mediation in the proceeding scheduled for hearing in late October 2024. The mediation ultimately took place on 31 October 2024 before Judicial Registrar Muller.
3. Relatedly, on 16 October 2024, the applicant sent an updated estimate of costs of rectification to Mr Moore, Mr Jordan and Mr Babbington and provided other information to justify those costs. The email concluded:

I am unsure if Stuart Moore would have been acting on instruction from Chubb. Either way, it was deliberate deceit or a clear misunderstanding of the obligations of Chubb under the Ministerial Order. My legal entitlement is to be put back in the same position I was before this whole saga started and I am NOT responsible for the increase in the build price as this matter should have been settled honourably by Chubb over 18 months ago.

I await an urgent response

1. On 17 October 2024, Mr Johnson wrote to the applicant in the following terms (omitting formal parts):

Our client: Chubb Insurance Australia Limited

Chubb Claim No.: 5330143611

Insured: JD Fenton Plumbing & Drainage Pty Ltd

Your claim relating to 14 Mary Street, Windsor, Victoria

Introduction

1. We refer to the above matter and your ongoing attempts to contact various representatives of Chubb Limited's subsidiary companies globally.

Further contact with Chubb

1. You have continued to ignore our client's request that you refrain from contact either our client or other employees of subsidiary companies of Chubb Limited (Chubb).
2. Chubb has put systems in place so that any emails you send to any Chubb employee globally are blocked and quarantined. If you attempt to do so you will receive an automatic reply advising that your emails have been quarantined and that you are to contact Stuart Moore of Wotton + Kearney (W+K) or me.
3. Any attempts to contact Chubb staff globally by telephone will also not be responded to.
4. All further communication intended for Chubb must be to me in writing only. Upon receipt, I will seek instructions from Chubb and revert with a response within 2 business days. For the sake of clarity, any correspondence received after 4.00pm on a business day will be treated as having been received on the following business day, which is consistent with court rules.
5. Further communication related to your litigated claim, including any matters relating to settlement, should be sent to Mr Moore.

Application to restrain further contact

1. Given your continuing failure to respect Chubb's request that you cease direct contact, Chubb has instructed that an application be made to the Court for an order restraining you from doing so.
2. We previously raised the prospect of that application. The application will be made on the basis that your failure to respect that request is in breach of your overarching obligations under the Civil Procedure Act 2010 (Vic).
3. W+K is currently preparing that application, which will be sent to you and the Court later today.
4. This letter will be produced to the Court in relation to an order that you pay the costs incurred by JD Fenton Plumbing & Drainage Pty Ltd and Chubb in making that application.

1. On the same day, the applicant contacted Mr Babbington, Chubb's Head of Claims Australia and New Zealand, by telephone and ventilated her grievances.

1. In accordance with the threat made by Mr Johnson on behalf of Chubb in his letters of 9 and 14 October 2024, Fenton filed and served a summons on 17 October 2024 seeking a declaration that the applicant had contravened various provisions of the CPA and orders restraining the applicant from communicating with Fenton or its insurer otherwise than by email to Mr Moore and Mr Johnson.
2. On 23 October 2024, the application by summons came on for hearing in the County Court before his Honour Judge Wise. An initial hearing of the summons was adjourned upon the applicant and Mr Johnson giving interim undertakings restraining their communications. Relevantly, the applicant undertook not to communicate with Fenton or Chubb in relation to the subject matter of the proceeding save for communicating with Mr Moore by email.
3. On 25 October 2024, Judge Wise made orders marking certain correspondence that had been forwarded by the applicant to the court as confidential on the court's files.
4. On 15 November 2024, the summons was heard via audiovisual link. Fenton was represented by senior counsel together with a junior. The applicant appeared in person. Submissions were heard from both parties. There was no cross-examination of any witness. His Honour gave an ex tempore ruling granting the relief sought in the summons with costs and invited Fenton to prepare minutes of order reflecting the court's decision.
5. On 19 November 2024, his Honour made orders in the following terms:

OTHER MATTERS:

A. The Court delivered oral reasons for decision ex tempore.

THE COURT DECLARES THAT

In making the communications referred to in the affidavits of Stuart Lachlan Moore affirmed on 17 and 18 October 2024 and 12 November 2024 and the affidavit of Richard Peter Johnson sworn on 22 October 2024, as set out in Annexure A of this order, the Plaintiff has contravened the overarching obligation in section 19 of the Civil Procedure Act 2010 (Vic) not to take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

