Vellar v Spandideas [2008] VSCA 139

1 The applicant, Dr Dominic Vellar (the defendant below), seeks leave to appeal from a judgment given by a judge of the trial division on 6 June 2008.

2 In February 1996, when the respondent, Mrs Spandideas (the plaintiff below), gave birth to her first child, an episiotomy was performed to facilitate the forceps delivery. The respondent subsequently experienced pain and difficulty with bowel motions and was referred by the applicant, Dr Vellar, a colorectal surgeon, who, on 26 April 1997 advised, and on 2 May 1997 performed, a lateral sphincterotomy to divide part of the internal anal sphincter.

3 Following the sphincterotomy, the respondent's bowel problems increased and she began to experience, for the first time, faecal incontinence.

4 On 29 April 1997, she again consulted the applicant, who told her that the problem was a normal consequence of the sphincterotomy, which would eventually resolve.

5 On 3 June 1997, the respondent consulted another colorectal surgeon, Mr Tjandra, who advised and, on 6 June 1997, performed, an operation to repair the respondent's internal and external sphincters. The respondent understood Mr Tjandra to say that the sphincter injury had been caused by the episiotomy during the birth of her child.

6 The respondent's faecal incontinence did not improve and she also suffered from depression, panic attacks and ultimately, thoughts of suicide.

7 On 3 September 1997, the respondent consulted Slater & Gordon in relation to a potential claim.

8 The respondent gave birth to a second child in 1999. In June 2000, Slater & Gordon advised the respondent, whose incontinence had deteriorated, that she did not have a claim. The respondent's mental health subsequently deteriorated and her marriage ended.

9 The respondent consulted a number of colorectal surgeons, including, in 2003, Professor Lobowsky, and Mr Bui. The latter, in October 2004, carried out a sphincter repair.

10 In May 2005, the respondent consulted new solicitors and, as a consequence, on 9 August 2006, attended a New South Wales colorectal surgeon, Mr Douglas, who informed her that the faecal incontinence had been caused by the negligence of the applicant in performing the sphincterotomy in May 1997.

11 The respondent issued proceedings against the applicant on 31 May 2007, claiming damages for breach of his duty of care in undertaking the sphincterotomy. The respondent, principally in reliance on Mr Douglas' report, alleges that the applicant should not have undertaken the sphincterotomy so soon after the birth of her child, that the length of the surgical incision was excessive and that the applicant failed to give her a sufficient warning of the risk of faecal incontinence posed by the procedure.

12 The respondent's claim (as a cause of action for damages which related to the death of or personal injury to a person, whether founded in tort, contract, statute or otherwise) was, pursuant to ss 27B(1) and 27N(1) and (2) of the Limitation of Actions Act 1958 ('the Act'), subject to Part 2A of the Act, which contains ss 27A to s 27J.

13 Section 27D(1) prescribes the applicable limitation period as follows:

(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire -

(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.

(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -

(a) the fact that the death or personal injury concerned has occurred;

(b) the fact that the death or personal injury was caused by the fault of the defendant;

(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) To remove doubt, a cause of action that arises under Part III of the Wrongs Act 1958 is not discoverable before the date of death of the deceased.

14 Section 27K provides for the extension of the prescribed limitation period and s 27L provides that, in exercising the power to extend, a court shall have regard to all the circumstances of the case, including a number of specified factors.

15 The trial judge determined, as preliminary questions, whether the respondent's cause of action was statute-barred, and if so, whether time should be extended. He declared that the respondent's claim was not barred by s 27D of the Limitations of Actions Act 1958.

16 He also concluded that, if it were necessary to do so, he would make an order under s 27K of the Act extending the period of limitation applicable to the respondent's cause of action to 31 May 2007.

17 It was not disputed that the respondent knew that she had suffered a personal injury sufficiently serious to justify the institution of proceedings more than three years before she did so. The applicant contended that the respondent also knew by 1997 (from consulting Mr Tjandra) that after the operation performed by the applicant, she had damage to both sphincter muscles, which damage was a cause of her incontinence. The respondent contended that she did not know, until her consultation with Mr Douglas in 2006, that the operation performed by the applicant had caused or contributed to her incontinence.

