Welcome to the September 2025 Quarterly Issue of Hearsay.
Moving on from the excitement of Hearsay – Issue 100, we are pleased to introduce another informative edition of Hearsay – Issue 101.
The lead article – ‘How Brawn v The King and MDP v The King Changed the Law on the Common Form Appeal Provisions’ by Saul Holt KC and Susan Hedge – affords a learned discussion on a very important aspect of criminal appeals, being the materiality criterion applying to the ‘wrong decision on a question of law’ and the ‘miscarriage of justice’ limbs of the common form appeal provisions.
This Issue’s featured artwork is titled ‘The Jade Pool’ by Brisbane artist, William Robinson, who sadly passed away in August 2025. A profile of Bill Robinson is included.
Hearsay’s ‘10 Minutes With…’ interviewee is Simon Couper KC, a leading commercial Counsel based in Brisbane. Simon refers to civility, ensuring the integrity of evidence and diligence as being amongst the obligations of Counsel.
Included a notable speech by Chief Justice Helen Bowskill at the ‘Presentation of Newly Appointed Barristers Ceremony’. The Chief Justice affords prudent guidance to new barristers, and useful reminders to us all. We strongly recommend this item to our readers.
Included also are three eulogies that were given at the funeral of Stephen Zillman, by Stephen’s daughter Stephanie, Terry Martin KC and solicitor Glen Cranny.
The‘Regional Bar’ section item is penned by Jane FitzGerald. Jane canvasses practice at the Bar on the Gold Coast, in a piece titled ‘Bar on the Goldie’.
The reader will find in this Issue the customary raft of articles and case notes in Professional Conduct and Practice, Advocacy, Reviews and the Arts and the mix of topics in Inter Alia.
Hearsay welcomes Andrew Hoare KC and Elizabeth Kelso as members of the Hearsay Editorial Committee. Both have significant criminal law experience. Andrew is Chair of the BAQ Criminal Law Committee and Elizabeth is a Consultant Crown Prosecutor with the Office of the Director of Public Prosecutions. Andrew and Elizabeth have together produced a number of high-quality papers in the criminal law space for Hearsay over the past few years, including this issue. Hearsay will benefit from the experience they both bring to it.
Enjoy!
Richard Douglas KC John Meredith Editors
We do request your contributions to the editors, deputy editor or editorial team:
In Stewart (by his Litigation Guardian Schwarzman) v Metro North Hospital and Health Service[1] – in a judgment handed down 3 September 2025 – the High Court of Australia concluded that the catastrophically injured plaintiff – who before injury had a history of living in a rented home with his family and domestic animals, but who by trial was institutionalised and miserable, and with deteriorating health – was entitled to an assessment of damages on the footing of home, not institutional care.
This outcome departed from the trial court and intermediate appellate decisions which – in purported application of the previous decision of the High Court in Sharman v Evans[2] – engaged in a balancing exercise between home and institutional care, concluding that the (more expensive) home care was an unreasonable option to adopt, despite that being the plaintiff’s strong preference.
The assessed cost of the plaintiff’s future institutional care, but with more frequent therapy, was $1,081,895.56, while the alterative cost of home care was $4,910,342.52 (each after discount, with the plaintiff enjoying a life expectancy of 5 years from trial).
The High Court decision – being unanimous on the part of the members of the court, Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ – predicated the following essential reasoning:
[44] The proper approach to the assessment of the reasonableness of a person’s choice to be cared for at home or in a home setting, rather than in an institution or an institutional setting, starts from the premise that the plaintiff is entitled to compensation in a sum which, so far as money can do, will put them in the same position as they would have been in had the defendant not acted negligently. In a case such as this, that proper approach requires an assessment of whether the choice to incur the expense of care at home is a reasonable response to repair the consequences of the tort. In assessing the reasonableness of that choice, all the circumstances should be considered and compared with those circumstances that existed prior to the tort. The assessment of reasonableness is not confined to balancing only the health benefits against the cost. The assessment of reasonableness will be significantly affected by what is ordinary in those circumstances. The same is true for the question of whether it was unreasonable for a person not to take alternative action which could have mitigated the loss.[3]
[45] Where a person lived in their own home or in a home setting prior to the tort, and the restoration of that position, or a similar position, will be beneficial or at least not worsen their physical or mental health, it would be unusual to find that the choice by that person to receive treatment at home or in a home setting is unreasonable. Of course, there will be cases where living at home or in a home setting might not be chosen: “[t]o one person being permanently in the best of institutions might be as unpleasant as being permanently in a prison, while to another the same institution might be the most desirable of safe havens”.[4] But, as Lord Burrows has observed, “private treatment may offer advantages which are more than merely medical in nature (eg speed and comfort) and it is hard to see how it can ever be unreasonable for a claimant to opt for it”.[5]
…
[48] For the reasons explained above, the approach to reasonableness taken by the trial judge and the Court of Appeal, which reflected the approach adopted by some of the authorities decided after Sharman v Evans,[6] was in error. The inquiry should have started from the premise that Mr Stewart was entitled to compensation in a sum which, as far as money can do, would put him in the same position as he would have been in had MNHHS not acted negligently. The inquiry should not have been reduced to a simple balancing of the costs to MNHHS and the health benefits to Mr Stewart of care at (a rented) home. In this case, the question was whether his choice to be cared for at home was a reasonable response to repair the consequences of the tort by MNHHS.
[49] In addressing that question, this assessment of Mr Stewart’s choice of home care is that prior to the negligence by MNHHS, Mr Stewart lived in a home with his brother where Jesse and his dog would visit regularly. The option of living with care at Ozanam did not restore, and would not have restored, that position because of the restrictions on Jesse or a dog staying at Ozanam. It can be accepted that, as MNHHS submitted in this Court, care in a rented home without Mr Stewart’s brother would not precisely restore Mr Stewart’s prior position. But the fact that a precise level of correspondence cannot be achieved is beside the point. For Mr Stewart to be cared for in a rented home is a degree of restoration that is far closer to his prior position than his circumstances at the time of trial of living at Ozanam.
[50] The reasonableness of Mr Stewart’s choice of home care is reinforced by the conclusions of the trial judge about the effect of living at home on Mr Stewart’s physical and mental health. Mr Stewart’s quality of life and mental health would be enhanced by receiving care at home rather than at Ozanam and the real physical health benefits were, as the trial judge found,[7] not slight or speculative. Further, whatever might have been the position in 1977 when Sharman v Evans was decided, a choice by a severely injured plaintiff to receive care at home is, today, one that is not unusual, especially given the improvement in levels of care that can be provided at home or in a home setting.
[51] The effect of the conclusion that Mr Stewart acted reasonably in seeking to restore his position to that prior to the tort by his choice to live in a rented home of his own with care that was not suggested to be other than at reasonable rates is that the onus then fell upon MNHHS to establish that part or all of that claimed cost of home care could be avoided by an alternative that was unreasonably refused. MNHHS attempted to discharge that onus by suggesting the second option, which was much cheaper (staying at Ozanam with enhanced care from an external care assistant and the provision of more frequent therapy and exercise).
[52]MNHHS failed to discharge its onus of establishing that Mr Stewart acted unreasonably in refusing the second option despite that option being much cheaper. Although it was possible that Mr Stewart might be equally motivated under the second care option at Ozanam to achieve physical health improvements that were not significantly worse than those that could be achieved at home, MNHHS did not establish any likelihood that the external care assistant would develop the necessary rapport required to motivate Mr Stewart. In other words, unlike the improvement in his physical health that would likely result from Mr Stewart’s care at home, MNHHS did not establish the extent of any likelihood that the second option would improve Mr Stewart’s physical health when compared with his then present arrangements at Ozanam. The better quality of life and the mental health improvements that would also result from Mr Stewart living in his own (rented) home, and the ordinary nature of such arrangements for a person in Mr Stewart’s position, reinforce the lack of unreasonableness in Mr Stewart declining the second option despite the substantially lower cost of that option.
(footnotes incorporated herein; emphasis added)
In consequence the appeal was allowed. The court remitted the assessment of damages for final assessment in accordance with the reasons.
The gravamen of the decision is that the plaintiff’s persuasive onus of proof is discharged by proving the election for home care and the reasonable cost thereof, with the onus then shifting to the defendant tortfeasor to prove a failure by the plaintiff to mitigate his damage, namely that part or all of the cost of home care could be avoided but for an unreasonable decision by the plaintiff to refuse a proffered alternative option of institutional or like care.
In this regard, while Stewart is a personal injury damage case, such approach to proof of loss by tortiously caused damage arguably transcends the personal injury space, and indeed the law of negligence.
In Knott Investments Pty Ltd v Fulcher,[8] the defendants were found liable for contravention of quality warranties as to goods implied by s 71 of the Trade Practices Act 1974 (Cth) and s 17 of the Sale of Goods Act 1896 (Qld), resulting in a fire breaking out and destroying the plaintiffs’ packing shed and packing plant on land owned by it, and which they used historically to conduct a profitable tomato farming business. Due to uncertainty in rebuilding and re-establishing the business, the plaintiffs sold the land and the business, but claimed loss of profits extending beyond such sale.
It was found there was no proven failure to mitigate due to the land and business sale, in lieu of re-establishing the business. The Court of Appeal – by Muir JA – wrote (the plaintiffs being “the Fulchers” and also “the respondents”, and the defendants being “the appellants”):
[39] Although I acknowledge that the appellants’ argument on causation and mitigation are substantial, I am unable to accept them. As a consequence of the fire, the company not only lost its packing shed and plant, its tomato farming business was effectively destroyed. There is no suggestion that it could have conducted a profitable business pending rebuilding by continuing to grow tomatoes and having someone else pack them.
[40] It was apparent to the Fulchers that it would take approximately 18 months for the farm to be operational and another six months before any monetary returns were likely. It was also apparent to the Fulchers that, until the business could be re-established, the buyers on whom the company had previously relied would meet their requirements from other tomato growers. There could be no guarantee that the lost markets could be recaptured or that generally favourable market conditions would exist when the company returned to production. The business was volatile and Mr Fulcher had seen “many growers go broke” over the period of 20 years or so that he had been in the industry. A reason for financial failure was “borrowing too much money”. Consequently, any prudent decision to recommence the business required recognition that it was a realistic possibility that the business might not be able to regain its former volume of production or profitability for an unascertainable period.
…
[45] In considering the reasonableness of the respondents’ conduct, principles applicable to mitigation of damages may be thought to have relevance.[9] In that regard it has been held that a plaintiff is not under “any obligation to do anything other than in the ordinary course of business [to mitigate his loss] … [and that] the plaintiff is not required to sacrifice or risk any of his property or rights”.[10] In Metal Fabrications (Vic) Pty Ltd v Kelcey,[11] Murphy J, Brooking and Nicholson JJ agreeing, relevantly observed:
The respondents were under a duty only to act reasonably to mitigate their loss. This did not require them to chance their arm further, to risk any capital they might borrow too far or to take steps which would cause their financial ruin, if they failed: see Payzu v Saunders[1919] 2 KB 581; Lesters Leather & Skin Co v Home and Overseas BrokersClippens Oil Co Ltd v Edinburgh & District Water Trustees[1907] AC 291, and Banco de Portugal v Waterlow & Sons Ltd[1932] AC 452, at p 506; [1932] All ER Rep. 181, at p 204.
As Lord Macmillan remarked in the lastmentioned case, the measures which the sufferer from a breach of contract may be driven to adopt “ought not to be weighed in nice scales”. So long as the respondents can be seen to have acted reasonably and justifiably in the circumstances, they should not be debarred from recovering the actual loss flowing to them simply because it is asserted that, by taking some other course, the loss might well have been lower.
[46] The primary judge took the matters discussed above into consideration as well as the difficulties in obtaining the necessary reasonably competent work force. No error has been shown in the reasoning which led to the primary judge’s conclusion that a failure to mitigate loss was not established.
(footnotes incorporated herein, emphasis added)
Thus, in that case, the plaintiffs – as innocent parties to the conduct of the defendants – were entitled to be put back into the position they would have been in but for the breach. The defendants bore the persuasive onus of proving that the plaintiffs failed to mitigate their loss, but failed to discharge such onus. That is, the plaintiffs were not obliged to take on a “second best” position despite the fact that would have reduced the damages payable by the defendants.
Suffice it to say, however, that each case must turn on its own facts. The trial findings are critical. The critical findings of fact in Stewart, it is submitted, is that prior to injury the plaintiff was living happily in his own home with his family, and but for injury would have continued to so do, and that he was miserable and his health was deteriorating when in institutional care at the time of trial.
[3]British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd[1912] AC 673 at 689. See also Summers, Mitigation in the Law of Damages (2025) at 31.
[4]Wieben v Wain (1990) Aust Torts Reports ¶81–051 at 68,189
[5] Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs, 4th ed (2019) at 240.
In AMP Pty Ltd v Chubb Insurance Australia Ltd (No 2) [2025] NSWSC 789 (21 July 2025), the litigation involved a claim by the plaintiff – a substantial commercial entity – against the defendant insurers, for a sum of $300m, under a professional indemnity policy. On 30 August 2024 a judge of the Supreme Court of New South Wales set the matter down for trial for three weeks commencing just short of a year later, commencing 4 August 2025. Shortly after the August 2024 hearing the plaintiff’s in-house counsel notified an important lay witness, one Dainton – a former employee of the plaintiff having special knowledge of the plaintiff’s remediation program, one of the salient components of the litigation subject matter. In response, Dainton indicated that he planned an important trip to the UK, with his partner during the trial period. Such unavailability of Dainton to give evidence at trial – short of subpoena – was not communicated to the plaintiff’s external solicitors, or the defendants, or the court. No subpoena was issued to Dainton to ensure his attendance. On 30 June 2025 the plaintiff’s solicitors advised the defendants that the plaintiff intended to bring an application to take Dainton’s evidence by AVL link. Dainton was due to depart Australia on 23 July 2025 (2 days after the decision was delivered, following hearing on 14 and 17 July). Such application for AVL evidence – in what was necessarily a document heavy case with Dainton inexorably to be cross-examined on such documents – was made and refused by Rees J. Her Honour was critical of the omission by the plaintiff, at a much earlier juncture, to subpoena Dainton, and or apply for AVL link evidence. The core of her Honour’s reasoning, referable to general practice and the particular facts, appears below at [29]-[33].
Her Honour wrote:
[15] On 30 June 2025, being five weeks before the commencement of the trial, AMP’s solicitors advised the insurers that AMP intended to bring an application to take Mr Dainton’s evidence by AVL link. Ms Cahill [the plaintiff AMP’s solicitor] said she did not raise the matter until after a trial judge had been allocated, as the trial judge ought to hear the application.
[16] Chubb and Lloyd’s advised that their clients did not consent to AMP’s proposal. On 8 July 2025, AMP filed its motion. Ms Cahill explained that, on 26 July 2025, Mr Dainton and his partner planned to depart on an overseas trip. Mr Dainton would not return to these shores until 22 August 2025. That is, the trial will begin and end while Mr Dainton is away. Mr Dainton is only available to give evidence between 11 and 14 August 2025, as he will be on a cruise before this and has made other plans with his partner’s family on other days. In particular, Mr Dainton will be attending his father-in-law’s 89th birthday party on 18 August 2025, before returning to Australia and his employment.
[17] Absent compulsion, Mr Dainton is unwilling to interrupt his travels to return to Sydney to give evidence in person. It was proposed that Mr Dainton would give evidence via his laptop from an Air BnB in Sheffield, with the Court sitting outside of its usual hours to take his evidence.
[18] The motion was initially heard on 14 July 2025. I was concerned to learn that AMP had not served a subpoena to give evidence on Mr Dainton. I was told that this had not been done as Mr Dainton proposed to be on holiday in London, was a person with his own family and “very human commitments” and not in AMP’s camp or control. Whilst one might have thought that those were good reasons to serve a subpoena, AMP was not inclined to do so as it would interrupt a significant family holiday in Europe and attending the 89th birthday of Mr Dainton’s father-in-law. This was said to involve an intersection between AMP’s ability to compel the witness “and the very human factor that he is someone who has other things in his life.”
[19] At the conclusion of the hearing of the motion, I enquired whether AMP had investigated the possibility of putting Mr Dainton and his partner on a different cruise so that he could give evidence in the trial before departing overseas. I offered to schedule Mr Dainton’s evidence at a time in the trial when he might not normally be expected to appear. I invited AMP to make enquiries as to whether Mr Dainton’s current employer could accommodate some changes to his leave. I indicated that I was not minded to make the order sought, as unfairness would be occasioned to the insurers. I gave AMP an opportunity to make further enquiries as to whether other arrangements could be made. I strongly suggested that AMP serve a subpoena to give evidence on Mr Dainton.
[20] On 14 July 2025, Ms Cahill made further enquires of Mr Dainton, who advised that it was important to his partner that they take this trip and important to their relationship that they be able to travel together. The trip had been organised to accommodate the varying availabilities and competing personal commitments of Mr Dainton’s partner’s other family members. The birthday party was being attended by some ten other family members (presumably of his partner, rather than himself). After the birthday party, Mr Dainton would then return to Australia to resume work on 25 August 2025, whilst his partner would take a separate trip with members of her extended family.
[21] When the motion was further heard on 17 July 2025, Ms Cahill said that, if so required, Mr Dainton could give evidence in the London office of AMP’s solicitors during Australian court sitting times. Ms Cahill declined to serve a subpoena to give evidence on Mr Dainton, as it is not her practice nor, to her observation, the practice of her partners. Finally, Ms Cahill was instructed that, if the motion was not granted, then AMP would not issue a subpoena and would elect not to read Mr Dainton’s evidence. AMP would tender the documents exhibited to Mr Dainton’s evidence and seek leave to have another former employee provide an affidavit in respect of a spreadsheet referred to by Mr Dainton.
