Welcome to the December Quarterly Issue of Hearsay.
We are pleased to introduce another very readable edition of Hearsay, being Issue 102.
The lead article – ‘A new cause of action for serious invasions of privacy’ is authored by the Honourable Peter Applegarth AM KC and Susanna Connolly and provides an informative and interesting discussion on what is an increasingly relevant topic.
This issue’s featured artwork is titled ‘Koriak Coast’ (2017) by Brisbane Artist, Peter (Spider) Anderson. Spider’s profile is included.
Hearsay’s ‘10 Minutes With…’ interviewee is the Honourable Justice Glenn Martin SJA. His Honour refers to the importance of the work performed by the various Bar Associations and lifelong learning at the Bar and Bench. You will see what is said about “Liberty to apply” and better effort being required by counsel to give accurate time estimates in Applications, particularly in relation to judge’s reading time.
The importance of lifelong education at the Bar and Bench is also the theme of a House of Lord’s Standing Committee report that is mentioned in the ‘Professional Conduct and Practice’ section of this edition, which refers to the necessity to strive to keep up to date with Ethics.
Retired District Court Judge Hugh Botting provides an entertaining view on being involved in Circuit Courts, both from the perspective of bar and bench respectively.
The thought of this issue is ‘Today’s lawyers are tomorrow’s judges [so require]… independence of thought, strength of character and…moral courage’.
The ‘Regional Bar’ section is provided by Magistrate Cathy McLennan, who provides a must-read article on the Courts in Townsville over the past 50 years, replete with cracker photos.
The reader will also find in this issue the usual mix of articles and case notes in Professional Conduct, Advocacy, Reviews and the Arts and the range of topics in Inter Alia.
As usual, Hearsay thanks the significant contributions made by its committee members, including Deputy Editor Phillip O’Higgins KC and committee members Andrew Hoare KC, Carolyn Conway, Seraphina Noble and Elizabeth Kelso.
Enjoy!
Richard Douglas KCJohn MeredithEditors
We do request your contributions to the editors, deputy editor or editorial team:
EditorsRichard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com)John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com)Deputy EditorPhilip O’Higgins KC(T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au)Sub-EditorStephen Kiem SC – book and podcast reviews(T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au)Editorial TeamAndrew Hoare KC (T: 3236 0133; M: 0418 870 368; E: andrewhoare@qldbar.asn.au) Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com)Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)Elizabeth Kelso (T: 3738 9657; E: elizabeth.kelso@
Insurance litigation constitutes a substantial portion of the civil litigation in this state. As part of the dispute process, in the pre-proceeding or proceeding phases thereof, inexorably the dispute is mediated. For the prospects of resolution to be maximised – having regard to litigation uncertainty, cost and convenience – the mediation ought be carefully planned in terms of timing, duration, mediator selection and lawyer (and decision maker) preparation.
On 18 October 2024, Richard Douglas KC delivered the paper below at a Medico-Legal Society of Queensland mediation workshop concerning medical negligence claims. What is canvassed, however, applies generally to insurance disputes.
Mediation of an Insurance (Medical Negligence) Claim
In R Lawyers v Dailey (a pseudonym) [2025] HCA 41 (5 November 2025), the High Court addressed two important issues in relation to a pre-nuptial agreement. First, there was considered when the cause of action for damages against the defendant solicitors accrued for limitation purposes. Second, the court addressed whether the plaintiff, on the evidence adduced proved his claim for damages. It is the second of those matters which is the subject of this case note. In the separate judgments delivered (Gageler CJ, Jagot and Beech-Jones JJ, and also Gordon and Edelman JJ) the court provides critical reasoning as to the pleading and proof of a professional negligence claim against a lawyer. The reasons of the court highlight the distinction between pleading a case of loss arising from a negligent act or omission as being the loss of a particular alternative outcome, on the one hand, and the loss of an opportunity to enjoy such outcome.
Gageler CJ, Jagot and Beech-Jones JJ wrote:
The appeal
[1] Before his marriage, the first respondent to this appeal, Mr Daily (a pseudonym), purported to enter into a financial agreement under Pt VIIIA of the Family Law Act 1975 (Cth) (“the FLA“) with his prospective spouse, Ms Daily (also a pseudonym), providing for how their property and financial resources were to be dealt with in the event of a breakdown of the marriage (the so-called “BFA“).1 The appellant, R Lawyers, is the firm of solicitors that advised and acted for Mr Daily in relation to the preparation of the BFA.
[2] After the marriage ended many years later, on the application of Ms Daily the Federal Circuit and Family Court of Australia (Division 1) (“the Division 1 Court”) set aside the BFA on the grounds that the Division 1 Court was satisfied that it was void for uncertainty and that since the time the BFA was made there had been a material change in circumstances relating to the care, welfare and development of children of the marriage the result of which would occasion hardship if the agreement was not set aside.2 The Division 1 Court also upheld part of a claim brought by Mr Daily in negligence against R Lawyers in relation to the advice it gave about the drafting of the BFA.
[3] The Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction (“the Appellate Court”) allowed an appeal by Mr Daily against the Division 1 Court’s dismissal of the balance of his claim against R Lawyers in negligence and remitted that balance for a further hearing at first instance.3 The Appellate Court rejected R Lawyers’ contention that the claim in negligence against it was statute barred under the Limitation of Actions Act 1936 (SA).
[4] The question of principle argued in this appeal is whether Mr Daily‘s claim against R Lawyers for negligence is statute barred because loss or damage caused by the negligence as found occurred at the time the BFA was entered into or at the time of his marriage on the one hand (as R Lawyers contend), or when Mr Daily and Ms Daily separated on the other (as Mr Daily contends).
[5] For the reasons that follow the answer is that, on the evidence in this case, R Lawyers’ negligence did not cause Mr Daily to incur any loss or damage until the time he separated from Ms Daily. Accordingly, Mr Daily’s action is not statute barred and the grounds of appeal contending that the Appellate Court erred in concluding to that effect should be rejected.
[6] After oral argument in this appeal R Lawyers applied for leave to amend its notice of appeal to include a further ground that raises another issue, namely whether that part of Mr Daily‘s claim for negligence against R Lawyers that was remitted for a further hearing was bound to fail because Mr Daily did not adduce evidence of the terms or scope of a financial agreement drafted with reasonable care and skill addressing the contingency that there might be children of the marriage.
[7] For the reasons that follow R Lawyers should be granted leave to amend its notice of appeal and the additional ground of appeal should be upheld. Orders should be made accordingly.
…
Background
[17] All the relevant events occurred in South Australia. Mr Daily and Ms Daily met in 1996 and started living together the following year. Between 2002 and July 2005, R Lawyers provided advice to Mr Daily and prepared a draft financial agreement. On or around 21 July 2005, Mr Daily and Ms Daily signed a deed. That deed recited the parties’ intention to “contract out” of Pt VIII of the FLA and to enter into a “binding financial agreement under s 90B” within Pt VIIIA of the FLA (ie, the BFA). The BFA’s intended effect under the FLA has already been described. Mr Daily and Ms Daily were married later that year. They had a child in 2006 and another in 2009. They separated in September 2018.
[18] In December 2019 Ms Daily commenced proceedings in the Division 1 Court against Mr Daily. She sought a declaration under s 90G that the BFA was not binding, an order under s 90K that the BFA be set aside, and an order under s 79 for the alteration and settlement of property. In August 2021, and against the contingency that the BFA might be set aside or unenforceable, Mr Daily filed an application joining R Lawyers to the proceedings and seeking damages for breach of contract and negligence. The particulars of breach concerned the drafting of the BFA, the provision of advice about the terms of the BFA, and the provision of advice about the operation of the FLA. R Lawyers denied negligence and breach of contract, and pleaded that the claims against it were statute barred.
…
[22] One component of Mr Daily’s claim was for the recovery of damages for the legal costs he incurred in litigating whether the BFA was void for uncertainty which had been wasted given the setting aside of the BFA on that ground (“the first component”). The Division 1 Court allowed that component of the claim and assessed damages for that component as $38,000. In awarding that amount, the Division 1 Court found either a further breach of R Lawyers’ duty to Mr Daily or further particularised the breaches that had already been found, namely a failure to draft a financial agreement that would not be set aside for uncertainty.
[23] The second component of Mr Daily‘s claim was that, by reason of R Lawyers‘ breaches of duty, he was financially worse off as a result of the outcome of Ms Daily’s application for orders under s 79 of the FLA (“the second component”). With this second component, Mr Daily accepted before the Division 1 Court that he needed to “prove on the balance of probabilities that there was available to him an opportunity or opportunities of securing a better financial result than that which was delivered to him under the judgment of the Court”. Proceeding from the premise that, had R Lawyers discharged its duty to Mr Daily, his financial agreement with Ms Daily would not have been liable to be set aside for uncertainty, Mr Daily‘s written submissions before the Division 1 Court articulated the basis for the second component of his claim as follows:
… there are only two realistic possibilities open. Either the[h]usband would not have reached agreement with the [w]ife on a financial agreement and would not have entered the marriage or the [h]usband would have reached agreement with the [w]ife on the terms of a financial agreement consistent with his instructions to [R Lawyers] but including a sufficient provision for any child of the marriage, in the event of a breakdown in the marriage, so that the agreement was not vulnerable to being set aside under s 90K(1)(d). (emphasis added)
[24] The Division 1 Court rejected this second component of Mr Daily‘s claim and declined to award any further “compensatory damages” against R Lawyers beyond the $38,000 for the first component in respect of wasted litigation costs as outlined above. The Division 1 Court made three critical factual findings in rejecting the second component of the claim.
…
[42] To establish his case against R Lawyers in negligence, it was necessary for Mr Daily to prove on the balance of probabilities that the breaches of the duty of care owed to him by R Lawyers were a cause of loss or damage “(in the sense of detrimental difference)“.35 While that standard of proof is not exacting and “does not require certainty or precision”,36 that standard is not discharged by merely proving the loss of a possible chance of a better outcome.37 In some contexts, a lost opportunity may constitute loss or damage in tort38 but, even in those cases, the opportunity must itself be of some value; that is, it must be shown that there was a “substantial prospect of a beneficial outcome” but for breach of the duty of care.39
[43] The argument in this Court did not address whether the second component of Mr Daily‘s claim could be framed as a claim for a lost opportunity. Instead, the argument in this Court addressed how Mr Daily in fact framed this second component of his case. That framing is encapsulated in the paragraph of his submissions before the Division 1 Court noted earlier [para [23] above].40 Although that paragraph of those submissions is prefaced by a reference to proving an “opportunity or opportunities of securing a better financial result”, the submissions contended that, in the context of receiving advice about entry into a hypothetical financial agreement that was not liable to be set aside under the FLA, there were “only two realistic possibilities”. According to those submissions, those two possibilities represented an exhaustive statement of the counterfactual scenarios; they were not two examples of valuable lost opportunities amongst other possibilities.
[45] While a plaintiff may seek to frame their case as they choose, the nature of their loss and the time at which loss occurs is a matter which a defendant may contest and, ultimately, is for the court to determine. Until the hearing before the Appellate Court, Mr Daily’s claim was not framed as a loss of chance case. Nor is it apparent that Mr Daily could have proved the loss of a chance of any value given that, irrespective of the invalidity of the BFA for uncertainty as found below, the BFA was always vulnerable to be set aside on any of the other grounds in s 90K(1) of the FLA which include contingencies (such as s 90K(1)(c) and (d)) that could not be known or assessed at the time the BFA was executed. As such, Mr Daily’s case should have risen or fallen before the Appellate Court on the basis of his alleged loss as put before the Division 1 Court.
[46] As noted, one ground of Mr Daily‘s notice of contention is that, even if the Appellate Court erred in properly characterising the claimed loss, it was correct to conclude that the Division 1 Court did not properly consider Mr Daily’s loss. However, as also noted, the Division 1 Court found that Mr Daily did not instruct R Lawyers to the effect that he wanted a financial agreement that “was effectively bullet proof against the application of s 90K(1)(d)“ of the FLA and otherwise noted the absence of any evidence of the terms of a financial agreement that even amounted to a “reasonable attempt to avoid a potential application of s 90K(1)(d)“. Those findings were fatal to the second component of Mr Daily’s case.
[47] In any event, the second component of Mr Daily’s claim was bound to fail by reason of Mr Daily’s failure to adduce evidence establishing the fact of loss beyond the litigation costs wasted in unsuccessfully defending the validity of the BFA as not void for uncertainty. At trial Mr Daily did not adduce any evidence as to a form of financial agreement that a lawyer in 2005, exercising reasonable care and skill, would (or might) have drafted to avoid that financial agreement being set aside and to have that financial agreement be effective upon separation, including a financial agreement that addressed the potential that Mr Daily and Ms Daily might have had children. Nor did Mr Daily adduce any evidence from which it could have been inferred that Ms Daily would (or might) have agreed to such a financial agreement around that time.
[48] In this Court, Mr Daily asserted that there was such evidence but did not identify what it was beyond pointing to the Division 1 Court’s finding of negligence on the part of R Lawyers, and part of Mr Daily‘s evidence of his instructions to the effect than he wanted the BFA to “include our plans and scenarios, including children”. The Division 1 Court’s findings of negligence on this topic, however, went no further than that R Lawyers failed to advise Mr Daily “what would happen upon the birth of a child and whether that might represent a material change in circumstances”.
[49] In some lawyer negligence cases a court can infer the particular steps that might have been taken had the lawyer discharged their duty.41 However, the lack of any evidence about what such a financial agreement should have provided in this case if there were children of the marriage could not be so inferred.42
[50] It may be that a finding that Mr Daily suffered loss as a consequence of R Lawyers’ failure to exercise reasonable care and skill would not have required the precise terms of the counterfactual financial agreement to have been identified, but Mr Daily would have had to identify at least the scope, nature and likely monetary amount or range of monetary amounts that any provision for children would have entailed. Unless that was done there could not be any assessment of whether Ms Daily would (or may) have agreed to such a financial agreement, whether it would or may have survived a challenge on hardship grounds many years later and, if so, whether it would have secured a better outcome for Mr Daily compared to the orders the Division 1 Court made under s 79 of the FLA.
…
Disposition
[72] The orders proposed by Gordon and Edelman JJ should be made.
Gordon and Edelman JJ wrote:
Pt 3: Principles relevant to loss caused by solicitor’s negligence
[141] Before turning to the appeal in this Court, it is necessary to address the measure of damages in tort and contract and the ways in which a client may prove loss by reason of the negligence of their solicitor.
Measure of damages in tort and contract
[142] In an action in tort or contract, the compensatory principle entitles the injured party to damages in a sum which, so far as money can do, will put that party in the same position as they would have been in had the wrong not occurred.125 Part of the compensatory principle requires the award of damages for consequential losses, such as those claimed by Mr Daily. In general, and subject to the rules that limit the awards of damages, when awarding damages for consequential losses the court awards compensation for all losses that the plaintiff would not have suffered but for the defendant’s wrong.
[143] For actions in tort, damages for consequential losses are intended to put the plaintiff in the same position as they would have been in, so far as money can do, had the tort not been committed.126 A claim in negligence requires that the defendant’s breach of a duty of care caused loss or damage to the plaintiff within the scope of that duty with damages recoverable where they are not too remote. As loss or damage is an element of the cause of action, the plaintiff bears the onus of proving loss or damage and negligence is not actionable until it results in actual damage to the plaintiff,127 as distinct from potential or likely damage.128 What qualifies as actionable damage is a question of fact and degree.129 The onus then shifts to the defendant to exclude or limit the extent of liability or to establish any relevant defence.130
[144] By contrast, damages for breach of contract aim to put the plaintiff in the same position they would have been in had the defendant performed the contract.131 In essence, the court asks how much it costs the plaintiff to obtain a pecuniary substitute for the primary performance of the contractual obligation together with any consequential losses. For a claim for breach of contract, the onus is on the plaintiff to prove that the plaintiff has a cause of action for breach of contract.132 Unlike a claim for negligence, in the absence of proof of actual loss a defendant will still be liable to pay nominal damages for breach of contract.133 Like in tort, the onus is on the defendant to exclude or limit the extent of liability including proving that the plaintiff has failed to take reasonable steps to mitigate loss.134
Heads of loss or damage for negligence by solicitor
[145] There are several ways in which a client may suffer and then prove loss or damage as a result of the negligent conduct of a solicitor.
