PPP (a pseudonym) v DDA (a pseudonym) (No 2)
[2023] VSC 527
•7 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04527
| PPP (a pseudonym) | Plaintiff |
| v | |
| DDA (a pseudonym) & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OFRULING: | 7 September 2023 |
CASE MAY BE CITED AS: | PPP (a pseudonym) v DDA (a pseudonym) (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 527 |
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COSTS – Application for indemnity costs and to fix a gross sum – Where the appeal should never have been brought – Whether to order costs for unspecified work not yet billed.
PRACTICE AND PROCEDURE – Whether the Court can impose limits on affidavit length – Where material filed by plaintiffs is oppressive – Civil Procedure Act 2010 (Vic) ss 7 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Litigant in person | N/A |
| For the First Defendant | No appearance | N/A |
| For the Second Defendant | No appearance | N/A |
| For the Third Defendant | No appearance | N/A |
| For the Fourth Defendant | Mr A Imrie | Victorian Government Solicitor |
| For the Fifth Defendant | No appearance | Magistrates’ Court of Victoria |
| For the Sixth Defendant | Ms S Molyneux | Corrs Chambers Westgarth |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Costs................................................................................................................................................ 1
B.1The issues that arose and the determination of the appeal............................................. 1
B.2Costs should follow the event.............................................................................................. 6
B.3The Board’s costs................................................................................................................... 7
B.4DDA and her parents’ costs................................................................................................. 9
B.5.The State of Victoria’s costs................................................................................................. 9
C. The listing of the State of Victoria’s summons with PPP’s orthodox judicial review application........................................................................................................................................................ 11
D. The length of affidavits............................................................................................................ 11
E. Disposition and orders.............................................................................................................. 14
HIS HONOUR:
A. Introduction
On 23 August 2023, I published reasons having heard an appeal by PPP,[1] the plaintiff, against orders made by Baker JR at a directions hearing on 27 January 2023.[2] The parties sought time to file material in relation to the costs of the appeal and PPP sought some time to argue that the directions orders to be made should not limit the length of any affidavits that are to be filed. These reasons deal with those issues.
[1]Section 166 of the Family Violence Protection Act 2008 (Vic) provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding. Accordingly, the Court made a pseudonym order at the judgment hearing to protect the anonymity of the parties.
[2][2023] VSC 494.
B. Costs
B.1 The issues that arose and the determination of the appeal
PPP has brought this proceeding against DDA (the first defendant), who used to work for a law firm of which he was the ultimate owner, her parents (the first to third defendants), the State of Victoria (the fourth defendant), the Magistrates’ Court of Victoria (the fifth defendant) and the Victorian Legal Services Board (‘the Board’) (the sixth defendant). PPP and DDA had been in a relationship that soured. She accused him of mistreating her and notified the police. Police officers attended at PPP’s work premises and later issued a ‘family violence safety notice’ under the Family Violence Protection Act 2008 against PPP.[3] On 12 September 2022, the Magistrates’ Court of Victoria made an interim intervention order against PPP under the same Act.
[3]Family Violence Protection Act 2008 (Vic) s 26.
Although these reasons assume a familiarity with my earlier reasons, it is convenient to set out below what I said in my earlier reasons about the scope of the proceeding:
[4]On 7 November 2022, PPP filed in this Court a document headed ‘originating motion for judicial review’. The relief it seeks is extensive. Under the heading ‘Judicial Review and Declaratory Relief’, it seeks that the court ‘determine and declare’ that the three police officers involved in his arrest trespassed on PPP’s premises and that PPP was unlawfully arrested and subject to false imprisonment. It asks that the Court ‘determine and declare’ that the State of Victoria, the fourth defendant, committed multiple instances of assault, battery, intentional infliction of mental harm, intentional interruption in business operations and breach of confidence, made ‘multiple threats of lawful acts’, ‘committed multiple instances of assault’, and ‘intentionally inflicted mental harm/distress’. It asks the Court to ‘determine and declare’ that the complaints made to the police by the defendants, that led to the making of the interim intervention order, were fabricated and made to prevent the course of justice and as part of a ‘conspiracy to effect public mischief’. He asks the Court to ‘determine and declare’ that some of the procedural steps taken by the police officers that resulted in the interim intervention order were made in bad faith, as part of a conspiracy to effect public mischief, and was an instance of corrupt conduct as per the definition in the Independent Broad-Based Anti-Corruption Commission Act 2011. He asks the court to ‘determine and declare’ that the Magistrates’ Court proceeding had been pursued by the State of Victoria in conspiracy with one of the defendants with a view to abusing the courts’ processes and as part of an unlawful conspiracy. He asks the Court to ‘determine and declare’ that the Victorian Legal Services Board’s (the sixth defendant’s) involvement in the Magistrates’ Court proceeding was ‘tantamount to interference in the judicial process’, aimed at denying to him a fair hearing, pursuant to an unlawful purpose conspiracy, and within the definition of corrupt conduct.