Subpoenas to give evidence
[22] It was submitted by AMP’s senior counsel that not serving a subpoena in the circumstances was “good practice”. AMP’s counsel further submitted in writing:
This reflects the ways of working between a litigant and a witness prepared to assist the litigant in the context of modern litigation involving preparation of detailed affidavit evidence, which is the expected means of adducing testimonial evidence. As Ms Cahill deposes, it is not the ordinary practice of litigation solicitors conducting significant commercial litigation to subpoena witnesses, instead relying on voluntary assistance by the witness (a practice which reflects the need for voluntary assistance in preparing the witness’ evidence well in advance of the trial). The Court should have regard to those matters in the exercise of its discretion.
[23] Where I am asked to have regard to this “practice” in the exercise of my discretion, it is necessary that I squarely address this submission. At the outset, I note that Ms Cahill does not speak to “the ordinary practice of litigation solicitors conducting significant commercial litigation” but to her practice and her observation of her partners’ practices. No authority was cited in support of this suggested practice, nor practice note or court rule. Such a practice is news to me.
[24] A subpoena to attend to give evidence is an order in writing that requires the person named to attend the court as directed by the order for the purpose of giving evidence: rules 33.1(1), 33.2(1), UCPR. A subpoena is issued by the Court. Failure to comply without lawful excuse is a contempt of court: rule 33.12, UCPR.
[25] As Gerard Carter explained in Subpoena Law and Practice in Australia (1996, Blackstone Press) at page 12–13: (emphasis added)
If a witness is willing to appear and does in fact appear to give evidence… without compulsion, then there is, of course, no need for a subpoena.
It is, however, good practice in all cases to effect personal service of a subpoena and tender proper conduct money and expenses, and to be in a position on the return of the subpoena to prove by affidavit the personal service and tender in case the witness fails to attend court …. Such a failure might result from reluctance to appear or through oversight, absence, illness, misadventure or attendance under compulsion elsewhere. In any of these cases the party at whose request the subpoena was issued could then decide whether to apply, on appropriate evidence, to enforce the subpoena or to adjourn the hearing. …
Service of a subpoena on an employee who may be willing is in practice still necessary because the employee needs to show the subpoena to the employer in order to obtain leave of absence from ….
[26] More recently, in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 24)[2021] FCA 1461, when considering whether witnesses were giving evidence voluntarily, Abrahams J observed “Certainly the witnesses have been subpoenaed, but it is not uncommon for that to occur, and as said by the applicant, is reflective of good practice. A subpoena is issued to ensure a witness attends court, and can be issued even if a witness is cooperating”: at [83].
[27] A subpoena to give evidence is served to ensure that the Court can administer justice, in two key respects: first, so that the Court can decide the case on the basis of the evidence on which the parties wish to rely in support of their claim or defence; second, so that the Court can decide the case in accordance with the case management principles in Pt 6 of the Civil Procedure Act 2005. As the High Court observed in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, “The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute”: at [55]. Serving a subpoena to give evidence, whenever there is a chance that a witness may not attend as initially indicated, reduces the prospect of trials not going ahead as scheduled.
[28] A classic case in which a subpoena should be served is where the witness is a former employee of the party who wishes to call them. The witness is no longer under the party’s control. Another classic case is where the witness advises that they may not be able to attend the trial after all, having made competing arrangements.
[29] I do not accept that Ms Cahill’s practice is good practice. Where hours and days have been spent with a witness, preparing a detailed affidavit, it is good practice to secure their attendance at trial. The need to do so can be simply and clearly explained.
[30] Nor do I accept the suggestion that, if Mr Dainton was served with a subpoena, he would be uncooperative out of some sort of unhappiness or discontent. Mr Dainton’s affidavit indicates that he is professional person. He is a Certified Practising Accountant with a Bachelor of Economics and a Master of Business Administration. Mr Dainton has worked in the insurance industry for 30 years. A simple explanation as to why the subpoena was served would be readily understood, particularly by someone who has had significant involvement in litigation involving AMP. Indeed, if he had been served in a timely manner, shortly after the matter was listed for trial, then Mr Dainton may well have been able to accommodate the trial dates without personal inconvenience.
[31] For completeness, it is also good practice, when taking a hearing date, to have the available dates for one’s witnesses. Organising a trial is no easy matter, as there are many components. Most components can be changed, such as the judge and the legal representatives. But the one thing that cannot be changed without potentially changing the outcome of the case is the lay witnesses, being the people that saw, heard or did the relevant things.
[32] On becoming aware that one’s witness is not available to appear at trial (which should not occur if one has made an enquiry as to their availability before taking a hearing date, but does happen), this should be promptly communicated to the parties and the Court, so that alternative arrangements can be made, if possible, including vacating the trial and allocating another hearing date.
[33] If it becomes necessary for a witness to give evidence by AVL from overseas (which should not be necessary if the witness’ availability is sought before a hearing date is taken and their attendance has been secured by the service of a subpoena to give evidence), such an issue should be raised with the parties immediately and, absent agreement, re-listed before the Commercial List Judge. Whilst a trial judge may well hear such an application, the Commercial List does not allocate to trial judges more than a month out from a trial. That may be too late to do fairness to all parties when trying to deal with the problem.
AVL link
[34] Turning to the application, s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) provides: (emphasis added)
5B Taking evidence and submissions from outside courtroom or place where court is sitting — proceedings generally
(1) Subject to any applicable rules of court, … a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if —
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
…
(3) In a proceeding in which a party opposes the making of [such] a direction … the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
[35] As Bell P (as the Chief Justice then was) observed in Antov v Bokan (No 2)(2019) 101 NSWLR 142; [2019] NSWCA 250, “The effect of s 5B … is that, whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that the direction to allow such a cause would be unfair to a party”: at [38]. The assessment of unfairness involves a broad evaluative judgement of the kind referred to in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 210–212: at [46]. Further, at [50]–[51]:
50 Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. …
51 Furthermore, the fairness or otherwise to one party of permitting a witness called by the opposing party to give evidence by video link may be affected by the timing of the application relative to the trial, the availability of other options to the party making the application and the circumstances of the witness involved. …
[36] Since the COVID-19 pandemic, there has been a vast increase in the number of cases heard remotely; significant experience has been gained in this field: Re Mulberry Capital Management Pty Ltd v Shen — AVL application[2022] NSWSC 1023 at [20] (Hammerschlag CJ in Eq). So too has the case law on this subject, as recently reviewed by Shariff J in ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 5)[2025] FCA 687 (albeit the specific requirements of s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 differ somewhat from the Federal Court provisions). Amongst these cases, Dhanji J (Harrison CJ at CL agreeing) recently observed in R v Walker[2025] NSWCCA 62 that there is “something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence”: at [32]. His Honour emphasised that the court’s increased use of, and confidence in, the use of AVL “should not be confused with such evidence being the equivalence of in-person testimony”: at [37].
[37] It remains the case that the party seeking an AVL order bears the onus of establishing that it is appropriate for it to be made: North v Daniel[2021] NSWSC 828 at [27]. A persuasive case should be made out for the use of AVL, where this is sought to be imposed on an unwilling cross-examining party: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) at [77] (Buchanan J).
[38] As to the exercise of discretion to make an AVL direction, and noting that the Federal Court rules are in different terms, the views of Jackson J in Australian Securities and Investments Commission v Wilson[2020] FCA 873 resonate nonetheless, at [24]:
While these cases provide guidance on the approach the court must take, the reason to exercise the discretion ‘is to be found in any individual proceeding in the facts and circumstances of each proceeding and by reference to the overriding consideration of ensuring that justice is done as between the parties to that proceeding’: Corrigan [v Commvault Systems (Aust) Pty Ltd[2011] FCA 107] at [12]. So, as Edmonds J said in Australian Competition and Consumer Commission v Stores Online International Inc[2009] FCA 717 at [14]:
… the choice in every case cannot be determined solely by reference to general principles because it is the application of those principles to the facts and circumstances of the particular case which must determine the choice; in the circumstances of a particular case, a matter may point one way and in another case it may point another way. At the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties …
Conclusion
[39] Dealing with s5B(3) at the outset, I am satisfied that it would be in the interests of the administration of justice for the court to make the order sought, in that it would enable the Court to have all of the evidence on which AMP relies in support of its case.
[40] Turning then to whether any of the circumstances described in s 5B(2) pertain, as to s 5B(2)(a) – whether the necessary facilities are available — I was not satisfied that an AVL link via Mr Dainton’s laptop from an air BnB in Sheffield met this description. I am satisfied that the facilities provided by AMP’s London solicitors meet this description. Whilst Chubb submitted that the technological support that could be provided by the London firm at 1.00 am was not something that the Court could have confidence in, I expect that a large London law firm will be able to provide 24-hour support.
[41] As to s 5B(2)(b), I am not satisfied that the evidence can be more conveniently given at trial where, absent an AVL direction, it will not be given at all. But that situation has been brought about by AMP’s failure to serve Mr Dainton with a subpoena to give evidence in a timely manner, and its decision not to do so now. If an AVL direction is not made, AMP will not read Mr Dainton’s affidavit. Indeed, where the insurers require him for cross-examination, AMP cannot read Mr Dainton’s affidavit. That is a consequence of AMP’s own choices.
[42] As to s 5B(2)(c), whether a direction to take Mr Dainton’s evidence by AVL “would be unfair to any party”, the question is not whether it would be unfair to any party not to make the direction, as AMP submitted it would be (albeit that may be a consideration under s 5B(3)). Five matters spring to mind.
[43] First, this case is of high-dollar value, being $300 million.
[44] Second, Mr Dainton’s evidence is important. While other lay witnesses will be called by AMP in respect of the Program, Mr Dainton was the only witness who would give evidence in respect of a particular time period. Making an AVL direction may be unfair to the insurers if it has the consequence that they cannot thoroughly test Mr Dainton’s evidence, particularly given how AMP proposes to deploy that evidence in its case. As I understand it, AMP intends to establish the rigour of the Program, tender a sample of 150 client files remediated in the Program, and ask the Court to infer that all payments made under the Program were based on a reasonable assessment of AMP’s liability (being a requirement of the policy wording). As such, Mr Dainton’s evidence is important indeed.
[45] Third, Mr Dainton’s credit is not in issue. Nor is a translator required.
[46] Fourth, the cross-examination will involve taking Mr Dainton to many documents, including many documents of considerable length. By the resumed hearing of the motion, Chubb had been able to form an estimate as to how long Mr Dainton would be required for cross-examination, being more than one day. Lloyd’s may have some additional cross-examination, but it is likely to be limited.
[47] The parties have agreed that the documents in this case will be dealt with by an electronic Court Book. As such, even if Mr Dainton gave evidence in Sydney, he would be looking at documents on a screen. But experience suggests that looking at documents over a link from the UK will have additional moments of delay, interruption and dislocation which would be lessened if the witness were in the courtroom in Sydney. Further, I consider that the observations made by Stevenson J in Bicheno Investments Pty Ltd v Winterbottom (No 2)[2017] NSWSC 413 hold true, at [34]–[35]:
it is notoriously hard for a cross-examination to gain momentum when conducted by audio visual link, especially where … the cross-examination is likely to be document heavy. … It may well be unfair to the plaintiffs to deprive them of the subtle, but often very real, advantage of having [the witness] in the witness box and in the same room as the cross-examiner.
[48] Fifth, there is a time difference. AMP proposes that Mr Dainton will give evidence starting from 1 am in the morning (his time) and continuing through the wee hours of the morning. As Chubb submitted, a witness giving evidence at 1.00 am in the morning from anywhere had its own problems.
[49] Where Mr Dainton will have been on holiday in Europe for two weeks or so by then, this can be expected to be uncomfortable and exhausting for the witness. This is far from ideal, for any party. Chubb submitted that it did not want there to be any suggestion that, if Mr Dainton did not perform well, any allowance ought be made for him as having been cross-examined over an AVL link or at an inconvenient time of day. AMP undertook not to make such a submission. That does not really solve my problem, of having a witness who cannot necessarily perform their task of giving accurate and complete answers to potentially difficult, taxing and protracted questions on important matters. I am concerned about this.
[50] I consider that it is unfair to the insurers to require them to test Mr Dainton’s evidence via an AVL link from the UK, given the importance of his evidence, the document-heavy nature of the cross-examination and the fact that the witness will be giving evidence for several hours through the night (his time). Given the manner in which AMP seeks to prove its case, by establishing and inviting the Court to draw inferences such that the insurers should be obliged to pay $300 million, I consider that it is unfair to thereby impede the insurer’s ability to properly test Mr Dainton’s evidence.
[51] As to s 5B(2)(d) – whether the witness will not give evidence — I have no power to require Mr Dainton to go down to London and give evidence through the night. The Court would be reliant on his co-operation. That said, I have no reason to think that it would not be forthcoming.
[52] Given that a circumstance described in s 5B(2) exists, I cannot proceed to make the order. If I am wrong about this, then I would not have exercised a discretion in AMP’s favour given the circumstances described in this judgment. I accept Chubb’s submission that no reasonable explanation has been given for this late application. AMP does not appear to have canvassed Mr Dainton’s availability until after a hearing date had been allocated. When told of the trial date, Mr Dainton immediately informed AMP of his plans, but nothing was done at the time, either to move the trial date or to let the insurers know of the difficulty. There was no evidence that Mr Dainton was then asked to move his personal commitments, or that he had tried to do so. AMP had (and has) the means at its disposal to fix this problem, by serving a subpoena to give evidence, but declines to do so.
[53] The admonition in Filby v TEG Live Pty Ltd[2022] NSWSC 1280 bears repetition. The facts were slightly different, but the problem was the same, being “entirely the creation” of the applicant. Slattery J observed at [20]–[21]:
[20] … The proper course is for a party to apply for a witness to give evidence by AVL before the witness makes final plans to go overseas and well before the hearing. This gives the Court greater flexibility to deal with the application and to minimise potential unfairness to each side. …
[21] … No party should assume in advance, as seems to have occurred here, that the AVL Act, s 5B discretion will be exercised in that party’s favour. … The Covid-19 pandemic international border closure is over, so it is not inevitable these orders will be granted, as it was throughout most of 2020 and 2021.
[54] For these reasons, I dismiss the motion with costs.
In Adani Mining Pty Ltd v Pennings [2025] QSC 157 (2 July 2025), the court addressed the proper approach apropos of the obligations of a respondent receiving a notice of non-party disclosure, from a party, under the Uniform Civil Procedure Rules 1999 (Qld). Freeburn J addressed the remaining categories of document by refusing one category and amending – so as to narrow – the other two categories. His Honour – adopting the metaphors of ‘spear fishing’ and ‘drag netting’ – wrote:
[7] By the time of the hearing the only categories of documents sought by Adani from Downer were as follows:1
No
Date
Description
Relevance
4
September until December 2017
All Documents (including internal correspondence, draft statements, announcements or media releases) discussing the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
Category 4 is directly relevant to paragraph 75 of the 3FASOC as to why Downer ceased negotiations with Adani Mining. Mr Pennings at paragraphs 75(i) and (j) of the further amended defence (summarised at paragraph 11 above) relies upon the ASX announcement to deny that Downer ceased negotiations with Adani Mining due to the threats. The process for how the ASX announcement was made is directly relevant.
7
2017
All letters or emails from the Galilee Blockade or Pennings.
Category 7 is directly relevant to paragraph 67 of the 3FASOC (that Downer knew about each of the threats) which is summarised at paragraph 8(c) above.
12
September until December 2017
All Documents:
Category 12 is directly relevant to paragraphs 73 and 74 of the 3FASOC wherein it is alleged that in or around November 2017, there was a meeting (Downer Meeting) between Downer and Adani Mining and at the meeting Downer terminated negotiations with Adani Mining.
(a)
recording what was to be discussed at the Downer Meeting;
(b)
recording when the Downer Meeting took place including calendar entries or diary records;
(c)
recording what was discussed at the Downer Meeting.
The Second Notice
[8] Those descriptions of the categories of documents sought by Adani impose a burden on Downer. Using category 4 as an example, Downer is required to search its documents to see if there are documents that discuss the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
[9] For reasons that will be explained, a non-party should not be required to shoulder such a burden.
[10] It is necessary to consider, in a little detail, the features of the second notice of non-party disclosure. Firstly, the notice identifies the allegations in Adani’s proceedings against Mr Pennings by quoting extensively from Adani’s statement of claim. The quotes are from paragraphs 37, 38, 40B, 60 to 77, and 98 to 103 of the statement of claim, running to just over 34 pages. The thrust of the paragraphs quoted are that Mr Pennings engaged in an electronic campaign as well as ‘direct action’ designed to persuade Downer not to contract with Adani. The allegations are that Mr Pennings’ actions led to Downer resolving to terminate negotiations with Adani in late 2017.
[11] Secondly, the second notice of non-party disclosure contains a list of definitions. As might be expected, the concept of a ‘document’ is widely defined.
[12] Thirdly, the second notice of non-party disclosure lists the documents required of Downer. For example, category 1 requires production of:
All [2017] Documents (including correspondence, board packs, agendas, reports and other relevant information) prepared for the purpose of a board meeting or subcommittee meeting which refer to or contain information about:
Pennings;
Adani Mining;
the Galilee Blockade;
protests;
threats of protests;
the Downer AGM;
the Downer Articles;
the Downer Direct Action;
the Downer Posts;
negotiations, including the status of negotiations, with Adani Mining; or
whether the nominated party should cease negotiations with Adani Mining and why.
[13] Category 1 is one of a number of categories that have been resolved as between Adani and Downer. The three categories still requiring a court decision are explained above. However, category 1 is useful because it illustrates the approach by Adani in drafting the second notice of non-party disclosure.