18 The applicant contended that 'fault' in s 27F(1)(b) of the Act merely meant 'act or omission'. The respondent submitted that the word 'fault' bore its ordinary meaning of culpable responsibility.

19 His Honour held that 'fault' in the context of s 27F(1)(b) bore its ordinary meaning of a degree of culpability or blameworthiness on the part of the person who caused the damage.

20 First, he observed that the use of the word 'fault' in s 27F(1)(b) was in marked contrast to the phrase 'act or omission' in ss 27D(1), s 27D(2) and s 27E(1). The different phraseology indicated that 'the word "fault" in s 27F(1)(b) was deliberately selected to convey a meaning different to that expressed by that phrase'. That conclusion was, he stated, reinforced by s 5(1A) of the Act, which provides for an action for damages to be brought within three years from the date on which a person first knows that he or she has suffered injuries consisting of a disease or disorder caused by the act or omission of some person.

21 The Court of Appeal in Mazzeo v Caleandro Guastalegname & Co ('Mazzeo')[1] held that, contrary to earlier constructions, the words 'act or omission' in s 5(1A)(b) of the Act did not mean 'negligent act or omission'.

22 His Honour observed that Part 2A of the Act was introduced less than three years after the decision in Mazzeo, and Parliament chose to use the word 'fault' rather than 'act or omission'. He concluded that:

The clear implication is that, in s 27F(1)(b), the legislature intended that "fault" bear its ordinary and natural meaning, namely, an act or omission to which some culpability or blame attaches. [2]

23 His Honour rejected the applicant's contention that the definition of 'fault' in ss 28B, 28LB and 28M of the Wrongs Act 1958 (which includes an 'act or omission') applied to limit the meaning of 'fault' in s 27F(1)(b) of the Act to an act or omission. His Honour observed that the definition of 'fault' in the relevant sections of the Wrongs Act 1958 presupposed its ordinary legal meaning of legal fault which has resulted or might result in liability for damages, and was intentionally inclusive in order to ensure that the provisions applied to liabilities arising from omissions, as well as acts.

24 His Honour also rejected the contention that a construction of 'fault' in s 27F(1)(b) in accordance with its ordinary meaning would have an unworkable or anomalous effect, because it would render the determination of the limitation period subject to the idiosyncratic, subjective notions of 'fault' of individual plaintiffs. His Honour did not think that s 27F(1)(b) required the plaintiff to form a legal judgement as to the defendant's fault. Rather, he considered that Parliament intended that under s 27F(1)(b):

...the commencement of the period of limitation should be dependent upon a normative assessment by the plaintiff as to whether an act or omission of a defendant involved culpability or blameworthiness on the part of the defendant. [3]

25 Such a construction did not leave the commencement of the limitation period open-ended, as s 27D(1) provided finality by the 'long stop' provision of twelve years at the latest, with the trade-off of a shorter period if the cause of action were discoverable in terms of s 27F(1), in the sense that the plaintiff knew all the relevant factors necessary for the formulation of a cause of action, which would ordinarily involve some element of fault. It was understandable, his Honour thought, that the legislature would envisage that the shorter period would apply only when the cause of action was known in the sense that a critical element of it, namely fault on the part of the defendant, was apparent to the plaintiff.

26 His Honour considered the evidence of the respondent, whom he considered to be an honest witness, albeit all her evidence was not readily capable of reconciliation. He concluded that:

While not all of the evidence of the [respondent] is readily capable of being reconciled, in my view it is clear that, until she saw Mr Douglas in August 2006, the [respondent] had not been told that the [applicant] should not have performed the operation undertaken by him in May 1996. Nor had she been told that there was anything about that operation, or preceding it, which the [applicant] should, or should not, have done. Certainly, before that time she understood that there was "damage" to both her sphincters. Indeed, in this respect her current understanding as to which doctor was responsible for the "damage" to a particular sphincter seems to be erroneous. The [respondent] still believes that her internal sphincter was damaged during childbirth, and her external sphincter was cut by the [applicant]. The converse appears to be the case. However, whatever the present view of the [respondent] about her injury, it is clear that, until she saw Mr Douglas in August 2006, she had no understanding, or knowledge, that the [applicant] should not have undertaken the sphincterotomy, or that he should or should not have done something differently in relation to it. My impression of the [respondent]'s evidence is reinforced by the evidence of Ms Shortall, that until the [respondent] was examined by Mr Douglas, she had a strong view that it was Mr Somerville who had caused all of her problems. For those reasons, I consider that the [respondent] has established that it was not until August 2006 that she understood that her injury was the result of the "fault" of the [applicant], for the purposes of s 27F(1)(b) of the Limitation of Actions Act.[4]

