Digital platforms like X Corp (formerly Twitter), which facilitate social interaction and public discourse around the world, are subject to increasing regulatory scrutiny by governments seeking to address harmful content, ensure user safety, and hold tech giants accountable. Yet efforts to regulate these platforms are fraught with complexity. The global nature of their operations raises questions about the limits of jurisdiction, the powers of enforcement and the right to freedom of expression, together with widespread and sometimes heated controversy about the restriction of access to certain material by government officials. Australia, like many jurisdictions, is required to grapple with how to target platforms’ responsibility for the content they host whilst balancing these considerations.
Australia’s Online Safety Act 2021 (Cth) (the OS Act) establishes a set of Basic Online Safety Expectations (BOSE) for online service providers. These expectations require providers to take reasonable steps to ensure user safety, reduce harmful content and report on compliance. The OS Act empowers the eSafety Commissioner to issue a removal notice for certain material, to require internet service providers to restrict access to this material, and to issue civil penalties for non-compliance. The OS Act has extraterritorial reach, applying to platforms accessible within Australia, even if they are not based in the country.
The Australian Federal Court considered the legal meaning and scope of a removal notice to X Corp last year in eSafety Commissioner v X Corp [2024] FCA 499, a matter which garnered significant public interest and caused the Court to maintain a publicly available online file. The content the subject of the removal notice was a video, accessible via URLs hosted on X, depicting a violent stabbing attack on Bishop Mar Mari Emmanuel, leader of the Assyrian Orthodox Christ the Good Shepherd Church, during a livestreamed church service in Wakeley, Sydney, on 15 April 2024. The footage showed a teenage male rushing at the Bishop and attacking him. It showed the assailant raising their arm and striking the Bishop several times with a downward motion and the Bishop falling backwards. It is not clear from the video that a knife is being used, although that can be inferred. The reactions of witnesses can be heard.
On 16 April 2024, a delegate of the eSafety Commissioner issued a removal notice under section 109 of the OS Act to X Corp, requiring it to take all reasonable steps to ensure the removal of the material from its platform within 24 hours. X Corp responded by geo-blocking the URLs in Australia, thereby preventing access to the material by users with Australian IP addresses. However, the company did not take steps to prevent access by Australian users employing virtual private networks (VPNs) or other circumvention tools, nor did it remove the content entirely from its platform or limit its visibility through other technical means. The Commissioner raised concerns regarding the platform’s compliance under the OS Act, given the nature of the material – which the New South Wales Police Commissioner had described as a terrorist act.
The eSafety Commissioner applied to the Court seeking a declaration to the effect that X Corp had not complied with the notice, a pecuniary penalty and an injunction, which effectively required X Corp to carry out certain removal steps.
The arguments raised by the eSafety Commissioner included that X Corp’s actions did not satisfy the statutory requirement to remove the material, as defined in section 12 of the OS Act, which provides that material is considered removed only when it is neither accessible to, nor delivered to, any end-users in Australia. It was submitted that X Corp was capable of taking additional technical measures, such as removing or restricting the material entirely, obscuring it with a warning notice, or reducing its discoverability on the platform. It was also submitted that geo-blocking was insufficient in light of the ease with which Australian users could circumvent such restrictions.
The arguments raised by X Corp included that its actions—geo-blocking the URLs in Australia—were reasonable and sufficient under the OS Act, and that global removal or further restrictions were not reasonable. It emphasised the Bishop’s consent and support for the publication of the video, freedom of speech, the relevance to public discourse and the availability of the video on other platforms.
The case raised interesting issues, notably the extraterritorial reach of Australian online safety laws and the implications for global internet governance and freedom of expression. However, on this occasion the Court’s role was confined to construing the legal meaning and scope of the removal notice issued under section 109 of the OS Act, which authorised the eSafety Commissioner to issue a notice requiring a service provider to take “all reasonable steps” to ensure specified material is “removed” from the service—defined under section 12 to mean that it is no longer accessible to or delivered to “any end-user in Australia”:
[40] The policy questions underlying the parties’ dispute are large. They have generated widespread and sometimes heated controversy. Apart from questions concerning freedom of expression in Australia, there is widespread alarm at the prospect of a decision by an official of a national government restricting access to controversial material on the internet by people all over the world. It has been said that if such capacity existed it might be used by a variety of regimes for a variety of purposes, not all of which would be benign. The task of the Court, at least at this stage of the analysis, is only to determine the legal meaning and effect of the removal notice. That is done by construing its language and the language of the Act under which it was issued. It is ultimately the words used by Parliament that determine how far the notice reaches.
[41] Section 109(1), which is set out above, determines what a removal notice is and does. The only notice that may be given is a notice “requiring the provider” to “take all reasonable steps to ensure the removal of the material from the service”. The Commissioner chooses the material to which the notice is to apply (based on whether it is “class 1 material”) but does not have a discretion concerning how stringent or widespread the restrictions on access to that material are to be. The notice necessarily requires “all reasonable steps” to “ensure the removal” of the material.
[42] “Removed”, as noted above, is defined by s 12 of the OS Act. Section 18A of the Acts Interpretation Act requires (as common sense would suggest) that other grammatical forms of the same word be given corresponding meanings. “Removal” of material from a social media platform is a process that results in the material being “removed” in the defined sense: that is, a state of affairs where “the material is neither accessible to, nor delivered to, any of the end-users in Australia using the service”.
[43] The phrase “any of the end-users in Australia” must be read in context.
- One aspect of the context is s 23, which provides that the OS Act extends to acts, omissions, matters and things outside Australia.
- A second aspect of the context is the objects of the OS Act, set out in s 3, which are to promote and improve “online safety for Australians”. The reference to “Australians” suggests that the Act directs its attention to all Australian residents, not only those who use Australian service providers to connect to the internet.
- A third aspect of the context is the Explanatory Memorandum to the Bill for the OS Act (the Online Safety Bill 2021 (Cth)). The Explanatory Memorandum does not cast any direct light on the intended scope of a removal notice under s 109 (other than by observing that the section was intended to apply whether or not the relevant service is provided from within Australia). It notes that the provisions in what became Part 9 of the OS Act were substantially a re-enactment of earlier provisions in Schedules 5 and 7 to the Broadcasting Services Act 1992 (Cth) (the BS Act). Within the time frame of an urgent interlocutory decision, the extent to which I have been able to do my own research on the legislative history is limited. With the parties (both represented by competent counsel) not having submitted that any part of the legislative history would assist me in resolving the constructional issues as to what a removal notice requires to be done, I have proceeded on the basis that analysis of the former provisions of the BS Act would not be illuminating.
[44] The breadth with which the objects of the OS Act are expressed indicates that “any of the end-users in Australia” in s 12 should not be read narrowly. I was not taken to anything in the Act suggesting that the location of the IP address through which a person physically located in Australia connects with the internet was intended to make a difference as to whether they were to be denied access to class 1 material by operation of a removal notice. The Act does not use concepts derived from the structure of the internet, in lieu of ordinary geographical or territorial notions, to describe where people are. I have concluded that the phrase was intended to have its ordinary meaning and that “removal” therefore means making the material inaccessible to all users physically located in Australia. The original location of the relevant provisions in the BS Act, which regulates traditional broadcast media, tends (albeit not very strongly) to confirm this conclusion.