[14] Fourth, the second notice of non-party disclosure sets out the notices to Downer required by the relevant form.2 Those notices include a list of Downer’s obligations and an explanation of its rights, including its right to object.
[15] The burden imposed by category 1 of the second notice of non-party disclosure is that it requires Downer to:
(a) digest the allegations made in nearly 35 pages of the statement of claim so that a proper assessment can be made of relevance; and
(b) search all of its documents produced in the 2017 calendar year for documents that were both:
(i) prepared for the purpose of a board meeting or subcommittee meeting; and
(ii) refer to or contain information about the 11 topics that are listed in the bullet points;
(c) collate and produce those documents.
[16] If Downer has no objection, all of that is required to be done within 14 days.
[17] Before turning to the specific categories in issue in this case, it is necessary to explain the procedure of notices of non-party disclosure.
The Notice of Non-Party Procedure
[18] It is something of a misnomer to describe the procedure requiring non-party disclosure as a ‘disclosure’ process.3 The obligation imposed on the recipient of a notice requiring non-party disclosure can be contrasted with the disclosure duties of a party to a proceeding. The notice of non-party disclosure procedure enables a party to litigation to require a non-party to produce “a document” (or documents), provided that the document or documents are:
(a) directly relevant to an allegation in issue in the proceeding; and
(b) in the possession or under the control of the respondent/non-party; and
(c) a document or documents the respondent/non-party could be required to produce at the trial of the proceeding.4
[19] At the core of that process is the ‘one-off’ production of the document or documents described in the notice.5 The process is similar to a subpoena for production,6 which requires the identification of the documents sought with reasonable particularity.7 To comply with the notice, all the non-party needs to do is produce the specified documents. And the regime is sensitive to the fact that the non-party is a stranger to the litigation. For that reason, the non-party is entitled to its reasonable costs and expenses of producing the document or documents.8 Even if the non-party objects to production, the starting point is that each party bears their own costs of the application to determine the objection.9
[20] On the other hand, the duty of disclosure imposes on parties to litigation a continuing, positive duty to disclose to the other party each document that is directly relevant.10 The essential features of that positive duty are that the disclosing party has a continuing obligation to assess what documents are “directly relevant to an allegation in issue”, to properly describe those documents in a list of documents and to enable inspection or supply copies of any non-privileged documents that are requested.11 The requirement that the parties to litigation assess and then disclose the directly relevant documents in the parties’ possession or control, even if contrary to that disclosing party’s interests, serves the administration of justice by requiring the relevant truth.12 Parties who fail to disclose are subject to sanctions and a failure to properly disclose may adversely affect a party’s credit. The lawyers for the parties have a paramount duty not to mislead the court or permit the court to be misled, a duty that extends to disclosure obligations.
[21] It follows from those contrasting requirements that the notice of non-party disclosure will be consistent with the rules if the true nature of the notice is to require the non-party to produce documents. But a stranger to the litigation can legitimately complain if served with a notice that imposes on that non-party an obligation to undertake a detailed assessment of what documents are, or might be, comprehended by the pleadings in the proceeding. Those burdens of assessment are to be borne by the parties, not by a stranger to the litigation.
[22] The legislative regime for notices of non-party disclosure includes some protections for a non-party served with such a notice. The notice can only compel the production of specific documents which are directly relevant to an allegation in issue in the pleadings. Production of the document, or documents, cannot be compelled if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.13 And the court will ensure that the applicant does not cast its net too widely.14 Or, perhaps more accurately, the party issuing such a notice or subpoena cannot indulge in drag netting; the party is restricted to spear fishing.15
[23] The regime recognises that litigation is an expensive and time-consuming exercise for the community and for the parties, and that the extent to which strangers are put to inconvenience and expense by the litigation should be kept to a minimum.
Category 4: Documents Discussing the issue of an ASX Announcement etc.
[24] It is now necessary to consider each of the categories of documents required by Adani from Downer.
[25] Category 4 requires Downer to search its documents and to determine if any of those documents:
(a) discuss the issue of an ASX announcement, media release or statement; and
(b) concern Downer’s decision in relation to the Carmichael Mine or Adani; and
(c) fall within the window from September to December 2017.
[26] It is true that the date range is relatively narrow. However, that does not mean that the search is necessarily narrowly confined. A public company like Downer is likely to have a wider range of documents. Some documents will be hard copies, and some will be electronic.16 For hard copies, a manual process will be required to assess whether any documents answer the description. Electronic searches may be able to narrow the search but the total volume of emails that will need to be searched may exceed 1 million.17 An initial search of Downer’s records using the keywords ‘Adani’ and ‘Carmichael’ returned about 29,000 hits.18 Analysing and assessing those hits will be a substantial undertaking.
[27] The real problem is that, rather than requiring Downer to produce a specific document or category of documents, the true nature of Adani’s category 4 is to this effect: ‘search your documents and tell me if you have documents that discuss this topic, and concern your decision, and fall within the specified date range’. The requirement that Downer carry out a process akin to traditional interparty disclosure is clear from the oral submission of Adani’s counsel to this effect: “we’re looking for documents that discuss the issue of an ASX announcement, media release, or statement concerning the decision of Downer in relation to…Carmichael Mine or Adani Mining”.19 That makes clear that Adani expects Downer to carry out the search and, in doing so, determine whether any documents possess the particular content that Adani is looking for.
[28] The nature of the request is akin to drag netting, and it requires the non-party to drag the net and sort the catch.
[29] For those reasons, category 4 is too broad and too burdensome. Rather than requiring Downer to produce a specific document or category of documents, the category compels Downer to search its documents for two types of specific content.
5 The obligation to respond to a notice of non-party disclosure is not an ongoing duty: UCPR rule 242(4).
6 The process is limited to the production of documents which would be the subject of a subpoena duces tecum at a trial: UCPR rule 242(1)(c).
7 See the line of cases commencing with Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. See also cases like Spencer Motors Pty Ltd v LNC Industries Ltd[1982] 2 NSWLR 921 at 929 –930 where the court considered whether a subpoena (or notice to produce) may properly require the production of documents that “relate to” a particular fact or subject matter.
12Flight v Robinson (1844) 8 Beav 22 50 ER 9, Lord Langdale MR at 33, 34. The idea was “to scrape the conscience of the defendant”: Lord Bowen, “Progress in the Administration of Justice during the Victorian Period” in Ward T (C) (ed), The Reign of Queen Victoria: A Survey of Fifty Years of Progress (Smith, Elder, 1877) Vol 1, 281 (cited in The Laws of Australia, Thomson Reuters at [5.3.230].
In Mirabela Nickel Ltd (In Liq) (Recs and Mgrs Apptd) v Mining Standards International Pty Ltd [2025] WASCA 82 (30 May 2025) the Court of Appeal of Western Australia canvassed the jurisprudence pertaining to variation of a contract. The court wrote:
…
[180] The variation of a contract involves the alteration of the rights accruing or the obligations assumed under a contract. It is fundamental to any variation of contract that there is a valid and subsisting contract to be varied. Ordinarily, once there is a valid and subsisting contract:
By the general rules of the common law… it is competent to the parties at any time before breach of it, by a new contract … either altogether to waive, dissolve, or annul the former agreements, or in any manner add to, subtract from or vary or qualify the terms of it, and thus to make a new contract …
[181] That passage assumes that the varied contract is a ‘new’ contract. Plainly there are two contracts — the original contract and the further agreement by which the parties vary the original contract: Cmr of Taxation (Australia) v Sara Lee Household & Body Care (Australia) Pty Ltd.55 But it is not necessarily the case that the further agreement brings an end to and constitutes a replacement of the original contract. Whether the parties terminate the original contract and replace it with a new contract, or alter the original contract without affecting its existence, depends on the intention of the parties as disclosed by the further agreement: Cmr of Taxation (Australia) v Sara Lee Household & Body Care (Australia) Pty Ltd [22]- [24].
[182] The further agreement must itself satisfy the rules governing contract formation: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd.56
[183] There may, in this respect, be formalities affecting the recognition of the further agreement; for example, there may be requirements that such a contract be in writing or be evidenced in writing. No such considerations arise in the present case and nothing needs to be said about this potential complication. So too, despite cl 16.1 of the Sale Agreement, it is not necessary to consider the authorities dealing with the effect of a contractual provision that requires any contractual variation to be in writing or a particular form of writing. The primary judge’s rejection of this aspect of the respondent’s defence is not challenged in the appeal and there is otherwise no reliance on cl 16.1 on appeal.
[184] In terms of contract formation, in the same way as there must be offer and acceptance or a manifestation of mutual assent in the formation of the original contract, the parties must agree to the variation effected by the further agreement. The rules of contract formation apply equally to a variation as they do to the original contract. However, depending on the circumstances, the fact and terms of the original contract — as well as the parties’ dealing in relation to the original contract — may inform whether, viewed objectively, the parties intend to vary the original contract by entering into the further agreement.
[185] Before there can be a variation to a contract which is binding in law there is also a requirement that the further agreement effecting the variation must be supported by consideration: Agricultural and Rural Finance Pty Ltd v Gardiner.57
[186] The requirement for valid consideration will sometimes be problematic. Depending on the circumstances the performance of an existing contractual obligation may not provide legally sufficient consideration for a variation. So too past consideration cannot normally support a variation of contract. It is, however, well settled that a mutual exchange of promises will constitute consideration: Boothey v Boothey.58 So too the conferral of a ‘tangible benefit or advantage’ or some form of ‘practical benefit’ will suffice as consideration: Director of Public Prosecutions for Victoria v Le.59
[187] There will be no consideration for the promise by one party to agree to a variation where the parties to a contract agree to vary the time for satisfaction of or to vary the quantum of an unconditional obligation owed by only one of the parties: Foakes v Beer;60D & C Builders Ltd v Rees.61 Consideration is not present so far as the variation is exclusively for the benefit of one party. However, where parties agree to vary some other aspect of their contract — not merely an unconditional obligation owed only by one party — the agreement by each party for the variation of the mutual rights and obligations of the parties will be consideration for the other party’s promise: Inness v Waterson.62 See also Henderson v Curtis.63
[188] In the latter case, the possible benefit or detriment due to the variation of the parties’ mutual rights and obligations suffices to provide consideration for the promise of each party. The possibility of benefit or detriment suffices given Lord Selborne LC’s endorsement of the criteria of ‘any benefit, or even any legal possibility of benefit’ in Foakes v Beer ie some independent benefit, actual or contingent (613 – 614). Looked at in this way, what must be found to render a contract variation binding is something more than one party to the existing contract simply forgoing an existing contractual right: Hill v Forteng Pty Ltd.64
In BRC Group Pty Ltd v Watagan Park Pty Ltd [2025] VSCA 36 (14 March 2025), the Court of Appeal of Victoria upheld a Trial Division decision refusing to set aside a statutory demand. The respondent Watagan served a statutory demand for a debt alleged to be owing under a loan agreement entered into with the applicant BRC. Upon BRC’s application to set aside such statutory demand, the ‘21 day affidavit’ it filed disputed the existence of a concluded loan agreement but on the hearing sought to raise, in the alternative, a dispute on the footing that the loan debt was not due having regard to certain terms of the alleged agreement. The court below, and on appeal, concluded that the latter dispute transcended the content of the 21 day affidavit, and thereby could not be relied upon to set aside the statutory demand. The Appellate Court wrote:
Consideration
Legal framework
[31] Section 459G of the [Corporations Act 2001 (Cth)] provides:
Company may apply
(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2) An application may only be made within the statutory period after the demand is so served.
(3) An application is made in accordance with this section only if, within that period:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
[32] Section 459H of the Act relevantly provides:
Determination of application where there is a dispute or offsetting claim
(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
(b) that the company has an offsetting claim.
[33] The key question in this case is whether the 21 day affidavit constitutes an affidavit ‘supporting the application’ in respect of the additional dispute for the purposes of s 459G(3)(a).
[34] In answering this question, the recent decision of this Court in Sceam Construction Pty Ltd v Clyne (‘Sceam’) helpfully summarises the relevant principles.15 Sceam was a builder engaged by the owners of a home to carry out renovation works on their property under a contract administered by an architect. The owners served a statutory demand on Sceam demanding a debt on the basis of a certificate provided by the architect as to amounts payable in respect of building defects. Sceam applied to set that demand aside and filed an affidavit within the relevant statutory time period. In that affidavit, it alleged design flaws in the architectural drawings and disagreed with the defects identified by the architect. However, Sceam subsequently sought to set the demand aside on the basis that the amount claimed was not a debt because there had not been compliance with the terms of the contract relating to the issue of various notices.
[35] The primary judge dismissed Sceam’s application on the basis that the arguments it sought to raise about non-compliance with the contractual terms had not been raised in the initial affidavit filed within the requisite time period.
[36] In seeking leave to appeal the judge’s decision, Sceam contended, inter alia, that the judge had wrongly applied a ‘fair notice’ requirement. It submitted that the Victorian authorities had diverged from more recent New South Wales authorities, in applying such a requirement. Further, that the New South Wales authorities were to be preferred.
[37] As a result of the matters raised, this Court had cause to examine the case law in some detail, including two previous decisions of this court in Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) (‘Malec’)16 and GoConnect Ltd v Sino Strategic International Ltd (in liq) (‘GoConnect’),17 as well as a decision of the NSW Court of Appeal in NA Investments Holdings Pty Ltd v Perpetual Nominees Ltd (‘NA Investments’).18
[38] In Malec, Scotts Agencies supplied fuel to Malec, which operated a transport company. Scotts Agencies served a statutory demand on Malec for unpaid fuel and Malec applied to set the demand aside. In the affidavit filed within the statutory time period, Mr Malec deposed that he had been charged for fuel where there was no evidence that the fuel had in fact been delivered. As a result, he alleged that there was an offsetting claim in a specific amount. The basis for the alleged overcharging was hence a claim that on specified days Scotts Agencies had charged for fuel in excess of the capacity of Malec’s tankards. However, in a subsequent affidavit filed outside the statutory period, Mr Malec exhibited reports that showed what fuel had been used and compared it with what had been charged. He claimed that the whole of the demand should be set aside as the amount charged was far in excess of the quantity of the fuel Malec had used.
[39] In the result, the Court refused to set aside the statutory demand. The Court held that the initial affidavit raised the issue of overcharging on the ground that Scotts Agencies charged for fuel which it could not have delivered on specific days, whereas the later affidavit raised a separate issue of overcharging on the basis of fuel used by Malec.
[40] Although both disputes were concerned with overcharging, the decision of Malec suggests that where the affidavit filed within the statutory period identifies a ground with some specificity, such as to exclude other alternatives, this may exclude another different ground.
[41] The decision of this Court in GoConnect is to similar effect. In that case, Sino served a statutory demand in respect of a loan debt and GoConnect sought to set the demand aside. The affidavit filed in support of GoConnect’s application stated that there was a genuine dispute because the loan was only payable when GoConnect chose to pay it. However, supplementary affidavits filed outside the statutory period alleged that the loan agreement contained oral terms, was ambiguous, and that Sino was estopped from demanding repayment.
[42] The Court held that the affidavit filed within the statutory period did not notify Sino of any contention other than that the loan was only repayable when it chose to pay it.19 It also rejected a submission that some further correspondence exhibited to the initial affidavit contained the additional contentions sought to be advanced. Even if this was wrong, the correspondence needed to be read in the context of the whole of the initial affidavit which confined the basis of the dispute to the terms of the loan facility agreement.20
[43] In the NSW Court of Appeal decision in NA Investments, the relevant facility agreement was exhibited to the initial affidavit filed within the statutory period. The debtor later sought to rely on a construction argument notwithstanding that the nature of that argument had not been outlined in the initial affidavit. Despite the fact that the affidavit was said to put the creditor ‘off the scent’, the Court found that the affidavit was still properly characterised as a ‘supporting affidavit’ where the only issue sought to be raised was one of construction and the document in question had been put into evidence.21 However, given that evidence outside the document was necessary so as to consider the construction issue, the Court ultimately found that the judge was correct not to set aside the statutory demand.22
[44] After summarising, inter alia, the above three cases, the Court in Sceam concluded:
[T]he affidavit must support the application by providing the basis for establishing that there is a genuine dispute. Establishing the genuineness of the dispute requires material showing, or from which it can be inferred, that there is a real dispute. Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute which may be relied upon to set the demand aside. Where the dispute is based purely on the construction of a written agreement between the parties, the support requirement may be satisfied by exhibiting the agreement without more. But, for example and without being prescriptive, if something beyond the written terms is to be relied upon, then it is highly likely that this will need to be raised in the affidavit and more than mere assertion will be necessary. Ultimately, what is required to satisfy the support requirement must be assessed in the context of the particular application that is made.23
[45] In relation to the suggestion that the Victorian authorities had wrongly applied the concept of ‘fair notice’, the Court stated:
In our opinion, while various forms of language are used in the authorities, their effect is the same. Whether the terms ‘fair notice’ or ‘fairly alert’ are used or whether it is said that the ground must be raised ‘expressly, by necessary inference or by a reasonably available inference’, the outcome turns on whether the affidavit supports the application. In their context, we do not understand the Victorian authorities referred to above to have used the terms ‘fair notice’ and ‘fairly alert’ in a procedural fairness sense. Rather, in substance and properly understood, those phrases have been used as a shorthand for the lengthier phrase ‘ expressly, by necessary inference or reasonably available inference’. That phrase requires that the grounds for resisting the statutory demand appear in the affidavit. … The language of ‘fair notice’ or ‘fairly alerts’ has been directed towards the need for the affidavit to show that there is a real dispute, so as to properly be regarded as an affidavit that supports the application to set aside the statutory demand.24
[46] The Court went on to refer to an earlier decision of Sundberg J in Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund25 and considered that the affidavit in that case did not state any material facts to show there was a genuine dispute, but contained ‘mere assertions’ and thus was not an affidavit ‘in support’ of the application.26 The Court contrasted this position with other cases where a supporting affidavit did identify a genuine dispute on a particular basis, but later sought to rely on a different genuine dispute. The Court stated:
It is clear from the authorities that an affidavit filed within time that does not identify the dispute later sought to be relied upon is not a ‘supporting affidavit’ in so far as the different genuine dispute is concerned …27
[47] The decision in Sceam provides extensive guidance as to the requisite content of an affidavit ‘supporting’ an application for the purposes of s 459G(3)(a). We consider that the following principles have particular relevance to this case:
(a) The affidavit must ‘support’ the application by providing the basis for establishing that there is a genuine dispute about the existence or amount of the debt.
