Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2019] HCATrans 55 (22 March 2019)

Last Updated: 26 March 2019

[2019] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2018

B e t w e e n -

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)

Applicant

and

OAKLEY THOMPSON & CO PTY LTD (ACN 092 053 239)

Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 MARCH 2019, AT 9.31 AM

Copyright in the High Court of Australia
MR J.G. LEVINE: If it pleases the Court, I appear on behalf of the applicant in that matter. (instructed by Maciel Pizzorno & Co)

MR J.M. VAGG: Good morning, your Honours. If it please the Court, I appear on behalf of the respondent. (instructed by Oakley Thompson & Co)

KEANE J: Mr Levine.

MR LEVINE: Yes. Thank you, your Honours. This is an application for special leave to appeal the decision of President Maxwell that was made on 16 August 2018 and it is at pages 41 to 44 of the court book.

The first ground that I would be seeking to address your Honours upon is in relation to the reasonable apprehension of bias. In support of that ground, there have been two summonses filed. The first summons is at pages 58 to 59 of the court book and the second summons is at pages 64 to 65 of the court book. Both summonses seek to adduce two affidavit evidence from Mr Murdaca who is the sole director of the applicant.

In relation to that matter, firstly I would like to take you to the decision of President Maxwell, and that is at pages 41 to 44 of the court book. The first matter that I would seeking to submit, your Honour, is that you can see that at page 41, it was a decision made on the papers and it was a decision without the need or without any appearances being provided.

If I could take you to the affidavit of Mr Murdaca, his first affidavit, and that is at pages 60 onwards of the court book, he deposes at paragraphs 3, 4 and 5 that there was no notice given of President Maxwell hearing the application in this matter. Thus, in relation to any application that could have been made to have President Maxwell disqualified from hearing this matter, there simply was no opportunity provided. There was no appearance provided. There was no appearance before President Maxwell and, therefore, there was no ability to object at any hearing to President Maxwell hearing it.

Secondly, there was no notice provided by the Court of Appeal that, in fact, President Maxwell would be hearing the matter and, therefore, there was no opportunity provided for the applicant to have sent an email or sought to file an application to have President Maxwell not hear this matter.

KEANE J: Well, on one view of it, of course, on one view, given that that hearing was a response to a request for an explanation as to why registry had refused to receive the application. I mean, it might be said that the course that was taken was a course which was unnecessary and to which your client was not entitled, in any event.

MR LEVINE: There is a provision under the Supreme Court Rules to seek a direction that the registry do file an application and that direction is to be heard before a single judge of the Court of Appeal.

KEANE J: That was not the application your client made. You simply sought an explanation from the registry as to why the process had been refused.

MR LEVINE: What has occurred is at page 43 of the court book at paragraph 7, President Maxwell states:

On 20 July 2018, the Deputy Registrar of the Court of Appeal informed Bodycorp’s solicitor that his request for an explanation would be treated as an application, pursuant to r 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015, for a direction that the Registrar accept the May application for filing.

So, what occurred in that situation is normally you would file an application for – an application other than for leave to appeal, so that you could obtain a direction that the application actually be filed. What occurred in this situation is that the registry did not require such an application to be made and it simply was referred to a judge pursuant to that rule.

So, my submission is that this application was, in fact, the normal application that is meant to be made in respect of rule 64.43(5) for a direction that the document be accepted for filing. That is the manner in which the registry treated it and that is the manner in which President Maxwell regarded it.

So, my submission is that it was an application for a direction. Simply, the Court of Appeal registry do not require formal application to be made. So, my submission is that it should have been treated as such an application, as President Maxwell did so treat it. He also states:

In accordance with that subr (5), the application for a direction has now been referred to me.

So, my submission is that it is very clear from President Maxwell’s decision that he did regard it as an application for a direction and that is how he was treating it. So, my submission is that there should have been given notice that President Maxwell was hearing it, or if notice was not given, a hearing should have been conducted. But the main point in relation to this is

GORDON J: That is not really your complaint, is it?

MR LEVINE: No. Perhaps I should rephrase it. The main – there was no opportunity provided to my client to make submissions as to whether or not President Maxwell should have heard this application, and that is one of the grounds that sought special leave to appeal. And, we submit, that in relation to the affidavit evidence that is now before the High Court, that there was no opportunity for my client to file that affidavit material for President Maxwell to have considered it.