The Court considered that the context of the OS Act supported construing “any end-user in Australia” by reference to users’ physical location, rather than IP routing or service origin. Accordingly, “removal” required the material to be inaccessible to all users physically located in Australia.
In relation to what constituted “reasonable steps”, the Court considered that although the global removal of URLs may be a reasonable course of action for X Corp as a matter of business discretion, it did not follow that it was a required step under section 109. The eSafety Commissioner’s construction—that reasonable steps included global removal to ensure local inaccessibility—would confer upon the Commissioner powers with extraterritorial consequences incompatible with the comity of nations. Such a reading would require clear legislative language, which was absent. Ultimately, it was found that “reasonable steps” required by a removal notice issued under section 109 did not include the steps which the Commissioner sought to compel X Corp to take, such as a global removal:
[45] What the removal notice requires, therefore, is “all reasonable steps to ensure” that the 65 URLs are not accessible to any users physically in Australia. What is meant by “reasonable” steps is therefore critical.
[46] I have no doubt that removing the 65 URLs from its platform altogether would be a reasonable step for X Corp to take, in the sense that a decision by X to take that step could readily be justified. There is uncontroversial evidence that this is what other social media platforms have done, and that X Corp would not be in breach of any United States law if it took this step. However, this is not the test. The OS Act pursues a policy. It is not bounded by the policies of service providers or their contractual relationships with their users. Section 109 imposes its requirements regardless of the wishes of providers and of individual users.
[47] The qualifier “reasonable” should therefore be understood as limiting what must be done in response to a notice to the steps that it is reasonable to expect or require the provider to undertake. That understanding is consistent with how duties arising under the general law to take “reasonable” steps commonly work. Identification of the steps that are “reasonable” in this sense may involve consideration of expense, technical difficulty, the time permitted for compliance (which may be short: see s 109(2)) and the other interests that are affected. It is the last of these factors that is the focus of the parties’ disagreement.
[48] The argument that making the 65 URLs inaccessible to all users of X Corp’s platform everywhere in the world is not a step that it is “reasonable” to require X Corp to perform in order to ensure that the URLs are inaccessible to Australian users (and therefore is not a step required by the removal notice) is powerful.
[49] If s 109 of the OS Act provided for a notice imposing such a requirement, it would clash with what is sometimes described as the “comity of nations” in a fundamental manner. That concept, and the principle of statutory construction that arises from it, were recently discussed by reference to earlier cases in BHP Group Ltd v Impiombato [2022] HCA 33; 96 ALJR 956 at [23]-[32] (Kiefel CJ and Gageler J). It is not limited to the familiar presumption against the extraterritorial operation of statutes and is therefore not excluded here by the express provision for extraterritorial operation in s 23 of the OS Act. It is useful to set out their Honours’ recitation of the authorities at [27]-[31].
Exposition of the common law presumption in play in Morgan v White and in Meyer Heine can be traced in Australia to Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association. There O’Connor J said:
Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits. Under the same general presumption every Statute is to be so interpretated and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law: Maxwell on Statutes, 3rd ed, p 200.
Plainly, O’Connor J did not see the implied restriction on the territorial operation of a statute to which he referred in the first sentence as freestanding but rather as a reflection of the “general presumption” which he expressed in the second sentence with reference to Maxwell on Statutes. There, the presumption appeared in the precise terms adopted by O’Connor J under the heading “Presumption against a Violation of International Law”.
In Barcelo v Electrolytic Zinc Co of Australasia Ltd, Dixon J expressed the presumption in the same language drawn from Maxwell on Statutes as had been adopted by O’Connor J in Jumbunna. His Honour did so interchangeably with language drawn from 19th century English authority to the effect that “[i]t is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”.
Dixon J returned to the presumption in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society. The “well settled rule of construction”, his Honour there explained, is that “an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control”.
In R v Foster; Ex parte Eastern and Australian Steamship Co Ltd, Dixon CJ expressed the presumption yet again. He did so, more pithily, in terms which he said were appropriate to be applied to a Commonwealth statute after the Statute of Westminster Adoption Act. He described it as “a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers”.
(Footnotes omitted.)
[50] If given the reach contended for by the Commissioner, the removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp’s corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world. The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services. The content to which access may be denied by a removal notice is not limited to Australian content. Insofar as the notice prevented content being available to users in other parts of the world, at least in the circumstances of the present case, it would be a clear case of a national law purporting to apply to “persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”. Those “persons or matters” can be described as the relationships of a foreign corporation with users of its services who are outside (and have no connection with) Australia. What X Corp is to be permitted to show to users in a particular country is something that the “comity of nations” would ordinarily regard as the province of that country’s government.
[51] The potential consequences for orderly and amicable relations between nations, if a notice with the breadth contended for were enforced, are obvious. Most likely, the notice would be ignored or disparaged in other countries. (The parties on this application tendered reports by experts on US law, who were agreed that a US court would not enforce any injunction granted in this case to require X Corp to take down the 65 URLs.)
[52] Section 23(2) of the OS Act extends the operation of its provisions to “acts, omissions, matters and things outside Australia”. It confirms that X Corp is in breach of the removal notice if it fails to take some “reasonable step” notwithstanding that the act or omission constituting that failure occurs overseas. However, s 23(2) does not control the meaning of “all reasonable steps”. A clear expression of intention would be necessary to support a conclusion that Parliament intended to empower the Commissioner to issue removal notices with the effect for which she contends.
[53] The result is that, read in context and in the light of normal principles of statutory construction, the “reasonable steps” required by a removal notice issued under s 109 do not include the steps which the Commissioner seeks to compel X Corp to take in the present case.
[54] For these reasons I have come to the view, based on the arguments advanced at this interlocutory stage, that the Commissioner will not succeed in establishing that compliance with the removal notice entails blocking access to the 65 URLs by all users of X Corp. It follows that there is not a prima facie case for the grant of a final injunction in the terms sought.
The Court declined to grant the interlocutory injunction. The case did not justify such relief, considering the principle of the comity of nations and the fact that such relief could potentially affect millions of users, where ultimately, the eSafety Commissioner had failed to establish that there were strong prospects of success – or effectiveness.
As to the potential effectiveness of the injunction, the Court considered, based on legal expert evidence from both sides, that a U.S. court would be unlikely to enforce any injunction to require X Corp to take down all URLs. The expert U.S. lawyers agreed that the removal notice would be contrary to the First Amendment if it were imposed by a government actor in the U.S. and if it restricted the ability of users in the United States to access the video, and that it was highly likely that courts in the U.S. would decline to enforce an Australian court order enforcing the removal notice – either because they would view such an order as repugnant to the public policy of the U.S. or because they might view such an order as penal in character (and U.S. courts do not enforce foreign penal orders).
Even on the assumption that the proposed injunction was not enforceable in the U.S., while a potential educative or deterrent effect was considered, the Court did not find that this was a relevant consideration for the making of interlocutory orders.