[146] On the one hand, the client may have incurred loss by reference to events that allegedly would have occurred but for the solicitor’s negligence — that is, a past hypothetical. In such a case, there are two ways in which the client might formulate their claim. First, the client might claim to have lost an identified benefit or interest that they would have obtained but for the solicitor’s negligence. As a matter of causation, the client would need to prove, on the balance of probabilities, that they would have obtained the identified benefit or interest but for the solicitor’s negligence. This might be described as a case based on the loss of a particular outcome. So, for example, if a solicitor failed to ensure that a financial agreement was signed by all parties,135 or failed to record the agreement of the parties to a financial agreement with sufficient certainty, the client might contend that, but for the solicitor’s negligence, they would have had an enforceable financial agreement and thereby obtained a more favourable property settlement.
[147] In the case of a client’s claim for loss of a particular outcome caused by negligent drafting of a financial agreement, the client would need to prove, on the balance of probabilities, that (a) the financial agreement, including the substance of the terms of that agreement, would have been agreed; (b) that agreement would not have been set aside; and (c) that agreement would have secured for the client a better outcome than that which they in fact achieved. It would be necessary for the client to prove the amount of the loss, but they would be entitled to recover the loss in full.
[148] Alternatively, the client might claim that, as a result of the solicitor’s negligence, they “lost the chance or opportunity” to enter into a different agreement and thereby secure a more favourable property settlement, and recover damages “by reference to the court’s assessment of the prospects of success of that opportunity had it been pursued”.136 This might be described as a case based on the loss of a chance. As a matter of causation, the client would need to prove, on the balance of probabilities, that the solicitor’s negligence caused them to suffer the loss of a chance or opportunity to secure a better outcome, and that that chance or opportunity was a “significant chance”137 or a “substantial prospect”138 and had “some value (not being a negligible value)“.139 In a loss of chance case, therefore, the client is usually required to plead at least that the loss they have suffered is a loss of a valuable opportunity, identifying that opportunity with some particularity, as well as what the client might have done but for the solicitor’s negligence where that is necessary to prove causation.140
[149] In the case of a defective and negligently drawn financial agreement entered into under the FLA, proof of causation of the loss of a chance of obtaining a different financial agreement might depend on proof, on the balance of probabilities, of matters such as whether there was a substantial and valuable chance that the client and the other party would have agreed to a different financial agreement, including the substance of the terms of that agreement.141 Once the client has proved that there was a substantial and valuable chance that they and the other party would have entered into a different agreement, their loss is then valued by reference to “the degree of probabilities or possibilities”, often expressed as a percentage, of the chance or opportunity succeeding.142 That assessment would take into account matters such as the likelihood that the different agreement would not have been set aside and that it would have secured a better outcome for the client than that which they in fact achieved.
[150] Of course, a client also may have incurred loss that may be proved by reference to actual past events. For example, the client may have expended money in litigating against a third party with respect to the loss or damage suffered due to the solicitor’s negligence. The costs of litigation that are reasonably incurred in an attempt to reduce losses caused by wrongdoing are recoverable.143 In such a case, provided that the client can prove, on the balance of probabilities, that the solicitor’s negligence caused the actual past loss, the client will be entitled to recover the full amount of that loss (subject to defences and limits including remoteness and mitigation).
…
[162] Contrary to Mr Daily’s submissions, the primary judge did not err in failing to separate out the issues of causation of loss and the assessment of damages. The task of the primary judge, after he correctly found that loss accrued, at the earliest, on separation, was to determine what position Mr Daily would have enjoyed but for R Lawyers’ negligent advice and, therefore, how much worse off he was. The difficulty for Mr Daily was and remains that found by the primary judge — the failure by Mr Daily to prove loss caused by the negligence of R Lawyers other than the legal costs of the uncertainty claim.146
…
[166] Mr Daily’s central premise was that he would have secured a financial agreement that reflected his instructions in certain terms and he was entitled to damages for the difference between that financial agreement and the position he now finds himself in. That was the case which Mr Daily put to the primary judge and which was rejected. Mr Daily has maintained this central premise, although at times he has framed his case as a lost opportunity to obtain a financial agreement that would not have been set aside on hardship grounds. On either case, Mr Daily failed to prove that head of loss.152 At no point in the proceedings did Mr Daily demonstrate that a different financial agreement would or might153 have been agreed with Ms Daily. He did not prove: the substance of the terms of that agreement; that that agreement would or might not have been set aside; and that it would or might have secured a better outcome than the position he found himself in after the Court made orders under s 79 of the FLA.
[167] Mr Daily claimed that he suffered loss in the amount of the difference between what the Court ordered he pay Ms Daily and what a financial agreement properly prepared in accordance with his instructions would have fixed as the amount he could be obliged to pay on the breakup of the marriage. But whether there was a difference between these two sums depended on identifying the amount which a properly prepared financial agreement would or might have fixed as the amount he could be obliged to pay Ms Daily. As the primary judge found, Mr Daily led no evidence at trial of what R Lawyers could or should have done to prepare a financial agreement of the kind just described.154 And, there being no evidence at trial of what that hypothetical financial agreement would or might have been, Mr Daily led no evidence that an agreement of that kind would or might have been agreed with Ms Daily. On the contrary, at trial his central contention was that, unless a financial agreement had been prepared that would have fixed the amount he would be obliged to pay, there would have been no marriage and he and Ms Daily would have had no children.
[168] Further, the primary judge found (as noted above) that: (a) Mr Daily was told he could not have a bullet proof agreement; (b) Mr Daily was told that there were five bases on which a financial agreement could be set aside (including hardship); and (c) this was a case of hardship. In these circumstances, to the extent to which Mr Daily pleaded a case based on the loss of a particular outcome, the case was not proved; it failed for want of evidence of the terms that the financial agreement should have contained, evidence that Ms Daily would have agreed to those terms prior to separation, and evidence that that financial agreement would have remained on foot and been enforceable at separation.
[169] No different result would follow if it were accepted that Mr Daily had argued that he had lost an opportunity to obtain a different financial agreement that would not have been set aside on hardship grounds. Such a claim would also have failed for want of evidence: (a) of the substance of the terms that the financial agreement would or might have contained; and (b) that Ms Daily would or might have agreed to those terms prior to separation. If those matters had been proved to the requisite standard, then there would have been a further difficulty that Mr Daily had failed to establish that loss valued by reference to “the degree of probabilities or possibilities” that that agreement would or might have remained on foot and been enforceable at separation.
[170] Both kinds of cases would have likely encountered a further difficulty — that the evidence would need to have addressed what terms were required in the financial agreement to avoid it being set aside under s 90K(1)(d) of the FLA on hardship grounds. For a case based on the loss of a particular outcome, that difficulty was insuperable. For a case based on the loss of a chance, the difficulty was at least very large, if not insuperable. Mr Daily failed to lead any evidence to prove that he would have secured, or that he would have had a substantial prospect of securing, an enforceable agreement which would have provided Ms Daily with less than the amount awarded.
[171] It follows that the primary judge was correct to confine the assessment of damages in respect of Mr Daily’s legal fees to the amount conceded by R Lawyers — that is, the costs of Mr Daily’s proceeding against Ms Daily in so far as they related to the uncertainty claim. As Mr Daily failed to prove that he and Ms Daily would or might have entered into an alternative financial agreement that would or might not have been set aside on hardship grounds, he was not entitled to damages referable to his legal costs in litigating the hardship issue against Ms Daily. The Full Court was therefore wrong to remit the assessment of damages as they pertained to Mr Daily’s legal fees.
(emphasis added)
A link to the decision is here.
1 FLA, s 90B(2)(a).
2 Daily & Daily [2023] FedCFamC1F 222; FLA, s 90K(1)(b), (d).
3 Daily & Daily[No 4] [2024] FedCFamC1A 185.
…
35 Tabet v Gett (2010) 240 CLR 537 at 564 [69]; see also at 562 [58], 575 [101].
36 Tabet (2010) 240 CLR 537 at 587 [145].
37 Tabet (2010) 240 CLR 537 at 559 [46], 564 [68]–[69], 575 [101], 587 [143], 589 [152].
38 See especially Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 364; Tabet (2010) 240 CLR 537 at 561 –562 [55].
39 Badenach v Calvert (2016) 257 CLR 440 at 454 [40]. See also Sellars (1994) 179 CLR 332 at 364, quoted in Tabet (2010) 240 CLR 537 at 561 [54].
40 See [23] above.
41 See, eg, Badenach (2016) 257 CLR 440 at 452 [28]–[29], 453 [31]–[33]. See also Attard v James Legal Pty Ltd (2010) 80 ACSR 585 at 611 [131]; Howe v Fischer (2014) 12 ASTLR 66 at 80 [80].
42 See CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at 122 [72].
…
125 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39; Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; Haines v Bendall (1991) 172 CLR 60 at 63; Stewart v Metro North Hospital and Health Service (2025) 99 ALJR 1348 at 1354 [24]–[25]; 424 ALR 468 at 475.
126 Butler (1966) 114 CLR 185 at 191; Haines (1991) 172 CLR 60 at 63.
127 Williams v Milotin (1957) 97 CLR 465 at 474; Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 at 7 [8].
128 Wardley (1992) 175 CLR 514 at 526 –527.
129 Alcan Gove (2015) 257 CLR 1 at 7 [8].
130 Watts v Rake (1960) 108 CLR 158 at 159.
131 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 –81 , 161.
132 In relation to proof of loss or damage, see Amann Aviation (1991) 174 CLR 64 at 80 , 99 , 118 , 137 –138.
133 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 300 -301 , 305 , 312.
134 TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130 at 138.
135 FLA, s 90G(1)(a).
136 Sellars (1994) 179 CLR 332 at 355. See also Amann Aviation (1991) 174 CLR 64 at 119.
137 Sellars (1994) 179 CLR 332 at 356.
138 Sellars (1994) 179 CLR 332 at 365. See also Badenach v Calvert (2016) 257 CLR 440 at 454 –455 [40]–[41] .
139 Sellars (1994) 179 CLR 332 at 355 (emphasis in original).
140 Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [17] , [289], citing Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 at [50].
141 Badenach (2016) 257 CLR 440 at 454 –455 [40]–[41], 467 [98]. See also Sellars (1994) 179 CLR 332 at 355 –356 , 368 –369.
142 Sellars (1994) 179 CLR 332 at 355 , 368. See also Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643; Thompson v Schacht (2014) 53 Fam LR 133 at 135 –136 [7], 147 [76].
143 Talacko v Talacko (2021) 272 CLR 478 at 502 [60], citing Gray v Sirtex Medical Ltd (2011) 193 FCR 1 at 11 [24], [26], in turn quoting Berry v British Transport Commission [1962] 1 QB 306 at 321.
In Stevens v Nicholson [2025] QCA 205 (28 October 2025), the applicant – prosecuted for offences under the Electrical Safety Act 2002 (Qld), in respect of the death by electrocution of one of his workers– sought leave to appeal in respect of his conviction upon earlier appeal to the District Court from the Magistrates Court, in which latter court he had been acquitted. The court – in a judgment delivered by Crowley J, with whom Bond and Doyle JJA agreed – granted leave to appeal, and overturned the applicant’s conviction, on account of the prosecution’s failure to prove beyond reasonable doubt when it was prior to the relevant event that the relevant overhead power line sagged so as to expose the applicant’s workers to electrical risk, wrote:
Bond JA.
[1] I have had the benefit of reading in draft the reasons for judgment of both Crowley J and Doyle JA.
[2] I too would allow the appeal on the basis of the reasons expressed by Crowley J at [57] to [64] of his judgment.
[3] I agree with the additional remarks made by Doyle JA reserving to a subsequent occasion an assessment of the significance to what Crowley J has described as the Breach Element of proof of a hearsay statement which is not admissible as proof of the truth of any fact expressly or impliedly asserted by the statement.
Doyle JA.
[4] I have had the benefit of reading in draft the reasons for judgment of Crowley J.
[5] I agree with his Honour that leave to appeal should be granted. The discretion to grant leave pursuant to s 118(3) of the District Court of Queensland Act is an unfettered one, informed by the interests of justice. As to the matters stated by his Honour in paragraph 19 of his Reasons, whether there is an important point of law or an issue of general importance, or whether it is necessary to correct a substantial injustice and that there are reasonable arguments that an error has occurred which needs to be corrected, are all factors which will be relevant to the exercise of the discretion. But while these are usually circumstances in which leave to appeal is granted, they are not exclusive criteria for the grant of leave.
[6] Otherwise I gratefully adopt his Honour’s summary of the facts and the arguments in this case as well as his Honour’s description of the elements of the relevant charged offence.
[7] In circumstances where the hearsay statement reportedly made by Colin Stevens is not admissible as proof of the truth of any fact asserted or implied in that statement, I wish to reserve for a case where it might be determinative, whether the fact of such a statement can be relied upon (as was done by the District Court Judge) for the purposes of alerting the applicant to the possibility of an issue with the height of the powerline or clearance of that line over the harvester such as to require the applicant to have done at least one of the things particularised by the respondent: cf paragraph 54 of the Reasons of Crowley J.
[8] I would join with allowing the appeal on the basis of the Reasons given by Crowley J in paragraphs 57 to 64.
[9] For these reasons, I agree with the orders proposed by Crowley J.
Crowley J.
[10] The applicant was one of three members of a family trust that operated a pineapple farm near the Capricorn Coast called “Lake Mary Pines”.
[11] On 14 July 2021, the applicant, his father Colin Stevens, and other workers were harvesting a field when the harvester either came into contact, or nearly came into contact, with an overhead power line. All of those who were on the ground, including the applicant, were electrocuted. One worker, Cody Smith, died.
[12] After a subsequent investigation of the incident, the respondent, the Work Health and Safety Prosecutor, charged the applicant and his father each with an offence of failing to comply with the electrical safety duty owed by a person conducting a business or undertaking (PCBU).
[13] After a joint summary trial of the charges in the Magistrates Court, both the applicant and his father were found not guilty, and the charges were dismissed. The respondent then appealed to the District Court against the Magistrate’s orders, pursuant to s 222 of the Justices Act 1886 (Qld). The appeal was heard by his Honour Judge Clarke.
[14] On 28 February 2025, Judge Clarke delivered his judgment, dismissing the appeal in respect of Colin Stevens but allowing the appeal in respect of the applicant. 1 The applicant was thereby found guilty of the offence charged.
[15] The applicant now seeks leave to appeal his conviction under s 118(3) of the District Court of Queensland Act 1967 (Qld). He initially relied upon the following three proposed grounds of appeal:
(1) The decision (to allow the appeal and record a finding of guilty against the applicant) was unreasonable, contrary to the evidence, and is not supportable;
(2) The decision involved a reversal of the onus of proof; and
(3) The decision involved the drawing of inferences from circumstantial evidence where conflicting inferences are equally open.
[16] In his written submissions, the applicant conceded that Ground 3 raised the same argument as Ground 1, albeit differently worded. Consequently, Ground 3 was abandoned. It is therefore only necessary to consider the other two proposed grounds of appeal.
