Finch v The Heat Group Pty Ltd
[2024] FedCFamC2G 161
•27 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Finch v The Heat Group Pty Ltd [2024] FedCFamC2G 161
File number: MLG 576 of 2016 Judgment of: JUDGE RILEY Date of judgment: 27 February 2024 Catchwords: PRACTICE AND PROCEDURE – application to restrain legal practitioners from acting for the respondents – the legal practitioners having never acted for the applicant – whether there is any other proper basis to restrain the legal practitioners from acting for the respondents. Legislation: Australian Solicitors’ Conduct Rules 2015
Disability Discrimination Act 1992
Federal Circuit and Family Court of Australia Act 2021
Federal Court of Australia Act 1976
Federal Court Rules 2011
Legal Profession Uniform Conduct (Barristers) Rules 2015
Legal Profession Uniform General Rules 2015
Trade Practices Act 1974
Victorian Bar Rules 2009
Cases cited: Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550
Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491
Belan v Casey [2002] NSWSC 58
Calidad Pty Ltd v Seiko Epson Corp (2019) 270 FCR 572; (2019) 370 ALR 563; (2019) 142 IPR 381; [2019] FCAFC 115
Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2010] VCAT 802
Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2012] VCAT 223
Finch v The Heat Group Pty Ltd(No 2) (2016) 353 ALR 193; [2016] FCA 791
Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191
Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848
Grattan & Grattan and Anor (No. 3) [2014] FamCA 839
Grimwade v Meagher [1995] 1 VR 446
Makripoulias v Arhontovasilis [2022] VSC 53
SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796
Western Australia v Ward (1997) 76 FCR 491
Westpac Banking Corporation v Lenthall [2018] FCA 1422
Whiteford v R [2016] VSCA 26
Yunghanns v Elfic Ltd (formerly known as Elders Finance & Investment Co Ltd) (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Division: Division 2 General Federal Law Number of paragraphs: 208 Date of last submission: 7 September 2023 Dates of hearing: 20 December 2022, 8 March 2023 and 17 July 2023 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Counsel for the Respondents: Nadia Stojanova (on 20 December 2022 & 8 March 2023)
Catherine Pase (on 17 July 2023)Solicitor for the Respondents: MinterEllison ORDERS
MLG 576 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JO-ANNE FINCH
Applicant
AND: THE HEAT GROUP PTY LTD (ACN 092 941 430)
First Respondent
GILLIAN FRANKLIN
Second RespondentPETER KADLECIK (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
27 FEBRUARY 2024
Amended pursuant to r.17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 20 March 2024
THE COURT ORDERS THAT:
1.The applicant’s application to restrain MinterEllison, Mr Felman KC and any other counsel briefed by MinterEllison from acting on behalf of the respondents be dismissed.
2.Pursuant to s.230(1)(b)(iv) of the Federal Circuit and Family Court of Australia Act 2021, the parts of documents set out in Annexure A be suppressed for as long as the suppression order remains on foot in the proceeding referred to in the reasons for judgment as the Organisation X proceeding.
3.The substantive matter be adjourned for directions before Judge Young on 25 March 2024 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an interlocutory application by the applicant to restrain legal practitioners from acting for the respondents. The applicant is Ms Finch. She is not legally represented. The first respondent is Heat Group Pty Ltd (“Heat”).
Heat is a wholesale distributor of cosmetics and personal care items. It was established in 2000 in Melbourne. It sells products to pharmacies and discount department stores. Ms Finch was employed by Heat in 2002 as a Territory Manager. As such, she managed the merchandising requirements of a particular geographic area. In 2005, she became the State Manager for Victoria, and various Territory Managers reported to her. On 3 March 2011, Heat dismissed Ms Finch from her employment.
The second respondent is Gillian Franklin. She was the Managing Director of Heat at material times. The third respondent is Peter Kadlecik, to whom Ms Finch reported at Heat. The fourth respondent is John Simcocks, who was National Sales Manager at Heat. The fifth respondent is Darren Scotti, who was another employee at Heat.
Ms Finch seeks an order that the respondents’ solicitors, MinterEllison, and Marc Felman KC, as well as any other member of counsel briefed by MinterEllison, be restrained from acting on behalf of the respondents in these proceedings. MinterEllison and Marc Felman have never acted for Ms Finch. However, she seeks the restraint on the basis enunciated by Pagone J in Finch v The Heat Group Pty Ltd(No 2) (2016) 353 ALR 193; [2016] FCA 791. Pagone J said at paragraph 9 of that case that:
The test to be applied in determining whether to exercise the extraordinary jurisdiction to restrain legal practitioners from acting on behalf of their clients against a party who was not a previous client is “whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required” that they be restrained: Grimwade [v Meagher [1995] 1 VR 446] at 452 (emphasis added [by Pagone J]); see also Dealer at [37]. It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as “extraordinary and protective” (Woodgate v Leonard [2007] NSWSC 495 (Woodgate v Leonard) at [37]), of an “exceptional nature” (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30]) and to be applied only in a “clear” case (Bransdon v Davis & Gilbert (2007) 37 Fam LR 555; 212 FLR 28; [2007] FamCA 579 at [70]): see also GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party’s chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client’s case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiably interfere with the proper conduct of the client’s case. It may also have the effect of causing irreparable harm to the client’s case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.
In relation to her employment at Heat, Ms Finch has brought numerous legal proceedings, including:
(a)an anti-discrimination proceeding in the Victorian Civil and Administrative Tribunal (“VCAT”), which was dismissed in 2010; and
(b)Federal Court proceeding VID704 of 2012, which commenced on 21 September 2012.
In the Federal Court matter, VID 704 of 2012, Jessup J dealt with an application to strike out Ms Finch’s further amended statement of claim. In the reasons for judgment delivered on 4 March 2016 in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191, Jessup J noted at paragraph 3 that:
In the Amended Originating Application, the applicant claims damages under the Trade Practices Act 1974 (Cth) (“the TP Act”), under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), under the Sex Discrimination Act 1984 (Cth) and under the Disability Discrimination Act 1992 (Cth) (“the DD Act”). The applicant also seeks the setting aside of the order made in the Victorian Court of Appeal on 5 October 2010 in Finch v The Heat Group Pty Ltd [2010] VSCA 256, the order made by the Victorian Civil and Administrative Tribunal (“VCAT”) on 29 June 2010 in Finch v The Heat Group [2011] VCAT 802, the order made by the Court of Appeal on 8 April 2011 in Finch v The Heat Group Pty Ltd [2011] VSCA 100 and the order made by the High Court on 29 April 2011 in Finch v The Heat Group Pty Ltd [2011] HCA Trans 111.
Jessup J did strike out the further amended statement of claim but gave Ms Finch leave to file and serve within 21 days a second further amended statement of claim confined to the allegation that the termination of her employment contravened the Disability Discrimination Act 1992 (Cth). Jessup J also ordered that Ms Finch provide $25,000 by way of security for costs, which she provided, and transferred the matter to this court. Jessup J subsequently dealt with the costs of the strike out application.
Ms Finch also filed some further proceedings in the Federal Court, including applications for:
(a)leave to appeal against Jessup J’s orders of 4 March 2016;
(b)leave to appeal out of time against Jessup J’s costs orders;
(c)Pagone J to recuse himself; and
(d)the respondents’ legal practitioners, MinterEllison and Marc Felman of counsel, to be restrained from acting for the respondents: VID243/2016.
Relevantly, Pagone J did not accede to the application for the respondent’s legal practitioners to be restrained from acting for them: Finch v The Heat Group Pty Ltd(No 2) (2016) 353 ALR 193; [2016] FCA 791. Notwithstanding Pagone J’s determination of that matter in VID243/2016, Ms Finch has made the same application in the present matter, which, prior to the transfer from the Federal Court, was VID704/2012.
For some unknown reason, the matter was not actioned in this court until 15 December 2021, when Deputy Chief Judge Mercuri’s chambers wrote to the parties and requested an update on the progress and future conduct of the matter. It had previously been in the docket of another judge, who subsequently retired without the matter ever being listed in this court.
On 19 December 2021, Ms Finch responded to chambers advising that she had sent correspondence to the Federal Court registry chasing up the matter on 26 February 2018 but had not received a response. Registry advised Deputy Chief Judge Mercuri’s chambers that Ms Finch’s email was never responded to or forwarded to chambers.
The matter was listed for directions on 2 March 2022 before Deputy Chief Judge Mercuri. Prior to that, on 24 February 2022, Ms Finch emailed chambers saying that she wanted MinterEllison to step down from acting for the respondents or consent to a restraint application being filed, heard and determined.
At the directions hearing on 2 March 2022 before Deputy Chief Judge Mercuri, Ms Finch appeared in person and Mr Felman KC appeared on behalf of the respondents. Ms Finch indicated that she wished to make an oral application that MinterEllison and Mr Felman KC be restrained from acting on behalf of the respondents. In response, Mr Felman KC made an oral application seeking an order that Ms Finch be restrained from making such an application, largely on the basis that Pagone J had already decided that issue. Deputy Chief Judge Mercuri adjourned the matter until 4 March 2022 to consider the issues.
At the hearing on 4 March 2022, before Deputy Chief Judge Mercuri could deliver her judgment, Ms Finch made a further oral application for Deputy Chief Judge Mercuri to recuse herself. Ms Finch said that she had just become aware that her Honour had previously been a partner at MinterEllison, at the same time that Mr Felman KC had been an employee at MinterEllison. Her Honour made orders for the filing of written submissions with respect to the recusal application and listed it for hearing on 12 May 2022.
On 12 May 2022, Ms Finch failed to appear at the hearing of the recusal application. To be abundantly fair to Ms Finch, Deputy Chief Judge Mercuri adjourned the hearing of the recusal application to 5 August 2022.
On 5 August 2022, Ms Finch appeared at the hearing in person. Ms Stojanova of counsel represented the respondents. Deputy Chief Judge Mercuri made orders:
(a)dismissing Ms Finch’s recusal application;
(b)dismissing the respondents’ oral application that Ms Finch be prevented from bringing an application to restrain MinterEllison and Mr Felman of counsel from acting on behalf of the respondents;
(c)requiring Ms Finch to file any material on which she sought to rely in the restraint application, whether affidavits or written submissions, by 13 October 2022;
(d)requiring the respondents to file any material on which they sought to rely in the restraint application, whether affidavits or written submissions, by 20 October 2022;
(e)adjourning Ms Finch’s restraint application to 27 October 2022 before me; and
(f)otherwise transferring the matter to my docket.
In her Honour’s reasons, in Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848, Deputy Chief Judge Mercuri noted that Ms Finch claimed that the restraint application should be allowed to proceed because it was based on new circumstances that had arisen since Pagone J had dismissed the same application. Her Honour also noted that the transfer to me was because I had an earlier available date to hear the restraint application than her Honour did, and the case had already had inordinate delays.
Prior to the listing on 27 October 2022, Ms Finch contacted my chambers seeking an adjournment for medical reasons. Orders were made in chambers by consent on 14 October 2022, adjourning the matter to 20 December 2022 at 10am for hearing by Microsoft Teams.
The parties also consented to orders extending the time for them to file written material to 7 November 2022 for Ms Finch and 14 November 2022 for the respondents, and gave Ms Finch until 28 November 2022 to file any affidavit or written submissions in reply.
In written submissions filed on 8 November 2022, Ms Finch expanded the restraint she was seeking from “MinterEllison and Marc Felman of counsel” to include “any other briefed member of counsel”. At the hearing on 20 December 2022, Ms Finch orally clarified that she meant “any member of counsel briefed by MinterEllison”.
PAGONE J’S DECISION
In Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, Pagone J noted that Ms Finch had made serious allegations including that:
(a)Ms Prpich and Mr Avallone, solicitors at MinterEllison, had perjured themselves in the VCAT proceedings, and had relied on documents in the VCAT proceedings knowing them to be misleading and deceptive; and
(b)Mr Felman KC also relied on documents in the VCAT proceedings knowing them to be misleading and deceptive.
