The editor spoke with Andrew Philp QC:

Portrait of Sir Roslyn Philp, by JT Rigby (1959) – BAQ Collection

Philp, Sir Roslyn Foster (Ross) (1895–1965)by James B. Thomas

This article was published in the Australian Dictionary of Biography, Volume 15 , 2000, online in 2006.

Sir Roslyn Foster Bowie Philp (1895-1965), judge, was born on 27 July 1895 at Double Bay, Sydney, fourth of seven children of James Alexander Philp, a Scottish-born journalist, and his wife Ellen, née Kilgour, who came from New Zealand. ‘Ross’ was educated at South Brisbane State School and (on scholarships) at Brisbane Grammar School where he passed the senior public examination. With a helping hand from (Sir) James Blair, he was appointed a clerk in the Queensland Department of Justice on 16 March 1914. He spent one year as associate to Justice (W. A. B.) Shand at Townsville before enlisting in the Australian Imperial Force on 30 September 1916. At St Alban’s Anglican Church, Leura, New South Wales, on 7 March 1917 he married Marjorie Alice Hewson (‘Peggy’) Ferrier.

In June 1917 Philp sailed for England. Four months later he was sent to the Western Front as a gunner in the 12th Army Brigade, Australian Field Artillery. Gassed on 4 November at Ypres, Belgium, he was treated locally and admitted to hospital in England. As a result of the gassing he suffered a recurrent condition known as ‘effort syndrome’. He remained in Britain until February 1919, then returned to Brisbane and was discharged from the A.I.F. on 24 April 1919. Resuming his career in the Department of Justice, he studied for the Barristers’ Board examinations and was admitted to the Bar on 17 July 1923. That year he was appointed legal-assistant and assistant crown solicitor.

Resigning from the public service in 1926, Philp was State manager of the oil-firm, C. C. Wakefield & Co. Ltd, for two years. From 1928 he developed a large private general practice at the Bar. The Queensland Sugar Millers’ Association retained him for some ten years. In 1931 he represented E. G. Theodore in the Mungana case, heard in the Supreme Court of Queensland, and secured a finding in his client’s favour. He gained a reputation in commercial and industrial law, lectured at the University of Queensland and became a member (1939) of the law faculty.

On 4 May 1939 Philp was appointed a judge of the Supreme Court of Queensland. The Australian Labor Party government appreciated his work in the Mungana case and Chief Justice Blair doubtless supported him. Although Philp lacked seniority, his abilities and practice justified his elevation to the bench. Initially, he was unsure whether he could carry the burden, but any doubts were quickly dispelled by his talent for and application to judicial work. He was to show his mastery of probate, criminal, matrimonial and commercial law.

Decisive and clear-minded, Philp made a special study of the Queensland criminal code; his reading included judgements by courts in the United States of America. He led Queensland judges in deriving from the criminal code a coherent body of legal principles rather than a disjointed collection of rules. His decisions were often reported in the press: one newspaper article described him as ‘hard on criminals’ but not ‘callous’. In 1962 a senior police officer suggested that detectives’ promotions should depend in part on the number of arrests they made. In a summing-up that year Philp observed that ‘it would be a grave matter if a judge could no longer tell a jury . . . that a police officer, prima facie, had no interest in getting a conviction’. His remark led to a ministerial inquiry and to the police commissioner’s denial that arrest rates had anything to do with promotion.

Philp’s failure to become chief justice stemmed from what he regarded as a matter of principle. When Premier William Forgan Smith had offered him the position of senior puisne judge in 1940, he had declined it, even after Forgan Smith intimated that the promotion would probably ensure his selection as the next chief justice. Philp felt that he should not be appointed to the position over E. A. Douglas who had found against E. M. Hanlon in the Ithaca election case. Neal Macrossan accepted the post and was appointed chief justice in 1946.

Macrossan’s elevation left the position of senior puisne judge vacant. Hanlon was by then premier. Douglas was again overlooked. A falling out ensued after Philp’s friend (Sir) Alan Mansfield took the post in March 1947. Philp claimed that Mansfield had agreed not to accept it; Mansfield declared that he had made no such promise. They avoided a public rift, though Philp’s disapproval was well known. Douglas died in August that year. In 1956, when Mansfield was appointed chief justice, Philp succeeded him as senior puisne judge. He held that office until his death. While his actions had inhibited his advancement, they considerably enhanced his reputation. In 1958 he was appointed K.B.E.

Never a stranger to controversy, Philp had given evidence in 1956 to the royal commission (conducted by K. R. Townley, another Supreme Court judge) into alleged corrupt conduct by T. A. Foley, secretary for public lands. Philp stated that F. M. Bell, a grazier, had told him in 1949 that Foley had demanded £1000 for A.L.P. funds in exchange for granting him a crown lease. During criminal proceedings against Foley in April-May 1956, the magistrate M. J. Hickey ruled Philp’s evidence inadmissible and dismissed the charge. Townley, however, found in June that Foley had been guilty of corrupt conduct. Foley resigned his portfolio, but remained in parliament and from the back-benches vilified both Philp and Townley.

At the request of the Federal government, Philp chaired (1939-45) the Queensland advisory committee on aliens, investigated (1945) the loss of a Stinson aircraft in Victoria and headed (1961) a committee of inquiry into the marketing of wool. In 1954-55 he was a member of the Commonwealth royal commission on espionage which found evidence that the Soviet Union was conducting clandestine activities in Australia.

Philp was a trustee (1940-47) of his old school, a member (1955-61) of the Queensland committee for selecting Rhodes scholars, and a patron of the Twelfth Night Theatre Company. He presided over the Queensland Club (1957-58), the State division of the National Heart Foundation of Australia (1959-64) and the trustees of the Queensland Art Gallery (1959-65). A keen golfer and a noted club-man who enjoyed company, conversation, food and wine, he had strong features and an impressive bearing.In 1964 Philp fell fatally ill. He bore his condition with patience and courage. When he was unable to attend court he delivered reserved judgements from his Wickham Terrace home. Survived by his wife and one of his three sons, he died of cancer on 19 March 1965 at St Martin’s Private Hospital, Brisbane; he was accorded a state funeral and was cremated. His son Ross had been killed over Denmark in 1944 while serving in the Royal Australian Air Force.

Sir Owen Dixon called Philp’s death a ‘great loss’. (Sir) Joseph Sheehy described him as a ‘man of the highest principles’. Sir Harry Gibbs recalled him as ‘even-tempered, good humoured, quick to grasp the point of an argument and expeditious in giving judgment’. The Bar Association of Queensland holds J. T. Rigby’s portrait (1959) of Sir Roslyn.

Select Bibliography:

• R. Johnston, History of the Queensland Bar (Brisb, 1979)
• B. H. McPherson, The Supreme Court of Queensland 1859-1960 (Brisb, 1989)
• Parliamentary Papers (Commonwealth), 1954-55, 3, p 187
• Parliamentary Papers (Queensland), 1956-57 and 1957, 2, p 733
• State Reports, Queensland, 1939, p 90, 1941, p 56, 1942, p 40, 1943, p 137
• Queensland Reports, 1965, memoranda of 1965
• Australian Bar Review, July 1990, p 181
• Courier-Mail (Brisbane), 24-25 Aug 1940, 1 Jan 1958, 27 Sept 1962, 20, 30 Mar, 23 June 1965
• Sunday Mail (Brisbane), 14 July 1957, 30 Sept 1962.

In this edition of Hearsay we hear from two readers, from Bar Practice Courses 75 and 76, respectively.

Bar Practice Course 75

By Ben O’Sullivan

On 15 March 2021, 37 aspiring barristers gathered in the Chief Justice’s Court at the QEII Courts of Law for the start of an intensive six-week course dealing with all aspects of oral and written advocacy.

BPC 75 was an eclectic mix of lawyers with a diverse range of experiences. There were the commercial litigators, government lawyers, criminal defence lawyers and prosecutors, judges’ associates, and, crucially to the family law mock hearing, one family lawyer. The variety of the pupil’s different experiences was instrumental as we progressed through each of the written and oral assessments.

The course proceeded at a brisk pace, and before we knew it we were making our first submissions. It quickly became apparent that the ability to juggle multiple briefs was a highly valuable skill, as well as the ability to transform an incomplete brief into a set of successful submissions (and the ability to consume copious amounts of caffeine). Each day blurred into another as we practised our written and oral advocacy skills in different settings, ranging from criminal sentencing, and trials in civil, family and criminal jurisdictions.

We also had the benefit of delivering submissions in true 2021 style – through the medium of Zoom. The Covid outbreak in late March 2021 caused the course to pivot from in-person delivery to online for three days. During that time, we overcame the challenges of slow internet and speaking whilst on mute, and learned how to effectively deliver oral submissions outside of the traditional courtroom. Some pupils even discovered that online delivery was conducive to the occasional power nap, an opportunity which might not have otherwise presented itself with in-person attendance.

As Easter approached during the middle of the course, it was thought by some pupils that the Easter long weekend may afford some brief respite from the course’s gruelling schedule. The second advice assessment had other ideas. For most pupils, it was an Easter long weekend unlike any other. On the other hand, the bulk consumption of chocolate assisted in the assessment of damages in a personal injury matter.

