The Honourable Ian Callinan AC was born in Casino, New South Wales, and raised in Brisbane.  He was admitted to the Bar in 1965 and took silk in 1978.  He was President of the Bar Association of Queensland from 1984 to 1987, and President of the Australian Bar Association in 1994 and 1995.

Mr Callinan was widely regarded as among the leading advocates at the Australian Bar.  In 1998 he was appointed a Justice of the High Court of Australia.  He sat until his retirement in 2007.  Thereafter he again took up practice as a barrister, conducting mediations and arbitrations.  He remains in practice.

Mr Callinan has eclectic tastes in sport, art and literature.  As a young man he was a talented cricketer. 

Mr Callinan is a prolific author of novels and plays.  His most recent novel (2024) is “A Prefect of the Press”.  His most recent play (2024) is “Gold and Silver”.  The latter was performed recently at The Theatre in Brisbane.  A laudatory review of it, by Tony Morris KC, appears below in “Reviews and the Arts” as the lead piece.

Mr Callinan chatted with the editor.

Below the reader will find links to extra-curial views – arguably contrasting in part – of Chief Justice Debbie Mortimer and Justice Michael Lee respectively of the Federal Court concerning the application of the principle of “Open Justice”.

Reflections on the Concept of “Open Justice” – Chief Justice Debbie Mortimer

Open Justice: A National Approach? – Justice Michael Lee

The Bar Association of Queensland’s Annual Bar Dinner was held on Friday 6 September 2024, at the Rivershed, Howard Smith Wharves with the evening beginning with a warm President’s Welcome by Damien O’Brien KC.

Following this, Robert Anderson KC delivered the Toast to the Judiciary, and the Honourable Justice Rebecca Treston responded on behalf of the Judiciary.

See below links to speeches on the night and also the photo gallery to enjoy.

President’s Welcoming Remarks – Damien O’Brien KC

Toast to the Judiciary – Robert Anderson KC

On Monday, 21 October 2024, a combined ceremonial sitting of the Supreme Court of Queensland, District Court of Queensland and Magistrates Courts of Queensland took place in Bowen, to celebrate the 150th anniversary of the establishment of the Supreme Court in Bowen.

Today, Bowen is a moderately sized, but thriving, regional city, but 150 years ago it was expected to become the main agricultural and trading centre in the region. However, not long after the Court’s establishment it became clear that Townsville and Cairns to the north would become the region’s major centres of population and commerce. Despite this reality, Bowen’s attractive colonial era Court building remains in use, home to a permanent Magistrates Court, circuiting District Court and busy court Registries. See photographs below.

Upon the ceremony, the bench comprised Chief Justice Bowskill,  Justice North, Chief Judge Devereaux SC, Judge Lynham, Judge Coker, Chief Magistrate Judge Brassington, Deputy Chief Magistrate Gett and Magistrate Howard. It is the first time in Queensland’s history that a joint ceremonial sitting of all three Courts has been held. All are photographed below on the bench and after the ceremony.

The ceremony commenced with a smoking ceremony conducted by Uncle Randal Ross, elder of the Juru People, followed by proceeding in the courtroom at Bowen. Uncle Randal addressed the proceeding, welcoming all those present and speaking informatively of the history – ancient and recent – of the local Juru people. See photograph below of the smoking ceremony.

Below is a record of the speeches made on this special occasion.

Thanks to Chief Justice Bowskill and Franklin Richards of counsel (Assistant Public Defender based in Townsville) for contributing the material of this regional bar piece.

Bowen Courthouse 2006

THE CHIEF JUSTICE: Good morning everyone. This is a special ceremonial sitting of the Supreme Court together with the District Court and the Magistrates Court. I am delighted to be joined on the Bench by the Northern Judge, Justice North, by the Chief Judge, and Judges Lynham and Coker, by the Chief Magistrate, Deputy Chief Magistrate Gett, and Magistrate Howard.

We hold this ceremonial sitting to mark and celebrate the 150th anniversary of the establishment of the Supreme Court here at Bowen.

I am delighted to see all of you who have come along to celebrate this special occasion today. We are joined by a number of special and distinguished guests. I will not try and name everybody, but I will note, with pleasure, the presence of Mr Randal Ross from the Juru people, who will shortly welcome us; Ms Rebecca Fogerty, the president of the Queensland Law Society; and Mr Justin Greggery KC, representing the Queensland Bar Association; as well as Mr Fuller KC, the Director of Public Prosecutions.

We are delighted to have with us also the Honourable Stan Jones AO, retired Supreme Court judge, the Far Northern Judge, and Mrs Helena Jones. The Honourable Kerry Cullinane, retired Northern Judge, is here with us as well. We are really pleased that you have been able to join us. And retired District Court Judge, Mr Robert Pack OAM, and Mrs Wendy Pack KC.

There are many other barristers and solicitors, both from Brisbane, Townsville, here locally in Bowen and elsewhere, who have joined us, and we are really all delighted that you have made the effort to come along. I acknowledge the Juru people as the first owners of this area, and commend their ancestors and elders for their courage, wisdom and leadership. I am grateful to Mr Randal Ross for welcoming us here to Bowen.

UNCLE RANDAL ROSS: Thank you, Chief Justice.

Wadda mooli thulgarri,Wobuna banbari Jangaru “coolengi”, Binda youndu Widtaru, Jangaru – binda youdu – banbari, Wungu, Guburu, Kuriagella,Binda youndu Yuru/Juru – Kyburra Munda Yalga, Juru Enterprise Limited & Yuru Sovereign Tribal Governing CouncilBinda Youndu – Gia, Naro, Birria, Yanga, Nywagai

Mariakarti nyawa, kurranyu nyinama – Look back if you want to go forward

And today, what I share as a part of this welcome is to not point fingers, but to provide understanding. Language of my people that I speak is not only Birri Gubba, but also share my Tanami Desert family, Walmajarri, Kukatja. Today, in my possession as a part of this special occasion, I hold a Juru or Yuru ceremony sword known as Picarun. This sword is over 200 years old as a part of our ceremony, and this here represents our people that have travelled far and wide as part of our moiety. It is important as a part of today’s ceremony that I talk about the law, which has existed for over 40,000 years amongst our people, but still exists today and is very much practiced as a part of our people and with our other original descendants across this nation. Outside Bowen, in the area our people called Worral Burral, sits a special landmark. That is a symbol of our ancient law known as Tjukurrpa. On a rock, outside a property only 10 kilometres outside Bowen, sits the symbol of three circles. Under our law, these three circles represent our human world, our system which declares how we live, our relationships, who we marry, represents our ceremonies, our kinships, our mannerisms, our social obligations and the ability to adapt to change.

Our second symbol, the circle, is our physical world, which affirms our allodial title from the sun, the moon, the stars to the core of the earth, on our lands, every tree, plant, rocks, hills and rivers, including our river life known as Mal Mal, the Burdekin River, which the painting sits on our mountain 15 kilometres outside of here, Bowen, and our oceans, including the animals which connect us, through our Dreamtime stories such as Maloo, Kuiyam, Seven Sisters.

Lastly, our sacred. The last circle is our sacred world, which healing comes in many forms: punishment, spiritual and physical; our Dreamtime stories that connect us back to our source, the creator, Munda Gutta, or what you all know as God; caring for our country, and waters and the seasons; ability to exist outside of time; and, of course, our law. These our ancestor and systems, which worked prior to colonisation, and there is no reason this system that represents our past, present and future, social and spiritual laws that still are present today and can co-exist with our law that is on our land.

In July 2014 and in June 2015, consent determinations of the Federal Court recognised the Juru people’s exclusive and non-exclusive native title between the Burdekin River and Bowen, including Cape Upstart and the Elliot River Region. Although native title is not our people’s concept, but a concept that has been imposed by laws governed by the Federal Government, our people will work with this legislation to make it effective for our people and their families.

Today, we celebrate the Supreme Court 150 years, which I thank Chief Justice Helen Bowskill, and Justice David North, and their esteemed colleagues of the District Court, and Magistrates Court and the Bar table, the dignitaries and their families. As the chair of Kyburra Munda Yalga of the Juru registered native title body corporate, we welcome you all on our lands and our ancestors and descendants of the Yuru, Juru peoples.

THE CHIEF JUSTICE: Thank you very much, Mr Ross, for that warm welcome. Bowen is significant in the history of Queensland. It is even more significant in the history of the Juru people.

The State of Queensland, as many of you would know, was established more than 165 years ago on the 6th of June 1859. An article in the Sydney Morning Herald, on the 24th of November 1959, reported the discovery of a new harbour in Edgecumbe Bay by Captain Sinclair, the master of the ship, Santa Barbara. He named the harbour Port Denison. In 1861, Port Denison was renamed Bowen after Queensland’s first governor, Sir George Ferguson Bowen.

The first interactions between the Europeans and the Aboriginal people already living here described those Aboriginal people as strong and daring, as well as ingenious.

The Supreme Court of Queensland was established on 7 August 1861, by the Supreme Court Constitution and Amendment Act of that year. The first judge of Queensland was named Alfred James Peter Lutwyche, and the first Chief Justice was James Cockle, appointed in February 1863. The Supreme Court initially only sat in Brisbane. The administration of justice in Bowen was the responsibility of the Police Magistrate, a person named Mr George Elphinstone Dalrymple. Although there were some problems, including not having enough Justices of the Peace to resolve disputes, a modern problem as well, it is said that Bowen soon became a centre of importance in the administration of law in North Queensland.

From 1863, there were regular Supreme Court circuits to Rockhampton. However, as time passed and settlement extended northwards, the population spread well beyond convenient reach of that centre. According to Bruce McPherson’s history of the Supreme Court of Queensland, to cater for this and also to appease the north, where signs of a separation movement were already appearing, the decision was taken to locate a Supreme Court judge in the northern part of the colony. That occurred in 1874, when the number of Supreme Court judges increased from three to four, with provision for one of those judges to sit as the Northern Judge, resident here in Bowen.

That judge was Mr Justice Edmund Sheppard, and you will see a photograph of him on the wall at the back of the court. He was appointed in July 1874 and elevated from the Metropolitan District Court to the Supreme Court at Bowen.

There was a temporary Courthouse constructed in Bowen in about March 1863. It consisted of a slab hut without waterproofing or a verandah. One can only imagine how uncomfortable that would have been here in the tropical north. It was regarded as wholly inadequate and local members of the community agitated for a number of years for a proper Courthouse to be established.

In November 1865, Bowen was proclaimed a Northern District Court town. Bowen’s first District Court Judge was Joseph George Long Innes, appointed in December 1865.

The first sitting of the District Court happened in March the next year, when Judge Long Innes heard the first case, involving a charge of assault on a young girl by a local doctor. He was found guilty and sentenced to six months’ hard labour. The trial was held in the Town Council building because Judge Long Innes considered the temporary Courthouse a disgrace to any civilised place in the 19th century. He also agitated for many years with the government to try to get a proper Courthouse built.

There is the next reflection of contemporary times, where there is an ongoing request, perhaps is the easiest way to put it, from our various courts to the government for improved infrastructure, particularly in Townsville, but I am digressing.

The Bowen Supreme Court was formally opened before the first Northern Judge, Mr Justice Sheppard, on the 21st of October 1874, exactly 150 years ago today. It was such a significant event that a public holiday was proclaimed on 24 October to celebrate its opening. Sadly, I have not been able to arrange a public holiday for us this week.

Bowen Courthouse 1894

The first sitting of the Supreme Court in Bowen was on 26 February 1875. Justice Sheppard was said to have been a conscientious judge, who performed his judicial duties with ability, although not without attracting some criticism over the time that he took to deliver reserved judgments; demonstrating that the single most stressful part of the job of any judicial officer, reserved judgments, has always been so.

Initially, the Supreme Court sat in the Police Magistrate’s building. The battle for the construction of a new courthouse continued until late 1879 when construction of this courthouse commenced. It was completed and ready to occupy in July 1881. The building was designed by the Colonial Architect’s Office during the time when F D G Stanley was the Colonial Architect. It was designed and built to house both the Northern Supreme Court, facing Herbert Street, and the Bowen Post Office and State Government offices, facing Williams Street. Justice Sheppard, therefore, had very little opportunity to sit here. In fact, it is my understanding that he never did have any opportunity to do so because he went on leave and sadly died in 1882.

The next Northern Judge to be appointed following Justice Sheppard’s death was Justice Pope Alexander Cooper. You can also see a photograph of him on the wall down here. Interestingly, Cooper was the first Australian born judge to be appointed to the bench in Queensland and, at 36, the youngest judge ever appointed. Apparently, his grandfather had been transported to Australia as a convict in 1813. It has been said that his good looks, style of dress and taste for good living earned him the reputation of a “swell”, and he came into conflict with the government over the alleged extravagance of his circuit expenses as the Northern Judge. Among his alleged extravagances was an insistence on always having a plentiful supply of ice to cool his champagne, which was said to be “indispensable to judicial ministration”. I think I could welcome that argument, although I did wonder where did he get and keep all that ice in this tropical climate.

By 1889, Justice Cooper was spending almost half of his time on circuit and much of it in Townsville, which reflected the substantial population increase north and north-west, following extensive gold discoveries. As also recorded by Bruce McPherson, in the history of the Supreme Court of Queensland, by 1889 there were only 1500 or 1600 people living in Bowen compared to a total population of some 70,000 north of Cape Palmerston. There was also the practicality of better access routes from Townsville to inland resources. Although Bowen had an excellent harbour, its location on a flood plain meant the port was regularly cut-off from the hinterland for extended periods. By an Act in 1889, the Northern Court was moved to Townsville, and Townsville has continued to be the centre of the northern region and the home of the Northern Judge – since 2011, the very aptly named Justice North.

Along the way in this historical journey, in 1921, the District Courts were abolished, and the court’s jurisdiction was divided between the Magistrates and Supreme Courts. But the District Courts were re-established in 1958. Bowen continued as a circuit town for the Supreme Court until about 1959 when the District Courts were re-established. The Supreme Court has also sat here at other times when necessary or appropriate.

I am not sure if this was the last time the Supreme Court sat here, but Justice Henry, who is the Far Northern Judge and was very sorry not to be able to be here today, told me about a criminal trial that he prosecuted before Justice Cullinane, who was the 11th Northern Judge in about 1999, which was partly heard here in Bowen using a space at the local TAFE. It was the prosecution of the person charged with the murder of Rachel Antonio.

Of course, the District Court regularly circuits here, and the Magistrates Court sits here every Tuesday. Other Courts, like the Federal Court, have also used this Courthouse, including for one of the native title determinations that we have heard about recognising the Juru people.

The story of the Bowen Courthouse is emblematic of the development of North Queensland and the prominence of Bowen in those early years. It is also a central part of the development of the justice system in Queensland. It is an honour and a privilege to be able to be here today as Chief Justice of Queensland to celebrate the 150th anniversary of the establishment of the Supreme Court at Bowen. I am delighted to be able to do that jointly with my other judicial colleagues here on the Bench and also with all of the important guests who are here.

THE CHIEF JUDGE: If I may just adopt the Chief Justice’s acknowledgement of various people, although I particularly thank Mr Randal Ross, representing the Juru people, for the welcome to the country. The Chief Justice has mentioned Bowen’s first District Court judge, Joseph George Long Innes, was appointed in December 1865. The 1865 legislation, which brought the District Courts into existence, provided for three districts. Relevantly, the Northern District included Bowen. Denver Beanland in his book about the District Court called A Court Apart described the Northern District as stretching from the Maroochy River to the western boundary of the colony and included all of the north.

As the Chief Justice has said, the system of District Courts was abolished by the Supreme Court Act of 1921, taking effect early in 1922. The Courts were resurrected when the District Courts Act of 1958 came into force in March 1959 and Bowen was one of 26 centres at which District Courts were approved, and so Bowen, this building, remains an important part of the Court’s work.

I recall appearing here in this building in a contested sentence in a Commonwealth prosecution. I was pretty newly the public defender at Legal Aid Queensland, and I acknowledge Peter Delibaltas, the acting CEO of Legal Aid Queensland here today. The Commonwealth DPP briefed Stewart Durward, who was just not yet silk at that stage and later, of course, was a judge of the Court – unfortunately Stewart is not able to be present today – and we were before Judge Wall QC. The hearing lasted several days, and it was an interesting experience. I was instructed by Kevin Baxter, and I had the chance last night to speak to Leah McDonnell, of Ruddy Tomlins & Baxter, about the case.

I have not sat here in Bowen as a judge yet. In fact, it is pretty clear that the Townsville judges covet the Bowen circuit. I am not saying they keep it a secret, but there is a pattern. I had a chance to look back through the last five or six years: “Lynham, Coker, Coker, Lynham”, sometimes “Lynham, Coker, Lynham, Coker”. They have offered the opportunity to me to take a circuit here, and I will, in 2026. On behalf of the judges of the District Court, thank you to all who have contributed to this occasion, and, Chief Justice, thank you for including the District and Magistrates Courts.

THE CHIEF JUSTICE: I will now pass over to the Chief Magistrate.