THE COURT ORDERS THAT:

1. Pursuant to section 29 of the Civil Procedure Act 2010 (Vic), the plaintiff until further or other order:

2. be restrained from communicating with or contacting (including by telephone, email or otherwise) the third defendant and its insurer, Chubb Insurance Australia Ltd, and their related bodies corporate (including the Chubb Group of companies), associated entities, directors, officers, secretaries, employees, servants and agents (Chubb), save for Mr Stuart Moore of Wotton + Kearney and Mr Richard Johnson of McCabes Lawyers, in relation to the subject matter of this proceeding;

3. direct all communications in relation to the subject matter of this proceeding only to Mr Stuart Moore of Wotton + Kearney (by email: stuart.moore@wottonkearney.com.au) and/or Mr Richard Johnson of McCabes Lawyers (by email: richard.johnson@mccabes.com.au), such communications to be in writing sent to the abovementioned email addresses; and

4. subject to further order, be restrained from disclosing the existence or contents of any communication made or document prepared (whether delivered or not) in connection with an attempt to negotiate a settlement of any dispute between the plaintiff, the third defendant and/or Chubb to the Court and/or to any other parties to the proceeding including any person retained to act on their behalf, save for the provision of such information to a solicitor or barrister who has been retained to represent the plaintiff.

5. All correspondence sent to the Court by the plaintiff for the dates between 23 October 2024 and 15 November 2024 that contains information to which the third defendant claims without prejudice privilege, as well as the transcript for the hearing on 15 November 2024, is to be marked confidential on the Court file and is not to be accessed without further order of the Court.

6. The Plaintiff is to pay the third defendant's costs of and incidental to this application including any reserved costs, such costs to be payable forthwith and to be taxed immediately in default of agreement.

7. Reserve liberty to the parties to apply by email to the Commercial Registry (commercial.registry@countycourt.vic.gov.au) for further directions upon giving reasonable notice to all other parties.

1. The annexure to the order identified the communications from the applicant indirectly and somewhat unsatisfactorily by reference to paragraph numbers in affidavits sworn in support of the application by Fenton's solicitor. As noted above, the first affidavit identified some 29 communications directed to the solicitor for Fenton, employees of Chubb, and the solicitor retained by Chubb.
2. The communications are further described in Appendix A to this judgment.
3. The second affidavit identifies communications between the applicant and Fenton's solicitors, which Fenton alleges breached the undertakings given by the applicant at the initial hearing of the summons (involving communication with Wotton + Kearney solicitors beyond Mr Moore) and further disclosed confidential information relating to ongoing without prejudice negotiations during this period. In the course of oral argument before this Court, Fenton accepted that the centrally important correspondence comprising the alleged contravention of s 19 of the CPA was the correspondence between 5 September 2024 and 17 October 2024 as annexed to the first affidavit of Fenton's solicitor.
4. We pause to observe that in terms order 1(b) would restrain the applicant from communicating with any solicitor retained by her or counsel retained by her in the proceeding or any witness including the expert witnesses retained by her in the proceeding. Whilst this was obviously not the judge's intention, the terms of the order are fundamentally problematic. This was acknowledged by senior counsel in the course of argument in this Court.

1. The applicant now seeks leave to appeal the orders of Judge Wise on the following grounds:
   1. The learned trial judge erred in holding or finding that sending the correspondence in evidence (the correspondence) was a step in connection with any claim in a civil proceeding within the meaning of section [19] of the Civil Procedures Act 2010 (CPA).
   2. The learned trial judge erred in holding or finding (in the absence of cross examination) that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding as required to be found for a breach of section 19 of the CPA.
   3. The learned trial judge erred in holding or finding that sending the correspondence was a contravention of section 19 of the CPA.
   4. The learned trial judge erred in failing to provide reasonable advice and assistance to the applicant as an unrepresented person so that she was able to understand the case she had to meet.
   5. The learned trial judge erred in holding or finding that the costs he ordered were payable forthwith applying Rule 63A.03(2) of the County Court Civil Procedure Rules 2018. As the application was interlocutory he should have relied on Rule 63A.20.1, which has a default position to the opposite effect to Rule 63A.03(2).
   6. The learned trial judge breached the rules of natural justice by not hearing the applicant on the question of costs.