After five weeks of intensive advocacy, we approached the summit of the course – the Advocacy Intensive Weekend and the Final Mock Hearing. “Intensive” accurately describes the Advocacy Weekend. It was a unique opportunity to be given immediate feedback about what worked and what didn’t in the running of a trial. New techniques were tried and trusted techniques were honed. By the Final Mock Hearing, each pupil had found an advocacy style that worked for them.

By the final evening of the course, “collegiality” had taken on a deeper meaning amongst the group. We are indebted to the barristers, Bar Association staff and volunteers who kindly donated their time to assist us throughout the course. We are also grateful to the judges who instructed us in the various seminars and who presided over the final mock hearings. The opportunity to appear before eminent practitioners so early in our careers was a fantastic opportunity. In particular, we would like to thank Gail Cowen and Alexandra Slater for so flexibly rearranging the course as a result of the ever-changing Covid restrictions.

Bar Practice Course 76

By Jessie Pagliano

Course held 23 August to 30 September 2021

It was the best of times, It was the worst of times… an homage to BPC76.In a COVID-19 world, we are all forced to adapt. Just one such example of this adaptation comes from the pupils of Bar Practice Course 76, who were the very first cohort to endure an almost entirely Zoom-based course content delivery. And more impressively – to survive it with (most of) their sanity intact!

In the face of a previously delayed Bar Practice Course 74, the decision to deliver BPC76 online was one which was carefully considered and ultimately successful. All content based sessions, first appearances, and Mock Hearings 1 through to 4 were completed from the security of 36 pupils’ homes/workplaces/library hideaways. Rife with opportunity to either (a) forget you were on mute (b) forget to place yourself on mute (c) dress just a little more comfortably then you might otherwise (d) fill your teacup with something stronger than coffee or, (e) all of the above; the pupils of BPC76 are forever bonded by their ‘perseverance’ (read: trauma) alongside fearless coordinators, Gail Cowen and Alex Slater, of the Bar Association of Queensland.

It was a bizarre experience to formally meet for the very first time at Mock Hearing 5. Common revelations included the excessive height of one particular pupil, and the remarkableness that all pupils in fact had a lower body. The BPC76 crew were grateful to finally find some time on their feet (for some, being the first time they had appeared somewhere other than from the carpets of their respective Zoom locations). While, on the other hand, experienced barristers and judges were quick to reassure pupils that the online platform is one which is increasingly utilised.

It should be hastily added that the encouragement and organisation of our group-appointed social director was much appreciated. She was able to successfully wrangle a lot of pupils into Friday catch ups, ensuring not all of the prerequisite bonding was completed online. Those Sidebar catch ups were a much needed screen break and a chance to mingle.

The WhatsApp chat group was lit and always entertaining, and I digress to provide a few of the most memorable topics and moments from one pupil’s perspective:

• an excessive amount of pineapple related jokes (if you know, you know);
• a constant sprinkling of pet pics and cameos;
• an initially inadvertent pony punting post by one particular pupil, now referred to as ‘the Oracle’;
• the intriguing mystery of who took and submitted the famous image of one pupil looking gravely ill during the nitty gritty of the “Setting up a Barrister’s Practice” session; and
• a light-hearted double denim mockery of one ordinarily fashionable pupil (subsequently unsuccessfully suggested by the offender to become the uniform of BPC76).

All jokes aside, the BPC76 group became a close bunch. The diverse background of each pupil was not only fascinating – but a massive support to the group. The Criminal Law (Mock Hearing 1) and Family Law (Mock Hearing 4) survival tutorials which were provided by experienced pupils to the rest of the group proved that the remoteness of each pupil was no bar (pun intended) to helping one another out and pulling through as a team.

Alongside all of the amazing pupils was the perseverance and generosity of the individual presenters. Presenters including members of the Judiciary, Queen’s Counsel, other esteemed members of the Queensland Bar as well as the solicitors’ branch of the legal profession. Each presenter was generous with their time and willingness to distil their impressive banks of knowledge, and also with their patience and kindness toward occasionally overwhelmed pupils. While it took time for pupils to acquire the confidence to use the ‘hand-up’ function of Zoom – presenters were tasked with the responsibility to deal with the constantly changing grid of pupils they faced while trying to operate PowerPoint Slides, keep to the schedule, answer questions, and keep an eye on the ask-a-question chat. Though each and every Bar Practice Course rollout calls for knowledge and skillsets from each presenter, I suspect that the uniqueness of the BPC76 online format was a challenge which each presenter unquestionably rose to meet.

No challenge was quite so fervently met than by Gail and Alex. Through all of the Zoom sessions, chat messages, emails, text messages, calls and in-person check ins, they were enthusiastic at all times and worked hard to ensure BPC76 crossed that long awaited finish line. I’m confident in extending our sincere thanks as a group to Gail and Alex. Your patience did not go unnoticed, or unappreciated.

On the final evening of the course, the BPC76 pupils congregated in the Banco Court to receive their completion certificates. It was a proud moment, filled with a heady mix of excitedness to be finished and exhaustion from the trials and tribulations which the Course had thrown at us, both expected and unexpected. A number of pupils karaoke’d the night away afterwards, safe in the knowledge that their song selections were free from judgement – and, more importantly, that they had unlocked the next chapter of their lives.

The litigation

On 8 September 2021 the New South Wales Court of Appeal allowed an appeal by the appellant Seqwater in the Brisbane River flood class action litigation.

The appellate decision – Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd[1] – concerned a proceeding brought by the plaintiff company, as lead claimant, for property damage and loss suffered in South-East Queensland river region, in consequence of release of water from catchment dams.

The defendants were Seqwater, SunWater Ltd and the State of Queensland.

The proceeding was commenced in the Supreme Court of New South Wales, no doubt on account of no class action legislation existing in Queensland at the time.

Following a trial ensuing for over six months, the trial judge (Beech-Jones J, as Beech-Jones JA then was) found for the plaintiff, in negligence, against such defendants[2].

Each defendant appealed.  SunWater and the State settled with the plaintiff prior to the hearing of the appeal.

Seqwater’s appeal was successful.  The plaintiff’s claim against it – it being apportioned 50% responsibility by the trial judge under statutory proportionate liability – was dismissed.

On 6 October 2021, the plaintiff filed in the High Court of Australia an application for special leave to appeal.  The proposed grounds of appeal adumbrated therein were:

1. The Court of Appeal (CoA) erred:

(1)     in holding that s 36 of the Civil Liability Act 2003 (Qld) (CLA Qld)[3] applied to the applicant’s case in negligence in substitution for the standard of care identified in s 9 of the CLA Qld; or alternatively

(2)     in its identification of the content of the standard of care under s 36.

2.       The CoA erred in the discharge of its rehearing function under s 75A of the Supreme Court Act 1970 (NSW) in failing to identify error under the standard appropriate to the review of a judgment in a trial of enormous proportions.

3.       The CoA erred in overturning the findings of the primary judge of negligence of the first respondent’s employees on 7, 8 and 9 January, which caused the plaintiff and sample group members to suffer loss and damage.

On 12 April 2022 the High Court refused the application for special leave.[4]  The court – Keane, Steward and Gleeson JJ – wrote:

The court does not consider that the case presents a suitable vehicle for a consideration of section 36 of the Act.

The point of this article is to alert practitioners to the gravamen of the appellate decision.  It serves to underscore the ascent of s 36 as a powerful tool in the armoury of Queensland state and local government authorities.

There is no sensible reason why the Queensland Court of Appeal would not follow the NSW appellate decision.

The plaintiff’s case

The plaintiff – Rodriguez & Sons Pty Ltd – was the owner of a sporting goods store.  It suffered loss as a result of the flood.  There were 6,500 group members in the proceeding class cohort. The aggregate damages were substantial, namely in the billions of dollars.

The plaintiff alleged negligent operation of the dams resulting in widespread property damage and economic loss.  It was alleged that the dam engineers, in the exercise of reasonable care, ought have made substantial releases from the relevant dams before the heaviest of the forecast rain so as to create storage capacity.

The case put for adjudication was that had the engineers followed the promulgated statutory dam manual – on its proper construction – they would have made substantial earlier releases of dam water so as to circumvent the  dams overtopping at a time of high flows.

Australian common law, modified – if applicable – by the statute law of Queensland, operated in respect of the plaintiff’s pleaded cause of action.  Such statute law included s 36 of the Civil Liability Act 2003 (Qld) (Qld Act):

36     Proceedings against public or other authorities based on breach of statutory duty

(1)     This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.

(2)     For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

The trial judge found that s 36 applied to a duty of care in the tort of negligence owed by each defendant, but that such provision did not apply to the plaintiff’s claim.

In finding negligence in the three defendants, his Honour apportioned liability 50% to Seqwater, 30% to SunWater and 20% to the State.

A raft of issues fell to be determined by the appellate court, but the particular focus was the trial judge’s above finding as to the proper construction of s 36, and the relevant standard of care operative thereunder.

Section 36 applicable to negligence

The trial judge found against the plaintiff’s argument that s 36, on proper construction, was confined in operation to a cause of action for breach of statutory duty.  So much was contended (inter alia) on the content of the provision heading (see above).