At paragraph 11 of Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, Pagone J noted that:
… For present purposes it is not necessary, and it would be undesirable, to consider whether there is substance in any of the serious allegations which have been made by Ms Finch against the legal practitioners whom she seeks to restrain from acting against her. Some of the allegations could be put to one side on the basis that Ms Finch alleged the commission of crimes and misconduct which have not been established in appropriate proceedings in courts of competent jurisdiction by reference to the laws, standards and burdens relevant to those allegations. However, the point is not whether any of the claims are made out, but whether it is required for the proper administration of justice to preserve the integrity of the judicial process in question that the Court restrain the legal practitioners chosen by the respondents to act on their behalf against Ms Finch in proceedings commenced by her in the appellate jurisdiction of this Court.
His Honour concluded that the restraint was not warranted, largely because Ms Finch was seeking to restrain legal practitioners from acting for their clients in an appeal from the judgment in a proceeding in which they had also acted. The present case is obviously not an appeal, so the reasoning in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 does not necessarily exclude the present application.
GRIMWADE V MEAGHER
A leading case on restraints of legal practitioners who have not acted for the relevant applicant is the decision of Mandie J in Grimwade v Meagher [1995] 1 VR 446. In that case, Mr Grimwade sought to restrain Mr Meagher QC from acting against him in a civil proceeding. The background was that Mr Meagher QC had prosecuted Mr Grimwade in a very long running criminal matter at the committal proceeding, an abortive first trial, a second trial of “unexampled length” which resulted in the conviction of Mr Grimwade, and the appeal which resulted in the conviction being set aside with a direction that there be no third trial. The appeal court made a number of criticisms of the manner in which the prosecution had been conducted. The civil proceeding concerned some of the same facts as the criminal proceeding had concerned, which centred on the alleged non-disclosure by Mr Grimwade to his partners of a commission of $452,000.
Mr Grimwade argued that Mr Meagher QC, in the course of the criminal proceeding, had acquired confidential information about him from the Victorian Fraud Squad and the National Crime Authority which he could use against Mr Grimwade in the civil proceeding. Mandie J held at page 454 that this argument failed because:
… there is not the slightest basis for thinking that [Mr Meagher QC] would intentionally use such confidential information. … It is not possible, in the absence of any specificity concerning the nature and content of the supposed confidential information, to make any fair or meaningful assessment of the likelihood that it might be used unconsciously to the unfair disadvantage of [Mr Grimwade]. Accordingly, I do not accept this argument.
However, Mandie J went on to say:
… It is readily apparent that, in the unique, extraordinary and highly exceptional circumstances of this case, any member of counsel in the shoes of [Mr Meagher QC], no matter how vigilant and self-controlled, might unconsciously or subconsciously succumb to the temptation to seek to use the said action as a vehicle to justify his conduct of the prosecution or to answer criticisms made in respect thereof and to attack [Mr Grimwade] or might be unable to properly distinguish between such personal interests and his duty to his clients.
Those unique, extraordinary and exceptional circumstances include the history of the matter and the various details of it which I have already recited. It is undeniable that [Mr Meagher QC] is substantially identified (and would be so identified by a fair-minded observer), in his capacity as leading counsel for the prosecution, with the prosecutorial zeal involved in the series of proceedings which concluded with a second trial of "unexampled" length, in respect of the whole of which proceedings the Court of Criminal Appeal said "money, as well as time, seems to have been no object to those responsible for the prosecutions". Such was the dedicated zeal and degree of personal involvement of [Mr Meagher QC] that he advanced before the Court of Criminal Appeal an allegation of conspiracy by [Mr Grimwade] which that court characterised as "fanciful" and in respect of which that court expressed "regret that the Crown saw fit to make it". These matters of themselves would in my view cause a fair-minded observer to apprehend a real risk that [Mr Meagher QC] would be unable to appear in the said action and act with that objectivity and detachment which the court expects of counsel appearing before it and a real risk that [Mr Meagher QC] would be unable to properly distinguish or avoid a conflict between his personal interests and his duty to his clients in the said action. Alternatively, to adopt the test propounded by Mr. Jones, I consider that there is a real and sensible risk of a lack of objectivity by [Mr Meagher QC] which not only gives rise to an undue risk of unfairness or disadvantage to [Mr Grimwade] but gives rise to a substantial concern that a fair trial would not be had and hence gives rise to a concern for the integrity of the judicial process and the due administration of justice.
Mandie J concluded that it was appropriate in that case to restrain Mr Meagher QC from acting for his clients.
MATERIAL RELIED UPON
At the hearing before this court, Ms Finch relied upon:
(a)her written submissions filed on 8 November 2022 and six accompanying attachments, being:
(i)a letter from the Australian Human Rights Commission advising Ms Finch of its decision to terminate her complaint against the Heat Group (“attachment 1”);
(ii)her affidavit sworn on 2 June 2016 (“attachment 2”);
(iii)a chronology of litigation dated 29 May 2016 (“attachment 3”);
(iv)an outline of submissions in support of restraint application dated 4 May 2016 (“attachment 4”);
(v)a copy of the Vic Bar rules allegedly breached (“attachment 5”); and
(vi)a chronology of examples of incidents (“attachment 6”);
(b)her written submissions regarding the filing of material on 7 November 2022 (including the 10 attachments) filed on 23 November 2022;
(c)her affidavit sworn or affirmed on 5 December 2022;
(d)her written submissions in reply filed on 5 December 2022;
(e)her affidavit sworn on 3 February 2023;
(f)her affidavit sworn on 14 May 2023;
(g)her affidavit sworn on 9 July 2023;
(h)the document titled “Restraint Applications | Case Law, Grounds and Principles” emailed to chambers on 17 July 2023;
(i)her written closing submissions filed on 8 August 2023;
(j)her written submissions regarding Ms Prpich’s proposed undertaking emailed to chambers on 28 August 2023; and
(k)her written closing submissions in reply filed on 7 September 2023.
At the hearing before this court, the respondents relied upon:
(a)their submissions filed on 14 November 2022;
(b)the affidavit sworn by Alishia Maree Prpich on 3 March 2023;
(c)the affidavit sworn by Alishia Maree Prpich on 29 May 2023;
(d)their closing written submissions filed on 21 August 2023; and
(e)the proposed undertaking of Alishia Maree Prpich emailed to chambers on 22 August 2023.
MS FINCH’S WRITTEN SUBMISSIONS FILED ON 8 NOVEMBER 2022
a. preliminary matters
Section 1 of Ms Finch’s written submissions filed on 8 November 2022 was headed preliminary matters and included paragraphs 1 to 15.
Ms Finch repeated the claim that she had made before Pagone J that MinterEllison and Mr Felman KC had engaged in misleading and deceptive conduct: paragraph 5(b). This appears to have related to the VCAT proceeding. In footnote 1, Ms Finch said that MinterEllison and Mr Felman KC had admitted to filing and relying on misleading and deceptive material. Ms Finch referred to paragraph 13 of Pagone J’s judgment in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 as evidence of the admission. However, all that was there said was that:
… There have also been in this dispute, as the respondents’ legal practitioners conceded, some errors made by them in the past during the course of the proceedings between their clients and Ms Finch which, however, they believe they have sought to correct. …
That falls a long way short of evidence of an admission of misleading and deceptive conduct. Errors can be innocent. Errors are commonplace. Not every error occurs with an intention to mislead and deceive, or even with the unintended consequence of misleading and deceiving.
Ms Finch also said in paragraph 5(b) that:
… over the years Minters and Mr. Felman had also acted against her and other serious allegations had been made and some that had been accepted and/or proven beyond any reasonable doubt and with evidence that could not be contested …
However, Ms Finch did not specify what the “serious allegations” were or where or when they had been accepted or proven beyond any reasonable doubt. Of itself, a lawyer previously acting against a person is not a proper ground for a restraint.
In paragraph 5(c), Ms Finch suggested that, from the moment she raised the issue of the restraint application, MinterEllison and Mr Felman KC should have ceased to act. As at 8 November 2022, Ms Finch did not provide any authority for that contention. It struck me as being highly unlikely to be correct. If it were correct, a mere assertion, without any evidence in support or substance in reality, and without any determination by a court, would prevent a person’s chosen legal practitioner from acting for them. That would be so disruptive to the proper administration of justice that it cannot be correct. I noted that, in the restraint application before Pagone J, Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, MinterEllison continued to be the solicitor on the record. That suggests that Pagone J did not consider that the mere raising of an allegation that a lawyer should cease to act meant that the lawyer had to stand aside.
In paragraph 5(d), Ms Finch said MinterEllison “ambushed” her by sending her a minute of proposed orders 1.5 hours prior to the directions hearing on 2 March 2022. That is not an ambush or misconduct. It is very standard procedure.
Ms Finch then said that MinterEllison and Mr Felman KC breached s.37N of the Federal Court of Australia Act 1976, which requires parties to comply with the overarching purpose in s.37M. The particulars Ms Finch gave of that were the lawyers refusing to step aside, and the “ambush”. The lawyers were not obliged to step aside, pending the court’s determination of the restraint issue, and Ms Finch was not “ambushed” by the provision of a minute of proposed orders 1.5 hours prior to a directions hearing.
Ms Finch noted in paragraph 5(f) that MinterEllison and Mr Felman KC had made an oral application on 2 March 2022 for her to be restrained from even making a restraint application, thus “ambushing” her, an unrepresented litigant. The fact is that, in an email dated 24 February 2022, Ms Finch had foreshadowed making a restraint application, but had not actually made such an application by filing and serving the appropriate documents. She herself then “ambushed” the respondents by making an oral application on 2 March 2022 that MinterEllison and Mr Felman KC be restrained from acting for the respondents. Mr Felman KC responded by making an oral application of his own. Mr Felman KC’s application cannot be properly described as an ambush, because it was in response to Ms Finch’s own oral application.
In any event, Ms Finch argued that Mr Felman KC made the application:
… upon the wrongful grounds that these proceedings are the same proceedings as the past proceedings and a restraint application had been made previously …
It is true that the present proceedings, prior to their transfer from the Federal Court, had a different file number to the proceedings in which Ms Finch had made the restraint application determined by Pagone J. However, the proceedings were substantially the same, involving the same parties and the same factual substratum. The more important point is that Pagone J’s decision was largely based on the matter before him concerning an appeal, as discussed above. As such, it did not exclude the present application. However, there was nothing untoward in the arguments put forward by Mr Felman KC. I daresay that most counsel would have made the same argument, particularly if “ambushed”.
Ms Finch said at paragraph 5(g) that Deputy Chief Judge Mercuri had described Mr Felman KC’s application as “unusual”: Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848 at paragraph 38. Ms Finch said that meant the application was “unheard of”. “Unusual” means uncommon. “Unheard of” means never previously occurring. The terms are different.
In any event, Mr Felman KC’s application to restrain Ms Finch from bringing an application to restrain MinterEllison and himself from acting for the respondents was not soundly based. However, of itself, Mr Felman KC’s application would not be properly described as misconduct or egregious. Obviously, many applications to the court fail because, on proper analysis, they are not soundly based.
In paragraph 5(h), Ms Finch noted that MinterEllison and Mr Felman KC continued to represent the respondents in Ms Finch’s recusal application. Ms Finch did not say what, if anything, was wrong with that. Obviously, they were allowed to continue acting unless and until they were restrained from acting.
In paragraph 6, Ms Finch said her application was made predominantly on the grounds of:
(a)past and repeated misconduct;
(b)conflict of interest; and
(c)not being impartial.
To this point, Ms Finch had not identified anything that could properly be described as misconduct or a conflict of interest. MinterEllison and Mr Felman KC were not required to be impartial. They were required to act for their clients, while complying with the applicable rules of court and the applicable rules of conduct.
Ms Finch referred to the Federal Court of Australia Act1976 and the Federal Court Rules 2011, but did not explain how they applied in the present circumstances.
In paragraph 8, Ms Finch said that the respondents had to be represented by impartial persons who had not previously been associated with her via this or any prior litigation. As noted above, there is no requirement for legal representatives to be impartial. Nor is there any particular requirement for lawyers to have had no previous association with an opposing party. As noted in Grimwade, it was not the previous association that meant that Mr Meagher QC could not continue to act. It was “the unique, extraordinary and highly exceptional circumstances” of that case, which threatened to undermine the integrity of the judicial process.