For the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to -

(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;

(b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;

(c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including -

(i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or

(ii) an order for no interest or reduced interest;

(d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;

(e) an order that the person not be permitted to take specified steps in the civil proceeding;

(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

(2) An order under this section may be made -

(a) on the application of -

(i) any party to the civil proceeding; or

(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or

(b) on the court's own motion.

(3) This section does not limit any other power of a court to make any order, including any order as to costs.

1. There are four relevant aspects to s 19. First, its purpose is the avoidance of undue delay and expense. It is not concerned with upholding standards of propriety or conduct generally. It is relevantly directed to prohibiting the taking of steps in connection with a claim in a civil proceeding which are not necessary in the stipulated sense.
2. Secondly, the prohibition contained in s 19 is concerned with steps in connection with a claim in a civil proceeding. Proposed ground 1 of appeal raises the question whether correspondence can constitute such a step.
3. Thirdly, because the bulk of the steps said to contravene the section in the present matter, involved communications with Chubb and the solicitor separately retained to represent Chubb, there is a threshold question whether communications with a non-party can meet the description of a step in connection with a claim in a civil proceeding in the circumstances of this case. Proposed ground 3 embraces this question.
4. Fourthly, the section cast an onus on Fenton to demonstrate that the applicant did not reasonably believe that the steps taken were necessary to facilitate the resolution of the proceeding. This question fell to be assessed in circumstances where it is plain that the applicant subjectively believed that she had a direct claim against Chubb. In turn, the claim was agitated by her for the purpose of seeking resolution of the dispute as a whole (including the claim against Fenton). Proposed ground 2 raises the question whether the correspondence sent by the applicant was sent with a reasonable belief that it was necessary for the stated purpose.
5. In construing s 19 it is contextually relevant to note that s 10 of the CPA imposed an overarching obligation upon Chubb as Fenton's insurer with respect to the civil proceeding against Fenton. Section 10 provides:

(1) The overarching obligations apply to -

(a) any person who is a party;

(b) any legal practitioner or other representative acting for or on behalf of a party;

(c) any law practice acting for or on behalf of a party;

(d) any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to -

(i) an insurer;

(ii) a provider of funding or financial support, including any litigation funder.

(2) Subject to subsection (3), the overarching obligations do not apply to any witness in a civil proceeding.

(3) The overarching obligations (other than the overarching obligations specified in sections 18, 19, 22 and 26) apply to any expert witness in a civil proceeding.

(4) Subsection (3) is in addition to, and not in derogation of, any existing duties applying to expert witnesses.[3]

1. It follows that the correspondence sent by the solicitors for Chubb to which the applicant responded in the terms now in issue, was correspondence between two parties both of whom were subject to the overarching obligation created by s 19 in respect of the proceeding. We further note that s 29(2)(a)(ii) could arguably have founded an application by Chubb itself as a person having an interest in the proceeding as Fenton's insurer, noting the recognition of that relationship in s 10 as material to the proper conduct of the proceeding.

1. After setting out the procedural background to the application, the trial judge first summarised the nature of the proceeding and then summarised the nature of the application before him:

This application concerns correspondence by Ms O'Connell over the period 5 September 2024 through to the present date. The applicant says that the tone, substance and frequency of primarily email correspondence by the plaintiff to the solicitors, most particularly Mr Moore and the 3rd defendant's client [sic], Chubb Insurance, is improper. The 3rd defendant says that the nature of the correspondence is such that it constitutes a breach by Ms O'Connell of her overarching obligations under the CPA.[4]

1. The trial judge found that the correspondence in issue was characterised by its inflammatory tone, insulting nature, and continuing accusations of improper behaviour by both Mr Moore and Mr Johnson.
2. In the trial judge's view (with which we agree), the terms of the correspondence made clear that it was directed to extracting a settlement of the applicant's claim to her satisfaction.
3. His Honour further noted that the applicant had breached undertakings given to the court with respect to future communications.
4. The trial judge then addressed the obligations imposed by s 19 of the CPA and the concept of reasonable belief embedded in it.
5. His Honour found that Ms O'Connell could not objectively have reasonably believed that the correspondence was necessary to facilitate a resolution of the proceeding.
6. The trial judge then specifically addressed the applicant's contention that the claim she maintained against Chubb was separate and distinct from the claim made in the proceeding. His Honour rejected this contention because:

(a) both claims related to the same loss and damage; and

(b) settlement of the 'direct' claim would necessarily involve the giving of a release in respect of the claim made in the proceeding.