There was trial division dicta in Queensland to the effect that s 36 was so confined.[5]

In upholding the trial judge’s construction the appellate court wrote:[6]

Whilst the heading forms part of the statute, and can be relied upon in construing the operative provision, the manner in which it was applied is not persuasive. The term “duty” is defined in the Dictionary to the Civil Liability Act to mean a duty of care “in tort”, “under contract”, or another duty under statute or otherwise that is “concurrent with a duty of care in tort or under contract”. The fact that the defined term “duty” is not used in s 36 suggests that the section was not limited to any particular cause of action. As the primary judge observed, “the definition of ‘function’ in s 34 is not confined to a ‘duty’.” Further, the phrase “breach of statutory duty” used in the heading is at best a paraphrase of the third limb of the definition of duty, the meaning of which is not without its own difficulties. Finally, s 36(1) makes explicit provision for the application of the section, and does so by reference to “function” rather than the type of duty which is alleged to have been breached.

Exercise of “functions”

The trial judge found that the reference to “functions” in s 36 did not apply to any statutory functions of Seqwater under the South-East Queensland (Restructuring) Act 2007 (Qld) in s 9 thereof.

In rejecting this finding the appellate court wrote:[7]

On any view, Seqwater in fact undertook its flood mitigation functions by establishing a Flood Operations Centre and exercising its powers to release water in a controlled manner. In doing so it was, on Rodriguez’ own case, subject to a duty to apply the Flood Control Manual according to its terms. The Manual, discussed in detail below, imposed strategies for the operation of Somerset and Wivenhoe Dams. It is not possible to read the reference to a “function” in s 36 as not encompassing the flood mitigation activities undertaken in January 2011.

Section 36 applies to vicarious liability

The trial judge found that s 36 did not apply to a cause of action founded on vicarious liability.  Such liability was alleged in this case apropos of the conduct of the said dam  engineers.

In rejecting the trial judge’s construction, the appellate court wrote:[8]

If a public authority can only exercise a function through the medium of trained professionals, it might be surprising if the standard of care applied to it differed from that applied to its agents. … Assuming that the functions of Seqwater included flood prevention and floodwater control, Seqwater was obliged to carry out those functions, having regard to the interests of Rodriguez and others with downstream interests in avoiding inundation. It employed professional engineers as its agents to carry out those functions. If the functions were carried out negligently, according to general law principles, Seqwater would be liable. However, the standard of care would be that identified in s 36(2). The contrary reasoning of the primary judge in this regard should not be accepted.

Seqwater as a “public or other authority”

The trial judge held that Seqwater was not a “public or other authority” within the definition of Qld Act s 34, and thereby not a “public or other authority” within the meaning of s 36.

Section 34 provides:

34  Definitions for div 1

In this division—

function includes power.

public or other authority means—

(a)   the Crown (within the meaning of the Crown Proceedings Act 1980); or

(b)  a local government; or

(c)   any public authority constituted under an Act.

In finding that Seqwater was a “public or other authority” within the meaning of s 36, the appellate court wrote:[9]

It is aptly described as a “public authority” because it is established under statute, has the functions and powers conferred by the statute, has no corporators or individuals who would benefit from the exercise of its powers as members of a corporate body, is responsible for the supply of water and other services relating to the water industry and is run by a board appointed by the responsible Ministers. Although the characterisation of Seqwater is required for the purposes of the Civil Liability Act, the language of that Act in s 34(c), referring to “any public authority constituted under an Act”, cannot be read down so as to exclude a body having the characteristics of Seqwater.

…

The term “public authority”, as used in s 36, is not defined. Accordingly, it should be understood in the context of the regulation of water supply and flood control set out above. These considerations demonstrate that Seqwater was a public authority within the meaning of that term in s 34, and therefore in s 36 of the Civil Liability Act.

Section 36 standard of care

The appellate court found that s 36 significantly diminished the standard of care in negligence owed by a statutory authority.  In doing so, it found assistance in the judgement of McLure P (Buss JA agreeing) in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management.[10]

Qld Act s 9 – which the court contrasted in content – provides:

9  General principles

(1)   A person does not breach a duty to take precautions against a risk of harm unless—

(a)     the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b)     the risk was not insignificant; and

(c)     in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2)   In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a)     the probability that the harm would occur if care were not taken;

(b)     the likely seriousness of the harm;

(c)     the burden of taking precautions to avoid the risk of harm;

(d)     the social utility of the activity that creates the risk of harm.

The appellate court wrote:[11]

[T]he distinction between the general approach to breach of duty under s 9 of the Civil Liability Act and that applicable to a public authority to which s 36 applies may be identified as follows: under s 9 it is for the court to determine whether, on the evidence before it, it is satisfied that the defendant failed to take precautions against a risk of harm which a reasonable person in its position would have taken; under s 36, the court must be satisfied that the authority, acting on its understanding of the relevant circumstances and applicable law, adopted an approach to the exercise of its functions which fell outside the range of reasonably available options. … Thus, where a person suffers injury caused by the conduct of another, it may appear on the evidence that the impugned conduct falls into one of the following categories, viewed prospectively:

(i) conduct which was the preferred or correct course although harm may have been foreseeable;

(ii) conduct which was not unreasonable, although it involved an error of judgment and some would have avoided it;

(iii) conduct which, in the Court’s view, a reasonable person taking appropriate precautions would not have done, and

(iv) the exercise of a power which is so unreasonable that the Court cannot envisage any person in that position considering it to be a reasonable exercise of the power.

Each category may need reformulation where the complaint is of a failure to act. There are situations where morality and the law take different courses and the law does not impose a duty to act. However, that did not arise in this case. The purpose of the powers conferred on Seqwater to operate the dams involved management of the water supply for south-east Queensland and flood mitigation on the Brisbane River. It had only one tool to achieve both purposes, that was turning the tap on or off at the dams. No question of distinguishing which acts from omissions affected its legal responsibility.

Viewed in this way, one can see a progression in terms of culpability: categories (i) and (ii) do not engage tortious liability in negligence in accordance with s 9 of the Civil Liability Act; (iii) engages liability under s 9, and (iv) alone will engage liability under s 36(2). Thus the schema suggested above reflects a scale of increasing culpability. As McLure P said, (iv) imposes a higher burden on the plaintiff than does (iii). Lack of reasonable care, assessed in accordance with s 9, does not demonstrate liability where s 36(2) is engaged.

…

Because the primary judge did not apply the s 36(2) standard in assessing Seqwater’s conduct, it will be necessary for this Court to consider that exercise. However, in the absence of any notice of contention, the extent to which this Court can make findings is limited. The limitations are discussed in part 18 below. That will attract further questions, including as to the appropriate identification of the relevant “act or omission”, whether singular or plural, for the purposes of s 36(2). Such matters are conveniently addressed in the factual context in which they arise. Ground 1 of Seqwater’s appeal should be upheld.

(emphasis added)

No breach adjudicated

Thereafter, in a detailed exegesis, the appellate court proceeded to find that – judged by the altered standard imposed by s 36 – the plaintiff did not discharge its persuasive onus of proving a breach of Seqwater’s duty of care.

In adjudicating no breach was so proved, the appellate court treated the manual regulating dam management as a more flexible document than it was characterised by the trial judge:[12]

… [T]he Manual was….“a practical document addressed to engineers, not lawyers”. It falls within the principle that “documents addressed to practical people skilled in the particular trade or industry” ought “to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing sections of an act of Parliament”:  Gill v Donald Humberstone & Co Ltd  [1963] 1 WLR 929 [HL] at 933–934; Queensland v Masson [2020] HCA 28; 381 ALR 560 at [95]….The Manual identified four key volumes of water in the dam by reference to water levels plus a range of flow rates at Lowood and Moggill. The procedures contained in the Manual depended upon those integers relating to conditions in the real world….Further, bearing in mind the Manual’s purpose, and the textual inconsistencies and infelicities, it is convenient to step back from the detail and appreciate that the Manual contained “operational procedures” for the operation of two dams during flood events, noting that all that a flood engineer could do was to make decisions when and at what rate to release water. The Manual gave a structure to the exercise of the only power the flood engineers had.

(emphasis added)

Conclusion

Suffice it to say this litigation was complex.  The outcome was such that the claimants recovered only 50% of the damages.

The construction adopted on appeal in respect of the scope of operation and content of Qld Act s 36 entailed it having the same broad effect as s 43A of the Civil Liability Act 2002 (NSW)[13], s 39(5) of the Road Management Act 2004 (Vic)[14] and s 5X of the Civil Liability Act 2002 (WA).

The appellate decision spawns a construction of s 36 which renders it a powerful tool as a defence in the hands of the State of Queensland, or a state or local government authority, as defendant.

[1] Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd  (2021) 393 ALR 162;  [2021] NSWCA 206.

[2] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No.22) [2019] NSWSC 1657 (29 November 2019)

[3] The CLA Qld is also referred to as the Qld Act or the Civil Liability Act below, with references to such variations also being made in judgments and legislation.

[4] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater & Others [2022] HCA Trans 61 (12 April 2022).

[5] Hamcor Pty Ltd v Queensland [2014] QSC 224 at [195], [196] per Dalton J.

[6] Fn 1 at [68].

[7] Fn 1 at [82].

[8] Fn 1 at [101], [102].

[9] Fn 1 at [117], [121].

[10] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287;  [2012] WASCA 79 at [114].