[17] If leave to appeal is granted, the applicant seeks orders that his appeal be allowed; that the judgment of the District Court judge be set aside or changed; that the decision of the learned Magistrate at first instance be confirmed; and that the respondent pay the costs of and incidental to the application for leave to appeal.
[18] In support of his application for leave, the applicant contends that the decision of the District Court judge to overturn the decision of the Magistrate involves basic but substantial errors that significantly impacted the decision to reverse the Magistrate’s finding, resulting in a miscarriage of justice.
[19] Sections 118 and 119 of the District Court of Queensland Act govern the application for leave and any permitted appeal. It is well-established that the discretion to grant leave to appeal will usually only be exercised where there is an important point of law, or an issue of general importance or where it is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected. 2
[20] If leave is granted, the appeal is an appeal in the strict sense. The Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court. The appeal is not limited to errors of law. Nevertheless, it is not for this Court to substitute its own findings of fact for those of the District Court judge. The Court is not engaged in a rehearing. A factual finding made by the District Court judge may only be reviewed on appeal to this Court if there is no evidence to support it or it is shown to be unreasonable. 3 Amongst other things, if such error is shown the Court may make any order it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties.
[21] With those principles in mind, and for the reasons that follow, I would grant leave to appeal and would allow the appeal on the basis that Ground 1 is established. I am satisfied the applicant’s conviction is unreasonable or unsupported by the evidence.
The alleged duty and offence
[22] By its charge, the respondent alleged that between 11 July and 14 July 2021, the applicant, being a PCBU, had an electrical safety duty pursuant to s 30 of the Electrical Safety Act 2002 (Qld) (ESA), to ensure that his business or undertaking was conducted in a way that was electrically safe; that he failed to comply with that duty; and that the failure exposed an individual to a risk of death or serious injury or illness, contrary to s 40C of the ESA.
[23] Section 30 of the ESA imposed an electrical safety duty upon a PCBU in the following terms:
30 Primary duty of care
(1) A person conducting a business or undertaking must ensure the person’s business or undertaking is conducted in a way that is electrically safe.
(2) Without limiting subsection (1), the duty includes —
(a) ensuring that all electrical equipment used in the conduct of the person’s business or undertaking is electrically safe; and
(b) if the person’s business or undertaking includes the performance of electrical work, ensuring the electrical safety of all persons and property likely to be affected by the electrical work; and
(c) if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.
[24] Whilst there was an issue about the matter in the original summary trial before the Magistrate, there is no remaining controversy that the applicant was a PCBU and thus owed the electrical safety duty imposed by s 30 of the ESA.
[25] Section 10 of the ESA provided the following relevant definitions:
10 Meanings of electrical risk, electrically safe and electrical safety
(1) Electrical risk means —
(a) in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or
…
(2) Electrically safe means—
…
(e) for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and
…
(3) Electrical safety, for a person or property, means the person or property is electrically safe.
(4) In this section—free from electrical risk, for a person or property, means that —
(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or
(b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.
[26] As to what was “reasonably practicable” for a person to do to comply with an electrical safety duty, s 28 of the ESA relevantly provided:
28 What is reasonably practicable in ensuring electrical safety
In this Act, reasonably practicable, in relation to a duty to ensure electrical safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including —
(a) the likelihood of the hazard or the risk concerned happening; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about —
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
[27] The offence with which the applicant was charged and later convicted in the District Court was an offence against s 40C of the ESA which relevantly provided:
40C Failure to comply with electrical safety duty — category 2
A person commits a category 2 offence if —
(a) the person has an electrical safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
…
[28] The complaint and summons contained the following statement of the particulars of the charge:
1. NATHAN LUKE STEVENS (“the Defendant”), as trustee for the Stevens Family Trust, ran a pineapple farm named Lake Mary Pines at Bungundarra (“the Farm”).
2. The running of the Farm included workers (“the Workers”) harvesting pineapples using a tractor and harvester (“the Plant”) at a part of the Farm traversed by a live overhead powerline (“the Power Line”) (“the Harvesting”).
3. The Workers comprised the Defendant, Colin Stevens, Cody Smith, Joshua Fritz, Simone Ranchi, Michela Valsecchi, Ian Page, Raymond Sheriff and Ryan Doak.
4. The Harvesting posed an electrical risk, as defined in s.10(1)(a) of the Act, to the Workers (“the Risk’”).
5. While performing the Harvesting, the Workers was [sic. were] not electrically safe, as defined in s.10(2)(e) of the Act, because they were not free from electrical risk, as defined in s.10(4) of the Act, because the Risk had not been eliminated or minimised, so far as was reasonably practicable.
6. The Defendant could have ensured the electrical safety of the Workers while performing the Harvesting by ensuring the exclusion of both the Workers and the Plant from that part of the Farm that was beneath, or three metres either side of, the Power Line until either —
(i) the height of the Power Line had been measured and checked against the height of the Plant to ensure that there was at least a three-metre difference; or
(ii) the electrical entity, the works of which the Power Line formed part, had de-energised the Power Line.
7. The Defendant failed to implement the controls stated in the preceding paragraph, in contravention of his duty (“the Failure”).
8. The Failure exposed the Workers to a risk of death or serious injury.
[29] The three-metre distance referred to in paragraph 6(i) of the particulars derived from the Electrical Safety Regulation 2013 (Qld), (ESR). Section 68 of the ESR imposed a duty upon a PCBU at a workplace, concurrent with the duty under s 30 of the ESA, to ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace came within an “unsafe distance” of an overhead electric line. Section 69(2) of the ESR further provided that any operating plant, or a vehicle, comes within an unsafe distance of an overhead electric line if it came within the prescribed “exclusion zone” for the operating plant or vehicle for the line. Under Schedule 2 of the ESR, the relevant exclusion zone here was three metres.
[30] In short, the respondent’s particulars alleged that the applicant could have complied with his electrical safety duty under s 30 of the ESA by ensuring that the three-metre exclusion zone between the harvester and the overhead SWER was maintained until either the distance was measured and checked to ensure the three-metre distance or the power line was de-energised. It is convenient to refer to the proposed actions in paragraph 6(i) and (ii) of the particulars as the control measures the respondent alleged the applicant should have implemented.
[31] The three-metre exclusion zone was also specified in the “Electrical Safety Code of Practice 2020 — Working near overhead and underground electric lines”, (Code of Practice) issued by the Electrical Safety Office, approved and published in accordance with s 44 of the ESA.
[32] Section 44(1) of the ESA provided that the Minister may make a code of practice that states a way of discharging a person’s electrical safety duty. Under s 45(2) of the ESA, the Code of Practice was admissible in the proceeding against the applicant as evidence of whether or not he had complied with his alleged electrical safety duty. By s 45(3) of the ESA, the Magistrate at first instance, and the District Court judge on appeal, were permitted to have regard to the Code of Practice as evidence of what was known about a hazard or risk, risk assessment or risk control; and could rely on it in deciding what was reasonably practicable for the applicant to have done in respect of the discharge of his alleged duty.
[33] Under the heading of “Unsafe distances”, the Code of Practice reiterated the obligation to keep persons and plant outside the relevant exclusion zone while an overhead electric line was energised. Under the heading “Operating plant near overhead electric lines” the Code of Practice relevantly stated:
The most effective way to eliminate any risk of electric shock is by turning off the power. The person conducting a business or undertaking, principal contractor or the operating plant owner should discuss options for de-energising or re-routing the electricity supply with the relevant electricity entity. These options are the most effective control measures and should be considered before anything else. The person conducting a business or undertaking, principal contractor or the operating plant owner should also consult with each other to ensure the electricity entity has been contacted.
De-energising or re-routing powerlines should be arranged with the electricity entity as quickly as possible as this can take some time to arrange. Where overhead powerlines have been de-energised, confirmation should be sought from the person in control of the powerline before undertaking any work.
If it is not reasonably practicable to turn off the power or re-route the powerline, the most effective control measure to reduce the risk is to establish ‘exclusion zones’ that prevent people, plant, equipment and materials from coming close enough to energised overhead powerlines for direct contact or flash-over to occur.
[34] Under the heading “Risk management process for agricultural work near overhead electric lines”, the following risk was identified, “operating high machinery or machinery with height changeable attachments in paddocks where electric lines exist.” A listed factor to be considered in any risk assessment for such a risk was, “the possibility of sway and sag of the overhead powerlines…”.
…
The applicant’s conviction is unreasonable or unsupported by the evidence
[36] There is no issue that the evidence adduced by the respondent was capable of proving beyond reasonable doubt that the applicant was a PCBU (PCBU Element) and as such he owed the electrical safety duty alleged (Duty Element). What is challenged by this appeal is the sufficiency and adequacy of the evidence adduced to prove that the applicant failed to comply with that duty (Breach Element) and, by extension, that his failure exposed an individual to a risk of death or serious injury (Exposure Element).
[37] I have designated the fourth element as the “Exposure Element” in order to avoid some of the confusion often experienced in cases of this kind when the term “causation” is used. That issue was previously discussed in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [78]–[91] and more recently considered in Cleanaway Operations Pty Ltd v Hanel [2025] SASCA 112, where, in respect of a like element of a similar statutory offence created by the Work Health and Safety Act 2011 (Cth), the Court stated at [287]:
Respectfully, it is preferable to describe the third limb as the ‘exposure element’ rather than a test of causation. That better reflects the text of the provision and avoids the potential for confusion with the use of the concept of causation in other contexts.
[38] In Vibro-Pile, the Court had stressed that breach of a workplace safety duty imposed on an employer under a provision of the Occupational Health and Safety Act 2004 (Vic) did not require proof that the breach caused actual harm to any person, as the offences under the Act were “risk-based”, not “outcome-based” offences. For that reason, the occurrence of death or injury was of evidentiary significance only and was not an element of the offence. 6
[39] In reiterating that the “exposure element” under consideration in Cleanaway was concerned with exposure to, and not manifestation of, risk, the Court relevantly observed, at [292]:
The WHS Act is contravened when there is a failure by the person conducting a business or undertaking to take particularised measures to prevent exposure to an identifiable risk. At the heart of any prosecution for offending under s 32 for a breach of the duty under s 19 is the exposure of workers and others to the risk of death or serious injury, and that does not require proof that there has been the manifestation of that risk, still less that a relevant accident or incident has actually caused death or serious injury.
[40] It is pertinent to bear these matters in mind here as it seems to me that at times the distinction was overlooked. An offence against s 40C of the ESA may be committed regardless of whether any electrocution incident in which a person suffers death or serious injury occurs. In a case where such an incident does occur, that will of course have evidentiary significance in determining whether the elements of the offence are established. However, it must clearly be understood that in terms of proof of the Exposure Element that the focus is the alleged exposure to a risk of death or serious injury and not the actual death or serious injury that eventuated when the risk materialised.
[41] It is not necessary to further canvass the entirety of the evidence adduced by the respondent in the summary trial before the Magistrate, nor all of the arguments put before this Court. The critical evidence upon which the respondent’s case ultimately depended at first instance and on appeal to the District Court, and which is determinative of the present application, concerns the events of 12 July 2021 described above and their relevance to the incident that occurred on 14 July 2021.
[42] The significance of that evidence in the respondent’s case against the applicant and his father was outlined in the prosecution’s written closing submissions in the Magistrates Court, which put the case this way:
18. The prosecution case is that a potential change to the height of the powerline came to the attention of both defendants on 12 July 2021. In the context of the exchange that occurred on that day, it can be inferred that the height of the powerline had changed sometime prior to that. It is not known precisely what height the powerline sat at on 12 July 2021, or indeed when and/or at what rate the powerline moved before the incident that occurred on 14 July 2021. However, based on the exchange that occurred on 12 July 2021, and the observation by Colin Stevens on that day, the only available inference is that the height of the powerline had changed to some appreciable extent prior to that. In circumstances where the stay wire broke some unknown time prior to the incident on 14 July 2021, and where Colin Stevens noticed and commented on the powerline being in close proximity to the top of the harvester on 12 July 2021, a suggestion that the powerline had not moved at all on 12 July 2021 must be rejected as fanciful.
19. The prosecution case is that in circumstances where a potential issue had been identified, it was reasonably practicable to ensure at least the 3 metre exclusion zone from the powerline was maintained in all directions until:
a. The height of the powerline had been measured and checked to ensure the 3 metre difference to the top of the harvester was maintained; or
b. The electrical entity had de-energised the powerline.
20. Due to the incident that occurred on 14 July 2021, it can be inferred that neither of these things were done prior to the work activities that took place on that day. Plainly, the line was live and therefore had not been de-energised. So too, had the height not been measured and checked to ensure the exclusion zone was maintained. It certainly wasn’t maintained at the required 3 metre minimum distance as at the time of the incident on 14 July 2021. Once it is accepted, as the prosecution submits, that there must have been some appreciable change to the height of the powerline to prompt Colin Stevens’ concern and comment on 12 July 2021, the only available inference thereafter is that no one measured and checked to ensure the exclusion zone was maintained before the work was conducted directly underneath the energised powerline on 14 July 2021.
21. The prosecution case is that in the context of what was known, or ought to have been known, arising out of Colin Stevens’ observation and comment on 12 July 2021, it was reasonably practicable to do those things particularised. The failure to do so by each of the defendants constituted a breach of their duty to ensure their work at Lake Mary Pines was electrically safe. That failure had the effect of exposure of the group of workers involved to the risk of death or serious injury as alleged. (emphasis added)
[43] The respondent reiterated these same submissions in the District Court appeal.
[44] The undisputed facts emphasised in the extract of the prosecutor’s submissions highlighted above are critical to the outcome of this matter. Notwithstanding those undisputed facts, the submissions reveal that the respondent’s case was that Colin Stevens’ statement, “We almost touched the powerline”, necessarily showed that the height of the power line must have already changed to some appreciable extent by 12 July 2021; and that when Mr Fritz told the applicant what his father had said, the applicant then knew, or ought reasonably to have known, of the particular risk of electrocution posed by the lowered overhead power line. It followed that it was therefore incumbent upon the applicant to take the particularised control measures in order to discharge the electrical safety duty he owed under s 30 of the ESA. By failing to do so, the respondent contended, he exposed workers to the risk of death or serious injury or illness.
[45] The Magistrate at first instance accepted Mr Fritz’s evidence concerning the comment made by Colin Stevens was accurate and reliable. On that basis, the Magistrate relevantly concluded:
I am satisfied beyond reasonable doubt that Colin Stevens made a comment about the harvester almost hitting the powerline and that Nathan Stevens dismissed the comment. However, what I cannot be satisfied is as to whether it did represent a danger or that an appreciable drop had occurred on 12 July. The statement made by Colin is not admissible against Nathan Stevens unless it has unequivocally been adopted by him as the truth, and this did not occur. So we are left alone with Nathan’s dismissive statement in response.
There is no corroborating evidence regarding a drop in the powerline prior to the incident of 14 July. For example, Fritz does [sic. not] 7 say that on 12 July, after he heard Colin’s comments, that he observed the powerline to be lower than usual. His response to the question, ‘It wasn’t evident from where you were standing that there was a problem with the wire’, was ‘No, not to me.’
…
Remembering that Colin Stevens’ statement of 12 July is not admissible against Nathan, it is not clear why Nathan dismissed any concern expressed by Colin. It may well have been the case that he looked up and saw nothing unusual as Fritz’s evidence suggests may have been the case. The statement in the ambulance by Nathan does not necessarily, of itself, indicate guilt. It may just indicate that Colin made a statement about the powerline. There is a possibility that Colin thought there was a drop and there was not, and that subsequent to 12 July, the power pole then listed. This possibility cannot be reasonably and totally discounted and, therefore, I find it a reasonable possibility. The prosecution case is hampered here by the fact that the timing of the list of the power pole is simply not known, and there is a lack of admissible evidence as to knowledge of a possible manifestation of that problem or risk.