1. The trial judge then referred to the terms of s 29 of the CPA and noted that there was material before him demonstrating that, unless restrained, the applicant would continue communicating in a similar manner to her previous communications.
2. Accordingly, the trial judge granted relief on the terms sought by Fenton.
3. The transcript of the hearing further indicates that upon an application being made by Fenton for costs the trial judge made an order for those costs to be paid forthwith without granting the applicant an opportunity to address him on this issue.

Proposed Ground 1 - Whether sending the correspondence was a 'step' in connection with a civil proceeding?

1. The applicant submits in her written case, that the correspondence founding the orders in issue did not constitute 'steps in a proceeding' in the sense required by s 19.
2. The respondent submits that the relevant test is whether the correspondence constituted steps 'in connection with any claim ... in a civil proceeding'.
3. The trial judge referred to observations of John Dixon J in Bolitho v Banksia Securities (No 18) (remitter),[5] considering the nature of the overarching obligation under s 19. At paragraph [1352], his Honour said:

The expression, 'Any step in connection with any claim or response to any claim in a civil proceeding', is not to be given a narrow interpretation. It includes conduct such as sending correspondence. I can see no justification in the text, context or purpose of the Act, including by reference to relevant extrinsic materials, for concluding that the concept of a, 'Step', is to be confined to the filing of formal process as required by the rules. One objective of the Civil Procedure Act is to change litigation culture, in particular, to avoid unnecessary delay and cost in civil litigation occasioned by a party taking steps for tactical reasons or to oppress another party in a manner that fails to focus on the real issues in the proceeding. That objective is facilitated by a broad view of what constitutes a 'step'.[6]

correspondence can plainly be influential in the conduct of a proceeding by legal practitioners. Correspondence that threatens to seek costs against a party or practitioner personally without a proper basis, or inappropriately pursues tactical or strategic objections that are collateral, extraneous or ulterior to the resolution or determination of the proceeding, are inappropriate steps in breach of the obligation.[7]

1. In turn, the trial judge held that correspondence which pursues a tactical or strategic objective that is extraneous to the legitimate and proper steps that a party is required to take to facilitate the resolution of a proceeding will be in breach of the obligation.
2. We respectfully agree that correspondence may constitute 'a step in connection with any claim ... in a civil proceeding.'
3. Proposed ground 1 has no reasonable prospect of success.

Grounds 2 and 3 - Did the trial judge err in finding that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding? Did the trial judge err in holding or finding that sending the correspondence was a contravention of s 19 of the CPA?

1. The application of s 19 required the resolution of two questions of fact:

(a) whether the correspondence was sent in connection with the claim in the applicant's civil proceeding; and

(b) whether the applicant reasonably believed that the correspondence was necessary to facilitate the resolution of the proceeding.

1. As the matter was argued before this Court, the first element was not in issue.
2. In the course of her oral submissions to the trial judge, the applicant said:

But the claim - with the claim number directly to Chubb is basically is one [and] the same as going to mediation that Wooton Kearney are handling. They're one [and] the same claim, your Honour, they're just two different pathways.

1. Likewise, on the hearing of the application to this Court, the applicant characterised the claims against Fenton and Chubb as two pathways in respect of the same claim.
2. At other points in her submissions to the trial judge however, the applicant asserted that the claim against Chubb was distinct from the claim against Fenton. The trial judge dealt with this contention as follows:

I just want to pause here to deal with an argument raised by Ms O'Connell. She says that there is a difference between her claim that she says that she has against Chubb directly which is somehow not the claim that is the subject of this proceeding. I reject that attempted characterisation. Mr Andrew directs me to paragraphs 21 to 24 of his written submission dated 22 October 2024. It seems to me this submission must be correct. The reason for this is that Chubb is indeed the insurer of the third defendant.

The claim that Ms O'Connell believes she has in her words, 'outside of the County Court proceeding' concerns the same subject matter as the subject matter of this proceeding. The loss and damage concerned is the same. I do not accept that the two are different and I do not accept the submission that because Ms O'Connell believes they are different somehow or other, her attempt to extract a settlement of the 'separate' claim that she says she has against Chubb somehow or other did not constitute a settlement of the claims made in this proceeding.