The application for an injunction was refused:
[56] If the considerations relating to the comity of nations (discussed at [48]–[51] above) had not led me to the view that the Commissioner has not made out a prima facie case, the same considerations would have led me to conclude that the balance of convenience does not favour extending the interlocutory injunction in its current (or any similar) form.
[57] On the one hand the injunction, if complied with or enforced, has a literally global effect on the operations of X Corp, including operations that have no real connection with Australia or Australia’s interests. The interests of millions of people unconnected with the litigation would be affected. Justifying an interlocutory order with such a broad effect would in my view require strong prospects of success, strong evidence of a real likelihood of harm if the order is not made, and good reason to think it would be effective. At least the first and the third of these circumstances seem to be largely absent. The first is discussed above. As to the third, it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X. I was informed that the video is harder to find on these platforms. The interim injunction is therefore not wholly pointless. However, removal of the stabbing video from X would not prevent people who want to see the video and have access to the internet from watching it.
[58] On the other hand, there is uncontroversial expert evidence that a court in the US (where X Corp is based) would be highly unlikely to enforce a final injunction of the kind sought by the Commissioner; and it would seem to follow that the same is true of any interim injunction to similar effect. This is not in itself a reason why X Corp should not be held to account, but it suggests that an injunction is not a sensible way of doing that. Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute.
[59] It was suggested that an injunction, even if not enforceable, could have an educative or deterrent effect. X Corp’s amenability to education and deterrence might be thought to be open to doubt. In any event, while these are sometimes important considerations in the framing of final relief, I doubt whether they have a proper role in the making of interlocutory orders.
The judgment was delivered on 13 May 2024.
Shortly prior to the delivery of this judgment, on 6 May 2024, X Corp challenged the removal notice in the Administrative Appeals Tribunal (AAT) on the basis that the video did not meet “Class 1” under the Australian classification regime which encompasses “extreme violence material” and that the removal notice was invalid.
On 5 June 2024, the eSafety Commissioner filed a notice of discontinuance of the whole of the Federal Court proceeding for the stated reason that it intended to focus on the AAT matter.[1] At this time, it was reported by the eSafety Commissioner to the Guardian Australia that eSafety had several legal fights with X, “Litigation across multiple locations, multiple cases, prudent use of public funds,” she said. “[X] had a phalanx of lawyers plus the most expensive barrister in Australia [Bret Walker SC].”[2]
Ultimately, the AAT proceeding was resolved by agreement. The office of the eSafety Commissioner said in a statement published on its website on 11 October 2024 that, “eSafety believes that rather than test the interaction of the National Classification Scheme and the Online Safety Act in the context of this particular case, it is more appropriate to await the Federal Government’s consideration of a pending review of Australia’s statutory online safety framework”.[3]
The 2024 Statutory Review of the Online Safety Act 2021, released on 4 February 2025, proposes significant obligations on online platforms such as Facebook, Instagram, TikTok, and X. The recommendations include the introduction of a duty of care by service providers to take reasonable steps to address and prevent foreseeable harms arising from the content on their platforms—such as harm to people’s mental and physical wellbeing and threats to national security and social cohesion—with penalties for a breach of the duty of care of up to 5% of global turnover or $50 million (whichever is greater).
The Report also proposes the creation of a new Online Safety Commission, with powers to impose higher penalties for non-compliance with removal notices—up to $10 million. Platforms with significant reach would be subject to stricter compliance obligations, such as mandatory annual risk assessments, mitigation of risks, measurement of success (or otherwise) and strong transparency reporting. Further, the Report recommends requiring overseas platforms to establish a local presence in Australia.
Elon Musk, the owner and executive chairman of X Corp, has previously publicly criticised Australia’s online safety regulations, such as in a post on X dated 20 April 2024, by referring to the eSafety Commissioner as the “Australian censorship commissar“[4], and continues to challenge Australian online safety regulations. Very recently, in May 2025, X Corp initiated legal action seeking a declaration that a new safety standard for harmful online content (called the Relevant Electronic Services (RES) Standard) does not apply to it. The RES covers two categories of Class 1 material linked to serious harm: Class 1A material, including child sexual exploitation and pro-terror content, and Class 1B material, such as crime, violence, and drug-related content.
The action is ongoing.
In conclusion, digital platform regulation will continue to require courts and regulators to grapple with the balance between national interests, the rights of individuals, and platform responsibility. While the First Amendment in the U.S. robustly protects free speech in the U.S., other countries like Australia appear to place greater emphasis on curbing harmful content to protect the public. This tension becomes apparent when digital platforms such as X Corp argue that complying with removal notices infringes on the free speech rights of users in jurisdictions with more permissive content regulations.
The decision in eSafety Commissioner v X Corp [2024] FCA 499 and the publicly available Court file can be found here.
[1] https://www.esafety.gov.au/newsroom/media-releases/statement-from-the-esafety-commissioner-re-federal-court-proceedings.
[2] Guardian Australia article entitled “X says ‘free speech has prevailed’ after eSafety commissioner drops case over Wakeley church attack posts”, published on 5 June 2024.
[3] https://www.esafety.gov.au/newsroom/media-releases/esafety-statement-administrative-appeals-tribunal-orders#:~:text=eSafety%20believes%20that%20rather%20than,Australia’s%20statutory%20online%20safety%20framework.
[4] https://www.theguardian.com/australia-news/2024/apr/23/elon-musks-x-v-australias-online-safety-regulator-untangling-the-tweet-takedown-orders.
This case considers the enforceability of post-employment restraint clauses and the limits of interlocutory injunctive relief. Here, the Court declined to grant interlocutory relief restraining a former employee from accepting approaches by former clients. While a prima facie case existed that the respondent had accepted client approaches contrary to the restraint clause, the Court found no prima facie case of solicitation and noted that the case for enforceability of the restraint was weak. Weighing heavily against the grant of relief was the potential impact on 22 clients who had expressed a desire to continue working with the respondent. Accordingly, the balance of convenience favoured refusing the injunction.
In Perpetual Limited v Maglis [2025] QSC 71, the Court considered an application for interlocutory injunctive relief sought by Perpetual Limited and a related entity (the applicants) against a former employee, a financial adviser (the respondent). The applicants alleged that the respondent breached post-employment restraints by soliciting clients after commencing work with a competitor firm, Ord Minnett.
By way of background, the respondent’s employment came to an end on 28 February 2025. His contract included a restraint clause—Clause 5.1— prohibiting him, for 24 months post-employment, from “approach, canvass, solicit, accept any approach from or deal with any Client with a view to obtaining the business or custom of that Client in a business that is the same as or similar to any part or parts of the Business” or “counsel, procure or otherwise assist any person, firm or entity to do any of the acts referred to above…”.
After commencement at Ord Minnett in March 2025, the respondent was contacted by 24 former clients. In response, he sent each of them a letter explaining that he was bound by contractual restraints and could only act with Perpetual’s express consent. He enclosed a pro forma letter which clients could send to Perpetual to request such consent.