THE CHIEF MAGISTRATE: Thank you, Chief Justice, Justice North, fellow judicial officers and distinguished guests. I, too, would like to acknowledge the traditional custodians of the land that we meet on today, the Juru peoples, and pay my respects to their elders, past, present and emerging. Bowen’s first Courthouse did accommodate the Police Magistrates’ Court. They were Justices of the Peace and Police Magistrates appointed to Bowen, responsible not just for the administration of law in the courts, they performed a wide range of duties as representatives of the central government. They acted as electoral officers, registrars of births, deaths and marriages, agents of the Land Department. They managed customs, immigration and quarantine officials. In that way, they reflected the Roman model of a Magistrate, who combined civil management, adjudicator and government official in one role. Many did it very well, but it was a harsh world and a harsh time.

The first Police Magistrate of Bowen, George Dalrymple, also assumed command of the Native Mounted Police, and there is documented history of his involvement in the displacement and killing of local Aboriginal peoples, who vigorously resisted the occupation of their lands. Outside the Brisbane Magistrates Court is an artwork entitled Witnessing to Silence. They were originally framed as a reflection of the impacts on the natural environment. The true meaning of that artwork was later revealed by its creator, Dr Fiona Foley, to mark the massacre sites of First Nation’s peoples in Queensland, and Witnessing to Silence stands as an important reminder to all of us who work in that building of our shared history.

Distinguished professor Larissa Behrendt AO delivered the inaugural lecture in the Magistrates Court commemorating the re-dedication of that artwork in 2022. In 2023, she said, “It is incumbent upon us to face this reality to look at these truths, to do this truth-telling, because if we do not understand this past, we cannot be honest about our present and we cannot properly imagine our future.”The Justices Act of 1886 set the course for establishing the magistracy properly in Queensland, provided for the appointment of justices, as they were known, and Police Magistrates. The Act was the result of the work of the then Chief Justice Sir James Cockle with much assistance and revision by Sir Samuel Griffith, and it is literally still with us, somewhat amended, somewhat cobbled together, still the determinative factor of jurisdiction in the Magistrates Court, resting on the travel time of horses.

Magistrates stopped being Police Magistrates in 1941 and became Stipendiary Magistrates. That means literally salaried Magistrates. However, the most dramatic effect on the magistracy in the 20th century was the passing of the Magistrates Act of 1991. That Act sought to specifically recognise Magistrates as part of the judiciary and as independent judicial officers fully removed from any involvement in executive government.

Through all that change, Magistrates have served and carried out their duties here in Bowen, and they continue to do so. So it is a great honour for me today to be able to be here in Bowen, reflect on these matters with the Chief Justice, the Chief Judge, Justice North, fellow judicial officers and our local Magistrate, Michelle Howard, to recognise how very far we have come in 150 years. Thank you.THE CHIEF JUSTICE: I thought it was appropriate that our Northern Judge have the last word from the Bench before we turn to the Bar table. Justice North.

JUSTICE NORTH: Chief Justice, Chief Judge, Judge Lynham, Judge Coker, retired Judges of the Supreme Court and the District Courts, a special welcome to you. Members of the profession, citizens of the state and significantly those of North Queensland. I join with the Chief Justice in her acknowledgement of the representative of the first owners of the land upon which this Courthouse stands. The Chief Justice has told us that this sittings marks and celebrates the 150th anniversary of the establishment of the Supreme Court in North Queensland and, in particular, here at Bowen. I do not propose to repeat the Chief Justice, nor do I propose to detail the history of the events that first established the Supreme Court in North Queensland here at Bowen and its subsequent transfer to Townsville.

In 2011, I was appointed a judge of the Supreme Court and the Northern Judge. I, thus, became responsible for the disposition of the work of the court in the northern region, based in Townsville, but north-west to the Gulf, west to the Northern Territory border and to Mount Isa, south-west to Birdsville, and following the coast south near Bowen and north near Ingham. It is notorious that the Supreme Court of Queensland is decentralised, with the Central Judge in Rockhampton, the Northern Judge in Townsville and the Far Northern Judge based in Cairns. Thus, there are four registries of the court: Brisbane, Rockhampton, Townsville and Cairns. The vastness of the state and the decentralised population in large cities and smaller towns requires the arrangement I have briefly mentioned. It is both a political and an access to justice necessity. It is only partly addressed by modern audiovisual innovations.

The establishment of the court in Bowen 150 years ago brought to North Queensland for the first time a Court with an inherent jurisdiction, charged to see that justice be done and significantly justice according to law. The work of the court in North Queensland 150 years ago and subsequently is described by B H McPherson, a distinguished former member of this Court, in his history of the Supreme Court of Queensland, published in 1989. The Chief Justice has mentioned that work. I will not attempt to repeat her Honour’s account.

It is important not to forget that the work of the court in seeing that justice is done becomes acute when Aboriginal and Torres Strait Islander peoples come before the court. My experience when presiding at trials in Townsville, Cairns and Mount Isa has demonstrated that many are vulnerable because they have difficulty in understanding the ways of the court and have limited literacy and language skills. Not infrequently, interpreters are necessary. But there is more to it. The cultural barriers to justice exist. I pause to remind all of you of one, gratuitous concurrence, a well-recognised issue.

The Supreme Court has long recognised that in the courtroom, and in dealings with police and other branches of the State, Aboriginal and Torres Strait Islander persons, particularly young persons and those from remote communities, are vulnerable. In my experience, this is manifest in trials in places such as Mount Isa. This vulnerability has not escaped the Supreme Court. The recognition of this vulnerability is recorded in judgments of the court, notably, for example, Kina’s case (R v Kina [1962] Qd R 139), a judgment of Justice Gibbs when Sir Harry was a member of this Court, in 1962, and a decision in 1988 of Justice John Dowsett, then a member of this Court, in R v W & Another [1988] 2 Qd R 308.

The Supreme Court has not been minded to leave the issue of this vulnerability to be addressed as best it can be in an ad hoc way from case to case as circumstances may come before it. The Equal Treatment Benchbook, now in its second edition, is a marvellous resource giving guidance and reference to resources touching upon a wide variety of circumstances in which Aboriginal and Torres Strait Islander persons may be involved before a Court. This resource is not limited to Aboriginal and Torres Strait Islander persons. Its content is more extensive, addressing the needs of those of various religions, or ethnic or cultural backgrounds, whom may come before this Court. It addresses a range of issues concerning persons who may have physical or intellectual disabilities, or gender or sexual orientation issues, or cultural circumstances that may render a person vulnerable or at a disadvantage in a Courtroom.

Thus, the Supreme Court is armed to deal with the wide range of issues that may arise in matters before it. The diverse community that comprises the multicultural citizens of North Queensland will find that this Court, armed with 150 years of experience in seeing to justice according to law, is equipped to address the needs of all its citizens.

THE CHIEF JUSTICE: Thank you. I will now invite Mr Justin Greggery KC to speak on behalf of the Bar Association and North Queensland Law Association.

MR GREGGERY: Your Honours, it is a pleasure to speak on behalf of the Bar Association of Queensland today, and particularly that subset of North Queensland barristers, of which I am a part, at the 150th anniversary of the opening of the Supreme Court here in Bowen. The Chief Justice, you, the Chief Judge of the District Court and the Chief Magistrate have all described the significance of Bowen’s history and the establishment of the court here.

I will not repeat any of that except to observe that the Honourable Edmund Sheppard must have been a barrister with a sense of adventure, willing to walk away from the bright lights of practice in Sydney in 1865 and take up what became a judicial appointment here. No doubt his Honour found the adventure rewarding, not to mention the scenic coastline and temperate weather, which would have eased some of the hardship of life at that time. Indeed, in 1859, Captain Henry Sinclair, to whom her Honour the Chief Justice referred, described Port Denison as screened by islands and evocative of the Bay of Naples. In doing so and ascribing these attributes to the coastline here, he was doing little more than recognising the attractiveness of the local sea, which had been known for thousands of years by the traditional owners.

The Supreme Court reports of the day show that Justice Sheppard heard matters involving claims of libel, of government trespassing onto private lands to build roads, claims of insolvency and, of course, a criminal list. There is little record of the counsel that appeared in those matters, although one reported decision mentions counsel who forcibly argued that having possession of a branding iron belonging to someone else without any intention of unlawfully using it could not constitute the offence of knowingly possessing another’s branding instrument. Unsurprisingly, the submission which sought to read an element of intention into the offence was unsuccessful.

Barristers from Rockhampton, Mackay and Townsville, each of them towns with a similar history to Bowen, have regularly appeared in this Courthouse, as have Judges of the District Court of Townsville, who, as your Honour the Chief Judge has observed, have tightly held control of the circuit listings here for decades. Perhaps after today, the attractiveness of this idyllic location will become more widely known, and on the list of requested circuit centres for District Court judges based in Brisbane, who are attracted to the history of judicially cold champagne.

It is a personal pleasure, of course, to see retired District Court Judge Robert Pack OAM present here today and Ms Wendy Pack KC, a longtime member of the Townsville Bar. In my formative years as a junior Crown Prosecutor, prone to forcibly arguing all sorts of things, I regularly appeared before Judge Pack doing circuits in this Courthouse. The manner in which he presided has many commendable features. One of those features was his willingness to provide sage advice on how to avoid being distracted from the real issues in the case by legal points with little or no consequence and how to effectively communicate with a jury. Much of that advice was imparted over dinner with counsel after each trial, a habit which fostered collegiality and made the work much more enjoyable.

Those experiences, of which the Bowen circuit was the highlight, even before the renovations here, had a lasting impression on me and no doubt many other prosecutors and defence counsel. While there are no barristers permanently resident in Bowen, barristers based in Townsville continue to appear here in the Magistrates Court and the District Court. The Townsville Bar is undergoing a season of renewal with a number of young, keen counsel joining it. Four of its current members are women, which is the highest number in its history, with two more expected to join in 2025, a very significant shift from the time when Ms Wendy Pack KC was at the Bar. This and the features to which your Honour Justice North has referred bodes well for the constancy of administration of justice from this Courthouse. May it please the court.

THE CHIEF JUSTICE: Thank you. And now I will invite Ms Fogerty, president of the Queensland Law Society to speak.

MS FOGERTY: May it please, I acknowledge the traditional custodians of this land. I pay my respects to all elders and give special acknowledgement to their children, in whose hands hold our future hopes. Mr Ross, thank you for your comments earlier. You said, “Look back if you want to go forward.” That is something we share. Our system of law, by definition, also looks to the past as its method of giving meaning to the present and the future.

It is a privilege to be here this morning on behalf of the solicitors’ branch as we reflect on history and community in this magnificent neoclassical building. Now, Queensland unfortunately is not known for its enthusiastic preservation of historic buildings. I am grateful that this Courthouse, perhaps one of the more charming in Queensland, remains. No visitor to the town centre can miss its commanding presence.Public buildings frame our experiences. In a literal sense, many of us here today have spent our careers in and around courtrooms. More importantly, for many others in this community, the course of their lives have been shaped significantly by decisions made within these walls.

A local courthouse can also carry deep symbolism, as they form a backdrop to our lives, consciously or not. We use our community buildings to construct narratives, perhaps even mythologies, about who we are and where we have come from. In contrast to the more austere, corporate homogeneity of some modern government buildings, this courthouse announces itself on the streetscape through its presence and design. As is a common feature of classical revival style, the straight lines and striking curves are symbolic of the hierarchic order of the state reinforcing the legitimacy of its power. The use of concrete and stone connote stability, discipline, social order. This is significant in a coastal location, when most buildings from this era were made of wood. One wonders if during the wild northern-frontier days of the mid-19th century, a strong and decisive architectural pronouncement was desirable to underscore the legitimacy of power.

For all the relationship too and symbolism of power and order, however, there is an intimacy to this building. Perhaps that is where the real authority lies as a central thread in the fabric of this community. As Justice North has observed, the tyranny of distance is a salient feature of regional legal centres throughout Queensland. The strength and viability of legal practice very much requires a legal system that is accessible and responsive to the community’s unique needs. Having a local Court, a building of one’s own, fosters collegiality in the local profession. When work is undertaken in a familiar setting amongst familiar colleagues, the precious bonds of trust, which underscore the legitimacy of our entire profession, develop thick and fast.

Pleasingly, I am told that, in this community, most practitioners know each other and invariably extend professional courtesies to each other which go beyond their strict obligations. The importance of a local regional Court goes beyond benefits to the profession. In this time of diminishing public trust in our institutions, a local Court provides transparency in the community. It facilitates justice being seen to be done. Trust is enhanced when the community sees that there are judicial officers and practitioners with local expertise, who understand not just local laws and regulations, but local dynamics.

Another dimension to the relationship between Courts, communities and trust is accessibility. Regional centres suffer from the centralisation of many services. Our Court system should not be one of them. The costs of litigation or criminal matters are enough without the additional burden of travel. Whilst technology facilitates appearances for mentions and reviews, it is a poor substitute for a hearing conducted in person. The importance of people retaining the ability to prosecute a claim or defend a matter in their own region cannot be understated, and as I have already noted, justice remains transparent and accessible, but there are also benefits to the regional economy. It means young lawyers get training opportunities. The mass migration of young lawyers from the regions is an acute issue. The solution lies partly in actively fostering an engaged, resilient, busy local legal community. In this regard, I pay tribute to and give thanks to the local practitioners of this area. May it please.

THE CHIEF JUSTICE: Thank you all again for coming along to this important occasion. I hope that the collegiality of the judiciary on display here is evident to all of you, and I am always, on any trip out of Brisbane, warmed by the collegiality of the profession that is on display more so than ever here. In a true generational sense also, I hope the young lawyers take the opportunity to meet with some of the not so young lawyers, because it is a rare treat for you to meet some of the people who have really chartered the course up here in the northern part of Queensland.

It is also very significant, I think, when we hear of the history, particularly about that first Police Magistrate, the dark history of Queensland, it is very significant and special that we began this ceremony in Court with Mr Ross’ welcome and taking his place at the Bar table. Thank you again. You are welcome to stay and join us for morning tea, and thank you again for joining us. Adjourn the court.

The Honourable William Gummow AC was, for many years, one of Australia’s leading jurists.  He is a former member of the High Court of Australia.  Born 9 October 1942, he has long been a significant contributor – as a barrister, a judge and text book writer – to Australian jurisprudence, in particular in the sphere of equity.  Following his retirement from the High Court on 8 October 2012 he was appointed to the Court of Final Appeal of Hong Kong as a non-permanent judge.  The non-permanent judges of that court presently include The Honourable Patrick Keane AC and the Honourable James Allsop AC.  It was in Mr Gummow’s capacity as a non-permanent judge of the said Hong Kong court that he wrote one of the lead judgments in China Life Trustees Limited v China Energy Reserve and Chemicals Group Overseas Company Limited & Ors [2024] HKCFA 15 (14 June 2024) concerning the Quistclose Trust jurisprudence. Separate substantive judgments were written by Mr Justice Gummow NPJ and Mr Justice Ribeiro PJ.  The other members of the court – Chief Justice Cheung, Mr Justice Fok PJ and Mr Justice Lam PJ – agreed with Mr Justice Ribeiro and Mr Justice Gummow.  For convenience and brevity, only, Justice Gummow’s judgment is set out below:

Mr Justice Gummow NPJ:

99. These appeals present the first occasion for the Court of Final Appeal to consider that variety of trust associated with the speech of Lord Wilberforce (with whom the other Law Lords agreed) in Barclays Bank Ltd v Quistclose Investments Ltd [83] . The term “Quistclose trust” is used to identify that trust.

100. What is a “Quistclose trust”? In general terms, the expression describes the situation where X pays money (or transfers other personal property) to Y and as a matter of intention, objectively discerned, the money is to be applied solely for a specific purpose; if that purpose fails Y is subject to an undertaking, express or as a matter of inference, to return the money to X. The essential issue is whether, on the evidence, X and Y intended that the money should be applied by Y only for a specific purpose and, if that fails, returned by Y to X.

101. The appeals to this Court should be allowed but there are several steps to reach that outcome. First, the dispute concerns personal not real property and no question arises of the operation of the Land Registration Ordinance [84] considered by the Privy Council in Chu Yam On v Li Tam Toi Hing [85] .

102. Secondly, the issues concerning Quistclose trusts arise here somewhat indirectly. If certain funds were subject to the garnishee order sought by the respondent, China Life, they could not be used for other purposes pursuant to a Quistclose trust. But, as the appellants contend, if the funds were beneficially owned by a third party, under a Quistclose trust, the garnishee order could not reach them.

103. Thirdly, a difficulty in considering the “Quistclose trust” is found in the very ambiguity involved in the use of the title of a case to identify a legal institution. Edelman J recently observed [86] : “It can be a sign of lack of clarity of principle when a legal principle or rule comes to be known by reference to the case in which it was first set out rather than by reference to any point of principle.”

104. In Chapter 6 of his book “The Laws of Restitution”, published in 2023, Professor Stevens [87] refers to the use of labels to disguise the lack of understanding of new doctrine. He instances the use of “the name of the case that is said to have originated it” and refers to “the rule in Rylands v Fletcher ”. For a modern example Professor Stevens cites the “ Woolwich Principle” in the law of unjust enrichment affecting repayments by the Revenue, derived from Woolwich Equitable Building Society v I.R.C. [88] . He might have added the “Quistclose trust”. [89]

105. Fourthly, as late as 1996 Lord Browne-Wilkinson observed: [90]

“wise judges have often warned against the wholesale importation into commercial law of equitable principles [given] the certainty and speed which are essential requirements for the orderly conduct of business affairs”.