In paragraph 12, Ms Finch noted the extraordinary delay in this court between the transfer from the Federal Court and the first directions hearing, which was almost five years. Deputy Chief Judge Mercuri formally apologised for that delay. Ms Finch criticised MinterEllison for not following up with the court. However, the substantive proceeding is Ms Finch’s application. It was primarily her responsibility to follow up with the court, not the respondents’.
In paragraph 13, Ms Finch refers to attachment 1 to her submissions, which is a letter dated 24 October 2012 from the Human Rights Commission to her notifying her of the termination of her complaint against Heat. Ms Finch relied on this document to argue that MinterEllison and Mr Felman KC had incorrectly argued that Ms Finch’s present claims were the same as her previous ones, in an effort to have the claims dismissed.
At this stage of her submissions, Ms Finch did not explain exactly which claims she meant, or where or when Mr Felman KC had made that argument. She may have meant that Mr Felman KC argued before Jessup J that the claims in this proceeding, as set out in Ms Finch’s further amended statement of claim, were the same as the claims she made before VCAT. Jessup J dealt with that issue in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191, VID 704 of 2012. His Honour said:
92.In its decision published on 29 June 2010, VCAT outlined the nature of the case then being run by the applicant as follows (Finch v The Heat Group PtyLtd [2010] VCAT 802 at [31]):
Doing as best I can to summarise the facts on which she seeks to rely, her case appears be as follows;
1.First she says she was directly discriminated against by reason of her sex by the Respondents by –
(i)requiring her to do extra work than males were required to perform, thus causing her detriment because she had less time to attend to sales;
(ii)making an unjustified allegation against her of cheating at the 2005 sales conference;
(iii)not allowing her to share in favours given to men, such as the giving of tote bags and gift packs in a Covergirl and Foodworks promotion;
(iv)requiring her to demonstrate the Goldmine computer system when males were not required to do so, thus causing her detriment because she had less time to attend to sales;
(v)allocating territories of choice to males but refusing to allocate to her the territory she chose;
(vi)making a false allegation that she stole Myer vouchers when such an allegation would not have been made against males;
(vii)requiring her to orchestrate the giving of a gift to her male superior;
(viii)falsifying the company’s figures to favour males over females;
(ix)unjustifiably giving her an oral performance warning on 16 June 2006;
(x)unjustifiably giving her a further written warning on 2 July 2006;
(xi)unjustifiably giving her a second oral performance warning on 22 September 2006;
(xii)unjustifiably giving her a second written warning on 4 January 2007.
2.In addition Finch claims that she was discriminated against once the company ascertained she was pregnant. She says this discrimination is constituted by –
(i)the actions of White in taking over her role and excluding her from decision-making whilst pregnant;
(ii)the company’s failure to announce Finch’s pregnancy;
(iii) the company’s failure to pay maternity leave;
(iv)requiring Finch to attend a disciplinary meeting whilst pregnant;
(v)a comment by Gillian Franklin that she should not think about getting pregnant.
3.Further she says she was discriminated against because she became impaired. She says this impairment discrimination is constituted by –
(i)requiring her to attend a disciplinary meeting whilst ill;
(ii) requiring her to answer work queries whilst ill;
(iii) the meeting with Scotti on 16 December 2006;
(iv)the company failing or refusing to pay WorkCover benefits to her;
(v)the letter to all staff from the company dated 4 January 2007.
4.Finally she says she was victimised. She says this victimisation is constituted by –
(i)the company refusing to take her complaints seriously or utilising a grievance procedure in relation to them;
(ii) the meeting with Scotti on 16 December 2006;
(iii)the company refusing to pay maternity leave benefits to her;
(iv)the company failing or refusing to pay WorkCover benefits to her;
(v)the sending of a warning letter to her on 4 January 2007;
(vi)the sending of an email to all staff from the company dated July 2007.
5.In addition to these claims of discrimination and victimisation, Finch says that she was sexually harassed by the third Respondent, Peter Kadlecik, and another employee, Darren Scotti.
93The applicant’s case in VCAT occupied 21 sitting days. There were 20 witnesses. The applicant herself was under cross-examination for eight days. In its decision of 29 June 2010, VCAT dismissed all of the applicant’s claims. Subsequent appellate procedures by her in relation to that decision were fruitless.
94In a schedule to their written outline on the present Interlocutory Application, the respondents compared the allegations now made by the applicant with the complaints which were the subject of her case in VCAT, identified by reference to the numbered paragraphs in the VCAT decision which dealt with them. With respect to what are now said to be the respondents’ wrongdoings during the currency of the applicant’s employment by the company, there is a very substantial degree of overlap. Broadly, that covers what I have described as the first [warnings and reprimands] and third [various grievances] areas in which the applicant makes allegations against the respondents, leaving only the second, which relates to the termination of her employment. (emphasis added)
95It is true that the applicant’s case in VCAT relied only on the EO Act, whereas she relies now on the common law of negligence, on contract, on the TP Act, on the OHS Act and on the law of defamation. However, any viable cause of action that the applicant had in any of these areas was available to her when she commenced, and prosecuted, her proceeding under the EO Act. I was not addressed on the question whether VCAT had jurisdiction to adjudicate on the causes of action upon which the applicant now relies; nor, for that matter, upon the question whether there was a court that had jurisdiction to adjudicate on those causes of action as well as on the applicant’s claim under the EO Act. But, assuming, favourably for the applicant, that there was no means by which she could, contemporaneously, have relied on all those other causes of action and on the EO Act, I would nonetheless hold it to be vexatious, and in that sense an abuse of process, for her now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this court. (emphasis added)
96Specifically with respect to the applicant’s claim for maternity leave payment, she has now repackaged this as a breach of contract arising on the termination of her employment. (emphasis added) But her maternity occurred in February 2007. The company’s failure to make the necessary payment was, as appears from what I have set out above, part of her complaint in VCAT. The applicant’s attempt to run that complaint again, this time on a contractual carriage, is vexatious and should not be permitted.
Essentially, Jessup J found that Ms Finch had repackaged the claims she had run in VCAT, and she should not be permitted to run them again in this proceeding. However, his Honour did permit Ms Finch to replead her case and run a new claim, which she had not run in VCAT, namely, the claim that she was dismissed by Heat in breach of the Disability Discrimination Act 1992.
Jessup J also noted at paragraph 104 that Ms Finch’s own counsel, who only briefly represented her, said at a directions hearing on 8 March 2013 that her first statement of claim could not be maintained, largely because it “purport[ed] to re-agitate or [sought] to re-agitate matters that [were] clearly the subject of adverse findings by VCAT”.
In view of Jessup J’s conclusions, and Ms Finch’s own counsel’s concession, it cannot be said that there was anything improper in Mr Felman KC submitting to the court that Ms Finch should not be permitted to rerun the claims that she had run in VCAT.
The new claim, that Ms Finch was dismissed in breach of the Disability Discrimination Act 1992, is in a different category. I have been unable to find any reference to an argument by Mr Felman KC to the effect that Ms Finch should not have been able to run that claim because she had previously run it. Such an argument would have been ill-founded because Ms Finch had not previously run that claim.
However, in Jessup J’s reasons for judgment, I can relevantly only see an argument by Mr Felman KC that Ms Finch should not be given another opportunity to plead her case, because she had already had three attempts. She had filed a statement of claim, an amended statement of claim and a further amended statement of claim. Mr Felman KC’s argument in that regard was not improper and was not misconduct. It is an argument that most other counsel in his position would have run.
In paragraph 14 of her written submissions filed on 8 November 2022, Ms Finch noted that in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191, VID 704 of 2012, at paragraph 79, Jessup J said:
Favourably for the applicant, I am prepared to perceive in her proceeding an allegation that her reputation was injured as a result of these contraventions. (emphasis added)
Ms Finch noted this passage under the heading, “Justice Jessup Findings In Support of the Proceedings as to Defamation”. She said that she relied on the passage to show the importance of these proceedings.
Jessup J accepted that Ms Finch had alleged that her reputation had been injured as a result of certain alleged contraventions of the Trade Practices Act 1974. However, for reasons which his Honour gave, he did not permit Ms Finch to pursue those allegations in the Federal Court. I do not see how the passage cited from paragraph 79 of Jessup J’s judgment assists in the present proceeding.
b. grounds of the application
Section 2 of Ms Finch’s written submission filed on 8 November 2022 was headed Grounds of the Application, and included paragraphs 1 to 13.
In paragraph 1, Ms Finch said that all legal practitioners must step aside if they have a conflict of interest, such as when serious allegations are made against them. She said such allegations did not have to be proven, but if legal practitioners wished to continue acting, they needed to get a ruling from the Ethics Committee. She said none of the legal practitioners in the present case had produced such a ruling.
Ms Finch did not refer to any particular rule or case to support these contentions. She attached to her written submissions as attachment 5 what appeared to be extracts from the Victorian Bar Rules 2009. However, none of the rules Ms Finch extracted specifically related to conflicts of interest or serious allegations against a barrister.
Rule 10 of the Australian Solicitors’ Conduct Rules 2015 applies to conflicts concerning former clients. That does not apply because Ms Finch has never been a client of MinterEllison or Mr Felman KC. Rule 11 of the Australian Solicitors’ Conduct Rules 2015 concerns conflicts with current clients. That does not apply, because Ms Finch is not a current client of MinterEllison or Mr Felman KC.
Rule 12.1 of the Australian Solicitors’ Conduct Rules 2015 provides that:
A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.
Ms Finch argued that there was such a conflict in this case, because of the serious allegations she had made against MinterEllison. These allegations are discussed further below.
In relation to barristers, rules 101(b) and (f) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 relevantly provide that:
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
…
(b)the client’s interest in the matter or otherwise is or would be in conflict with the barrister’s own interest or the interest of an associate,
…
(f)the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case,
…
In the present case, Ms Finch did not suggest that Mr Felman KC has a conflict of interest in the case other than because she had made serious allegations against him. As such, Ms Finch has attacked the professional conduct of Mr Felman KC. However, the attacks, to this point at least, have not been sustained. Rule 101(f) has to be understood as applying where the barrister’s professional conduct may be plausibly attacked in the case. Otherwise, an unscrupulous or misguided litigant could make outlandish and unsubstantiated allegations against every barrister opposing him or her, and stymie the whole proceeding.
As an example of the serious concerns she has about MinterEllison and Mr Felman KC, Ms Finch referred in paragraph 3 of her submissions to an unidentified case in February 2012 where the respondents were represented by MinterEllison and Ms Siemensma of counsel. Ms Finch said that, in this case, the respondents sought an increase in counsel’s costs. Ms Finch said that Ms Siemensma of counsel misled the decision maker by making 25 or 26 inaccurate adverse findings against Ms Finch.
Ms Finch seems to have described a case heard in VCAT on 21 February 2012 in which judgment was delivered on 27 February 2012. It is Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2012] VCAT 223. In that case, the respondents asked for the costs order made by VCAT in 2010 against Ms Finch to be increased under the slip rule to certify for counsel. VCAT declined to increase the costs order, saying that it was not a matter to which the slip rule properly applied.
There was no indication in the reasons for judgment in Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2012] VCAT 223 that Ms Siemensma had made any adverse findings against Ms Finch or made any adverse comments about her, much less inaccurate ones. There is no evidence before me to support Ms Finch’s contention about the February 2012 proceeding.
In paragraph 4 of her submissions, Ms Finch said that, in October 2012, she made a costs application against MinterEllison and Mr Felman KC based on the 25 or 26 inaccurate and misleading adverse findings against her. She said that the application was dismissed because “it could not succeed under the powers of that judiciary”. However, she said that the decision maker said that the 25 or 26 errors Ms Finch had referred to were “central to the substantive decision and the costs order.”