(b) Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute.
(c) The ground for resisting the demand must be raised expressly, by necessary inference, or reasonably available inference.
(d) Where the dispute about the existence or amount of the debt is based purely on the construction of a document, the requirement may be satisfied by exhibiting the document.
(e) Mere assertion that the debt is disputed is insufficient.
(f) An affidavit filed within time that does not identify the dispute later sought to be relied upon is not a ‘supporting affidavit’ insofar as the different genuine dispute is concerned. The question of sufficient identification will be considered in context, having regard to the degree of specificity with which the initial dispute is defined.
Analysis
[48] The gravamen of the applicant’s submissions was that the 21 day affidavit sufficiently disclosed the additional dispute. The applicant particularly focused on the reference to the ‘equity right agreement’ (in paragraph 14); the statement that it was ‘intended’ that the maturity dates of the loan agreement and the consultancy agreement be ‘aligned’ (in paragraph 15); the 25 September email; and the statements to the effect that the alleged debt was ‘not payable’.
[49] The applicant’s submission must be rejected for a number of reasons.
[50] First, the passing reference to the equity right agreement in paragraph 14 is insufficient in circumstances where the equity right agreement is not exhibited. Nor were its terms identified, or even described in a summary way. The statement that it was ‘intended’ that the dates be ‘aligned’ is also unhelpful and ambiguous. It is insufficient to raise the additional dispute expressly, or by inference. This is particularly so given the relatively complex operation of the equity right agreement as already described.
[51] Second, we reject the submission that the 21 day affidavit indicated that some different agreement — not the agreement reflected by the 1 January document — was actually reached. The statements at paragraphs 16 and 17 are inconsistent with any such suggestion. The emails contained in MD-1 are also clearly intended to support the proposition that the parties were ‘still engaging in negotiations’. If — as is now suggested — a different agreement had been agreed, one would expect a simple statement to that effect to have been included.
[52] Third, there is no suggestion anywhere that the repayment date was contrary to that specified in the 1 January document and/or that it had not yet been reached. Nor is there any suggestion that it was somehow tied to a separate mechanism contained in the equity right agreement. The statements to the effect that the debt was ‘not payable’ do not delineate any such dispute. Paragraph 24 simply states that the repayment date was ‘not ultimately agreed’, not that some different date was agreed. The documents annexed at MD-1 also include the unsigned 1 January document, which expressly provides for a repayment date of 23 December 2023, and contains no clauses connecting the repayment of the loan with the equity application process. The 25 September email also cites the date of December 2023 as the repayment date.
[53] Finally, the 21 day affidavit clearly intends to identify a very different basis for dispute, namely, that there was no final agreement reached at all as to the terms of the loan. This is apparent from the clear, and specific, statements made in paragraphs 16, 17, and 24 to the effect that the agreement was never finalised, or agreed. In these circumstances, the judge was correct to consider that these statements identified a specific dispute which was inconsistent with the additional dispute.
[54] When considered overall, then, the 21 day affidavit did not identify the additional dispute. More particularly, it did not provide any basis for establishing that the repayment date was to be tied to a different agreement which was neither annexed, nor described. The associate judge was therefore correct to find that it was not a ‘supporting affidavit’ insofar as the additional dispute was concerned.
18[2010] NSWCA 210. We have been greatly assisted by the summaries of these three cases contained in Sceam(2021) 64 VR 404, 410–12 [20]–[29] , 413–14 [33] (Ferguson CJ, Sifris and Walker JJA).
While care need be taken in referring to UK decisions without regard to Australian jurisprudence, instructive still is the decision of the UK Supreme Court in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21 (21 May 2025). The case concerned an interlocutory appeal brought in a post-Grenfell Tower case where the plaintiff developer (“BDW”) sued the defendant design consultant (“URS”), in the tort of negligence, for remedial costs it incurred in respect of residential towers in London designed and constructed – as Grenfell Tower was – with flammable cladding. The character of the claim, from a legal perspective, was pure economic loss. At the time of the Grenfell Tower fire, and thereby at the time of incurring the subsequent remedial expenditure, BDW had sold, and thereby no longer enjoyed any proprietary interest in, the subject residential towers. Further, the limitation period for it to be sued as a developer of the towers had expired. Nonetheless the Court of Appeal of England and Wales, and subsequently the UK Supreme Court, dismissed an appeal by URS contending the claim ought be struck out on the footing that the expenditure was incurred by BDW voluntarily, and thereby beyond the scope of the tortious duty of care owed by URS to BDW. The principal judgments in the case were delivered by Lord Hamblen and Lord Burrows, with whom Lord Lloyd-Jones, Lord Briggs, Lord Sales and Lord Richards agreed. This case note refers only to the first ground argued in the Supreme Court, there being other grounds which turn directly on the content of remedial legislation enacted in this litigious space. Their lordships wrote:
1. Introduction
On 14 June 2017 a fire broke out at Grenfell Tower in London leading to the tragic death of 72 residents of the 24-storey tower block. It later transpired that the main reason why the fire engulfed Grenfell Tower so quickly was the use of unsafe cladding around the outside of the building, which did not comply with relevant building regulations.
Investigations carried out following the fire led to the discovery that a number of high-rise residential buildings across the country were subject to serious safety defects. Aside from unsafe cladding, other issues were identified, including other fire safety concerns, such as lack of compartmentation and flammable balconies, and serious structural defects that gave rise to risks of buildings (or parts of buildings) collapsing.
The Government encouraged developers to investigate medium or high-rise developments for which they were responsible and to carry out any necessary remedial work for safety defects discovered. In 2022 this encouragement was reinforced by legal responsibilities imposed on developers and contractors under the Building Safety Act 2022 (the “BSA”).
The respondent (“BDW”) is a major developer. Its brand names include well-known developers such as Barratt Homes and David Wilson Homes. The appellant (“URS”) provides consultant engineering services. A number of BDW’s medium or high-rise flat developments were based on URS’s structural designs.
During its post-Grenfell investigations, in late 2019, BDW discovered design defects in two sets of multiple high-rise residential building developments (known as “Capital East” and “Freemens Meadow”, together “the Developments”).
BDW was the developer of the Developments. URS was appointed by BDW to provide structural design services in connection with the Developments. Initially, BDW was the freehold owner of Freemens Meadow and, on the assumed facts, had a proprietary interest in Capital East at the time it was constructed. In each case, long leases of flats were sold to residential purchasers, any interest which BDW had in the structure and common parts was ultimately transferred to third-party management companies, and all of BDW’s remaining proprietary interests were sold for full value.
Amongst other facts that were assumed at first instance, and are not in dispute for the purposes of this appeal, the Developments had various defects as a result of URS’s failure to exercise reasonable skill and care in the provision of its design services; and that failure was a breach of URS’s common law duty of care in tort, which was concurrent with, and arising out of, the obligations assumed by URS under its contracts with BDW. Furthermore, the existence of certain of the defects presented a health and safety risk.
In 2020 and 2021, BDW carried out repairs/remedial works (we shall throughout use those terms interchangeably) to the Developments, although no claim against BDW arising out of the defects had been intimated by any third-party owner or occupier of the Developments. Nevertheless, BDW says that it considered that the defects, if left unremedied, presented a danger to occupants and risked serious damage to BDW’s reputation in the market. The losses claimed by BDW from URS relate to the costs of executing those remedial works, together with associated costs.
At the time that those repair costs were incurred, BDW no longer had any proprietary interest in the Developments and any action brought by third parties to enforce obligations owed to them by BDW (whether under the Defective Premises Act 1972 (the “DPA”) or in contract for breach of collateral warranties) in relation to defects would have been time barred under the Limitation Act 1980.
In March 2020 BDW issued proceedings against URS in the tort of negligence. It was made clear, by BDW’s Reply to URS’s Defence, that BDW was making no claim for breach of contract.
On 4 June 2021 O’Farrell J ordered the trial of preliminary issues, on assumed facts, as to whether the scope of URS’s duties extended to the alleged losses and whether the alleged losses were recoverable in principle as a matter of law in the tort of negligence. URS also applied to strike out the claim against it.
The preliminary issue trial was heard by Fraser J on 5, 6 and 7 October 2021. On 22 October 2021 judgment was handed down ([2021] EWHC 2796 (TCC)) determining that: (i) the scope of URS’s duty extended to the losses claimed by BDW, save in relation to those which concerned “reputational damage”; (ii) BDW’s alleged losses were all recoverable in principle, save for the claims for “reputational damage”; (iii) the losses were in the contemplation of the parties at the time of entering into the appointments and were not too remote; and (iv) issues of legal causation (ie whether BDW’s actions had broken the chain of causation so that BDW had caused its own losses) and whether BDW had failed to mitigate its loss were fact dependent and could only be determined at trial. Consequential orders were made in relation to the strike out application.
Section 135 of the BSA (which inserted section 4B into the Limitation Act 1980) came into force on 28 June 2022 and retrospectively extended the limitation period for accrued claims under section 1 of the DPA from six years to 30 years. On the same day BDW issued an application to amend its case in reliance on section 135 of the BSA.
The amendments sought: (i) to delete the previously pleaded admissions that at the time that the defects were discovered and the repairs undertaken any liability which BDW had to any third party was time-barred, and to introduce instead the allegation that, by reason of section 135 of the BSA, BDW’s liability to such third parties under the DPA was not time-barred at the time of the repairs; (ii) to bring a new claim against URS under the DPA on the basis that such a claim would not now be time barred; and (iii) to bring a new claim against URS for contribution under the Civil Liability (Contribution) Act 1978 (“the Contribution Act”) on the basis that both parties were under in-time liabilities for the same damage under the DPA at the time that BDW undertook the relevant repairs. The amendments were opposed by URS but permission to make them was granted by Adrian Williamson KC sitting as a deputy High Court judge: [2022] EWHC 2966 (TCC) HT-2020-000084 (14 December 2022).
The decisions of Fraser J and Adrian Williamson KC were appealed. The appeals were heard together by the Court of Appeal (King, Asplin and Coulson LJJ) on 25, 26 and 27 April 2023. By a judgment handed down on 3 July 2023 (Coulson LJ giving the leading judgment), the Court of Appeal dismissed the appeals: [2023] EWCA Civ 772.
The Supreme Court granted permission to appeal on 5 December 2023 on four grounds, which give rise to the following issues:
Ground 1: In relation to BDW’s claim in the tort of negligence against URS, has BDW suffered actionable and recoverable damage or is the damage outside the scope of the duty of care and/or too remote because it was voluntarily incurred (disregarding the possible impact of section 135 of the BSA)? If the answer to that question is that the damage is outside the scope of the duty of care or is too remote, did BDW in any event already have an accrued cause of action in the tort of negligence at the time it sold the Developments?
Ground 2: Does section 135 of the BSA apply in the present circumstances and, if so, what is its effect?
Ground 3: Did URS owe a duty to BDW under section 1(1)(a) of the DPA and, if so, are BDW’s alleged losses of a type which are recoverable for breach of that duty?
Ground 4: Is BDW entitled to bring a claim against URS pursuant to section 1 of the Contribution Act notwithstanding that there has been no judgment or settlement between BDW and any third party and no third party has ever asserted any claim against BDW?
These grounds of appeal raise some important legal issues. These include: whether voluntarily incurred losses are irrecoverable as a matter of law (Ground 1); whether the retrospective extension, by section 135 of the BSA, of the limitation period for claims under section 1 of the DPA has relevance to a claim in the tort of negligence or for contribution under the Contribution Act (Ground 2); whether developers are owed duties under section 1 of the DPA (Ground 3); and the circumstances in which a cause of action accrues under the Contribution Act (Ground 4).
…
3. Ground 1: In relation to BDW’s claim in the tort of negligence against URS, has BDW suffered actionable and recoverable damage or is the damage outside the scope of the duty of care and/or too remote because it was voluntarily incurred (disregarding the possible impact of section 135 of the BSA)? If the answer to that question is that the damage is outside the scope of the duty of care or is too remote, did BDW in any event already have an accrued cause of action in the tort of negligence at the time it sold the Developments?
(1) Pure economic loss, scope of duty and remoteness
It is important to explain at the outset that BDW’s claim in the tort of negligence concerns pure economic loss. In order for the claimant to establish the cause of action in the tort of negligence, the relevant “damage” is not physical damage to the building but is rather the pure economic loss of having a defective building which has a lower value than it should have had and/or requires repair: see Murphy v Brentwood District Council [1991] 1 AC 398 (“Murphy v Brentwood”) (overruling Anns v Merton London Borough Council [1978] AC 728 (“Anns v Merton”)). In general, there is no duty of care owed in the tort of negligence not to cause another person pure economic loss: see, eg, Cattle v Stockton Waterworks Co (1875) LR 10 QB 453; Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; Armstead v Royal & Sun Alliance Insurance Co Ltd [2024] UKSC 6; [2025] AC 406, para 20; and the recent decision of the High Court of Australia in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956. But there are exceptions. The main exception is where there is an assumption of responsibility by the defendant to the claimant: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. As both parties accepted, that exception applies in this case. There was an assumption of responsibility by URS to BDW, undertaken through the contract for professional services between them, that URS would take reasonable care in providing structural designs to BDW such that buildings constructed on the basis of those designs would not be defective thereby causing BDW pure economic loss.
On the assumed facts, it is also not in dispute that URS was in breach of that duty of care owed to BDW in respect of those structural designs (ie the designs had been negligently produced by URS); and that BDW incurred repair costs in respect of the Developments that were factually caused by that breach of duty (applying the standard “but for” test for factual causation).
URS therefore accepts that, had BDW carried out repairs to the Developments before selling them (ie at a time when it still had a proprietary interest in them), the cost of repairs incurred by BDW would have been pure economic loss that was recoverable by BDW in the tort of negligence. But URS submitted that, because the repairs were carried out by BDW on the Developments that no longer belonged to it and without any enforceable legal obligation to do so (because, it is argued, BDW had a limitation defence to any claim against it by homeowners whether under the DPA or for breach of a contractual collateral warranty), the loss suffered was outside the scope of the duty of care and/or was too remote. More specifically, URS argued that there is what it labels a “voluntariness principle” that provides a bright-line rule of law explaining why the loss in this case was outside the scope of the duty and/or was too remote.
Counsel for URS neatly encapsulated its submissions in its written case on this appeal as follows (at paras 48-49):
“[T]he losses claimed in this case are the costs related to remedial works undertaken: (i) after BDW had ceased to have any proprietary interest in the developments; and (ii) in the absence of any enforceable obligation to undertake such repairs. Losses of that type are not recoverable as they:
(1) Fell outside the scope of the duty assumed by URS, not being of a type and not representing the fruition of a risk that it was URS’s duty to guard against; and
(2) Were not within URS’s contemplation as a serious possibility at the time the contract was made and for which URS assumed responsibility and therefore were too remote.”
Before examining the cases relied on by URS for the voluntariness principle, it is helpful to consider the standard application to the assumed facts of the law on scope of duty and remoteness on the initial premise that there is no such voluntariness principle.
Looking first at scope of duty (or what has sometimes been referred to as the “SAAMCO principle” following the leading case of South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191), it was explained in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20; [2022] AC 783 and Meadows v Khan [2021] UKSC 21; [2022] AC 852 that, as a limiting principle separate from remoteness, the scope of duty enquiry essentially depends on the purpose of the duty. Focussing on that, it is clear that the purpose of URS’s duty of care was to guard BDW against the very type of loss – the repair costs to the Developments – that BDW has incurred. Therefore, absent the application of a voluntariness principle, the loss here was within the scope of URS’s duty of care (as the Court of Appeal decided: see para 21 above).
As regards remoteness, in a tort of negligence claim resting on a contractual assumption of responsibility, it is now clear that the appropriate remoteness test is what has sometimes been referred to as the “contract test”: see Wellesley Partners LLP v Withers LLP [2015] EWCA Civ 1146; [2016] Ch 529. Originating in Hadley v Baxendale (1854) 9 Exch 341, and clarified in cases such as Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528; Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350 and Brown v KMR Services Ltd [1995] 4 All ER 598, this is a stricter test than what is sometimes called the “tort test” laid down in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388. Applying that stricter remoteness test, the question to be asked is whether the type of loss suffered was reasonably contemplated by the defendant at the time of the assumption of responsibility (ie here at the time the contract was made) as a serious possibility. Applying that remoteness test to the assumed facts, it must have been reasonably contemplated by URS as a serious possibility at the time of the assumption of responsibility that BDW would suffer the type of loss – the repair costs – that BDW has incurred. Therefore, absent the application of a voluntariness principle, the loss here was not too remote (as Fraser J decided, see para 12 above: remoteness, as distinct from scope of duty, was not focussed on in the Court of Appeal).
(2) A voluntariness principle?
The question therefore becomes, is there a voluntariness principle and, if so, on the assumed facts, would it alter the decisions that one would otherwise reach on scope of duty and remoteness?
