QLS Netty Comp – 19 July 2024

The third year of the QLS netball competition was held on Friday 19 July. The Bar Flies remain undefeated but were robbed of a chance to defend their 2023 title, being pipped at the post on a points countback to finish second in their pool.

The first game was against Bennet & Philp Lawyers and the Flies were victorious 16-7.  Their second game against Sparkenado (Sparke Helmore) saw them smash it out winning 21-5. Their final game against Supreme on the Court, had them victorious at 17-2.

Rookie of the tournament goes to Pav Zielinski, for his excellent shooting skills.  The combined defensive unit of Jane Menzies and Alex White made it very difficult for our opponents to score. Thanks also to Dominique Grigg who did a wonderful job herding the cats all night and we really appreciated having her there and coach/manager.

Back – Stewart Webster, Alex White, James Cacciola, Evangelia Douventzidis, Chloe Dickson, Jane Menzies, Pav Zielinski, Christian Jennings KC. Front – Bellah Brewer, Dominique Grigg, Caite Brewer, Fiona Lubett

Tri-Comp – Bar v Solicitors v UQ Students

This year was the second year of the tri-comp between The Bar Flies v Solicitors v UQ Students. It was held on 11 August at UQ.

The Bar Flies won both their round games, making it into the final against the Solicitors, which they won convincingly 13-6.

Bellah Brewer, James Cacciola, Kimmy, Christian Jennings KC, Caite Brewer, Pav Zielinski, Georgia Kiss, Amy Lauren and Andrew Skoien

Clearly our new uniforms and bibs are helping to keep us victorious, thanks to the BAQ for their support there. We are looking into an inter-state competition in 2025, potentially as part of the Sports Law Conference, so stay tuned.

Anyone interested in joining the Bar Flies squad please contact Caite Brewer on cbrewer@qldbar.asn.au.

There is a short list of collective nouns for barristers:

1. A “boast” of barristers.
2. A “wiggery” of barristers
3. A “bar” of barristers.
4. A “chamber” of barristers.

Each has a plain origin, alluding to the practices and trappings of counsel. The first two, undoubtedly, are redundant. The last two are part of modern idiom.

For barristers of the rank of silk, the collective noun is a “purse” of silks. This was derived, apparently,  from expensive women’s purses – in the late nineteen century – being manufactured from silk.

Barristers are known to gossip.  The germane collective noun is a “gaggle” (also a “dish”) of gossips.  This has its genesis in the Harley Manuscript of the early fifteenth century, the allusion being to cackling geese.

As to barristers involved in criminal prosecution, “An Exaltation of Larks;  the Ultimate Edition” by James Lipton (Penguin, 1993) identifies – at page 240 – the collective noun as a “presumption” of prosecutors.

There is a raft of collective nouns for lawyers:

1. An “eloquence” of lawyers.
2. An “argument” of lawyers.
3. A “disputation” of lawyers.
4. A “greed” of lawyers.
5. A “huddle” of lawyers.
6. A “quarrel” of lawyers.
7. An “escheat” of lawyers.

The first of these harbours the strongest historical foundation, albeit now – like the others – is redundant.  It has its genesis in the 1486 “The Book of St Albans”.  In “An Unkindness of Ravens – the Book of Collective Nouns” by Chloe Rhodes (Michael O’Mara Books Limited, 2014) a further explanation of such origin – referable, plainly, to lawyer advocates – is furnished:

By the fourteenth century the four Inns of Court – the Inner and Middle Temples, Lincoln’s Inn and Gray’s Inn – had been founded in London to provide formalised training for lawyers.  By the end of the fifteenth century pleaders had come to be called barristers and a structured system of education in the law was in place. Students would spend 7 years at the Inns of Court, studying, attending lectures and watching established pleaders at work, absorbing both the ethos of their profession and the discursive arguing style it is known for to this day.  With the success of their career depending entirely upon their ability to convince a judge of their point, eloquence was the most important attribute a lawyer could have.

Mediation is a modern sphere of practice for lawyers. The germane collective noun – harbouring plain origin – is a “compromise” or a “caucus” of mediators.

Ms Rhodes goes on to refer to the collective noun of a “sentence” of judges.  She attributes that – at pages 42-43 – to the the appointment of assize judges in the twelfth century, such judges perceived as being harsh in the sentences they delivered, ranging from a stint in the stocks to public execution.  The modern noun is a “bench” of judges.