Several clients did so. Perpetual responded by offering to arrange a phone call to “discuss how the team can assist you.” The letter further stated: “I am confident that [the current Adviser] will continue delivering best-in-class advice while managing your portfolios…If, however, you still wish to transfer your portfolio from Perpetual to Mr Maglis who we understand is now working at Ord Minnett, we will respect your decision and adhere to your request. We note, however, that your former adviser owes a number of post-employment contractual obligations to Perpetual, and as a consequence of this, he is restricted from managing your portfolio until after 28 February 2026. For this reason, Perpetual regrets that it cannot consent to Mr Maglis providing financial services to you and, in the event that he should do so, we will have no choice in those circumstances other than to commence Court proceedings against him (and potentially his new employer) to protect Perpetual’s legitimate business interests and ensure his strict compliance with his post-employment contractual obligations to our business.”
Despite this, several clients contacted the respondent again, and he began what he described as an “onboarding process”, involving a “comprehensive discovery meeting” to discuss their financial objectives and risk profiles.
The applicants contended that this conduct, including the provision of draft letters and onboarding activities, amounted to solicitation and breach of the restraint.
Prima facie case
The issue for determination was whether the applicants had established a prima facie case. At [16]–[17], Bowskill CJ set out the applicable general principles:
[16] There are two aspects to the question whether the applicants have made out a prima facie case – the validity and enforceability of the restraint clause and, assuming it is valid, whether there has been, or is a threat of, breach of it.
[17] In order to show a prima facie case (or serious question to be tried) the applicants do not have to show that they will probably succeed at trial. It is sufficient that the applicants show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability of success needs to be depends on the nature of the rights asserted and the practical consequences likely to follow from the orders sought.
Validity and enforceability of the restraint clause
Her Honour expressed reservations regarding the argument for validity and enforceability of the restraint clause:
[31] On balance, and accepting that this is a determination at an interlocutory stage, I consider the argument for validity of the restraint clause has real challenges, having regard to the extremely broad definition of “Client”, which I do not accept is capable of being severed, read down, or read with additional words, as submitted by the applicants. The focus of the arguments was on the breadth of the clause itself, rather than the cascading periods of time during which it is said to apply. But I would regard that as a significant feature also, in the context of this case, in which it is difficult to see how a restraint – particularly on accepting approaches – for a substantial period of time would be enforceable.
[32] I do not go as far as concluding, on this interlocutory hearing, that there is no prima facie case for the validity of the restraint clause, but I do not consider the argument for validity to be a strong one.
Assuming the restraint clause is valid, whether there has been, or is a threat of, a breach
Her Honour considered that the respondent had accepted approaches from clients of a related entity of Perpetual, contrary to the restraint in clause 5.1:
[39] The evidence (exhibited to Mr Lunn’s affidavit) indicates some of the clients who received a letter in these terms forwarded it to Mr Maglis. There is also evidence of clients contacting Mr Maglis, after informing Perpetual of their desire to take their business elsewhere and receiving a response in the terms outlined above, and Mr Maglis then proceeding to begin what he called an “onboarding process”, which seems to have involved a “comprehensive discovery meeting” with them, discussing their financial objectives and reviewing their risk profile.
[40] I accept that, as a matter of principle, whether solicitation has occurred depends on the substance of what passes between the former employee and the client, and that the matter of who makes the initial contact is not decisive. However, simply responding positively to an approach from a former client will not amount to solicitation – “the line is crossed where the former employee, in response to an approach by a customer, does not merely indicate a willingness to be engaged, but positively encourages the customer to engage him or her”.
[41] Having regard to the evidence before the Court, I do not accept that there is a prima facie case in so far as solicitation is concerned. I accept on its face Mr Maglis’ sworn evidence that he did not initiate contact with the clients; they called him; and I do not accept that he “crossed the line” in terms of his engagement with those clients, in terms of the letter he sent (an example of which is at paragraph [35] above). However, I do accept that there is a prima facie case that Mr Maglis has “accepted any approach from” clients of the second applicant. This is apparent from the evidence broadly described in paragraph [39] above. Counsel for the respondent accepted it was open to reach such a conclusion, at this interlocutory stage.
[42] I therefore conclude, in terms of the first enquiry, that there may be a prima facie case in so far as the first applicant is concerned, albeit a weak one in so far as the enforceability of the restraint clause is concerned, that the respondent has accepted approaches from clients of a related entity of Perpetual, contrary to the restraint in clause 5.1. As already noted, the basis on which the second applicant may be entitled to relief, by way of enforcement of a restraint clause in a contract to which it is not a party, was not explained.
While the Court was not satisfied that solicitation had occurred, it found a prima facie case of the respondent accepting approaches from clients in a way that might contravene clause 5.1—particularly through the onboarding of clients via a “comprehensive discovery meeting”.
Balance of convenience
The balance of convenience weighed against granting the injunction. Bowskill CJ emphasised the weak enforceability case, the absence of solicitation and in particular, the clients’ freedom to choose their adviser:
[44] In considering where the balance of convenience lies, I take into account the view I have reached as to the strength of the applicants’ case on the enforceability of the restraint clause, and the conclusion that there is no prima facie case in terms of solicitation, but only in terms of accepting approaches.
[45] The impact of the grant of an injunction in the terms sought by the applicants on third parties – in particular, the 22 clients who have said that they no longer want Perpetual to handle their financial affairs – is an important factor in this case, tending to weigh the balance against the grant of the relief sought. In addition, counsel for Mr Maglis submits that any protectable “customer connection” that Perpetual might have in those clients has already dissipated, and as a result there is no basis for any injunctive relief in so far as they are concerned. That argument has force, although counsel for the applicants submits they have not “given up” on the prospect of getting those clients to return.
[46] Lastly, in terms of whether damages are an adequate remedy, it is significant that, as Mr Baker acknowledges, clients are free to terminate their relationship with Perpetual and go elsewhere and, on the evidence, 22 of them have already done that. It does seem to me to be a matter of serious concern to be making an order, the effect of which would be to restrict the choice of clients to have their personal financial matters looked after by a person they trust and, in some cases, have worked with for a number of years. Indeed, it has been observed that a restraint which restricts choices available to customers of services may be unreasonable in the public interest.
[47] As against that, Mr Baker also says, on the assumption that there has been a breach of the restraint by Mr Maglis, that it would be difficult to assess the loss and damage to Perpetual as a consequence of the alleged conduct of Mr Maglis, because there will always be a degree of uncertainty as to the length of time that clients would have stayed with Perpetual if there had been no breach; given that Perpetual has a history of servicing clients across generations, the loss of a client can result not only in loss of that client’s business, but also future business of that client’s children; and Perpetual will also lose the referral base its current clients provide. I accept that it would be difficult to assess damages in this case, even assuming the applicants are ultimately successful in the proceeding. Questions of causation (given the importance of the free will of clients in this context) and remoteness (in so far as the generational and referral points are concerned) would seem to loom large.
[48] Both parties are willing to work towards an early trial date for this dispute, and this can be accommodated by the Court.
[49] Taking all these factors into account, the balance of convenience favours refusing the grant of any injunctive relief, given the weak case for enforceability of the restraint (subject to severance of parts of clause 5.1, and limitation of the time period during which it applies) and the fact that the interests of third parties will be affected by the making of such an order in a manner which I consider to be inconsistent with the public interest, particularly as it concerns those third parties’ private financial affairs.