It is helpful first to consider a hypothetical example. A passer-by, who enjoys DIY, notices that solar panels on a newly-built but empty house have become loose and potentially dangerous. He phones the builders and the owner to inform them of the danger but they fail to act. The passer-by returns a week later and carries out the necessary repairs having bought the necessary materials to do so. He then demands payment of the cost of the repair from the builders. It is accepted that the solar panels were not properly affixed because of the negligence of the builders. If the passer-by were to bring a claim against the builders in the tort of negligence for the pure economic loss (ie the repair cost incurred), it is clear that there would be no such liability. That is most obviously because, as there was no assumption of responsibility by the builders to the passer-by, there would be no duty of care owed to the passer-by by the builders not to cause pure economic loss. It may be that the passer-by’s voluntariness would be another reason for there being no liability but the important point is that there would be no need to rely on any principle of voluntariness to explain that result. We also put to one side the separate question as to whether the passer-by might conceivably have a claim in the law of unjust enrichment against the owner (or perhaps the builders) for necessitous intervention: see, eg, Goff and Jones, The Law of Unjust Enrichment, 10th ed (2022), Chapter 18; Graham Virgo, The Principles of the Law of Restitution, 4th ed (2024), Chapter 12.
However, on the assumed facts, in contrast to that hypothetical example, it is not in dispute that, based on the assumption of responsibility, there was a breach of the duty of care owed by URS to BDW not to cause BDW pure economic loss. The question at issue is whether, despite there being a duty of care owed and breached, there is a voluntariness principle that applies, through the concepts of scope of duty or remoteness, to rule out recovery for the cost of repair incurred by BDW.
(3) The four cases relied on by URS
In support of there being such a voluntariness principle, URS relied on four cases.
In Admiralty Comrs v SS Amerika [1917] AC 38 (“SS Amerika”), one of His Majesty’s submarines was negligently run into and sunk by the defendants’ steamship. All but one of the submarine crew were drowned. The claimant Commissioners included within the loss for which they were seeking damages, assessed by the Admiralty Registrar, the capitalised amount of the pensions that they had paid out to the dependants of the deceased men.
The House of Lords, sitting as a panel of three, denied that claim for two reasons. First, it was for a loss to the claimants consequent on another’s death. Applying the long-standing rule of the common law, laid down in Baker v Bolton (1808) 1 Camp 493, there could be no recovery for losses caused by the death of another person. Secondly, in any event, the loss was too remote. The payments were compassionate payments which the Admiralty was not legally bound to pay. In the words of Lord Parker at p 42:
“[T]he items of damage which the appellants desire to be allowed are too remote. … No person aggrieved by an injury is by common law entitled to increase his claim for damage by any voluntary act; on the contrary, it is his duty, if he reasonably can, to abstain from any act by which the damage could be in any way increased.”
Lord Sumner expressed the position as follows at pp 60-61:
“In the present case the sums claimed were paid to widows and other dependants of the drowned men under Admiralty Regulations … which expressly declare that these are compassionate payments, and granted of grace and not of right, both in kind and in degree. True that in such cases they are always made, and most properly made, but none the less the money claimed was lost to the Exchequer directly because the Crown through its officers was pleased to pay it. The collision was the causa sine qua non; the consequent drowning of the men was the occasion of the bounty; but the causa causans of the payment was the voluntary act of the Crown. Had the present action been brought upon a contract it might well be the case that these payments would have been within the contemplation of the contracting parties, but they are not the natural consequences of the tort which is sued for.”
There are two points to note about this decision at this stage.
(i) The Commissioners were essentially recovering damages for physical damage to their property (ie the loss of the submarine). The payments to the dependants of the deceased men were not consequent, or at least not directly consequent, on that physical damage. On the contrary, they flowed from the death of the crew. A principal reason why one cannot recover in the tort of negligence for loss consequent on another person’s death is that that constitutes pure economic loss and there is, in general, no duty of care owed not to cause pure economic loss. Fatal Accidents Act legislation was first introduced in 1846 (popularly known as Lord Campbell’s Act) to depart from Baker v Bolton but, even applying the present Fatal Accidents Act 1976, the Commissioners would have no statutory cause of action because it is only dependants of the deceased who have such a claim.
(ii) Although Lord Parker said that the loss was too remote, when his Lordship came to discuss the voluntary nature of the payment, he relied on language that is most obviously relevant to the concepts of mitigation or legal causation. Similarly, Lord Sumner used the language of legal causation as well as remoteness.
In Esso Petroleum Co Ltd v Hall Russell & Co Ltd (The Esso Bernicia) [1989] AC 643, Esso’s oil tanker was damaged in an accident caused by a defect in the tugs that were towing her into an oil terminal in Scotland. Oil escaped from the damaged tanker and polluted the coastline. In a negligence action against the tugs’ shipbuilders, Esso recovered damages for the damage to its tanker and for the loss of its oil. In addition, they claimed damages for the sums they had paid out in respect of the oil pollution to the Shetland Islands Council (representing, in particular, crofters) under the Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution (“TOVALOP”). The House of Lords held that those sums were irrecoverable because they constituted pure economic loss; and pure economic loss cannot (normally) be recovered in the tort of negligence.
Lord Jauncey (with whom Lords Keith, Brandon, and Templeman agreed) said the following at pp 677-678:
“Esso chose to enter into and remain a party to TOVALOP for what were no doubt sound policy and commercial reasons but under no compulsitor of law so to do. They agreed voluntarily to indemnify persons affected by oil spillage. They were under no general duty in law to the crofters and as far as they were concerned the payments which they received were entirely gratuitous. … TOVALOP is and remains a gratuitous contract of indemnity notwithstanding that the event which gave rise to the payments thereunder was damage to the Bernicia. Esso cannot pray in aid the latter event to convert their claim to repayment of sums paid under that indemnity into a claim for economic loss resulting directly from the damage.”
Lord Goff (with whom Lord Templeman agreed) made pellucidly clear that the loss comprising the sums paid out under the TOVALOP was irrecoverable pure economic loss because it did not truly flow from the physical damage to Esso’s ship. He said at pp 664-665:
“Esso cannot claim the sums paid by it under TOVALOP as financial loss attributable to the physical damage to the ship caused by Hall Russell’s alleged negligence. The damage to the ship did no more than trigger off the event which led to the pollution in respect of which Esso became bound under the terms of TOVALOP to make the payments which are the subject matter of its claim. In truth, Esso’s claim to damages falls under two separate heads—(1) damages in respect of the physical damage to the tanker, and any financial loss (eg loss of use) flowing from such physical damage; and (2) damages in respect of the sums paid out by Esso under TOVALOP. But … damages of the type claimed under the second head are irrecoverable in negligence, as has been established for over 100 years, ever since the decision of your Lordships’ House in Simpson & Co v Thomson (1877) 3 App Cas 279.”
Therefore, as in SS Amerika, the relevant loss in question was pure economic loss. This was because it was not consequent on, or at least not directly consequent on, the damage to the tanker. Simpson & Co v Thomson, referred to by Lord Goff, was a House of Lords (Scotland) decision denying recovery for negligently caused pure economic loss. While it is true that the sums paid out under the TOVALOP were voluntary, their classification as pure economic loss appears to have been crucial in explaining why they were irrecoverable in the tort of negligence.
In Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLR 173 (“Anglian Water”) the claimant, Anglian Water Services Ltd (“Anglian”), had engaged Crawshaw Robbins & Co Ltd (“Crawshaw Robbins”) to carry out the work of replacing old water main pipes with modern ones. In doing so, Crawshaw Robbins’s sub-contractor negligently drilled through an existing water main, a gas main and an electricity cable. The consequence was that 20,000 people in Corby were affected, to varying degrees, by loss of gas supplies. Anglian made payments, inter alia, to those householders whose gas supplies had been affected (without there being any physical damage to their gas appliances) and to local authorities who had provided emergency services. In an action for breach of contract and in the tort of negligence against Crawshaw Robbins, Anglian claimed damages for the payments it had made to the householders and to the local authorities. It was held by Stanley Burnton J at paras 80, 113, 156, 158 and 174, that, whether in contract or tort, Anglian could not recover from Crawshaw Robbins for those payments to third parties because, however commendable Anglian’s actions had been in making those payments, they were voluntarily paid (ie Anglian had no legal liability to the householders or the local authorities).
In further explaining why there was no recovery for the voluntary payments, Stanley Burnton J made two points. First, in respect of the tort of negligence claim he relied (at para 113) on The Esso Bernicia. However, as has been explained, in respect of the tort of negligence, the loss in The Esso Bernicia was irrecoverable pure economic loss. Yet in Anglian Water, where there was a contract between the claimant and defendant that gave rise to an assumption of responsibility, the fact that the loss was pure economic loss would not have rendered it irrecoverable.
Secondly, as regards the contract claim, the judge said the following at para 80:
“In my judgment, Anglian is not entitled to recover as damages for breach of contract sums voluntarily paid to third parties. Such payments are not normally within the contemplation of the parties… . There is no evidence in this case that when the Contract was entered into the risk of liability for such damages was accepted by Crawshaw Robbins.”
This is most naturally interpreted as saying that the payments were here too remote. But it is important to note that the judge was not saying that that will always be so just because the payments were voluntary. Rather by his reference to what is “normally” contemplated by the parties and there being “no evidence in this case” he was indicating that the determination of the remoteness question was fact-specific.
Finally, we were referred to Hambro Life Assurance plc v White Young & Partners (1987) 38 BLR 16 (“Hambro”). The claimant, as an investment, had acquired industrial warehouse units which were subject to existing 25-year leases. The claimant discovered serious structural damage in the units and, although having no legal duty to do so under the leases, the claimant carried out repairs to the units. It then brought proceedings in the tort of negligence against, amongst others, the defendant local authority (Salisbury DC) who had approved the plans and whose building inspectors had inspected the premises. It was an agreed fact that the defendant had been negligent. However, on a preliminary issue the Court of Appeal, upholding the trial judge, held that no duty of care was owed in tort by the defendant to the claimant.
Two reasons for the decision were given. One was that there was no duty of care owed to the claimant under Anns v Merton (which, at the time, bound the Court of Appeal) because the claimant was merely the owner and had never occupied the premises so that it was under no risk to health or safety. A second reason was that the claimant had no legal liability to carry out the repairs but had done so “from enlightened self-interest in the preservation of their investment” (p 24). In respect of at least some of the units the damage was such that the lessees had a legal repairing obligation but the trial judge had found that the claimant, as lessor, had acted reasonably in carrying out the repairs and not enforcing that repairing liability of the lessees.
Again, this is a case where the loss in question was pure economic loss. Viewed in the light of the subsequent overruling of Anns v Merton by Murphy v Brentwood, the most straightforward explanation for the decision is that there was no duty of care owed to the claimant by the defendant local authority in respect of what was, on a correct analysis, pure economic loss. In any event, even applying the old law laid down in Anns v Merton, the decision shows that no duty of care was owed by the local authority to the claimant because it was not an occupier. The voluntariness of the repair was not essential to the decision and, in any event, the voluntariness was not expressly explained as being an aspect of remoteness or scope of duty.
Drawing together the threads of these four cases, we do not consider that they establish a principle of voluntariness that operates as a bright line rule of law rendering loss too remote or outside the scope of the duty of care in the tort of negligence. In the two House of Lords cases the payments that were voluntarily paid to third parties constituted pure economic loss, rather than loss (directly) consequent on damage to the claimants’ property, and there was no duty of care owed for that reason. Similarly, in Hambro there was no duty of care owed because, on the correct analysis that is now to be applied after Murphy v Brentwood, the repair costs were pure economic loss. In so far as other reasoning (ie other than the loss being pure economic loss) was relied on, legal causation and mitigation featured as prominently in the speeches in SS Amerika as remoteness (as we discuss further at paras 55-61 below). Certainly, those cases do not establish that the voluntariness of the payments meant that, as a rule of law, the loss was outside the scope of the duty of care or too remote.
That leaves Anglian Water where there were concurrent contractual and tortious claims so that, although not adverted to by Stanley Burnton J, a duty of care in the tort of negligence was owed (by reason of the assumption of responsibility) as regards the pure economic loss comprising the voluntary payments made to third parties. But while seeing the issue through the lens of remoteness, Stanley Burnton J indicated that whether the loss, comprising the voluntary payments, was or was not too remote was fact-specific. He was not saying that there was a rule of law denying recovery just because the payments were voluntary.
(4) Legal causation and mitigation
The more obvious role for any principle of voluntariness is in considering whether the chain of causation from breach of duty to loss has been broken by the claimant’s own voluntary conduct or whether, subsequent to the cause of action, the claimant has failed in its so-called “duty” to mitigate its loss. In other words, there is a strong argument that voluntariness most naturally falls to be considered within the concepts of legal causation or mitigation rather than scope of duty and remoteness.
This is borne out by some of the language used by Lord Parker and Lord Sumner in their speeches in SS Amerika: see paras 39-40 above. It is also supported by the only textbook treatment that we have found that links together the first three of the above cases: in Andrew Tettenborn and David Wilby, The Law of Damages, 2nd ed (2010) at para 7.52 those three cases are considered as an aspect of legal causation. SS Amerika is discussed under the heading of “Damages increased by claimant’s act” in Clerk and Lindsell on Torts, 24th ed (2023) at para 26.11 and the footnote at the start of that paragraph says that: “In this situation, the courts are just as likely to use the language of causation as they are mitigation.” See also Tettenborn and Wilby’s discussion, at para 3.50 and footnote 3, of the failure of claims for “voluntary” payments in settlement of bad claims which, they write, rests “[p]resumably on the basis that a voluntary payment of a bad claim breaks any chain of causation between the wrong and the payment” (and see, in support of this, for example, General Feeds Inc Panama v Slobodna Plovidba Yugoslavia (The Krapan J) [1999] 1 Lloyd’s Rep 688). Personal injury cases on “voluntary” rescue, such as Haynes v Harwood [1935] 1 KB 146, also focus on legal causation.
In addition, there are other cases where voluntariness appears to have been considered primarily as an aspect of mitigation so that expenses (or other additional losses) were held to be recoverable provided reasonably (even if voluntarily) incurred: see, for example, Holden Ltd v Bostock & Co Ltd (1902) 18 TLR 317; and Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 (both contract cases).
In the former case, the defendants had sold sugar to the claimants for brewing beer. The sugar contained arsenic. In an attempt to prevent any loss of business, the claimants issued notices advertising that they had changed their brewing materials. In an action against the defendants for breach of contract, the claimants were awarded, inter alia, the £50 cost of the notices because that was a reasonable step to take to minimise any possible loss of business.
In the latter case, the defendants contracted to print banknotes for the claimant Portuguese bank. In breach of contract, they delivered a large number of the banknotes to a criminal, who circulated them in Portugal. On discovering this, the bank withdrew the issue of notes. It then undertook to exchange all the “bad” notes for good notes. In defending an action for breach of contract against them, the defendants argued that, while they were liable for the cost of printing the new notes, they were not liable for the bank’s additional loss in choosing to exchange the bad notes for good notes (not least where the bank could not properly distinguish good notes from bad). The House of Lords, by a 3-2 majority, held that the defendants were liable for that additional loss. While the defendants argued that that loss was irrecoverable because it was voluntarily incurred, the majority held that it was recoverable because it was not too remote and was reasonably incurred so as to maintain the bank’s commercial reputation and public confidence in the bank. The minority did not disagree with the majority’s analysis of the law but differed as to whether, on the facts, the bank really did suffer a loss in exchanging good notes for bad. None of their Lordships accepted that, just because the loss might be said to have been voluntarily incurred, it was irrecoverable. In a passage that has often been cited in respect of the law on mitigation, Lord Macmillan in the majority said the following at p 506:
“Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
The problem for URS as regards mitigation is that reasonableness is indisputably of central importance. The enquiry in respect of mitigation is whether the claimant could have avoided its loss by taking reasonable action or whether expenses (or other additional losses) incurred, increasing its loss, were reasonably incurred. That is clearly a fact-specific enquiry that would have to await trial. The reasonableness of the claimant’s conduct may also be of importance in determining legal causation and, even if not, it would appear that a fact-specific enquiry would be needed in order to decide whether the “chain of causation” between breach of duty and loss has been broken. In respect of neither concept can it be said that voluntariness constitutes a rule of law to the effect that there has been no legal causation or there has been a failure to mitigate.
Fraser J (at paras 9 and 123) specifically laid down that matters of legal causation and mitigation would need to go to trial (see para 12 above). That ruling was not appealed. In line with this, URS has put those concepts to one side and has focussed, instead, on scope of duty and remoteness. But as we have said (see para 53 above), the case law does not support the submission that there is a bright line rule of law that voluntarily incurred loss is outside the scope of the duty of care or too remote.
(5) Features of the present case on the assumed facts
In any event (and disregarding the effect of section 135 of the BSA), it is strongly arguable that three features of the assumed facts indicate that BDW was not, in a true sense, acting voluntarily in paying for the repairs to be carried out. These three features, taken together, also serve to distinguish this case from the four cases relied on by URS (examined in paras 37-54 above) albeit that the third feature was present in one or more of those cases.
First, if BDW did nothing to effect the repairs, there was a risk that the defects in the Developments would cause personal injury to, or the death of, homeowners for which BDW might be legally liable under the DPA or in contract (for breach of collateral warranties). Such claims would not be time-barred because, by reason of sections 11 and 12 of the Limitation Act 1980, the three-year limitation period for personal injury and death (whatever the cause of action) runs from discovery or discoverability of the injury or death (as an alternative to running from accrual of the cause of action). In any event, section 33 of the Limitation Act 1980 confers a discretion on a court to disapply the primary limitation period so as to allow a claim for personal injury or death to go ahead.