Although, given my construction of "fault" in s 27F(1)(b), it might not be necessary to do so, I have also reached the conclusion that the [respondent] did not know, until August 2006, that the surgery undertaken by the [applicant] in May 1996 had caused, or contributed to, her incontinence.[5]

28 Nor did his Honour consider that the respondent ought to have known that her injury was caused or contributed to by the applicant's performance of the sphincterotomy, or his 'fault', in circumstances where she was not told until 2006 that the operation played a role in causing her condition and the applicant either should not have performed it or should have done it differently.

29 His Honour, applying the 'synthesising' approach described by Buchanan JA in Tsiadis v Patterson,[6] also concluded that, had the respondent's claim been statute-barred, he would have extended the time pursuant to s 27K(2)(b), as it was just and reasonable to do so. He acknowledged that there was substantial delay, with some resultant prejudice in relation to the effect on memory, particularly in relation to the alleged lack of warning. His Honour observed, however, that the applicant could give evidence of his practice and the common practice in relation to warning of risks. He also observed that no evidence was adduced of any specific prejudice. The applicant was on notice from an early stage of the potential claim against him, despite the delay in issuing proceedings, and all contemporaneous records were available.

30 His Honour also noted that the respondent had prima facie a substantial claim, that in her fragile psychological state suffering from a 'degrading and debilitating condition' it was understandable after the advice from Slater & Gordon that she did not return to the issue of litigation for some time and that she had financial difficulties leading to some delays in investigation by her present solicitors, who had nevertheless acted with reasonable expedition and efficiency.

Further, I accept that it was not until the [respondent] saw Mr Douglas, in August 2006, that she understood that the [applicant] had done anything "wrong" in undertaking the operation in May 1996. In those circumstances, and bearing in mind the apparently substantial nature of the [respondent]'s claim, I would consider it just and reasonable to extend the period of limitation applicable to the [respondent]'s cause of action to 31 May 2007, if it had been necessary for me to do so.[7]

32 It is not disputed that the judgment of his Honour in determining the preliminary questions was interlocutory. Therefore, leave to appeal was required pursuant to s 17A(4)(b) of the Supreme Court Act 1986 which provides:

(4) An appeal does not lie to the Court of Appeal -

(a) from an order allowing an extension of time for appealing from a judgment; or

(b) without the leave of the Judge constituting the Trial Division or of the Court of Appeal, from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge, except in the following cases -

(i) when the liberty of the subject or the custody of minors is concerned;

(ii) cases of granting or refusing an injunction or appointing a receiver;

(iii) a decision determining the claim of a creditor or the liability of a contributory or the liability of a director or other officer under the Corporations Act or the Corporations Law or the Companies (Victoria) Code in respect of misfeasance or otherwise;

(iv) a decision dismissing a proceeding for want of prosecution;

(v) such cases prescribed by the Rules as in the opinion of the Judges making the Rules are of the nature of final decisions.

33 Section 17A(4)(b) is based on the recognition that appeals from interlocutory orders should be reduced as much as possible.[8] Accordingly, it has been held that an applicant for leave must satisfy the Court of Appeal not only that the decision below is attended with sufficient doubt, but that it would result in substantial injustice if unreversed.[9]

34 It is not, of course, the province of the court hearing the application for leave to appeal to duplicate the task of the court which will determine the appeal. The former court's examination of, and pronouncements on, the merits of the appeal must be limited accordingly. It is not the usual practice to give detailed reasons for the decision on leave to appeal.

35 Both the requirement that the decision is attended by sufficient doubt to warrant its being reconsidered on appeal and the requirement to show that substantial injustice would be caused by allowing the order to stand have a flexible quality.