[11] Fn 1 at [134]-[141].

[12] Fn1 at [224], [226] and [229].

[13] See Weber v Greater Hume Shire Council (2019) 100 NSWLR 1;  [2019] NSWCA 74.

[14] See Kennedy v Shire of Campaspe [2015] VSCA 215.

On 24 March 2022, the Honourable Justice Glenn Martin AM was appointed as the Senior Judge Administrator of the Supreme Court of Queensland. Justice Martin, a Past President of the Bar Association and current President of the Australian Judicial Officers Association, presented the below paper to the Annual Conference of the Bar Association of Queensland on 27 March 2022.

The use and abuse of written submissions has been the subject of dozens of articles and presentations at conferences like this for decades. Is there anything new left to be said? Probably not. Then why have a session at all on this topic? Because counsel are still wasting the opportunity to have their arguments put, without interruption, to the court. In oral submissions you might be the subject of cross-examination from the bench and, sometimes, feel that you’re not able to get your point across. That ability is manifestly available in a written submission.

I’m going to approach this topic under four headings:

• Why is the written submission overtaking the oral submission at an increasing rate? Because it often helps when considering how you will frame a submission to consider why it’s being put in writing.
• When are written submissions the superior means of persuasion?
• What are the basics of a persuasive written submission?
• How can you blend the written and the oral so that the whole is greater than the sum of its parts?

Why is the written submission overtaking the oral submission at an increasing rate?

There are many practice directions or rules of court or conventions which mandate or strongly encourage the use of written submissions. I’m going to be talking to you today about the use of submissions at the trial level. There are differences of focus and detail which separate trial submissions from appeal submissions and from those which are provided on applications. But, if they are done well, then they will all contain a core of exposition and analysis.

Sometimes it assists when drafting submissions to bear in mind how we have reached this state. While the provision of written material was well advanced in the United States and, to a lesser extent, in Canada from the beginning of the 20th century, the provision of submissions here was almost unknown only 40 years ago.

“… you should not expect to have an adjournment for some time in order to prepare written submissions. Most judges will expect you to commence your submission immediately.”

There are, I suggest, seven reasons for the requirement most courts impose or request for the provision of written submissions. I’ll deal with them very briefly.

The first is the time pressure on judges. I am not aware of any jurisdiction in which governments are delighted to increase the number of judges available to hear trials. They require the courts, like many other parts of society, to do more with less. The courts also impose time limits on the delivery of judgements. Around Australia the usual protocol is that a judgement should be delivered within three months of the last day of the hearing. That is not unusual. And written submissions are seen, correctly in most cases, as assisting the judge in writing the decision.

The second is that technology has made it so much easier to do this. In 1982, there were no word processors. Barristers did not rely on an Apple or a Windows computer but on an IBM or Olivetti typewriter. Easier, though, does not always mean “better”.

Thirdly, at least in the superior courts, reliable transcript is readily available. This has led to both counsel and solicitors taking fewer notes during a hearing and waiting for the transcript to be available. It is also led to a much greater insistence on accuracy so far as references to exchanges in examination or cross examination are concerned.

A fourth issue is the inexorable move from common law principles to principles embedded in statutes. It was once possible to argue a contract or a tort case without referring to a statute. The broad principles were known and reference would be made to leading authority. The reluctance of legislators to leave anything alone has meant that many of those principles now find themselves being expressed in excruciating detail in statutes. Reference must be made to sections with many subsections and sub subsections and that can be almost impossible to do in an oral presentation. Judges are much more likely to understand a submission where the relevant section is inserted into the written submission.

Fifthly, the diet of trials fed to judges used to be leavened with some simpler cases. They might only last a day or two and could be dealt with adequately in the final oral address of counsel. Those cases are rare birds now. Mediation and other means of alternative dispute resolution has meant that the cases which are listed are the most difficult or most complex cases which remain intransigently incapable of resolution. The more complex the matter, the more helpful a written submission is.

The sixth point is that a generation of counsel and judges have grown in the profession while these changes have been being made. The expectation that a barrister will give a final oral address at the conclusion of, say, a three-day trial is greeted by some with an onset of nervous perspiration and a general desire to be somewhere else.

Finally, the appointment of judges from outside the traditional pool of the senior bar has resulted in some judges who are more comfortable with receiving arguments in written form.

“Allow me to remind you that a written submission is just as much advocacy as oral argument or cross examination. It is all about persuasion.”

I have discussed with a number of the judges on my court the fact that I was going to be speaking to you today on this topic. One response, apart from the universal expression of pity for me, was this: Counsel should not expect that they will be allowed to provide written submissions in a trial which is relatively simple and short. There are, of course, not many of those in the Supreme Court but where the evidence concludes in two or three days then you should not expect to have an adjournment for some time in order to prepare written submissions. Most judges will expect you to commence your submission immediately. Wise counsel will enquire at the beginning of the trial as to the judge’s expectation with respect to presentation of addresses.

When are written submissions superior?

The occasions are four in number:

1. a lengthy trial;
2. a detailed examination of complex facts / expert evidence;
3. a detailed examination of complex legislation;
4. when a reserved decision is inevitable.

What are the basics of a persuasive written submission?

There are hundreds of papers and articles published in this country and elsewhere which deal with the construction of a written submission. There are dozens of books – mostly from America – which do the same thing.

I am not going to attempt, in the time available, to cover the entire field. I want to deal with a few matters – some more important than others – which may assist you in the difficult task of composing a compelling submission.

Allow me to remind you that a written submission is just as much advocacy as oral argument or cross examination. It is all about persuasion.

You will be more likely to be successful – assuming you have a case which allows you to be successful – if you always bear that in mind.

Do not fall into the trap of putting every last indefinite article, punctuation mark and rhetorical device into the written document. It is not a script. It is not a journal article. It is not a doctoral thesis. It is an implement. It is a tool to be used by the judge when he or she is working on the judgment. It was put this way by one eminent English Judge: you should aim for the middle ground – somewhere between a text message from a teenager and a brief for the US Supreme Court.

It is a document which you wish to have the judge pick up and use it with confidence. It is not a document which will have the judge flipping backwards and forwards in order to find where particular important matters are dealt with.

Always remember:

You are trying to persuade the judge.

• Not your client.
• Not your solicitor.
• Not your opponent.

The judge.

Let me start at the very beginning.

It is not unusual to receive, after a trial has concluded, a written submission which commences with the full title of the matter and then has the bare heading: “written submission”. This is obviously to assist those judges who cannot tell the difference between an oral and written submission. It also has an air of mystery – whose submissions are these? It often seems to happen where there are more than two parties involved. Please identify the origin of the submissions. The plaintiff’s, the second defendant’s, the first third-party and so on.

“It also has an air of mystery–whose submissions are these?”

During trial, conventions often arise as to the manner in which particular parties are referred. It is always better to refer to parties by their actual names rather than their position on the court heading. Any reader is more likely to comprehend an argument better if the reader is provided with a consistent description of the relevant party. And keep it consistent – if a party has been referred to away during the trial, don’t change the description when you come to write about it.

So, you’ve told the reader on whose behalf the submission is made. You want to make the reader continue to read it and to comprehend.

A shorter document is easier to comprehend than a longer document. There is no prize for the heaviest submission.

One of the best expositions of the elements of clear writing was set out by George Orwell in “Politics and the English Language” published in 1945.

In discussing clarity of language he provided the following rules which, he said, would cover most cases:

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
2. Never use a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
6. Break any of these rules sooner than say anything outright barbarous.

You will always be assisted if you bear those in mind.

The admonition that: if it is possible to cut a word out then you should cut it out carries across to the citation of authority. You should always remember:

“…if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it.”

            R v Erskine [2009] 2 Cr App R 29, per Judge LCJ at [75]

May I take this opportunity to remind you that there is no need to demonstrate a principle by reference to decisions commencing in the 18th century and listing those cases which have dealt with that principle. The rule of thumb is that when referring to a principle or exposition of law you should only refer to the authority which is the most recent and from the highest court. If the High Court has pronounced upon a subject, then there is no need to refer to decisions of intermediate courts of appeal which have followed it. If the High Court has not dealt with a particular matter then, of course, you would refer to an intermediate appellate decision. There is no need to clutter a submission with a recitation of a long list of authorities all dealing with the same point. And it will be a rare day when you cannot find an appellate decision on the topic you’re discussing.

A submission not only needs to read well, but it also needs to look good. There should be some white space on the pages. There should be headings which are consistent with the issues to be determined. The paragraphs should be numbered and never in the decimal style. Use the same conventions as are used in legislation, i.e., number, letter, roman numeral etc.

“Set out what some call an “overview statement” which tells the reader what the case is about, who did what to whom, the major issues and your position on them.”

Do not be afraid to incorporate diagrams or plans or maps. It will not be necessary in many cases. But in cases involving, for example, complex corporate relationships a diagram demonstrating the hierarchy can be very helpful. In a case for family provision where there are numerous relevant family members then a family tree can explain the relationships much more quickly and much more efficiently.

I come now to the one thing that I want you to remember about this subject – the importance of context.

Whether your submission is for an application, a trial, or an appeal, the judge may not come back to it for some months. In the trial division, the judge may have heard other civil or criminal trials after your trial concludes, and before writing can commence.