Unfortunately, Ms Finch did not give a citation for this case, or even specify which court or tribunal it was in, or specify who the decision-maker was, though she may have implied it was Garde J. In any event, I have been unable to find the case. The relevant proceeding does not appear in Ms Finch’s 63 page chronology (attachment 3 to her submissions) or in her 16 page chronology (attachment 6 to her submissions) or in the cases she has referred to. In the absence of evidence, I am unable to accept that Ms Siemensma did make 25 or 26 misleading and inaccurate statements about Ms Finch to anyone.
In paragraph 5 of her submissions, Ms Finch noted that MinterEllison and Mr Felman KC had not obtained a ruling from the ethics committee. However, to this point, Ms Finch has not demonstrated that they should have. The attacks that Ms Finch has made on them are not sufficiently plausible to warrant an ethics committee ruling.
In paragraph 6 of her submissions, Ms Finch then relied on everything that she had put before the court in the restraint application decided by Pagone J, Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791. Ms Finch noted that Pagone J had not dealt with the substance of the matters raised, because his Honour dismissed the matter on the basis that the application concerned an appeal.
As noted above, Ms Finch alleged before Pagone J that:
(a)Ms Prpich and Mr Avallone, solicitors at MinterEllison, had perjured themselves in the VCAT proceedings, and had relied on documents in the VCAT proceedings knowing them to be misleading and deceptive; and
(b)Mr Felman KC also relied on documents in the VCAT proceedings knowing them to be misleading and deceptive.
Pagone J said about these allegations in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 at paragraph 13 that:
It is, perhaps, understandable that Ms Finch, an unrepresented and non-legally qualified litigant, might feel aggrieved by the conduct of the legal practitioners who have acted for their clients against her in her litigation with the respondents over a number of years. It is an inevitable consequence of disputes that parties may sometimes feel wronged by the course of conduct in adversarial proceedings and may blame the legal practitioners for the opposing parties as the cause of the wrong. There have also been in this dispute, as the respondents’ legal practitioners conceded, some errors made by them in the past during the course of the proceedings between their clients and Ms Finch which, however, they believe they have sought to correct. It may even be accepted that Ms Finch has a genuinely held subjective belief about the many strongly worded allegations that she has made against the legal practitioners who the respondents have continued to retain to act against her. …
Pagone J also said, more specifically about the allegations in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 at paragraph 11:
… For present purposes it is not necessary, and it would be undesirable, to consider whether there is substance in any of the serious allegations which have been made by Ms Finch against the legal practitioners whom she seeks to restrain from acting against her. Some of the allegations could be put to one side on the basis that Ms Finch alleged the commission of crimes and misconduct which have not been established in appropriate proceedings in courts of competent jurisdiction by reference to the laws, standards and burdens relevant to those allegations. …
I would respectfully adopt that passage. In addition, this court is in no position to assess the accuracy of Ms Finch’s allegations. She has not put the appropriate evidence before this court to substantiate her allegations, which are no more than bare assertions. As far as I can see, there is nothing in the original VCAT decision, Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2010] VCAT 802, that supports Ms Finch’s claim that MinterEllison and/or Mr Felman KC said or did anything that was misleading. On the contrary, at paragraph 84, Harbison J said:
My perception from Finch’s description of this incident is that she was attempting to refashion her evidence when faced with a document which clearly showed it to be misleading.
Ms Finch at this point relied on attachment 2 to her written submissions. That attachment is an affidavit sworn by Ms Finch on 2 June 2016 in VID 243/2016 (the proceeding before Pagone J). Even though the affidavit was not filed in the present proceeding (except as an attachment to submissions), the respondents did not object to it. Ms Finch’s affidavit simply says that a chronology filed in VID 243/2016 is true and correct.
The chronology Ms Finch referred to seems to be the chronology that is attachment 3 to Ms Finch’s submissions. It is 63 pages long. It covers the period 21 September 2012 to 26 May 2016. Ms Finch did not draw my attention to any particular entry in it.
However, one series of entries that Ms Finch might intend to rely upon begins on 3 May 2013 under the heading, “Minters file 3 Misleading and Deceptive Documents In Support of Their Application – 3 May 2013.” The entry itself begins:
As part of the abovementioned material & the basis of the application, Minters swear in 3 documents to be the correct documents used in the VCAT trial:
1. Finch VCAT Particulars of Complaint dated 29 Oct 08.
2. Finch Witness Statement dated 20 Sep 09 (containing no strike outs).
3. Finch Reply Witness Statement dated 18 Dec 09 (containing no strike outs)11.
The documents however were not the correct documents as:
4. Finch VCAT Particulars of Complaint dated 29 Oct 08, was amended 27 Apr 10 & relied upon in the VCAT trial.
I have had a great deal of difficulty making sense of the amended particulars of complaint filed by the Complainant on 27 April 2010, which is the document on which this hearing has proceeded12.
5. Finch Witness Statement dated 20 Sep 09, was amended 19 Apr 10 with strike outs.
6. Finch Reply Witness Statement dated 18 Dec 09, was amended 19 Apr 10 with strike outs.
FN 11: Minters documents: Affidavit (Alishia Maree Prpich) sworn 3 May 13 [p55, Exhibits AMP-24 (Particulars of Complaint), AMP-25 (Finch Witness Statement & AMP-26 (Finch Reply Witness Statement)] & Outline of Submissions dated 7 Jun 13 [p 1-4,19(a) & 36-62] & Schedules A & B [referred to in p 22, 36, 53 & 62].
FN 12: ‘Finch v The Heat Group & Others’, A72/2007 [p29].
As I understand it, the three allegedly misleading and deceptive documents were filed by MinterEllison in VID704/2012 in the context of an application to strike out Ms Finch’s statement of claim. The application was heard by Jessup J. There do not appear to be any written reasons dealing with that application.
However, Pagone J, in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, reproduced paragraphs 6 to 11 of Ms Finch’s written submissions in the restraint application heard by his Honour. They are set out in paragraph 6 of his Honour’s judgment as follows:
Ms. Prpich’s Involvement (First Instance) — 3 May 2013 to 14 March 2014
6. Ms. Prpich:
(a)via sworn in affidavit perjured herself and attested to and exhibited in, three (3) documents as being the true documents relied upon in prior proceedings with the Respondents and the Applicant at the Victorian Civil and Administrative Tribunal (“the VCAT”) in support of an estoppels application;
(b)the Applicant then, discovering the misleading representation, raised it with Ms. Prpich who denied she had done so on numerous occasions, until such time as the Applicant put forward evidence to substantiate as such, and Ms. Prpich then acknowledged the documents were not the correct documents and the correct documents should be put before the Court, and then filed two (2) out of the three (3) correct documents; however
(c)maintaining the third document was able to be relied upon as the true document relied upon in the VCAT trial, knowingly pressed on with the application notwithstanding the document, and the main document relied upon, was misleading and deceptive.
Mr. Avallone’s Involvement (Second Instance) — 28 November 2014 to 5 February 2015
7. Mr. Avallone (notwithstanding the above):
(a)via sworn in affidavit perjured himself and attested to and exhibited in, the exact same three (3) documents (raised above) as being the true documents relied upon in a trial during prior proceedings with the Respondents and the Applicant at the Victorian Civil and Administrative Tribunal (“the VCAT”) in support of an abuse of process, wasted costs and a security for costs application;
(b)the Applicant then, discovering the misleading representation for the second time, raised it with Mr. Avallone (via material in response); and
(c)maintaining the documents were the true documents relied upon in the VCAT trial, knowingly pressed on with the application notwithstanding three (3) documents were misleading and deceptive.
Ms. Prpich’s Involvement (Second Instance) — 5 February 2015 to 20 April 2016
8. Ms. Prpich:
(a)then took back over the proceedings and after knowing the three (3) misleading and deceptive documents had been filed and were being relied upon again (as raised above) as they had previously been by her; and
(b)maintaining the documents were the true documents relied upon in the VCAT trial and pressed on with the application notwithstanding knowing the three (3) documents being relied upon, were misleading and deceptive and therefore an accomplice to the fraudulent activity and having been notified in various affidavits and submissions of the Applicant to that end.
Mr. Felman’s Involvement (First and Second Instance) — 3 May 2013 to 20 April 2016
9. Mr.Felman:
(a)after knowing the three (3) misleading and deceptive documents had been filed and were being relied upon again (as raised above) as they had previously been;
(b)maintaining the documents were the true documents relied upon in the VCAT trial and prepared submissions and made reference to, and relied upon, the three (3) misleading and deceptive documents, even to the point of preparing a schedule referencing these misleading documents to the Applicant’s current Statement of Claim, notwithstanding knowing the three (3) documents being relied upon, were misleading and deceptive, and therefore an accomplice to the fraudulent activity and having been notified in various affidavits and submissions of the Applicant to that end, and also questionable as to whether Mr. Felman settled the abovementioned affidavits.
Ms. Prpich, Mr. Avallone and Mr. Felman, Refusal to Correct Misleading Representations / Step Down — May 2013 to April 2016
10.Notwithstanding the representatives had until such time as a decision was made upon the applications to take action in relation to the misleading and deceptive documents, during the applications being on foot as raised above, Ms. Prpich, Mr. Avallone and Mr. Felman, as legal representatives and officers of the Court, abandoned their duty and did not:
(a)abandoned the applications; or
(b)in the very least withdraw the misleading and deceptive documents and strike through any references to them in the applications; but rather
(c)continued on with the applications and misleading the Court, including Mr. Felman relying upon the misleading and deceptive documents himself via his submissions, including drafting a schedule specifically referring to the misleading and deceptive documents; and moreover
(d)did not step down from the proceedings in line with their duty as officers of the Court:
(i)on the two (2) occasions the fraudulent acts occurred equating to periods in total of over two (2) years, and thus Ms. Prpich and Mr. Felman (being that they did not correct Mr. Avallone’s misrepresentations became accomplices to the fraudulent activity; and/or
(ii)despite the Applicant’s continuous raising of issues and concerns with their conduct, including specific mentions of restraint equating to a period of over two (2) years, as raised in paragraph 4 above.
11.Notwithstanding all officers of the Court have a duty, a barrister who realises that there is a conflict of such nature, ought to alert the bench immediately and take the action raised above, otherwise he is, by duty, supposed to withdraw from acting, irrespective of the stage of the proceeding, for the sake of not putting the Court through disrepute, and having unfair advantage against a litigant, and in particular, one in person.
The relevance of these allegations to the applications by Ms Finch seeking to appeal the orders of Jessup J can be seen from paragraph [12] of her submissions:
On the sworn in affidavits, Jessup J was misled and allowed the proceeding to ensue, and relied upon the schedule prepared by counsel via his submissions when striking out the Applicant’s statement of claim and orders the Applicant pay security for costs, and wasted/lost costs.
(footnotes omitted)
While Ms Finch claimed that Jessup J was misled by the three incorrect documents, she also said in her chronology that over the following months, she raised the issue with Jessup J, his Honour told the parties to file the correct documents, MinterEllison acknowledged on 5 August 2013 that they had filed three incorrect documents, and on 17 October 2013 filed correct versions of two of the three documents. Presumably, Ms Finch would have filed the correct version of the third document.
There is no reason to believe that Jessup J was misled by MinterEllison’s filing of the wrong version of the three documents. In any event, Ms Finch had ample opportunity to correct any misleading impression his Honour was under.
Ms Finch said that MinterEllison deliberately misled the court. However, that is a serious allegation, and Ms Finch has simply not provided appropriate evidence for the court to accept it. In the absence of appropriate evidence, the court can only conclude that the errors were unintentional, as most errors are.
Ms Finch also said in the chronology that MinterEllison’s conduct in relation to three incorrect documents was potentially criminal, because it involved contempt of court and breach of their oaths. This is an even more serious allegation, which, again, Ms Finch has not provided appropriate evidence to prove. In the absence of such evidence, the court can only proceed in this application on the basis that MinterEllison’s conduct was not criminal.