Secondly, we also submit that in relation to President Maxwell, he was well aware that there was a long association between him and Bodycorp. He also did have conversations with my client on the street in which he stated it would be inappropriate for him to talk to my client, and in those situations he should have made – he should have called for submissions as to whether or not he should have heard it.

So, that is one of the submissions that is being made to your Honour, is that there was simply no opportunity for my client to apply for President Maxwell not to hear this matter.

GORDON J: Is that the limit of your application?

MR LEVINE: No, we submit that when you further consider the matters in evidence before your Honours that there would be a reasonable apprehension of bias satisfied in this case. President Maxwell, in fact, should not have heard it. And we rely upon the affidavit evidence provided by my client which I have just briefly referred your Honours to.

KEANE J: All that having been said, what do you say about the contention that the result, to which President Maxwell came, was inevitable, there is no prospect of any other result?

MR LEVINE: I will address that immediately. The first point is President Maxwell seemed to rely upon three main propositions. The first proposition – well, the final proposition, and the first I will address you on, is at paragraph 11. President Maxwell states that:

the issue of whether Bodycorp was denied procedural fairness in the Court of Appeal has been judicially determined – as between these parties – by the refusal of special leave.

I refer you to the submissions filed in this matter. Refusal of a grant of special leave is clearly not a final determination and it is clearly not a matter upon which res judicata or issue estoppel arises.

KEANE J: No. It may be that that is so, but so far as the concern of this Court, where the due administration of justice is concerned, focusing upon the prospect that a different result might ultimately be achieved should you be successful with this application, what do you say about the prospects that ultimately you would succeed in attacking the decision of the Court of Appeal – the original decision of the Court of Appeal, not Justice Maxwell’s decision.

MR LEVINE: Well, we submit that in relation to the original decision before the Court of Appeal that there was a denial of natural justice, matters upon which the Court of Appeal did make reference to and decided application in point one in relation to an application for reasonable apprehension of bias against the original trial judge, that there was a failure to provide procedural fairness.

KEANE J: That is the point you took on your application for special leave.

GORDON J: Your original application for special leave.

MR LEVINE: Yes, that is correct. Sorry, your Honour.

GORDON J: And it was refused.

MR LEVINE: That is correct.

GORDON J: So the difficulty here is, you have an order made by the Court of Appeal on 22 February 2018, which has been authenticated. So the question is, why now have you got any hope of going back and, in effect, upending that order.

MR LEVINE: Well, the first matter is that we submit that there was a failure to provide procedural fairness. We secondly

GORDON J: In the original hearing or the matter before President Maxwell?

MR LEVINE: In both, your Honour.

KEANE J: Insofar as the original hearing is concerned, you took that point on the application for special leave and you lost it.

MR LEVINE: That is correct, but we also prior to losing an application for special leave also made an application to the Court of Appeal to have that judgment set aside as well.

GORDON J: That is the problem, the order had been authenticated.

MR LEVINE: Yes, but we submit that in relation to the powers of intermediate Court of Appeal that there is power to reopen or declare a judgment a nullity in certain limited circumstances and we submit that those limited circumstances include a denial of natural justice. We also submit, that in relation

KEANE J: Do you say the denial of natural justice deprived the Court of Appeal of jurisdiction, and that is the basis for setting it aside?

MR LEVINE: We state that the denial of natural justice was such that, in relation to that there was now – that there was jurisdiction to set aside the

KEANE J: No, no, the ground for setting aside the judgment can only be, can it not, that to set aside a judgment, you are concluding that it is a nullity.

MR LEVINE: That is correct. And we submit that a failure to provide natural justice can render a judgment a nullity.

KEANE J: We are talking about a superior court of record.

MR LEVINE: That is correct, but

KEANE J: It has the jurisdiction to decide its jurisdiction.

MR LEVINE: This was decided by President Maxwell in chambers.

GORDON J: No, I thought we were dealing with the first matter. Are you now flipping to the matter before

MR LEVINE: Well, the first matter was decided

GORDON J: And then you took the leave point and you lost it.

MR LEVINE: That is correct, but there was also an application to set aside the judgment, and that application is different from taking the matter on special leave for appeal on the basis that in relation to setting aside a judgment, we would have had the opportunity to file evidence and provide submissions and have attended to the matter in a different way. So, we do submit that

KEANE J: Well, you could have done all those things, but would they have been to any purpose?