[5]The originating motion also, in para 13, asks the Court ‘to determine and declare’ that:
13.The [interim intervention order] made by Magistrate Gattuso on 12 September 2022 … was made in contravention of the statutory provisions listed under Part 4 of the [Family Violence Protection Act 2008], the Corporations Act 2001 (Cth)…, the essential requirements for the making of judicial decisions mandated by Chapter III of the Commonwealth of Australia Constitution Act ... as well as universally recognised principles applicable to the conduct of fair hearings and was:
13.1 Inaccurately documented;
13.2 Unlawful;
13.3 A nullity; and
13.4 An exercise affected by bad faith.
[6]The State of Victoria is, I assume, a defendant because the conduct of the police officers is impugned in the proceeding.
[7]Then, under the heading ‘Equitable Relief’, PPP seeks that the Court orders the State of Victoria to release all documents relating to complaints made by the first defendant against PPP and any actions or communications between the State of Victoria and Victoria Police, and other documents. He also seeks that the Court order that the restitution be provided to him.
[8]The originating motion then sets out what are said to be the grounds relied upon. The grounds are largely contentions that PPP has provided ‘unequivocal evidence’ of the misbehaviour alleged. However, he also contends that he ‘did not receive a fair hearing on 12 September 2022’, that the magistrate had ‘prejudged the matter’ and was biased against him, and ‘manifested Wednesbury unreasonableness’.
[9]Then, at the conclusion of the originating motion, PPP indicates that he is seeking judicial review of the State of Victoria’s decisions in effecting: the ‘unlawful arrest’ on 20 July 2022; the ‘false imprisonments’ on 20 and 21 July 2022; the family violence safety notice ‘Application’ on 20 July 2022; and the ‘Notice’ on 21 July 2022; the police ‘blackmail’ between 20 July and 7 September 2022; the police ‘assaults’ between 20 July and 7 September 22; and the ‘infliction of harm’ between 20 July and 7 September 2022.
The Orders made by Baker JR, against which PPP appealed, were ordinary directions for the progression of this proceeding. They did not decide anything that was substantive, rather than procedural, in nature, other than, perhaps, ordering that the affidavits filed by the plaintiffs that contained the personal information obtained from DDA’s phone not be made available for the time being for inspection by non-parties. The Order made directions for the exchange of material for, and then the later hearing of:
(a) PPP’s application for a stay of the interim intervention order;[4]
[4]Orders 1 and 2.
(b) PPP’s anticipated application to amend the originating motion;
(c) The first to third defendants’ application by summons for the summary dismissal of the proceeding; and
(d) The balance of PPP’s application.
The notice of appeal was against each order made. I described the notice of appeal in the following terms:
[17].... There are four areas of grounds of appeal. The first is that Baker JR ‘failed to uphold [PPP’s] rights and/or the courts duties and/or the obligations of the other parties and their legal representatives, arising from’ a number of matters (that I summarise further below). The second is that Baker JR created a reasonable apprehension that he may have been biased or to have prejudged matters before him and may not ‘perform all its obligations judiciously or safeguard all of [PPP’s] rights’. The third is that Baker JR ‘manifested Wednesbury Unreasonableness in his adjudication of the matters before the court’. And the fourth is that Baker JR’s decisions ‘had been affected by the equitable fraud perpetrated by the defendants and their legal representatives’.