Conclusion
The Court ultimately refused to grant the interlocutory relief. Although a prima facie case existed that the respondent had accepted client approaches contrary to Clause 5.1, the absence of solicitation, the weak case for enforceability of the restraint, and the impact on client choice, weighed against granting the application. Bowskill CJ placed particular weight on the potential impact on the 22 clients who had expressed a desire to continue their relationship with the respondent. Her Honour observed that client autonomy—particularly in a trust-based industry such as financial advice—was an important public interest consideration.
The decision can be found here.
In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94, the case considers the obligations of a trial judge to ensure procedural fairness towards a self-represented litigant. Here, the Victorian Court of Appeal allowed the appeal, finding that the trial judge ought to have drawn the appellant’s attention to two key matters: first, that the respondent might not call any witnesses at all, and second, to the potential relevance of s 51(2) of the Wrongs Act 1958 (Vic) as an alternative basis for establishing causation.
Background
The self-represented appellant commenced proceedings in the County Court of Victoria, alleging that a septic tank system installed and maintained by the respondent manufacturer was defective and caused his Helicobacter pylori (HP) infection, leading to various gastrointestinal symptoms.
The respondent accepted that it owed a duty of care to ensure the system was safe for use and that the system was missing a key aerator component for a prolonged period. However, it successfully submitted that there was “no case to answer” on the basis that the appellant had failed to establish causation—specifically, that he did not prove that the fitting of the aerator arm would have averted his injury.
Appeal: Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94
On appeal, the appellant (now represented by counsel) asserted that the trial judge erred in failing to provide him with the degree of assistance necessary to ensure procedural fairness and a fair trial. The Court of Appeal agreed, finding that procedural fairness required the judge to alert the appellant, prior to closing his case, that the respondent might not call any witnesses, and that if so, the evidence would be complete once his case concluded. The Court also found that the trial judge was required to inform the appellant that he was able to, and might choose to, call those witnesses himself.
The relevant findings are set out at paragraphs [69] to [76]:
[69] Nevertheless, the critical issue was whether the judge’s assistance was sufficient given the persistent statements made by applicant that he wanted to elicit evidence from witnesses whom he believed would be called by the respondent. More particularly, where the applicant appeared to be labouring under a misconception that he would have an entitlement to elicit that evidence.
[70] The first issue which arises is whether the applicant was evincing any such misconception which should have been apparent to the judge. In challenging such a conclusion, the respondent pointed to the first exchange where the judge expressly told the applicant that it was ‘uncertain’ if there would be any evidence from the respondent.
[71] If this was the only exchange there may be some force in the respondent’s position. However, it was not the only exchange. Rather, on the following day, during the second exchange, the applicant indicated that ‘all the relevant information’ he sought to adduce would be derived from his ‘cross-examination of the [respondent’s] witnesses’. After being told that it was his case to prove, the applicant then reiterated that he could ‘cross-examine then’.
[72] There are limits to how many times a judge should be expected to correct any misconception. However, it was apparent that the applicant continued to be under his misconception despite the judge’s earlier reference (to the situation being ‘uncertain’). The judge’s statement that it was the applicant’s case to ‘prove’ failed to squarely address that misconception. The applicant might have believed that he could still ‘prove’ his case through the respondent’s witnesses. In fact, he continued to make reference to being able to ‘cross-examine’ after being told that it was his case to prove.
[73] In our view, then, the applicant evinced a serious misconception that he would be able to adduce further evidence through the respondent’s witnesses. In fact, it was only after the no case submission commenced (and the judge explained that there might be no obligation on the respondent to call any evidence) that the applicant appeared to appreciate that he could not cross-examine the respondent’s witnesses (the Taylors) whom he had been ‘waiting for’ and whom counsel for the respondent had said he proposed to call as part of its case — admittedly with qualifications but such that were not readily apparent to a layperson.
[74] For reasons given already, the judge’s statement that the applicant needed to ‘prove his case’ was insufficient to disabuse the applicant of his serious misconception. In fact, the judge appears to have (inadvertently) compounded the applicant’s misconception shortly prior to the closure of his case by referring to ‘the course of the [respondent’s] case’ and indicating that the applicant might want to put additional documents to ‘them’, which the applicant could prove ‘through one of those witnesses’.
[75] We thereby consider that the judge failed to appropriately correct the apparent misconception and thereby failed to ensure that the applicant, as an unrepresented litigant, had the degree of assistance required to ensure a fair trial and avoid ‘practical injustice’.
[76] It is unnecessary to be prescriptive about what the judge ought to have done. However, at the very least, we consider that the applicant should have been expressly told, prior to closing his case, that the respondent might not call witnesses at all, in which case the evidence would be finished at the end of his case. Given that the applicant clearly wished to adduce ‘all the relevant information’ from the respondent’s witnesses, we also consider that the judge should have told the applicant that he was able to, and might choose to, call those witnesses himself. If such a path was taken, he could then have been advised about his ability to subpoena the Taylors (and particularly Andrew Taylor) and if necessary, in the course of their evidence to make an application to cross-examine them under s 38 (or perhaps to ask leading questions of them under s 37) of the Evidence Act 2008.
The appellant also asserted that the trial judge should have provided him with the opportunity of proving causation by recourse to s 51(2) of the Wrongs Act—a provision that allows a court, in an “appropriate case”, in line with “established principles”, to impose liability despite factual causation not being established, where justice demands it:
WRONGS ACT 1958 – SECT 51
General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The Court of Appeal found that procedural fairness did require the trial judge to alert the appellant to the possible operation of s 51(2) in this case. The Court found that s 51(2) may have provided the judge with a means to resolve the evidentiary gap he had identified. The evidence of the two gastroenterologists as to the likely cause, the temporal connection between the appellant’s HP infection and the operation of the septic system, and the lack of an alternative explanation for the infection, lent support to the possibility that this might have been an ‘appropriate case’ to invoke s 51(2). In circumstances where it was arguable that s 51(2) may have been utilised, and in light of the appellant’s burden under a no case submission to show only a prima facie case on causation, the trial judge was required to alert the appellant to the possible operation of s 51(2).
The relevant findings are set out at paragraphs [119] to [130]:
[119] We have set out above at paragraphs [64] and [65] the judge’s duty in relation to self-represented litigants, as explained in Trkulja. The question here is, did legitimate judicial intervention require the judge to advise the applicant of the application of s 51(2) to his claim against the respondent at this stage of the trial?
[120] To repeat what we set out at [65]: it is elementary that a judge ought to ensure that a self-represented litigant understands his or her rights, so that he or she is not unfairly disadvantaged by being in ignorance of those rights.
[121] Section 51(2), in an appropriate case, provides a plaintiff with an alternative method of establishing causation if s 51(1) cannot be satisfied. What constitutes an appropriate case depends entirely upon the facts and circumstances surrounding the case. The individual requirements of the section need to be considered, and a value judgment then needs to be made by the trial judge after examining all the evidence presented in the course of the trial as to whether the section should be engaged.