36 As Callaway JA observed in X v Director of Public Prosecutions:[10]

...that the requirement to show substantial injustice is a guideline for the exercise of a broad discretion to grant or withhold leave to appeal. What amounts to substantial injustice depends on all the circumstances of the case.

37 Callaway JA acknowledged that, although no question of substantial injustice arises if the decision below were plainly right:

...in other cases, the greater the potential injustice, the more likely it is that a doubt attending the decision will warrant its being reconsidered on appeal. The critical point, and the ratio decidendi of Niemann's case, is that the requirements are cumulative. Even if the decision below was wrong, it will be allowed to stand if there is no risk of substantial injustice. To take a different view would be to disregard the legislative policy of discouraging interlocutory appeals except where they are necessary in the interests of justice, cf Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401 at 407-408. [11]

38 Callaway JA entertained, without expressly endorsing, the proposition that the importance of the question of law raised by a proposed appeal would make it easier to conclude that a decision was attended with sufficient doubt.[12] His Honour clearly did not view the public importance of the legal question as an independent criterion which could, in itself, justify a grant of leave, but rather, as a circumstance to be taken into account in relation to the established cumulative tests.

39 In Cannon v Tahche,[13] the Court of Appeal considered that the principal legal issue raised by the appeal before it was one of 'general public importance.'[14] The Court also concluded that the decision below was attended by sufficient doubt and that substantial injustice would arise if, in the event of error, the decision below were not set aside.[15] The Court's approach did not suggest that the general public importance of a question of law would, in itself, justify a grant of leave if the primary tests were not satisfied. Rather, it was a factor to be taken into account in relation to those tests.

40 In the present application, we have had the benefit of detailed argument in relation to the merits of the decision below and other relevant issues.

41 The applicant, consistently with the arguments advanced on his behalf below, contended that his Honour's construction of the relevant legislation conflated 'discoverability' with 'discovery', contrary to the intention of the legislature and that his Honour confusingly propounded several different formulations of fault. The applicant also submitted that the trial judge applied the 'more extreme' of the formulations, in concluding, against the weight of the evidence, that the respondent's claim was not statute-barred.

42 The applicant argued that the construction of the relevant provisions was contrary to that hitherto accepted, which had equated 'fault' with 'causative act or omission'. The applicant submitted that the erroneous construction would, in many instances, deprive the provisions of effect, and raised a legal issue of general importance in personal injury litigation.

43 On appeal, the applicant also argued, for the first time, that the respondent's cause of action was statute-barred by reason of s 27N(4) of the Act, which was not referred to by the parties below and is not dealt with in the trial judge's decision.

Despite subsection (2), nothing in Division 2 operates to extend a period of limitation applicable to a cause of action in relation to an act or omission that occurred before 21 May 2003 to a period longer than the period of limitation

that would have applied to the cause of action if this Part had not been enacted.

45 The applicant contended that under s 5 of the Act as it existed prior to 1 October 2003, the time limit for causes of action that accrued prior to 5 November 2002 was six years. As the sphincterotomy was performed by the applicant on 2 May 1996, the respondent's cause of action would, on that basis, be barred on 2 May 2002.

46 The applicant conceded that if its argument based on s 27N(4) is correct, an extension pursuant to s 27K(2)(b), which his Honour was prepared to grant, remained available under s 27(N)(5) of the Act, which provides:

Nothing in subsection (4) operates to prevent an application being made under Division 3 to extend a period of limitation referred to in that subsection.

47 Counsel for the respondent contended that the applicant should not be permitted to raise, on appeal, a new argument based on s 27(N)(4), in circumstances where, had it been raised below, the respondent's case would have been conducted somewhat differently. The respondent contended that, in any event, she would have met the s 27(N)(4) argument with an assertion, based on s5(1)(A) of the Act, that time had only begun to run against her from 2006, when she received the advice of Mr Douglas.