[18]The matters referred to in PPP’s first ground of appeal that give rise to the rights or obligations that it is said Baker JR failed to uphold include: The ‘hypothesis of the rule of law implied through’ Chapter III of the Constitution, various articles in the International Covenant on Civil and Political Rights, various sections of the Charter of Human Rights and Responsibilities Act 2006, the Civil Procedure Act 2010, the Model Litigant Guidelines adopted by the Victorian Government, the Legal Profession Uniform Law and the solicitor and barrister conduct rules, the Supreme Court (General Civil Procedure) Rules 2015, and common law principles necessitating procedural fairness, the ‘proper exercise of judicial power and discretion’, the need to consider all relevant and only relevant matters, the ‘duty of the Court to satisfy the legitimate expectations of all parties to a proceeding’, and ‘the exercise of due diligence in the course of statutory interpretation’.
[19]The orders sought included that the court determine and declare that the interim intervention order made on 12 September 2022 ‘is a nullity’, and that the court dismiss any summary judgment application filed by the defendants for lack of merit.
It may well be that because the appeal was a hearing de novo, no grounds of appeal were required.[5] Be that as it may, far-reaching grounds of appeal were included, and the respondents to the appeal were entitled to assume that the plaintiff might be presenting far-reaching argument.
[5]Cf Bendigo and Adelaide Bank Ltd v Grahame [2020] VSC 86 at [17] where Sloss J explained, referring to Allesch v Maunz (2000) 203 CLR 171, that in a hearing de novo from a decision of a judicial registrar, the matter is heard afresh and there is no need to establish error below.
At the hearing of the appeal:
(a) I refused PPP’s application for an interlocutory injunction designed to prevent the interim intervention order made by the Magistrates’ Court from having effect;
(b) I disagreed with PPP’s contention that the State of Victoria’s summons seeking summary dismissal of the proceeding, which was filed after the matter was before Baker JR, should not or could not be heard because it was filed without supporting affidavit material or was otherwise bound to fail;
(c) I agreed with Baker JR that the affidavits filed by PPP that set out deeply personal information about DDA’s personal life obtained by him from her personal phone should not, at least for the moment, be available for public inspection;
(d) I made no orders in respect of the first to third defendant’s summons seeking summary dismissal because they had, since the matter was before Baker JR, decided not to take an active role in the proceeding (save as to matters of costs); and
(e) I determined that the matter ought to proceed by having PPP’s conventional application for judicial review of the making of the interim intervention order and the State of Victoria’s application for summary dismissal of the proceeding generally be heard together first, and then, if need be, the balance of PPP’s application.
At the hearing on 23 August 2023, I made orders for the defendants to file and serve submissions and affidavit material relating to costs by 4pm on 25 August 2023, and for the plaintiff to file and serve submissions and affidavit material relating to costs and the restriction on affidavit length by 4pm on 1 September 2023. The defendants filed material in accordance with the directions. On 1 September 2023, the plaintiff sought an extension to file and serve his submissions and affidavit material by 4pm on 5 September 2023. I granted an extension to 10am on 4 September 2023. On 5 September 2023, the plaintiff sought, and I granted, an extension to file and serve his submissions and affidavit material by 10am on 7 September 2023. I did not grant any further extension of time. On 5 September 2023, the first defendant, presumably on behalf of the first to third defendants, sought an extension of time for the filing of their affidavit material in relation to costs. I granted an extension of time to the first, second and third defendants to 10am on 7 September 2023. The first defendant filed an affidavit late on 6 September 2023. The affidavit did not add anything of consequence that had not already been included in the earlier filing – it merely deposed that the invoices previously referred to had in fact been paid. The plaintiff did not, ultimately, file submissions or affidavit material by the time allowed. The defendants did not file any submissions or affidavit material on the length of affidavits or seek an extension of time to do so.
The issues must now be brought to a close. I have assumed that the plaintiff opposes the costs orders sought and the proposed limit on the length of affidavits.
B.2 Costs should follow the event
The Court has the discretion to determine by whom and to what extent costs are to be paid.[6] The discretion must be exercised judicially.
[6]Supreme Court Act 1986 (Vic) s 24(1); see also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.02 that requires that the discretion be exercised subject to and in accordance with ord 63.