The proposition can be tested by considering the breadth of any releases that might be sought if Chubb were to have settled Ms O'Connell's 'separate' claim. Clearly, any payment by Chubb to settle that claim which concerns one way or another the damage said to have been suffered by the plumbing in the Mary Street, Windsor, property, releases would clearly cover the subject matter of this proceeding and one would expect this proceeding to have been settled with it.

So I do not accept that somehow or other her attempts to extract a settlement of that "separate claim" do not attract the Civil Procedure Act obligations on that score.[8]

1. In our view, the trial judge was correct to characterise the correspondence which was impugned before him as correspondence sent in connection with the claim in the civil proceeding for the following reasons:

(a) the applicant herself characterised the claim against Chubb as involving a different pathway to make the same claim as that made in the proceeding against Fenton;

(b) the claim against Chubb was not merely concerned with the same loss and damage as that made against Fenton but was based on the proposition that Chubb was bound to indemnify Fenton in respect of loss and damage caused by the same wrongful conduct as that alleged directly against Fenton; and

(c) the negotiations which the applicant sought to enliven by claiming directly against Chubb were negotiations with respect to settlement inter alia of the proceeding against Fenton.

1. We turn then to the question of whether the evidence justified the conclusion that the applicant did not believe it was reasonably necessary to correspond as she did in order to facilitate the resolution of the proceeding.
2. The applicant's written case first agitates the test which his Honour was bound to apply and secondly agitates the question whether his Honour erred in applying the relevant test.
3. In her written case, the applicant submits that the trial judge applied the wrong test in addressing the question whether the applicant reasonably believed that sending the correspondence was necessary to facilitate resolution of the dispute.
4. The respondent submits that the trial judge applied the correct test.
5. The trial judge formulated the relevant test by reference to the decision of John Dixon J in Bolitho v Banksia Securities (No 18) (remitter)[9] at paragraph [1351]. The question is whether, objectively assessed by reference to the circumstances in which the step was taken, it was reasonably open for a person in the position of the alleged contravener to believe that the step was necessary to facilitate the resolution or determination of the proceeding.
6. There was no error in this formulation.
7. Turning to the question of the purpose of the correspondence, in her written case the applicant submits:

The applicant's correspondence was an attempt to resolve her contractual claim against Chubb for breach of the policy without resorting to litigation against it by joining it to the County Court proceeding.

Almost every email referred to an urge to settle and/or contained a request for an offer. On the face of the emails, their function was to set out what the applicant considered to be the merits of her position, and rebut the contentions raised on behalf of Chubb, with a view to persuading Chubb to accept her claim.

1. We accept this characterisation which was reiterated and emphasised by the applicant orally upon the hearing of this application. What is in issue, however, is whether it was reasonably open to the applicant to believe that the sending of the correspondence was necessary to facilitate a legitimate purpose, namely the resolution of the proceeding.
2. In the course of her oral submissions, the applicant emphasised five aspects of the correspondence:

(a) it was sent in pursuance of a genuine claim founded on the basis of correspondence with the Victorian Building Authority demonstrating that the applicant had the right to make a claim directly against Chubb;

(b) she believed that agitating this claim directly with Chubb might facilitate resolution of the dispute;

(c) her correspondence with Chubb did elicit meaningful communication with Chubb's employees concerning the merits of her claim in the first instance;

(d) the correspondence with Chubb and its solicitor and the correspondence with Fenton's solicitor concerning her right to bring a direct claim against Chubb resulted in the making of a meaningful offer to settle prior to mediation;

(e) the emails sent by Chubb's solicitor prior to the s 19 application, make clear that Chubb's objection was to continuing correspondence with employees of Chubb; what was objected to was not the inflammatory tone of the correspondence now complained of but the fact of continuing direct contact with Chubb's employees. What was sought was that future correspondence be directed solely to Chubb's solicitor.

1. We accept the central thrust of these submissions.
2. In the course of his reasons, the trial judge accepted that although none of the correspondence could be characterised as advancing the determination of the case, it may be that it could be characterised as attempting to facilitate a resolution of the case.[10]
3. His Honour concluded:

Having regard to the content, tone and frequency of the correspondence concerned, it is my view that Ms O'Connell could not objectively have reasonably believed that such correspondence was necessary to facilitate a resolution of the proceeding.