MR LEVINE: Well, there would have been a purpose because we submit that there clearly was a denial of natural justice, because the Court of Appeal decided the matter on matters that were not raised before it and were not subject to submissions or evidence before the Court of Appeal. And, therefore, we submit that there was a purpose to it being undertaken.

KEANE J: These are points that you made on your original application for special leave.

MR LEVINE: There were points made, I believe, to that effect, yes, but not

KEANE J: Well, generally speaking, the interests of finality in litigation would tend to suggest that there is a pretty strong case to be made for the notion that this litigation came to an end.

MR LEVINE: Well, in Clone v Players, which is a decision of the High Court, it did create or how can I say it – articulate that there are exceptions of a finality principle, and in Clone v Players there were appeals that had been previously dismissed at both – so at least the Court of Appeal from the original decision that was made 20 years ago in Clone v Players and they were still entitled, even though unsuccessfully because they did not allege fraud, to seek an order setting aside the original decision on the basis of fraud. We submit that in relation to Clone v Players that it does create such an exception and we submit that the exception can be extended to cases where there was been a denial of natural justice, regardless of the authentication of the orders.

We also submit that in respect of original decisions before a Supreme Court that, in fact, there would be an opportunity if there is an exception recognised that orders can be set aside for denial of natural justice and I have extracted cases that seem to support that proposition and we submit that the Court of Appeal has similar inherent jurisdiction or powers to do so.

This was simply an attempt on application to engage that process before the Court of Appeal. And, we submit, firstly, that if President Maxwell should not have heard the case, then it should be remitted to another judge for hearing, because my client, if there has been a reasonable apprehension of bias and President Maxwell should not have heard it, is still entitled on current High Court authority to have the matter heard by a judge who is not – does not have such an interest.

And, secondly, we submit that if full submissions are provided, that there is sufficient prospect that – to support the proposition that an intermediate Court of Appeal does have the power to set aside its own orders. That power clearly exists in the Supreme Court and we submit that the Court of Appeal also has inherent powers

GORDON J: You have to go one step further, do you not? You have to submit that not only those two propositions are right and they have to succeed on all three hurdles, but the third hurdle is there would be a different order.

MR LEVINE: Well, that is correct, but this is we submit that before your Honours we only have to, at the most, succeed on the first proposition, and perhaps the second proposition. This is not a trial before your Honours as to whether or not your Honours would make a different order.

GORDON J: No, but we have to at least consider the merits of the third to determine whether or not it has substance in it, and what was put to you at the beginning was it seems a question about it assuming you are even right on one and two, whether it would lead to a different order.

MR LEVINE: In the original decision?

GORDON J: No, here, in relation to the matter determined by President Maxwell.

MR LEVINE: Well, the different order would simply have been that President Maxwell direct registry to accept our application for filing and, therefore, the appellate process in the Court of Appeal would be

GORDON J: There is usually a basis for doing that, Mr Levine. That is the question, is why there would be a basis for doing it legally here.

MR LEVINE: Well, the basis for doing it is that there was power to set aside the orders and his Honour President Maxwell did not make the decision on whether or not there would be.....He made the decision as to a matter of law in which he stated three propositions, and the first and second and third, we submit, are erroneous and should be corrected.

We also do submit that if the matter was to proceed and the Court of Appeal did hear the matter, that there would be submissions made and evidence given that there had been a denial of natural justice, that issues had been determined by the Court of Appeal that had never been raised in the hearing and the submissions made to it, and if those matters had been alerted to my client, then further evidence would have been filed as to what occurred in the hearing before Associate Justice Randall. My submission is that my client was denied the opportunity to provide that evidence because it was never put in issue before the Court of Appeal.

The simple matters that my client sought to raise in the Court of Appeal were two main points. One was whether or not there had been a reasonable apprehension of bias by Associate Justice Randall and, secondly, whether or not the failure to deliver the reasons in open court had constituted – created resulted in the judgment of Associate Justice Randall being declared a nullity.

So, we submit that instead what occurred is that there was an attack made on or there were comments made regarding the conduct of the counsel before Associate Justice Randall, which simply was not put in issue before their Honours. There were no adverse comments made during the hearing and, therefore, if those adverse comments had been articulated, we would have sought an adjournment and we would have adduced further evidence.

So, we submit that there was a prospect of a different reason, the matter being – the result being given, and that the manner in which their Honours considered it, without making reference to it during the hearing, was such that my client was denied the opportunity to provide further evidence on those matters. So, we submit, for those reasons that your Honours should grant special leave to appeal.