There can be no doubt that Nathan Stevens owed an electrical safety duty. But as to the element that both defendants failed to comply with that duty, I am not satisfied that this element has been proved beyond reasonable doubt and, accordingly, I find both defendants not guilty.
[46] It is apparent from the reasons given that the Magistrate was ultimately not satisfied beyond reasonable doubt that the respondent had proven the Breach Element of the alleged offence in either case. It is also to be noted that earlier in his reasons, the Magistrate had also stated that he was not satisfied beyond reasonable doubt in the case against Colin Stevens that the respondent had proven the PCBU Element and had thus already failed to prove an essential element of the offence in its case against him. The District Court judge upheld that finding and dismissed the respondent’s appeal in respect of Colin Stevens on that basis.
[47] With respect to the case against the applicant, on appeal to the District Court the respondent contended, amongst other things, that the Magistrate had erred in finding that the comment made by Colin Stevens on 12 July 2021 was not admissible in the case against the applicant. The District Court judge accepted the Magistrate had erred in that respect, relevantly reasoning:
[56] The comment on 12 July was an obviously important part of the prosecution case. The prosecutor had conceded in closing submissions that the case failed if that evidence was not accepted. It was relevant to the assertion that Nathan Stevens was made aware of the risk and failed in his duty to eliminate or minimise that risk of electrical harm. It was relevant to prove what Colin Stevens shouted at him or in his presence. It was also relevant to the conversation Nathan Stevens had with Mr Fritz in the ambulance, after the incident on 14 July, which amounted to an admission or statement against interest.
[57] There was no dispute that Colin Stevens made a comment on 12 July to the effect that there was an issue with the height of the power line. That evidence was directly admissible against Colin Stevens as a statement against interest; it showed that he appreciated the risk of electrical harm.
[58] As against Nathan Stevens, the basis for admissibility was of the fact that the comment was made in his presence, to gauge Nathan’s state of mind and conduct afterwards, and not as to the truth or accuracy of the comment. The Magistrate reasoned he could not use the comment as being admissible evidence in the case against Nathan Stevens because he did not agree with the comment, or adopt it as being truthful or accurate. Ordinarily, that proposition is undoubtedly correct; a hearsay comment such as this made by a witness or co-defendant, would not be admissible as an admission or statement against interest, unless it was accepted and adopted as being truthful and accurate, by him.
[59] With respect, it seems to me that a confusion about the basis for admissibility has led to an error, compounded by a dispute in the summary hearing about the content of the comment, notwithstanding the acceptance there was a comment made to that effect. The fact that Colin Stevens made a comment about that topic was admissible in the case against Nathan. It did not matter what precisely was said, or whether what was said was accurate, or whether Nathan Stevens agreed with it or not. That is beside the point. The Magistrate accepted the evidence of Mr Fritz that Colin Stevens made the comment and so should have found the fact it was said was admissible against Nathan Stevens.
[60] I am satisfied the fact that Colin Stevens made a comment about the height of the power line on 12 July is admissible in the circumstantial case against Nathan Stevens. Accordingly, there was a basis upon which to assert Nathan Stevens was made aware of the electrical risk. The fact that he disagreed, or did not appreciate there was a risk, is irrelevant. If not, any person who has the duty would escape prosecution or responsibility simply because they claim they didn’t think there was a problem.
[61] The Magistrate correctly determined that it was unknown precisely when the stay wire failed, but should not have found that he could not have regard to the evidence about the comment on 12 July about that, and consequently incorrectly reasoned it could not be shown that Nathan Stevens was alerted to the risk.
[62] In my view, the Magistrate was led into error by the assertion that a conviction of the respondents required proof of knowledge that the stay wire had broken, causing the pole to list, or that the breaking of the stay wire was imminent. That test was impossible. The obligation cast upon a person conducting the business was to ensure electrical safety. Evidence tending to prove the respondents were made aware of the risk and failed to do anything to ensure safety was sufficient.
[63] I am satisfied that upon being alerted to that risk, Nathan Stevens should have acted to ascertain the height of the power line, made sure that the harvester was not being utilised and that workers were not within the exclusion zone, or arranged for the power supplier to de-energise the line. In failing to do any of those things, he has failed to discharge his duty.
[64] There is support on the circumstantial case for the realisation of Nathan’s failure to comply with his duty when he made the comment to Mr Fritz in the ambulance, and perhaps by his silence when his father called out, after the incident. It would be arguable that is also what he meant when he stated in the recorded field interview, ‘I didn’t realise the line was so low’ but I am prepared to defer to the Magistrate’s finding that statement was perhaps equivocal.
[65] I am satisfied the circumstantial facts go to prove guilt to the exclusion of any inferences consistent with innocence.
[66] I am prepared to find the elements of the complaint against Nathan Stevens have been proved beyond reasonable doubt. Accordingly, I find the respondent Nathan Stevens guilty. (emphasis added)
[48] The District Court judge correctly determined that the evidence of the comment made by Colin Stevens was admissible in the case against the applicant for non-hearsay purposes. It was otherwise inadmissible second-hand hearsay if relied upon as proof of the truth of any fact asserted or implied by Colin Stevens by the making of the comment. 8 In other words, in the case against the applicant it was not admissible to prove the asserted fact that the harvester almost hit the power line, nor to infer that the power line had sagged and was therefore sitting lower than its usual height of 7.8 metres above ground. The evidence was proof of Colin Stevens’ state of mind. Furthermore, in the case against the applicant, the evidence provided proof of what he had been told by Mr Fritz about what Colin Stevens’ had said; and that he was thereby made aware that Colin Stevens thought there was a potential issue with the height of the power line. The sentence in bold in the above excerpt encapsulates the importance of the evidence in the prosecution case.
[49] Although the respondent accepted during the hearing of the present application that Colin Stevens’ comment could not directly provide evidence that the power line was sagging on 12 July 2021, it seemed to suggest that it might circumstantially prove the same fact. The respondent submitted that the occurrence of the making of the comment on 12 July and the subsequent occurrence of the electrocution incident two days later on 14 July was such an extraordinary coincidence of events that Colin Stevens could not have been mistaken in his observation. Although this argument was raised in response to an argument put by the applicant that there was a reasonable possibility that Colin Stevens may have been mistaken in his observations of the height of the power line that led to his comment on 12 July 2021, the respondent’s submission again impermissibly seeks to rely upon the making of the comment to prove the fact that the power line had actually sagged at that time. I do not accept the evidence can be used in that way or that this form of inferential reasoning may be legitimately employed here to prove such a fact.
[50] Some of the District Court judge’s reasoning suggests that his Honour did in fact impermissibly treat the evidence of the applicant being told of Colin Stevens’ comment as providing the basis upon which he became aware of a heightened risk posed by the power line sitting at a lower height. If that were so, then his Honour erred. The non-hearsay bases upon which the evidence was admissible did not prove those facts.
[51] Regardless of any such error, there is a more fundamental point which in my view makes plain that the District Court judge erred, and that the applicant’s conviction cannot stand. Before I come to that, I will deal briefly with the Breach Element.
[52] I do not consider the District Court judge erred in concluding that upon being made aware of the electrical risk through the comment made by Colin Stevens, the applicant should have acted to ascertain the height of the power line, made sure the harvester was not being utilised and that workers were not within the exclusion zone, or arranged for the power supplier to de-energise the power line; and that by failing to do so he failed to discharge his electrical safety duty.
[53] It is to be recalled that the duty owed by the applicant under s 30 of the ESA was to ensure his pineapple farm business or undertaking was conducted in a way that was “electrically safe”. That meant he was to ensure that all persons, including his workers, were “free from electrical risk” from the conduct of his business or undertaking. 9 The “electrical risk” was the risk of death, shock or injury caused by electricity or originating from electricity. 10 The applicant would keep persons free from electrical risk if he eliminated electrical risk to them, so far as is “reasonably practicable”, or if it were not reasonably practicable to eliminate electrical risk to persons, if he minimised the risk, so far as is “reasonably practicable”. 11 What was reasonably practicable was that which was “reasonably able to be done” in relation to ensuring electrical safety, taking into account and weighing up all relevant matters. 12
[54] In my view, irrespective of the actual height of the power line on 12 July 2021, once alerted to the possibility of an issue with its height the applicant should have excluded workers and plant from that part of the farm that was beneath, or three metres either side of, the power line, until at least one of the alleged control measures particularised by the respondent was done. They were steps that were reasonably able to be done by the applicant in the circumstances to ensure any electrical risk was eliminated or minimised, so far as reasonably practicable. Whilst the electrical safety duty imposed on a PCBU by s 30 of the ESA is not absolute, it is one that requires strict observance in order to achieve the stated purpose of the Act, as set out in s 4 of the ESA, of “…eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity”. The non-delegable duty of a PCBU under s 30 of the ESA is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement that a PCBU “must ensure” their business or undertaking is conducted in a way that is electrically safe. 13 Hazards and risks of electrical harm are not necessarily static. The ESA, ESR and the Code of Practice require a PCBU to proactively identify hazards, assess risks and implement, maintain and review control measures. Whether it was true or not, the applicant should have responded to Colin Stevens’ comment by ensuring the relevant exclusion zone was maintained until he did one of the further particularised actions, which were reasonably able to be done, to ensure the electrical safety of workers.
[55] Although much of the argument below and in this Court was directed at whether the prosecution case was able to prove the Breach Element beyond reasonable doubt, in my opinion the real problem with the respondent’s case against the applicant actually lies with proof of the Exposure Element.
[56] As observed, the respondent argued in this Court that Colin Stevens’ comment was effectively a warning, which put the applicant on notice of the electrical risk posed by the overhead power line; and that the District Court did not err in so concluding. So much may be accepted. But what was the objective evidence of the risk at that time?
[57] The overhead power line running across the pineapple farm was a hazard. Because it traversed a property where harvesting work would be done using large machinery, it always posed a risk of electrocution to workers, regardless of its height. However, the objective nature of the risk and the likelihood of it eventuating at any given time depended, amongst other things, on the proximity of any person or plant to the power line. At its usual height of 7.8 metres, the power line sat comfortably outside the three-metre exclusion zone that would ensure that the harvester would not come within an unsafe distance, and that the applicant would therefore be compliant with his electrical safety duty. As the respondent accepted during the hearing, at that height the risk of electrocution posed by the power line was “negligible”. When the power line sagged, and the distance shortened, the risk of electrocution obviously increased. That risk materialised with fatal consequences on 14 July 2021.
[58] However, in circumstances where the respondent was unable to prove when the power line had actually sagged, the respondent was unable to prove there was any greater objective level of risk posed by the power line at any time before occurrence of the incident on 14 July 2021. Colin Stevens’ comment was not capable of providing evidence of the actual position of the power line on 12 July 2021. It was therefore not capable of providing evidence of any increased objective risk posed by the power line at that time.
[59] That being so, it seems to me that the evidence adduced by the respondent in the summary hearing before the Magistrate was simply incapable of proving the charge against the applicant beyond reasonable doubt. The Exposure Element required proof of a causal relationship between the applicant’s alleged failure to maintain the three-metre exclusion zone until he actioned either of the alleged control measures particularised; and the risk of death or serious injury by electrocution posed to his workers by the overhead power line between 11 and 14 July 2021. The respondent was required to prove beyond reasonable doubt that the applicant’s failure in that regard was a significant or substantial cause of the workers being exposed to that risk. 14
[60] In my opinion, the District Court judge could not have been satisfied that the applicant’s failure to do any of those things exposed an individual to a risk of death or serious injury, as required by s 40C of the ESA.
[61] Because it was not known when the power line sagged to the position it was in when the incident occurred, the prosecution was unable to prove beyond reasonable doubt that the applicant’s failure to ensure the three-metre exclusion zone was maintained until either of the particularised control measures were taken led to the exposure of his workers to the risk of death or serious injury through electrocution by the overhead power line. Even accepting that each of those actions were things he was reasonably able to do to ensure the electrical safety of his workers, if there was no proof of an appreciable objective change in the risk posed by the overhead power line because it had sagged to a lower than usual height, then it would not have mattered whether the applicant actioned the control measures or not. His failure to do them would not have exposed his workers to electrical risk. They were already exposed to such risk, albeit to a negligible degree, when the power line sat at its usual 7.8 metres height. It was only at the point where the height of the power line had actually lowered to a point where the highest point of the harvester would come within the 3-metre exclusion zone, and the objective risk had thereby increased, that it could be said that any failure by the applicant to do that which was particularised in the complaint would have exposed his workers to the risk of death or serious injury by electrocution.
[62] That is an insurmountable problem for the respondent. Because it could not prove when any such change in height had occurred, the respondent was simply unable to exclude as a reasonable possibility that the power line had dipped to its lowered position at any time up until immediately before the incident on 14 July 2021. That deficiency in proof was a solid obstacle to conviction which could not be cured by the evidence of the applicant being told of Colin Stevens’ comment on 12 July 2021.
[63] The applicant framed his argument in this Court that the respondent was unable to exclude as a reasonable hypothesis consistent with innocence that the stay wire supporting the SWER power line failed on 14 July 2021, leading to a sudden lowering of the power line just before the harvester came within proximity of it. Whilst he pointed to evidence given by one of the workers, Mr Page, that he had seen a “flash of lightning” just before the incident occurred, as evidence supporting such an inference, in my view it is not necessary for that possibility to be further explored. As the respondent could not prove on its own case when the power line sagged, it always remained a reasonable possibility, unable to be excluded by the evidence adduced by the respondent, that it happened on 14 July 2021 immediately before the incident occurred. For the prosecution’s circumstantial case to succeed, it was required to exclude all reasonable hypotheses consistent with innocence beyond reasonable doubt. 15 By the evidence adduced, it failed to do so.
[64] In my view the District Court judge did not properly consider whether the Exposure Element had been proven beyond reasonable doubt. In part this is explicable because Colin Stevens’ comment and its relevance to proof of the Breach Element were largely the focus of the appeal from the decision of the Magistrate in the applicant’s case. The parties seemed to have wrongly approached the case as if proof of the Breach Element would axiomatically prove the Exposure Element. As a result, it appears that having determined that the first three offence elements, up to the Breach Element, were proven beyond reasonable doubt, his Honour then simply concluded that it followed the offence was proven beyond reasonable doubt. That was an error. The evidence was not capable of establishing the Exposure Element beyond reasonable doubt. The District Court judge erred in concluding otherwise.
[65] Ground 1 is established. The District Court judge’s decision to find the applicant guilty of the offence was unreasonable and not supported by the evidence.
…
A link to the full case is here.
1 Nicholson v Stevens [2025] QDC 17.
2 McDonald v Queensland Police Service [2018] 2 Qd R 612 [39]; Sanchez v Cmr of Police (2022) 12 QR 263 [10].
3 McDonald, [39].
4 According to the statement of agreed facts admitted pursuant to s 148A of the Justices Act, the power line was a 12.7kV SWER high voltage overhead power line.
5 This should simply read that the pole on the adjoining property had listed.
6 Vibro-Pile, [3]; [91].
7 It is obvious in context that the word “not” is missing here in the transcript of the Magistrate’s decision.
8 Walton v R (1989) 166 CLR 283 288, 292–293 (Mason CJ); R v Ryan Churchill (pseudonym) (2025) 99 ALJR 719 [46] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).
9 Section 10(2)(e) ESA.
10 Section 10(1)(a) ESA.
11 Section 10(4) ESA.
12 Section 28 ESA.
13 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Although the Court there was making observations about the nature of an employer’s duty under the Occupational Health and Safety Act 1983 (NSW), they are apposite to describe the nature of the duty under s 30 of the ESA.