[122] The Victorian legislature chose to use the word ‘appropriate’, rather than ‘exceptional’ in the evidentiary gap provision. It is not prescriptive and does not identify the type of case to which it might apply. That leaves much to the judge’s determination although the bar to be cleared in this State is patently less than that of an exceptional case as in New South Wales.
[123] As we mentioned earlier, the judge concluded that the applicant could not prove that the lack of the aerator arm led to HP contaminated effluent being present in the effluent pipes and that the applicant had ingested HP from that source.
[124] However, by the end of the applicant’s case, the following had been established (at least on a prima facie basis):
- that it was likely that the applicant was, from 2012 onwards, suffering from HP infection which could be caused by exposure to faeculent material;
- that the pipes of the septic system ran under the area adjacent to the house where the applicant lived from 2013;
- that it was ‘very conceivable’ that the applicant’s HP infection was related to a malfunctioning pump on the septic system, as ‘he would be exposed to faeculent material from working around the pump on the land where it was released’ —Associate Professor Desmond and Dr Jakobovits, in agreement;
- there was no alternative explanation for the applicant’s HP infection or his symptoms consistent with that infection.
[125] The essence of the evidence of both gastroenterologists (Desmond and Jakobovitz) is that contact with the faeculate material could produce HP. The septic system contained such material, and its end product was distributed through the area close to the house. It can be readily inferred that the system operating properly should not distribute such material.
[126] There is no authoritative case law as to what constitutes an appropriate case under s 51(2). Certainly, dust disease cases such as those fitting the facts in Bonnington and Fairchild may be covered by it. However, there is nothing in the wording of the provision which would limit its application to that type of case alone. In Powney, this Court said it would not be available in a simple case. We agree but this was not such a case.
[127] Contrary to the respondent’s submissions, s 51(2) may have provided the judge with an alternative means to resolve the evidentiary gap he identified: the evidence of the two gastroenterologists as to the likely cause; the temporal connection between the applicant’s HP infection and the operation of the septic system; and the lack of an alternative explanation for his infection, all meant that this might have been ‘an appropriate case’ in which to invoke s 51(2).
[128] Contrary to the respondent’s submission, the point was not hopeless. Given that the applicant only needed, on the no case submission, to establish a prima facie case on causation, the need to advise him of his ability to rely upon s 51(2) if he failed on factual causation under s 51(1)(a) was all the more important. To engage in a lengthy debate, as the respondent would invite us to do, about when s 51(2) might be engaged is pointless — as long as it was arguable on the no case submission that it may be utilised then we consider that the applicant should have been appraised of its availability.
[129] In our opinion, in those circumstances it was appropriate for the judge to explain to the applicant the terms of s 51 and particularly s 51(2). Of course, it was no part of the trial judge’s task, as Trkulja explains, to advise the applicant how to then engage that provision. That was a decision for the applicant — but he had to know of the existence of the provision.
[130] The applicant should be granted leave to amend his notice of appeal, to appeal on ground 3(b), which has also been established.
Conclusion
While judges are not required to advise litigants how to run their case, they must ensure self-represented litigants are not denied a fair trial due to their ignorance of the law. This includes, depending on the circumstances of each case, drawing their attention to potentially applicable statutory provisions.
The link to the decision is here.
This case concerns an appeal arising from an application to stay enforcement orders pending a contempt proceeding alleging serious misconduct by opposing counsel, including fraud and misleading the Court. The Court dismissed the appeal, finding that the allegations against the barrister and others lacked evidentiary foundation, had been previously considered by regulatory bodies, and constituted an abuse of process.
In McFarlane v Reffold [2025] SASC 43, the South Australian Supreme Court dismissed the appellant’s appeal against a District Court decision rejecting his interlocutory application to seek a stay of judgment, orders and warrants until the determination of a “contempt application” against the opposing solicitor and counsel and two conveyancers in relation to the purchase of a property several years prior.
By way of background, the matter began with a contract for the sale of land in 2007. The appellant purchaser raised concerns about an unapproved septic tank on the property, which delayed settlement. After several attempts to resolve the issue, the respondent vendor refused to accept settlement without interest for the delay. The matter proceeded to a District Court trial and in 2013, judgment was awarded against the appellant. Enforcement orders were subsequently issued. In 2021, the appellant sought to stay execution of the costs order pending a “contempt application” alleging fraud, witness tampering, and improper conduct during the trial. The application was filed under r205.5 of the Uniform Civil Rules 2020 (SA), which empowers a court to direct the formulation of a contempt charge where there are reasonable grounds to suspect contempt has occurred.
The District Court Judge explained the legal threshold to the self-represented appellant over several hearings and granted multiple adjournments for him to seek legal advice. In November 2021, the Judge dismissed the application, noting it was nearly a year old, unsupported by evidence, and substantially duplicative of matters already raised in trial, appeal, and complaints to regulatory bodies. The Judge also dismissed an informal application for recusal, finding no reasonable apprehension of bias.
In the appeal, the appellant, still self-represented, submitted that opposing legal representatives (and conveyancers) had engaged in misconduct such as concealment of evidence, surprise tactics and improper conduct during trial, including misleading the Court and manipulating access to subpoenaed documents. He also alleged procedural unfairness, judicial bias, and systemic failure by regulatory bodies, such as the Legal Practitioners Conduct Board. He criticised the District Court for failing to refer to his statement of claim, denying further adjournment, and allegedly acting on misleading submissions from counsel. The respondent, in contrast, characterised the application as an impermissible attempt to re-agitate long-resolved issues. It was submitted for example, that the alleged misconduct had already been examined and rejected by the Legal Practitioners Conduct Board.
The Court found that the application was misconceived and abusive of the Court’s process. The Court emphasised that mere dissatisfaction with trial outcomes does not constitute contempt, that allegations of fraud or misconduct, when previously adjudicated and dismissed, cannot be revived through contempt proceedings, and that the application lacked any factual basis or evidentiary foundation capable of supporting a charge.
The decision can be found here.
A Closer Look at DU v Jackson (DCJ) [2024] QCA 122
This case considers the conduct of appeals under s168 of the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”) and the potential for jurisdictional error in the District Court’s approach to such appeals. Here, the Queensland Court of Appeal (comprised of Bond JA and Dalton JJA, with Williams J dissenting) allowed the appellant to apply to the Supreme Court to review a District Court decision on the basis that the District Court likely misapprehended its function in hearing the appeal, leading to jurisdictional error. The Court of Appeal also considers the distinction between final and interlocutory orders and overrules the construction of r 765 by Chesterman J in De Innocentis v Brisbane City Council and followed by McMurdo P in Kambarbakis v G & L Scaffold Contracting P/L.
By way of background, the appellant, DU, and his one-time girlfriend, TG, sought protection orders against each other. A Magistrate made a protection order in favour of TG and dismissed DU’s application. DU appealed this decision to the District Court under s164 of the DFVPA. The District Court dismissed DU’s appeal against the protection order made against him but allowed his appeal against the Magistrate’s failure to issue a protection order against TG. The District Court remitted this issue to a different Magistrate (though at the time of the Court of Appeal hearing, the remitted matter had been heard but no decision had been given).