The fundamental point, however, is that MinterEllison filing three incorrect documents does not discharge the very high burden Pagone J referred to in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791. It will be recalled that Pagone J said at paragraph 9 of that case that:
The test to be applied in determining whether to exercise the extraordinary jurisdiction to restrain legal practitioners from acting on behalf of their clients against a party who was not a previous client is “whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required” that they be restrained: Grimwade [v Meagher [1995] 1 VR 446] at 452 (emphasis added [by Pagone J]); see also Dealer at [37]. It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as “extraordinary and protective” (Woodgate v Leonard [2007] NSWSC 495 (Woodgate v Leonard) at [37]), of an “exceptional nature” (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30]) and to be applied only in a “clear” case (Bransdon v Davis & Gilbert (2007) 37 Fam LR 555; 212 FLR 28; [2007] FamCA 579 at [70]): …
MinterEllison’s conduct in relation to the three documents, on the evidence, would not lead a fair-minded, reasonably informed member of the public to conclude that the proper administration of justice required that they be restrained from acting for the respondents. The fair-minded, reasonably informed member of the public would conclude that MinterEllison made a mistake, which Ms Finch was well able to correct, and did.
The chronology continues for another 55 pages. However, Ms Finch did not take the court to any particular aspect of it. There does not appear to be anything additional in that chronology that requires my comment. It was Ms Finch’s responsibility to clearly and concisely state exactly what her allegation was and when and where the relevant circumstances arose, as well as provide actual evidence of them as opposed to bare assertions. She did not do so.
Returning to Ms Finch’s written submissions filed on 8 November 2022, at paragraph 6 of the section headed grounds of application, she refers to attachment 4 to those submissions, which is her outline of submissions filed in VID243/16. That was the proceeding before Pagone J. Ms Finch did not draw the court’s attention to any particular aspect of those submissions. The submissions largely concern the “three misleading documents”. They have already been addressed.
Then, in Ms Finch’s written submissions filed on 8 November 2022, at paragraph 6 of the section headed grounds of application, she refers to attachment 5 to those submissions, which is extracts from the Victorian Bar Rules 2009. Ms Finch seems to be alleging that Mr Felman KC has breached each of the rules she has extracted. Ms Finch did not specify exactly how or when or where Mr Felman KC is alleged to have breached each of those rules. The court is unable to deal with allegations that are not made clearly and concisely, and with proper particulars.
In Ms Finch’s written submissions filed on 8 November 2022, at paragraph 7, she refers to attachment 6 to those submissions, which is another chronology. It is 16 pages long and deals with the period 30 May 2016 to 5 August 2022. Again, Ms Finch did not draw the court’s attention to any particular entry in this chronology, or explain how it supported her case. A lot of it seems to be directed to the recusal application made to Deputy Chief Judge Mercuri. Without a submission that properly focusses on the issues, the court is unable to understand how attachment 6 is connected to the present application.
At paragraphs 8 to 13 of section 2 of her written submissions filed on 8 November 2022, Ms Finch said she was involved in another case in an unspecified court which she said she could not disclose the details of because it was private and confidential, save that it came about in 2021. It was not entirely clear, but Ms Finch seemed to say that MinterEllison was acting in that case, against her, without disclosing their involvement. She said that a letter dated 6 September 2021 that she received, not on MinterEllison’s letterhead, but with their reference at the foot of the page, was illegal and fraudulent because it should have been on letterhead.
Ms Finch said also said that, on 15 December 2021, she emailed a person on the other side of the confidential case, and immediately received an automatic out of office reply from Ms Prpich of MinterEllison. Ms Finch seemed to suggest that it was improper for MinterEllison to act in the present matter, and use private and confidential information about her from the other case, and vice versa.
Ms Finch did not file an affidavit with her submissions filed on 8 November 2022 (apart from the affidavit sworn on 2 June 2016 in VID243/2016), even though the orders made on 14 October 2022 permitted her to do so. However, on 5 December 2022, she did file an affidavit sworn or affirmed on 5 December 2022. It said that what she had said in her submissions filed on 8 November 2022 and the attachments thereto was true.
However, the evidence in support of the allegations about the other proceeding, and the allegations themselves, were too vague, as the evidence stood on 8 November 2022, for the court to act on them.
FURTHER WRITTEN SUBMISSIONS
MinterEllison filed its submissions on 14 November 2022, opposing the restraint application. MinterEllison basically said that Ms Finch had failed to establish any proper basis for a restraint on them acting for the respondents, and that Ms Finch’s material was unclear.
On 5 December 2022, Ms Finch filed submissions in reply and an affidavit in support. The affidavit said that everything in her written submissions was true and correct.
In her written submissions dated 5 December 2022, Ms Finch noted at paragraph 2 on page 5 that the respondents’ submissions had been prepared by Ms Stojanova of counsel, and not by Mr Felman KC. Ms Finch said that Mr Felman KC removing himself from the proceeding, on the basis that continuing to act was unethical, was in stark distinction to MinterEllison continuing to act. However, there was no evidence about why Mr Felman KC was not briefed in the restraint application. It may simply have been because he was otherwise engaged. This circumstance does not advance the matter.
In paragraphs 3 to 5 on page 5 of her submissions filed on 5 December 2022, Ms Finch reiterated that MinterEllison should cease acting immediately, before the restraint application was heard and determined. This point was discussed above.
In paragraphs 6 to 8 of her written submissions filed on 5 December 2022, Ms Finch submitted that Ms Stojanova should immediately cease acting, because she had been briefed by MinterEllison, who should immediately cease acting, and the court should have no regard to the submissions prepared by Ms Stojanova, because she had been briefed by MinterEllison. As discussed above, legal practitioners are not obliged to cease acting, prior to a judicial determination in a restraint application, just because unsubstantiated allegations are made against them.
In paragraph 3 on page 7 of her written submissions filed on 5 December 2022, Ms Finch noted that MinterEllison had not filed an affidavit in support of its written submissions. She said, therefore, the written submissions should be struck out as hearsay. That does not follow. The submissions filed by MinterEllison were in the nature of legal argument based on uncontested facts. They did not need to be supported by affidavit.
In paragraph 4 on page 7 of her written submissions filed on 5 December 2022, Ms Finch said that MinterEllison’s submissions did not deny the specific allegations she had made and were thereby deemed to have admitted them. That is not correct. The submissions filed by MinterEllison note that Ms Finch had made numerous irrelevant allegations. The submissions then argue, in effect, that even if the basic facts alleged by Ms Finch are true, they do not warrant the restraining order that she seeks. That is not an admission that the facts are true, but an argument that they are insufficient. Ms Finch referred to r.16.07 of the Federal Court Rules 2011. That rule does not apply to the present situation. It only applies to pleadings.
In paragraphs 11 and 12 on page 9 of her written submissions filed on 5 December 2022, Ms Finch said that MinterEllison’s submissions challenged the findings of a superior authority, being Pagone J’s finding in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 at [6], that her allegations were of a serious kind. It is true that Pagone J said that Ms Finch’s allegations were of “a serious kind”. However, his Honour did not say that any conduct of a serious kind had actually occurred. He only said that the allegations were serious.
In paragraph 12 on page 9 of her written submissions dated 5 December 2022, Ms Finch also referred to a decision of Garde J. However, Ms Finch did not provide a citation for that decision. My associates and I have searched extensively but have been unable to find the decision Ms Finch referred to. I therefore cannot take it into account.
In paragraph 14 on page 9 of her written submissions dated 5 December 2022, Ms Finch noted that MinterEllison and Ms Prpich were involved in previous proceedings prior to the Federal Court proceedings and thereafter, MinterEllison, Ms Prpich, Mr Avallone and Mr Felman KC were all involved in the Federal Court proceedings. Ms Finch said that they should all have stepped down, because of the reliance on the misleading and deceptive material. However, as discussed above, there is no reason to believe that was any more than an innocent mistake. It did not require any legal practitioners to step down.
In paragraphs 15 and following on page 10 of her written submissions dated 5 December 2022, Ms Finch said that MinterEllison and Ms Prpich had an association with the solicitors acting for the defendant in another proceeding (“the other proceeding”). Ms Finch said that the circumstances were sinister. However, she had not provided sufficient information to this point to establish that there was anything untoward in MinterEllison and Ms Prpich having an association with some other solicitors in another proceeding.
Ms Finch then went on in her written submissions dated 5 December 2022 to refer to some legal letters which she implied were justification for MinterEllison being restrained from acting for the respondents in the present matter. However, she did not provide copies of those letters to the court. Her argument on this point is unclear and I am unable to deal with it.
Ms Finch then said that MinterEllison had disclosed a confidential settlement of a costs dispute. However, she did not provide the necessary details or appropriate evidence to this court. I have been unable to assess whether this happened or not. I cannot treat Ms Finch’s bare assertion as establishing her claim. In any event, it is possibly the same event discussed below.
Ms Finch then said that MinterEllison “are possibly still acting” for the defendant, or a connected insurer, in the other proceeding. Ms Finch asserted that MinterEllison are attempting to assist the lawyers in the other proceeding to hurt her in that proceeding, or the other lawyers are assisting MinterEllsion to hurt her in this proceeding, by sharing confidential information. Ms Finch has not identified any confidential information that has been, or might have been, shared. I am not able to accept her bare assertions in this regard.
In paragraph 6 on page 18 of her written submissions dated 5 December 2022, Ms Finch referred to Western Australia v Ward (1997) 76 FCR 492 at 498 where Hill and Sundberg JJ said:
Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information, and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher. The present case is only another example of situations in which the “integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408. It is a serious matter to prevent a party from retaining its chosen lawyer: Grimwade v Meagher. But as those cases illustrate, particular circumstances may require some modification of the public interest in the ability of a litigant to have a lawyer of its choice.
Ward was a native title case, where orders were made for certain evidence to be given only in the presence of lawyers of a particular gender. It has no particular application to the facts of the present case, apart from setting out points of general principle. Ms Finch has not, to this point, demonstrated that any of the points of general principle apply to the present case.
In paragraph 7 on page 18 of her written submissions dated 5 December 2022, Ms Finch asserted that MinterEllsion were not to be trusted, and should be restrained from acting for the respondents for that reason. However, Ms Finch has not established that MinterEllison is not to be trusted. Her assertions fall short of material on which the court could act.
In paragraphs 9 and 10 on page 19 of her written submissions dated 5 December 2022, Ms Finch argued that unspecified legal practitioners may be called as witnesses in the proceeding, and should be restrained from acting for that reason. Ms Finch relied on Makripoulias v Arhontovasilis [2022] VSC 53 at paragraph 17, where Moore J said:
Counsel for Ms Makripoulias accepted that Mr Koutsoupias may be called as a witness in the hearing of the application for revocation of probate. In my view, given the grounds for revocation, that scenario is overwhelmingly likely. Before examining the basis of this conclusion and my further conclusion that Mr Koutsoupias will be a material witness about controversial matters in the proceeding, it is necessary to set out what counsel for Ms Arhontovasilis contended was the most significant conflict between Mr Koutsoupias’ own interests and those of his client which was said to warrant the exercise of the Court’s inherent jurisdiction to restrain Mr Koutsoupias from acting.
Ms Finch did not elaborate on how or why any of the legal practitioners in the present matter could be called as witnesses in the substantive proceeding, which is a claim under the Disability Discrimination Act 1992. It is not self-evident that there would be any proper basis for calling as witnesses any of the legal practitioners in the final hearing of the substantive matter. I do not accept that this is a proper basis for restraining MinterEllison, or Mark Felman KC or any other barrister engaged by MinterEllison from acting for the respondents.
In paragraph 11 and following on page 19 of her written submissions dated 5 December 2022, Ms Finch asserted that she was “in severe danger” of the misuse of private and confidential privileged information. This allegation seemed to be based on MinterEllisons’ previous involvement in this proceeding before it was transferred from the Federal Court, and MinterEllisons’ possible involvement in the other proceeding.
In support of this point, Ms Finch referred to the decision of Gillard J in Yunghanns v Elfic. Ms Finch did not provide a citation for that case, but she seems to have meant Yunghanns v Elfic Ltd (formerly known as Elders Finance & Investment Co Ltd) (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998). Ms Finch said Gillard J referred to the “getting to know you” factors. His Honour said at page 10:
The authorities establish that there are a number of factors which must be considered and weighed on an application such as the present, namely -
(i)the right of a solicitor to act for any client and the right of all members of the community to retain a solicitor of their own choice;
(ii)the right of a client to the maintenance of all confidential information obtained by the solicitor during the course of the retainer, which right continues until the client expressly or impliedly consents to the discharge of the obligation of confidence;
(iii)that as a general rule it is necessary to identify and establish that there was some confidential information provided (see Bricheno v Thorp (1833) 2 Cr and M 183, 149 ER 725.) But the degree of particularity of the confidential information must depend upon all the circumstances. Often it cannot be identified for fear of disclosure. In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked. In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the "getting to know you" factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.