Secondly, BDW had a legal liability to the homeowners under the DPA or in contract to incur the cost of repairs. Even though, at the time the repairs were carried out, the claims by the homeowners would have been unenforceable because time-barred (disregarding the possible impact of section 135 of the BSA) it is well-established that, subject to rare exceptions that do not here apply, limitation bars the remedy and does not extinguish the right: see, eg, Royal Norwegian Government v Constant & Constant and Calcutta Marine Engineering Co Ltd [1960] 2 Lloyd’s Rep 431, 442.
Thirdly, there would be potential reputational damage to BDW if BDW did nothing once it knew of the danger to homeowners. It was therefore in BDW’s commercial interest to effect the repairs. The fact that it was decided by Fraser J that BDW could not recover damages for “reputational damage” (see para 12 above) is essentially irrelevant in considering whether loss of reputation was a factor in making its actions not truly voluntary. Closely linked to this is that there was a general public interest, which included moral pressure on BDW, in BDW effecting the repairs so as to avoid danger to homeowners.
There is therefore a strong case for contending that BDW was, in any event on the assumed facts, not exercising a sufficiently full and free choice so as to be regarded as acting voluntarily in effecting the repairs. In other words, BDW had no realistic alternative. The three features indicate that BDW was not, in any true sense, acting voluntarily. While the third of those features may have been present in one or more of the four cases relied on by BDW, none of those cases shares all three features.
(6) Conclusion on Ground 1
Our conclusion, therefore, is that (irrespective of the possible impact of section 135 of the BSA which is to be considered under Ground 2) the appeal on Ground 1 fails. There is no rule of law which meant that the carrying out of the repairs by BDW rendered the repair costs outside the scope of the duty of care owed or too remote.
(7) A note on underlying policy
The remoteness test and its application ultimately reflect the underlying policy of the common law as to where it is appropriate for a line to be drawn protecting the defendant against excessive liability, thereby ensuring that the defendant is not held liable for all loss factually caused by the defendant’s breach of duty however far removed in time and space. Similarly, in deciding on the scope of the duty of care, the law’s focus on the purpose of the duty reflects the underlying policy of achieving a fair and reasonable allocation of the risk of the loss that has occurred as between the parties.
The conclusion we have reached as to the correct legal position is consistent with those underlying policies. On the assumed facts of this case, it is entirely appropriate for the negligent defendant (URS) to be held liable to the claimant (BDW) for the repair costs BDW has incurred because they were the obvious consequence of URS failing to perform its services with the professional skill and care required. It is fair and reasonable that the risk of that loss should be borne by URS and not BDW. Moreover, the policy of the law favours incentivising a claimant in BDW’s position to carry out the repairs so as to ensure that any danger to homeowners is removed.
…
(8) Accrual of the cause of action: the Pirelli issue
Did BDW in any event already have an accrued cause of action in the tort of negligence at the time it sold the Developments (this is the issue raised in the second sentence of Ground 1)? According to Coulson LJ in the Court of Appeal, BDW’s cause of action in the tort of negligence had already accrued, at the latest at the date of practical completion (see para 22 above), and could not have been lost by the subsequent sale of the Developments.
Given our rejection of URS’s submissions on the voluntariness principle, and our consequent dismissal of URS’s appeal on Ground 1, this issue falls away. Nevertheless, both parties accepted that, in so far as it was relevant to consider when the cause of action in the tort of negligence accrued, one possible approach that this court might take would be to overrule Pirelli. Indeed, that possibility is the reason that a seven-person panel was convened to hear this appeal.
Given that whatever we say on Pirelli will be obiter dicta, it would be inappropriate for us to consider using the 1966 Practice Statement, [1966] 1 WLR 1234, to overrule that decision. As it turned out, we heard relatively limited submissions on the Pirelli issue and we were not asked to consider the full potential consequences of such an overruling.
We therefore confine ourselves to making the following three points.
First, it is clear that Pirelli was decided on the false premise that cracks in a building constitute physical damage rather than pure economic loss for the purposes of the tort of negligence. Where there has been negligent design, building or inspection, cracks appear in a building because the building is, and has been, defective and not because there has been damage to an otherwise non-defective building (analogous to, let us say, the physical damage where a lorry crashes into a building). That the relevant “damage” is pure economic loss, not physical damage, was made clear by the overruling of Anns v Merton by Murphy v Brentwood.
Secondly, that false premise does not necessitate that Pirelli was wrong in reasoning that the cause of action in the tort of negligence accrues when the relevant “damage” occurs and not when that damage is discovered or could reasonably have been discovered (which we can refer to as the date of “discoverability”). It is possible to have a concept of latent pure economic loss even though that loss could not at the time of accrual have been reasonably discovered. That that is possible is supported by, for example, the reasoning of Coulson LJ in this case adopting the decision of Dyson J in New Islington (see para 22 above). It is also consistent with a number of cases on professional negligence outside the building context where a cause of action in the tort of negligence for pure economic loss has been held to accrue prior to the date of discoverability: see, eg, Forster v Outred & Co [1982] 1 WLR 86; Law Society v Sephton & Co [2006] UKHL 22; [2006] 2 AC 543; Axa Insurance Ltd v Akther & Darby [2009] EWCA Civ 1166; [2010] 1 WLR 1662; and, although not concerning limitation, but rather the date from which interest should be awarded, Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627.
Thirdly, and notwithstanding what we have so far said on this issue, in the context of pure economic loss there are strong arguments of principle for accepting that there can only be an actual loss once the pure economic loss has been discovered or could reasonably have been discovered. That this is so is borne out by the reasoning of judges in several of the highest courts in common law jurisdictions, including the Privy Council: see, eg, Kamloops v Nielsen [1984] 2 SCR 2, 40 (Canada); Sutherland Shire Council v Heyman (1985) 157 CLR 424, 505 (Australia); Invercargill City Council v Hamlin [1996] AC 624 (New Zealand); and the dissenting judgments of Bokhary PJ and Lord Nicholls in Bank of East Asia Ltd v Tsien Wui Marble Factory Ltd [2000] 1 HKLRD 268 (Hong Kong). See also the views of several academics including Stephen Todd, “Latent Defects in Property and the Limitation Act: A Defence of the ‘Discoverability’ Test” (1983) 10 NZULR 311; Nicholas Mullany, “Limitation of actions – where are we now?” [1993] LMCLQ 34, 43-44. Cf Ewan McKendrick, “Pirelli re-examined” (1991) Legal Studies 326. However, in considering whether that would now be an appropriate approach to adopt in this jurisdiction, the Latent Damage Act 1986 (the “LDA”) would need to be taken into account. Following the recommendations of the Law Reform Committee, 24th Report, Latent Damage (Cmnd 9390) (1984), the legislature intervened to reform the law in the light of what were seen to be the unfair consequences for claimants of the decision in Pirelli whereby they might lose their cause of action before they knew, or could reasonably have known, of its existence. By sections 1 and 2 of the LDA, inserting sections 14A and 14B into the Limitation Act 1980, a claimant has six years from accrual of the cause of action or three years from the date of discoverability, whichever expires later, to commence an action in the tort of negligence for damage including pure economic loss (but not personal injury which has long had its own regime). This is subject to a long-stop of 15 years running from the date of the negligent act or omission (ie the breach of duty). If the accrual of the cause of action was to be fixed at the date of discoverability, this might undermine the legislative solution to this problem. In other words, the legislation was based on the assumption that the accrual of the cause of action in the tort of negligence is at a different date from the date of discoverability. The effect of the date of discoverability being the date of accrual would be to give claimants six years from the date of discoverability rather than the three years that was considered sufficient by the legislature in the LDA.
It can therefore be seen that the question as to whether to develop the common law on the tort of negligence in the context of defective buildings, so as to move to the cause of action accruing at the date of discoverability, raises difficult issues. Their resolution must await a case where what is said will be ratio decidendi and where, accordingly, this court has the benefit of full submissions on that question.
In two recent decisions, the New South Wales Court of Appeal descended to, and exemplified the proper deployment of, the rule in Browne v Dunn (1893) 6 R 67 (HL), laid down by Lord Herschell 132 years ago.
In Locke v H C Loneragan & Co Pty Ltd [2025] NSWCA 166 (25 July 2025), McHugh JA – Bell CJ and Adamson JA agreeing – wrote:
[34] When Mr Locke entered the witness box, (a) the allegation that he had requested QFS to provide him with forensic accounting services was squarely in issue on the pleadings, (b) Mr Loneragan had given direct oral evidence in support of that allegation, and (c) there was a large body of contemporaneous documents from which to infer, consistently with Mr Loneragan’s evidence, that Mr Locke had requested QFS’s services. In those circumstances, the fact that Mr Locke did not give evidence denying that he had made such requests might have attracted the operation of the principles as to adverse inferences discussed in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd(1991) 22 NSWLR 389 at 418 per Handley JA, as explained in later cases such as Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63], fn 61 per Heydon, Crennan and Bell JJ and Nationwide News Pty Ltd v Rush[2020] FCAFC 115; (2020) 380 ALR 432 at [544] –[547]. It is true that Mr Locke did not bear the legal onus on this issue; QFS did. But in light of the body of evidence in the case, if Mr Locke had not given evidence at all, there is no doubt that QFS would have discharged its legal onus to prove the requests. Mr Locke bore a persuasive onus to answer that body of evidence. No attempt was made to do so. In the circumstances, it would have been open to infer, at least, that his evidence on that topic would not have assisted his case. The Court might also more readily draw inferences of the kind at J[161] in circumstances where Mr Locke, who would have been ideally placed to deny that he had made any such requests for services (if that were the case), failed to do so.
[35] Mr Locke’s Browne v Dunn complaint falls to be considered against that background. Although Ferrcom is concerned with principles of proof, and Browne v Dunn is principally concerned with fairness, such that they are not necessarily opposite sides of the same coin, that background does not assist Mr Locke.
[36] It is important to observe at the outset that Mr Locke’s complaint under Ground 3 is not that there was insufficient evidence to support the ultimate finding that he requested QFS to provide the forensic accounting services for which QFS sought payment. Mr Locke acknowledged that there was a wealth of evidence to support that finding (which included the direct evidence of Mr Loneragan). Instead, Ground 3 rests entirely on an asserted breach of the rule in Browne v Dunn. The gist of the complaint is that the primary judge should not have made the ultimate finding because it was based, in part, on inferences drawn from particular documents in circumstances where (although Mr Locke was cross-examined on some of the documents) the inferences sought to be drawn (in particular, that Mr Locke requested services at particular points in time) were not put directly to him.
[37] In the 132 years since Browne v Dunn was decided, the rule to which it gave its name has been subject to a good deal of elaboration, qualification and refinement. There are several reasons why it is undesirable to attempt to state the rule, or the consequences of its infringement, in comprehensive terms. First, the fundamental concern is to avoid unfairness to the witness and to the party calling the witness, and the situations in which unfairness may arise are many and varied. Secondly, at least if the issue is raised at trial, the appropriate remedy where the rule is infringed will be a question of practical justice. In that situation, depending on the nature of the breach, the remedy is essentially a matter in the discretion of the trial judge: Seymour v Australian Broadcasting Commission(1977) 19 NSWLR 219 at 225B per Glass JA (Reynolds JA agreeing); Bale v Mills(2011) 81 NSWLR 498; [2011] NSWCA 226 at [48] per Allsop P, Giles JA and Tobias AJA). The position may be different where, without warning, a trial judge makes an important adverse finding based on matters with which the witness was not given an opportunity to deal: see, eg, Kuhl at [70]–[72]. Thirdly, the parties’ forensic choices may bear on the question whether in a particular case the absence of cross-examination on a topic leads to any unfairness, and the appropriate remedy if it does. It suffices for present purposes to observe that the rule is often invoked in two broad types of situation, which tend to overlap. Both categories are said to be relevant in the present case.
Contradicting a witness’s evidence
[38] The first category is where a party seeks to contradict the evidence given by a witness. That was the situation addressed in Allied Pastoral Holdings Pty Ltd v Cmr of Taxation[1983] 1 NSWLR 1. Hunt J stated the position as follows at 26E:
… unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.
[39] The principal reason for this aspect of the rule is that it is unfair not to give the witness the opportunity both to explain or to qualify their own evidence, and to explain or qualify or deny the evidence relied upon to contradict it, especially where the contradiction is by way of inference. A second reason is that it gives the party calling the witness the opportunity to call corroborative evidence which might otherwise be unnecessary.
[40] To the extent that Mr Locke advanced a complaint in this category, it fails for two reasons. First, Mr Locke did not give any evidence which the inferences the primary judge drew contradicted. Secondly, even if Mr Locke had given evidence denying that he had requested QFS to provide the services for which it sought payment, his Honour’s ultimate finding to that effect would have been properly made in any event.
In Smith v Blanch [2025] NSWCA 188 (15 August 2025), Kirk, Stern and McHugh JJA wrote:
[1] By a number of posts on a variety of platforms in January and February 2023 (the posts), the applicant posted messages about the first respondent (who for convenience we will refer to as the respondent) who is a transgender woman and has for 25 years been playing football, most recently for the Wingham Warriors, a community team in a small town on the Mid North Coast of New South Wales. The applicant is a spokesperson for an organisation called Binary Australia, which she says is “dedicated to upholding the reality of biological and binary sex”. The posts sometimes included a clearly identifying photograph of the respondent and (albeit without naming her) described her as the “bloke in the frock” playing for a women’s football team in Wingham. At the time the respondent was the only transgender woman on that football team.
[2] In the posts, the applicant aired, in no uncertain terms, her sincerely held beliefs that Football Australia, Football New South Wales and Mid North Coast Football should not permit transgender women to participate in women’s football and, more particularly, that the respondent should not be allowed to play women’s football. As is pellucidly clear from our summary of the posts set out below, in these posts the applicant also singled the respondent out for public attention in the applicant’s broader campaign against transgender women participating in women’s sport. The posts included photographs of the respondent which clearly identified her to anyone familiar with her appearance.
[3] In light of this conduct, on 11 February 2023 the respondent filed a police report and on 1 March 2023 sought in the Local Court an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act; unless otherwise indicated, all references to sections of legislation are to the Act). In her application the respondent relied upon a number of matters, including that she feared for her safety.
[4] On 31 January 2024 Magistrate Hawkins accepted that the respondent had fears of harassment and that the conduct of the applicant amounted to harassment of the respondent, but found that that conduct, which the respondent had reasonable grounds to fear and did in fact fear, was not sufficient to warrant the making of an APVO (we describe a finding such as this last finding as a “sufficiency finding”).
[5] The respondent appealed to the District Court under s 84(2)(a1), challenging the sufficiency finding. On 4 September 2024, the applicant filed a notice that she intended to raise matters arising under the Constitution in accordance with s 78B of the Judiciary Act 1903 (Cth). In essence, she contended that she had engaged in the relevant conduct in her capacity as a political advocate for Binary Australia, this formed part of her political communications and advocacy and s 19 disproportionately burdened the constitutionally protected freedom of political communication. In response, the Attorney General of New South Wales intervened, and was joined as a party, in the proceedings (and is the second respondent in the application now before the Court). The third respondent to this application, the District Court of New South Wales, has filed a submitting appearance.
[6] On 20 December 2024 Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant: Blanch v Smith[2024] NSWDC 631 (J).
…
[88] The applicant contends that the primary judge denied her procedural fairness in inferring that, in making the 21 November 2024 post, she intended to intimidate or harass the respondent when that was not put to the applicant in cross-examination. She contends that the rule in Browne v Dunn at 70 –71 precluded the primary judge from drawing such inference unless the proposition that the applicant intended harassment by that post had been put to her in cross-examination or submissions had made it “very clear” that a submission to that effect would be made if the applicant was not called to say something to the contrary. More particularly, the applicant says that it was never put to her in cross-examination in the Local Court that in the posts (which necessarily at that time did not include the 21 November 2024 post) she had intended to harass the respondent.
[89] The 21 November 2024 post was tendered at a hearing on 12 December 2024, after her Honour adjourned the proceedings on 18 October 2024, reserving judgment. Mr Shamsabad, the solicitor then representing the applicant, opposed the tender of the 21 November 2024 post on the basis of relevance and that it was not in the interests of justice that the post be admitted into evidence, but was content for the primary judge to see the post in order to rule on whether it should be admitted. In the course of submissions as to this, her Honour asked Mr Shamsabad why the post would “not be relevant in determining whether or not without a Court order the respondent would continue similar posts” and why it “wouldn’t … be fresh evidence that’s relevant to whether or not an order is required”, and said that “it is some evidence that goes to a willingness on behalf of the [applicant] to continue as she had and indeed as she has in from what I see from the Twitter post”. The following interchange then occurred:
HER HONOUR: It speaks to the fact that she doesn’t on any view think that what she did was harassment, despite a finding by the Local Court Magistrate and which would go, I would have thought to the likelihood of re-posting.
SHAMSABAD: Re-posting in what respect might I-—
HER HONOUR: In the same respect as was dealt with by the learned Magistrate.
SHAMSABAD: Your Honour I can understand the inference which your Honour wishes to draw there or could draw there. …
[90] The primary judge decided to admit the evidence and gave Mr Shamsabad the opportunity to call evidence from the applicant in response to the material, which he declined. In submissions as to the relevance of the post, counsel for the respondent contended:
I think it shows a willingness on the part of the [applicant] to keep identifying our client … [I]t is of some concern that the [applicant] is conducting herself in that manner when the appeal judgment is still pending and also after being present for oral argument. And so, we submit that as a result your Honour may not have confidence in the appropriate conduct of the [applicant] in the absence of an order being made.
[91] She also submitted that the Twitter post “again misgendered” the respondent and that “it was [the applicant’s] decision” to attach a link to the Daily Telegraph article to the post, which contains comment from the applicant (referred to at [29] above).