I also consider that having regard to the tenor, tone, substance and frequency of the correspondence that the steps concerned cannot be regarded as legitimate steps that facilitate the resolution of the proceeding. In its own way, the inflammatory and abusive nature of the correspondence could only really be calculated to hinder the proper resolution of the proceeding.[11]

1. The respondent contends that this conclusion was fully justified for the reasons stated.
2. The reasoning reflects a rolled-up judgment as to the character of the correspondence in issue. It was however what his Honour called the 'inflammatory and abusive nature of the correspondence' which it appears was ultimately decisive in his Honour's reasoning.
3. In our view, the rolled-up judgment as to the character of the correspondence by reference to its content, tone and frequency, does not properly take into account the ongoing progress of negotiations with Chubb which was achieved by way of the making of the direct claim.
4. We accept that the applicant had a genuine underlying grievance as a result of the defective plumbing works. It is not unusual for a person bearing such a grievance to express themselves forcefully. In turn, the question whether the manner in which the applicant expressed herself was unduly vigorous or inflammatory is not the touchstone of s 19. The question is whether Ms O'Connell reasonably believed that the correspondence comprised steps necessary to facilitate the resolution of the proceeding.
5. In the circumstances of the case, Fenton was required to demonstrate that, because of the content, tone and frequency of the correspondence including in particular the inflammatory terms in which the letters were couched, the applicant could not reasonably have believed that they were necessary to advance the resolution of the proceeding. In fact, however, the progress of negotiation following the commencement of direct contact with Chubb justified the conclusion that continuation of the assertion of the direct claim by way of aggressive communication to Chubb was potentially productive of resolution of the proceeding.
6. Conversely, we do not accept that (as the trial judge found) the fact that the correspondence was couched in strong language meant that it could only really be calculated to hinder the proper resolution of the proceeding. In the affidavit which the applicant filed in response to the summons issued by Fenton, she described the progress of direct communications with Chubb from her point of view.

I reached out to Chubb America a few weeks ago by email, and I actually had a lovely lady called Sonja Teague who called me, and I understand she is Head of Customer Relations America, and she called me at 4.00am in the morning from Georgia. She was my contact In America, and I have not spoken to her since. I said to her that I filed a direct valid claim to Chubb 18 months ago that was denied within the 90 days on no valid grounds, hence it has to be legally accepted by default .She was very kind, patient and understanding and apologised profusely and said she would be emailing Mr Michael Babington Head of Claims Aust &NZ immediately with the notes she had taken from our phone conversation. To be totally transparent, I even emailed Mr Babington Head of Claims Australia and New Zealand points of Sonja and our discussion. I have tried to call Sonja Teague back, with an update since we spoke, at various times but she was not in the office, so I left a message. I understand from reception that a lot of Chubb employees work from home, they are often in meetings, holidays or travelling or just plain out of the office.

Three times, I have been contacted on my mobile by Scott Jordan from Claims at Chubb Australia on behalf of Mr Babington Head of Claims Chubb, and Scott and I have had lengthy phone discussions, and I was sent various emails by Scott Jordan requesting receipts and spread sheets of costs. My conversation with Sonja Teague, Chubb America, produced the desired result, as her involvement ALONE from Chubb Head office, promoted a half decent offer from Chubb, after 18 months with Wotton Kearney, just dragging it out unnecessarily and waring up for a trial in June next year 2025, with three trial dates already having been vacated, which will waste everyone's time and abuse the Court system that is already heavily overloaded with cases. My phone conversations with Scott Jordan have always been extremely cordial and polite, as I want to have an open line of communication with Scott Jordan (Claims Chubb). I will gladly appear before a Judge to answer these vicious allegations which are just vexatious, frivolous and filed in extremely bad faith and have a major ulterior motive, because I have told Chubb they are selling "junk insurance" that does not accord with the MO and they simply cannot adopt their own wording and leave out major parts of the MO , they must adopt the whole MO. Wotton Kearney have also been extremely deceitful with regards to cheating me of my legal rights and entitlements and all Stuart Moore has done is throw me "bare bones" . This application is also, as mentioned above, a means to block a complaint regarding Mr Johnson to the LSC and Head office of Chubb.