106. That caution has appeared in decisions subsequent to Quistclose itself. For example, in Twinsectra Ltd v Yardley Lord Millett stressed that payments are routinely made in advance for particular goods and services but they do not constitute trust moneys in the recipient’s hands. [91] In First City Monument Bank Plc v Zumax Nigeria Ltd Lewison LJ warned that to hold there was a trust where moneys were credited to the bank account of another would “paralyse the business of banking”. [92]

The Quistclose Case

107. Mr John Bloom was the entrepreneur behind Rolls Razor Ltd (“RR”). [93] It obtained a loan from one of Bloom’s companies, Quistclose Investments, on express terms that the money would “only” and “exclusively” be used by RR to pay a dividend. The money was paid into a special account with Barclays Bank, with which RR had a large overdraft. RR went into voluntary liquidation before the dividend had been paid. Quistclose Investments then sued RR and the Bank and successfully claimed that the money had been held by RR on trust to pay the dividend and, the trust having failed, there was in operation a secondary trust for the benefit of Quistclose Investments. Lord Wilberforce declared that a “necessary consequence” of a “process simply of interpretation” was that there was a “primary trust” and a secondary trust “if the primary trust fails” [94] .

108. Had the primary trust been performed and the dividend paid before the liquidation of RR the liability of that payment to attack as a preference would have turned on the applicable preference provisions in the relevant legislation. [95]

109. In Quistclose , Lord Wilberforce declared that there was “surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies” and in giving effect to “practical arrangements” by “the flexible interplay of law and equity”. [96] Subsequently Mason and Deane JJ observed that there is “no dichotomy” between contract and trust, the latter providing “one of the most important means of protecting parties in a contractual relationship and of vindicating contractual rights.” [97]

110. In discussing In re Rogers , [98] Lord Wilberforce noted that “if the primary purpose cannot be carried out, the question arises if a secondary purpose (i.e., repayment to the lender) has been agreed, expressly or by implication ”, holding that “if it has, the remedies of equity may be invoked to give effect to it”. His Lordship saw “no reason why the flexible interplay of law and equity cannot let in these practical arrangements, and other variations if desired”, commenting that “it would be to the discredit of both systems if they could not.” [99] In the present appeals, where there was no express undertaking as to repayment, the possibility of inferring the requisite intention to restrict use of the funds bears on the issues between the present parties.

Three Possible Meanings

111. There are at least three possible meanings of the term “Quistclose trust”. The first is that it identifies a new species of trust. This in their written submissions the present parties correctly deny.

112. In Legal Services Board v Gillespie-Jones Bell, Gageler and Keane JJ said: [100]

“The terminology of a ‘ Quistclose trust’ is helpful as a reminder that legal and equitable remedies may co-exist. The terminology is not helpful if taken to suggest the possibility apart from statute of a non-express trust for non-charitable purposes.”

Their Honours cited the statement in Re Australian Elizabethan Theatre Trust that to speak of a Quistclose trust as if it were more “than an example of the particular operation of principle upon the facts as found is to set [one] off on a false path.” [101] They also referred to passages to the same effect by Lord Millett in the 2002 decision in Twinsectra . [102] Then in 2004 Lord Millett wrote that a Quistclose trust may be any one of the categories of trust, “depending on the facts of the particular case and the boundaries between these various forms of trust …” [103] Further, in Raulfs v Fishy Bite Pty Ltd Campbell JA said: [104]

“ Quistclose recognises that sometimes there can be a trust whose terms are that the trust property is to be paid to particular people, and if it is not paid to those people, it is to be held for someone else. That is a matter arising from analysis of the facts of the particular case in accordance with well established principles for identifying when there is a trust, not because there is any separate legal institution known as a ‘ Quistclose trust’.”

113. One now turns to the second and third use of the term Quistclose trust. The second sees this as an instance of co-existence and interaction of legal and equitable institutions, in Quistclose those of contract of loan and express trust. The third was recently expressed as follows by Lady Arden in Prickly Bay Waterside Ltd v British American Insurance Company Ltd [105] . This is that “the term Quistclose trust may commonly be used whenever a person provides assets to another for the purpose of paying debts under arrangements which create a trust …” [106]

114. While the judgment of Lord Wilberforce was primarily directed to the second use referred to above, the co-existence and interaction of legal and equitable institutions, that interaction also involved a trust of the kind identified by Lady Arden.

115. Counsel for Quistclose Investments successfully submitted that the whole of the case against it was based on a “false premise … that a trust and a loan cannot co-exist.” [107] As noted above at [109] Lord Wilberforce said there was no difficulty in recognising “practical arrangements” involving the “flexible interplay of law and equity.” [108] He added that the Court should give effect to “the intention to create a secondary trust for the benefit of the lender, to arise if the primary trust, to pay the dividend, could not be carried out”. [109]

116. Thus there was no new species of trust here, the significance of the decision being a striking illustration of the interaction between an express trust and a contract of loan. No such interaction is in dispute in the present appeal. What is in dispute is the existence here of a trust of the kind identified in Prickly Bay .

Lord Wilberforce and Lord Millett

117. In Twinsectra Lord Millett said: [110]

“I do not think that subtle distinctions should be made between ‘true’ Quistclose trusts and trusts which are merely analogous to them. It depends on how widely or narrowly you choose to define the Quistclose trust. There is clearly a wide range of situations in which the parties enter into a commercial arrangement which permits one party to have a limited use of the other’s money for a stated purpose, is not free to apply it for any other purpose, and must return it if for any reason the purpose cannot be carried out. … All such arrangements should if possible be susceptible to the same analysis.”

However, in an article published in 1985 [111] Mr Peter Millett QC had argued that the beneficial interest remained throughout in the lender. Later, in Twinsectra [112] Lord Millett declared that the Quistclose trust was “an entirely orthodox example of the kind of default trust known as a resulting trust” where the “lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest” and the money is “held on a resulting trust for the lender from the outset” subject to “the borrower’s power or duty to apply the money in accordance with the lender’s instructions”; if that “purpose fails, the money is returnable to the lender… because the resulting trust in his favour is no longer subject to any power … of the borrower to make use of the money.”

118. This emphasis upon a resulting trust is not the characterisation given by Lord Wilberforce to the facts before the House of Lords in Quistclose . The “primary trust” and “secondary trust” which his Lordship held to have existed were express rather than resulting trusts. As French CJ has noted, the term “trust” is used at a level of abstraction to distinguish express trusts from resulting or constructive trusts. [113] However, confusion may arise if the facts in a case do not involve the explicit use of the term “express trust”. This seems to have been the approach of the Court of Appeal in the present case in denying the existence of a Quistclose trust. But as explained at [110] and [145] that is not how the issue of intention to create an express trust is resolved.

119. In Twinsectra [114] Lord Millett said that there were “formidable difficulties” in the analysis by Lord Wilberforce in Quistclose . “What if the primary trust is not for identifiable persons, but … to carry out an abstract purpose?”  In the present case the “identifiable persons” were, as appears below at [130]-[132], the holders of a particular series of bonds which had matured. Lord Millett also referred to difficulties in the location of the beneficial interest. The answer Lord Wilberforce may have given is that if A transfers assets to B to hold as trustee for C and D, the “beneficial interest” follows the terms on which B becomes trustee.

Prickly Bay

120. It may be a fine question of construction to determine whether this is a resulting or express trust and it has been said that the categorisation may “rarely be significant.” [115] Indeed, in 2015 Lord Millett responded as follows to a student enquiry respecting his analysis in Twinsectra : “Terminology is the great trap in equity – there is often no single agreed meaning even of the commonest terms” (e.g. constructive trust)”, and he added that neither description of a Quistclose trust, as an express or a resulting trust, was “wrong”. [116]

121. Nevertheless, any apparent contradiction involved was resolved by the Privy Council in Prickly Bay . After considering various authorities, Lady Arden declared: [117]

“In the opinion of the Board, it follows from Lord Millett’s injunction that subtle distinctions should not be drawn between different species of trusts for the payment of creditors that the term Quistclose trust may commonly be used whenever a person provides assets to another for the purpose of paying debts under arrangements which create a trust (see per Lord Millett [in Twinsectra ] at paras 68 and 69). A Quistclose trust can take many forms. It may be express as to what is to happen on failure of the specified purpose, or express only as to that purpose, or it may simply be a resulting trust arising by operation of law: such is the flexibility of equity. That flexibility makes an important and beneficial contribution to the legal system of the jurisdiction in question because it enables equity to respond to the need for different sorts of transactions, and also because in that way it contributes to the development of society and to the growth of its economy.”

122. Her Ladyship went on to note that the development of Quistclose trust “has not been linear” and continued: [118]

“As explained, in Quistclose , Lord Wilberforce considered that there was a primary trust for the benefit of those who were to be paid and a secondary trust once the purpose failed or was exhausted in favour of the provider. But there followed an intense debate among scholars about the implications of this form of trust: for instance, it prevented the provider from enforcing the terms of the trust until the resulting trust arose. The debate was one of the beneficial ‘reflexive’ kind described by Professor Stapleton in which scholars identified ‘weaknesses, tensions, and anomalies in judicial reasoning, terminology, and doctrinal outcomes’ (J Stapleton, Three Essays on Torts (2021), p 18). It is now generally accepted that unless, or to the extent that there is no express trust as to what is to happen on failure of the specified purpose, there is a resulting trust for the provider throughout the period of the trust as explained by Lord Millett in Twinsectra. This avoids some of the difficulties identified by scholars and ensures that there is at all times a person who is in the position to enforce the trust.” (emphasis supplied)

123. Do the salient facts in the present litigation show a Quistclose trust in the sense described above?

The Facts

124. China Energy Reserve and Chemicals Group Company Limited (“the Parent”) is listed in Hong Kong. It heads a group of companies known as the China Energy Reserve and Chemicals Group (“the Group”), which develops natural gas, oil and related chemical products marketed throughout China.

125. Between 2015 and 2018 each of eight members of the Group, which are incorporated in the British Virgin Islands and may be identified as special purpose finance vehicles (“SPV”), issued a series of bonds to finance the operations of the Group. The SPVs had no other material operations or assets. Default on one series of bonds would trigger cross-defaults on the other series issued by the SPVs. The Parent guaranteed each bond issue.

126. The benefit of the covenants by the SPVs that the SPVs would pay principal and interest to bond holders was held on trust for the bond holders by Bank of Communications Trustee Ltd, (“the Trustee”), an Interested Party in the present litigation.

127. Another Group member, China Energy Reserve and Chemicals Trading Co Ltd (“Trading”) operated as “treasury subsidiary” of the Group. The funds raised from the issue by the SPVs of the bonds were transferred to a bank account of Trading which distributed them for operation of the business of the Group. When interest payments were due on a series of bonds Trading would remit to the designated bank the funds to make the payments.

128. This litigation stems from the issue of bond series by two of the SPVs, which may be identified as SPV1 and SPV2.

129. On 27 April 2015 SPV1 (China Energy Reserve and Chemicals Group Overseas Co Ltd), the first appellant, issued a series of bonds to mature in 2022 and denominated in HKD (“the 2022 Bonds”). The respondent, China Life Trustees Ltd (“China Life”) holds all the 2022 Bonds. SPV1 opened an account (“the Account”) with Bank of Communications (Hong Kong) Ltd (“the Bank”) as payment agent for the 2022 Bonds. A point of significance for this appeal is that the Account included a US$ sub-account for which SPV1 would have no use.

130. Then on 11 May 2015, SPV2 (China Energy Reserve and Chemicals Groups Overseas Capital Co Ltd) issued a series of bonds denominated in US$ which were to mature on 11 May 2018 (“the 2018 Bonds”). This series would be the first series to mature. The investors in the 2018 Bonds included the second appellant, the Ad Hoc Committee, comprising CMB Wing Lung Bank Ltd and The Export-Import Bank of China.

131. SPV2 did not open a bank account. Rather, “for convenience” it designated the Account, which included the US$ sub-account, for transactions relating to the 2018 Bonds. The US$ sub-account was a segregated account not used for the purposes of SPV1; SPV2 was authorised as a joint signatory to give instructions relating to the sub-account.

132. Thus, the Bank was paying agent for the 2018 Bonds issued by SPV2 as well as for the 2022 Bonds issued by SPV1. Up to May 2018 the half yearly interest payments on both bonds series were paid from the Account.

133. However, on 11 May 2018, the 2018 Bonds matured, the first series to do so, but the Group did not have the funds to pay the due principal and interest.

134. On 16 May 2018 the Trustee, with respect to the 2018 Bonds, published a notice to bondholders in which it referred to the default and indicated that the issuer expected to make full payment of principal and any outstanding interest “on or around” 25 May 2018.

135. Between 17-22 May 2018 there was correspondence between Dr He Xuanlai of China Life Franklin Asset Management Co Ltd, the investment manager of China Life, and Mr Norman Lin of the Group. The Group responded with a plan forthwith to apply US$350 million for repayment of the 2018 Bonds and so arrest the adverse impact on the market confidence in the Group.

136. This was partly implemented as follows. On 8 May 2018 the eighth and last series of Bonds had been issued by China Energy Reserve and Chemicals Group Capital Ltd. The Offering Circular stated that the bond proceeds of US$150 million would be used for the “general corporate purposes” of the Group. The proceeds were paid into the bank account of Trading and “booked” as a loan to Trading.

137. From its bank account Trading remitted to the Account a total of US$120 million. This was booked in the account ledger of SPV1 as a specific entry indicating it did not form part of the general assets of SPV1. But there was still outstanding US$230 million to arrive at the total of US$350 million needed to repay the 2018 Bonds. The Group was unable to procure the transfer of that US$230 million.

138. Thus the Group’s plan failed. On 25 May the Parent and SPV2 declared default in the 2018 Bonds and cross defaults on the other bonds ensued.

139. The US$120 million with interest earned on it (“the Funds”) stayed in the Account with the Bank. On 9 March 2021, the Trustee obtained a garnishee order nisi in respect of the Funds, being the balances in the Account representing the US$120 million plus US$3 million being interest accrued thereon. SPV1 applied to set aside the garnishee order. China Life was substituted as plaintiff in place of the Trustee. If the Funds were impressed with a Quistclose trust in favour of Trading they could not be garnisheed by China Life. However, on 10 August 2023, the Court of Appeal made the garnishee order absolute. In this Court China Life, the respondent, would have that order upheld, while the appellants would have it set aside.

The Issues

140. The essential dispute the subject of this appeal is whether (a) as the respondent China Life contends, the Funds belong to SPV1, in whose name the Account stands, or (b) as the appellants contend, the Funds are held on trust for and belong to Trading which had remitted the US$120 million to the Account. If the latter, the Funds would be available to the Parent for restructuring of the Group. If the former, China Life, the holder of the 2022 Bonds, would benefit exclusively.

141. At first instance it was held that the Funds belonged to SPV1 and there was no trust. The Court of Appeal dismissed the appeal [119] .

142. On 27 October 2023 the Court of Appeal granted leave to appeal to this Court and certified two questions (a) and (b) as being of great general or public importance.

143. Question (a) raised “the proper approach to assessing the issue of intention giving rise to a Quistclose trust”; in particular, (i) “whether the important intention is an intention for the transferor to retain some control of and/or beneficial interest in the assets qua transferor” or (ii) “an intention for the transferee not to have free disposal and/or the whole beneficial interest in the assets.”

144. The Court of Appeal appears to have required evidence of a positive statement in the nature of (i) above, which it did not find and it thus denied the existence of a trust.

145. However, the general proposition as to the intention to create an express trust asks whether there is language or conduct showing a sufficiently clear intention to create the trust. No formal or technical words are required and the conclusion may be drawn as an inference from the nature of the transaction and the available evidence as to the whole of the circumstances including (importantly for the present appeal) commercial necessity. [120] This reflects the principle that the presence of the intention is assessed objectively rather than subjectively. [121]

146. In Twinsectra Lord Millett referred to “the intention of the parties collected from the terms of the arrangement and the circumstances of the case.” [122] In Prickly Bay the Privy Council, with reference to Lord Millett’s judgment in Twinsectra [123] , indicated that the intention of the parties need not be “mutual” in the sense of being “shared or reciprocated”, it being sufficient “if one party imposed it on the other who acquiesced in it”. [124] This reference to the sufficiency of “imposition” has been criticised. [125]

147. The essence of a Quistclose trust involves the restricted purpose for which the money may be applied. However, as was emphasised in Re Australian Elizabethan Theatre Trust “[the] use of the expression ‘purpose’ should not be read as heralding a new era for the non-charitable purpose trust”. [126] The relevant purpose was the product of the payer’s intention, acquiesced in by the payee in accepting payment, and not an incident of some unknown type of trust.