The Book of St Albans is also identified by Ms Rhodes – at pages 23-24 – as the genesis of the collective noun for jurors:  a “damning”.  Such Book identifies same by the language “a dampnying of jourrouris”.  A “damning” verdict by a jury was one that found the person charged guilty of the crimes the subject of charge.  The word comes from the old French word “dampner”, in turn from the Latin “damnare”, meaning to injure or condemn.  Ms Rhodes writes:

… [I]n the God-fearing Middle Ages, it implied that your crimes made you worthy [only] of eternal damnation.

The modern noun is a ”panel” of jurors.

A group of court witnesses is a “legion”, “stare”, “stand”, “oath” or “blessing” of  witnesses.

There is but one collective noun for lawyers’ clients that the writer’s research can locate:  a “moan” of clients. The less said about that the better!

The collective noun for those in court custody, or criminally convicted, is a “pity” of prisoners. So much is derived from the book “The Hors, Shepe and the Ghoos”: Mr Lipton at page 83. In modern mores, it would be a “dock” or “cell” of prisoners.

Mr Lipton – at page 240 – identifies the collective noun for acquittals is a “deliverance” of acquittals. This was founded, he writes, in bygone UK criminal practice exchange between court clerk and prisoner, whereby in response to the prisoner formally declaring they wished to be tried “By God and country”, the clerk responded “God give you a good deliverance”.   

Finally, as to those involved in the service of legal process, Mr Lipton – at page 83 – identifies a “shadow” of  process servers.

In the premises, the writer ventures that the collective noun for legal practice collective nouns ought be a “judgment”.

On 16 July 2024 the Law Society Gazette (UK) reported an historic first, as a lady chief justice swore in a female lord chancellor in a packed court at the Royal Courts of Justice in London.

A link to the article by Bianca Castro is here.

Did you know that famed US Army General Douglas MacArthur has a degree from UQ? Having established his headquarters in Brisbane during World War II, MacArthur was awarded a Doctor of Laws (honoris causa) in 1945. For the first time, Contact reveals the full correspondence between MacArthur and then-UQ Chancellor Forgan Smith in the lead up to the conferral.

The MacArthur Files

As a barrister, your financing requirements are unique, and you may encounter some challenges when it comes to borrowing money.

For self-employed practitioners, income often varies and can be irregular month to month. This complexity can pose challenges when borrowing money as lenders typically favour predictable and steady income streams when assessing applications, regardless of your tax bracket. Securing a loan can be challenging due to the stricter criteria imposed on such self-employed applicants from lenders.

The following is a summary of key information and tips for barristers to keep in mind when seeking finance.

Key factors to consider

• Servicing policy: As a self-employed professional, most lenders will require two years of tax returns when assessing you for a loan. However, some lenders are more flexible, accepting just 12 months of financials, including drafts from the most recent financial year.
• Increase in income: If your income has increased in the current financial year, many lenders may still base your borrowing capacity on previous years’ tax returns. However, there are lenders who are willing to consider the increased income in the current financial year on an exception basis.
• Tax debts: Major and second-tier lenders typically do not accept applications with outstanding tax debt or may impose harsh repayments against the tax debt in their calculations, which can significantly impact your borrowing power.
• Barrister specific policies: Consider choosing a lender with a credit policy specifically tailored for barristers. Policies vary from lender to lender, so it’s important to work with one that understands the unique aspects of your profession and income.

Types of lending facilities and what they mean for you as a barrister

Home loans: A home loan is a loan secured by a mortgage over property for owner-occupied purposes. Home loans typically involve principal & interest repayments.

Whilst banks typically require a 20% deposit for borrowers to avoid Lender’s Mortgage Insurance (LMI), barristers can access lower deposit options with some lenders without paying this fee.

Barristers in most cases require a deposit of only 10% of property value and are not required to pay LMI. This is because barristers are essential to society and therefore typically have a high level of job security. As a result, lenders are more willing to offer certain home loan benefits.

For example, buying a median-priced home in Brisbane for $925,000 with a 10% deposit would typically incur an LMI fee of over $20,000. Purchasing without this limitation is a significant benefit, and applies to both owner-occupied and investment properties.