As is apparent, at the hearing of the appeal PPP sought orders that I was not prepared to make. He did not obtain any benefit from the appeal, but caused the defendants to incur legal costs. On the basis that costs should follow the event, PPP should be ordered to pay the defendants costs of the appeal.
Further, in my view, PPP’s appeal was not prosecuted by him in a manner that was fair to the defendants, for the following reasons:
(a) First, as noted above, it was an appeal against procedural orders made at a directions hearing rather than against orders that affected PPP’s substantive rights. I accept the Board’s submission that the directions were ‘of an ordinary, usual nature’.
(b) Second, he used the appeal as a means by which to seek a stay of the operation of the interim intervention order, in circumstances where he had made a forensic decision to ask Baker JR not to decide that matter.[7] That application, if it were to be pursued, should have been pursued before Baker JR. It is a misuse of the appeal procedure to ask a judicial registrar to adjourn an issue that had been referred to that judicial registrar for determination, and then to appeal and to seek to have the judge hearing the appeal determine that issue instead.
[7]On 16 November 2022, Daly AsJ referred PPP’s application for a stay of the family violence intervention order for hearing and determination by Baker JR.
(c) Third, the notice of appeal indicated that PPP would be seeking to have the Court conclude that there had been fraud, and those types of findings should not ordinarily be sought to be determined in the course of a directions hearing.
(d) Fourth, PPP was seeking an order that an application for summary relief against him should simply not be entertained, when that could never be decided in the course of a directions hearing and all that could sensibly be sought were orders for the determination of that application.
(e) Fifth, PPP was appealing the order that the affidavits filed by him that contained deeply personal information obtained by him from the personal phone of DDA not be available for inspection by the public for the time being, when he was unable to identify any legitimate purpose for which he was seeking to appeal that order. The conclusion I draw is that, probably, PPP was seeking to maximise the potential discomfort to DDA and her parents associated with the litigation, which is not an good reason for initiating an appeal.
(f) Finally, PPP did not comply with the directions for the hearing of the appeal that required him to file and serve, in advance of the hearing, submissions. His failure to do so meant that the respondents were faced with a wide-ranging notice of appeal with no submissions identifying the arguments with which they would be confronted.
In all these circumstances, I consider that the appeal should never have been brought, that this was or should have been obvious to PPP prior to his bringing of it, and that it put the respondents to the appeal to unwarranted expense. For these reasons, I consider it appropriate that PPP pay the defendants’ costs on an indemnity basis.
B.3 The Board’s costs
The Board sought its costs on an indemnity basis and that they be fixed in the amount of $8,017.56.
The Court has the power to fix costs.[8] The power may be exercised in order to avoid the expense, delay and aggravation involved in taxing costs. It is only appropriate to fix costs, however, to the extent that a sum may be ascertained and I am satisfied that the amount fixed is appropriate in the circumstances.[9]
[8]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07(2).
[9]See, eg: Beach Petroleum NL v Johnson (No 2) (1995) 578 FCR 119, 123C (von Doussa J); Harrison v Schipp (2002) 54 NSWLR 738, 743 [22] (Giles JA).
The Board filed an affidavit affirmed by the solicitor with Corrs Chambers Westgarth with the day to day conduct of the matter. The affidavit exhibited an invoice dated 31 July 2023 in the amount of $1,553.60 (excluding GST) that was for 0.1 hours of work by a partner at the rate of $626 per hour, 0.4 hours of work by a partner at the rate of $669 per hour, 1.5 hours of work by a senior associate at the rate of $546 per hour, and 1.2 hours of work by a lawyer at the rate of $337 per hour.
The affidavit also stated that:
(a) the deponent ‘conservatively estimated that an additional $4,827.60 (exclusive of GST) will be invoiced by Corrs for the month of August 2023’; and
(b) counsel would be charging a daily fee of $1,636.36 exclusive of GST for the hearing of the appeal.
In my view, it is appropriate, in order to avoid the expense and delay of a full taxation, to fix costs in this case. I consider counsel’s fees to be very reasonable and note that they are well within the scale of costs.[10] I consider that the amount claimed in the 31 July 2023 invoice should be allowed. I do not, however, consider it appropriate that I fix costs based on what is only an ‘estimate’ for costs to be incurred, particularly when, by the time the estimate was given, the costs had already been incurred and should have been able to be identified.