(iv)That a solicitor must, consistent with his retainer, act in the best interest of his client which means not only exercising skill but also putting at his client's disposal all relevant knowledge and if a solicitor is in a position where he is unable to reveal all his knowledge to a client he should not act for him. See Spector v Ageda (1973) 1 Ch 30 at p48. This must be especially the position where the solicitor has acted for two clients in relation to one transaction and then thereafter acts for one against the other in relation to matters arising out of the same transaction.
Gillard J in Yunghanns was dealing with a case where the solicitor in question had previously acted for Mr Yunghanns and was now engaged to act against him. That is obviously not the present case. In the present case, MinterEllison had previously acted against Ms Finch and are still engaged to act against her. The principles on which Gillard J relied concerned the continuing obligations of a solicitor who a client has previously retained. They do not concern the present circumstance, where MinterEllison has never acted for Ms Finch.
Ms Finch then referred to the decision of Cronin J in Grattan v Grattan (No 3). Again, Ms Finch did not provide a citation. However, she seems to have meant Grattan & Grattan and Anor (No. 3) [2014] FamCA 839. Cronin J said in that case:
36.The power of the Court will be exercised where a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client (see Spincode Pty v Look Software [2001] VSCA 248 and Grimwade v Meagher [1995] 1 VR 446).
37.The test involving the fictional member of the public is an objective test based on what the general public could expect of the administration of justice (op cit Grimwade v Meagher).
38.Whilst litigants should not be deprived of their choice of representation without good cause and the power of the Court should be exercised very cautiously, the public’s interest in the administration of justice must override that right of legal representation. It is not just the administration of justice but also the public’s confidence in the legal profession and, if that is seen to be undermined, the Court should intervene.
Grattan was a matrimonial proceeding in which the wife sought to restrain a particular solicitor from acting for the husband and a company. The solicitor had previously acted for the company and the wife’s parents and siblings, and had attended various social events with the husband and the wife. The husband gave an undertaking largely in terms of the order sought by the wife. Gillard J refused the injunction in respect of the company, largely because the wife had delayed in bringing the application. Grattan does not have any direct application to the present matter.
THE HEARING ON 20 DECEMBER 2022
At the hearing on 20 December 2022, Ms Finch appeared in person by telephone (because she had not organised a camera so as to be able to use Microsoft Teams) and Ms Stojanova of counsel appeared on behalf of the respondents by audio only (to maintain parity).
Ms Finch reiterated the matters she had raised in her written submissions. Ms Stojanova submitted that Ms Finch had not established a proper basis for a restraint in this proceeding. In reply, Ms Finch emphasised the out of office email she had received from Ms Prpich on 15 December 2021. The respondents had not directly dealt with that issue in their written submissions. Ultimately, the matter was adjourned part-heard to 8 March 2023 at 2.15pm for further hearing, with additional orders that:
2.By 4pm on 20 January 2023, the respondent file and serve an affidavit addressing the email sent by Ms Prpich on 15 December 2021 at 5.42pm to the applicant and specifying what email it was in response to and giving any additional evidence sought to be relied upon in relation to the applicant’s allegation that MinterEllison has disclosed information obtained in this proceeding to other solicitors for the purpose of another proceeding and her allegation that MinterEllison has an improper association with the solicitors on the record and/or the defendants in the other proceeding.
3.By 4pm on 3 February 2023, the applicant file and serve any affidavit in reply, which may also provide further information generally about her allegations that MinterEllison has engaged in improper conduct in relation to the other proceeding.
4.By 4pm on 17 February 2023, the respondent file and serve any affidavit in reply.
AND THE COURT NOTES THAT:
A.In the “other proceeding” the applicant has a pseudonym and it is anticipated that any confidential evidence given in relation to the other proceeding will be the subject of a suppression order.
JANUARY TO MARCH AFFIDAVITS
vi.the first word in the eleventh line;
b.in paragraph 6:
i.the fifth, sixth, ninth and tenth words in the second line;
ii.the sixth and seventh words in the third line;
iii.the sixth and seventh words in the fifth line;
iv.the fifth, sixth, eleventh and twelfth words in the sixth line;
c.in paragraph 7:
i.the first six, eleventh and twelfth words in the second line;
ii.the seventh, eighth, eleventh and twelfth words in the third line;
iii.the third, fourth, eleventh and twelfth words in the fifth line;
d.in paragraph 8:
i.the last word in the first line;
ii.the tenth and eleventh words in the second line;
iii.the last word in the third line;
iv.the first word in the sixth line;
v.the ninth and tenth words in the eighth line;
vi.the fifth word in the ninth line;
vii.the third, fourth, ninth and tenth words in the tenth line; and
viii.the ninth and tenth words in the eleventh line.
11.The affidavit sworn by Jo-Anne Finch on 9 July 2023:
a.in the table at paragraph 3:
i.the third line in the sixth column of row (a);ii.the words contained in brackets in the sixth column of row (f);
iii.the last two words in the sixth column of row (h);
iv.the last two words in the second line in the sixth column of row (i)
b.*in footnote 8:
i.the tenth and eleventh words of the third line;
ii.the first eight words of the fourth line;
iii.the last word of the seventh line;
iv.the first word of the eighth line;
v.the last four words of the ninth line;
vi.the tenth line;
vii.the eleventh and twelfth words of the eleventh line;*
c.in paragraph 4:
i.the second to
fifth* fifteenth* words in the fourth line;ii.
fromthe *first nine* word*s*“my” in the fourth line until the word “pseudonyms”in the fifth line;
d.in paragraph 5:
i.the last word in the fourth line;
ii.the first, third and fourth words in the fifth line;
iii.the eighth and ninth words in the tenth line;
e.*in paragraph 9:
i.the fifth to eighth words in the seventh line;
ii.the third to seventh words in the ninth line;
f.in the subtitle in bold above paragraph 14, the seventh and eighth words in the second line;
g.in paragraph 14:
i.the first, second, and fifth to ninth words in the fifth line;
ii.the words contained within brackets starting in the sixth line and ending in the ninth line;
iii.the second, third, fourth, *sixth, seventh eighth*and last four words in the tenth line;
h.in paragraph 18:
i.the last word in the second line;
ii.the first and last words in the third line;
iii.the first word in the fourth line;
iv.the last two words in the fifth line;
v.the start of the sixth line to the word “falling” in the eighth line;
vi.the fourth and fifth words in the ninth line;
i.in the subtitle in bold above paragraph 24, the last two words in the first line;
j.in paragraph 24:
i.the fifth and sixth words in the second line;
ii.the sixth, seventh and last five words in the fourth line;
iii.the ninth and tenth words in the fifth line;
iv.the eleventh and twelfth words in the quote in bold beginning in the ninth line;
k.in paragraph 25:
i.the eleventh word in the first line;
ii.in subparagraph 25(a), the fourth word;
iii.in subparagraph 25(d):
A.the eighth word in the first line;
B.the
last twelve*fourth to seventh and twelfth to thirteenth* words in the fourth line;
iv.in subparagraph 25(e):
A.the ninth and twelfth words in the first line;
B.the seventh word in the third line;
C.
from the word “serious” in the fifth line to the word “etc.” in the sixth line;D.*the ninth to fourteenth words in the fifth line;
E.the twelfth to fourteenth words in the sixth line;*
v.in subparagraph 25(f):
A.the twelfth word in the first line;
B.the first word in the second line;
C.the fifth word in the fourth line;
l.in the subtitle in bold above paragraph 27, the last
three*two* words in the second line;m.in paragraph 27:
i.the last word in the second line;
ii.the first word in the third line;
iii.the fifth and sixth words in the tenth line;
n.in the subtitle in bold above paragraph 28, the first two words in the second line;
o.in paragraph 28:
i.the fifth and sixth words in the first line;
ii.the eleventh to fourteenth words in the eighth line;
iii.from the word “involving” in the ninth line to the end of paragraph 28;
p.in the subtitle in bold above paragraph 29, the twelfth and thirteenth words in the second line;
q.in paragraph 29:
i.the *last three* words contained in brackets and the
thirteenth,fourteenth and fifteenth words in the second line;ii.the eleventh, twelfth and thirteenth words in the sixth line;
iii.*the seventh line;*
iv.in subparagraph 29(a), the tenth, eleventh and twelfth words in the first line;
v.in subparagraph 29(b), the ninth to twelfth words in the first line;
vi.in subparagraph 29(c);
A.the ninth to twelfth words in the first line;
B.the sixth, seventh and eighth words in the second line;
C.the last three words in the sixth line;
D.from the first word in the seventh line to the end of paragraph 29(c);
vii.in subparagraph 29(d):
A.the ninth and tenth words in the first line;
B.from the word “cutting” in the second line to the end of paragraph 29(d);
viii.in subparagraph 29(e):
A.the
ninth and tenth*eighth to twelfth* words in the first line;B.the *first*
eighthand ninth words in the second line;
ix.in subparagraph 29(f):
A.the tenth and eleventh word
sin the second line;B.the tenth and eleventh word
sin the third line;C.the fifth and tenth *to thirteenth* words in the fourth line;
x.in subparagraph 29(g):
A.the ninth and last words in the second line;
B.the first
five*and fifth* words in the third line;C.the *eighth* and last
10*three* words in the fourth line;D.the first four words in the fifth line;
E.*the first four words in the fifth line;*
xi.in subparagraph 29(h):
A.the last word in the second line;
B.the
third*fifth* to ninth words in the third line;C.the twelfth word in the fourth line;
D.the
first nine*third to ninth* words in the fifth line;
r.in paragraph 30:
i.from the word “upon” to the word “and” in the first line;
ii.*in* the quote in bold which starts following the word “defence”*:in the third line and goes to the end of paragraph 30;A.the last word in the first line;
B.the last nine words of the third line;
C.the first six words of the fourth line;
D.the first and eighth to tenth words of the fifth line;
E.the sixth, thirteenth and fourteenth words of the seventh line;
F.the first nine words of the eighth line;
G.the eleventh word of the ninth line;
s.in the subtitle in bold above paragraph 31:
i.the last three words in the first line;
ii.the first word in the second line;
t.in paragraph 31:
i.the seventh, eighth and last four words in the first line;
ii.the first six words in the second line;
iii.the seventh to eleventh words in the fourth line;
u.in the subtitle in bold above paragraph 32
,*:i.the seventh to ninth words in the first line;
ii.the *first two and the last three words of the* second line;
v.*in* paragraph 32
including sub-paragraphs;*:i.the fifth to seventeenth words in the first line;
ii.the first seven and the last two words in the second line;
iii.the tenth and eleventh words of the third line;
iv.subparagraph 32(a);
v.in subparagraph 32(b):
A.the second to seventh and the last three words of the first line;
B.the first five words of the second line;
C.the fourth and sixteenth words of the third line;
D.the first, second, ninth and tenth words of the fourth line;
E.the ninth, tenth, thirteenth and fourteenth words of the fifth line;
F.the third and ninth to twelfth words of the seventh line;
G.the second word of the eighth line;
H.the thirteenth to fifteenth words of the ninth line;
w.in paragraph 33:
i.the first two and sixth to ninth words in the third line;
ii.*the last two words of the sixth line;*
iii.the last word in the eighth line;
iv.the first and last three words in the ninth line;
v.the first word in the tenth line;
vi.the words contained in the brackets beginning in the tenth line and ending in the eleventh line;
vii.the thirteenth and fourteenth words in the nineteenth line;
viii.*the last seven words of the twentieth line;
ix.the twenty-first line;
x.the twenty-second line;*
x.in the subtitle in bold above paragraph 34:
i.the last
threewordsin the first line;ii.the first word in the second line;
y.in paragraph 34:
i.the sixth to fifteenth words in the first line;
ii.the sixth to tenth words in the third line;
iii.the thirteenth and fourteenth words in the seventh line;
iv.*in subparagraph 34(c), the second, eighth and ninth words of the first line;*
z.in the subtitle in bold above paragraph 36, the last three words;
aa.in paragraph 36:
i.the third, fourth and fifth words in the second line;
ii.subparagraphs 36(a), (b) and (c) including the image in subparagraph 36(c); and
bb.in subparagraph 37(a), the first
seven*four* words in the third line.