[92] During the hearing on 12 December 2024, it was clear that the primary judge might rely upon the 21 November 2024 post in determining whether the applicant would continue similar posts, and that “that is consistent with an intention to continue to advocate in a similar way”. The applicant contended, however, that it was nonetheless necessary, as a matter of fairness, that it be put to the applicant that she intended to intimidate or harass the respondent (we would infer either by way of cross-examination or in the course of submissions).
[93] In Browne v Dunn, Lord Herschell LC said at 70–71:
My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
[94] The rule has been described as “essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit”: MWJ v R[2005] HCA 74; 80 ALJR 329 at [38]. In Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 at [71] –[74], Heydon, Crennan and Bell JJ held that the rule in Browne v Dunn was a condition which not only applied as between the parties to litigation, but also conditioned the findings which a trial judge may make: see also MWJ v R at [39].
[95] The rule in Browne v Dunn is directed to ensuring procedural fairness in litigation: Scott v Scott[2022] NSWCA 182 at [64]; see further Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions[2025] NSWCA 166 at [37]. Ultimately, where Browne v Dunn is relied upon, the question is whether, having regard to the conduct of the case as a whole, the relevant party has been put on notice that the adverse inference may be drawn: Allied Pastoral Holdings Pty Ltd v Cmr of Taxation (Cth)[1983] 1 NSWLR 1 at 16; Scott v Scott at [65] –[67].
[96] Whilst we would accept that the inference the primary judge drew as to the applicant’s intention when making the 21 November 2024 post is an imputation against her conduct such that the rule in Browne v Dunn might apply, we are not satisfied that the primary judge’s inference that the applicant intended harassment by the 21 November 2024 post, as described above, was sufficiently different as a matter of substance from the matters raised during the hearing on 12 December 2024 that it had to be specifically put to the applicant or Mr Shamsabad before the primary judge could fairly make such finding. The primary judge made it clear during the hearing that she might rely upon the 21 November 2024 post to find that the applicant intended (had a “willingness”) to continue as before, in circumstances where the learned Magistrate found that the applicant’s conduct was harassment. Those were precisely the matters relied upon by the primary judge to support the inference that the applicant intended to intimidate or harass the respondent. In these circumstances, there was no unfairness in her Honour reaching that finding.
[97] In any event, the primary judge made it clear in her reasons at J[37] that her finding as to the applicant’s intention in the 21 November 2024 post had “had no material effect on the outcome other than it may be relevant to the terms of any orders made”. That suggests that the true relevance of the primary judge’s intention was as regards the willingness of the applicant to repost, a matter that was expressly put to Mr Shamsabad at the hearing on 12 December 2024. Self-evidently, such matters could not have been put to the applicant directly as she declined the opportunity to give further evidence.
In Smith v Blanch [2025] NSWCA 188 (15 August 2025), it was held that the making of a statutory apprehended violence order – in the circumstances – did not impinge upon constitutional the implied freedom of communication. Rather, it was found, the benefit of seeking to protect individuals from the significant deleterious effects of possible intimidatory conduct – including with respect to conduct having a political character – outweighed the minor burden imposed on the implied freedom imposed by the impugned provisions. The burden was justified and thus the applicant’s constitutional challenge was rejected. The court (Kirk, Stern and McHugh JJA) wrote:
[1] By a number of posts on a variety of platforms in January and February 2023 (the posts), the applicant posted messages about the first respondent (who for convenience we will refer to as the respondent) who is a transgender woman and has for 25 years been playing football, most recently for the Wingham Warriors, a community team in a small town on the Mid North Coast of New South Wales. The applicant is a spokesperson for an organisation called Binary Australia, which she says is “dedicated to upholding the reality of biological and binary sex”. The posts sometimes included a clearly identifying photograph of the respondent and (albeit without naming her) described her as the “bloke in the frock” playing for a women’s football team in Wingham. At the time the respondent was the only transgender woman on that football team.
[2] In the posts, the applicant aired, in no uncertain terms, her sincerely held beliefs that Football Australia, Football New South Wales and Mid North Coast Football should not permit transgender women to participate in women’s football and, more particularly, that the respondent should not be allowed to play women’s football. As is pellucidly clear from our summary of the posts set out below, in these posts the applicant also singled the respondent out for public attention in the applicant’s broader campaign against transgender women participating in women’s sport. The posts included photographs of the respondent which clearly identified her to anyone familiar with her appearance.
[3] In light of this conduct, on 11 February 2023 the respondent filed a police report and on 1 March 2023 sought in the Local Court an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act; unless otherwise indicated, all references to sections of legislation are to the Act). In her application the respondent relied upon a number of matters, including that she feared for her safety.
[4] On 31 January 2024 Magistrate Hawkins accepted that the respondent had fears of harassment and that the conduct of the applicant amounted to harassment of the respondent, but found that that conduct, which the respondent had reasonable grounds to fear and did in fact fear, was not sufficient to warrant the making of an APVO (we describe a finding such as this last finding as a “sufficiency finding”).
[5] The respondent appealed to the District Court under s 84(2)(a1), challenging the sufficiency finding. On 4 September 2024, the applicant filed a notice that she intended to raise matters arising under the Constitution in accordance with s 78B of the Judiciary Act 1903 (Cth). In essence, she contended that she had engaged in the relevant conduct in her capacity as a political advocate for Binary Australia, this formed part of her political communications and advocacy and s 19 disproportionately burdened the constitutionally protected freedom of political communication. In response, the Attorney General of New South Wales intervened, and was joined as a party, in the proceedings (and is the second respondent in the application now before the Court). The third respondent to this application, the District Court of New South Wales, has filed a submitting appearance.
[6] On 20 December 2024 Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant: Blanch v Smith[2024] NSWDC 631 (J).
[7] By summons filed on 18 March 2025 (the summons), the applicant now seeks to challenge that order in the exercise of this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) on the basis of alleged jurisdictional error. For convenience, we will refer to Wass DCJ as the primary judge, notwithstanding that these are proceedings in the Court’s supervisory jurisdiction and not an appeal. At the hearing of the application, Senior Counsel for the applicant abandoned a number of the matters relied upon, either as grounds or particulars to grounds, of the summons filed on 18 March 2025. The following issues were pressed (renumbered for convenience and paraphrased to reflect the focus of the submissions advanced by the applicant):
…
(5)The primary judge erred in finding that ss 7, 19 and 35(2)(f) did not impermissibly burden the constitutionally protected implied freedom of political communication (ground 5 of the summons).
[8] Given the nature of this application, it is important at the outset to emphasise that the issues before this Court do not relate to the merits of the respondent’s application for an order under s 19 of the Act. The question for us is a purely legal one, being whether or not the applicant has shown that the primary judge’s decision is affected by jurisdictional error. Further, the applicant does not contend that the specified state of satisfaction required under s 19 of the Act was not reached or formed by the primary judge, so as to engage what is sometimes referred to as “the concept of subjective jurisdictional fact”: VV v District Court of New South Wales[2013] NSWCA 469 at [13]. Nor does she contend that any of the criteria under s 19 are jurisdictional facts such that it is for this Court, on an application for judicial review, to determine for itself whether the criteria were satisfied (see, eg, Timbarra Protection Coalition Inc v Ross Mining NL(1999) 46 NSWLR 55; [1999] NSWCA 8 at [36] , [41] and [94]).
…
The posts
[10] Prior to the posts, the respondent did not know or know of the applicant. There is no suggestion that the two have met other than in the context of the proceedings below. There is also no dispute that the applicant genuinely holds the beliefs for which she was advocating in the posts, or that the posts were the responsibility of the applicant.
[11] On 19 January 2023, the applicant posted on the social media platform Twitter (now called “X”):
Men from the mid coast NSW, can you get in touch with me please? I need your help. There is a bloke playing on the women’s team in Wingham and many are upset about it. The federation is refusing to listen.
[12] This post received 39,100 views, 116 re-tweets, 17 quote tweets and 439 likes.
[13] On 20 January 2023, the applicant posted an article entitled “[a] bloke in a frock is playing woman’s soccer on the Mid North Coast” to Binary Australia’s website. 190 people “liked” this page. The article included clearly identifying photographs of the respondent, both alone and with other members of her football team whose faces were blocked out from the photograph, and a link to the Wingham Football Club’s Facebook page. The article stated that “[t]he bloke in a frock was receiving an award for playing in the women’s division”. In the article the applicant said that she had asked the general manager of Football Mid North Coast “whether or not the federation would advocate for the girls and families at both the Wingham Club and opposing clubs who are uncomfortable with a male in their sporting category and in their changerooms” and said that “Wingham is a small community and it should not be up to vulnerable girls or their families to fight for sex-based sports”. The article suggested that “peak bodies such as Mid [North] Coast Football and Football Australia” should “protect and promote women in their sport”. As regards the respondent, the applicant wrote that:
The bloke in the frock can play either in the men’s competition or a mixed competition, there is absolutely no need for him to pay in a women’s division.
No-one is saying he can’t play. It is simply a matter of fairness, safety and dignity. He is male and does not belong in a female division. Women and Girls deserve to have the option of a female only competition.
[14] The applicant added that the word “woman” is:
[R]endered meaningless when a bloke in a frock is suddenly a woman, as we all know that a ‘woman’ is not a costume, false boobs or a drug to be taken.
[15] Also on 20 January 2023 the applicant posted a link to this article on the Binary Australia Facebook page with the title of the article and a statement that “Wingham Football Club awarded the fella for playing in the female division”. This post had a clearly identifying photograph of the respondent’s head and shoulders. On the same day the applicant posted a clearly identifying photograph of the respondent on her personal Facebook page, together with some text including statements that “[t]his bloke in a frock is being awarded a prize for playing the women’s competition in Wingham NSW”, “[t]his man doesn’t have to play on the women’s team” and “[w]omen, girls and families are being shown enormous contempt”.
[16] Again on 20 January 2023, the applicant posted on Twitter, tagging various Twitter profiles including those of the Prime Minister of Australia, Tanya Plibersek MP, Dominic Perrottet, Ben Fordham, Jordan Peterson, The Australian newspaper, and Football Australia, with a photograph of the respondent and her teammates (with the latter’s faces all blocked out) asking the question “is there any point in having male & female divisions in sport? Wingham FC NSW”. In a second Twitter post that day the applicant posted another photograph of the respondent with the statement:
A bloke in a frock playing soccer in the women’s comp doesn’t make him a woman.
He’s just a bloke in a frock.
He can play in the men’s or mixed competition, not female.
Wingham NSW.
[17] This post also used the hashtags #TransWomenAreConMen and #SaveWomensSports and tagged the Twitter profiles of Football Australia, Football New South Wales, Daily Mail Australia, and Daily Wire News. It received 60,200 views.
[18] On 23 January 2023, in reply to a tweet by Football Australia on 19 January 2023 about the Young Matildas heading to their first training camp for the year, the applicant posted:
You can’t even define the term female … Why do the girls in Wingham NSW have to put up with a bloke on their team and in their changerooms?
[19] On the same day the applicant posted a photograph of the respondent to Twitter, tagging the Football Australia Twitter profile, with the text “[m]ore information about the bloke in a frock playing soccer for Wingham FC on the Mid North Coast of NSW”. An accompanying link directed people to the Binary Australia article from 20 January 2023.
[20] On 8 February 2023, the applicant posted an identifying photograph of the respondent on Twitter with the text:
Please explain @FootballAUS why you insist on showing contempt toward women?
Why can’t the bloke who appropriates female stereotypes compete in the male team or a mixed/open team?
Why do you lie and claim he is a woman? Why do you bully & ghost women who object?
Wingham NSW.
[21] Also on 8 February 2023, the applicant posted the same photograph on Twitter in reply to a post by Football Australia, with text including: “You allow men who appropriate stereotypes of women to play as women.”
[22] The next day, the applicant again posted the photograph of the respondent with her coach to her Facebook profile, and said “Kirralie Smith doesn’t recommend Northern NSW Football” and “[t]hey allow males who appropriate stereotypes of females to play in women[’]s teams”.
[23] On 13 February 2023, the applicant again posted an identifying photograph of the respondent on Twitter with text stating that Twitter had made her remove the post “about the bloke playing on the women’s team in Wingham” and that Football Australia “ghost women who don’t want men on their team … How is that fair?”. This post received 153 views. The applicant then replied to her own tweet stating:
Time for @FootballAUS to man up and face the women who object to men in their changerooms and on their teams. Why have a women’s team if men can play on it?
[24] Also on 13 February 2023, the applicant posted on Twitter that “[t]hey let blokes play as women … Men are not women!”. This tweet had 2,363 views.
[25] On 14 February 2023, the applicant posted another article to the Binary Australia website entitled “[s]occer campaign for women and men who pretend to be women”. This included a statement attributed to the applicant that:
The peak soccer body in Australia refuses to hear complaints or engage with women and families who are concerned about a male playing soccer in the women’s team at Wingham.
[26] On 16 February 2023, the Matildas posted a photograph on Twitter in advance of them competing in the “Cup of Nations”, in reply to which the applicant posted an identifying photograph of the respondent with a link to the Binary Australia article from 20 January 2023.
[27] In a further article on the Binary Australia website (undated but believed to have been posted prior to 14 February 2023), entitled “[k]eep blokes out of women’s sport!”, the applicant said that Australian sporting bodies were “in for a wake-up call” and wrote:
Football Australia think it’s OK to have adult men playing against girls and women.
If it can happen to Binary Spokeswoman Kirralie Smith’s local team — the Wingham Warriors — it can happen to anyone’s.
With your help, we’re going to make the voices of every silenced girl, woman and parent heard, so loud and so clear that they can’t possibly be ignored.
Using this form [which was attached], send your email message directly to the leaders of Football NSW, Football Australia and Football Mid North Coast and let them know, there’s no place for biological males in women’s sport.
Please remember to be as respectful and courteous as possible when drafting/editing your email. [emphasis in original]
[28] The hearing before Wass DCJ concluded on 18 October 2024 and judgment was reserved. However, before judgment was delivered, on 21 November 2024 the applicant made a post (the 21 November 2024 post) that included the following:
In October 2023 I sat through a full hearing in court being accused of violence for identifying a male soccer play [sic] in a female competition.
All I did was repost an image that had been posted in the public domain. I used the image to ask Football Australia and Football NSW why they have the policy that allows males to play in female competitions.
In January the judge denied the application for an apprehension of violence order against me, stating the posts, ‘don’t reach the level of harassment that is appropriate for the court to intervene.’
Last month the player appealed that decision, he still wants an AVO against me. His legal team claim my actions do rise to the level of ‘violence’ the AVO law was created for.
The decision will be made Friday 29 November.
[29] The above post was accompanied by a link to a Daily Telegraph newspaper article reporting on the findings of the Local Court and received 3,290 views.
…
Consideration of the constitutional argument
[133] Ground 5 of the applicant’s summons asserts that the primary judge erred in finding that ss 7, 19 and 35(2)(f) did not impermissibly burden the constitutionally protected implied freedom of communication on political and governmental matters. If her Honour had reached the wrong conclusion on this legal issue then that would have been jurisdictional error. That being so, it is not necessary to address her Honour’s reasons in any detail. We note that the respondent adopted the Attorney’s submissions with respect to the constitutional issue.
The constitutional principle
[134] There is implied in the Constitution a limitation on (at least) legislative power protecting the freedom to discuss government and political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (“Lange”). The principle limits State legislative powers, including with respect to communication on matters that might be seen predominantly to be the concern of the States: Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 (“Unions NSW”) at [17]–[26].
[135] The implied freedom does not establish a personal right. A legislative burden on the freedom “is not to be understood as affecting a person’s right or freedom to engage in political communication, but as affecting communication on those subjects more generally”: Unions NSW at [36]. As four members of the Court explained in Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [20]:
“although the effect of a law on an individual’s or a group’s ability to participate in political communication is relevant to the assessment of the law’s effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law’s effect on political communication as a whole.”[emphasis in original, citations omitted]
[136] Like many constitutional requirements in Australia and elsewhere, the freedom is not absolute. It may be curtailed by laws which are directed to achieving competing objectives. The High Court has, from the beginning, recognised the need to allow for some such infringement of the freedom: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142 –144 , 150 –151 , 169 , 217 –218 and 234 –235; [1992] HCA 45. That has resulted in the need to articulate some test or guide for what types of infringement are permissible; the freedom must not be unjustifiably burdened.
[137] Assessing justification with respect to the implied freedom involves asking three questions: see McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at [2] (French CJ, Kiefel, Bell and Keane JJ); Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 (“Brown v Tasmania”) at [102]–[104] (Kiefel CJ, Bell and Keane JJ), [162]–[163] (Gageler J), [237] (Nettle J), [316]–[325] and [481] (Gordon J); Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”) at [5] (Kiefel CJ, Bell and Keane JJ); LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; [2021] HCA 18 at [134] (Gordon J). Those questions are as follows:
(1) Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends; the law is valid.
(2) If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If it is not, the law is invalid.
