A court should not order that a proceeding be determined on the papers, over a party's objection, where there are significant factual disputes that cannot be resolved by examination of competing affidavits and where a party wishes to cross-examine. Such an order offends the open court principle and constitutes a denial of procedural fairness. The overarching purpose provisions of the Civil Procedure Act 2010 (Vic) and general case management powers do not authorise such a course. The futility principle from Stead v SGIC will not readily be applied where a party has been denied a hearing involving questions of fact, valuation and judgment.
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