12.The applicant’s written submissions filed on 8 August 2023:
a.in the table of contents on the first page:
i.in section 5, the seventh and eighth words of the “details” column;
ii.in the subsection “materials attached hereto”, the row beginning with the number “1”;
b.in the table beginning on page 2:
i.the last two words of the sixth column of row (f);
ii.the last two words of the sixth column of row (h);
iii.the last two words of the second line of row (i);
c.in the subtitle underlined and in bold above paragraph 29, the last
three*two* words;d.in the subtitle in bold above paragraph 30, the fourth and fifth words;
e.in paragraph 30:
i.the
thirteenth*fifteenth* word in the first line to thelast*ninth* word in theeighteenth*twenty-first* line;
ii.the eleventh word in the nineteenth line;
iii.the first word in the twentieth line;
iv.the first two words in the twenty-first line;v.the eighth to eleventh words in the twenty-fifth line;
vi.the tenth and eleventh words in the twenty-eighth line;
vii.*the last eleven words of the twenty-ninth line;*
viii.the
ninth word to fourteenth words inthirtieth line *to the end of paragraph 30*;
ix.the word “whilst” in the thirty-first line to the end of paragraph 30;
f.in the subtitle in bold above paragraph 31, the
last six*ninth and tenth* words;g.in paragraph 31, the first word in the fifth line;
h.in the subtitle in bold above paragraph 32, the second, third and last two words of the first line;
i.in paragraph 32:
i.the fourth word in the sixth line to the word “occurred” in the twentieth line;
ii.the start of subparagraph 32(a) to the end of subparagraph 32(k)(ii);iii.*in subparagraph 32(a):
A.the last two words of the first line;
B.the first, second and twelfth words of the third line;
C.the fourth, fifth, tenth and eleventh words of the fourth line;
D.the seventh, eighth, fifteenth and sixteenth words of the fifth line;
E.the sixth line;
F.the first two words of the seventh line;
G.the tenth word of the ninth line;
H.the sixth to eleventh words of the eleventh line;
iv.in subparagraph 32(b), from the ninth word in the first line to the end of the subparagraph;
v.in subparagraph 32(c), from the ninth word in the first line to the end of the subparagraph;
vi.in subparagraph 32(d), from the ninth word in the first line to the end of the subparagraph;
vii.in subparagraph 32(e), from the eighth word in the first line to the end of the subparagraph;
viii.in subparagraph 32(f), from the eighth word in the first line to the end of the subparagraph;
ix.in subparagraph 32(g), from the eighth word in the first line to the end of the subparagraph;
x.in subparagraph 32(h), from the eighth word in the first line to the end of the subparagraph;
xi.subparagraphs 32(i)(i) and 32(i)(ii);
xii.in subparagraph 32(j), from the twelfth word in the first line to the end of the subparagraph;
xiii.in subparagraph 32(k):
A.in subparagraph 32(k)(i), from the fourth word in the first line to the end of the subparagraph;
B.in subparagraph 32(k)(ii), from the fourth word in the first line to the end of the subparagraph;*
j.in paragraph 33, the thirteenth word in the fourth line to the seventh word in the eighth line;
k.in paragraph 34:
i.the ninth word in the first line;
ii.the fifth and last two words in the second line;
iii.the thirteenth word in the fifth line;
iv.the seventh word in the ninth line to the seventh word of the eleventh line;
l.in paragraph 35:
i.the last five words in the second line;
ii.the
last*first* word in thefifth*sixth* line to thesixth*fifth* word in the ninth line;
m.in the subtitle in bold above paragraph 36, the second and third words in the second line;
n.in paragraph 36:
i.in subparagraph 36(b):
A.the seventh and eighth words in the second line;
B.the ninth and tenth words in the sixth line;
C.the fourth word in the thirteenth line;
D.the eighth and ninth words of the nineteenth line;
ii.in subparagraph 36(d)*:*
A.the
last three*twelfth and thirteenth* words of the first line;B.the fourteenth and fifteenth words of the second line;
C.the ninth and tenth words of the third line;
D.the
eighth to*ninth and* thirteenth words of the fourth line;E.the seventh word of the sixth line;
F.the third word of the eighth line to the word “etc” in the
ninth*eighth* line;G.*the tenth, eleventh and twelfth words of the ninth line;*
H.the word “who” in the fifteenth line to the end of subparagraph 36(d);I.*the second, fourth, thirteenth and fourteenth words of the sixteenth line;*
iii.in subparagraph 36(e)(iv):
A.the eighth and ninth words in the eighth line;
B.the last two words in the tenth line;
C.the last four words in the sixteenth line;
D.the last
six*ten* words in the seventeenth line;E.the second *to fourth* word*s*of the twenty-second line;
F.the fourth *to sixth* word*s* in the twenty-third line;
G.*the seventh to tenth words of the twenty-fourth line;
H.the eighth to
eleventh*thirteenth* words in the twenty-sixth line;I.*the fifth and sixth words in the twenty-seventh line;*
iv.in subparagraph 36(e)(v)
,*:*A.*the last two word of the second line;*
B.the
tenth*fourth* word in the third line to the second word in the third line;
v.in subparagraph 36(e)(vi):
A.the fifth and sixth words in the first line;
B.the last word in the third line;
C.the
fourth*first* word in thefirst*fourth* line;D.*the thirteenth word of the fifth line;*
E.the third and fourth words in the seventh line;
o.in the subtitle in bold above paragraph 38, the
last*ten* word*s* in the first line to the seventh word in the second line;p.in paragraph 38:
i.the eighth and ninth words in *the first line of* subparagraph 38(b);
ii.*in subparagraph 38(b), the first word of the second line;*
iii.in subparagraph 38(d):
A.the ninth to twelfth words in the first line;
B.the
fifth, sixth and last five words in thesecond line;C.*the last word of the third line;*
iv.in subparagraph 38(e):
A.the
ninth*sixth* to twelfth words in the first line;B.the twelfth *and thirteenth* word*s* in the second line;
C.the
fifth*first* toeighth*seventh* words in the third line;D.the first seven words in the fourth line;
E.the fifth to ninth *and twelfth* words in the fifth line;
F.*the sixth line;*
v.in subparagraph 38(f):
A.the tenth *and thirteenth* word*s* in the second line*;*
to the fourth word in the third line;B.the last word in the fourth line;
C.the first word in the fifth line;
vi.in subparagraph 38(g):
A.the tenth word in the first line;
B.*the last word in the second line;*
C.
the fourth to eleventh words inthe third line;D.*the last word in the fourth line;*
vii.in subparagraph 38(h), the eleventh word in the first line to the first word in the second line;
viii.in subparagraph 38(i):
A.*the first four and the last words of the second line;
B.the first *thirteen* word*s* in the third line
to the fourth word in the fourth line;C.*the seventh to eleventh words in the fifth line;*
D.the seventh to tenth words of the sixth line;
E.
the seventh to tenth words in the in the seventhline;F.*the first, second, thirteenth and fourteenth words in the twelfth line*
G.
the first word in the thirteenth line to the ninth word in the fourteenth line;H.the fourth to seventh words in the
sixteenth*fifteenth* line;
ix.in subparagraph 38(j)
,*:*A.the second to
last*tenth* words in the first line;B.*the last two words of the fifth line;*
x.in subparagraph 38(k), *the first 10 words of* the second line;
xi.in subparagraph 38(l), the first word in the second line to the end of the subparagraph;
xii.in subparagraph 38(m)
,*:*A.the
seventh*eighth and fourteenth* word*s* in the first lineto the end of the subparagraph;B.*the last nine words in the second line;
C.the first and fifth to tenth words in the fourth line;
D.the first, thirteenth and fourteenth words in the sixth line;
E.the last six words in the fifteenth line;
xiii.*in* subparagraph 38(n)
;*:A.the fifteenth and sixteenth words in the first line;
B.the third and fourth words in the second line;
xiv.*in* subparagraph 38(o)
;*:A.the eighth and ninth words in the second line;
B.the seventh to tenth and sixteenth words in the third line;
C.the first six words in the fourth line;
D.the third, fourth, thirteen and fourteenth words in the sixth line;
E.the seventh and eighth words in the seventh line;
F.the third to tenth words in the eighth line;
G.the fourth and fifth words in the ninth line;
H.the first seven words in the tenth line;
I.the last six words in the twelfth line;
J.the first word of the thirteenth line to the end of the subparagraph;
xv.in subparagraph 38(p);
A.the third to
sixth*eighth* words in the first line;B.the eleventh word in the third line;
C.the last two words in the fourth line;
D.the fifth and sixth words in the
seventh*sixth* line;E.*the tenth word in the seventh line;*
q.in paragraph 40:
i.the
third*second* andfourth*third* words in the second line;ii.the sixth word in the third line;
r.in paragraph 41:
i.the last two word
sin the first line;ii.the ninth to twelfth words in the second line;
iii.the ninth word in the fourth line;
iv.the second word of the fifth line;
s.in paragraph 42, the first word in the second line to the
fifth*last* word in the third line;t.in paragraph 43:
i.the twelfth word in the first line;
ii.the fifth *to ninth* word*s* in the second line
to the end of paragraph 43;iii.*the first seven words in the third line;
iv.the last five words in the fourth line;
v.the first two words in the fifth line;
vi.the sixth, seventh and eleventh words in the sixth line;*
u.in paragraph 44
,*:*i.the sixth
and last four*to fourteenth* words in the first line;ii.the fourth and fifth words in the fourth line;
iii.the second and third words in the seventh line;
v.in paragraph 45, the fifth and sixth words in the eighth line;
w.in paragraph 46:
i.the *eighth to* twelfth word*s* in the second line;
ii.the
tenth*sixth* to thirteenth words in the third line;iii.*the fifth and sixth words in the fourth line*
iv.the fourth *to sixth* word*s* in the fifth line;
v.the fifth to seventh words in the eighth line;
x.*in paragraph 47:
i.the first, fifteenth and sixteenth words in the second line;
ii.the last word in the third line;
iii.the first six words in the fourth line;*
y.in paragraph 48, the ninth and tenth words in the fifth line;
z.in paragraph 49, the first five words in the fourth line;
aa.*in paragraph 50:
i.the last word of the fifth line;
ii.the first word of the sixth line;*
bb.in paragraph 51, the ninth
andtenth*to twelfth* words of the fifth line;cc.in paragraph 52:
i.in subparagraph 52(a):
A.the eighth to eleventh words in the first line;
B.the tenth and eleventh words in the second line
:*;C.*the second and third words in the third line;*
ii.in subparagraph 52(b):
A.the first
, second, seventh and eighth*to ninth* words in the first line;B.the
sixth and seventh*the second to seventh* words in the second line;
dd.in paragraph 65:
i.the
last three*fourth and fifth* words in subparagraph 65(a);ii.the
last three*third and fourth* words in subparagraph 659*(*f);
ee.in paragraph 66, the seventh to tenth and last two words in the second line;
ff.in paragraph 67, the third, fourth and sixth to
ninth*fifteenth* words in the second line;gg.in paragraph 68:
i.the ninth to twelfth words in the second line;
ii.the first two words in the third line;
hh.in paragraph 73, subparagraph (b):
i.the second and third words in the fourth line;
ii.the eleventh to fourteenth words in the seventh line;
ii.in paragraph 75:
i.the first two words in the twelfth line;
ii.the last word in the thirteenth line;*
jj.footnote 28;
kk.footnote 29*;*
ll.in schedule B:
i.on page 45 of the document
,*:*A.the
fourteenth*fifteenth and sixteenth* word*s* in the fifth lineto the end of paragraph 20; andB.*the fourth to seventh words in the sixth line;
C.the tenth word in the seventh line to the thirteenth word in the tenth line;
D.the last three words in the eleventh line; and*
ii.the *ninth and tenth words of the* last sentence on page 48.