148. In answering Question (a), the court examines the evidence asking whether it establishes that A paid money to B, with the intention accepted or acquiesced in by B, that it was to be applied only for a specific purpose. If so, it follows as a matter of logic that the money was not intended to form part of B’s general assets or to be at B’s free disposal. The authorities elucidate the legal effect or consequences of a finding that such an arrangement exists: the recipient comes under a fiduciary duty to adhere to the restriction and equity will restrain him or her from applying the money for some other purpose. And to the extent that the specific purpose fails, the recipient holds the money on trust to return it to the payer. It follows that the money is never beneficially owned by the recipient and, on an insolvency, does not form part of the bankrupt estate and so is recoverable by the payer.

149. Question (b) certified by the Court of Appeal fixed upon the significance of “an intra-group transfer”; does the fact or potential of common control being exercised over both transferor and transferee as members of the Group indicate an absence of “any intention for the transferee not to have free disposal and the whole beneficial interest in the assets.”  The second question may be adjusted by asking whether the potential for common control militates against a finding on the evidence that there is to be attributed to Trading an intention that the transferee hold the funds on trust.

150. This reflects the view expressed in [69] of the Court of Appeal judgment that:

“Any desired control could be effected through the corporate chain of command. Since the Group was in full control of [SPV1], there was no need to preserve control through the retention by Trading of beneficial interest in the money as against [SPV1]… To speak of Trading placing ‘trust and confidence’ in [SPV1] to ensure that the money was applied for the purpose for which it was transferred, thereby occasioning the intervention of equity, seems to me to be unreal.”

151. However, the appellants stress that this case is far from a typical intra-group transaction. SPV1 had not used the USD sub-account; rather it had been used by SPV2 which had designated to the Bank the sub-account for transactions relating to the 2018 Bonds. There was a sense of urgency as the 2018 Bonds matured on 11 May 2018 but the Group did not have the funds to pay the due principal and interest.

152. The plan of the Group to meet the crisis involved Trading transferring a total of US$120 million, but the plan failed and on 25 May SPV2 and the Parent declared default.

153. To hold that the Funds in the Account, US$120 million plus interest, were beneficially owned by China Life and liable to the garnishee, would be contrary to the nature of the transaction between Trading and SPV2 and the available evidence as to the whole of the circumstances. The trust having failed the Funds reverted to Trading.

154. It is because of that state of affairs that the appeals to this Court should be allowed and the garnishee order dated 10 August 2023 should be discharged. Within 14 days of the date of this judgment the parties may lodge written submissions as to costs; these will be dealt with by the Court on the papers.

[emphasis added]

[83] [1970] AC 567.

[84] ss 2 and 3, Cap 128.

[85] (1956) 40 HKLR 250.

[86] Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 at [120].

[87] Professor of English Private Law at the University of Oxford.

[88] [1993] AC 70.

[89] Robert Stevens, The Laws of Restitution (Oxford University Press, 2023) at 98.

[90] Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 at 704.

[91] [2002] 2 AC 164 at [73].

[92] [2019] EWCA Civ 294 at [81].

[93] Roberts Stevens, “Rolls Razor Ltd” in William Swadling (ed), The Quistclose Trust: Critical Essays (Hart Publishing, 2004) at 1-7

[94] [1970] AC 567 at 580.

[95] Jamie A Glister “The nature of Quistclose trusts: classification and reconciliation” (2004) 63(3) Cambridge Law Journal 632, at fn 15; Robert Stevens, “Insolvency” in William Swadling (ed), The Quistclose Trust: Critical Essays (Hart Publishing, 2004) at 157-165. In Hong Kong, Companies (Winding Up and Miscellaneous Provisions) Ordinance, s.266, Cap. 32.

[96] [1970] AC 567 at 581-582.

[97] Gosper v Sawyer (1985) 160 CLR 548 at 568-569.

[98] In re Rogers, Ex parte Holland and Hannen (1891) 8 Morr 243, cited in Quistclose at 581 (italics supplied).

[99] [1970] AC 567 at 582.

[100] (2013) 249 CLR 493 at [112].

[101] (1991) 30 FCR 491 at 503.

[102] [2002] 2 AC 164 at [80]-[81], [100].

[103] Foreword to the collection of essays referred to above in footnote 93.

[104] [2012] NSWCA 135 at [51].

[105] [2022] UKPC 8, [2022]1 WLR 2087, [2022] 2 All ER (Comm) 189.

[106] [2022] UKPC 8 at [32].

[107] [1970] AC 567 at 573.

[108] [1970] AC 567 at 581-582.

[109] [1970] AC 567 at 582.

[110] [2002] 2 AC 164 at [99].

[111] Peter J Millett, “The Quistclose Trust: Who Can Enforce It?” (1985) 101 Law Quarterly Review 269.

[112] [2002] 2 AC 164 at [100].

[113] Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 at [5].

[114] [2002] 2 AC 164 at [79].

[115] John McGhee QC and Steven Elliott QC (eds), Snell’s Equity (34 th Ed, Sweet & Maxwell, 2020), §25-036, contributed by Professor David Fox.

[116] The Hon William Gummow, “Lord Millett in Hong Kong” (2021) 51 Hong Kong Law Journal 845 at 852.

[117] [2022] UKPC 8 at [32].

[118] [2022] UKPC 8 at [33].

[119] [2023] HKCA 966 .

[120] Swain v The Law Society [1983] 1 AC 598 at 621-622, per Lord Brightman; Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618-619 per Mason CJ, Dawson J; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 121, per Mason CJ, Wilson J.

[121] John McGhee QC and Steven Elliott QC (eds), Snell’s Equity (34 th Ed, Sweet and Maxwell, 2020), §22-013, contributed by Professor David Fox.

[122] [2002] 2 AC 164 at [69].

[123] [2002] 2 AC 164 at [76].

[124] [2022] UKPC 8 at [31].

[125] Ada Leung and Samuel Leung, “Whither Quistclose trusts? A non-linear development of the doctrine” (2023) 29(2) Trusts & Trustees 158 at 166-167.

[126] (1991) 30 FCR 491 at 502.

In Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118 (22 May 2024), the issues which arose concerned a challenge to the penultimate will of a testator on the grounds of undue influence or unconscionability.  The principal beneficiary under the testator’s will was the testator’s general practitioner, who not only was treating the plaintiff in or about the time of the making of the will but also arranged for his solicitor to take instructions to draft and execute such will.  The further will was prepared a month later making more favourable provision for the beneficiary general practitioner.

The NSW Court of Appeal made three findings as to the law.  First, the onus of proving undue influence in probate – as distinct from in equity – lay on those seeking to impugn the will on that basis.  That is, no presumption of undue influence arose in probate.  Second, the onus on the proponent of a will to prove that a testator knew and approved the contents of that will – which arises if there are suspicious circumstances – does not require such proponent disprove undue influence.  The authorities had consistently imposed an onus of proof of undue influence on the opponent to probate of a will.  Third, general equitable principles relating to unconscionable conduct ought not be applied to testamentary gifts.  In this regard, there is a necessary distinction between inter vivos transactions and testamentary gifts.

The principal judgment of the court was delivered by Adamson JA (with whom Ward P and Gleeson JA agreed):

The relevant legal principles

The principles for proof of a will

[179]  The principles for proof of a will, which were set out in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44] –[51] (Meagher JA, Basten and Campbell JJA agreeing), by reference to authority may be summarised as follows:

(1) the proponent of a will bears an onus of proving that the will is the last will of a free and capable testator, which requires the proponent to prove that the testator knew or, approved of and understood its contents at the time of its execution ([44]);

(2) if the will is rational on its face and duly executed, it is presumed that the testator was mentally competent, unless circumstances raise a doubt as to testamentary capacity, in which case the proponent must prove that the testator was of sound mind ([45]);

(3) if testamentary capacity and due execution have been proved, there is also a presumption of knowledge and approval of the contents of the will at the time of execution, which may be displaced by circumstances (referred to as suspicious circumstances) which create a doubt as to whether the will expresses the intentions of the testator (including that a person who benefits under the will was involved in its preparation), in which case the proponent must prove that the testator knew and approved of the contents and legal effect of the document ([46]); see also Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [169] (Leeming JA, Meagher and Payne JJA agreeing);

(4) evidence that the testator gave instructions for the will or that it was read over by or to the testator is generally sufficient to establish that the testator had actual knowledge of its contents ([47]); and

(5) where a will has been executed by a person of competent understanding who was apparently a free agent, the burden of proving undue influence is on the person who alleges it ([49]–[51]).

[180]  Of these principles, only the correctness of (5) is in issue. The application of (3) and (4) are relevant because of the challenge, on the basis of suspicious circumstances, to the proposition that Mr McClure knew and approved the contents of the June will and the July will. Mr Ellison SC, who appeared with Mr Fernandez and Mr Yazdani for Dr Alexakis, accepted that, because there were suspicious circumstances, Dr Alexakis bore the evidentiary onus of proving that Mr McClure knew and approved of the contents and legal effect of the June will and the July will.

The issues of principle which arise for consideration

[181]  There are two main issues about the principles which apply where a will is sought to be impugned on the basis that either:

(1) the testator has been subject to undue influence by a beneficiary such that the will does not represent the testator’s true intentions unaffected by that influence; or

(2) the beneficiary’s conduct with respect to the testator has been unconscionable.

[182]  The parties also made submissions as to the consequences of a finding that either the June will or the July will was affected by either undue influence (Salvation Army grounds 17 and 19, Schwanke ground 5) or unconscionability (in the case of Mr Bedrossian). Because of my conclusion that the gift to Dr Alexakis in the July will did not fail, it is not necessary to address the consequences of a finding that the gift failed.

The applicable principles where a will is sought to be impugned on the grounds of undue influence and unconscionability

[183]  In respect of undue influence, the question arose whether:

(1) as the primary judge found, the onus of proving undue influence is on those seeking to impugn the will on that basis (alleger’s onus analysis); or

(2) as Dr Birch and Mr Wilson contended, once those seeking to impugn the will on the basis of undue influence have proved that the testator is subject to a special disability of which the beneficiary is aware, a presumption of undue influence arises which must be rebutted by the beneficiary (presumption analysis).

[184]  In respect of alleged unconscionability, the question arose whether, as Mr Bedrossian contended, the equitable principles relating to unconscionable conduct as they apply to inter vivos transactions also apply to testamentary gifts with the result that, if there has been unconscionable conduct by the beneficiary, the gift to the beneficiary will only be effective if the beneficiary establishes that the gift was “true, fair and reasonable” (equitable analysis).

[185]  Dr Birch submitted that the presumption analysis was the correct one, on the basis that the law had taken a wrong turn and misunderstood earlier authority which supported it. Mr Bedrossian did not seek to disturb the primary judge’s analysis or findings based on the alleger’s onus analysis. However, he submitted that Mr Camilleri had also put his case on the basis of the equitable analysis and that the primary judge had incorrectly rejected that analysis.

[186]  Mr Wilson submitted that this Court ought reconsider the correctness of Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 (Becker) and determine that the principles that apply to equitable undue influence apply also to probate undue influence.

[187]  For the reasons which follow, I consider the primary judge’s conclusion that the alleger’s onus analysis was the proper approach to be` correct as a matter of both principle and authority. I reject Dr Birch’s submission that the presumption that arises in the context of undue influence in inter vivos transactions arises in respect of testamentary gifts and Mr Wilson’s related submission that the principles of undue influence are the same in probate as in equity. I confirm my view that Becker correctly states the relevant law. I reject Mr Bedrossian’s submission that the equitable principles of unconscionability apply to testamentary dispositions in the same way as they do to inter vivos transactions.

[188]  At the heart of the distinction between these analyses is the question whether it is appropriate to distinguish between inter vivos transactions or gifts on the one hand and testamentary gifts on the other. There are necessarily different considerations which apply in either case. Where there is a challenge to an inter vivos transaction or gift, the benefit of the transaction or gift can be restored to its donor. However, a testator, once dead, is forever deprived of the benefit or property which is the subject of the transaction or gift. The interest of a donor, as testator, includes respect for choices made in the exercise of testamentary freedom which (subject to legislative restrictions on that choice to make provision for close or dependent family members) the testator is entitled to exercise in a fashion which others may regard as arbitrary or perverse. While the law has a concern to ensure that the will of the testator has not been subject to undue influence, it also has other concerns: to protect testamentary freedom and to ensure that the estate of a competent testator passes to named beneficiaries under a duly executed will rather than being consumed by the costs of litigious challenges by interested persons who stand to gain by findings that gifts in a will fail.

The alleger’s onus analysis

[189]  The alleger’s onus analysis is reflected in and supported by the following observations made by Lindsay J in Boyce v Bunce [2015] NSWSC 1924 (on which the primary judge relied) in which his Honour contrasted the onus of proof of undue influence in probate (testamentary gifts) as distinct from equity (inter vivos transactions):

56 In a probate suit, there is no presumption of undue influence. Leaving to one side the observation that, in probate proceedings, an allegation of undue influence requires proof of facts tantamount to coercion, a party who alleges undue influence in probate bears the onus of proving it, without the benefit of a presumption of undue influence: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 1365; 14 BPR 26,867 at [63] –[64] ; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121D ; Hall v Hall (1868) LR 1 P&D 481 ; Parfitt v Lawless (1872) LR 2 P&D 462 at 468 –470 . This approach reflects a robust acceptance that, in common experience and without criticism, a person might be subjected to social pressures falling short of coercion in the making of a will. The focus for attention is on the essential question whether a will is that of a free and capable testator. As a will takes effect only on or after the death of testator, the court has no concern for his or her subsequent welfare, as distinct from the interests of those beneficially entitled to a deceased estate.

57 By way of contrast, upon an exercise of equitable jurisdiction relating to a disposition of property inter vivos , the Court may be concerned about the ongoing welfare of the disponor; and, in its concern to prevent or redress unconscientious conduct, it allows for there to be a presumption of undue influence in some circumstances. When such a presumption arises it may be rebutted by proof that the disponor: (a) knew and understood what he or she was doing; and (b) was acting independently of any influence arising from the ascendancy of the disponee over the disponor. Proof of the first element, without proof of the second, is insufficient to rebut the presumption: Quek v Beggs (1990) 5 BPR [97405] at 11,765 ; Bridgewater v Leahy (1998) 194 CLR 457 at 475 [63]. Equity’s presumption has a prescriptive element designed to enforce a standard of behaviour, quite distinct from the bare, empirical character of probate presumptions.

[190]  The alleger’s onus analysis was described by the High Court as “the traditional view” in the following extract from Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66. Gaudron, Gummow and Kirby JJ wrote as follows:

62 The position taken by courts of probate has been that to show that a testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument, ‘there must be — to sum it up in a word — coercion’ (55). The traditional view, repeated by Sir Frederick Jordan (56), has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate (57).

63 The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos , not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiary or the next of kin .

(55) Wingrove v Wingrove (1885) 11 PD 81 at 82 –83 . See also Baudains v Richardson [1906] AC 169 at 184 –185 ; Craig v Lamoureux [1920] AC 349 at 357 ; Winter v Crichton (1991) 23 NSWLR 116 at 121 –122 .

(56) In his ‘Chapters on Equity in New South Wales’, reprinted in Jordan, Select Legal Papers (1983), page 137.

(57) Allen v M’Pherson (1847) 1 HLC 191 ; [ 9 ER 727]; cf , Birmingham v Renfrew (1937) 57 CLR 666 at 674 , 676 , 683 , 690.

(Emphasis added)

The presumption analysis

[191]  Dr Birch submitted that this Court had endorsed the presumption analysis in Callaghan v Myers [1880] NSWLawRp 84; (1880) 1 LR(NSW) 351 that later decisions had misunderstood that authority; and that this Court ought revert to its previous authority. He also relied on Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 (Hallen J) which he submitted left open the question of extending equitable undue influence to probate (Schwanke ground 5).

…

[214]  The authorities establish and maintain that, for the reasons set out above, there is a different rule for probate undue influence than for equitable undue influence. If Callaghan v Myers ought be read as obliterating the distinction (contrary to my analysis above, in which only Hargrave J (incorrectly) decided that there ought be no distinction), it is, in my view, plainly wrong and was implicitly overruled by the Privy Council in Craig v Lamoureux [1920] AC 349.

[215]  As noted above, Dr Birch submitted that Hallen J in Blendell v Byrne had left open the question whether equitable undue influence should be extended to probate. I do not consider that Hallen J’s reasons ought be read as going further than to note the observations made by the High Court in Bridgewater v Leahy at [62] –[63] .

Whether the 1898 Rules influenced the common law’s imposition of the onus of proving undue influence on the opponent to probate of a will

[216]  I consider there to be an important distinction between a testator’s knowledge and approval on the one hand and undue influence on the other. As this Court said in Tobin v Ezekiel (2012) 83 NSWLR 757 at [46] (see above at [179]) , once testamentary capacity and due execution have been proved, a presumption of knowledge and approval of the contents of the will at the time of execution arises, which may be displaced by proof of suspicious circumstances, in which case the proponent must prove that the testator knew and approved of the contents and legal effect of the document. The proponent bears the onus of proving knowledge and approval but, in certain circumstances (outlined above), can rely on a presumption to that effect. However, the presumption can be displaced by the opponent’s proof of special circumstances, which then casts the onus of proof back on the proponent, who will no longer have the benefit of the presumption.