Investment Loans: An investment loan is a loan secured by a mortgage over property for investment purposes. Investment loans are typically eligible for interest only repayments for tax purposes. As with home loans, barristers are required a deposit of at least 10% of property value with waived LMI. It may also be possible to use equity in existing properties to borrow 100% of property value.

Overdraft: An overdraft refers to a credit facility linked to a business transaction account, allowing you to draw your account into arrears to a set limit. Overdrafts are useful for covering short-term cash flow requirements. Repayments usually include principal & interest and can be structured to time periods suited for you.

Chambers Loans: Chambers finance is a loan secured by a General Security Agreement (GSA) over shares in chambers. Some banks will lend up to a 100% of the chambers’ value. This is a total unsecured facility, not tied to any assets. Chambers loans can also be secured against residential property if available, which can result in lower repayments and interest rates, greater borrowing capacity and longer loan terms. Repayments may be structured as interest only or principal & interest.

How do I get started?

As a barrister, your financing needs are bespoke, complex in nature and differ to that of the average borrower. Whether it is to coordinate residential or investment home loans, restructure debts or organise loans for chambers, it’s important to have the right experts by your side.

As Australia’s only mortgage broking service exclusively for lawyers and barristers, Legal Home Loans understand your profession and know how to leverage your elite standing with lenders like no other. With access to over thirty lenders, we can help you find a solution that best suits your unique situation. We’ll coordinate your application from start to finish with a dedicated specialist with you every step of the way.

Plus, as a member of the Bar Association of Queensland, you’ll receive a $500 cashback at loan settlement, thanks to the Partner Benefits program.*

Get in touch with Legal Home Loans today for more information.enquiries@legalhomeloans.com.au(02) 9030 0420

*Disclaimer: Rebate applies to the member’s first loan settled with Legal Home Loans. Legal Home Loans will honour the highest valued rebate applicable to the client. Limit of one rebate per loan in the case of multiple qualifying applicants. Loan value must exceed $250,000 to be eligible. Eligibility will depend on your unique situation. To find out what is possible for your needs, please contact us and speak to our specialists for a tailored solution. This page provides general information only and has been prepared without taking into account your objectives, financial situation or needs. We recommend that you consider whether it is appropriate for your circumstances and your full financial situation will need to be reviewed prior to acceptance of any offer or product. It does not constitute legal, tax or financial advice and you should always seek professional advice in relation to your individual circumstances.

In Joslyn v Berryman [2003] HCA 34; 214 CLR 552; 198 ALR 137; 77 ALJR 1233 (18 June 2003) – the well-known High Court decision relating to contributory negligence – the High Court considered the term “drunk”, with the transcript recording the following exchange between the Court and Counsel for the Appellant (S122/2002) Mr D F Jackson QC:

A link to the case is here.

Cambridge Dictionary (online) says:

verb

to refuse to accept something as the truth:

certainly there’s no gainsaying (= it is not possible to doubt) the technical brilliance of his performance.

…

Merriam-Webster Dictionary says:

verb

1 to declare to be untrue or invalid

2 Contradict, oppose

did not dare to gainsay the king

gainsayer noun

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023),Edelman J said:

129. As to the prudential and pragmatic reasons for the subject judge to make the determination concerning bias, this Court recognised in Ebner v Official Trustee in Bankruptcy that there may be circumstances in which a judge will decline to sit even if the judge has not affirmatively concluded that they are disqualified[184]. This is sometimes described as a prudential principle. Prudence is a loose term which encompasses a value judgment based upon a combination of factors: the misnomer “duty to sit”, which is really a principle that a judge should not too readily disqualify themself, particularly where there is not a large pool of available alternative judges; and case management concerns including delays, and other issues including the inconvenience that might result if, after a lengthy trial, a finely balanced decision not to recuse were found on appeal to be incorrect[185].
130. The principle that the single judge who is to hear a matter is also the person who should first decide any issue concerning their own bias does not gainsay the possibility of any appeal or application for judicial review. It has been said that a decision by a single judge not to recuse themself is not reviewable because it involves no order of the court commanding any party to do anything[186]. Whether or not this is correct, the judge might be asked to make a declaration for the purposes of an appeal and, in any event, any orders made by the judge are, in principle, capable of appeal or judicial review on the ground of bias or apprehended bias[187].

….