I should take you to, if I have time, the decision of the Court of Appeal and that is at pages 4 onwards. Your Honour will see that Mr Remy Van de Wiel led me in relation to this matter at page 5. Your Honours will see at pages 10 to 11 to 12 is the ground 1 that was sought to be agitated before their Honours.

KEANE J: We are familiar with

MR LEVINE: Yes. Well, what submit is

KEANE J: Is there a point you want to make about it?

MR LEVINE: Yes, the point simply is that all the comments made regarding my conduct during the hearing were simply not made during the hearing before the Court of Appeal. If they had been made, my client would have taken a different tactic and I would have sworn an affidavit as to what occurred, and also we would have sought the transcript and we also would have sought to have the hearing – the tape of the hearing heard, because it is a very different thing from looking at a transcript and actually – and listening to the tape of the hearing, because obviously in the tape, you get a better understanding of the tone, the demeanour and the manner in which the parties acted. And that was never – and that opportunity was never given.

Secondly, I would have had to recuse myself if these points had been taken and that is why I had Mr Remy Van de Wiel leading me at that stage, in case that was necessary. So, all of these matters simply were not before
the Court of Appeal, and when they heard it, they simply relied upon the transcript without seeking submissions or further evidence as to what actually did transpire. And the transcript provides a very barren place for determining the manner in which a court hearing is heard. As I submitted to your Honours previously, there was simply no – the tape was not heard, there were also the comments in the tape from the Associate Justice made during the interval to the effect that was quite inappropriate but which were simply not taken up on appeal, and you will see that

KEANE J: I think your time is up, Mr Levine.

MR LEVINE: As your Honours please.

KEANE J: Thank you. Mr Vagg.

MR VAGG: Thank you, your Honours. Your Honours, there are a couple of matters I wish to raise just in relation to the background. If I could take you to page 48 of the application book, please, you will see at the bottom of the page paragraph 21. There is a reference to the decision made by Associate Justice Randall.

What comes next in chronological order in this matter is that the respondent brought a windingup application, and that application was filed on 10 August 2017. On 15 October last year, orders were made by consent by Justice Sifris disposing of the dispute that the statutory demand was based on; that is, the application for windingup was set aside and the debt was paid. There is no current dispute in this proceeding as between the applicant and the respondent. I think that has quite significance, and the submissions I make should be heard in that light.

Furthermore, it came to my attention yesterday that the material between the the correspondence and the decision of the Registrar and the correspondence with the applicant’s instructor did not appear in the appeal book and had not been exhibited to any affidavit in this matter. I just wanted to ensure – I feel I am dutybound to – that you have received that material or have access to it and that you are not deprived of any material relevant to this proceeding. There was an affidavit filed late last night by my instructor with the details of those matters.

Moving on to the special leave application, it raises three matters, in the respondent’s opinion.

KEANE J: So is the point you are making to us that there is no longer an existing dispute between the parties?

MR VAGG: That is correct, your Honour. The special leave application raises three matters: firstly, apprehended bias.

GORDON J: I did not hear that. What did you say?

MR VAGG: The special leave application raises three matters, your Honour. The first one is apprehended bias; second, denial of natural justice; and the third, grounds 3 to 8, deal with the merits of the matter, being President Maxwell’s, and also deal with the merits of the Registrar’s decision. That was the one that until yesterday we had not seen.

I think it is common ground that Ebner contains a test for apprehended bias; that is referred to in the applicant’s submissions and I do not need to go over that. There is no clear connection in this case between the allegations that are contained in paragraph 39 of the special leave application and the feared deviation. This Court has emphasised the importance of demonstrating a logical connection between the matter said to have given rise to the apprehension and the feared deviation from the course of deciding the case on its merits. The applicant simply has not done that.

The contentions advanced at paragraph 39 do not establish any necessary connection. Most of them are speculative and without proper basis. Given the nature of this application, it is difficult to understand what connection there ever might be. President Maxwell was not required to express any view on the merits of the applicant’s substantive claims which related to the purported denial of natural justice. He was not required to consider any evidence or make any factual findings; it was purely a jurisdictional question: was the Registrar correct in refusing to accept the application for filing? On that point, the application, when it was attempted to be filed, was not accompanied by an affidavit, as required.

GORDON J: Putting aside the procedural difficulties with it, let us go to the substance of it that was not a matter relied upon by President Maxwell.