(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
[138] There has been some division in the High Court as to how the third question, which raises an issue of characterisation, is to be addressed. Over the last decade a majority of the Court had adopted what came to be labelled the “structured proportionality” test: McCloy at [2] (French CJ, Kiefel, Bell and Keane JJ); and, eg, Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537; [2022] HCA 23 (“Farm Transparency”) at [29] (Kiefel CJ and Keane J), [250] (Edelman J), [269] (Steward J), [271] (Gleeson J). That test involved addressing three further questions, articulated in McCloy at [2] as follows:
“There are three stages to the test — these are the inquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable — as having a rational connection to the purpose of the provision;
necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.” [emphasis in original, citations omitted]
[139] The plurality in McCloy referred to proportionality being characterised “as an analytical tool rather than as a doctrine” (at [72]). It came to be applied by a majority of the Court as the primary tool employed in cases involving the implied freedom. In recent decisions of the High Court the position has evolved somewhat. In Farm Transparency Gordon J said that “the ‘three-part test’ of suitability, necessity and adequacy, applied by the plurality in McCloy v New South Wales, is a tool of analysis that may be of assistance”, but it “is not always … necessary or appropriate to undertake all steps of that analysis” (at [172]). InBabet v Commonwealth[2025] HCA 21; (2025) 99 ALJR 883, Gageler CJ and Jagot J similarly said the following (at [49]), with the agreement of Gordon and Beech-Jones JJ (at [72] and [242] respectively):
[In Lange] the Court recognised that the different formulations used to ascertain if the implied freedom had been infringed were immaterial to the legitimacy of the constitutional implication so that there was ‘no need to distinguish’ between those formulations. Structured proportionality can be a way of organising reasons and explaining the basis on which a conclusion is reached in a particular case as to whether a legislative provision is reasonably appropriate and adapted to advance a legitimate purpose that is consistent with the maintenance of the constitutionally prescribed system of government. The flexible application of all or any of the steps of structured proportionality is to be understood as a ‘tool of analysis’, express or ritual invocation of which is by no means necessary in every case. [citations omitted]
[140] This view was echoed in Ravbar v Commonwealth[2025] HCA 25; (2025) 99 ALJR 1000 (“Ravbar”): at [29] (Gageler CJ), [343] (Jagot J) and [427] (Beech-Jones J); cf [218]–[225] (Edelman J) and [290]–[291] (Steward J). In that case Gleeson J noted, by reference to earlier authority, that the persuasive burden to justify any restriction of the implied freedom falls upon the party defending the law, but added that “the scope of that task is affected by the contentions” of the challenger (at [309]). Her Honour explained that in that case the parties had framed their argument by reference to the structured proportionality approach, and it had not been suggested that it was inapposite to the matter, so her Honour considered and applied that approach (at [309]–[316]; see similarly Beech-Jones J at [427]).
[141] A further relevant issue here is that it repeatedly has been accepted that laws which burden the freedom in a direct as opposed to incidental way, or which regulate the content as opposed to the manner of communication, will be more difficult to justify: see eg Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [95] –[96], and authority there cited; Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 at [30]; as to content-neutrality note further eg Attorney-General (SA) v Corporation of City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 at [46]; Clubb at [180]–[181]; O’Flaherty v City of Sydney Council (2014) 221 FCR 382; [2014] FCAFC 56 at [17]. Jagot J explained in Ravbar that recognition of that point was consistent with application of a structured proportionality approach:
[344] Nor, of itself, is structured proportionality inconsistent with calibrating the degree of scrutiny to the purpose of the law and the means the law uses to achieve its purpose. There is a manifest difference between (on the one hand) a law the direct and immediate purpose of which is to prohibit or restrict certain political communications which uses direct and immediate means to achieve the prohibition or restriction and (on the other hand) a law the direct and immediate purpose of which is to achieve some legitimate purpose compatible with our system of representative and responsible government which merely incidentally restricts freedom of political communication by some remote and indirect means. No doubt there will be laws between these two extremes but the calibration of the degree of scrutiny to the essential character of the law is an obvious available judicial technique to ensure that the freedom the courts protect is no more than is necessary to enable ‘the effective operation of that system of representative and responsible government provided for by the Constitution’. [citations omitted]
[142] In this context, for current purposes the appropriate approach to the third validity question can be summarised as follows. The ultimate issue is whether the burden on the implied freedom imposed by the law can be characterised as reasonably appropriate and adapted to achieving the identified legitimate end in a manner compatible with the constitutionally prescribed system of government. That involves considering whether the freedom is not unduly burdened such that the burden can be regarded as justified. The more significant the burden the greater the degree of justification required. The burden of proof and persuasion in this respect lies on the party defending the validity of the law. In assessing the issue it will often be relevant to ask whether the law can rationally be regarded as a suitable means to achieve the identified legitimate purpose; whether there is an alternative means available which in substance achieves that end in a materially less burdensome way; and whether the burden imposed is too great to be justified taking account of the extent of the burden, the nature of the purpose and the extent to which the measure achieves that purpose. These issues may have more or less significance in particular cases, including because of the nature of the law and the burden it imposes, along with the salient points focused upon by the parties.
Analysis
[143] Sections 7 and 19 are set out above (at [57] and [48] respectively). Section 35 relevantly provides:
35 Prohibitions and restrictions imposed by apprehended violence orders
(1)When making an apprehended violence order, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence.
(2)Without limiting the generality of subsection (1), an apprehended violence order made by a court may impose any or all of the following prohibitions or restrictions—
…
(f) prohibiting or restricting specified behaviour by the defendant that might affect the protected person.
[144] The applicant submitted that ss 7 and 19 of the Act imposed a disproportionate burden on the implied freedom “in widely defining and proscribing generally, communications of a political nature”, and that s 35(2)(f) imposed a disproportionate burden “in its conferral [on] judicial officers of an open and seemingly unfettered discretion in AVO matters in burdening the political communications”.
[145] The applicant’s argument was focused on the burden placed by these provisions on her conduct. For example, the notice she issued under s 78B of the Judiciary Act said that her complaint was that “the conduct she is alleged to have engaged in is fundamentally characterised as political communication, and therefore, given its substance and form … ought not have fallen within the scope of conduct contemplated by the NSW legislature”. That emphasis was maintained in her submissions. There was thus a distinct overtone of treating the implied freedom as protective of a personal right. The applicant ultimately conceded that her conduct could only be relevant as an example of the sorts of political communications that were said to be burdened by the impugned provisions.
[146] A difficulty with the applicant’s approach was a lack of clarity as to whether she was impugning all or just some of the matters which need to be established under s 19(1), and whether in combination with all or some of the definition of “intimidation” in s 7(1). The applicant’s argument focused on both the conduct she had previously undertaken — which had been found by the primary judge to fall within s 7(1)(a) (see above at [38]) – and her desire potentially to undertake similar conduct in the future. In that regard she also drew attention to the prohibition imposed in all AVOs, pursuant to s 36(2), on “harassing or intimidating the protected person”. In so doing she was again implicitly impugning only that part of the definition of intimidation in s 7(1)(a). Thus, for example, she argued that the burden on the implied freedom was greater if the provision was construed not to require any intention to harass or molest. She did not address or attack the other parts of the definition.
[147] In this context we proceed on the basis that the applicant’s challenge relevantly is to the operation of ss 7 and 19 to the extent that they authorise imposition of an APVO based upon fears relating to conduct, and/or which regulates future conduct, “amounting to harassment or molestation of the person” (as identified in s 7(1)(a)). We take that approach in light of the applicant’s focus on her own conduct, given that the appropriate course is in general to decide constitutional issues only to the extent necessary (see eg Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32] –[33]), and that it seems likely that s 7(1)(a) could be severed if invalid.
[148] Turning then to the question of burden, the Attorney accepted that the impugned provisions placed some burden on the implied freedom, but supported the primary judge’s conclusion that it was “exceptionally limited” (J[155]). The applicant argued that there was a significant burden on the freedom, asserting that the APVO granted against her “in effect is a gag order … which completely prevents her from communicating her political view on the subject matter by reference to a real life manifestation of the issue”.
[149] It can be accepted that the applicant’s posts had a political character; that her ability to undertake that type of communication has been constrained by the APVO imposed; and that these facts illustrate that the impugned provisions can have the effect of restricting political communication. The impugned provisions can be used to prohibit or restrict the ability of an identified individual to engage in future conduct of a certain character. The prohibition/restriction lasts for the period specified in the order, being that period which the Court considers “as long as is necessary … to ensure the safety and protection of the protected person”: s 79(2). If no period is specified the order remains in force for 12 months: s 79(3).
[150] The impugned provisions are not directed to regulating political communication. They regulate conduct where — like many laws regulating what people can do — it is possible that such conduct may sometimes have a political dimension. Any burden on the implied freedom is thus incidental. It also only occurs in circumstances where a court has found that the protected person actually fears the defendant engaging in (relevantly) intimidatory conduct amounting to harassment or molestation; found that they have reasonable grounds for that fear; concluded that the defendant’s conduct is sufficient to warrant the making of the order; and concluded in its discretion that some such order should be made (see above at [50]–[51]). Moreover, in exercising the discretion the court is required to consider the mandatory relevant considerations identified in s 20(1)-(2), and is to ensure that (relevantly) the order imposes only those restrictions that are necessary for the safety and protection of the protected person or their property (s 20(3)). In exercising the discretion the court may consider “any other relevant matter” (s 20(2)(d)). As the Attorney argued, this could include the fact that past or proposed future conduct had a political character, which might militate against making an order.
[151] The applicant also challenges s 35(1)(f), which authorises the court imposing an AVO to prohibit or restrict “specified behaviour by the defendant that might affect the protected person”. No doubt the word “affect” is broad. Yet the applicant is wrong to describe this provision as giving the court “an open and seemingly unfettered discretion”. To begin with the discretion must be exercised judicially, that is, fairly and reasonably: note Australian Building and Construction Cmr v Pattinson (2022) 274 CLR 450; [2022] HCA 13 at [40]; Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; [1963] HCA 54. Moreover, s 35(2) identifies particular types of prohibitions or restrictions which may be imposed, but does so by way of illustration of what can be done under the general power granted by s 35(1). That provision grants a power to “impose such prohibitions or restrictions … as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection … from … personal violence”. The focus on ensuring protection and safety articulated in s 35(1) applies equally to the specific types of orders that may be made in light of s 35(2). That requirement in s 35(1) is itself consistent with the limitation in s 20(3), which also applies to orders of the kind identified in s 35(1) and (2).
[152] As noted, the parties did not challenge the primary judge’s explanation of the meaning of harassment or molestation (see above at [58]; see also PE v MU (2010) 11 DCLR (NSW) 107; [2010] NSWDC 2 at [17]; and note analogously, from other contexts, Henderson v McKenzie[2009] ACTSC 39 at [6]; Monis v R (2013) 249 CLR 92; [2013] HCA 4 (“Monis”) at [154] and [310]). It can be accepted for present purposes, consistently with her Honour’s view, that the terms encompass conduct that involves acting to trouble by repeated attacks or incursions, to disturb persistently, to interfere with annoyingly or injuriously, or to engage in ongoing and unwanted behaviour of a pestering and interfering nature. Those explanations all involve conduct of a repetitive character, indicating a degree of significance. However, repetition is not always required, as the example given in the definition in s 7(1)(a) of threatening to “out” someone could be a one-off action. Understood in the context of the Act, as referred to above, the sufficiency enquiry in s 19(1) requires that the feared conduct meet a threshold of seriousness or significance: note, by way of broad analogy, Monis at [333]–[336] (Crennan, Kiefel and Bell JJ). The Act is not concerned with minor annoyances. The requirement in s 19(1) that the protected person fear the defendant engaging in intimidatory conduct and that that fear have reasonable grounds also operate to exclude the trivial from the ambit of s 19. In light of these matters, it is apparent that such orders are not lightly to be made.
[153] As explained above (at [69]–[68]), the notions of molestation and harassment in s 7(1)(a) do not import their own requirement that the defendant intend to harass or molest. The absence of that requirement does not mean APVOs can readily be obtained. Furthermore, for a defendant to be criminally liable for breaching an APVO the prosecution must prove that they knowingly contravened a prohibition or restriction: s 14.
[154] Consideration of the burden on the freedom takes account of the legal operation and practical effect of the impugned law: see eg Brown v Tasmania at [90] , [180] , [237] and [307]. The latter notion involves identifying the effects of the law in the real world of human action: Burton v Director of Public Prosecutions (NSW)(2022) 110 NSWLR 145; [2022] NSWCA 242 at [47]. As noted, the impugned provisions can operate in such a way as to restrict political communication. However, the cases in which that would occur would be rare. The intersection between the provisions and the implied freedom relevantly only occurs where a protected person has a reasonably grounded fear of a defendant engaging in harassing or molesting conduct as a means of making a political point, being conduct directly affecting that individual and sufficient to support the making of an APVO.
[155] Such burden as is imposed on the implied freedom is content-neutral as regards what types of political communication might be affected, both in terms of what conduct has led to the protected person’s reasonably grounded fear and as regards what future intimidatory conduct may be restricted by the mandatory condition required by s 36(2)(b). Any other potential prohibitions or restrictions beyond the mandatory conditions imposed by s 36 must satisfy the requirement in s 20(3) – partially echoed in s 35(1) – that (relevantly) they are necessary for the safety and protection of the protected person or their property. That criterion is also content-neutral. That characteristic is indicative of a less significant burden on the freedom.
[156] Given that the burden imposed on the implied freedom by the impugned provisions is incidental, content-neutral, only occurs in cases where an APVO has been found by a court to be warranted and justified, and is likely to arise only in rare cases, we would characterise the burden as limited and of minor significance.
[157] As for the second validity question, the applicant did not dispute that the purpose of the impugned provisions was legitimate in the relevant sense. Consistently with what is said above (at [43]–[47]), that purpose can be identified as protecting people from personal violence as understood to extend to intimidation in the nature of harassment or molestation.
[158] With respect to the third validity question, the parties referred to the three notions involved in the proportionality test. No party suggested that these were inapposite to the present context. That is unsurprising. Whilst the applicant accepted that the impugned provisions were suitable in the sense of having a rational connection to their purpose, arguments about necessity and balancing were central to her case.
[159] In relation to necessity, no party argued that the provisions could or should be read down in some way so as not to apply to acts of political communication; indeed, the applicant argued (in this Court) that no such reading down was properly available. The applicant pointed to other regulatory schemes which have provided a carve-out for communications in the public interest, which might extend to political communication: Racial Discrimination Act 1975 (Cth), s 18D; Anti-Discrimination Act 1977 (NSW), ss 20C(2), 38S(2), 49ZE(2), 49ZT(2) and 49ZXB(2). The applicant said these examples illustrated that there was a “clear and practicable alternative” to burdening the implied freedom, namely having a statutory exclusion or defence which encompasses conduct involving political communication. However, to have such a statutory exception would mean that the statutory provisions did not achieve their purpose to the same extent: note similarly Monis at [348] (Crennan, Kiefel and Bell JJ). As the applicant accepted in oral argument, there would be “a less complete protection”.
[160] The gravamen of the applicant’s complaint in the end was that there was an alternative (of the kind just identified) which at least came close to achieving the identified protective end, and given the significance of the burden on the freedom, the law was thus not adequate in its balance and infringement of the implied freedom was not justified. The nature of this argument illustrates how the necessity and balancing issues can overlap.
[161] The argument is unpersuasive. To begin with, as explained, the burden is limited and of minor significance. Such a burden does not require a compelling justification.
[162] The applicant’s putative alternative would mean that protected persons would not be able to obtain the benefit of an APVO, even though they had a reasonably founded fear of intimidatory conduct sufficient to warrant and justify such an order, because the defendant had engaged and/or might in the future engage in that conduct for political purposes. A political motivation of the defendant, and the political nature of any communication, does nothing to alter the intimidatory nature of the conduct and the deleterious effects on the protected person.
[163] The applicant accepted that the net effect of her argument was that it is unconstitutional for the State to prohibit a person engaging in acts of intimidation as defined if that action was, as she put it, “for the reasonable purpose” of political communication. Her qualification of “reasonable” does little to advance her argument. As explained, APVOs are not lightly to be granted. And if the political character of the conduct was said to tend against the granting of an APVO then that could be put to the court consistently with s 20(2)(d). Thus the reasonableness of the defendant’s conduct — including in light of any political character — can be taken into account by the court in considering whether to issue an APVO.
[164] In Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 it was held that “insults are a legitimate part of the political discussion protected by the Constitution” (McHugh J at [105]) and that “civility of discourse” would not suffice as a basis for justifying restrictions on political communication (Gummow and Hayne JJ at [199]); note similarly Monis at [67] (French CJ), [185] and [214]–[220] (Hayne J). On the other hand there can be no doubt that the implied freedom would not invalidate, say, laws prohibiting an assault, even though some assaults might occur in order to make a political point of some kind. The applicant accepted as much.
[165] If insults must be tolerated, but assaults need not be, what of intimidatory conduct of the relevant kind? It is worth recalling that criminal prohibitions on assault include not only a battery but extend to where the victim apprehends immediate and unlawful violence from the defendant’s conduct: eg R v Knight (1988) 35 A Crim R 314. That reflects the damaging mental effects that such conduct can have on individuals. Harassing or molesting conduct of the kind at issue here can also have a deleterious impact on individuals. There is a material difference between conduct causing hurt feelings on the one hand and, on the other, conduct which can be characterised as amounting to harassment or molestation, involving a serious or significant degree of disturbance or interference (etc) to the protected person.
[166] The applicant has accepted the legitimacy of the Parliament seeking to regulate such conduct. That objective cannot be dismissed as one of limited significance. That point would be true even insofar as those who were intimidated were candidates or holders of political office. It is also true with respect to other members of the community. The respondent, for example, is not a politician. She is only the subject of political discourse insofar as the applicant has sought to make her so. For persons such as her the argument that the Constitution requires removal of the protection provided by the impugned provisions is even weaker.
[167] The benefit of seeking to protect individuals from the significant deleterious effects of possible intimidatory conduct, including with respect to conduct having a political character, outweighs the minor burden imposed on the implied freedom by the impugned provisions. That burden is justified. The applicant’s constitutional challenge is rejected.
Conclusion
[168] None of the applicant’s grounds of review have been made out. Her application must thus be dismissed. It was not suggested that we should make anything other than the usual order as to costs as regards the respondent. As we understood it the Attorney did not seek costs. In the circumstances our orders are:
(1) The summons dated 18 March 2025 is dismissed.
(2) The applicant is to pay the first respondent’s costs.