R v Omid [2012] QCA 4 (3 February 2011), McMurdo P said at [51]:

…. As the appellant (through Mr Williamson) admitted at trial, he was the only person in the house when the fire started, the prosecution case against him was compelling unless he called other expert evidence to gainsay the opinions of the prosecution expert witnesses. So much is clear from the judge’s summation for the jury of the defence case.[8]

The language “Hornbook law” – often used synonymously with “black letter law” – refers to a legal principle or concept that has been long established and accepted as part of the law.

In United States education, a “Hornbook” is a one volume legal treatise written primarily for law students on subjects typically covered by a law school course.

The Macquarie Dictionary (Online) defines “hornbook” as “a primer, or book of rudiments”.  In turn it defines “primer” as “any, often small, book of elementary principles:  A primer in phonetics.

The following references to “Hornbook law” may be found in the authorities:

Alexander v Minister for Home Affairs (2022) 276 CLR 336 at [198] per Kiefel CJ, Keane and Gleeson JJ:

The statement quoted above from the joint judgment in Chetcuti should not be read as rejecting a century of hornbook constitutional law. Rather, and consistently with the acknowledgement in the previous paragraph in Chetcuti that a law of the Parliament might need to be disapplied to the extent of “constitutional overreach” by treating “all non citizens as aliens”, the statement in Chetcuti should be understood as saying no more than that the Commonwealth Parliament has power to set the criteria for who will, and who will not, be a statutory alien and the consequences of that, provided always that the exercise of that power is within the boundaries of the constitutional concept of “alien”. In oral submissions, the defendants quite correctly accepted that position, conceding that the aliens power “cannot be used to treat, as an alien, someone who cannot answer that description on the ordinary understanding of the word”.

Yi v Park [2024] NSWCA 187 at [43] per Bell CJ:

There being no loan in or around 2012 in relation to the First Agreement, there was therefore no loan which was repayable on demand as at 13 July 2017 when the Loan Agreement was entered into, and thus no act of forbearance which was capable of supplying the consideration for the Loan Agreement. It is hornbook law that past consideration is not good consideration: Eastwood v Kenyon (1840) 11 Ad & E 438; SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [69].

The Macquarie Dictionary defines ‘jejune’ as ‘unsatisfying to the mind; dull; boring’. The Oxford Compact Dictionary defines it as ‘naïve and simplistic’ or (of writings) as ‘dull’. Its Latin root is ‘jejunus’ meaning ‘fasting, barren’.

Judicial use seems to fasten more on the ‘unsatisfying to the mind’ or ‘naïve and simplistic’ meanings.

As an example of the former, it has been used to describe deficiencies in evidence. For example, in an interesting decision concerning judicial advice to the trustees as to the sale of the estate of the late reggae legend Bob Marley, the Privy Council in Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198, considered the appropriate expert evidence as the market for musical rights, and said (at 206 per Lord Oliver of Aylmerton) (emphasis added):

Mr Strauss’ view, which was never contradicted, was that the normal means of offering musical rights for sale was by advertising in two named magazines circulating in the United States and the United Kingdom as well as by informing legal and accounting firms representing clients in the music business and making direct contact with record companies or publishers. It was never contended by the respondent that any public offer of the rights was ever made and the evidence of exploitation of the market is jejune in the extreme, consisting as it does of two general unparticularised statements.

Australian courts have also occasionally used it, for example:

R v Abdirahman-Khalif (2020) 271 CLR 265 at [76]-[77] (Bell, Keane, Nettle and Gordon JJ) (emphasis added, citations omitted):

The trial judge’s remark that he assumed that a submission made by defence counsel was put “with all seriousness” was as follows:

“[W]ithout going into the detail at all at this stage, I just draw your attention to a contrast, as it were, between the defence and the prosecution and you always have to look at both sides of the coin.

So yesterday in the context of the Mombasa matter … and the question of the [respondent’s] knowledge of it beforehand, [defence counsel] said this to you … : ‘if [the respondent] knew about it, members of the jury, if she’s in some kind of conspiracy with these girls [the Baaqiya sisters], you may well ask why did she not go to Kenya? Why go to Istanbul? When she knows all of this is going to be happening, she would be off to Kenya to be with her mates to blow up the police station and become a green bird.’ That was put with all seriousness, I assume, by [defence counsel], this is a serious case.”