48 The applicant contended that the decision below would result in substantial injustice if unreversed, in the event it were shown to be wrong, because the consequences for the applicant were serious. The orders were final in effect. The allegation in the defence that the respondent's cause of action was barred by the provisions of the Act had been struck out, in circumstances where, but for the allegedly erroneous construction of the trial judge, the proceeding could proceed no further. The applicant acknowledged the trial judge's finding that there was no specific prejudice to the applicant, but counsel submitted that the applicant, although on notice of the possibility of litigation, may have assumed that his exposure ceased when the limitation period elapsed. The applicant also relied on the principles of Brisbane South Regional Health Authority v Taylor[16] ('Brisbane South Regional').

49 In that case, a health authority appealed from an order extending time for the respondent to bring an action against it for negligence and breach of duty in relation to an hysterectomy performed on her in 1979 (some 15 years before issuing proceedings) by the authority's employee doctor who, she alleged, failed to advise her that it was not essential to treat her condition.

50 At first instance, the respondent's application for an extension was dismissed because, inter alia, an alleged conversation between the doctor and the respondent central to the claim between the parties conflicted with the contemporaneous medical notes, and the authority was unable to locate the doctor. In such circumstances, the primary judge held that a fair trial was improbable.

51 The Court of Appeal granted an extension, but the High Court restored the order of the primary judge.

52 McHugh J observed that the relevant limitations legislation did not give the plaintiff a presumptive right to an extension simply because he or she had satisfied the specified statutory conditions. Rather, the applicant continued to bear the onus of showing that the justice of the case required the exercise of the discretion in his or her favour.

53 His Honour observed that extension provisions were exceptions to the limitations provisions rather than of equal status. He held that the respondent had not discharged the burden of demonstrating that justice required an extension, because the authority was placed in a position of serious prejudice.

But once the potential liability of the defendant had ended, its capacity to obtain a fair trial; if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.

When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice.[17]

55 Dawson J agreed with McHugh J and, in particular, stated that:

... once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation. [18]

56 Toohey and Gummow JJ, in a joint judgment agreed that '...the ultimate onus of satisfying the court that time should be extended remains on the applicant'[19] but reiterated the recognition of Gowans J in Cowie v State Electricity Commission of Victoria[20] that when prejudice is alleged due to the effluxion of time:

'[i]t is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.[21]

57 It does not follow from the reasoning in Brisbane South Regional that substantial injustice will necessarily flow from the loss of a defence that a cause of action is statute-barred. While such a loss established prima facie prejudice, where no specific prejudice is demonstrated and a fair trial remains possible, in the context of an application for leave to appeal, substantial injustice may not be made out.

58 In Niemann v Electronic Industries Ltd,[22] the Full Court refused leave to appeal from the judgment of a trial judge who had dismissed the applicant's application for an order that the respondent's action be dismissed for want of prosecution extending over 15 years. Neither McInerney J nor Murphy J considered that substantial injustice flowed from the order. Murphy J stated:

The order does not finally dispose of the action. No substantive rights are taken away. The status quo is maintained. We are in no position to say on which side justice sat when the action was commenced. It is true that the plaintiffs' conduct has been reprehensible in the prosecution of their suit. The learned primary judge has, in the exercise of his discretion, decided that he should not strike out their action, but leave it to be tried by the court. He has not decided the action in the plaintiffs' favour. He has simply refrained from ordering that they should lose the right to have their claim heard.

I am not convinced that this order, of itself, works a substantial injustice such as was contemplated by the Full Court in Perry v Smith, supra, and the Darrel Lea Case, supra.[23]

59 In the present case, even if the trial judge's conclusion that the respondent's cause of action was statute-barred was wrong or doubtful, no substantial injustice would flow from it if the respondent were, as the trial judge found, entitled to an extension of time in any event.

60 The applicant, however, contended that the trial judge's decision to extend time (albeit not the subject of a formal order) was also flawed because, first, it was predicated on the incorrect factual finding that 'it was not until the [respondent] saw Mr Douglas, in August 2006, that she understood that the [applicant] had done anything "wrong" in undertaking the operation in May 1996',[24] and secondly, because the judge failed to take into account discoverability in s 27L(1)(e) in the synthesis.