1. It can be seen that the applicant simultaneously asserts the positive significance of the communications involved in making a direct claim on Chubb while deprecating the actions taken by the solicitors for Fenton and Chubb.
2. The accuracy of the applicant's description of her oral discussions with Ms Teague and Mr Jordan was not challenged by cross-examination or conflicting evidence.
3. We are not persuaded on the whole of the evidence that it can be concluded that the applicant did not reasonably believe that it was necessary to communicate with Chubb directly and forcefully to advance her claim in order to expedite settlement. Whilst we well understand why the trial judge found the tone of the correspondence unacceptable in a general sense, it did not by its terms demonstrate that the applicant lacked the requisite belief specified in s 19.
4. In summary:

(a) Following communications with the Victorian Building Authority, the applicant believed she had a potential right to make a direct claim against Chubb. The existence of a potential right of this kind was not in issue.

(b) The applicant asserts that in the circumstances of her case she had an actual right to bring such a claim. Importantly, the evidence before the trial judge did not establish that the applicant had no reasonable belief as to such a right nor did he find that she did not hold such a belief. The correspondence from Chubb's solicitors identified a series of potentially fundamental difficulties with such a claim but the underlying circumstances were not the subject of direct evidence and findings of fact by the trial judge.

(c) The evidence showed that the direct correspondence with Chubb undertaken by the applicant provoked what were initially amicable discussions concerning the direct claim.

(d) The discussions and associated correspondence appeared to the applicant to lead to the making of a meaningful offer of settlement by Chubb. Given the history of the case it was reasonable for the applicant to form this belief.

(e) The tone of the correspondence (which was in part aggressive, combative and derogatory of views expressed by both Fenton's solicitor and Chubb's solicitor) did not appear to impair the utility of the correspondence as an avenue towards potential settlement of the proceeding. Nor did its frequency and content have this apparent effect.

1. The trial judge expressed the view that given its inflammatory tone, the correspondence could only reasonably be regarded as likely to hinder the proper resolution of the proceeding. Given the course of events and in particular the apparent progress in negotiations which the applicant achieved, we respectfully disagree. In our view, the evidence does not justify the conclusion that it was unreasonable for the applicant to believe that it was necessary to prosecute the direct claim in the manner which she did.
2. In so saying we should not be taken to endorse the terms in which the applicant expressed herself as being appropriate. More particularly, we agree with the conclusion of the trial judge that both the correspondence of Mr Johnson and Mr Moore was measured and appropriate. Further, there is no evidence before us which justifies the assertions made by Ms O'Connell that either Mr Moore or Mr Johnson has acted deceitfully or dishonestly.
3. Nonetheless, in our view, proposed grounds 2 and 3 are made out.
4. For completeness, we record that we should not be taken to have reached any concluded opinion as to the underlying viability of the direct claim.

Ground 4 - Did the trial judge fail to provide reasonable advice and assistance to the applicant as an unrepresented person?

1. The transcript discloses that the trial judge endeavoured to assist the applicant by putting to her the thrust of the respondent's arguments.
2. This ground is not reasonably arguable.

1. The transcript demonstrates that the applicant was not given an opportunity to address the question of costs. The judge treated the question of costs as necessarily following the outcome of the application and ordered that such costs be paid forthwith.
2. Ground 6 must succeed.

1. By a notice of contention dated 4 February 2025, the respondent sought to raise allegations of breach of ss 16, 18, 20, 22 and 23 of the CPA.
2. In our view, the respondent must be confined to the trial judge's decision on the hearing of an application for leave to bring an interlocutory appeal. On such an appeal, this Court should not enter into questions of fact and law which were not decided at first instance.

1. We will grant leave to appeal against the interlocutory orders made on 19 November 2024.
2. In our view:

(a) the declaration was not justified.

(b) order 1(b) was, on any view, too wide.

(c) the order for costs should not have been made without giving the applicant a further opportunity to address the issue.

1. We will allow the appeal and set aside the orders.
2. We will hear the parties as to costs.

JD FENTON PLUMING AND DRAINAGE PTY LTD ('JD FENTON')

• Richard Johnson = Principal, McCabes - Solicitor for Chubb
• Michael Babington = Head of Claims, Australia & New Zealand, Chubb
• Scott Jordan = Team Leader, Casualty Claims, Chubb
• Evan Greenberg = Chairman and Chief Executive Officer ('CEO'), Chubb Global
• Sonja Teague = Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America

• Stuart Moore = Principal, Wotton+Kearney Solicitors (W+K Solicitors) - Solicitors for JD Fenton
• Andrew Seiter = Partner, W+K Solicitors
• Rosalie Colantuono = Associate, W+K Solicitors