DU filed an application for leave to appeal from the District Court’s decision. A Judge of the Court of Appeal struck out the application on the basis that there was no right to appeal from a District Court decision on appeal from a Magistrate, as s169(2) of the DFVPA provides that the District Court’s decision is “final and conclusive.” Consequently, DU sought judicial review of the District Court’s decision. A Supreme Court Registrar referred the application to a judge under r15 of the UCPR, considering it to be an abuse of process. DU sought leave for the Registrar to issue the judicial review application, but Martin SJA refused to grant leave. DU appealed that decision.
The Court of Appeal first addressed whether the decision by Martin SJA to refuse leave to issue the judicial review application was interlocutory in nature. In considering the distinction between final and interlocutory orders, Bond JA agreed with Dalton JJA that the construction of r765 UCPR by Chesterman J in De Innocentis v Brisbane City Council and followed by McMurdo P in Kambarbakis v G & L Scaffold Contracting P/L was wrong and that the language of r765 does not justify the conclusion that previous High Court authority on the distinction was no longer applicable. It was found that the decision of Martin SJA in the present appeal was not a final decision and as a result, the Court applied r765(2) UCPR i.e. the appeal was an appeal in the strict sense:
A Different Test for r 765(2)?
[36] In the matter of De Innocentis v Brisbane City Council the Full Court considered r 765(2) and the meaning of the words “a final decision in a proceeding”. In that case, a decision had been made in the trial division of the Supreme Court refusing to join a party to an extant proceeding because the joinder application was outside the time limited by the Limitations Act (r 69(1)(b)(i) of the UCPR). The same question arose as arises in this case, whether the appeal was an appeal stricto sensu,or by way of rehearing. Chesterman J said:
“[32] Rule 765 provides that:
‘(1) An appeal to the Court of Appeal under this chapter is an appeal by way of rehearing.
(2) However, an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court is brought by way of an appeal.
(3) …’
In a case such as the present one, whether the discretion is to be exercised in accordance with rule 69 or the former O 3 r 10 is not likely to be important. I would, however, think that the appeal is from a final decision in a proceeding so that it is a rehearing.
[33] There was some debate as to whether the judgment appealed from, which dismissed the appellant’s claim against the Council leaving his action against the second defendant to proceed, should be categorised as final or interlocutory. It was said to be interlocutory in form but final in effect. The distinction has been productive of confusion and no entirely satisfactory test has evolved to determine into which category a judgment should be placed.
[34] The wording of r 765 must have been chosen deliberately to avoid the necessity of resolving such fine points. It uses the term ‘final decision’ and not ‘final judgment’. The draftsman cannot have been ignorant of the wealth of learning that has been built up with respect to what are ‘final judgments’. The new rule has been so expressed as to make that knowledge obsolete. One looks only to see whether an appeal is brought from something which answers the description ‘final decision in a proceeding’. ‘Decision’ has a wider connotation than ‘judgment’. There is no doubt the chamber judge made a decision. He struck out the appellant’s claim against the Council. This is final in the sense that it brought that claim to an end. The decision precludes further controversy on all questions involved in that claim. No further decision with respect to the claim is necessary or possible. The decision is therefore final. …”
[37] Against the history just outlined, the remarks at [34] of the above quotation are extraordinary. So far as I can ascertain, they have only been referred to twice.
[38] About 10 months after the decision in De Innocentis, in Kitto v Medalion Homes Ltd (in liq),a question about the interpretation of r 766 arose. Davies JA, with whom Thomas JA and Mullins J agreed, said, “Whatever effect De Innocentis’ decision has had, it does not seem to me to affect the application of the decisions to which I have just referred of the High Court to the question of what is a final judgment which is the term used in rule 766(2)”. The decisions to which Davies JA had referred were Hall and Carr.
[39] In Kambarbakis v G & L Scaffold Contracting P/L McMurdo P, dissented. One of the points on which she differed from the other members of the Court was that she thought that the judgment in De Innocentis should be followed on the point now under consideration. She said:
“Rule 744 UCPR defines ‘decision’ as used in r 765 as ‘an order, judgment, verdict or an assessment of damages’. In De Innocentis v Brisbane City Council, Chesterman J, with whom Pincus JA and Thomas JA agreed, noted that the use in r 765 of the term ‘final decision’ rather than ‘final judgment’ is significant; ‘final decision’ is a broader concept than that encompassed by ‘final judgment’. Although the primary judge’s decision was interlocutory in the sense discussed by Holmes JA, its practical effect was to end Mr Kambarbakis’s chance of success in any claim he might commence against the respondent. The respondent’s limitation defence would necessarily defeat any claim Mr Kambarbakis might bring. Holmes JA has persuasively demonstrated the argument to the contrary, but I consider the better interpretation of r 765(2) is that ‘a final decision in a proceeding’ includes a decision by a Supreme Court judge refusing an application to extend a limitation period: cf De Innocentis v Brisbane City Council. …” – [4].
[40] Holmes JA took the opposite view, in accordance with established authority. She said:
“Although, as was pointed out by Chesterman J and accepted by the other members of this Court in De Innocentis v Brisbane City Council, the expression ‘final decision’ is broader than ‘final judgment’ with which earlier case law was concerned, I would, nonetheless, regard a refusal of an extension of the limitation period as not being a ‘final decision in the proceedings’. As was observed in Meddings v Council of the City of Gold Coast, there is nothing to prevent an unsuccessful applicant from continuing with his or her action, although he or she will be met with an unanswerable defence, or from bringing another such application in the proceedings, unlikely though it would be to succeed. The appeal is, therefore, to be distinguished from that available under r 765(1); it is in the nature of an appeal stricto sensu.” – [31].
[41] Muir JA did not express an opinion on this issue, as, in his opinion, whether the appeal was by way of rehearing, or an appeal in the strict sense, the result was the same.
[42] With all due respect, the part of the decision in De Innocentis contained at [34] of the above quotation is plainly wrong and should not be followed. That the word “decision” is used in r 765(2), rather than “judgment” or “order” can have no logical bearing upon whether the traditional test applies under that rule. So much was said by Holmes JA in Kambarbakis. A review of the language in the cases which I have outlined above shows the word “order” or “judgment” is used interchangeably; the rule is the same whichever is being spoken about. As has been remarked by Gibbs CJ and by McPherson J (underlined passages at [27] and [32] above), if the traditional test is abandoned, it does not lead to a clearer or more logically satisfying result. To the contrary, it leads to undesirable unpredictability, for the answer to the question in each case rests not on principle, but upon the subjective assessment of the particular judicial officer as to whether or not an order is, in its practical effect, final.
The Decision of Martin SJA is Interlocutory
[43] Applying the traditional test, the decision of Martin SJA refusing to direct the Registrar to issue the proceeding which DU had filed was interlocutory in its nature. Unless overturned on appeal, the decision finally determined that DU could not proceed with his proposed application to judicially review the decision of the first respondent. However, it did not finally determine whether or not there was a possible basis for such a judicial review. Nor did it determine the underlying issue between the parties: whether a protection order under the Domestic Violence Act ought to have been made against DU. After considering the reasons for judgment of Martin SJA, it would have been perfectly possible for DU to have filed another application asking for a r 15 direction; he may have had different grounds than those dealt with by Martin SJA. Also, DU could have filed another proceeding for judicial review of the first respondent’s decision by way of Originating Application. While that too may have been subject to the r 15 process, if the proceeding which DU wished the Registrar to issue was different in a material respect from the one dealt with by Martin SJA, the outcome of that process would not necessarily be the same.