So, remind the judge of what it’s about. Don’t just leap into an analysis of the law or the facts.

Put yourself in the position of the reader, i.e., the judge. The judge hasn’t been able to turn his or her mind to it for some time. Set out what some call an “overview statement” which tells the reader what the case is about, who did what to whom, the major issues and your position on them. This should take up no more than one page. And this process represents a fundamental principle of persuasive submission writing: put context before details.

The overview statement is important because it provides a roadmap for the rest of the submissions. It provides the context for those submissions and allows the judge to better absorb and understand the details which follow.

In that introduction you begin by persuading the court of the rightness of your client’s case. Tell the story in human terms. You are wanting to grasp the judge’s attention and that is best done by capturing the essence of what the case is about and why your client should succeed.

In your introduction you will state the key issue or issues on which the trial turns. This is a task which requires careful attention. You do not want to descend into complex particularity, nor do you want to state the issue too broadly.

So, start with a sufficient but simple picture of the facts which provides a context to the issues and a preview of what is to come in the balance of the document.

“Submissions should be issues-based because judgments should be issues-based.”

There are four principles the observation of which will lead to a more effective document.

Principle 1

Readers will absorb information better if they understand its significance as soon as they see it. Before providing detail, provide a context or framework that allows them to grasp the relevance of the detail in the organisation that binds them together.

You do this by:

Principle 2

A reader will absorb information better if its form (its structure and sequence) mirrors its substance (the logic of the analysis or the theme of an argument).

Submissions should be issues-based because judgments should be issues-based. Judges have to decide issues. They are, in the first place, determined by the pleadings but, as we all know, those issues can change and become more or less important as a trial proceeds. It may be, for instance, that one of the issues is the credibility of a major witness. If the case for one side is dependent upon the judge accepting that witness’s evidence, then you will deal with that as early as possible.

Principle 3

A reader absorbs information better if they can absorb it in pieces. Don’t be afraid to have paragraphs with only one or two sentences.

You will have all noted the change in the way judgments are written. Even the great Sir Owen Dixon committed what is now a cardinal sin of writing sentences and paragraphs which are too long.

Look at the way the High Court, in particular the decisions of the Chief Justice and Keane J are set out. The paragraphs are, generally, short. They use headings and break up their decisions into digestible pieces. You should do the same. Break up larger blocks of text by using headings, shorter paragraphs, and white space. If you are dealing with, for example, a test which has a number of factors then set them out in bullet point form rather than within a paragraph separated only by commas.

Principle 4

A judge will pay more attention if you approach your material from their perspective, not yours. Understand what a judge has to do. Findings of fact have to be made. Upon those findings, issues are determined. Upon those issues, orders are made.

With that in mind, your written submission will set out the issues which need to be determined and the facts which need to be found before that determination can be made.

When you do that you will not be hiding the point you wish to make in the middle of the paragraph. Consistent with the imperative to provide context, you will make your point first and then provide the cogent reasoning to support it.

Remember this, a submission should not be written as if it is a mystery novel. The conclusions should be obvious and made early in the document.

If you want to adopt a template for dealing with issues, then one means of doing it is to:

How can you blend the written and the oral so that the whole is greater than the sum of its parts?

The final thing I wanted to say concerns the difficulty some people have with speaking to written submissions. There are few things more deflating than for counsel to hand-up the written submissions and say I have nothing further.

This is meant to be an exercise in persuasion not abandonment. If you do this you are forgoing one of the most effective ways of persuading someone, that is, through discussion and argument.

In any event, as I’ve already said, the written document should, unless otherwise ordered, be an outline.

“Remember this, a submission should not be written as if it is a mystery novel. The conclusions should be obvious and made early in the document.”

So, what can you do to engage with the written document? Take the judge to those parts of it which are at the heart of your case. Don’t read out what is written but have something ready which will allow you to expand upon that which is on the piece of paper.

One area in which this type of interaction can be very helpful is when you are dealing with issues of credit or particular findings of fact. It is much easier to impress upon the judge the value of certain pieces of evidence or parts of certain documents in oral argument. You should not, for instance, place large slabs of transcript into a submission. You should, though, provide the relevant transcript references. That will allow you to ask the judge to take up the transcript and go to the particular page or pages and ask him or her to read the relevant parts. That allows the judge to remember that evidence and to mark it up. It allows you to compare the evidence given by other people in the same way. It allows you to draw the judge’s attention to consistency or inconsistency with exhibits.

This is much more effective being done when you’re standing up than expecting and hoping that the judge will, with the file spread out on the desk, find all these things and absorb what you say are the important aspects.

Similarly, while you will provide the correct references to authorities in your submission, it can be more effective to take the judge to particular parts of an authority, direct attention to them, comment upon them, and then analyse evidence in the light of the principles set out in those authorities.

I will deal briefly with the manner in which you should conclude the preparation of your written submission. When you have finished it, close the document and do something else. If it is possible leave it for a few days and reread it. Edit it, cut out the unnecessary adjectives, adverbs and modifiers and shorten it. You will, because we all do, miss some typos or infelicities of grammar because you will read what you expect to read. One method of doing this kind of editing is to have the submission read back to you by the computer. I find that a particularly unappetising task. Another method, which I have found useful when editing judgments, is to print it out using an entirely different typeface. It is remarkable how that can let you see what you have not seen before.

Finally, do not overlook the editing and correction process. There are few things more infuriating than to find that a reference to transcript or to a particular authority is incorrect and that you are required to then trawl through the transcript or try to find the authority yourself. This does not encourage confidence in the balance of the document.

After-the-event insurance (ATE insurance) provides coverage for legal costs. 

Such insurance serves a useful purpose as it helps to prevent the adverse financial impact on a party caused by an unfavourable costs order.   It also has been used as method of give the required security in a security for costs order.   

As a way to provide for adverse costs, ATE insurance is becoming more common in Australia, particularly in class actions where a representative plaintiff bears the risk of a potential adverse costs order in circumstances where group member have the benefit of any award without such risk.

In class actions – where costs are borne by a representative plaintiff for the benefit of the class – the provision of ATE insurance to prevent the adverse impact of a costs order against a representative plaintiff personally, is common.  In the ubiquitous position where a litigation funder is involved in such an action, ATE insurance provides financial flexibility as it avoids a funder having to either pay money into court or to have equity tied up by the provision of a bank guarantee.  

The use of ATE insurance as a means of providing security for costs has recently been questioned by the Queensland Court of Appeal. [1]  This is addressed below.

The power of a court to order security for costs derives from a number of sources.  The relevant rules of court generally give a judge discretion to require a plaintiff to provide such security as the court considers appropriate for a defendant’s costs which includes the manner in which such security is to be given.[2]

Section 1335 of the Corporations Act 2001 (Cth) empowers a court where a corporation is a plaintiff and there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in its defence to “require sufficient security to be given for those costs”.  In class actions s 33ZF together with s 33AG(c)(v) of the Federal Court of Australia Act 1976 (Cth)  empowers the Court to “make any order the Court considers appropriate or necessary to ensure justice is done in the proceedings”.[3] Relevant also is the inherent jurisdiction of the Court to regulate its own practice and procedure so as to procure proper and effective administration of justice and to prevent abuse of its own process.[4]

Whether security is ordered, the amount payable, and the form in which it is to be provided are matters which fall within the Court’s general discretion.  This discretion is unfettered but on occasion some court rules do provide guidance.    For example, rule 672 of the Uniform Civil Procedure Rules 1999 (Qld) lists a number of matters that a court may have regard to when considering the question of security including the means of those standing behind the proceeding, whether an order for security would be oppressive, whether an order for costs made against the plaintiff would be enforceable in the jurisdiction, and the costs of the proceedings.

The protection provided by an order for security for costs has traditionally been provided by either a payment made into court or the provision of a bank guarantee from an Australian bank.  By doing this a court ensures that a fund is available within the jurisdiction against which a court’s judgment could be enforced by a successful defendant.

In Commissioner of Taxation v Vasiliades[5], Kenny and Edelman JJ observed that the factors that courts have over time recognised as relevant to the exercise of discretion bear on the purpose for which an order for security for costs is made. If for example an applicant in a proceeding is ordinarily a resident outside jurisdiction, an award of security of costs means that a respondent “does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement”. [6]

The type of discretionary factors to which a court may have regard in deciding whether to make an order for security are not limited.  A countervailing consideration, which may be unique to the action, could justify the making or refusal of an order.

In Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd[7], a security for costs application was brought by a defendant in a class action concerning the validity of penalty toll payments made on motorways in Queensland. The application for security for costs sought the first tranche of the defendant’s costs, which at that time were about $210,000.   The plaintiff offered security by means of ATE insurance provided by AmTrust Limited.

At first instance, Applegarth J refused the offered ATE insurance as being an appropriate method for the payment of security. AmTrust has no assets within the jurisdiction.

His Honour noted that enforcing security given by a foreign insurer provided two significant disadvantages. The first was that enforcement could be difficult and there were associated costs in taking such action. Secondly, although AmTrust appears to be a company of standing, its present financial position and its ability to meet any costs order made could not be guaranteed.   The provision of security by ATE insurance was weighed against the desirability of having the usual course followed in Queensland – that is having either money paid into court or for there to be a local bank guarantee. In the circumstances, His Honour refused the security in the form offered.