[217]  This situation is to be distinguished from an allegation of undue influence where the opponent bears the onus of proof throughout and there is no operative presumption. The authorities reflect this distinction between knowledge and approval on the one hand (where the onus might be described as shifting) and undue influence (where the onus is on the opponent in probate cases), although the 1898 Rules required that each be alleged in the defence. This is a strong indication that the 1898 Rules requiring undue influence to be pleaded as a defence reflected the common law, rather than affected it. The need for the requirement that the absence of knowledge and approval be pleaded as a defence stems from the circumstance that knowledge and approval would, in certain circumstances, otherwise be presumed and an allegation in the defence is required to put the proponent on notice that the opponent contends that the presumption of knowledge of approval is displaced: see, by analogy, O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455; [2002] FCAFC 188 at [15] –[16] (Carr, Moore and Marshall JJ) in which it was held that an applicant, who relies on the presumption in s 51A(2) of the Trade Practices Act 1974 (Cth) that a corporation does not have reasonable grounds for a representation with respect to a future matter, is obliged to indicate that reliance to the respondent, as a matter of procedural fairness.

[218]  For these reasons, I do not consider that the form of the 1898 Rules affected the development of the common law which has consistently imposed the onus of proof of undue influence on the opponent to probate of a will. Thus, deletion of the applicable rule in 1972 does not provide a warrant for this Court to reconsider long-standing consistent authority, particularly in circumstances where the form of the pleading rule was not identified in the authorities as a reason for requiring the opponent to probate being granted to a will bearing the onus of proving undue influence.

The standard of proof

[219]  There was no challenge to the primary judge’s articulation of the standard of proof at [598]. Accordingly, it is necessary only to summarise the principles.

[220]  Because probate proceedings are civil proceedings, the standard of proof is on the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). The nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged are all relevant to the decision whether the tribunal of fact is so satisfied: s 140(2) of the Evidence Act . Where a serious allegation is made, clear and cogent proof is required to discharge the civil onus: Briginshaw v Briginshaw (1938) 60 CLR 334; [1938] HCA 34 .

[221]  In a circumstantial case of probate undue influence, the burden of proof on the party making the allegation was expressed by Lord Cranworth LC in Boyse v Rossborough (1857) 6 HL Cas 2 at 51 ; 10 ER 1192 at 1212 (approved in Craig v Lamoureux at 357 and followed in Winter v Crichton at 122 and Becker at [76]) as follows:

… in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution were consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.

[222]  Although Vickery J in Nicholson v Knaggs [2009] VSC 64 suggested at [119]–[125] that this formulation imposes too high a standard of proof, I do not accept this analysis (which does not arise for consideration in the present case). The formulation from Boyse v Rossborough is apt for any circumstantial case. Cases concerning probate undue influence are almost inevitably circumstantial because the testator cannot, by definition, give evidence and the relevant fact to be determined, the testator’s state of mind at the time of making the will, can usually only be determined by inference rather than by direct evidence.

[223]  In Woodley-Page v Simmons (in the passage set out above) Young J regarded the testator’s desire to benefit the man he regarded as a son as an “equally acceptable hypothesis” (which was therefore one which had not been excluded on the balance of probabilities), which was why the claim of probate undue influence failed. This reflected the approach taken endorsed in Boyse v Rossborough.

[224]  The primary judge, at [598], cited Brown v Guss [2014] VSC 251 at [393] , in which McMillan J said:

The statement of principle by the Lord Chancellor in Boyse v Rossborough does not, on my reading, impose any standard or onus of proof that differs from the general law as it applies in Australia. The party alleging undue influence must show that the circumstances attending the execution of the will are inconsistent with the will having been obtained other than by undue influence. The standard to which they must show that the circumstances are so is on the balance of probabilities. If all they are able to prove is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary. I do not believe that in so stating the test, I am saying anything controversial.

(Footnotes omitted)

The equitable analysis

[225]  Mr Bedrossian submitted that even if the Court was not satisfied that Dr Alexakis knew of the terms of the will until after Mr McClure’s death, once he did find out, it was unconscionable of him to retain the benefit of the gift because it had been made in the course of a doctor/patient relationship and Dr Alexakis could not prove that it was “fair, just and reasonable” for him to do so. This was the most conservative way in which the submissions were put. At its highest, Mr Bedrossian relied on there being a quid pro quo arrangement between Dr Alexakis and the deceased (as referred to above).

[226]  Mr Bedrossian submitted that Mr Andresakis’ involvement in taking instructions for, drafting, and arranging the execution of, the June will and the July will were insufficient to ameliorate the unconscionability arising from the gift. Mr Bedrossian accepted that all of the authorities which he cited in support of the equitable analysis concerned inter vivos transactions. However, he submitted that there was no reason in principle to distinguish between inter vivos transactions and testamentary gifts and that there was, therefore, no reason to limit the equitable principles by reference to that distinction, which he described as “either illusory or irrelevant”.

[227]  Mr Bedrossian’s submission involved the following steps:

(1) equitable principles of unconscionability, which are to be distinguished from those relating to undue influence, operate separately and cumulatively ( Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 (Mason J); [1983] HCA 14 (Amadio));

(2) the primary judge made unchallenged findings that:

(a) Mr McClure suffered from a special disability which seriously affected his ability to make a judgment as to his own best interests;

(b) Dr Alexakis was aware of Mr McClure’s special disability;

(3) by reason of (2), an equitable presumption arose that the transaction (the testamentary gifts to Dr Alexakis) were the consequence of the special disadvantage and that unconscientious advantage was taken by Dr Alexakis;

(4) Dr Alexakis could only rebut the presumption by proving that the transaction was “fair, just and reasonable” ( Blomley v Ryan (1956) 99 CLR 362 at 386 (McTiernan J) and at 428–429 (Kitto J, who was in dissent); [1956] HCA 81); and

(5) Dr Alexakis had not rebutted the presumption in (3) as:

(a) Dr Alexakis did not submit, either at first instance or on appeal, that his retention of the benefit of the gifts was fair, just and reasonable; and

(b) the primary judge did not find the transaction to be fair, just and reasonable (and no notice of contention was filed by Dr Alexakis contending that this finding ought to have been made and would have supported the decision).

[228]  Mr Bedrossian submitted that the primary judge either failed to address his submission or misunderstood its import as her Honour did not appreciate that Mr Camilleri’s claim was not based solely on a finding of a quid pro quo arrangement, but rather on the submission that Dr Alexakis’ retention of the benefit of the gifts in the will was itself unconscionable. Mr Bedrossian submitted that a finding of unconscionability did not depend on proof of “immoral or dishonest motives” ( Johnson v Smith [2010] NSWCA 306 at [98] –[102] ); “moral obloquy or reprehensible conduct” (Aboody v Ryan [2012] NSWCA 395; (2012) 17 BPR 32,359 at [65] (Allsop P)); the improvidence of the gift (Blomley v Ryan) or “victimisation” ( Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [38]).

[229]  Mr Bedrossian pointed to Mason J’s explanation of the different rationales for the remedies for undue influence and unconscionability in Amadio at 461, as follows:

… Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

There is no reason for thinking that the two remedies are mutually exclusive in the sense that only one of them is available in a particular situation to the exclusion of the other. Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.

[230]  To like effect, Deane J said at 474 that undue influence “looks to the quality of the consent or assent of the weaker party”, whereas “[u]nconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.”

[231]  Mr Bedrossian accepted that he had not found a case where a claim for probate had been successfully disputed on the basis of special disability (and consequential unconscionability) rather than probate undue influence. However, he submitted that no case had decided that the equitable analysis was limited to inter vivos gifts and transactions and did not extend to testamentary gifts.

[232]  Mr Bedrossian also relied on Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 ( Nitopi ), in which this Court (in part) allowed an appeal from orders that a child of a deceased repay to the deceased’s estate a total of six amounts which the deceased had paid to the child during the deceased’s lifetime at times when the deceased was at a special disadvantage. This Court upheld the ground of appeal which alleged that the primary judge had not made a finding that the child actually knew of the deceased’s particular special disadvantage and that the deceased’s executor had not proved either actual or constructive knowledge, the latter not being sufficient in any event: [10]–[11]) (Bell CJ); [114]–[125] (Ward P). As Nitopi concerned inter vivos gifts, it does not advance Mr Bedrossian’s submission that the equitable analysis ought extend to testamentary gifts.

[233]  The principles on which Mr Bedrossian relies in support of the equitable analysis are well established in so far as they apply to inter vivos transactions: Bridgewater v Leahy at [58] (Gaudron, Gummow and Kirby JJ). As referred to above, the High Court in Bridgewater v Leahy was careful to note, at [63], that the parties had not argued that the equitable principles (relating to undue influence and unconscionability) which applied to inter vivos transactions ought apply or be extended to testamentary gifts.

[234]  I do not accept that the equitable analysis applies to testamentary gifts. While the principles of unconscionability are distinct from those relating to undue influence, both comprise grounds on which equity will grant relief from certain transactions or gifts. Equity, in certain defined instances, imposes a presumption to give the person seeking to impugn the transaction a forensic advantage by casting the onus of proof on the party seeking to maintain the transaction or gift. One can see good reason for this to be so in respect of inter vivos transactions because to cast the onus on the alleged victim of undue influence or unconscionability tends to undermine equity’s protection. However, in the case of testamentary gifts, the alleged victim of undue influence or unconscionability is, by definition, dead, rendering restoration of material benefit to the victim impossible. Those seeking to impugn testamentary gifts are either, as in the present case, other beneficiaries (under the final or previous wills) or those who would take on an intestacy. There would not appear to be any compelling basis for granting such persons a forensic advantage by casting the burden of proof on the person seeking to propound the will. Indeed to do so would almost inevitably have the unfortunate consequence of facilitating challenges, particularly where there may be an expectation (which would be reasonable if there were such a presumption) that the cost of such challenges would be borne by the estate, which would be diminished accordingly.

[235]  For the reasons given above, it has been authoritatively established that there is no presumption of undue influence in respect of testamentary gifts. The reasons for the distinction would appear to apply equally to alleged unconscionability. This may serve to explain why no case has been found that applies the equitable presumption of unconscionability in a testamentary context. I am not persuaded that the equitable analysis applies, or ought extend, to testamentary gifts.

(emphasis added)

The link to the full decision is here.

Justice Jackman in the Federal Court, responding to criticism by Bell CJ in the New South Wales Court of Appeal (in Wild v Meduri [2024] NSWCA 230):

The form of affidavit evidence of conversations

27. All witnesses in the case who gave evidence of conversations did so in indirect speech, except on the rare occasions where the witness gave evidence of a verbatim recollection of the words actually used. Accordingly, direct speech was used only where it faithfully reflected a verbatim memory, rather than a gist memory of the conversation. This was a commendable and welcome departure from the old practice in New South Wales of witnesses giving evidence of conversations in direct speech despite the reality being that the witness is able only to recall the gist of the conversation.
28. In Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [118]–[129], I deprecated the long-standing practice in New South Wales of witnesses giving evidence of conversations in direct speech (often prefaced by the obfuscatory formula “in words to the following effect”) in circumstances where they could recall only the substance or gist of the conversation. I insisted that evidence in direct speech be given only where the witness claims to have a verbatim memory of the words actually spoken, and otherwise the evidence should be given in indirect speech as to the substance or gist of what was said. I was particularly critical at [127] of the practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the formula “in words to the following effect”) from the witness’s actual memory merely of the substance or gist of what was said, referring to that practice as logically, ethically and grammatically wrong. The New South Wales Court of Appeal unequivocally approved that reasoning in Gan v Xie [2023] NSWCA 163 at [119] (White JA, with whom Simpson and Basten JJA agreed). One might have thought that that was the end of the matter.
29. However, in September 2024, some 17 months after I decided Kane’s Hire and some 14 months after the New South Wales Court of Appeal decided Gan v Xie, Hammerschlag CJ in Eq said in Chen v Chu [2024] NSWSC 1139 at [264]–[265] that the old practice in New South Wales was “salutary” and “conduces to a disciplined approach”. His Honour made no reference to the Court of Appeal’s decision to the contrary in Gan v Xie. That was then followed by the decision of the New South Wales Court of Appeal in Wild v Meduri [2024] NSWCA 230, in which Bell CJ and Kirk JA disagreed with Kane’s Hire and Gan v Xie, with Bell CJ saying that the old practice was “a useful discipline” (at [252]) and endorsing Hammerschlag CJ in Eq’s description of the practice as “salutary” (at [254]). White JA, on the other hand, re-iterated the Court of Appeal’s reasons in Gan v Xie, and emphasised the fundamental importance of evidence being given in the witness’s own words (at [285]–[332]).
30. I regard White JA’s reasons in Wild v Meduri as compelling, and indeed unanswerable, and I gratefully adopt them. I wish only to add some particular remarks concerning the three propositions expressed by Bell CJ at [248] concerning my reasoning on the issue. That paragraph is as follows:

It is, in my view and with respect to his Honour, both unorthodox and undesirable for a single judge of any court unilaterally to arrogate to him or herself the “ending [of a] longstanding practice in New South Wales” (or any other jurisdiction). Matters of practice are relied upon by practitioners in the discharge of their daily work, and unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. A case for reform of a practice, if subject to persuasive and cogent criticism, is best worked out in and after consultation.

31. In the first sentence of that paragraph, Bell CJ seeks to impose limitations on the powers of single judges “of any court” to end a long-standing practice, including in circumstances (as in Kane’s Hire) where there was no appellate authority supporting the practice. Bell CJ’s statement, read in context, was directed to judges of the Federal Court, but would apply equally to judges of the High Court. I do not express any view as to whether his Honour’s statement is appropriate to be applied to judges of the Supreme Court of New South Wales, that being a matter for the judges of that Court to resolve in light of the intrusion on judicial independence which Bell CJ’s view represents. However, to the extent that Bell CJ’s view is intended to apply to judges of other Courts, with great respect, his Honour is asserting a supervisory power that his Honour does not have. The Federal Court, in particular, has a responsibility with respect to practice in New South Wales where matters are heard in New South Wales, and as a national Court has a particular responsibility to foster consistent national practice (see Central Practice Note: National Court Framework and Case Management, CPN-1, para 2.1; The Hon James Allsop AO, ‘Foreword’ in Natalie Cujes, Litigation in the Federal Court (2015)). Its responsibilities thus differ from those of the Supreme Court of New South Wales. The Chief Justice of a State Supreme Court cannot insist that judges of the Federal Court exercise those responsibilities in a particular way. The point is pertinent to the very problem that arose in Kane’s Hire, in which the opposing legal teams, from New South Wales and Victoria respectively, approached the manner of adducing evidence of disputed conversations in markedly different ways. It is desirable that, at least in hearings conducted by the Federal Court, New South Wales practice be brought into line with the rest of the country.
32. In the second sentence of [248], Bell CJ said that unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. In the present context, Bell CJ is, with great respect, starting at shadows. Within three months of Kane’s Hire, the New South Wales Court of Appeal unanimously approved those reasons in Gan v Xie. By January 2024, Kane’s Hire was cited with unqualified approval in Australia’s leading treatise on the law of evidence: J.D. Heydon, Cross on Evidence (14th Australian edn, 2024), [17145]. It was also the subject of a favourable article by a team of barristers and psychologists published by the New South Wales Bar Association: Stowe, Vial, Paterson and Temler, “Conversational evidence: A stake in the heart of ‘direct speech’ & the psychology of conversational memory” (2023, Summer) Bar News. The first occasion of confusion, inconsistency and uncertainty was the decision of Hammerschlag CJ in Eq in Chen v Chu, on 6 September 2024, which ignored the Court of Appeal’s decision in Gan v Xie. Then on 26 September 2024 Bell CJ and Kirk JA delivered their reasons in Wild v Meduri. To the extent that there is now uncertainty, that arose only in September 2024. With great respect, Bell CJ appears simultaneously to have created and criticised legal uncertainty. Whatever private reservations Bell CJ and Kirk JA may have had in the 11 months during which their Honours reserved judgment in Wild v Meduri, that did not affect the unanimity with which Kane’s Hire had been received and acted on.
33. In the third sentence of [248], Bell CJ said that reform of a practice is best worked out in and after consultation. With great respect, that strikes me as contrary to the common law method and the individualised nature of judicial decision-making in common law jurisdictions. Be that as it may, for the last 35 years, I have heard practitioners and witnesses alike refer to the old New South Wales practice with unedifying epithets such as artificial, strained, misleading and fanciful. I have certainly never heard anyone express admiration for it until September 2024, in the two decisions to which I have referred.

The case Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd (Trial Judgment) [2024] FCA 1265 is found here.

The article referred to in NSW Bar News is found here.

In CH Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd [2024] WASCA 142 (13 November 2024), the Court of Appeal of the Supreme Court of Western Australia addressed the law pertaining to repudiation, in particular in the context of where the putatively repudiating party asserts an erroneous interpretation of the contract to which they are party.