MR VAGG: No, it was not. The respondent further submits that, in the circumstances of this case, the particulars given and the particulars of the nature of the application before his Honour, the assertion of apprehension of bias is unreasonable. The matters relied upon do not tell in favour of a finding that President Maxwell did not bring an impartial mind to the resolution of this application.

Moving on to natural justice. Order 64 is permissive and discretionary. Order 64.14, for example, provides:

For the purposes of the determination by the Court of Appeal, constituted by one or more Judges of Appeal, of an application for leave to appeal or any other application, the procedures set out in Rule 64.15 may be followed.

Rule 64.15 provides:

(1) An application, including for leave to appeal, may be referred by the Registrar to a single Judge of Appeal to be considered and dealt with under this Rule.

(2) If the single Judge of Appeal considers that it is necessary or [reasonable] to have an oral hearing to deal with the application, the Judge may direct that there be an oral hearing.

There was no error in President Maxwell’s exercise of his discretion; that is, there is no error of the kind contemplated by House v The King. For example, there is no bias suggesting that Maxwell acted upon a wrong principle or extraneous matters to guide or affect him, that he mistook facts or failed to take into account relevant considerations or, upon the facts, his decision not to call an oral hearing is plainly unreasonable or unjust.

My learned friend mentioned that there was no notice given that President Maxwell will hear this case. Notice was given that the matter was going to be referred to a single judge to be determined. It is a facet of President Maxwell’s role as President of the Supreme Court of Victoria – Court of Appeal, my apologies. Thank you to my learned friend. Section 16 of the Supreme Court Act:

the President is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the Court of Appeal.

Anyone familiar with the rules and the Court of Appeal will know that the most likely person who hears these matters is the President. Upon being given notice, any concerns, whether about bias or otherwise, could have been raised and the applicant could have sought to file submissions.

In relation to natural justice I would just like to add one other thing. Even in a circumstance where natural justice has been breached, it is within the court’s discretion to refuse relief if it is satisfied that the breach could have no bearing on the outcome of the matter.

Turning lastly to the merits of this application; as a general rule, once a court has handed down its decision and its orders are perfected or authenticated, the court is functus officio and cannot reopen the decision. There are only a very few narrow exceptions to that rule. Those ones have
been recently discussed in this Court in Clone v Players and they are such as an exception for fraud and where decisions have been made without notice to a party. We submit that there are no such exceptions here.

The applicant’s complaint is that the Court of Appeal did not suggest that its counsel had a conflict of interest; it did not consider all of the relevant circumstances and did not disclose that the court was considering whether counsel had provoked the judge. These matters have been dealt with, and dealt with finally.

Those matters may properly have been raised, and they were. We submit that they were properly raised in the previous special leave application in this matter. None of those matters are a basis for the Court of Appeal’s finding that its own decision was a nullity.

Given the futility of this matter, your Honours, I think, and the circumstances surrounding the history of it, it would not be in the interests of justice to grant special leave. If your Honours have any questions.

KEANE J: Thanks, Mr Vagg. Mr Levine, anything in reply?

MR LEVINE: Just very briefly, your Honour. In relation to the reasonable apprehension of bias point, it is put that President Maxwell had a conflict of interest and, by virtue of his association with Bodycorp, that he should not have heard the matter.

In relation to the matters on the merits in relation to the original decision before Justice Randall and in the Court of Appeal itself, the original decision, those matters were never considered by President Maxwell. If they were relevant, they should have been considered by President Maxwell, but they were not.

KEANE J: I take it you do not dispute that the actual dispute between the parties has been resolved.

MR LEVINE: We submit that there terms of settlement which expressly preserved my client’s rights to pursue this proceeding further.

KEANE J: That might be right but, as between your client and the other side, the controversy that led to these proceedings has been resolved.

MR LEVINE: We submit that it has not been resolved because we expressly provided in the terms of settlement that we could continue to pursue this matter, including the special leave application that was made and the terms of settlement itself which we can have filed.

KEANE J: At the end of the day, assume you win all the way along the line, there will not be an order made between the parties resolving their dispute, because their dispute, as between themselves as opposed to their dispute with the Court of Appeal, has been resolved.

MR LEVINE: We submit that it has not because there is still a dispute about whether or not the statutory demand should have been set aside. Whether or not the further step of a windingup should be undertaken has been determined, but whether or not there should have been a statutory demand has not been resolved and that in itself can have consequences for a company.