14 Paradise Outdoor Building Company Pty Ltd v Steward [2022] QCA 118 [32]–[34].
15 R v Baden-Clay (2016) 258 CLR 308 [46]; citing Barca v R (1975) CLR 133 CLR 82 104.
In Preston, in the matter of the Forum Group of Companies Pty Ltd (in Liq) [2025] FCA 883 (1 August 2025), Cheeseman J, in the Federal Court of Australia, afforded useful commentary as to the application of the law pertaining to tracing in equity. In the reasoning – as may be seen below – there was distinguished the operation of the principle in Scott v Scott (1963) 109 CLR 649, which provides:
It is, we think, important to observe that the liability of a trustee to account in such cases is not confined to a limited group of categories but extends to all cases where such a profit has, in fact, been made. We agree with his Honour’s analysis of the cases to which he referred and we agree with his conclusion. The argument to the contrary is, we think, based upon an erroneous conception of the true principle. No doubt it is true to say that in this case the estate was entitled to assert a lien upon the property purchased with the mixed fund to secure the amount misapplied. But it is erroneous to say that in the circumstances of this case this was the full measure of the relief to which the estate was entitled. It was, of course, conceded that where property is, in breach of trust, bought exclusively with trust moneys the beneficiaries may, instead of pursuing their personal right against the trustee, elect to take the property. Again it was conceded that where property is purchased, in breach of trust, with a “mixed fund” the beneficiaries may, if the property is “specifically severable”, elect to take such part thereof as bears the same proportion to the whole as the misapplied trust moneys bore to the purchase price. Property may be thought to be “specifically severable” where it consists of bonds or a parcel of shares: Brady v Stapleton (1952) 88 CLR 322. This may also be the position if the property purchased consists of a flock of sheep or a herd of cattle or so many bales of wool and so on though difficulties might arise where the severance could not be made at a point precisely commensurate with the amount of trust moneys misapplied
Cheeseman J wrote:
PART A — INTRODUCTION
[1] In this Distribution Application Mr Jason Preston and Mr Jason Ireland, the applicants, seek judicial advice and directions in relation to the distribution of an array of assets realised following the collapse of various companies directly or indirectly involved in, affected by or benefitting from the Forum Finance fraud. That fraud is the subject of the liability judgment delivered in proceedings NSD616 of 2021, NSD681 of 2021 and NSD642 of 2021 (the Financier Proceedings): Westpac Banking Corporation v Forum Finance Pty Ltd (in liq) (Liability) [2024] FCA 1176 (Liability Judgment or LJ).
[2] These reasons assume familiarity, and should be read together, with the Liability Judgment. In the main I have adopted the defined terms used in the Liability Judgment.
[3] In the Financier Proceedings, the Financiers established that Mr Basile Papadimitriou (also known as Bill Papas), Mr Vince Tesoriero, their respective and jointly owned related companies and others were involved in a fraud principally perpetrated against Westpac Banking Corporation (WBC), Westpac New Zealand Ltd (WNZL) (together, Westpac), SMBC Leasing and Finance Inc (SMBC) and Societe Generale (together, the Financiers). Final orders granting relief were made on 21 May 2025 with further orders being made on 23 May 2025 and 4 June 2025 with reasons being delivered contemporaneously with these reasons: Westpac Banking Corporation v Forum Finance Pty Ltd (in liq) (Relief) [2025] FCA 882.
[4] In the present proceeding, the applicants apply in their various capacities as either the joint and several liquidators of the relevant asset-holding corporate plaintiffs or as Court-appointed receivers and managers of trust property that is or has been affected in one way or another by the fraud. I will refer to Mr Preston and Mr Ireland as the applicants unless it is necessary to differentiate as to the particular capacity in which they are acting in a given context, in which case I will refer to them as either the liquidators or the receivers, as the context requires.
[5] The applicants seek judicial advice, or direction, that they are justified in distributing the assets of each entity (which comprise mainly the net proceeds of the realisation of assets) in the order of priority which they have proposed. The application is supported by extensive evidence, some of which was addressed in the Liability Judgment, and expounded by written submissions which were further refined by the oral submissions made on this application.
[6] In bringing the application, the applicants principally rely on s 90–15(1) of the Insolvency Practice Schedule (Corporations) (IPS) in Sch 2 to the Corporations Act 2001 (Cth). They also rely as necessary on various other sources of power, which I will address in Part G of these reasons.
[7] The function of a liquidator’s application for directions is to give the liquidator advice as to the proper course of action to take in the liquidation: Re Force Corp Pty Ltd (in liq) [2020] NSWSC 1842; 149 ACSR 451 at [18] (Gleeson J). Provided that the liquidator has made full and fair disclosure to the Court of the material facts, the liquidator will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him or her in accordance with the direction: Re Force Corp at [19].
[8] The circumstances of each of the corporate plaintiffs differ. That said, the following broad observations may be made. First, the assets (including those in which the corporate plaintiffs’ claim derives from the right of indemnity of a corporate trustee) are subject to complex competing claims by various parties. Secondly, there are insufficient assets to meet all of the relevant claims. Thirdly, in relation to each of the corporate plaintiffs that acted as a corporate trustee, the claimants may include, among others, the Financiers (including in respect of claims of a proprietary nature and claims based on statutory priority arising in respect of funding arrangements), secured and unsecured creditor claims (including claims based on rights of subrogation), claims by former external administrators, and claims of the Commonwealth of Australia as a “subrogated” employee creditor in respect of advances made pursuant to the Fair Entitlements Guarantee Act 2012 (Cth) (FEG). Fourthly, the claims in relation to each of the corporate plaintiffs often involve discrete asset pools where the identified claimants and the order of distribution may differ depending on the circumstances relating to the asset pool from which the distribution will be made. Finally, the order of distribution in respect of each asset pool of each of the corporate plaintiffs will have a material effect on the amount received by the individual creditors.
[9] The applicants seek directions in order to enable them to properly distribute the available assets having regard to the nature of the competing claims in respect of those assets. This application requires the identification and consideration of complicated factual and legal issues. The Court has been considerably assisted by the thorough and careful work undertaken by the applicants and their legal representatives in the preparation and presentation of this application.
[10] The applicants have framed this application in a way that is both practical and efficient by limiting the scope of the advice sought to points of legal principle and the proper order of distribution. They do not attempt at this stage to quantify any distribution amounts because the precise amounts will be contingent on the advice given and will necessarily be updated to take into account changes since the plaintiffs’ evidence was finalised to account for things such as interest accruing on cash at bank. Upon receiving and considering the advice given in these reasons, the applicants will undertake further work to calculate the precise amounts to be distributed to claimants, and will then proceed to make payments (unless at that point it becomes apparent that further directions of the Court are necessary).
…
PART F — OVERVIEW OF THE FACTUAL BACKGROUND
The related proceedings
[31] As mentioned, this Distribution Application follows the Financier Proceedings. The Liability Judgment concerned the fraud perpetrated against the Financiers between September 2018 and June 2021 to obtain about half a billion dollars on the basis of falsified and fictitious equipment finance contracts: LJ [1]. The following findings made in the Liability Judgment are of present relevance.
[32] The principal perpetrator and architect of the fraud was Mr Papas: LJ [4], [323], [1149], [1185].
[33] An overview of the fraud is set out in Part C of the Liability Judgment. Relevantly, the fraud involved:
(1) Mr Papas creating, or causing the creation of, falsified equipment finance contracts and related documents, which were provided to the Financiers. Those contracts described fictional transactions and included forged signatures of counterparties and witnesses: LJ [327].
(2) On the basis of those documents, the Financers loaned funds to Forum Finance, Iugis NZ, Forum Enviro and Forum Enviro (Aust): LJ [41]–[45].
(3) The funds would then be transferred to FGFS which was used as the vehicle through which the fraudulently obtained funds were disbursed to a number of companies and persons associated with, and related to, Forum-related entities, Mr Papas and Mr Tesoriero. These funds were often disbursed by way of a loan as recorded on the FGFS balance sheet: LJ [43]–[48], [119], [327].
[34] Mr Papas was found to be liable to the Financers for the fraud. From the time the funds were received from the Financiers, he held the money received on an imposed Black v Freedman trust: LJ [1149]. He was liable to account for those funds, and further liable to pay equitable compensation on the basis of breach of trust, knowing assistance and for knowing receipt: LJ [1150]–[1151], [1188], [1206].
[35] Mr Tesoriero, Mr Papas’ business associate and very close friend, was found to have had actual knowledge of the fraud from the inception of the arrangements with Westpac and SMBC: LJ [437], [755], [918], [1155]. Accordingly, he held the money received on an imposed Black v Freedman trust: LJ [1156]. He was liable to pay equitable compensation on the basis of breach of trust, knowing assistance and for knowing receipt: LJ [1155]–[1158].
…
Tracing
General Tracing Principles
[206] Other than Iugis Investments and Smartprint, which were not party to the Financier Proceedings, all the entities held the stolen funds received by them on trust, and are accordingly, obliged to account for those funds, including in respect of those funds paid away: LJ [1148], [1152], [1169], [1175], [1197], [1201], [1205].
[207] Stolen funds in the hands of a thief are trust funds and cannot be divested of that character: Black v Freedman (1910) 12 CLR 105 at 110. Through tracing, a proprietary claim over an asset may be made by a victim where the trustee thief uses the stolen money to obtain the relevant asset. In Boscawen v Bajwa [1996] 1 QLR 328 Millett LJ said (at 334):
[Tracing] is the process by which the plaintiff traces what has happened to his property, identifies the persons who have handled or received it, and justifies his claim that the money which they handled or received (and if necessary which they still retain) can properly be regarded as representing his property. He needs to do this because his claim is based on the retention by him of the beneficial interest in the property which the defendant handled or received.
…
If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant and overcomes any defences which are put forward on the defendant’s behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances…
[208] The authorities recognise that a robust approach to fact finding in the context of tracing moneys and property in the context of theft or fraud is warranted: see, for example, Toksoz v Westpac Banking Corporation [2012] NSWCA 199; 289 ALR 577 at [9] (Allsop ACJ, Hoeben and Sackville JJA agreeing) citing R v Powell (1837) 7 Car & P 640 173 ER 280, Harford v Lloyd (1855) 52 ER 622, Black v Freedman, Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 and El Ajou v Dollar Land Holdings Plc [1993] 3 All ER 717.
[209] In Toksoz, Allsop ACJ (Hoeben JA and Sackville AJA agreeing) said (at [8]–[10]):
[8] Money can be traced notwithstanding an inability of the follower to connect each link in the chain of accounts. Commonsense and reasonable inference play their part, especially if there is fraud involved and if there is a lack of explanation, when the circumstances cry out for honesty to be explained, if it can be.
[9] …The expression “tracing by exhaustion” is sometimes used. Where the facts as proved are sufficient to permit the inference that moneys have been received or property bought without there being an honest source available to explain the wealth and the sums or value can be seen as referable to the following party’s property wrongfully obtained, such that the inference is open that the wrongfully obtained funds were the source of the wealth, the funds can be so treated. One does not need to be able to show every link in the chain of accounts from and through which the money passed. Inferences will be more easily drawn, as here, in circumstances where the funds were stolen, the person who is said to have provided the funds was one of the thieves who stole money from the follower, when the recipient has an apparent close relationship with the thief, which recipient gave no value for it, has no personal source of income and gives no explanation as to the source or circumstances of the receipt of the money or any honest source of it.
[10] None of this is the expression of a principle of law. It is the expression of the available approach to fact finding in the presence of fraud and lack of explanation when plainly called for.
[210] The authorities further recognise a number of claimant-favouring principles or presumptions that apply when a person seeks to trace. Of present importance is the principle that a delinquent trustee is presumed to dissipate their own funds prior to dissipating trust funds: Re Hallett’s Estate; Knatchbull v Hallett (1880) 13 Ch D 696.
[211] The ability to trace into property may be defeated if the relevant property has been dissipated: Foskett v McKeown [2001] 1 AC 102 at 130 (Lord Millett); Frontier Touring Co Pty Ltd v Rodgers [2005] NSWSC 668; 223 ALR 433 at [36]–[38] (Barrett J); Akers v Samba Financial Group [2017] AC 424 at [83] (Lord Sumption JSC). Equitable tracing presupposes “the continued existence of the money either as a separate fund or as part of a mixed fund or as latent in property acquired by means of such a fund”: Re Diplock at 521.
[212] As is well-recognised, the ability to trace into property may also be defeated if the property was acquired by a bona fide purchaser for value without notice of the existing equitable interest: Foskett v McKeown at 130–132. The ability to trace subsists against a volunteer, although so long as he or she is not on notice of the equitable interest, the ability to trace is “fragile”, as the volunteer may dissipate the property, leaving no traceable product: Independent Trustee Services Ltd v GP Noble Trustees Ltd [2013] Ch 91 3 All ER 210 at [77]–[78] (Lloyd LJ).
[213] In Heperu v Belle (2009) 76 NSWLR 230, Allsop P summarised the effect of the principle in Black v Freedman with respect to a volunteer recipient as follows (at [92]):
a person entirely innocent of a fraud who comes to know that he or she has received and still retains the proceeds of, or taken advantage of, a fraud to which he or she was not a party, cannot knowingly seek to retain those proceeds or that advantage, without, in effect, becoming a party to that fraud and liable accordingly…
Tracing into assets which have increased in value
[214] Several of the entities purchased real property using a combination of Financier stolen funds and loan money from third-party lenders secured by mortgages over the property purchased, in circumstances where the property the subject of the security was later sold at an increased value. The applicants submit that as victims of the fraud, the Financiers are entitled to trace into the whole of the increase in value.
[215] This issue arises in relation to the proposed distributions of the assets of the following entities:
(1) FGFS;
(2) 14 James Street;
(3) 5 Bulkara Street;
(4) 6 Bulkara Street;
(5) 26 Edmonstone Road; and
(6) 64–66 Berkeley Street.
[216] The applicants submit that the principle in Scott v Scott [1963] HCA 65; 109 CLR 649 (McTiernan, Taylor and Owen JJ) is not presently engaged. Accordingly, they submit that as trust beneficiaries the Financiers’ tracing remedy is not limited to the proportionate share of the increase in value of an asset based on the proportion of trust funds, as against non-trust funds, used to purchase the relevant assets. The applicants submit that for the following reasons the Financiers are entitled to the whole of the increase in value of the assets into which their funds have been traced.
[217] First, where, as here, the trustee or fiduciary does not purchase the asset with their own money and instead uses trust money combined with a loan secured by the asset being purchased, the trust beneficiary is entitled to the whole of increase in value of the asset. The applicants rely on Paul A Davies (Aust) Pty Ltd (in liq) v Davies (No 2) [1983] 1 NSWLR 440 (1982) 8 ACLR 1 in support of that proposition. In Davies, the directors of a company breached their duties by using company money, loaned to the directors, to purchase a real property in conjunction with a mortgage loan. President Moffit observed (at 448):
Accepting that it is appropriate to apply the principle applied by Hudson J in Scott in some cases, I think a distinction should be drawn and the principle not applied where the fiduciary does not provide his own money, but, having used trust money to provide the deposit and/or part of the purchase money so as to acquire an equitable interest in the property provides the balance by a mortgage loan on the security of the property. This is the view expressed by Scott on Trusts 3rd ed vol 5 p 3618. The provision of this money itself depends on the gain flowing from the breach of trust. In any event in the present case the two factors referred to are interrelated. It is difficult to think that when the sale was completed by the use of the mortgage loan moneys the procedures for the auction of this large country boarding house were not already well under way, so such mortgage money was provided on a bridging basis to enable the accrued gain to be realized. It can also be inferred that the whole of the balance of purchase money was provided by the bank without personal contribution by the respondents because of the increase in value of the property beyond the original purchase price.