On appeal[8], the Queensland Court of Appeal upheld His Honour’s decision. In part the Court was reluctant to interfere with the exercise of the discretion of a single Judge.  But in addition to that, a number of comments were made indicating that a plaintiff has no freestanding right or entitlement to provide security in the form least disadvantageous to it.   It had been the general established practice that, provided there was no detriment to a defendant, a plaintiff could provide security in the form most advantageous to it. 

Adopting the Court’s reasoning in Equititrust Limited v Tucker[9], the Court of Appeal found that authority does not support the existence of such a freestanding right or entitlement.  In a more orthodox way the Court of Appeal indicated that there must be a discernible disadvantage accruing to a plaintiff if a particular form of security is ordered which would amount to a countervailing consideration sufficient to warrant ordering security in a form other than the form which would ordinarily be required (that is payment into court or bank guarantee). An example given of the type of disadvantage to the plaintiff which would warrant security other than in the ordinary form would be if the security was oppressive or if it might stifle the litigation.

The gravamen of the Court of Appeal comments is that there would be little role for ATE insurance to play, particularly in circumstances where a representative claim is backed by a litigation funder. It would be difficult to think of circumstances where a litigation funder would not have the capacity to provide security in its own right rather than mitigating its risk by means of ATE insurance.

Specifically, the Court of Appeal did not accept as correct the comments made by Lee J in Perera v Get Swift Limited[10], where His Honour wrote:

In the context of class actions, I would add that security should be provided in a way that is the least disadvantageous to group members who will, albeit often indirectly, likely bear the ultimate cost of the provision of the security.

The evidence in Adeva was that the funding arrangement meant that if security was provided by the funder directly and not by means of ATE insurance, higher payments were required to be made by group members to the funder. In other words, the cost of the funder personally providing security would be greater for group members than if it was provided by means of ATE insurance.  

Perhaps because the action was in its early stages, the additional costs payable to group members was not able to be identified to the Court, although the fact that such additional costs will arise was drawn to the Court’s attention.   It was not found that this fact – on the evidence before the Court – was a sufficient countervailing weight against security being provided in the ordinary manner.

Adeva raises concerns as to how ATE insurance will be viewed in the future by the courts (particularly in Queensland) as an appropriate means of providing security.   Prior to this decision there were a number of authorities in other jurisdictions where the provision of security by ATE insurance through AmTrust was accepted as being appropriate. [11]     

This may demonstrate that a different view to the appropriateness of ATE insurance as a means of providing security may be taken in Queensland as opposed to the general practice adopted in other jurisdictions.  So much may impact on Queensland being a jurisdiction for class actions as risk adverse funders may be more reluctant to commence proceedings in Queensland if their ability to use ATE insurance is uncertain.  Time will tell.

[1] Adeva Home Solutions Pty Ltd v. Queensland Motorways Management Pty Ltd [2021] QCA 198

[2] Rule 10.01 Federal Court Rules 2011; Reg 42.21 of the Uniform Civil Procedure Rules 2005 (NSW); Rule 670(1) Uniform civil Procedure Rules 1999 (Qld)

[3] Equivalent provisions are found in State legislation, an example being s. 103ZA of the Civil Proceedings Act (Qld)

[4] See for example Rajski v Computer Manufacturer and Design Pty Ltd [1982] 2NSWLR 443 at 447-8 per Holland J

[5] [2016] FCAFC 170 at [72]

[6] Ibid Vasiliades at [72] citing Gummow J in Energy Drilling Inc v. Petroz NL (1989) ATPR 40-954 at 50,422

[7] [2020] QSC 361

[8] Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198

[9] [2020] QSC 269 at [53]

[10] (2018) 263 FCR 1

[11] The following authorities have involved provision of security by AmTrust in a manner which has been accepted by the courts as consisting appropriate security for costs: DIF III Global Co-Investment Fund LP & Anor v  BBLP LLC & Ors [2016] VSC 401; Peterson Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699; In the matter of Tiaro Coal Ltd (in Liq) [2018] NSWSC 746

On 18 March 2022, a Valedictory Ceremony was conducted in the Banco Court to farewell the outgoing Chief Justice, the Honourable Catherine Holmes AC. Below are the speeches of the Honourable Justice Fraser (Judge of Appeal) on behalf of the Court, Bar Association President Tom Sullivan QC on behalf of the Bar, and of the retiring Chief Justice respectively.

Read the speeches here:

• the Honourable Justice Fraser
• Tom Sullivan QC
• the Honourable Catherine Holmes AC

On 22 March 2022, a ceremony was held in the Banco Court in which the Honourable Justice Helen Bowskill was sworn in as Chief Justice. Below are the speeches of the Honourable Justice Sofronoff, President of the Court of Appeal, on behalf of the Court, Bar Association of Queensland President, Tom Sullivan QC, on behalf of the Bar, and the new Chief Justice.

• the Honourable Justice Sofronoff
• Tom Sullivan QC
• the Honourable Chief Justice Bowskill

Late last year, the Incorporated Council of Law Reporting Queensland (ICLRQ) launched the ICLRQ Model Law Library, which can be accessed online on ICLRQ’s Queensland Judgments website. The aim of this project was to compile a list of legal texts, across all practice areas, which are regarded as standard works in their field. In effect, the list seeks to produce a model law library for the assistance of legal practitioners. The list of texts comprising ICLRQ Model Law Library was assembled by John McKenna QC (Level 16 Quay Central), Sarah Holland (Higgins Chambers) and Sarah Spottiswood (Level 27 Chambers), with the assistance of members of the judiciary and members of the profession. Samuel Walpole (Level 16 Quay Central) spoke with John, Sarah and Sarah about the project.

An analysis of the Supreme Court of Queensland ’s decision in Kozik & Ors v Redland City Council [2021] QSC 233, noting the decision has been appealed to the Queensland Court of Appeal. The Court of Appeal has reserved its decision.

PRELIMINARY

Where a public authority takes tax paid by a citizen pursuant to an unlawful demand, should the citizen be entitled to repayment of that tax? To answer that question, one must dive into the often-murky waters that lie between the invalid acts of government and the granting of monetary remedies to aggrieved individuals.

The rationale behind the affirmative argument is plain to see. It has been said that there exists ‘manifest injustice’ in allowing moneys unlawfully exacted from a person by a public authority to be retained.[1] It seems ‘strange’ to penalise the innocent taxpayer whose natural instinct is to trust the public authority, who pays tax at the compulsion of the authority’s coercive powers, and whose only fault is that it paid what the authority improperly said was due.[2] Why should the taxpayer bear the burden of the government’s mistake? And why should the government have the benefit of further funding as the fruit of its unlawful action?

On the other hand, it has been claimed (perhaps less convincingly) that to recognise a broad right of recovery for unlawful exactions of tax would be to ‘throw the finances of the country into utter confusion’ and would create ‘fiscal chaos’.[3]

In this country, funds paid in error to public entities have been described as ‘surprisingly difficult to recover’.[4] Courts in Australia and in other jurisdictions have encountered real difficulties in reconciling errors by public authorities with the restitutionary claims of private citizens. To address these concerns, parliaments in many jurisdictions have enacted regimes for the recovery of unlawfully exacted tax.

This kind of statutory regime was the subject of the recent Supreme Court of Queensland decision of Bradley J in Kozik & Ors v Redland City Council[5] (‘Kozik’). The purpose of this article is to analyse the decision in Kozik and its implications. Ultimately, it will be shown that the decision emphasises the importance of the legislature’s role in ensuring that citizens have a right of restitution in circumstances where public authorities make unlawful demands for tax.

KOZIK

The decision in Kozik concerned a representative action brought by the plaintiffs against Redland City Council (‘Council’) to recover payments of special charges.

Statutory framework

Council is a local government in the sense contemplated by the Local Government Act 2009 (Qld) (‘LG Act’) and, as a creature of statute, derives its powers from legislation. The LG Act vests powers in local governments to impose rates and charges on land.[6] While local governments are obliged to levy general rates,[7] they are conferred with a discretion to levy a special rate or charge.[8] The power to levy a special charge is to be exercised by a resolution of councillors.[9]

Whilst a resolution of a local government engages the statutory authorisation to exercise a taxation power, the giving of a rate notice to an owner of land engages the statutory mechanism to make the tax due and payable. If the owner of rateable land owes a local government for overdue rates and charges, the overdue rates and charges are deemed to be a charge on the land.[10]

Importantly, regulations contain what Bradley J referred to as ‘validating regulations’.[11] Where a rate notice includes special rates or charges that are levied on land to which the special rates or charges do not apply, the validating regulations operate to save the rate notice from invalidity, but concurrently oblige the local government to return those special rates or charges.

The effect of the validating regulations is to preserve a local government’s right to collect special charges levied by rates notices in circumstances where the resolutions to levy the special charges are themselves invalid.[12] Affected persons lose what might otherwise be a right to set aside the notice or to ask the court to declare it to be of no effect. But in place of that right, by the same validating regulations, an obligation is imposed on the local government to return the funds paid for the special charges that did not apply to their land.[13]

Factual background

Between June 2011 and July 2016, Council passed resolutions to levy special charges on land adjacent to particular water reserves, including land owned by the plaintiffs (‘the Resolutions’). These special charges were levied to fund capital and operational expenditure on services relating to the reserves.