KEANE J: What consequences would they be?

MR LEVINE: They can be consequences as to whether or not loan covenants and other matters have been breached.

KEANE J: As between your client and the other side?

MR LEVINE: As between my client and other third parties.

KEANE J: Yes, but, Mr Levine, you understand what I am asking you about. I am asking you about whether, at the end of the day, if your client succeeds in any further proceedings between your client and Mr Vagg’s client, what order would be made in favour of your client against them?

MR LEVINE: That the statutory demand should have been set aside. We submit that that is an order that still can be made. Whether or not the further

KEANE J: What consequence would that have for the parties?

MR LEVINE: It has effects upon the credit of my client’s company and it also determines whether or not the statutory demand should have been sent in the first place. So it does have consequences for my client. My client contends that the statutory demand, as between the two parties, should never have been sent at all. It should never have been issued and therefore – and that it was a nullity.

Whether or not the further step as to the windingup is undertaken is a separate step. It is a separate proceeding; it is not the same proceeding. Whether or not it can be relied upon is another matter but still there are consequences to my client in that it would show that the statutory demand should never have been undertaken. That is why the terms of settlement agreed to by both parties in this proceeding – my client’s rights under this proceeding was expressly preserved.

They are two independent matters as to whether or not my client should have been wound up or whether or not there should have been a statutory demand sent. They are two different proceedings and they have two different consequences. We do submit that there are consequences to my client as to whether or not the statutory demand is ultimately set aside or not and that, if the matter should have been foreclosed, it should have been foreclosed by terms of settlement that provided for comprehensive relief and do not exclude these proceedings.

KEANE J: Anything further?

MR LEVINE: I am just thinking. Just in relation to the comments made about the President, as I understand the Court of Appeal, the President allocates cases; he does not necessarily have to hear cases. We submit that the only discretionary decision made in this case was perhaps in relation to whether or not the President should have heard it and whether or not there should be oral hearing or not. As for his reasons, the President’s reasons, they are not discretionary, they are simply matters of law on which my submission is that they are either correct or arguable or not.

KEANE J: Thanks, Mr Levine, your time is up. The Court will stand down for a moment to consider the course it will take in this matter.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.12 AM:

KEANE J: I will give some short reasons.

On 22 March 2018, the applicant filed an application for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of Victoria of 22 February 2018 (Ferguson CJ, Whelan and McLeish JJA) dismissing an appeal from the judgment of an associate justice.

The application for special leave was refused by Justices Gageler and Keane on 14 June 2018: see [2018] HCASL 183. On 20 May 2018, before the special leave application was determined, the applicant filed an application in the Court of Appeal seeking an order that the orders of the Court of Appeal made on 22 February 2018 be set aside (“the May application”). On 18 July 2018, after the special leave application was determined, the registrar of the Court of Appeal informed the applicant that he had decided not to accept the May application for filing. The letter stated that:

“Given that the proposed application . . . raises issues unsuccessfully put before the High Court on the special leave application, it is a frivolous application in that it has no prospect of success.”

The applicant’s solicitor subsequently sought an explanation as to the basis upon which the documents were not accepted for filing. That request for an explanation was treated by the Court of Appeal as an application pursuant to rule 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for a direction that the registrar accept the May application for filing. That application for a direction was referred to President Maxwell who, on 16 August 2018, refused the application on the papers on the grounds that the proceeding in the Court of Appeal was at an end and once the order made on 22 February 2018 had been perfected there was no power to reopen the proceeding.

The applicant seeks leave to appeal from President Maxwell. The applicant contends, among other things, that President Maxwell should have disqualified himself from determining the matter because the applicant was his former client: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.

Accepting that it is fundamental to the common law system that a matter is heard and determined by an independent and impartial tribunal, in the present matter it is not in the interests of justice to address and resolve the applicant’s contention. The applicant’s application for leave to appeal is futile because the proceeding in the Court of Appeal was at an end and there was no power to reopen the proceeding once the order made on 22 February 2018 had been authenticated.

In my opinion the application for special leave should be refused.

GORDON J: I agree.

KEANE J: The application for special leave is refused. Mr Vagg, any application for costs?

MR VAGG: We would seek costs of the application, your Honours.

KEANE J: Anything to be said about that, Mr Levine?

MR LEVINE: No.

KEANE J: The application for special leave is refused with costs.

AT 10.16 AM THE MATTER WAS CONCLUDED