To: Stuart Moore (Principal, W+K Solicitors) and Andrew Seiter (Partner, W+K Solicitors)

Cc: Rosalie Colantuono (Associate, W+K Solicitors);

Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Evan Greenberg (Chairman and CEO, Chubb); Andrew Seiter (Partner, W+K Solicitors)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb); Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors)

To: Scott Jordan (Team Leader, Casualty Claims, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Scott Jordan (Team Leader, Casualty Claims, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Scott Jordan (Team Leader, Casualty Claims, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Stuart Moore (Principal, W+K Solicitors); Scott Jordan (Team Leader, Casualty Claims, Chubb); Michael Babington (Head of claims, Australia & New Zealand, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb); Scott Jordan (Team Leader, Casualty Claims, Chubb)

To: Scott Jordan (Team Leader, Casualty Claims, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb); Stuart Moore (Principal, W+K Solicitors)

To: Scott Jordan (Team Leader, Casualty Claims, Chubb)

CC: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

CC: Scott Jordan (Team Leader, Casualty Claims, Chubb)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Michael Babington (Head of claims, Australia & New Zealand, Chubb); Scott Jordan (Team Leader, Casualty Claims, Chubb)

To: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

CC: Scott Jordan (Team Leader, Casualty Claims, Chubb); Richard Johnson (Principal lawyer, McCabes)

CC: Scott Jordan (Team Leader, Casualty Claims, Chubb); Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Richard Johnson (Principal lawyer, McCabes); Scott Jordan (Team Leader, Casualty Claims, Chubb); Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Richard Johnson (Principal lawyer, McCabes); Scott Jordan (Team Leader, Casualty Claims, Chubb); Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Sonja Teague (Senior Vice President and Head of Claims Producer & Client Relations, Chubb North America)

To: Stuart Moore (Principal, W+K Solicitors); Scott Jordan (Team Leader, Casualty Claims, Chubb); Michael Babington (Head of claims, Australia & New Zealand, Chubb)

To: Michael Babington (Head of claims, Australia & New Zealand, Chubb)

CC: Andrew Seiter (Partner, W+K Solicitors); Stuart Moore (Principal, W+K Solicitors)

To: CCV Building Case List; CCV Commercial Registry

To: Judge Wise Chambers; Stuart Moore (Principal, W+K Solicitors)

CC: CCV Building Case List; CCV Commercial Registry

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

CC: Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

CC: CCV Self Representative Litigant; Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors); CCV Commercial Registry

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+L Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors; Judge Wise Chambers

CC: Judge Wise Chambers; CCV Building Case List; CCV Commercial Registry; CCV Self Representative Litigant

CC: Andrew (Barrister); Andrew Seiter (Partner, W+K Solicitors)

To: CCV Building Case List; Andrew Seiter (Partner, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors)

CC: CCV Self Representative Litigant; CCV Commercial Registry; Stuart Moore (Principal, W+K Solicitors); Craig Terril (Partner, W+K Solicitors); Robert Auricchio (unknown)

To: Stuart Moore (Principal, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

To Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

CC: Rosalie Colantuono (Associate at W+K Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); CCV Building Case List

To: Stuart Moore (Principal, W+K Solicitors); Rosalie Colantuono (Associate, W+K Solicitors)

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); Judge Wise Chambers

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); Judge Wise Chambers; Andrew Seiter (Partner, W+K Solicitors)

CC: CCV Commercial Registry; Rosalie Colantuono (Associate, W+K Solicitors)

To: Stuart Moore (Principal, W+K Solicitors); Judge Wise Chambers

To: Stuart Moore (Principal, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

CC: Rosalie Colantuono (Associate, W+K Solicitors); Andrew Seiter (Partner, W+K Solicitors)

[1] Victoria, Victorian Government Gazette, No 103, 30 June 2002 (the 'Ministerial Order').

[2] Evidence Act 2008, s 131(2)(g).

[4] O'Connell v Lentelle Pty Ltd t/as Jims Construction (in liq) & Ors (County Court of Victoria, Judge Wise, 15 November 2024), T99-T100 ('Reasons').

[5] (2021) 69 VR 28, 92-3 [1346]-[1355].

[6] Ibid 92 [1352], quoted at Reasons, T106.

[9] (2021) 69 VR 28, 92-3[1346]-[1355].