(emphasis added)
[218] In reaching the conclusion that the company was entitled to the whole of the increase in value, Moffit P and Hutley JA did not treat the loan money as personal money of the fiduciary. The provision of the loan moneys flowed from a breach of trust: Davies at 447 (Moffit P) and 449 (Hutley JA). Mahoney JA preferred to rely on the no profit rule: Davies at 456–457.
[219] Davies was applied in Australian Postal Corporation v Lutak (1991) 21 NSWLR 584. In that case, Bryson J went further than the court in Davies by commenting that irrespective of how an investment is made, the trustee should not receive any profit. His Honour said (at 593):
In my opinion, if there is any difficulty of principle involved in understanding the judgments in Paul A Davies’ case the difficulty is why it would make a difference for entitlement to profits or gains whether or not the money which a trustee contributed to the mixed fund to make an unauthorised investment was all or partly his own or all or partly borrowed. The rule that a trustee may not derive a profit from his trust would seem to require that, irrespective of the source from which he raised his contribution, a trustee should not receive any profit related to that contribution; the whole of the profit of the investment should go to the beneficiary. That was the actual result in Paul A Davies’ case: see par (1) of the draft order of Hutley JA (at 452). The decision finally reached by Hudson J in Scott v Scottmay not be easy to reconcile with this principle but this part of his Honour’s judgment was not the subject of appeal to the High Court: see 109 CLR 649 at 657. In the High Court the principle was firmly restated with authorities (at 658, 659); see, too (at 661). The judgments in the Court of Appeal do not to my reading accept that if the amount borrowed from the Bank of New South Wales were treated as a capital contribution by the constructive trustees themselves, it would follow that they were entitled to a share in the profits.
(emphasis added)
[220] Accordingly, where, in the present circumstances, an entity purchased real property using only Financier money and a loan, the applicants submit that the Financier(s) will be entitled to the full increase in value of that property. This proposition is consistent with the no profit rule: Lutak at 593; Scott v Scott at 658; Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; 132 CLR 373 at 377–378 (McTiernan J) and 392–398 (Gibbs J).
[221] Secondly, even if the loan moneys were the relevant entity’s money by reason of them undertaking personal liability, that would not prevent the application of the no profit rule as noted by Mahoney JA in Davies. A trustee must account to the trust beneficiaries for any unauthorised profit which he has made from the trust or his position as trustee: Scott v Scott at 658; Consul Development at 377–378 (McTiernan J) and 392–398 (Gibbs J).
[222] The entities here were participants in the fraudulent scheme orchestrated by Mr Papas and Mr Tesoriero. I accept the force of the applicants’ submissions as to the distribution proceeding on the basis that the Financiers are entitled to trace into the whole of the increased value of the relevant assets with the consequence that the entities do not retain any profit derived from the fraud. The applicants are justified in approaching the distribution on this basis in the manner reflected in the proposed distribution addressed below.
(emphasis added)
A link to the decision is here.
Habermann v Cook Shire Council [2025] QSC 214 (26 August 2025) is an instructive decision in the space of personal injury litigation apropos of, principally, the scope of the duty of reasonable care owed by an employer to an employee. The context was the defendant employer’s management of the fact of an email fabricated by a person or persons unknown, but expressed to have its source in the plaintiff employee. The plaintiff was a longstanding – and ‘well qualified and high performing’ – employee who was employed as the defendant’s Governance and Risk Manager. She suffered a psychiatric injury in consequence of dissemination of the email, culminating in eventual tabling in State parliament. Henry J found the defendant liable to the plaintiff – for not taking steps, in discharge of a duty of care, to expose the email as a fabrication – and awarded damages of just under $2.4m. While the decision is lengthy, the relevant portions are these:
PART A: LIABILITY
[1] Ellana Habermann’s health and career was a casualty of the malevolent conduct of persons who fabricated an email in her name during a dispute with the Council at which she was employed.
[2] The fabricated email purported to be an internal Council email authored by Mrs Habermann to the Cook Shire Council’s Chief Executive Officer. It falsely portrayed her as racist and engaged in a deceitful misuse of her position to prevent a local aboriginal corporation, Gungarde,1 from assuming control of the lease of a failed waterfront cruise business which owed rent and rates to Council.
[3] The email was deployed by the director of the cruise business, Pamela Roberson, to encourage Council to settle a debt proceeding instituted by Council against her business. She testified she did not know it was a fabrication. Regrettably, Council botched what should have been the simple task of demonstrating the email was a fabrication. Its failure to do so heightened the risk of the fabricated email being broadcast to the public, thus perpetuating the allegation, implicit in its content, that Mrs Habermann was the author of it. That risk eventually manifested when a Member of Parliament, Mr Rob Pyne, tabled it in Parliament. The result of that public demolition of Mrs Habermann’s character was a lasting psychiatric injury and consequent inability to continue working.
[4] It is a well-established incident of the relationship between employer and employee that the employer owes the employee a duty to take reasonable care to avoid foreseeable risk of injury to the employee, including foreseeable risk of psychiatric injury.2 Mrs Habermann alleges Council failed, in exercising that duty, to avoid the perpetuation in the public domain of the allegation that Mrs Habermann was the author of the fabricated email. Such perpetuation would necessarily involve the accompanying perpetuation in the public domain of the fabricated email because it was the content of the fabricated email which represented Mrs Habermann as its author. I accordingly approach consideration of the alleged failure in exercising the duty of care in this case as a failure to avoid the foreseeable risk of psychiatric injury to Mrs Habermann from the perpetuation of the fabricated email in the public domain.
[5] Council submits that as a matter of law the scope of an employer’s duty of care cannot extend to guarding against foreseeable risks of employee injury posed by the conduct of third parties, because such third parties cannot be controlled by Council. If wrong about that, Council denies any breach or that it was causative of injury or that the injury was foreseeable.
[6] To aid determination of the scope of Council’s duty of care it is useful to consider the alleged path of causal connection as between the alleged want of care and the damage suffered.3 In this case that requires consideration of the context in which the existence of the fabricated email emerged, how it was responded to by Council, how its tabling in Parliament was a necessary cause of Mrs Habermann’s injury and whether there was a foreseeable risk that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain.
[7] It became clear by the close of evidence that a necessary causal step in the infliction of injury was the tabling of the fabricated email in Parliament by Mr Pyne. Self-evidently Council had no control over the decision-making of Mr Pyne. However, there may have been protective steps Council could and should have taken earlier, making it unlikely that those relying on the fabricated email would have persisted, in turn making it unlikely the fabricated email would have been provided to and tabled by Mr Pyne.
[8] In considering the path of causal connection these reasons will not dwell upon Council’s alleged failures to take some protective steps which, as Mrs Habermann’s counsel acknowledged,4 fell out of contention as the case progressed. By closing addresses, the potential protective steps attracting particular focus were steps to reveal facts demonstrating the falsity of the fabricated email to the director of the cruise business, Mrs Pamela Roberson and the CEO of Gungarde, Mr Greg Whittaker.5 These reasons conclude the fabricated email would not have been perpetuated in the public domain if Council had taken those steps.
[9] Mere proof of a path of causal connection does not prove liability in negligence. It will remain necessary to determine the scope of the duty of care, whether it was breached and whether causal responsibility for the damage ought be attributed to Council.
[10] Determination of liability will accordingly involve consideration of the following issues:
1. Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?
2. In what context did the existence of the fabricated email emerge?
3. What was Council’s response to the promulgation of the fabricated email?
4. How was the tabling in Parliament a necessary cause of Mrs Habermann’s injury?
5. Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?
6. Was there a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain?
7. What was the scope of Council’s duty of care?
8. Did Council breach its duty of care?
9. Did the breach cause the injury?
1. Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?
[11] Council submits that Council’s duty of care as an employer did not, as a matter of law, extend to taking reasonable care to prevent foreseeable risks of injury to employees posed by the conduct of third parties because they were not able to be controlled by Council. That submission must be rejected.
[12] The scope of an employer’s duty of care to its employees is informed by the employment context from which the duty derives. Thus, the duty’s scope extends to the context of the employee’s performance of work required by the employer.6 Conversely, it does not extend to preventing foreseeable risk of injury having no connection with the employee’s employment.
[13] What though of the scope of the employer’s duty as it applies to foreseeable risk of injury being inflicted by the conduct of third parties targeting employees because they are employees of the employer? Council submits that scope should only extend to cases in which the employer has a power to assert control over the conduct of third parties.
[14] That submission is substantially founded upon the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil.7 That was an occupier’s liability case, in which the plaintiff, an employee of a video shop in a large shopping centre, was attacked and injured by three assailants in the centre’s carpark after finishing work late at night. Gleeson CJ, with whom Gaudron and Hayne JJ agreed, held the centre did not have a duty to protect against injury resulting from the criminal behaviour of third parties.
[15] Gleeson CJ observed the ‘general rule’ is that there is no duty to prevent a third party from harming another, because the common law does not ordinarily impose liability for omissions. However, it was also explained there are exceptions to the general rule, deriving from relationships between parties; one such relationship being that of employer and employee.8
[16] In referring to the exception provided by the employer/employee relationship, Gleeson CJ cited Chomentowski v Red Garter Restaurant Pty Ltd,9 Public Transport Corporation v Sartori,10 and Fraser v State Transport Authority.11 The facts of each are instructive.
[17] In Chomentowski,12 an employee successfully sued an employer in negligence after being attacked by robbers when he was trying to lodge the takings of the employer’s business late at night at a bank’s night safe. It was held the foreseeable risk of such robbery could have been avoided by not exposing the employee to it, for instance by providing the employee with an armed guard or retaining the takings in a safe at the employer’s premises for banking the following day.
[18] In Sartori,13 the employer bus company was held liable in negligence after an employee was attacked by an intruder through an unlocked gate to the company’s employee carpark. To guard against the foreseeable risk of trespass by criminals the employer secured the carpark with perimeter fencing topped with barbed wire, accessed by a lockable gate with a newly installed lock. It breached its duty of care by failing to ensure the lock was operating.
[19] In Fraser,14 a female bus driver was required to ‘lay over’ in a secluded spot where she was dragged from the bus and attacked. There had been previous attacks. Her employer was found to have breached its duty to take reasonable steps to safeguard the driver from such an attack, like providing security at the lay over spot or changing its location.
[20] Note that in none of those cases did the employer have the power to control the conduct of the third party. In this, the exception to the general rule provided by the employer/employee relationship is different from some other special relationships. Compare the example, cited by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,15 of a gaoler owing a duty to protect a prisoner from attack by another prisoner. In that example the gaoler has the power to control the conduct of the other prisoner. At best the employer in the employer/employee cases cited by Gleeson CJ had the power to control the taking of steps to mitigate against the risk of attack upon an employee by a third party. It was a failure to take those protective steps which constituted the relevant breach in each case. In this context, it is to be appreciated that the object of the employers’ duty of care is the avoidance of foreseeable risk to its employees. That taking reasonable steps to try and avoid such risk may not guarantee success does not eliminate the existence of the duty.
[21] Council’s argument would have it that even if there are reasonable protective measures an employer can take to mitigate against the foreseeable risk of injury posed to employees placed in the path of third party harm because of their employment, the employer has no duty to act because it has no legal power of control over the third party. This ignores the notorious fact that the potential misconduct of third parties can be materially influenced, including deterred, by protective measures taken by others who have no legal power of control over them. It also ignores that employees are vulnerable to such harm because they are employed by the employer.
[22] It is the nature of the power relationship as between employer and employee, not the employer’s power over third parties, which justifies the exception to the general rule identified by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil.16 In that relationship there is a power imbalance, with the employee in the vulnerable position of acting in service of the employer.
[23] An employee’s service of an employer may potentially place the employee at foreseeable risk of harm from a third party. For example, a road worker at a road works site may be put at foreseeable risk of physical harm by a third party, such as an inattentive driver. A bank teller may be put at foreseeable risk of psychiatric harm by a third party, such as a terrorising bank robber. In such cases the employer has no legal power of control over the third party but that does not mean the employer is unable to take steps to mitigate against the risk of the third party harming its employee.
[24] Where an employer holds the power to take reasonable protective steps to avoid the foreseeable risk of injury posed by third parties to its employees, in their capacity as its employees, then the employer’s duty of care to its employees requires it to take such steps. What if any protective steps are reasonable to take will inevitably depend upon the individual circumstances of the case, including how onerous the steps may be relative to the magnitude of the risk and the apparent probability of the steps influencing the third party’s conduct.
[25] Before turning to the circumstances of this case, I note Council’s Third Further Amended Defence denied the pleaded duty because ‘any such duty would be inconsistent with the law of defamation’. Also, Council’s written outline of submissions asserted, citing passages in Tame v New South Wales,17 Council should not be found liable because any duty owed would be a duty to guard against what non-employees might publicly say about Mrs Habermann ‘which may have been inconsistent with the law of defamation’. However, the denial and the assertion attracted no actual submissions from Council.
[26] The existence of the law of defamation does not preclude the imposition of the duty of care contended for here. The passages cited in Tame derived from the principles which denied the existence of a duty of care in Sullivan v Moody.18 The potential incoherence of law with which those passages and principles were concerned was the imposition of a duty of care upon persons or entities which would be incompatible with other duties owed by a defendant.19 Council has not identified any duty it held which would be incompatible with it having a duty to take reasonable protective steps to avoid the foreseeable risk of psychiatric injury posed to Mrs Habermann as its employee by third parties perpetuating the fabricated email in the public domain.
[27] The only arguable basis faintly raised in the course of this case to suggest that Council’s duties or obligations obliged it to refrain from reverting to Mrs Roberson and Mr Whittaker with information demonstrating the fabricated email was fabricated, was privacy, but her privacy was only at risk if the email was perpetuated in the public domain. This provided yet a further reason for Council to revert to Mrs Roberson and Mr Whittaker. They already had the fabricated email. Privacy concerns were therefore of no application in communicating further with them about it, but provided ample reason to do so, so as to mitigate against the perpetuating of the email in the public domain by them or their associates.
2. In what context did the existence of the fabricated email emerge?
The converging paths of Mrs Habermann, Mrs Roberson and Mr Whittaker
[28] The plaintiff, Mrs Habermann, moved to Cooktown to commence the position of Procurement Officer with the defendant, Cook Shire Council, in 2006, aged 28. She enjoyed living there, became well settled there and has lived there ever since. She commenced a relationship with another Council employee, John Habermann, in 2007. They married in 2009 and had three children, in 2010, 2012 and 2016.
[29] Mrs Habermann, a well-qualified and high performing employee, rose in Council to the position of Business Services Manager and subsequently the position of Governance and Risk Manager. Her roles at Council involved her implementing Council’s improved compliance with the laws and regulations binding local government, including in respect of tenders for Council related work and assets. The professional performance of such a modernising ‘change agent’ role would inevitably have attracted some resentment. That is particularly so in a region where, as former CEO Timothy Cronin testified, some people think ‘there are no rules north of the Daintree’.
[30] Council leased a waterfront property on the Endeavour River in Cooktown to Cayman Cruises Pty Ltd trading as Cooktown Cruises. Its principals, Pamela and Lyle Roberson, ran a cruise boat business from there, but it had suffered losses through interruptions to trading because of family illness related obligations and supply chain difficulties. Cayman Cruises advertised to sell the business in late 2011, hoping to pay their outstanding rent and rates to Council from the proceeds.