[10]Clause 19 of Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides for junior counsel’s fees to be up to $6,534 per day for appearing at a trial or appeal and up to $653 per hour in preparation.
That said, it is appropriate to take a ‘broad brush approach’, bearing in mind that a purpose of fixing costs is to avoid the necessity for a taxation. Some allowance should be made for the costs that would have been incurred in August 2023. The scale of costs allows, on a party-party taxation, $457 per hour for an instructing solicitor. In the circumstances, I will incorporate an additional $2,000 for the legal costs incurred, taking the total figure to $5,189.96. I am satisfied that costs of that dimension are reasonable in light of the complexities that attended this appeal and the nature of the allegations made, and that the costs payable on a taxation would very likely be higher than that amount.
B.4 DDA and her parents’ costs
DDA and her parents state that they have spent over $50,000 in legal expenses defending this proceeding. They sought that their legal fees ‘thus far’ be paid on an indemnity basis on the grounds that the proceeding generally is an abuse of process and is bound to fail.
I am now dealing only with the costs of the appeal. I have not made any determination that the underlying proceeding itself is an abuse of process or is otherwise bound to fail. Accordingly, no occasion arises for the making of any costs relating to the proceeding more generally.
However, for the same reasons as set out above, I consider that PPP should be ordered to pay the costs of the first to third defendants of the appeal on the indemnity basis.
DDA and her parents did not actively participate in the appeal. On 10 February 2023, they filed a submission (prepared by their then lawyers) indicating that they had filed ‘a submitting appearance’, and that they would ‘submit to the orders of the court, save and except to be heard as to costs’. Presumably, because they did not appear or present submissions, their legal costs will be relatively modest. But that is no reason for which they ought not to have them paid.
There is no material before me that identifies what those costs were, and accordingly, there is no basis upon which I could fix those costs. For the above reasons, I will order that PPP pay their costs to be taxed in default of agreement on the indemnity basis.
B.5. The State of Victoria’s costs
The State of Victoria also sought fixed costs on an indemnity basis. For the same reasons as set out above, I conclude that PPP should pay the State of Victoria’s costs on an indemnity basis. By letter dated 18 July 2023, the State of Victoria made a ‘Calderbank’[11] offer to bear its own costs. I have not relied on PPP’s failure to accept the offer made in that letter when concluding that he should pay costs of the appeal on the indemnity basis because the offer was directed at a resolution of the entire proceeding, not just the notice of appeal.
[11]Calderbank v Calderbank [1975] 3 All ER 333.
For the same reasons as set out above, in my view it is appropriate to fix the State of Victoria’s costs of the appeal.
The State of Victoria relied on an affidavit affirmed by Ms Sarah Mauriks, a Managing Principal Solicitor and the Victorian Government Solicitor’s Office, on 25 August 2023. Ms Mauriks explained that in the course of the proceeding PPP had served or provided links to some 25,000 pages of material on which he sought to rely in the proceeding. Ms Mauriks deposed that the State of Victoria had incurred solicitors’ costs in the amount of $15,049.65 in relation to the notice of appeal (including PPP’s application to file additional material after the appeal had been heard), and $7,032.50 in disbursements. She has produced a fee slip from counsel in the amount of $7,032.50 made up of $2,900 for appearing at the hearing of the notice of appeal on 18 August 2023 and $4,132.50 for 1.425 days (at the same rate) for ‘reviewing materials, settling documents, conferring and advising, and preparing for court’.
The State of Victoria’s summons was filed on 17 August 2023, along with a submission signed by counsel, which was after the notice of appeal was filed and not long before it was heard. I am not making costs orders relating to that summons: the costs that I am dealing with are only the costs of and incidental to the notice of appeal because I did not determine, at the appeal, the merits of the State of Victoria’s application for summary dismissal. Counsel’s fee slip indicates that some of his work was performed in relation to this summons and the associated written submission. The information provided by Ms Mauriks does not permit me to ascertain with precision how much of the work claimed related to the notice of appeal separately to the summons or the proceeding more generally. For these reasons, it would not be just to fix costs in the full amount claimed.