The court wrote:

[120]  The term ‘repudiation’ can be used in different senses. When used in the sense of ‘renunciation’ it refers to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. It is often described as conduct of a party which evinces an intention no longer to be bound by a contract or to fulfil the contract only in a manner substantially inconsistent with the party’s obligations. 65 As so described:

The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. 66

[121]  The generally applicable principles as to repudiation by renunciation are well settled:

1. A party will have renunciated a contract where, by words or conduct:

(a) the party evinces an intention no longer to be bound by the contract; or

(b) the party shows that it intends to perform the contract only in a manner substantially inconsistent with its obligations and not in any other way. 67

2. The test for determining whether conduct is renunciatory is objective 68 — the party’s conduct is to be judged objectively by the effect it would be reasonably calculated to have upon a reasonable person in the position of the other party. 69 Accordingly, repudiation is not to be ascertained by an inquiry into the subjective state of mind of the party in default. 70

3. Renunciation of a contract is a serious matter and is not to be lightly found or inferred. 71

4. The whole circumstances of the case must be examined to see whether there is a renunciation. 72

[122]  Something more should be said about the second proposition in [121] above given the terms of cross-appeal ground 1. At particular 1.5 of cross-appeal ground 1 the respondents allege error in the primary judge’s renunciation finding as her Honour did not consider it relevant whether the respondents believed their action was justified by the terms of the SPA. The primary judge stated that the test of whether the conduct is repudiatory or a renunciation of the SPA is an objective test. 73

[123]  The authorities cited in support of proposition 2 at [121] above establish that the primary judge was correct to so hold. The objective test of repudiation leaves no room for consideration of whether an alleged repudiator subjectively held an honest belief that its action was justified by the contract. The alleged repudiator’s state of mind is irrelevant. What matters is the character of the repudiator’s conduct. 74

[124]  Particular 1.5 of cross-appeal ground 1 is wholly without merit. It is difficult to understand why this assertion of error was made. We accept that there are authorities which might be read as suggesting that the defaulting party’s bona fides (or lack of bona fides) is a relevant consideration. 75 But at the appeal hearing counsel for the respondents submitted that the test was objective. 76 Counsel for the respondents effectively made the same submission at trial before the primary judge in submitting that Mr Zilkens’ actual subjective intention was not relevant. 77

[125]  It might be that the respondents are seeking to make a different point. For reasons we will come to, it should be accepted that where an alleged repudiator outwardly manifests an honest belief that its action is justified by the contract, that is conduct to be judged objectively by what it would convey to a reasonable person in the position of the other party. But the primary judge was not dealing with that point at the impugned passage. Her Honour was simply discarding, as irrelevant, the subjective and uncommunicated beliefs of the respondents.

[126]  Bearing on this point, there are cases in which courts have held that there was no repudiation where a party merely asserted an erroneous interpretation of a contract. That line of authority must now be examined.

[127]  In Ross T Smyth & Co Ltd v T D Bailey, Son & Co Lord Wright observed that ‘a mere honest misapprehension, especially if open to correction, will not justify a charge of repudiation’. 78 In Woodar Investment Development Ltd v Wimpey Construction UK Ltd the members of the House of Lords referred to a series of cases where assertion by one party to another of an honestly held but erroneous view of the validity or effect of a contract did not constitute repudiation. Those cases included Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipbuilding Co Ltd. 79 James Shaffer Ltd v Findlay Durham & Brodie and Sweet & Maxwell Ltd v Universal News Services Ltd. 80

[128]  The cases are fact specific. However, out of deference to the argument of counsel for the respondents we will examine the authorities on which counsel specifically relied.

[129]  James Shaffer Ltd v Findlay Durham & Brodie .s said to support the proposition that a party who takes action relying simply on the terms of the contract, and not manifesting by its conduct an ulterior intention to abandon the contract, is not to be treated as repudiating the contract. 81 The case involved a long-term supply contract. The defendants, export distributors, had agreed to pass on orders of not less than £80,000 per year for 10 years with an option for a further 5 years. They failed to do so. The defendants honestly believed that their failure was not a breach of contract. In negotiations the defendants said that the obligation under the contract did not go beyond passing on whatever orders they received. The plaintiff relied on this statement as a repudiation of the contract.

[130]  The Court of Appeal found that the defendants’ construction of the contract was erroneous in law. The Court of Appeal held, however, that the breach did not evince an intention not to be bound by the contract. Importantly, although there was an erroneous construction, there was no reason to doubt that the defendants thought that ‘it was a tenable view’. 82

[131]  Singleton LJ considered it not possible to say that the defendants had evinced an intention to no longer be bound by the contract because they raised a question as to the construction of the contract. 83 Morris LJ stated that it could not be said that the construction advanced by the defendants was an ‘absurd construction’ – while erroneous it was not an ‘impossible or a stupid point of view to suggest’. 84 Upjohn J agreed that the defendants’ construction was ‘not absurd or untenable’ and that the construction contended for was put forward in complete good faith. 85 In the circumstances each member of the Court of Appeal was not satisfied that the defendants by their acts and conduct evinced an intention to no longer be bound by the contract. As Morris LJ put it: ‘I have no doubt that [the defendants] wanted to go on with the contract’. 86

[132]  No different principle is at work in James Shaffer Ltd v Findlay Durham & Brodie. The case is decided conformably with the generally applicable principles we have discussed at [120]–[121] above. The case should be understood as an example of the court not being satisfied that a party had evinced an intention to no longer be bound by a contract merely because the party contended that it was able to perform the contract in accordance with an erroneous but tenable construction of its obligations under the contract.

[133]  The respondents also relied on Woodar Investment Development Ltd v Wimpey Construction UK Ltd.

[134]  That case concerned a contract to buy certain land. There was a prospect that planning permission for development might be granted. By a special condition the purchasers reserved a right to rescind ‘if prior to the date of completion’ a relevant authority ‘shall have commenced’ a process for compulsory acquisition of the property or part thereof. In fact, before entry into the contract the Secretary of State for the Environment had, to the knowledge of both parties, commenced the procedure for compulsory acquisition of part of the land. Subsequently the purchasers sent a notice purporting to rescind based on the pre-contract draft compulsory purchase order. The vendors brought an action for a declaration that the condition gave the purchasers no right to rescind and in subsequent proceedings sought damages. The trial judge, Fox J, held that the purchasers were not entitled to invoke the condition and by doing so had wrongfully repudiated the contract. The Court of Appeal affirmed Fox J’s decision that the purchasers had repudiated the contract.

[135]  In the House of Lords there was no challenge to the trial judge’s finding that the special condition could not be invoked because the relevant procedure had started before the date of the contract — it therefore not falling within the words ‘shall have commenced’. However, by a majority (Lord Wilberforce, Lord Keith of Kinkel and Lord Scarman; Lord Salmon and Lord Russell of Killowen dissenting) the House of Lords allowed the purchasers’ appeal. The majority held that the evidence of the purchasers’ conduct was insufficient to support a finding of repudiation.

[136]  There was general acceptance that in assessing whether there had been repudiatory conduct by one party it was necessary to look at the party’s conduct as a whole. 87 A member of the minority also accepted that a party’s action or inaction on the basis of a mistaken belief as to its rights under a contract need not amount to a renunciation. 88 The difference between the majority and the minority predominantly arose in characterising the purchasers’ conduct as a matter of fact.

[137]  Lord Wilberforce stated:

In the present case, without taking [the purchasers’] conduct generally into account, [the vendors’] contention, that [the purchasers] had repudiated, would be a difficult one. So far from repudiating the contract, [the purchasers] were relying on it and invoking one of its provisions, to which both parties had given their consent. And unless the invocation of that provision were totally abusive, or lacking in good faith, (neither of which is contended for), the fact that it has proved to be wrong in law cannot turn it into a repudiation. 89

[138]  Lord Wilberforce then examined the purchasers’ conduct. This included discussions between representatives of the vendors and the purchasers. The purchasers expressed their intention to rely on the special condition. The vendors expressed their intention to seek a judicial determination of the validity of any such notice purportedly given under the contract. His Lordship discerned an assumption on the part of the purchasers, not disputed by the vendors, that both sides would abide by the decision of the court. 90

[139]  Lord Wilberforce considered this ‘quite insufficient’ to support the case for repudiation concluding, as a ‘clear conclusion of fact’, that the purchasers manifested no intention to abandon, or to refuse future performance of or to repudiate the contract. 91 His Lordship also observed that:

[I]t would be a regrettable development of the law of contract to hold that a party who bona fide relies upon an express stipulation in a contract in order to rescind or terminate a contract should, by that fact alone, be treated as having repudiated his contractual obligations if he turns out to be mistaken as to his rights. Repudiation is a drastic conclusion which should only be held to arise in clear cases of a refusal, in a matter going to the root of the contract, to perform contractual obligations. To uphold [the vendors’] contentions in this case would represent an undesirable extension of the doctrine. 92

[140]  The other members of the majority in the House of Lords also found that nothing in the purchasers’ conduct evinced an intention to refuse performance of the contract. 93 Separately, Lord Keith of Kinkel identified earlier authorities in which the assertion by one party to the other of an honestly held but erroneous view as to the validity or effect of a contract did not constitute repudiation. 94 Lord Keith concluded:

Where one party, honestly but erroneously, intimates to the other reliance upon a term of the contract which, if properly applicable, would entitle him lawfully to rescind the contract, in circumstances which do not and are not reasonably understood to infer that he will refuse to perform his obligations even if it should be established that he is not so entitled, legal proceedings to decide that issue being in contemplation, I do not consider it in accordance with ordinary concepts of justice that the other party should be allowed to treat such conduct as a repudiation. Nor, in my opinion, are there any considerations of convenience which favour that course. 95

[141]  The minority took a different view of the facts. Lord Salmon considered it was obvious from the surrounding circumstances that the purchasers had made up their mind that in no circumstances would they comply with their contractual obligation to buy the land at the contract price. 96 Lord Russell of Killowen thought that the notice of rescission was wholly unequivocal in saying, in effect, that the purchasers would not in any circumstances fulfil the contract. 97

[142]  Counsel for the respondents focused on the English authorities to the exclusion of the Australian authorities. There are, however, a number of relevant Australian authorities including High Court of Australia authorities. First in time is Summers v Commonwealth. 98 There, sitting as a judge at first instance, Issacs J (as his Honour was then) considered whether there had been a mutual abandonment or abrogation of a contract. His Honour approved earlier authority to the effect that the persistent maintenance of an untenable construction of a contract on a matter of essential substance should be regarded as not consistent with a continuing intention to observe the contractual obligations. 99 That observation is not strictly concerned with inferring repudiation. But it inevitably follows that persistence in an untenable construction will ordinarily be regarded as repudiatory.

[143]  Next is the important case of DTR Nominees Pty Ltd v Mona Homes Pty Ltd. 100

[144]  The facts in DTR Nominees Pty Ltd are complicated. For present purposes it is enough to say that the case involved a contract to sell land. The parties to the contract adopted conflicting interpretations as to what was required under the contract. Each party then claimed to rescind the contract on the ground that the other party had repudiated and renounced the contract. On the interpretation found by the plurality (Stephen, Mason and Jacobs JJ; Aickin J agreeing) the vendor was in breach of the contract. However, there was a real constructional issue to be resolved — the trial judge preferred a different construction to that which found favour in the High Court.

[145]  Having succeeded on the constructional issue, the purchasers submitted that the vendor should be found to have repudiated or renounced the contract as the vendor was acting on an erroneous view of its obligations by its continued adherence to an incorrect interpretation of the contract. The plurality stated:

No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform the contract according to its tenor. He may be willing to recognise his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him. 101

[146]  The plurality endorsed observations to the effect that, where parties cannot agree about meaning, the true construction must be determined by the court. Hence a party should not too readily be found to have refused to perform an agreement by contentious observations in the course of discussions or argument. 102 The plurality then stated:

In this case [the vendor] acted on its view of the contract without realising that [the purchasers] were insisting upon a different view until such time as they purported to rescind. It was not a case in which any attempt was made to persuade [the vendor] of the error of its ways or indeed to give it any opportunity to reconsider its position in the light of an assertion of the correct interpretation. There is therefore no basis on which one can infer that [the vendor] was persisting in its interpretation willy nilly in the face of a clear enunciation of the true agreement. 103

[147]   DTR Nominees Pty Ltd is properly understood as a case where there was a bona fide dispute as to the true construction of a contract expressed in unclear terms. 104 In those circumstances the court is not justified in drawing an inference that the relevant party intended not to perform the contract according to its terms or that it repudiated the contract. 105  DTR Nominees Pty Ltd is, so understood, consistent with a general principle identified by Mason J, as his Honour was then, (Murphy and Aickin JJ agreeing) in the subsequent case of Green v Sommerville. There Mason J referred to it being a general principle of the law of contract that ‘the court will not readily infer from a party’s insistence on a wrong construction of a contract that he is unwilling to perform it according to its true construction’. 106 That is all the more so where there is a common mistake and it is sought to infer repudiation from a party’s assertion that it intends to perform the contract by doing what both parties erroneously believe to be required by way of performance (at least until the mistake is exposed). 107

[148]  Finally, mention should be made of Sopov v Kane Constructions Pty Ltd. There the Court of Appeal in Victoria conducted a comprehensive review of the authorities dealing with repudiation by erroneous interpretation. 108 After reviewing the authorities Maxwell P and Kellam JA stated:

The distinctions drawn in the cases may be summarised as follows:

1. For party A merely to assert, or argue for, a wrong interpretation of the contract will usually not be enough to justify party B drawing an inference of repudiation …

2. The inference of repudiation can more readily be drawn when the interpretation relied on by party A is clearly or obviously untenable and party A:

(a) acts (or threatens to act) unilaterally on the basis of the interpretation; or

(b) persists in the interpretation in the face of communications from party B pointing out the error. 109 (citations omitted)

[149]  In addition to the distinctions identified in Sopov v Kane Constructions Pty Ltd. the authorities we have referred to support the following propositions:

1. The generally accepted principles as to repudiation by renunciation 110 remain applicable where a party acts, or threatens to act, based on an erroneous interpretation of the contract and it is claimed that the party thereby repudiated the contract.

2. There are cases in which a party evinces an intention that it will not perform the contract according to its terms by acting or threatening to act on an incorrect interpretation of a contract. 111 This is more likely to be the case where:

(a) the construction adopted by the defaulting party is clearly or obviously ‘untenable’ 112 — conduct or threatened conduct which cannot reasonably be justified by the terms of the contract may be such as to convey to a reasonable person in the position of the other party a renunciation of the contract or of a fundamental obligation under the contract; or

(b) the erroneous construction adopted by the defaulting party is maintained steadfastly despite correction. 113 In other words the defaulting party is not ‘open to correction’. 114

3. However, the court is not justified in drawing an inference that the relevant party intended not to perform the contract according to its terms — or that it repudiated the contract — where there is nothing more than a bona fide dispute as to the true construction of a contract expressed in unclear terms. 115 Nor where, viewed objectively, the party is willing to perform the contract according to its tenor; to recognise its heresy; or to accept an authoritative exposition of the correct interpretation. 116

4. The issue is resolved objectively by reference to the effect that the defaulting party’s conduct would have on a reasonable person in the position of the other party. 117 It follows that an uncommunicated subjective belief is irrelevant even if the defaulting party honestly believes that its act or threatened act is justified by the contract based on an erroneous interpretation thereof. 118

5. Where, however, such a belief is made known by the defaulting party to the other party, the expression of that belief is conduct outwardly manifested which is to be taken into account in deciding whether a reasonable person in the position of the other party would infer that the defaulting party had renunciated the contract. 119

(emphasis added)

65 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 [44] .

66 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [44] .

67 Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 , 625 – 626; Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, 33, 40; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623, 634, 643, 647 – 648, 658, 666.

68 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (281), (294).

69 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (648), (657–658); Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (44].

70 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (647), (657).

71 Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60 , 71. See also: Woodar Investment Development Ltd v Wimpey Construction UK Ltd (292); Shevill v Builders Licensing Board (633); Progressive Mailing House Pty Ltd v Tabali Pty Ltd (32); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (643), (657).

72  Woodar Investment Development Ltd v Wimpey Construction UK Ltd (280–281), (292), (294–296), (299); Shevill v Builders Licensing Board (633).

73 Primary reasons [334].

74 Sopov v Kane Constructions Pty Ltd [2007] VSCA 257; (2007) 20 VR 127 [9] . See also [10]–[17].

75 See eg R & A Cab Co Ltd v Kotzman [2008] VSCA 68 [49].  Woodar Investment Development Ltd v Wimpey Construction UK Ltd also refers to bona fides: (283).

76 Appeal ts 158.

77 ts 728.

78 Ross T Smyth & Co Ltd v T D Bailey, Son & Co (72).

79 Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipbuilding Co Ltd (1919) 121 LT 628 .

80 Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699 .

81 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (283).

82 James Shaffer Ltd v Findlay Durham & Brodie .118).

83  James Shaffer Ltd v Findlay Durham & Brodie (121).

84 James Shaffer Ltd v Findlay Durham & Brodie (123).

85 James Shaffer Ltd v Findlay Durham & Brodie (126).

86 James Shaffer Ltd v Findlay Durham & Brodie (124).

87 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (280), (289–290), (292), (294), (298–299).

88 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (291–292).

89 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (280).

90 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (281–282).

91  Woodar Investment Development Ltd v Wimpey Construction UK Ltd (282).

92 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (283). Compare, however, the contrary observations of Lord Russell of Killowen: (293).

93 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (296) Lord Keith of Kinkel, (299) Lord Scarman.

94 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (295–296).

95 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (297).

96 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (289–290).