(emphasis added)

That was exceptionable. The tone of the remark was snide, and, as this Court has indicated more than once in recent times, it is not the proper function of trial judges to pass comments, particularly snide comments, regarding the quality of counsel’s arguments. That said, however, the argument as put by defence counsel was evidently so jejune that it cannot reasonably be supposed that the trial judge’s remark might have led the jury to a different perception of the argument, or of the defence case more generally, than they would have arrived at in any event. Despite the impropriety of the remark, it was in effect no more than an unfortunate observation in the course of a detailed summing up, and, therefore, not productive of a miscarriage of justice.

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [22] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) (emphasis added, citations omitted):

The material put before the primary judge by the Commissioner included information as to the revenue and assets of the CFMMEU. This material showed that the CFMMEU was well-resourced, having more than sufficient means to pay any penalty that the court might have been disposed to impose. The material also showed that it had a troubling history of contraventions of the Act, including s 349(1).

In this latter regard, the primary judge noted that the CFMMEU, since around the year 2000, had contravened civil remedy provisions of the Act or its predecessor on approximately 150 occasions, and s 349(1) on at least seven occasions. The primary judge observed that the CFMMEU was, notoriously, a “serial offender” in that it had historically acted in disregard of the law and appeared to treat the imposition of pecuniary penalties in respect of those contraventions as “little more than the cost of its preferred business model”. The primary judge found that the CFMMEU “favours a policy of ‘no ticket, no start’ and holds that philosophy … as preferable to the law of the land” and that “the misconduct in this case is but the latest example of the Union’s strategy ‘ … to engage in whatever action, and make whatever threats, it wishes, without regard to the law … ’”.

On appeal to the Full Court, the CFMMEU did not dispute, and the Full Court did not disturb, these findings. In this Court, the CFMMEU did seek to cavil with these findings, but identified no basis on which this Court might properly ignore them. It was also argued for the CFMMEU that the gravamen of the contraventions of s 349(1) of concern here was not the furtherance of the CFMMEU’s “no ticket, no start” policy but rather misrepresentations about the existence and effect of such a policy. But the point is that the misrepresentations were made with the evident intention of ensuring the de facto implementation of the CFMMEU’s “no ticket, no start” policy on site. It is distinctly jejune to suggest that the contraventions were not in furtherance of the CFMMEU’s policy.

Griffith University v Tang (2005) 221 CLR 99 at [58] (Gummow, Callinan and Heydon JJ) quoting Sedley LJ in Clark [2000] 1 WLR 1988 at 1992 (emphasis added, citations omitted):

Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, ” jejune and inappropriate“.

Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873 at [19] (Lee J) (emphasis added):

In these circumstances, unlike some other cases where decisions are impugned, it is unrealistic to assume uncritically that the decision making process adopted, and the documents relating to or recording the decision, materialised spontaneously through some sort of organic process or represent a sufficiently complete record of relevant communications. Even early on, there was an awareness that any business record created may end up being subject to subsequent critical scrutiny. This is not to say it is open on the evidence to find that documents were deliberately created or drafted so as to dissemble the true position, but it would be jejune to proceed on the basis that the documents can be assumed as representing a spontaneous and complete picture. …

The Cambridge Dictionary says:

Specious (adjective)

seeming to be right or true, but really wrong or false:

a specious argument/claimspecious allegations/promises

The Macquarie Dictionary (4th ed) says:

Specious (adjective)

1. Apparently good or right but without real merit; superficially pleasing: specious arguments.
2. Pleasing to the eye, but deceptive.
3. Obsolete pleasing to the eye; fair.

[Middle English, from Latin speciosus fair, fair seeming, from species sort, kind]

In Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992), Deane and Gaudron JJ said:

53. In the very early days, the explanation of the disregard of Aboriginal claims and the resulting dispossession and conflict may have been that the new arrivals were ignorant of the fact that, under pre-existing local law or custom, particular tribes or clans had established entitlements to the occupation and use of particular areas of land. That explanation is not, however, a plausible one in respect of later events. Increasingly, the fact that particular tribes or clans enjoyed traditional entitlements to the occupation and use of particular lands for ritual, economic and social purposes was understood. Increasingly, that fact was even acknowledged by government authorities and in formal despatches(286) See, e.g., the examples given by Reynolds, The Law of the Land, (1987), Chs.III and V. Thus, on 14 March 1841, James Stephen, probably the most knowledgeable of all the nineteenth century permanent heads of the Imperial Colonial Office, noted on a despatch received from South Australia(287) Colonial Office Records, Australian Joint Copying Project, File No.13/16, Folio 57:

It is an important and unexpected fact that these Tribeshad proprietary rights in the Soil – that is, in particularsections of it which were clearly defined or well understoodbefore the occupation of their country”.