13.The respondent’s written submissions filed on 21 August 2023:
a.in subparagraph 7(b):
i.the fifth and sixth words in the third line;
ii.the ninth and tenth words in the fourth line;
b.in paragraph 9:
i.the last word in the third line;
ii.the first word in the fourth line;
c.in paragraph 32:
i.*the eighth word in the third line of subparagraph 32(1);*
ii.the fourth to
ninth*eighth* words in the fourth line of subparagraph 32(1);iii.the first and last words in the fourth line of subparagraph 32(2);
d.in paragraph 36:
i.the seventh and eighth words in the first line;
ii.the second to eighth words in the second line;
iii.the seventh and eight words in the third line;
iv.the seventh and eighth words in the fifth line;
v.the second word in the sixth line;
vi.the fourth*, fifth* and eighth words in the seventh line;
vii.the eighth words in the eighth line;
e.in paragraph 38:
i.the sixth word in the first line to the first word in the third line;
f.in the subtitle in bold above paragraph 39, the third, fourth and eleventh words;
g.in paragraph 39:
i.the
fifth andsixth *and seventh* words in the second line;ii.the second, tenth and eleventh words in the third line;
iii.the fifth word in the fourth line;
iv.the fifth and sixth words in the
seventh*fifth* line;
h.in paragraph 40:
i.the eighth and ninth words in the first line;
ii.the fifth and sixth words in the fourth line;
i.in paragraph 41, the third word in the fourth line;
j.in paragraph 43, the eighth word in the fifth line;
k.in paragraph 45:
i.the seventh and eighth word in the second line;
ii.the last word in the fourth line;
iii.the first word in the fifth line;
iv.the fifth
andsixth*to ninth* words in subparagraph 45(a);v.the fifth and sixth words in subparagraph 45(b);
vi.the eighth and ninth words in subparagraph 45(c);
vii.in subparagraph 45(d):
A.the seventh and eight words in the first line;
B.the fifth and sixth words in the second line;
viii.in subparagraph 45(e):
A.the eighth, ninth and last words in the first line;
B.the first word in the second line;
l.in paragraph 46, the fourth and fifth words in the fourth line;
m.in paragraph 47:
i.the last four words in the first line;
ii.the first word of the second line;
iii.the last word of the third line;
iv.the first and fourth words in the fourth line;
n.in paragraph 48, eleventh and twelfth words in the fourth line;
o.in paragraph 49:
i.the fifth and sixth words in the third line;
ii.the fifth and sixth words in the fourth line;
iii.the eighth and ninth words in the seventh line;
iv.the seventh and eighth words in the eighth line;
p.in paragraph 50:
i.the fifth, sixth and last words in the second line;
ii.the first word in the third line;
q.in paragraph 51, the sixth, seventh and last words in the eighth line;
r.*in subparagraph 52(o), the last three words of the second line; and*
s.in paragraph 64, the fourth*, fifth and*
totwelfth words in thethird*second* line;
14.The applicant’s submissions filed on 28 August 2023:
a.in paragraph 21:
i.*in subparagraph 21(a)(i):*
A.the first *and fifth* word*s* in the second line
of subparagraph 21(a)(i);B.*the last word in the third line;*
ii.*in subparagraph 21(a)(ii):
A.the last word in the first line;
B.the tenth word in the second line;*
C.the first word in the third line
of subparagraph 21(a)(ii);
iii.*in subparagraph 21(a)(iii):
A.the eleventh to thirteenth words in the second line;
B.the fourth to sixth words in the third line;
iv.the fifth word in the second line of subparagraph 21(b)(i)
v.in subparagraph 21(b)(iii)*:*
A.the sixth, seventh and last words in the first line;
B.the last word in the second line;
b.in paragraph 36:
i.the seventh*,*
andeighth*, thirteenth and fourteenth* words in the fourth line;ii.the first word in the fifth line*;*
c.in paragraph 37:
i.the last *four* word*s* in the second line in subsection 37(d);
ii.in subparagraph 37(e):
A.the fifth*, thirteenth and fourteenth* word*s* in the third line;
B.the second word in the fourth line;
iii.the first word in the second line of subparagraph 37(f);
iv.in subparagraph 37(h):
A.the *seventh to* tenth word*s* in the third line;
B.the third and twelfth words in the fifth line;
v.in subparagraph 37(r):
A.*the eleventh word in the second line;*
B.the second word in the third line;
C.the fourth word in the fourth line;
D.the eighth word in the
eighth*seventh* line;
vi.the first word in the fourth line of subparagraph 37(s);
d.in paragraph 38, the
third and*first to* fourth words in the fourth line;e.in schedule B:
i.on page 22:
A.*in subparagraph (a):
i.the sixteenth and seventeenth words in the first line;
ii.the seventh to tenth words in the second line;*
iii.the *first* word
sin bold and within brackets in the third lineof point (a);
B.the last four lines of text on the page;C.*the thirteenth word in the fourth-last line;
D.the sixteenth word in the last line;*
ii.on page 23:
A.the seventh word in the first line of text;
B.the ninth word in the fourth line of text;
C.*under* the title in bold reading “confidentiality undertaking”
to the end of page 23;*:i.the first two words in the second line of text;
ii.the eighth and ninth words in the seventh line of text;
iii.the tenth and eleventh words in the eighth line of text;
iv.the last word in the ninth line of text;
v.the first word in the tenth line of text;*
iii.on page 24
,*:*A.the *seventeenth* word
“party”in theeighth*ninth* line of textto the word “proceeding” in the eleventh line of text;B.*the second last word of the tenth line of text;
C.the last word of the eleventh line of text;*
iv.on page 26:
A.*the fifth to sixteenth words in* the first
fivelinesof text;B.*the first ten words in the second line of text;
C.the first, second and fourth words in the third line of text;
D.the fourth to seventh and the tenth, eleventh and thirteenth words in the fourth line of text;
E.in* paragraph 3
;*:i.the fourth, ninth, tenth and twelfth words in the first line;
ii.ninth, tenth and nineteenth words in the second line;
iii.the first, second, tenth and eleventh words in the third line;
v.on page 27:
A.the fifth, sixth and thirteenth words in the
fourth*third* line of text;B.the tenth word in the fourth line of text;
C.the tenth, eleventh and last *three* words in the seventh line of text;
D.the first
eleven*four and the ninth and tenth* words in the eighth line of text;E.the third and fourth words in the tenth line of text;
F.the first, second and
last three*the fourteenth and fifteenth* words in the twelfth line of text;
vi.on page 28
,*:*A.the *thirteenth word
“MinterEllison”in thefourteenth*fifteenth* line of textto the word “regards” in the twenty-fifth line of text;B.*the fourth, fifth, seventh and eighth words in the nineteenth line of text;
C.the third to thirteenth words in the twentieth line of text;
D.the second last word in the twenty-fourth line of text;
vii.on page 30, the eleventh, twelfth, sixteenth and seventeenth words in the last line of paragraph 10;*
viii.on page 34, *in* paragraph 11
;*:A.the last two words in the first line;
B.the fifth to ninth words in the second line;
ix.on page 35:
A.the
tenth*seventh to tenth* word*s* in the second line in subparagraph 11(d);B.in subparagraph 11(e);
1.the
last three*sixteenth* wordsin the second line;2.the *sixth to* tenth word*s* in the third line;
C.the
last three*sixteenth* wordsin the first line in subparagraph 11(f);D.
the third and fourth linesin subparagraph 11(h);*:i.the last three words of the second line;
ii.the first word of the third line;
iii.the fourth and thirteenth of the fourth line;
E.
the third and fourth lines and the words in brackets in the seventh linein subparagraph 11(r);*:i.the sixth, seventh and thirteenth words in the second line;
ii.the twelfth word in the third line;
iii.the fifth word in the sixth line;
F.the
eleventh*twelfth* word in the third line in subparagraph 11(s);G.*in* paragraph 12
;*:i.the ninth word in the first line;
ii.the ninth to fourteenth words in the fourth line;
x.on page 36:
A.in paragraph 13, the second word in the second line;
B.in subparagraph 13(a):
1.the *seventh to seventeenth* words
contained in bracketsin the first, second and thirdlines;2.the *first nine and* last
two*three* words in the second line;3.*the second word in the third line;*
C.in subparagraph 13(b), the *fourth* to
tenth,eleventh,*and thirteenth*fourteenthand fifteenthwords in the first line;D.in paragraph 14, the second and third words in the second line;
E.in paragraph 15, the third and fourth words in the second line; and
F.in paragraph 16, the third and fourth words in the second line
;*.*
15.The applicant’s written submissions filed on 7 September 2023;
a.in the table beginning on page 2:
i.the last two words of the sixth column of row (f);
ii.the last two words of the sixth column of row (h);
iii.the last two words of the second line *of the sixth column* of row (i);
b.in subparagraph 23(e):
i.the third, fourth and
thirteenth*tenth to eleventh* words in the second line;ii.the
fourth*first four* word*s* in the third line of subparagraph 23(e)(iv);iii.in subparagraph 23(e)(v):
A.the seventh word in the third line;
B.the
fifth*second to fourth* word*s* in the fourth line;
iv.the second word in the second line in subparagraph 23(e)(vi);
v.in subparagraph 23(e)(viii):
A.the *seventh to* tenth word*s* in the
fourth*third* line;B.the fourth word in the fifth
word in the fifthline;C.the first word in the sixth line;
vi.in subparagraph 23(e)(xvii):
A.*the thirteenth word in the second line;*
B.the fourth word in the third line;
C.the eighth word in the fourth line;
D.the second word in the eighth line;
vii.the seventh word in the fourth line of subparagraph 23(e)(xviii);
c.in subparagraph 23(f):
i.the tenth word in the first line;
ii.the last *six* word*s* in the fifth line;
d.in subparagraph 23(g):
i.the sixth word in the second line;
ii.*the seventh word in the first line to the last word in the third line of* subparagraph 23(g)(i);
iii.in subparagraph 23(g)(ii):
A.the
last two*last eight* words in the first line;B.the *first* word
scontained in brackets in the second line;
e.in subparagraph 23(h), the sixth and seventh words in the second line;
f.in subparagraph 23(i), the seventh and eighth words in the second line;
g.*in subparagraph 23(j), the eighth and ninth words in the second line;*
h.in the subtitle in bold above paragraph 50:
i.the last two words in the first line;
ii.the seventh word in the second line;
i.in paragraph 51:
i.the tenth
and eleventh*to fifteenth* words in the second line;ii.the *first two and the* last two words in the third line;
iii.the seventh to tenth words in the fourth line;
j.in paragraph 61:
i.the thirteenth and fourteenth words in the first line;
ii.seventh and eighth words in the third line;
iii.the
last three*fifteenth and sixteenth* words in the fifth line;iv.the first word in the seventh line to the
tenth*twelfth* word in thetenth*twentieth* line;v.
the last word in the eleventh line;
vi.the second word in the fifteenth line to the fifth word in the twenty-first line;vii.*the last word in the twenty-fourth line;*
viii.the first word in the twenty-fifth line;
k.in schedule B:
i.on page
22*27*:A.*in subparagraph (a):
i.*the sixteenth and seventeenth words in the first line;
ii.the seventh to tenth words in the second line;*
B.the *first* word
sin bold and within brackets in the third lineof point (a);
C.the last four lines of text on the page;D.*the thirteenth word in the fourth-last line;
E.the sixteenth word in the last line;*
ii.on page
23*28*:A.the seventh word in the first line of text;
B.the ninth word in the fourth line of text;
andC.*under* the title in bold reading “confidentiality undertaking”
to the end of page 23.*:i.the first two words in the second line of text;
ii.the eighth and ninth words in the seventh line of text;
iii.the tenth and eleventh words in the eighth line of text;
iv.the last word in the ninth line of text; and
v.the first word in the tenth line of text.*
12
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