[31] At one point Mrs Roberson spoke with Mr Greg Whittaker, CEO of Gungarde, about the possibility of Gungarde buying the business. Mr Whittaker became interested in the possibility of Gungarde’s involvement if it could have a 10-year lease. Cayman Cruises’ lease had less than four years to run.
[32] On 27 August 2013 Mr Whittaker met Mayor Peter Scott in the presence of Mrs Habermann and Mr McCrae, the manager of Council’s planning and environment section. Mrs Habermann thinks the Council’s then CEO, Mr Wilton, may also have been there. Mr Whittaker informed the meeting that Gungarde was a prospective purchaser of Cayman Cruises’ business. He said they were seeking Council’s confirmation, in the event of such purchase, that the Cayman Cruises lease would be assigned or transferred to Gungarde and extended to become a 10-year lease.
[33] Mrs Habermann’s presence had been requested to explain procedural processes. She explained the process was that the lease should be put to public tender. That she provided such advice is unremarkable given the lease was an income generating public asset and a lease of 10 years was mooted. As she explained in evidence, there can be exemptions, but the orthodox course is to put such an asset to public tender. In the years to come, that provision of bureaucratically orthodox advice may have identified her as an illogical target of resentment by persons who perceived that Cayman Cruises’ travails could have been solved back when Gungarde showed interest.
[34] Mr Whittaker advised his board against buying Cayman Cruises’ business in the absence of the assurances he had sought from Council. As for Cayman Cruises, Mrs Roberson had made repeated written requests on its behalf to Council seeking waiver of outstanding rate and rents owed and advising the business was up for sale.20 The requests had gone unanswered by Council so she complained to the Ombudsman.
[35] Mrs Habermann was unaware of these unanswered requests and only came to know of that problem incrementally through August and September 2013. In that era she learned Mrs Roberson had complained to the Ombudsman and then spoke with Mrs Roberson and went through the letters Mrs Roberson had forwarded to the Ombudsman’s office.
The authentic email and the fabricated email
[36] On 13 September 2013 at ‘4:39:58 PM’ Mrs Habermann sent an email (‘the authentic email’) to Cayman Cruises’ Mrs Roberson, cc’g Council’s CEO Stephen Wilton, regarding Council’s failure to address repeated requests by Cayman Cruises to waive outstanding rates and rent owed and wanting to know if they had gone before Council.21
[37] This authentic email, of 13 September 2013, began:
Good afternoon Pam,
I am sorry for the delay. I was going to contact you mid-week but things got away from me.
After we spoke the other week I went through the various letters you forwarded to the ombudsman office. I am very sorry your requests have not been acknowledged and you have not received timely information or action with reference to your inbound correspondence.
Based on the information in those letters and our talk, I have determined your matter in issue to be as follows:
1. You have made multiple requests to have your outstanding rates and rent (over the Webber Esplanade lease) waived as a concession to genuine hardship. You have received no response to these requests, but have received ongoing demands for both overdue rates and rent in arrears.
2. You would like to know whether your request for consideration has gone before Council; and
1. if yes, what was the outcome? Or
2. if no, why has it not gone before Council?
With reference to the above, I have established that your request has not yet gone before Council. For this I apologise. It is very poor that it has taken so long to action and that, despite your letters to Council, no decision has been reached. In this case the reason for the delay is that the letters were going to one department but were not being seen by our accounts, leasing and rates department — the department who would have actioned your request and who have been sending you letters of demand. This must have been very frustrating for you and is a failure in our operational processes. I will look to have this failure rectified so that it does not happen again.
To put things right, and to make sure you are awarded a decision as soon as possible, I will undertake to place your request for concession before the October Council meeting. …22
[38] The email continued in a similarly professional tone, requesting the provision of some further information. It finished with these words:
If I receive that documentation by the end of the first week of October, your report will go before the October Council meeting. I hope this is an acceptable outcome to your complaint?
Kind regards and sincere apologies
[39] Beneath that appeared Mrs Habermann’s standard email descriptors containing her name and position, along with her phone, fax and mobile numbers, her email address, Council’s website address and its postal address.
[40] It is contextually helpful at this point to explain the content of the fabricated email. It was created about three years later but its fabricator pretended it was written by Mrs Habermann at virtually the same time as the authentic email. It purported to be an email from Mrs Habermann to then CEO Stephen Wilton at his Council email address. Its subject title was endorsed ‘Meeting’. It was purportedly dated ‘Fri, 13 Sep 2013 16:39:57+1000’. The ensuing content was:
I am sorry for the delay.
I was going to contact you but things got away from me. We had the meeting with Greg Whittaker. He’s looking to purchase the Webber Esplanade lease of Cayman Cruises Pty Ltd. Ms Roberson has made multiple requests to have outstanding rates and rent waived as a concession to genuine hardship or until it sells. We have made no formal response to these requests. This has not put her off and the request for consideration has to go before Council soon as she has contacted the Ombudsman’s office.
After meeting with Greg Whittaker, I went through the various files you forwarded me and with what the ombudsman sent through I have sufficient information to make sure the decision is made in our favour. It was bad enough that we had to hand over the housing to the dirty bastards we don’t want them down there. I will undertake to write and place a request before the October meeting. No action has been taken with the adjacent lease at this time although I am trying to stop that progressing.
I can assure you this report will be handled with discretion. I will ensure it is kept secure.
Contact me if you have any questions. I hope this is an acceptable outcome.
Kind regards (emphasis added)
Mrs Habermann’s name, position and contact details then followed.
The facts persuasively demonstrated the email was a fabrication
[41] I find this email was a fabrication. As much was clearly established, but regrettably not clearly explained or announced, when examination of Council’s email system confirmed the fabricated email had not existed within it. There was also a persuasive array of other facts demonstrating it was a fabrication.
[42] In summary, those facts were:
(1) The only purported metadata ever provided for the fabricated email is for a document created in July 2016 in an author field named ‘Roberson family’.
(2) The fabricated email’s content and that of an email trail supposedly connected to it have 10 discrepancies from a genuine Council email on their face.
(3) The purported time of the fabricated email is a mere one second’s difference from the genuine email. It is unlikely the same sender could have engineered, let alone bothered to engineer, such extraordinary synchronicity.
(4) The fabricated email commences with the same opening words as the genuine email. That is an implausible coincidence. The opening words of the genuine email have obviously been copied in an attempt to mimic Mrs Habermann’s style of expression.
(5) The fabricated email’s substantive content smacks of contrivance. Note the conspiratorial closing assurance of secrecy, ensuring ‘it is kept secure’. The reference to ‘it’ could contextually only have been either the content of the email itself or the report to be made to Council for the decision. If it was the content of the email, the very use of email, instead of a simple conversation, would have been creating evidence of the secret. If it was the report to Council then it was no secret — the evidence shows Mrs Habermann gave Mrs Roberson a copy of the report which she gave to Council. Another contrived aspect of the content is its reference to having to ‘hand over’ housing. That is a contortion of the unsensational reality, explained in Mr Whittaker’s evidence, that Council had ceased some involvement in social housing whereas Gungarde had continued its involvement.
(6) The fabricated email’s content is at odds with the objective evidence of how Mrs Habermann in fact behaved within Council on that very day regarding Mrs Roberson’s lease. For example, at 4.15 pm on 13 September 2013, only 25 minutes before the alleged sending of the fabricated email, Mrs Habermann sent an email to Anne Kelly and Kirstin Fletcher of Council’s rates and arrears section, cc’g CEO Stephen Wilton. Its message content, excluding salutations, was:
Can you please put a halt on any further follow-up to rent and rates in arrears with reference to the Webber Esplanade Lease (Cayman Cruises). They have been asking repeatedly that their outstanding debt be put before Council for hardship consideration, and we (including myself) have been chasing them for those debts, without responding to their request for hardship. Right and left hand not talking to each other.
So, given they have now taken this to the ombudsman (and it looks like we really should have gotten back to them before) I’ll put their request before Council next month, and then we’ll have a concrete decision as to how we go forward.
I’ll keep you posted.23
The content of that email demonstrates that Mrs Habermann’s solicitous attitude to Mrs Roberson’s problems with Council, as contained in the authentic email to Mrs Roberson, was mirrored by the attitude Mrs Habermann was exhibiting in internal Council correspondence about the matter at that very time. It is inconsistent with the sinister attitude the fabricated email depicts her as having at that time in her internal Council correspondence.
(7)The fabricated email’s substantive content is inconsistent with evidence of Mrs Habermann’s demonstrated professionalism and empathy towards the Indigenous community in her work on behalf of Council and, for that matter, in her studies. As to the latter, Mrs Habermann’s thesis in achieving her Masters in Urban and Regional Planning in 2012 was on an inclusive strategy for Indigenous land use, planning and development for land returned to traditional owners on Cape York.
(8)As soon as the fabricated email was provided to Mrs Habermann, she emphatically and convincingly denied writing it. She pointed out many of the above facts, explained the email would not be in Council’s system because it was a fabrication. Further, in an unlikely step to take if she had authored the email, she specifically requested Council to appoint an independent IT expert to examine Council’s email system so as to establish the truth.
Mrs Habermann put Mrs Roberson’s request to Council, but Council rejected it
[43] On 3 October 2013 Mrs Habermann sent an email to Mrs Roberson advising she had placed an attached report before Council for its consideration as ‘Committee of the Whole’.24
[44] True to her word, Mrs Habermann had submitted a confidential request to Council’s Committee of the Whole in early October 2013. It was headed, ‘Request for waiver of rent and rates in arrears — Cayman Cruises’. It neutrally explained the matter’s history, the regulatory framework to be applied by Council regarding eligibility for concessions due to hardship and the nature of the lessor’s hardship. It concluded by identifying the alternative potential decisions which it was for Council to make, namely:
a. grant a full rebate of all rates and charges and write off the outstanding lease rental;
b .refuse the application for a rebate and refuse the application to write off the debt for outstanding lease rental;
c. defer payment of rates, charges and lease rentals until the business is sold;
d. grant a concession of 50% or other percentage determined by Council on all outstanding rates, charges and lease rentals.25
[45] Council resolved not to waive, write-off or defer the outstanding rates and rent.
[46] About a year later, on 13 October 2014 Council took possession of the leased property because Cayman Cruises had failed to remedy its breach of not paying rates and rent.26
…
5. Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?
Council’s conduct caused the tabling
[196] Working backwards, the causal pathway to the tabling of the document in each instance was that they were provided to Mr Pyne by Ms Leigh. In the first instance Ms Leigh obtained it as assistant to Mrs Roberson and in the second instance received it from Mr Whittaker. The cause of the documents being so obtained and provided in each instance was Council’s own conduct.
[197] Broadly speaking that conduct was a failure to properly investigate the fabricated email and demonstrate its falsity in a timely way to those who had raised it with Council — Mrs Roberson, in her debt case, and Mr Whittaker, in his meeting with Mr Cronin. In a directly causal sense that conduct was Council’s failure to revert to Mrs Roberson and Mr Whittaker regarding the outcome of its investigation of the fabricated email, in circumstances where it knew both expected it was going to do so.
[198] It should have been a simple task for Council to demonstrate the fabricated email had not emanated from its email system. Demonstrating that fact alone would demonstrate the falsity of the fabricated email. Moreover, as explained at [42] of these reasons, there was a persuasive array of other facts demonstrating it was a fabrication.
[199] A remarkable feature of this case is that, despite the ease with which it could have been done, Council failed to even attempt to reveal to Mrs Roberson and Mr Whittaker the facts which demonstrated the fabricated email was a fabrication. Even more remarkably, it failed to revert to them in a timely way on the topic in circumstances where it knew they were both expecting it to do so.
[200] Council in effect argues that none of this matters, because, once the fabricated email was in the hands of Ms Leigh, it was inevitable that she would have passed the email on to Mr Pyne and it would have been tabled in Parliament. That argument must be rejected.
[201] Before explaining why, I note Council acknowledged in closing submissions that it was unnecessary to deal in a separate sense with Council’s causal responsibility for the second tabling,70 as if a line could be drawn between the role of the two tablings. I agree. However, out of an abundance of caution, I will nonetheless explain why neither tabling would have occurred but for Council’s conduct and continue to assess liability by reference to both.
The first tabling would not have occurred but for Council’s conduct
[202] Had Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, there of course exists the possibility that Mrs Roberson would not concede the demonstration satisfied her that the email was a fabrication. After all, she was intimately connected with the revealing of the fabricated email and would have appreciated that she or someone with access to her email system would be suspected of fabricating it.
[203] However, even if she did not make that concession, it is inherently implausible in the face of Council providing facts demonstrating the email was fabricated, that Mrs Roberson would have continued to rely upon, let alone promulgate, the fabricated email. If she had been the fabricator of the email she would have realised, now she knew Council could show it was a fabrication, that the stakes were considerably higher and riskier for her. She would have realised persisting in relying upon or promulgating the fabricated email may provoke civil action or even criminal prosecution against her. If she had not been the fabricator of the email, she would at least now have realised the email had probably been fabricated and fabricated by someone close to her. In such circumstances it is most unlikely she would have continued to rely upon or promulgate the fabricated email.
[204] Such a conclusion is consistent with the fact that on Mrs Roberson’s account, she began to have regrets about what she may have unwittingly done when she learned in an Anti-Discrimination Commission proceeding that Mrs Habermann had emphatically denied writing the fabricated email and had pointed out a discrepancy with the timing. If a denial and a timing discrepancy were enough to sow doubt it is inevitable that Council’s provision of the facts demonstrating the fabrication would have had an even more compelling effect.
[205] That said, in judging what would likely have occurred had Council done what it should have, I place weight upon the objective evidence of the facts prevailing at the time and the inferences flowing from those facts, rather than the subjective views hypothesised by witnesses with the benefit of hindsight. Such views carry no material weight because they are inevitably infected by the natural individual inclination to minimise, rationalise and justify the individual’s involvement in doing unwarranted harm to another.
[206] That point is relevant to the evidence of Ms Leigh as well. In cross-examination of Ms Leigh, Council’s barrister explored with her whether, if she had seen exhibits 23 and 26, it would have made any difference to whether she would have gone to Mr Pyne. In each instance she looked only briefly at each exhibit, explaining that she had seen them about a month ago. For the reasons just discussed, and the ensuing reasons, I give no weight to her responses on the topic.
[207] Exhibit 23 is the email Mrs Habermann sent on 14 September 2016 to Mr Cronin and others, describing what she had been told by Charlie Martin in his phone call about the email — implicitly the fabricated email — of which he had been told. Ms Leigh was asked if she had been shown that email before she went to Mr Pyne whether it would have made any difference. It is to be appreciated she had given Mr Pyne a dossier of other information, not merely the fabricated email. She asserted she would still have ‘given him all the evidence I had, which would have included that email’. However, when asked whether she would have told Mr Pyne that she did not accept what Mrs Habermann wrote, she responded, less definitively:
Not in total. No … I have problems. I would have given certain parts of it little to no weight. Some parts of it, I’m not sure about. To me they didn’t answer the questions that I was asking about.
[208] Exhibit 26 was Mrs Habermann’s email to Mr Cronin and others of 23 February 2017 in which she provided her comprehensive and persuasive denial of authorship of the fabricated email by specific reference to various aspects of it and other information. When it was put to her that even if she had that email in her possession, it would not have made any difference and she would still have taken the fabricated email to Mr Pyne, her response was, ‘Yes. Because I was waiting for the independent report’. She elaborated upon that answer in re-examination, explaining the fact that Mrs Habermann’s email was asking for an independent investigation left her concerned that there was no independent investigation undertaken and that such a failure was part of the maladministration of Council. It is to be appreciated in this context that the dossier she provided to Mr Pyne evidently included an array of examples of alleged maladministration by Council.