[44] In fact, in a neat illustration of this point, by the time the appellant argued the case before this Court, he had thought of an additional basis for his claim to review the first respondent’s judgment. He raised it orally on appeal for the first time, which has given rise to some procedural delays. However, as it happens, I think the new point is a good one, see below. Rather than raise the point on this appeal, the appellant might have proceeded in either of the ways suggested at [43], essentially bringing a new application in the trial division.
[45] Because the decision of Martin SJA was interlocutory, r 765(2) means that the appeal before this Court is an appeal stricto sensu, or an appeal in the strict sense, unless this Court decides that the justice of the case requires that there should be an appeal by way of rehearing – r 765(4). In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd Mason J explained that an appeal in the strict sense is one which considers whether the judgment below was right when given, on the material which the lower court had before it. In contrast, an appeal by way of rehearing involves the Court having power to grant leave to a party to adduce new and fresh evidence. Furthermore, an appeal on rehearing involves the rights of the parties being determined by reference to the law as it exists at the time of the appeal, rather than at the time of the first instance hearing. Both an appeal in the strict sense and an appeal by way of rehearing are dependent on the identification of error in the decision below. In both types of appeal the appellate court reconsiders the conclusions of fact reached by the Court below.
Significantly, DU’s appeal before the Court of Appeal introduced a new legal argument in oral submissions that had not been raised below. The argument was that in hearing the appellant’s appeal from the police protection order made by the Magistrate, the District Court had treated the Magistrate’s findings of fact and decisions about the evidence, as if the Magistrate were a jury, whereas it ought to have conducted an appeal by way of rehearing involving a review of the evidence before the Magistrate.
Even though the new argument (the only viable ground of appeal) was raised for the first time in oral submissions before the Court of Appeal, the Court accepted consideration of this new argument:
Procedural Matters
[68] The new ground advanced by the appellant might be a basis for seeking an order in the nature of certiorari – s 41(2) Judicial Review Act, although it will raise the vexed question as to whether or not (in Queensland) reasons for decision form part of the “record”. That this question is unclear would not be a sufficient basis to refuse to issue proceedings pursuant to r 15. In any event, the Supreme Court has a supervisory jurisdiction over courts of inferior jurisdiction. This means that it is open to the appellant to seek a declaration from this Court that the first respondent’s orders were made without jurisdiction, in addition to, or as an alternative to, an order in the nature of certiorari.
[69] The new ground involves only a question of law and it was apparent on the material which was before Martin SJA. It was not a point which the appellant agitated before Martin SJA, but it was like those points he did agitate, in that it depended upon an assertion of jurisdictional error, and in that it would be the basis for a proceeding for an order in the nature of certiorari, or a declaration. As well as that, the point is a fundamental one, going to the validity of the judgment of the first respondent and one which is of some general application and importance. For all these reasons, I think it is right that this Court consider the point on appeal even though it was not raised below.
Ultimately, the Court of Appeal considered it likely that the District Court had regarded the Magistrate like a jury, in the sense that he simply looked to see whether or not the findings made by the Magistrate were open on the evidence and had not conducted a real review and come to conclusions of his own:
Misconception of Statutory Function by First Respondent
…
[86] The first observation I would make is that an appellate court can only be convinced that a finding of fact is wrong if it undertakes an analysis and evaluation of the evidence and contentions in relation to the disputed factual finding. That caution might be needed in reversing such a finding does not mean that the only task of a court on rehearing is to check whether or not there was evidence which was capable of supporting the finding below. In any event, the law in relation to the role of an appellate court has developed since Edwards v Noble. Indeed in Fox v Percy (above), McHugh J expressed the view that the dicta from Edwards v Noble was never correct. He said, “In earlier cases, Barwick CJ and Windeyer J had suggested that the findings of trial judges were entitled to special deference, even when the findings were based on inferences drawn from facts found or admitted. Warren denied that proposition.” McHugh J was the only judge in Fox v Percy to mention Edwards v Noble.
[87] The second respondent also referred to a decision of this Court in McDonald v Queensland Police Service, another judgment which was referred to in the footnotes to that part of the first respondent’s judgment dealing with his role on appeal. McDonald dealt with another case on appeal from the District Court at Southport. One of the points on appeal was very like the one raised here; it was contended that the District Court Judge had not conducted an appeal by way of rehearing. The Court of Appeal said in McDonald:
“[47] However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
[48] It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.” (my underlining).
[88] The respondent referred to the District Court decision from which the appeal in McDonald was brought to say that the language used by the District Court Judge in that case was similar to that used by the first respondent. The District Court Judge in McDonald said at one point in his reasons, “it was open to the learned Magistrate to accept” a particular witness’s evidence. That expression does rather indicate that the District Court Judge in McDonald had not formed a view on the evidence himself, and no doubt it was a reason for the point taken on appeal in that case. However, in McDonald the language referenced is at the end of a series of four paragraphs where it is made clear that the District Court Judge did evaluate the conflicting evidence for himself by reference to the contested points – [14]-[18].
[89] Here, that sort of evaluation is not apparent in the reasons of the first respondent. Further, as set out above, from the statements made by the first respondent, and from the substance of his reasons, it seems likely that he regarded the Magistrate like a jury, in the sense that he simply looked to see whether or not the findings made by the Magistrate were open on the evidence. It seems likely that the first respondent did not conduct a real review and come to conclusions of his own. There is certainly an arguable case that the first respondent mistook his task on appeal sufficient to justify the commencement of proceedings under r 15.
The Court of Appeal concluded that a failure by the District Court to review the Magistrate’s hearing and reasons and form its own conclusions of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error:
Jurisdictional Error
[90] In my view, whether the first respondent was conducting an appeal by way of rehearing, or an appeal in the strict sense, a failure to conduct a real review of the Magistrate’s hearing and reasons, and to form his own view of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error. The right to appeal is a creature of statute. By s 169(1) of the Domestic Violence Act, the first respondent had a statutory power to make orders which altered the legal rights of the parties to an appeal, but only after a hearing in accordance with s 168 of the Domestic Violence Act. The error which the appellant wishes to assert is an error within the traditional definition of jurisdictional error, to quote Jagot J in Stanley v DPP (NSW):
“… Accordingly, an ‘inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’. The second kind of jurisdictional error (misapprehending or disregarding the nature or limits of functions or powers) was described as including: (a) disregarding or considering some matter if the statute conferring jurisdiction requires that particular matter to ‘be taken into account or ignored as a pre‑condition of the existence of any authority to make an order’; and/or (b) misconstruing the statute conferring jurisdiction so as to misconceive the nature of the function being performed.” (footnotes omitted).
Given that the error was purely legal in nature and would have significant consequences, the Court allowed the judicial review application. The Court directed that the Registrar issue the judicial review application and made further directions to ensure that the appellant did not proceed with litigation that was not viable.
A link to the full decision may be found here.