Two years later, Stephen wrote(288) ibid., File No. 18/34, Folio 106 (9 June 1843) of the “dispossession of the original Inhabitants”.

54. Nor can it be said that it did not occur to the Imperial and local authorities that the dispossession of the Aboriginal inhabitants might involve the infringement of rights recognized by the common law. The story of the development of South Australia, including the ineffective reservation in the Letters Patent of 1836(289) Appendix to Reprints of the Public General Acts of South Australia 1837-1936, vol.8, pp 830-831 protecting “the rights of any Aboriginal Natives (of South Australia) to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any land therein now actually occupied or enjoyed by such Natives”, demonstrates that the contrary was the case(290) See, e.g., the sources referred to in Reynolds, op cit, pp 103-120. Another example is apposite. In Williams v. Attorney-General for New South Wales(291) (1913) 16 CLR, at p 439, Isaacs J. referred to Governor Bourke’s Proclamation approved by the Colonial Office, refusing to recognize Batman’s 1835 Treaty with the local Aboriginal elders for the purchase of a large tract of land on the shores of Port Phillip, as a “very practical application” of the doctrine that the Crown had acquired full legal and beneficial ownership of all the lands of Australia. Examination of the contemporary documents discloses that the purchasers obtained advice from no less an authority than Dr. Stephen Lushington(292) Then a leader of the English Bar and judge of the London consistory court and subsequently the eminent English Admiralty Judge and a member of the Judicial Committee of the Privy Council. In an Opinion dated 18 January 1836(293) See HRA, (1923), Series 1, vol.18, p 389 (emphasis added), Dr. Lushington advised that the purported grants of land by the Aborigines were “not valid without the consent of the Crown”. He added(294) ibid that he did not think “that the right to this Territory is at present vested in the Crown” but that it was “competent to the Crown to prevent such settlements being made by British Subjects, if it should think fit”. Presumably, Dr. Lushington was recognizing the radical title and associated right of pre-emption of the Crown but acknowledging the rights in relation to the territory of the Aboriginal occupants. When a copy of Dr. Lushington’s Opinion was forwarded to the then Secretary of State for the Colonies, Lord Glenelg, he conceded(295) ibid., p 390 “the great weight which is due to the deliberate judgment of Dr. Lushington on a question of this nature” but dismissed Dr. Lushington’s advice on the specious ground that he must have been “under a misapprehension of some of the most material parts of the case”. It is perhaps relevant to mention that, in an earlier despatch to Bourke, Glenelg had written that, although many circumstances had contributed to render him anxious that the “Rights” of the Aborigines “should be studiously defended”, to concede to them “any right to alienate to private adventurers … would subvert the foundation on which all Proprietary rights in New South Wales at present rest”(296) ibid., p 379.

MacMahon Contractors Pty Ltd & Advanced Pipeline Technology v Power & Water Authority [1996] QCA 452 (19 November 1996), McPherson JA said:

In the present case, the defendant’s claim is unliquidated. If s.4(1) of the deed of variation prevents it or part of it from being set off, it can to that extent only be made the subject of a counterclaim. If, however, in the end, the counterclaim succeeds, the ensuing money judgment on the counterclaim will itself be set off against the amount of any summary judgment the plaintiff might obtain against the defendant. See McDonnell & East Ltd. v. McGregor [1936] HCA 28; (1936) 56 C.L.R. 50, at 62. Having regard to the practice referred to, it therefore seems that, even if the plaintiff were now to succeed in obtaining summary judgment, it would not receive payment of the judgment sum before the issues on the counterclaim are determined. The counterclaim or claims are not so obviously specious as to make a stay under O.18, r.1(2) an improbable outcome of success on the summary judgment application. In these circumstances, it is difficult to see what useful purpose is served by giving judgment on the claim now rather than leaving it to be determined in conjunction with the defendant’s set off or, as the case may be, its counterclaim at the trial. Having regard to the fact that the defendant is a statutory authority, it seems improbable that, like some other defendants, it will decamp before the action is tried or judgment given.