Council issued rate notices to the owners of the relevant land, including the plaintiffs. The rate notices included the special charges contemplated by the Resolutions. The plaintiffs paid the amount noted on each of the rate notices they received, including the amount of the special charges.

However, it was later discovered that the Resolutions had been passed without compliance with statutory preconditions to the exercise of the authority to resolve to levy a special rate or charge.[14] Upon discovering its error, Council refunded a proportion of the special charges. When the plaintiffs sought to recover the balance of the special charges not refunded by Council, Council asserted that it was not obliged to return the ‘spent’ portion of the special charges on grounds that this amount was spent on services for the benefit of all the those who paid the special charges, including the plaintiffs.

Bradley J did not accept these arguments by Council. His Honour held that Council was liable to each of the landowners under a cause of action in debt for the balance of the special charges paid. Bradley J’s judgment hinged largely upon the operation of the validating regulations. His Honour found that each of the Resolutions were invalid and were therefore ‘incapable of ever having produced legal effects.’[15] Consequently, for the purposes of the validating regulations, the rates and charges specified in the Resolutions did not apply to the relevant land.

In default of returning the balance of the amounts paid for special charges by the group members ‘as soon as practicable’, the effect of the validating regulations (particularly the obligation to return the special rates or charges) was that Council was liable to each of those landowners under a cause of action in debt. As explained by Bradley J, the validating regulations saved the rate notices, but did not ‘validate or give effect to a purported resolution to levy the special rate or charge that is invalid and of no effect’.[16] The requirement in the validating regulations that that payment for the special charges be returned was unqualified.[17]

Additionally, Bradley J held that Council could not avoid or diminish its statutory obligation to return the amount of the special charges to each person who paid them, by a defence that the payers will be unjustly enriched by the return.[18]

DISCUSSION

In the author’s view, the judgment in Kozik is best characterised as an exercise in statutory construction. The outcome (i.e. liability of Council to the plaintiffs under a cause of action in debt) was a product of the taxation regime established under the LG Act framework. It was not a product of any general principle that, where a public authority takes tax paid by a citizen pursuant to an unlawful demand, the citizen is entitled to repayment of that tax.

The obligation to return the payments for the special charges to the landowners who paid them is an essential element of the regulatory scheme and could not be ‘cut down’ by resort to restitutionary principles.[19] It is therefore unsurprising that Bradley J did not consider it necessary to consider whether any unjust enrichment cause of action arose on the part of the plaintiffs. In this sense, the decision demonstrates that common law restitutionary considerations cannot purport to override a statutory regime for recovery that is intended to be exhaustive.[20] In the circumstances, the legislation at issue in Kozik was sufficient to provide a monetary remedy to persons affected by the unlawful exactions of special charges by Council.

But how important are statutory regimes for the recovery of unlawfully exacted tax? Would a right to be reimbursed have arisen in Kozik even in the absence of the validating regulations? As will be shown, in the absence of legislation of this kind, plaintiffs in Australia are confronted with some obstacles in recovering tax paid pursuant to unlawful demands.

English courts have recognised that a claim for unjust enrichment can be grounded solely upon the unlawful act of a public authority. In Woolwich Equitable Building Society v Inland Revenue Commissioners[21] (‘Woolwich’), the House of Lords held that money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authorities was recoverable as of right.[22] There is no need to show a right to restitution on any other ground.

Curiously, no such principle has gained authoritative recognition in this country. Whilst the approach of the House of Lords in Woolwich has ‘been mentioned without criticism, and even approval, in a number of Australian cases’,[23] the High Court is yet to rule on its applicability.[24]

Consequently, in the absence of statutes providing a right of reimbursement like those the subject of Kozik, aggrieved taxpayers must rely on orthodox restitutionary principles to recover tax the subject of unlawful demands and, in particular, must satisfy the standard elements of unjust enrichment. [25] To succeed in a claim for unjust enrichment, a plaintiff must establish, amongst other things, that the enrichment of the defendant occurred by virtue of one or more recognised classes of ‘qualifying or vitiating’ factors (i.e.  mistake, duress, illegality or failure of consideration) by reason of which the enrichment of the defendant is treated by the law as unjust.[26]

It is conceivable that, had the validating regulations not applied to the special charges the subject of Kozik, the plaintiffs in Kozik could have asserted that the payment of the special charges was made under a mistaken belief of validly and, in that sense, gave rise to an obligation on the part of the public authority to make restitution. Additionally, plaintiffs could have sought to establish that they paid the special charges under duress, that is – a reasonable apprehension that Council would exercise extra-curial means of harming the plaintiff’s interests.  

However, the success of these arguments in such a hypothetical claim would be dependent on evidence of the plaintiffs’ intention for making the payments and not on the legality of Council’s actions. Arguably, these avenues to establish a right to restitution are more arduous from the perspective of a plaintiff. Ultimately, in this sense, the decision Kozik emphasises the importance of the legislature’s role in ensuring that citizens have a right of restitution in circumstances where public authorities make unlawful demands for tax.

[1] Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] 2 AC 337 at 372 per Lord Walker citing ‘Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments’ (1994) (Law Com No 227).

[2] see Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 at 172 per Lord Goff.

[3] to use of the wording of Isaacs J in Sargood Bros v Commonwealth (1910) 11 CLR 258 at 303.

[4] Greg Weeks, ‘The Public Law of Restitution’ (2014) 38(1) Melbourne University Law Review 198 at 200 citing Steven Elliott, Birke Häcker and Charles Mitchell, ‘Introduction’ in Steven Elliott, Birke Häcker and Charles Mitchell (eds), Restitution of Overpaid Tax (Hart Publishing, 2013) 3, 3.

[5] Kozik & Ors v Redland City Council [2021] QSC 233.

[6] see Local Government Act 2009 (Qld) Chapter 4, Part 1.

[7] Local Government Act 2009 (Qld) s 94(1)(a).

[8] Local Government Act 2009 (Qld) s 94(1)(b)(i).

[9] Local Government Act 2009 (Qld) s 94(2).

[10] Local Government Act 2009 (Qld) s 95.

[11] Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) s 32 (repealed); Local Government Regulation 2012 (Qld) s 98.

[12] Kozik & Ors v Redland City Council [2021] QSC 233 at [111].

[13] Kozik & Ors v Redland City Council [2021] QSC 233 at [88].

[14] In particular, council had omitted to adopt an ‘overall plan’ before, or at the same time as, council resolved to levy the special charges of the Local Government Regulation 2012 (Qld) (after 14 December 2012), and the repealed Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) (before 14 December 2012).  

[15] Kozik & Ors v Redland City Council [2021] QSC 233 at [39].

[16] Kozik & Ors v Redland City Council [2021] QSC 233 at [41].

[17] other than requiring repayment ‘as soon as practicable’.

[18] Kozik & Ors v Redland City Council [2021] QSC 233 at [99].

[19] Kozik & Ors v Redland City Council [2021] QSC 233 at [90] citing Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285, 306 per Gaudron J.

[20] See Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 317 per McHugh and Gummow JJ.

[21] Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70.

[22] Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 at 172 per Lord Goff.

[23] Prygodicz v Commonwealth (No 2) [2021] FCA 634 at [147] per Murphy J referring to State Bank of New South Wales Limited v Commissioner of Taxation for the Commonwealth of Australia (1995) 62 FCR 371 at 378 per Wilcox J; Chippendale v Commissioner of Taxation (1996) 62 FCR 347 at 366 per Lehane J.

[24] Commentators have explained this to be a product of the ‘somewhat conservative’ nature of Australian courts: Greg Weeks, ‘The Public Law of Restitution’ (2014) 38(1) Melbourne University Law Review 198 at 203.

[25] The approach to determining claims of unjust enrichment in a claim for money had and received was summarised by French CJ, Crennan and Kiefel JJ in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 516.

[26] Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 516 per French CJ, Crennan and Kiefel JJ.

Introduction

As observed by Mason CJ in March v E & M H Stramare Pty Ltd[1] in the often cited passage as to the process of consideration of causation being undertaken by way of ‘common sense analysis’, the issue of causation in law is different to that in philosophy or science. In the latter, causation is explained by the relationship between conditions and occurrences. For example, a cricket ball impacting on and then shattering a window.

In law the question of causation looks first to the whether the conditions resulted either in or contributed to the occurrence (causation in fact) and once determined whether any legal responsibility or liability should be apportioned to those who caused the ball to be thrown (causation in law). Such issues may include the age and legal capacity of the person who threw or hit the ball, the owner of the window, the owner of the ball and the likelihood of the damage resulting from the act. Causation in law also includes issues of foreseeability and remoteness and is determined once factual causation is determined on the balance of probabilities.

This article will focus on the first issue, that of factual causation and the obligation to plead a counterfactual, or allegation contrary to fact, being that conduct which a party asserts should have occurred in relation to an event in order to avoid a breach of duty or contract and the subsequent damages that they assert flowed from it. For the example above, this may be the reasonableness of setting up a bowling machine in the hallway of a house and what steps should or could have been taken to avoid the ensuing damage. Those steps, that could or should have been undertaken, form the counterfactual.