61 Counsel for the applicant pointed to his Honour's observation that:

if the [respondent] had understood, hitherto, that the operation performed by the [applicant] was "responsible" (in a causative sense) for her injury, either in whole or in part, then I would expect that the plaintiff would also have considered that there had been something "wrong" about the performance of the operation by the [applicant].[25]

62 He submitted that his Honour equated knowledge of cause with knowledge of fault, and pointed to a number of the respondent's answers in cross-examination which were said to indicate early knowledge by the respondent that the applicant's surgery had played a causal role in her condition. I do not think, however, that on a fair reading, the responses, taken in context, undermine his Honour's finding based on the whole of the evidence, including the situation, state of mind and credibility of the respondent, that she did not consider until 2006 that the applicant's surgery had caused her condition.

63 Further, while the applicant complains that the judge did not address s 27L(1)(e), his Honour's consideration of the extension was unnecessary, given his finding on the limitation question and his extensive analysis of the question of discoverability.

64 While the applicant contends that the trial judge's construction of discoverability was erroneous, the decision to extend time pursuant to s 27K(2)(b) is discretionary and based on what is just and reasonable in all the circumstances of the case. Despite the overlap, specified factors to which, by s 27L(1) and (2), the court must have regard extend well beyond discoverability and are not exhaustive. I am not satisfied that his Honour misdirected himself, found facts that were not open to him or that his discretion miscarried.

65 The construction of the 'discoverability' provisions is of general importance. The trial judge's construction of 'fault' departs from the construction as a reference to a 'causative act or omission' by a judge of the County Court.[26] That construction was applied by the trial judge himself in Caven v Women's and Children's Health[27] ('Caven') (where he lacked the benefit of any argument on the issue) and, in reliance on Callan was treated as common ground, again without argument, in a subsequent case, Callan v Healthscope Limited.[28] The construction now adopted by the trial judge is based on a detailed and reasoned analysis. The applicant also challenges the

correctness of his Honour's decision on the new ground of s 27N(4), albeit the respondent says he is not entitled to raise it on appeal. It is unnecessary to express a view on whether sufficient doubt attends the correctness of the declaration that the respondent's cause of action is statute-barred, in circumstances where I am not satisfied that his Honour's determination that the respondent should be granted an extension of time is attended by the degree of doubt which would warrant its review on appeal. It follows from that conclusion (which necessarily incorporates a consideration of the prejudice or injustice entailed to the applicant) that, in my view, substantial injustice to the applicant is not made out.

66 The declaration that the respondent's cause of action is not statute-barred is of course the subject of the application for leave to appeal. The determination to grant an extension was not the subject of a formal order.

67 The jurisdiction to grant leave to appeal is nevertheless discretionary, and in all the circumstances of this case, in my opinion, the application for leave to appeal should be dismissed.

[1] [2000] VSCA 230; (2001) 3 VR 172.

[2] Spandideas v Vellar [2008] VSC 198 [34].

[3] Spandideas v Vellar [2008] VSC 198 [36].

[4] Spandideas v Vellar [2008] VSC 198 [58].

[5] Spandideas v Vellar [2008] VSC 198 [59].

[6] [2001] VSCA 138; (2001) 4 VR 114.

[7] Spandideas v Vellar [2008] VSC 198 [77].

[8] Murphy J stated in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 442: 'The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible.'; Perry v Smith (1901) 27 VLR 66, 68.

[9] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 442.

[10] [1995] VICSC 195; [1995] 2 VR 622, 626.

[11] X v Director of Public Prosecutions [1995] VICSC 195; [1995] 2 VR 622, 626.

[13] [2002] VSCA 84; (2002) 5 VR 317.

[14] Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317, [325].

[16] [1996] HCA 25; (1996) 186 CLR 541.

[17] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 555.

[20] [1964] VicRp 103; [1964] VR 788, 793.

[21] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547.

[22] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431.

[24] Spandideas v Vellar [2008] VSC 198 [77].

[25] Spandideas v Vellar [2008] VSC 198 [60].

[26] Dark v Country Fire Authority (Unreported, Stott J, 21 June 2005); Rosa Ilardi v Forster [2006] VCC 793 (Unreported, Stott J, 26 June 2006), applying Dark v Country Fire Authority.

[27] [2007] VSC 7; (2007) 15 VR 447, 464 [56] (Kaye J).

[28] [2008] VSC 88 [49].