However, in the circumstances, again taking a broad brush approach, I will fix the State of Victoria’s costs at $7,270. This allows the daily fee of counsel of $2,900 together with three hours of preparation, coming to $3,770, and an additional $3,500 for solicitors to obtain instructions, brief counsel and to instruct at the hearing of the notice of appeal.
To the extent that the material provided relates to work that is not covered by this order, it may be able to be claimed by the State of Victoria if it ultimately succeeds in its application and is ordered the costs of its summons or of the proceeding.
C. The listing of the State of Victoria’s summons with PPP’s orthodox judicial review application
I will make orders that provide for the hearing of PPP’s originating motion to the extent that it is limited to an orthodox claim for judicial review of the making of the interim intervention order by the Magistrates’ Court on 12 September 2022 at the same time that the State of Victoria’s summons is heard. That may be achieved by listing para 13 of PPP’s originating motion, set out in para 3 above, for determination with the State of Victoria’s summons. That application would then be determined finally on its merits.
For the avoidance of doubt, that application would be limited to arguments that the Magistrates’ Court acted unlawfully and would not include applications or arguments that DDA or her family, police officers, the State of Victoria or the Board acted unlawfully, or applications for broader equitable relief.
D. The length of affidavits
It will be necessary for me to make directions for the progression of this matter, in the form anticipated in my earlier reasons. The orders I anticipated would limit PPP’s affidavits to 20 pages together with exhibits or no longer than 80 pages. PPP anticipated making a submission that no such limit should be, or may be, applied. He failed to file a submission to that effect within the time provided.
The matter falls for consideration in circumstances where PPP has filed, or sought to file, in this proceeding:
(a) A 10 page affidavit affirmed by AAA dated 6 November 2022 and filed on 7 November 2022 that has 26 exhibits. The exhibits together total some 4,217 pages. The 6th exhibit is some 2,190 pages of transcripts of recorded conversations between various people and DDA and transcripts of court hearings. The 7th exhibit is a 273 page bundle that includes affidavits prepared for other proceedings, emails, letters, copies of social media communications, summaries of ‘teams’ communications. The 8th exhibit is a 175 page bundle of communications and affidavits and pleadings and other documents filed in other proceedings and a multi-page table that seems to identify when emails were sent and to whom. The 9th to 22nd exhibits consist of almost 1,100 pages of mainly transcripts of telephone conversations or social media communications.
(b) A 10 page affidavit sworn by AAA on 14 November 2022 and filed on 15 November 2022.[12] The exhibits total about 4,210 pages. They include 2,195 pages of transcript of recorded conversations mainly between PPP and DDA, 277 pages of communications involving DDA, 177 pages of what is described as her ‘admissions’, which appears to be a variety of different documents including an affidavit sworn by another person, 755 pages of transcripts or print outs of communications between DDA and another person, 101 pages of communications between DDA and her parents, and 311 pages of what is described as ‘Malice Evidence’. That is not a complete summary.
[12]This affidavit was filed in another proceeding in this Court that involves PPP and AAA. However, the affidavit contains material relating to DDA. DDA is not a defendant in the other proceeding. I assume that the plaintiffs intend to rely on it in this proceeding.
Further, the exhibited transcripts are not, for the most part, official transcripts but have been generated by some voice-recognition software from the audio recordings and, it is said, reviewed ‘to ensure that there is a high degree of fidelity between the transcripts and the original content’. AAA has stated in an affidavit that the transcripts ‘fairly represent the substance of the discussions that they represent’. She has also said, in her affidavit, that:
64.Additionally, in order to provide the readers of the Transcripts with as much contextual detail as may be reliably conveyed, the Firm has made a considerable effort to include the descriptions of:
64.1 Background noises and ambient sounds;
64.2 Sounds representing the activities, including physical interactions between the various participates in the discussions, when clearly discernible; and
64.3 The emotions of the various speaker, including their reactions to various events as they occur, when their emotions are unambiguously perceptible from the tones and inflections in their speech, obvious physical markers such as odd breathing patterns or visual data.