Counterfactual Meaning

In Delaforce v Simpson-Cook[2], in the context of establishing the loss of chance arising from a parties attempt to depart from its prior representation and to which estoppel is claimed, Allsop P described a counterfactual as “..an alternative, complex and now hypothetical body of human conduct”. In ACCC v Metcash Trading Ltd[3], Emmet J described a counterfactual or “counterfactual analysis” as the process of examination of different outcomes as between scenarios of a “future with” where the event occurred and a “future without” where the event did not occur and where the hypothetical body of human conduct is considered.

It is the latter, “future without” counterfactual, used to establish liability and/or loss, which is the focus of this article. Each counterfactual may be alleged to commence at a different time or place or be the result of some other condition such that it differs from other hypothetical courses and each is required to be pleaded as alternatives to the other.

Identification of Risk

The first issue that arises in the consideration of whether a proposed defendant caused or contributed to the damage suffered by the plaintiff is the identification by the pleader of the ‘risk’ of injury that the defendant was duty or contractually bound to exercise reasonable care to avoid as opposed to the avoidance of harm to which there is no such obligation[4]. A similar process is engaged in analysis of acceptance of risk and remoteness in relation to damage under the first and second limb of Hadley v Baxendale[5].  

It seems clear from the High Court decision in Roads and Traffic Authority of New South Wales v Dederer[6] (Dederer) that the determination of the risk is critical to advancing a matter as all propositions are derived from it. The correct identification of the risk, even by the most learned, can be equally elusive.

In that case the respondent, Mr Dederer, was 14 at the time he when he was badly injured while jumping off a public bridge into water. The Full Court found that the ‘risk’ was the possibility of someone jumping from the bridge which the RTA had erected. The High Court found that the ‘risk’ was not the jumping from the bridge, but the impact of Mr Dederer landing in shallow water which was compounded by the shifting sands of the estuary causing the depth of water to vary.

As to the identification of risk, Gummow J observed that “It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.”[7]. This was followed by Gotterson JA[8] in Boon v Summs of Qld Pty Ltd [9] where his Honour went further at [29] stating that “The guidance given by Gummow J in Dederer requires a precise identification here of what it was that exposed the appellant to risk of injury…”  

In that case, Mr Boon had received a cut to three of his fingers from a Leatherman multi-tool, the knife of which had been used to peel an orange, the learned trial judge had identified the risk as being that “… of a person coming into contact with the knife as Summerfeldt was using it to peel an orange or had just used it to peel an orange during a meal break”.[10] The Court of Appeal found that the risk “ … was the conduct of Mr Summerfeldt in rising from a crouched position with a knife in his hand, the knife having a long, sharp blade which was unsheathed. The risk of injury to the appellant arose because, as Mr Summerfeldt was moving to an upright stance, the blade might have struck a passer-by such as the appellant.”[11]

The importance of identifying the risk cannot be overstated. It is difficult to see how a counterfactual can be established if it doesn’t respond to the cause of the breach or loss to which the ‘risk’ is directed. The asserted risk will drive the conduct of the case and evidence to be sought, including that of experts. Once the risk is identified, normally as a result of substantial conversations with chamber-mates as to cause and effect at various points along the factual timeline, the next task is committing our hypothesis to paper in the form of a pleading.

Pleading Rules

The obligation on pleaders to articulate their case is required by operation of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) including rules 149, 150, 155, and 158 and other legislation including the Civil Liability Act 2003 (Qld) (CLA). As to the operation of the CLA, as observed by Fraser JA in Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd[12], it is required to be applied in all cases in which it is applicable. For those unfamiliar, this is not restricted to matters of personal injury but includes circumstances where the loss is purely limited to property damage.

Pleading of a duty or contractual obligation and its alleged breach, with nothing further, will not satisfy the pleading obligations of the UCPR if a counterfactual is required to be pleaded. It is not sufficient to broadly open the issue at trial, with a view to drawing out an arguable counterfactual through cross examination. As was found in Oztech Pty Ltd v Public Trustee of Queensland (No 15)[13] (Oztech) the failure to expressly plead the counterfactual will result in the issue not being alive on the pleadings and evidence not being admitted in relation to it.[14]

The full court in Oztech had reason to consider a line of questioning as to the receipt of an ASIC notification by the Public Trustee which sought to examine the reasonableness of the Public Trustee’s response in failing to read it or take other action. The issue was that “…no part of the appellants case involved a failure to read the 6 June notification.”[15] The appellant alleged that the respondent had breached a duty owed to it, however the failure to act on the ASIC notification was not pleaded or particularised on the pleadings although understood to have been raised in an expert report tendered at the hearing.[16] The line of questioning was objected to and disallowed by the trial judge.

In considering the appeal, the court had reason to review the general principles of the role and requirements of pleadings at [28] – [35] and at [30] and [31] observed that:

There should be no doubt about whether any particular cause of action is relied upon. At a minimum, the pleading should be pellucidly clear about the causes of action, or claims, relied upon by the applicant, including any claims made upon an alternative hypothesis…

Clarity in pleading is by no means an unattainable objective, even in the most complex litigation. Often the elements of a cause of action require careful and precise identification to ensure that the relevant integer is properly characterised having regard to the context in which the claim arose. The pleading should always be a bespoke articulation of the dispute between the parties, even though the warp and the weft of its fabric may be the same as other claims based upon the same, or a similar, cause of action.[17]

The obligation to clearly and unambiguously plead a causation hypothesis, whether singular or as alternatives, was considered by Bond J (as Bond JA then was) in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 7)[18]  at [18]where his honour extracted an earlier judicial observation he made in Lee v Abedian[19]:

The defendants are entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity and which, at least arguably, establishes the requisite causal connection between the implementation of the conspiracy and the suffering of loss. If there is more than one causation hypothesis, then the statement just made must apply to each one. The pleading device of merely cross-referring back to events alleged to have happened is unlikely to be a satisfactory way of addressing a proper plea of causation. There must be a direct and unambiguous identification of the material facts relied on to establish the causal link which the law requires. And it must be something which makes narrative sense. The defendants should not be required to cherry pick through the pleading to work out what the case is that they have to meet in this regard.

His honour, adopting the judgment of the Full Court of the Federal Court in Oztech summarised the authorities at [21]:

The result is that where a party’s causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading. This should be done with the degree of clarity referred to in Oztech Pty Ltd v Public Trustee of Queensland. The pleading so framed must at least arguably establish a reasonable inference that the impugned conduct and the claimed loss stand to each other in the relation of cause and effect.

(emphasis added)

Finally – as two members of the High Court[20] emphasised in Berry v CCL Secure Pty Ltd[21] – the obligation to plead the counterfactual burdens both sides of the record (at [72]):

The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and … to define the issues for decision”; Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the [pleaded] cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the [pleaded] action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial (Banque Commerciale at 287), choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.

(emphasis added)

Conclusion

It is clear from the authorities above and the nature of litigation governed by the UCPR that a party’s case is required to be stated in a clear and unambiguous manner on the face of the pleadings including any counterfactual alleged.  This process is best undertaken once the ‘risk’ is properly considered and identified.

The pleading of the counterfactual must place the other party squarely on notice as to the conduct that it is said to have been open to them and which they should have undertaken in order to either avoid the breach or limit the loss. [22]   Where there are alternative counterfactuals, each is required to pleaded with clarity and precision or risk the exclusion such evidence at trial.

[1] March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509

[2] Delaforce v Simpson-Cook [2010] 78 NSWLR 483 at 486 [5]; recently considered in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 396 ALR 27 as to the issue of whether evidence of a counterfactual is required in maters where loss of chance arising from a representation and claim in estoppel see McKerracher and Colvin JJ at [217] –[221]

[3] ACCC v Metcash Trading Ltd (2011) 282 ALR 464 at [130]

[4] Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at 348 [51]

[5] (1854) 9 Exch 341 at 354

[6] See f/n 4 above

[7] At 351 [59]

[8] with whom Holmes CJ and Applegarth J agreed

[9] Boon v Summs of Qld Pty Ltd  [2016] QCA 38

[10] Ibid at [19] extracting paragraph [75] of the original judgement

[11] Ibid at [29]

[12] Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at 331 [23]

[13] Oztech Pty Ltd v Public Trustee of Queensland No 15 (2019) 269 FCR 349, Middleton, Perram and Anastassiou JJ

[14] C/f with Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 f/n 3

[15] Oztech f/n 13 at [25]

[16] The obligation to establish the facts contained in an expert report falls outside of the scope of this paper. 

[17] The Court at [34] extracting the judgement of Allsop J in White v Overland (2001) 67 ALD 731; [2001] FCA 1333 at [4] and at [36] the judgement of Mason CJ and Gaudron J in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286-287

[18] Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 7) [2019] QSC 241

[19] Bond J observing that the point had been made in his earlier decisions in Lee v Abedian [2017] 1 Qd R 549 at 572 at [81] (f) and in Chan v Macarthur Minerals Ltd [2017] QSC 13 at [39].

[20] Gageler and Edelman JJ

[21] (1920) 381 ALR 427

[22] See the judgment of Derrington J in Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2020] FCA 1018 at [85] where his Honour speculates as to a counterfactual arising on the facts and its use in assessing damages before stating the requirement that such allegation be expressly pleaded.