97 Woodar Investment Development Ltd v Wimpey Construction UK Ltd (292).

98 Summers v Commonwealth [1918] HCA 33; (1918) 25 CLR 144 .

99 Summers v Commonwealth (152).

100 DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 .

101 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

102 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

103 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

104 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (37). See also DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

105 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (433).

106 Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594 , 611.

107 Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342 , 366.

108 Sopov v Kane Constructions Pty Ltd [7] –[17] .

109 Sopov v Kane Constructions Pty Ltd [17].

110 See [120]–[121] above.

111  DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

112 Sopov v Kane Constructions Pty Ltd [17] . See also [18], [123], [129]–[141], [148]. Compare: James Shaffer Ltd v Findlay Durham & Brodie (118), (123), (126); Woodar Investment Development Ltd v Wimpey Construction UK Ltd (280), (283).

113 Summers v The Commonwealth .152); DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

114 Ross T Smyth & Co Ltd v T D Bailey, Son & Co (72).

115 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432 – 433).

116 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432).

117  See the generally applicable principles discussed at [121.2] and [123] above.

118 Sopov v Kane Constructions Pty Ltd [9] –[11] .

119 See eg: Woodar Investment Development Ltd v Wimpey Construction UK Ltd (280–283), (297); DTR Nominees Pty Ltd v Mona Homes Pty Ltd (432–433).

Speech delivered by the Honourable Justice Colvin, Judge of the Federal Court of Australia, to the Western Australian Bar Association and Francis Burt Chambers Civil Litigation Skills Course on 30 July 2024.

Justice Colvin delves into the “essence of construction of commercial contracts”. In his opening remarks, his Honour exhorts the audience (of mainly Barristers) to think more carefully about the result they are trying to achieve by moving beyond the mindset of, for example searching for particular sentences in a judgment to support a presupposed position in support of their client’s preferred outcome, to instead striving to understand the “way the law should mediate or resolve the outcome”. Having made these general observations, His Honour then turns to consider the approach taken to construction of commercial contracts. In particular, his Honour focuses on the meaning of the proposition that “in order to properly construe the language of a commercial contract it is necessary to have regard to the contract as a whole”. As his Honour observes, it is a notion “worth focussing upon because the notion of the contract as a whole lies at the heart of the construction task”.

The full text of his Honour’s speech is available here.

In Atanaskovic Hartnell Corporate Services Pty Ltd v Kelly [2024] FCAFC 137 (31 October 2024), the Full Court of the Federal Court set aside a decision of the Federal Circuit Court of Australia – as it then was- that found that a long serving employee of the appellant was entitled to damages for unpaid employment entitlements, as well as general damages, and that the appellant had breached the Fair Work Act 2009 (Cth).  The principal ground of appeal concerned the trial judge – in respect of the appellant’s cross-claim – having engaged in substantial copying of the lengthy submissions of the respondent, denoting, it was argued, a lack of consideration of the merits of the appellant’s argument.  The Full Court found, unanimously, that this argument was correct, upholding the appeal and remitting the matter for further trial.  Each of the judges (Collier, Logan and Goodman JJ) gave reasons.  All are worthy of perusal, but for the assistance of readers, for the sake of brevity, below there is set out an excerpt from the reasons of Logan J, which are representative:

[95]  The Liability Judgment is no less than 464 paragraphs in length. Of these, paragraphs [169] to [251] inclusive are directed to an examination of the merits, if any, of the cross-claim. As pleaded, appeal grounds 8B and 11B are particular amplifications of appeal grounds 8A and 11A respectively, each of which allege an inadequacy in the reasons of the first primary judge for the dismissal of the cross-claim.

[96]  As so amplified, the grounds require a comparison between the identified paragraphs in both the Liability Judgment and Mrs Kelly’s written closing submissions as filed in the Circuit Court.

[97]  Such a comparison discloses that paragraphs [169] to [251] inclusive have been copied, almost verbatim, from Mrs Kelly’s written closing submissions. There are no differences of substance. Instead, the differences may be summarised as follows:

(a) removal in the Liability Judgment of in-text references in Mrs Kelly’s written closing submissions to evidence (sometimes deleted, sometimes moved to a footnote);

(b) adoption in the Liability Judgment of slightly different short-titling conventions;

(c) removal in the Liability Judgment of selected words (ie “(an employed solicitor of AH LLP)” and “Extraordinarily,”);

(d) changes of tense in the Liability Judgment (ie “must fail” to “fails”);

(e) slight changes of expression in the Liability Judgment (ie “inter alia” to “among other things” and “How could Mr Hartnell have genuinely agreed…” to “I fail to see how Mr Hartnell could have genuinely agreed…”);

(f) removal in the Liability Judgment of above paragraph references in Mrs Kelly’s written closing submissions (ie “As set out in paragraph 384 above” to “As set out above”); and

(g) insertion in the Liability Judgment of “in my view”.

[98]  The end to which such a comparison is directed is qualitative, in relation to whether there has been an exercise of the judicial function, not quantitative. However, in combination with an absence of any related judicial analytical content, quantitative measures may, in context, evidence a qualitative failure.

[99]  AHCS and Mr Atanaskovic also filed written closing submissions in the Circuit Court.

[100]  The written submissions of each of the parties were supplemented by oral submissions.

[101]  There is no reference in the Liability Judgment to the submissions, either written or oral, made on behalf of AHCS and Mr Atanaskovic with respect to the factual merits of the cross-claim.

[102]  Irrespective of whether the judgment of the New South Wales Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376 “broke new ground” in relation to the existence of an obligation to give reasons when exercising judicial power (qv Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond), at 666 per Gibbs CJ and cf as to whether “new ground” was broken, Fleming v R (1998) 197 CLR 250, at [22] per the Court), it may be accepted that a judge of the Circuit Court exercising judicial power finally to determine the subject of liability in respect of the various claims and the cross-claim made in this case was subject to such an obligation.

[103]  The position at common law with respect to an exercise of judicial power in relation to an obligation to give reasons differs from the position at common law with respect to an exercise of executive or administrative power, where there is no such common law obligation: Osmond. The obligation of a judge exercising, as the first primary judge did, the judicial power of the Commonwealth under Ch III of the Constitution to give reasons may be regarded as an inherent feature of holding an office permitting the exercise of such power: Wainohu v New South Wales (2011) 243 CLR 181, at [104]–[109] per Gummow, Hayne, Crennan and Bell JJ.

[104]  Writing extra-judicially, a former Chief Justice of the High Court of Australia, Sir Anthony Mason, has opined that the judicial obligation to give reasons forms part of a “culture of justification” that exists in modern democracies: Sir Anthony Mason, ‘Reply to David Dyenhaus’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (Federation Press, 2003) 52, 54. Justification is certainly a key reason for why there is such a judicial obligation. However, assuming the existence, in a modern democracy, of a culture of justification, that does not, with respect, offer a wholly satisfactory rationale for why, at common law, an exercise of judicial power attracts an obligation to give reasons but an exercise of administrative power does not. A more satisfying rationale for the distinction may perhaps be that it is an inherent feature of adjudication that it entails the giving of reasons for that adjudication, whereas it is an inherent feature of an exercise of executive power at common law that it may be peremptory, requiring instant obedience and compliance, even at the risk of death (eg a command by a superior to a subordinate on the battlefield). The example given is an extreme one but executive power falls for its exercise in such a wide variety of circumstances that it would be impractical, as a matter of policy, to condition the validity of its exercise on whether, in given circumstances, an obligation to give reasons either existed or had, or had not, been discharged.

[105]  Consistent with the case authorities just mentioned, it was not controversial between the parties that the first primary judge was subject to an obligation to give reasons.

[106]  In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 279, McHugh JA (as his Honour then was) identified three purposes served by the furnishing of reasons in an exercise of judicial power:

(i) enabling “the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”;

(ii) enabling judicial decisions to be scrutinised, whether by appellate courts or the public; and

(iii) allowing the members of the society served by the excise of its judicial power “to ascertain the basis upon which like cases will probably be decided in the future”.

[107]  The first primary judge did not, by the Liability Judgment, fail to give reasons either at all or in respect of his Honour’s dismissal of the cross-claim. However, in respect of the cross-claim, the reasons given gave no indication that the submissions of AHCS and Mr Atanaskovic had been considered at all, let alone understood. On their face, the reasons are, in substance, an uncritical, wholesale ‘cut and paste’, without attribution, analysis or even just expression of agreement, of Mrs Kelly’s written, closing submissions. A reader thereof, cognisant of the written submissions made by AHCS and Mr Atanaskovic in respect of the cross-claim, might, with respect, reasonably form the view that the first primary judge was but a cypher for Mrs Kelly.

[108]  With the exception, during the period when such an appeal lay from an Australian court, of proceedings before the Judicial Committee of the Privy Council (an interlocutory step in Judicial Committee practice, preceding oral submissions, was the preparation of the Case, which included a summary in writing of the submissions of a party: see Judicial Committee Rules 1957, SI 1957 No 2224 (UK), r 63 and Atkin’s Court Forms (2nd Ed), Vol 5, Appeals, [27]), any form of written advocacy in Australian judicial proceedings is a modern phenomenon. In earlier times, but still within living memory, submissions in both original and appellate jurisdiction were wholly oral.

[109]  The facility readily to cut and paste passages from one document to another is another phenomenon of modern times, of the digital age. So, too, with word processing, is there a ready facility for prolixity in written submissions (and, it must be conceded, judgments).

[110]  Modern times have also seen a much greater resort by judges to the delivery, after reservation of judgment, of reasons for judgment in writing, especially in respect of trials and even some interlocutory applications, rather than delivering those reasons ex tempore with those reasons as transcribed then being revised from transcript in respect of matters of grammar or style.

[111]  With increasing judicial workloads and without a commensurate increase in the number of judicial officers, these developments have, as never before, offered in combination a temptation to busy judicial officers, conscious of an obligation to give reasons, to cut and paste passages from the submissions of a party.

[112]  With the digital age has also come an ability readily to compare the contents of two documents.

[113]  The result is that, in a way not encountered in the exercise of appellate jurisdiction in earlier times, appellate courts are from time to time faced with questions such as are raised by the present appeal.

[114]  As will be seen from what follows, two schools of thought have developed in the exercise of appellate jurisdiction as to the vice presented by extensive, unattributed cutting and pasting into reasons for judgment the written submissions of a party.

[115]  One, taken up in the grounds of appeal and related submissions of AHCS and Mr Atanaskovic, is that the reasons given for the orders under challenge in the appeal are “inadequate”. What is meant by this is that, in light of the judicial obligation to give reasons, the exercise of judicial power has failed, because there is no adequate explanation given for the making those orders.

[116]  The other school of thought is that such reasons evidence that justice has not been seen to be done.

[117]  On analysis, these schools of thought are, in my view, but different sides of the same coin of a valid exercise of judicial power, which does not occur if justice is not seen to be done, with that manifested if reasons for judgment do not, in explaining why particular orders have been made, make some reference at least to why the submissions of a party that such orders not be made have been rejected. Further, justice will not be seen to be done if the reasons given by a judicial officer do not, reasonably viewed, evidence judicial independence, a hallmark of any exercise of judicial power. The wholesale, unattributed copying and pasting of the written submissions of one party, in combination with an absence of any reference to the submissions to the contrary of an opposing party, may reasonably suggest partiality on the part of a judicial officer. And that is so even if the judicial officer concerned was in fact scrupulously independent, just time-poor. Put another way, such reasons for judgment may give rise to a reasonable apprehension of bias, even if there can be no suggestion of actual bias. These are all but different ways of describing a failure to observe essential features of a valid exercise of judicial power.

[118]  It is apt to commence a discussion of cases concerned with unattributed copying of the submissions of a party with this Court’s judgment in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (LVR). LVR arose against the background of extensive, unattributed copying by the Administrative Appeals Tribunal (Tribunal) of the written submissions of one party to taxation review proceedings. Although the case contains reference by analogy to some of the Australian authorities concerning unattributed copying in judicial proceedings of the written submissions of a party, the Full Court was astute to note differences between the origins of an administrative body’s obligation to give reasons, the standard expected in respect of administrative reasons and the approach to their scrutiny on later, judicial review. For present purposes the importance of LVR lies in the extensive analysis, at [99]–[112], of North American (ie Canadian and United States) authorities concerning unattributed copying of the written submissions of a party in the exercise of judicial power.

[119]  The conclusion reached by the Full Court, at [111], as to the effect of United States authorities on the subject was that the analysis of such reasons was not merely quantitative, but qualitative and directed to the end of whether there had been a failure to perform the judicial function.

[120]  The conclusion reached, at [112], was that the Canadian approach was to consider, “could a reasonable and informed observer be persuaded that the trial judge had examined all of the evidence before him and made appropriate findings. The court looked beyond the words themselves and to the circumstances of their creation. Issues of public accountability and confidence in the administration of justice were invoked.”

[121]  The analysis of North American authorities in LVR supports the observation already made that extensive, unattributed copying of a party’s written submissions manifests a failure to perform the judicial function with evident schools of thought in Australian authorities being but different sides of the same coin.

[122]   Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia (2023) 297 FCR 143 offers another example in this Court of extensive copying by the Tribunal of the submissions of a party being held to invalidate the resultant decision but it is not necessary further to refer to that case.

[123]  What then of the two Australian schools of thought?

[124]  These two schools of thought are starkly evident in Li v Attorney General for New South Wales (2019) 99 NSWLR 630 (Li).

[125]  In strict form, Li did not arise from a judicial proceeding. It entailed a challenge in the New South Wales Court of Appeal by an unsuccessful applicant to the outcome of an administrative inquiry into his criminal sentence. The inquiry was conducted, as the governing legislation envisaged, by a Supreme Court judge, sitting in an administrative capacity. The judge copied, almost verbatim and without attribution, the submissions of the respondent Attorney General. The judge made at least stylistic amendments to every paragraph of the submissions, some paragraphs were omitted and other brief passages were added. Albeit by majority (Basten and White JJA, Brereton JA dissenting), the challenge failed. In part, that failure was attributable, on the part of the majority, to a differing standard applicable to the reasons of an administrative body, compared with a court, especially a superior court. However, the difference between the majority and the dissenting judge also entailed differing views as to the rationale for the setting aside of exercises of judicial power in circumstances where there was wholesale copying of the written submissions of a party.

[126]  The majority, Basten and White JJA, approached the question with reference to the adequacy of the reasons given. They each held that the primary judge’s adoption of the Attorney General’s submissions did not reveal jurisdictional error. This was because it was not shown that the reasons were not the judge’s own opinion or that he had not turned his mind to the decision. Further, this conclusion was supported by the recognition that there is a lower burden on administrative decision-makers in providing reasons than superior court judges. Thus, at [44]–[48], Basten JA, with whom White JA largely agreed, stated:

[44] In his written submissions, the Attorney referred to a number of cases in which appellate courts have held that the adoption by a judge of the submissions of one party might involve an inadequate exercise of jurisdiction. Three circumstances may be identified.

[45] In the first, where the reasons set out the submissions presented by both parties, and then simply express a preference for one set of submissions over the other, there will be a failure on the part of the judge to give reasons for his or her choice. So much was held in Commissioner for Railways for the Queensland v Peters and Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd.

[46] A second situation may arise where the judge adopts one party’s submissions almost in their entirety, whilst totalling ignoring the submissions of the other side. In substance, the result is the same as that in the first category of cases; there is an implicit preference for one set of submissions over the other without giving reasons for the choice.

[47] The third category also falls within the same pattern of error, but in form the emphasis is upon the reproduction of the submissions of one party, without attribution, and again without reference to the contending submissions of the other party. As noted above, the Attorney identified as the basis of error the extent of the “unattributed adoption” of one party’s submissions. However, the lack of attribution is not necessarily a critical factor; although it may indicate a failure to acknowledge what is being done, it will usually be immediately apparent to each party that one party’s submissions have been adopted.

[48] These decisions are of limited assistance for two reasons. One is structural: there is an important difference between the scope of the obligation to give reasons imposed on judges, especially in superior courts, as compared with administrative decision-makers. Indeed, there isno general law obligation on administrative decision-makers to give reasons. The second reason is substantive: the cases involved an adversary hearing in which the contesting parties had each articulated clear and rational submissions in support of their respective positions. These are not separate factors, but both apply in the present circumstances. That is, there was no adversary proceeding and no conflicting evidence and submissions. Rather, there was an application for an inquiry in the course of which the Attorney General articulated both the arguments of the applicant and the responses to those arguments. Had he not done so, the application could well have been dismissed on the basis that the applicant had articulated no satisfactory ground for doubting or questioning the sentence imposed in the District Court.

[footnotes omitted]

[127]  In dissent, Brereton JA identified that it was necessary for “justice to be seen to be done” in the provision of reasons. After reviewing authorities utilising this terminology, his Honour stated the following propositions, at [116]:

(1) reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done; and

(2) justice will not be seen to have been done if the “reasons” are such as to leave a reasonable person in the position of the unsuccessful party with a justifiable sense of grievance at the appearance that the decision-maker has not addressed attention adequately, or at all, to the arguments of the parties, and understood the unsuccessful party’s arguments and either accepted them, or, if rejected, that the rejection was based on a clear and rational process of reasoning.