In my view, this amount of material filed by the plaintiff, and the way in which it is presented, is oppressive. It is oppressive to the extent that it requires the other parties to review the material in case it, or any part of it, proves significant in the hearing. To the extent that it contains transcripts that have been prepared in the way referred to above, it is also oppressive because it potentially then requires the other parties, because of the level of distrust involved in this proceeding, to obtain and to listen to the audio in order to verify that the transcript is accurate. Presenting the case in this way is contrary to the ‘overarching purpose’ of the Civil Procedure Act 2010 of facilitating the ‘just, efficient, timely and cost-effective resolution of the real issues in dispute’.[13]
[13]Civil Procedure Act 2010 (Vic) s 7.
Section 47 of the Civil Procedure Act 2010 empowers the Court to ‘give any direction or make any order it considers appropriate’ for the purpose of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose.
Accordingly, I consider that the Court does have power to impose a page limit on the affidavit material filed, and that it is appropriate to do so in the circumstances of this case. It is open to PPP, of course, should he wish to do so, to seek leave from the trial judge to rely on additional material.
E. Disposition and orders
Because of the effluxion of time, and because the appeal was brought against procedural orders, it will be necessary for me to set aside the procedural orders that were made and to make different orders in their place. In accordance with my earlier reasons and the reasons set out above, I will make the following orders:
(a) Paragraphs 1-7 and 9 of the Order made by Baker JR on 27 January 2023 be set aside.
(b) Paragraph 6 of the plaintiff’s summons filed 25 January 2023 be dismissed.
(c) Paragraph 8 of the Order made by Baker JR on 27 January 2023 be extended until further Order.
(d) The plaintiff pay the first to third defendants’ costs of and incidental to the notice of appeal filed on 11 February 2023 to be taxed in default of agreement on the indemnity basis.
(e) The plaintiff pay the fourth defendants’ costs of and incidental to the notice of appeal filed on 11 February 2023 fixed in the sum of $7,270.
(f) The plaintiff pay the sixth defendants’ costs of and incidental to the notice of appeal filed on 11 February 2023 fixed in the sum of $5,189.96.
(g) The defendants file and serve any affidavits on which they seek to rely in support of paras 1-4 of the fourth defendant’s summons by 4pm on 27 September 2023.
(h) The plaintiff file and serve any affidavits on which they seek to rely in opposition to paras 1-4 of the fourth defendant’s summons by 4pm on 11 October 2023.
(i) The defendants file and serve a written submission, not to exceed 15 pages, on which they seek to rely in support of paras 1-4 of the fourth defendant’s summons by 4pm on 25 October 2023.
(j) The plaintiff file and serve a written submission, not to exceed 15 pages, in opposition to paras 1-4 of the fourth defendant’s summons by 4pm on 8 November 2023.
(k) The plaintiff file and serve any affidavits on which he seeks to rely in support of para 13 of his originating motion by 4pm on 27 September 2023.
(l) The defendants file and serve any affidavits on which they seek to rely in opposition to para 13 of the plaintiff’s originating motion by 4pm on 11 October 2023.
(m) The plaintiff file and serve a written submission, not to exceed 15 pages, in support of para 13 of his originating motion by 4 pm on 25 October 2023.
(n) The defendants file and serve a written submission, not to exceed 15 pages in opposition to para 13 of the plaintiff’s originating motion by 4pm on 8 November 2023.
(o) Paragraphs 1-4 of the fourth defendant’s summons and para 13 of the plaintiff’s originating motion be heard on a date to be fixed not before 13 November 2023.
(p) No affidavit filed in accordance with these orders may exceed 20 pages in length, and the exhibits to such affidavits shall not exceed 80 pages in length.
(q) The parties have leave to apply to the trial judge if they wish to file material that exceeds the page lengths provided for in this Order.
SCHEDULE OF PARTIES
S ECI 2022 04527
| PPP (a pseudonym) | Plaintiff |
| -and- | |
| DDA (a pseudonym) | First Defendant |
| DDB (a pseudonym) | Second Defendant |
| DDC (a pseudonym) | Third Defendant |
| THE STATE OF VICTORIA | Fourth Defendant |
| THE MAGISTRATES’ COURT OF VICTORIA | Fifth Defendant |
| VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610) | Sixth Defendant |
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