[128]  Brereton JA then considered, at [117]–[132], cases of judicial copying of submissions. In the course of that consideration, Brereton JA stated, at [124]:

[124]… The cases in which the extensive incorporation of a party’s submissions has not amounted to error all share the characteristic that the reasons contained, in addition to the reproduced submissions, references to evidence, or to the submissions of the other party, or additional reasoning, which sufficed to show that the decision-maker had turned his or her mind to the issues. This illustrates that the central issue is whether the judge has — or appears to have — personally and independently engaged with the issues so as to render an independent and impartial judgment; “[t]he concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking”….

[footnote omitted]

[129]  The conclusion reached by Brereton JA, at [132], about prior authorities concerning judicial copying was:

[132] Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgment founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law.

[130]  As applied in the context of the adequacy of the primary judge’s reasons, the conclusion reached by Brereton JA, [143]–[144], was:

[143] In my view, the judge’s reasons are, by the relevant yardstick, deficient. The extensive adoption of the Attorney’s submissions, not only on uncontroversial matters, but particularly on the formulation and rejection of the applicant’s case, with the only reference to the applicant’s second submission being to a concession, is such as to create an impression that the judge has not independently and impartially engaged with the applicant’s claim and submissions and given serious consideration to them. The four matters inserted — which embellish submissions made by the Attorney rather than engage with submissions advanced by the applicant — are insufficient to overcome this impression, and the stylistic changes, and substitution of conclusions for submissions, even less so. A reasonable person in the position of the unsuccessful applicant would have a legitimate sense of grievance that his submissions had not been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made were just and in accordance with law, and that the judge did not bring his own independent and impartial mind to bear on the issues. The absence of attribution contributes to this impression, because it obscures the nature of what has been done.

[144] In my view, therefore, the extent of the unattributed reproduction of the Attorney’s submissions, particularly in respect of the formulation of the applicant’s case and its disposal, is such as to create an appearance, from the perspective of a reasonable person in the position of the unsuccessful applicant, that his application did not receive proper independent and impartial consideration. Before us, the Attorney conceded as much. Justice was therefore not seen to be done. And as has been explained, in this field, appearances matter, whatever the reality may be.

[131]  In R v Australian Securities and Investments Commission (2018) 134 ACSR 105 (King), one issue for resolution by the Queensland Court of Appeal was whether extensive copying by a trial judge of the submissions of a party dictated that the appeal had to be allowed. The proceeding in the Trial Division under appeal was a complex prosecution by the Australian Securities and Investments Commission (ASIC) of the directors of a failed investment scheme. The trial judgment was 334 pages in length, comprising 1,630 paragraphs. The appellants alleged that the reasons for judgment at first instance were inadequate in several ways, including because of widespread copying of ASIC’s submissions. The appeal did not succeed on that ground but did on the separate question of whether those charged were “officers” of the company (ASIC succeeded on an appeal to the High Court in respect of the latter issue (Australian Securities and Investments Commission v R (2020) 270 CLR 1). However, nothing in that later outcome detracts from the Queensland Court of Appeal’s survey of authorities concerning judicial copying and the conclusion it reached on that subject as to whether, in that case, there had been a failure in the judicial function.

[132]  The Court of Appeal approached whether there had been a failure to perform the judicial function by reference to whether the reasons of the trial judge demonstrated a failure to engage with the appellants’ submissions, thereby evidencing that justice was not seen to be done. The Court of Appeal’s approach pragmatically eschews mere copying being sufficient to make good a challenge, instead requiring that absence of engagement also be manifested. Thus, at [61]–[65], the Court stated:

[60] Given the nature of the case, being one in which, as the primary judge remarked, many of the essential facts were not particularly contentious, and the contentious issues related to the inferences to be drawn from the events that occurred and contemporaneous documents, it is unremarkable that the primary judge drew extensively upon submissions about those events.

[61] The authorities highlight the tension between the need for judges to demonstrate diligence in their reasoning and analysis, and acknowledgment that time-poor trial judges may adopt counsel’s submissions where “… nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words.”

[62] The adoption of one party’s submissions by a judge has been described as “… one method of providing adequate reasons.” In Cojocaru Smith J of the Court of Appeal of British Columbia stated:

… there is nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge’s own independent analysis and conclusions.

In that case Levine and Kirkpatrick JJ considered that the trial judge’s reasons did not meet the functional requirement of public accountability and the appearance of the proper administration of justice.

[63]On appeal the Supreme Court of Canada observed that judicial copying is a long-standing and accepted practice. However, if carried to excess it raises problems and may displace the presumption of judicial integrity and impartiality. The Court identified the issue as not so much a lack of originality or even a failure to attribute sources, but “whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided”.

[64] In Crinion v IG Markets Ltd, the English Court of Appeal emphasised that appearances matter, and the “copying and pasting” of submissions received can reflect poorly on the administration of justice. Nevertheless, if the trial judge “did in fact carry out a proper judicial evaluation of the essential issues and did not simply surrender his responsibility to counsel, then the judgement should stand.”

[65] Reproduction of submissions is not itself an error. Error will exist, however, where the judge fails to engage with significant arguments.

[footnotes omitted]

[133]  Reading the reasons for judgment as a whole, and notwithstanding the extensive copying from ASIC’s submissions in part of those reasons, the Court of Appeal concluded in King that the trial judge, although adopting ASIC’s submissions, had formed his own conclusions and had sufficiently explained the reasons for doing so.

[134]  The New South Wales Court of Appeal also considered the subject of judicial copying in James v Surf Road Nominees Pty Ltd [2004] NSWCA 475. In the overall context of that case, a statement in the reasons for judgment of the trial judge that, “The cross-defendant’s submissions were of substance and are generally adopted in what follows, albeit with minor modification.” was held sufficient to manifest that the trial judge had turned his mind to the issues for resolution with there being no need, in order for reasons to be adequate, to do other than indicate that the submissions of a party as reproduced explained the result: see [163]–[169].

[135]  An example the other way, in terms of a conclusion in the prevailing circumstances that extensive copying manifested a failure in the exercise at trial of judicial power, is Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd(No 2) (2002) 6 VR 1. The Victorian Court of Appeal found that the primary judge’s extensive adoption of one party’s submissions without attribution was inappropriate, stating, at [163]–[165]:

[163] A careful examination of the reasons for judgment shows that the judge adopted LMM’s closing submissions almost in their entirety. More than 40 paragraphs of the judgment correspond closely to the contentions advanced by LMM in its closing submissions. Fletcher mounted contrary arguments relying on particular evidence and contractual provisions, which were set out extensively in its closing submissions. Nowhere in the reasons is there any reference to those contrary submissions. Fletcher alleged that one of a number of defects in the design of the prison was that LMM overlooked the requirement that the walls of cells at the end of the row of cells needed to be of the same strength as other exterior walls. The defect was covered in Fletcher’s closing submissions but was not dealt with in LMM’s closing submissions. We think that it is significant that the judge, too, did not deal with this claimed defect.

[164] LMM submitted in this Court that the judge dealt with Fletcher’s submissions by reaching conclusions which necessarily implied the rejection of those submissions. That is no answer to Fletcher’s complaint. The Court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends.

[165] The contrast in the manner in which the judge dealt with the submissions of the parties is striking, to the point that it appears that most of Fletcher’s arguments and the evidence supporting its arguments were simply ignored by the judge. If his Honour had any reasoned basis for rejecting the arguments, he did not state them. Fletcher was entitled to complain of that treatment.

[136]  In 1990, writing extrajudicially in relation to judgment writing, Kirby P (as his Honour then was) observed, “The losing party is frequently said to be a primary focus of concern. The winner will often have little interest in the reason for success, usually being convinced of the rightness of the cause anyway. But in closely-fought and expensive litigation, the loser is entitled to have from the judge a candid explanation of the reasons for the decision”: M D Kirby CMG, ‘On the writing of judgments’ (1990) 64 ALJ 691, at 692. As Kirby P’s observation attests, the important purpose of explaining in reasons for judgment to a losing party the reasons for the loss was not, in 1990, a novel thought. It is an enduring truth.

[137]  This litigation was undoubtedly closely fought and, one might infer from the length of the trial, expensive. Also undoubtedly, Mr Atanaskovic in particular emphatically disagrees with the outcome. Although, unfortunately, his counsel have, to an extent, succumbed to translating that emphatic disagreement into some passages in written submissions which are less than respectful to the first primary judge, it is a given that, as a losing party, Mr Atanaskovic was entitled to know why he lost and by reasons which did not give rise, reasonably, to an apprehension that his evidence had not been independently assessed.

[138]  Context is most important in relation to whether wholesale copying vitiates a judgment given at trial. In this regard, context is broader than just the part copied in the context of the reasons for judgment as a whole, but also the issues in the case as apparently addressed by the passage copied. Each is part of a qualitative assessment. This point was, with respect, well made in the South Australian Court of Appeal’s judgment in Amaca Pty Ltd v Werfel (2020) 138 SASR 295, at [23]:

As well, even if the reasons (or aspects of the reasons) are apparently “inadequate”, this alone does not necessarily vitiate the entire decision under appeal. Rather, the inadequacy must relate to “material” aspects of the case. That is, issues on which the parties were divided, the resolution of which affected the outcome.

[139]  The reasoning in King, and especially the reference, at [61], to “time-poor judges”, was pressed by Mrs Kelly on the Court as a reason why the wholesale copying in this case ought not to lead to the allowing of the appeal.

[140]  I have no doubt that Circuit Court judges, including the first primary judge, are “time-poor”. That court’s various general and family jurisdictions are high case volume jurisdictions. Further, supervening medical or other exceptional issues apart, it is incumbent on a judge to determine, before retirement, cases which stand reserved. Related to that, it is necessary that heads of jurisdiction administer their courts in a way which allows a reasonable time for a retiring judge to discharge this duty. Given this duty and lead times in a busy court and with ever more looming impending retirement, I suspect that the first primary judge was more than usually time-poor. Looking at the reasons for judgment as a whole, originality, engagement with issues and submissions, and scholarship are displayed in those parts which do not deal with the cross-claim. That is not to say that all conclusions of law discussed were correct, only that they were addressed in a considered way. It is almost as if, having addressed issues other than the cross-claim, the first primary judge found himself running out of time and therefore resorted to the wholesale copying described. It may very well be that his Honour found the reasoning in Mrs Kelly’s submission about the cross-claim congruent with his own views but, unfortunately, his Honour did not say as much in his reasons.

[141]  It was put for Mrs Kelly that the cross-claim was “transparently contrived”. Its dismissal accords with the overall assessment as to credibility of witnesses expressed by the first primary judge, at [156]–[157]:

156. Much of the parties’ closing submissions, both in writing and orally, dwelt upon the credibility of witnesses, in particular Mrs Kelly, Mr Atanaskovic and Mr Sophocles. Mrs Kelly presented as a quiet, thoughtful and honest witness. The demeanour of Mr Atanaskovic presented a stark contrast. He was affable, brash to the point at times of arrogance, highly intelligent (which he was keen to demonstrate) and resolute. Mr Sophocles presented as cautious and watchful and protective of the reputation of both himself and Mr Atanaskovic.

157. Mr Hartnell is an elderly man and his powers of recall were somewhat diminished by time. He presented, however, as a sincere and honest witness.

[142]  Nowhere in the reasons for judgment did the first primary judge advert either to the reminder offered by s 140(2) of the Evidence Act 1995 (Cth) or by Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336, in relation to the reaching of a conclusion, even on the balance of probabilities, on grave issues. Adverting to this standard overtly is useful, because it is apt to underscore why a losing party in a case entailing potentially grave findings needs to understand how and why the adverse findings have been reached.

[143]  It is certainly possible to discern symmetry between the general credibility findings and the various behaviours of Mr Atanaskovic towards Mrs Kelly, as found by the first primary judge, which constituted the background to her adverse action claim and a disposition not to pay her long service leave entitlements. It is likewise certainly possible to regard the asserted set off as all too convenient for this purpose. Such a pejorative view is found in the copied and pasted part of the Liability Judgment. But that was not necessarily the only view one might take and the evidence led for the then respondents before the Circuit Court was directed to proving a different, favourable view of the existence and extent of the cross-claim. In particular, AHCS and Mr Atanaskovic were entitled to reasons which displayed, on their face, an independent assessment of the merits of the cross-claim.

[144]  The difficulty in terms of whether the judicial function has been discharged is that the cross-claim required the resolution of stark credibility issues as well as whether, in law, any loss had been sustained. Subject to statutory exclusion from set off, the fate of the cross-claim was determinative of whether there had been a failure to pay long service leave entitlements. Any such failure might have penal consequences.

[145]  The method employed here of unattributed, wholesale copying of Mrs Kelly’s submissions means that there is, objectively, an appearance that the credibility issues did not receive such an assessment. The vice in it is not plagiarism per se. The exercise of appellate jurisdiction is not to be assimilated with academic assessment of a student paper or thesis. Rather, in context, such extensive, unattributed copying may, in the circumstances of a particular case, give rise to an apprehension of an absence of independent judicial assessment. That, in context, can be the consequence of an absence of a reasoned explanation as to why the arguments found in the copied submission are being preferred to competing, unarticulated submissions.

[146]  Nothing in the foregoing means that reasons for judgment must be as prolix as preceding written submissions, chasing down every rabbit hole which the ingenuity of counsel has excavated. All it means is that the result must be explained and seen, objectively, to have been independently explained.

[147]  After judgment had been reserved, the parties drew the Court’s attention, and made related submissions, concerning yet another intermediate appellate judgment concerning judicial copying, Porter v R (2024) 21 ACTLR 122 (Porter), a judgment of the Court of Appeal for the Australian Capital Territory.

[148]  In Porter, a sentencing judge largely adopted the prosecution’s submissions but expressed the final conclusion in her own words. On appeal, the Court discussed, at [36]–[42], the divergence in approach between Basten JA and Brereton JA in Li (including subsequent dicta by Basten JA in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479). Without resolving which was to be preferred, the Court of Appeal determined, at [51], that “reasons will be inadequate where, when objectively assessed as a whole, they do not demonstrate that the judge ‘gave independent and impartial consideration to the evidence and the issues’”. That conclusion accords, in my respectful view, with the view expressed above by me that the apparently divergent schools of thought evident in Li are but different sides of the same coin. Approaching the appeal in Porter in this way, the Court of Appeal ultimately concluded, at [90], that the primary judge’s reasons, when read as a whole, were sufficient. That was because of the extensive analysis of the evidence, engagement with the offender’s submissions and reiteration of key conclusions. In terms of principle, Porter reinforces a conclusion, in the different circumstances of this case, that there was a failure in the judicial function in relation to the determination of the cross-claim.

[149]  The consequence of this conclusion means that the declaration in the Liability Judgment as to a contravention of s 90 and s 323 of the FWA by AHCS and, as an accessorial party, Mr Atanaskovic must be set aside. So, too, must be the orders that they pay Mrs Kelly the sum of $130,427.84 within 21 days, plus interest up to judgment and the order dismissing the cross-claim. As is separately conceded and for reasons given above, the order that AHCS and Mr Atanaskovic pay Mrs Kelly general damages in the sum of $30,000 must also be set aside.

[150]  A consequential corollary of these orders is that each of the orders made in the Penalty Judgment must be set aside. Although Mrs Kelly sought to preserve the penalty orders on the basis that s 323 of the FWA excluded a set off, that question only arises if the cross-claim is proved.

[151]  Given that a re-trial must occur, the various procedural fairness complaints made by AHCS and Mr Atanaskovic in other grounds of appeal become irrelevant. Also given that a re-trial must occur, it is neither necessary nor desirable that the Court reach conclusions about whether particular findings concerning witnesses who gave evidence relevant to the cross-claim were, or were not, open on the evidence.

[152]  It was also put for AHCS and Mr Atanaskovic that any order for a re-trial should specify that it not be heard by the second primary judge, having regard to observations and conclusions about AHCS and Mr Atanaskovic. In my view, such an order is not necessary. There is no reason to doubt that the chief judge of the Circuit Court will not, in his Honour’s judicial administration of that court, fail to take into account in docketing decisions the basis upon which the appeal has succeeded and the credibility findings made by the second primary judge.

[153]  As the appeal has succeeded on a question of law, it may be that a party to the appeal is eligible, and disposed, to make an application for an order under the Federal Proceedings (Costs) Act 1981 (Cth). I would therefore reserve liberty to apply to a party to make such an application. If only out of an abundance of caution, and although the appeal has succeeded on the basis of a judicial error to which no party contributed, provision should be made for the determination on the papers of such other costs application, if any, as a party to the appeal may make.

(emphasis added)

What falls from the judgments in this case, and the cases to which it refers, are essentially these two points:

• First, wholesale copying of submissions does not in itself serve to vitiate a judgment, but, prima facie, it calls up for steady consideration the second issue below.
• Second, as was noted in the 2024 Court of Appeal of the Supreme Court of the ACT decision in Porter v R:  “…[judicial] reasons will be inadequate where, when objectively assessed as a whole, they do not demonstrate that the judge gave independent and impartial consideration to the evidence and the issues” but that a judgment “will only be vitiated where the reasons are such that it should be inferred that they are not the product of an active application of an independent and impartial mind”.