[209] I found this evidence inherently implausible. It betrayed an obvious realisation by Ms Leigh that the content of Mrs Habermann’s email of 23 February 2017, exhibit 26, was very persuasive in indicating she did not write the fabricated email. Ms Leigh’s hypothesis that she would nonetheless have provided the fabricated email to Mr Pyne, not because it was a fabrication but because Council’s failure to provide the outcome of its investigation to Mrs Roberson was an example of maladministration by Council, was not credible. Moreover, it was a flawed hypothetical because, if she had known there were such persuasive indications as those appearing in Mrs Habermann’s email of 23 February 2017, such knowledge would likely have emerged via Council’s disclosure of it to Mrs Roberson. That corrupts the premise of a hypothesis which assumed Council did not revert to Mrs Roberson on the topic.
[210] I have already found that if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, she would not have further relied upon or promulgated the email. However, once Mrs Roberson would have decided that the fabricated email should not be further relied upon or promulgated, it is inherently unlikely Ms Leigh would nonetheless have included the fabricated email in her documents provided to Mr Pyne. In this context it will be recalled Ms Leigh was Mrs Roberson’s assistant in the debt case in which the fabricated email had been deployed. Ms Leigh undoubtedly had a dim view of Council and was motivated to pursue the public promulgation of documents unfavourable to it. However, Mrs Roberson was the legitimising source of the fabricated email and Ms Leigh’s active role in connection with the fabricated email had been as Mrs Roberson’s assistant. Ms Leigh was most unlikely to promulgate it once Mrs Roberson had been provided with the facts demonstrating it was fabricated and decided she would no longer rely on it.
[211] That conclusion is not undermined by the fact Ms Jerome had been the first person to have given Ms Leigh the fabricated email. Ms Leigh well knew the context in which that had occurred was part of the process of Mrs Roberson being supported by them in respect of the debt case. The strength of the connection with the case is apparent in the content of Mrs Roberson’s statement of 7 July 2017 about releasing documents, a statement I have found was likely created to validate Ms Leigh’s possession of documents including the fabricated email.
[212] Even if Mrs Roberson did not provide her statement of 7 July 2017 to Ms Leigh or do so appreciating it was for her intended dealings with Mr Pyne, it is unlikely that Ms Leigh would have provided the fabricated email to Mr Pyne. That is because if Council had reverted to Mrs Roberson, as it had undertaken to do, and revealed the facts demonstrating the fabricated email was a fabrication, as it easily could have done, Ms Leigh would inevitably have been told of that fact. Her motivation to deploy the fabricated email, as part of her promulgation of documents unfavourable to Council, would consequently have been eliminated. Further, the realisation of her suspicious proximity to the person or persons who had apparently been engaged in such wrongdoing would have deterred her from being involved in publishing the email. She would not have provided the fabricated email to Mr Pyne.
The second tabling would not have occurred but for Council’s conduct
[213] The same reasoning applies in respect of Ms Leigh’s provision of Mr Whittaker’s statement to Mr Pyne, which gave rise to the second tabling in Parliament.
[214] It will be recalled I have found Mr Cronin knew Mr Whittaker expected Mr Cronin would get back to him about the investigation of the fabricated email. Mr Cronin did not get back to Mr Whittaker. Mr Whittaker thus continued to think the fabricated email was genuine. That belief was unwittingly reinforced when he wrongly assumed Mrs Habermann’s tearful call of thanks to him was an admission. He would have been disabused of that belief and assumption if Mr Cronin had reverted to him about the investigation of the fabricated email and revealed the facts which demonstrated the fabricated email was a fabrication.
[215] Because Mr Cronin did not revert to him about the matter, Mr Whittaker became frustrated by Council publicly proclaiming in the wake of the first tabling that the fabricated email had been found to be a fabrication by an independent external investigation. Ms Leigh was likewise troubled by the implication of that publicity, despite Mrs Roberson not having been given the results of Council’s investigation. She accordingly encouraged and assisted Mr Whittaker to make the statement which she provided to Mr Pyne and which was then tabled on the second occasion.
[216] Whether approaching the causal equation directly or indirectly, the second tabling would not have occurred but for Council’s conduct.
[217] Approaching the causal equation directly, Mr Whittaker would not have provided his statement to Ms Leigh, and thus she would not have provided it to Mr Pyne, if Council had reverted to him and revealed the facts demonstrating the fabricated email had been fabricated. Had that occurred it would invariably have prompted a realisation, or dialogue resulting in a realisation, that he had misunderstood the significance of Mrs Habermann’s tearful telephone call to him. As with Mrs Roberson, even if he was not completely persuaded the email was a fabrication, it is inherently implausible in the face of Council providing facts demonstrating the fabricated email was fabricated, that he would have been motivated to promulgate the fabricated email, let alone do so via the provision of his statement to Ms Leigh.
[218] Approaching the causal equation indirectly, by reference to what would have occurred if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email had been fabricated, I have already found Ms Leigh would not have provided the fabricated email to Mr Pyne. It follows she also would not have encouraged Mr Whittaker to make his statement or been motivated to provide that statement to Mr Pyne as she did.
[219] Indeed, even if Council had not reverted to Mr Whittaker directly, and only reverted to Mrs Roberson, it is likely Ms Leigh and Mrs Roberson would have informed him of Council’s reversion and provision to Mrs Roberson of the facts demonstrating the fabricated email had been fabricated. That is likely because they had previously communicated with Mr Whittaker about the fabricated email. In such circumstances Mr Whittaker is also unlikely to have provided his statement to Ms Leigh.
The fabricated email was otherwise unlikely to find its way into the public domain
[220] The above reasoning explores the counter-factual of what would have happened if Council had reverted to Mrs Roberson and Mr Whittaker as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. If that occurred then, for the above reasons, it is unlikely that they or Ms Leigh would have perpetuated the fabricated email in the public domain.
[221] This only leaves Ms Jerome, and arguably Mr Martin, as other potentially known sources of knowledge about the email in the community. Ms Jerome’s situation was very closely allied to that of Mrs Roberson and Ms Leigh. She knew of the fabricated email because she was helping Mrs Roberson. Indeed, it was her that supposedly discovered it. Had Council reverted to Mrs Roberson and revealed the facts demonstrating it was fabricated, Ms Jerome would doubtless have been advised of that by Mrs Roberson. Ms Jerome’s proximity to what had occurred meant she was unlikely to have promulgated the fabricated email, for the same reasons I have explained Mrs Roberson was unlikely to have done so.
[222] This leaves Mr Martin. There is no evidence he was ever in actual possession of a copy of the fabricated email. In any event, his own conduct in twice warning Mrs Habermann about it demonstrates he was unlikely to perpetuate the fabricated email in the public domain.
[223] Of course, it is theoretically possible that some other person, not identified in evidence, may have had a copy of the fabricated email and possible such a person may have been tempted to broadcast it. However, I can only act on the evidence as known. If there existed evidence of the email having been distributed or shown to persons in the community other than those named in these reasons, Council would doubtless have led such evidence.
[224] In any event, the evidence suggests the set of persons in the community who did have a copy of the email were closely connected. This makes it likely, if some other person had a copy of it, that they were on the fringe of that set. It in turn makes it likely, had Council reverted to Mrs Roberson and Mr Whittaker per the above discussed counter-factual, that they would have learned of the facts demonstrating the email was fabricated. Such knowledge would likely deter such a person from promulgating the email, particularly in circumstances where the central members of the set were likely to be so deterred.
[225] In my conclusion, on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated.
…
7. What was the scope of Council’s duty of care?
[255] Council in effect submits the scope of its duty to take reasonable care to avoid exposing its employee to unnecessary risk of injury did not extend to taking steps calculated at avoiding the foreseeable risk of the fabricated email being perpetuated in the public domain.
[256] In considering the scope of the duty of care, Hayne J explained in Modbury Triangle Shopping Centre Pty Ltd v Anzil,71 that it is useful to begin by identifying the nature of the harm, for which the defendant is said to be liable. Then, consideration of whether that harm, if caused by the want of care alleged, resulted from a breach of duty owed, may more readily identify the scope of the duty on which the claim must depend.
[257] Here the harm was a major depressive disorder with anxious distress. That psychiatric injury was caused by the fabricated email being perpetuated in the public domain. I have found there was a foreseeable risk of Mrs Habermann suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. I have found the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating that it was a fabrication, in a timely way.
[258] Accordingly, for the harm to have resulted from a breach of duty owed, it is necessary that the scope of Council’s duty, required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way.
[259] Such a scope is beyond that often encountered in workplace injury cases where there is risk of injury to a person performing a task in the workplace and a need to safeguard against that risk by devising a safe system of work. However, the scope of the duty of care in each case is not identifiable in the abstract and will depend upon the circumstances of the case. There is no logical justification for limiting the scope of the employer’s duty of care by reference to systemic workplace considerations.
[260] Some cases may involve situation specific circumstances, the novelty of which carries them beyond the circumstances typically contemplated by a so-called system of work. Of course, their novelty may inform assessment of foreseeability. But once an employer is aware of those circumstances, and that they pose a foreseeable risk of injury to an employee in their capacity as an employee, that knowledge informs the scope of the duty owed in those circumstances. It does here.
[261] Council knew, or acting reasonably should have known, that the fabricated email had not been authored by Mrs Habermann and she had been maliciously targeted by the fabricators of the email, because she was Council’s employee. More specifically, it should have realised Mrs Habermann was targeted because she had some involvement in Mrs Roberson’s request to Council for rent and rates relief and in Mr Whittaker’s meeting with Council about Gungarde potentially taking over Cayman Cruises’ lease.
[262] Council had to have appreciated the content of the fabricated email was controversial and there was a real risk of it being broadcast to the public.
[263] Council knew Mrs Habermann was in a position of special vulnerability. She did not have the power to investigate Council’s email system to demonstrate she had not authored the fabricated email. Council would not delegate such a power to her. She had to be kept at arm’s length from the investigation because the fabricated email evidenced serious misconduct by her if she had been its author. It was Council which had the power to arrange for an investigation to be conducted.
[264] For the same reasons Mrs Habermann was powerless to advocate and demonstrate the falsity of the fabricated email to those who had raised it with Council, namely Mrs Roberson and Mr Whittaker. Again, it was for Council to so advocate and demonstrate. Council could have been in no doubt about this. Council was the plaintiff in the case in which Mrs Roberson had raised the fabricated email and it was its CEO, Mr Cronin, who Mr Whittaker had raised the fabricated email with.
[265] In New South Wales v Napier,72 where a prison worker suffered psychiatric injury as a result of the threats and actions of prison inmates, Spigelman CJ considered that case’s combination of the inter-related elements of vulnerability, control and assumption of responsibility created a relevant duty of care. Those elements are inter-related here.
[266] Mrs Habermann’s vulnerability to the devastation of her reputation by the potential perpetuating of the fabricated email in the public domain was all the greater because it was Council, not her, which had control of the steps needing to be taken to try and protect her. It was within Council’s power to investigate the fabricated email, gather the facts demonstrating it was fabricated and reveal those facts to Mrs Roberson and Mr Whittaker, to mitigate against the risk of the fabricated email being perpetuated in the public domain.
[267] It may be accepted that Council’s assumption of responsibility for investigating the fabricated email and raising an expectation it would revert to Mrs Roberson and Mr Whittaker about what it learned, did not mean it had a duty to do so. That it made such a choice merely bespeaks Council’s obvious awareness that it owed that assumption of responsibility, and its competent execution, to an employee who had been maliciously targeted in her capacity as Council’s employee and was beholden to her employer to try and protect her.
[268] To adopt the language of Lord Atkin’s seminal judgment in Donohue v Stevenson,73 Mrs Habermann was a person so closely and directly affected by how Council responded to the provision of the fabricated email to it by Mrs Roberson and Mr Whittaker that Council ought reasonably have had her in contemplation as being so affected when directing its mind to its response.
[269] Council knew there was a risk of the fabricated email being perpetuated in the public domain and it knew that risk would be heightened if Council did not reveal the facts demonstrating it was a fabrication to Mrs Roberson and Mr Whittaker.
[270] Of course, there could be no guarantees from Council’s perspective that the fabricated email would not make its way into the public domain even if it did revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email. But it was obvious that if it did not do so the risk of that occurring, with inevitably devastating consequences to Mrs Habermann, was much higher. Mitigating against that risk by doing so was an obvious protective step to take in Council’s exercise of its duty to take reasonable care to avoid exposing its employee, Mrs Habermann, to unnecessary risk of injury.
[271] This accumulation of circumstances amply demonstrates why it is appropriate for the scope of Council’s liability to extend to the injury caused by its below discussed breach of its duty of care.
[272] I find the scope of Council’s duty required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way. It is inherent in that scope that Council should do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email.
8. Did Council breach its duty of care?
[273] Contrary to it being within the scope of its duty, Council did not revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. The only evidence of Council providing either of them with such facts was Council’s provision of Mr Newman’s report to Mrs Roberson long after the tablings had occurred and the harm had been done.
[274] There are two components to that apparently clear breach, in that it was not enough to merely revert to them but also necessary, in doing so, to reveal the facts demonstrating the falsity of the fabricated email to them. Council’s failure to do the first, necessarily means it failed to do the second.
[275] It is therefore unnecessary to express a concluded view as whether Council failed to do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email. Obviously what it had done left it much less well prepared to do so than it easily should have been. It had obtained an obscurely expressed report from a non-IT expert and took no remedial action to correct those shortcomings.
[276] In any event Council’s failure to revert necessarily meant that, whether properly prepared to or not, it failed to reveal the facts demonstrating the falsity of the fabricated email to them.
[277] Finding whether there has been a breach of duty requires assessment of the magnitude of the risk of injury and its degree of probability because that bears upon what a reasonable employer would do by way of response to the risk.74 This is reflected in the requirements of s 305B(1) and (2)Workers Compensation and Rehabilitation Act 2003 (Qld).
[278] The effect of s 305B(1) is that Council will not have breached its duty to take precautions against a risk of injury to Mrs Habermann unless the risk was foreseeable and not insignificant and a reasonable person in Council’s position would have taken the precautions.
[279] I have found there was a foreseeable risk, that is, a risk of which Council knew or ought reasonably to have known, of any person in Mrs Habermann’s position suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. In making that finding I identified the collectively extreme prevailing circumstances and how the set of connected people who knew of the fabricated email prior to the tabling were more than ordinarily motivated to publicise it. I also explained how the risk of them revealing the fabricated email to the public was even more significant if Council did not investigate and demonstrate that the email was a fabrication to those expecting it to revert to them about it.
[280] Council submitted that it was in an invidious position because any course of action it took carried the risk in effect of provoking the perpetuation of the fabricated email. It is unnecessary to consider that submission by reference to the alleged failures to take protective steps which fell out of contention as the case progressed. The submission may have been pertinent to some of those alleged failures, but it must be rejected in respect of its application to the failure to reveal to Mrs Roberson and Mr Whittaker the facts demonstrating the email was fabricated. As these reasons have explained, choosing to revert to those persons in that way would lower risk and choosing not to do so would heighten risk.
[281] In the circumstances I readily conclude a reasonable person in Council’s position would have reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating the falsity of the fabricated email to them, in a timely way.
[282] As to s 305B(2), it requires that in deciding whether Council as a reasonable person would have taken precautions against risk of injury, the court consider the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury. As I have explained, failure to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way, heightened the probability of perpetuation of the fabricated email in the public domain and thus the probability of the occurrence of injury. Council’s own CEO at the time has testified the consequences would be devastating to Mrs Habermann. I have found that psychiatric injury to her or any employee in her position was a foreseeable consequence because of how objectively extreme the circumstances were.
[283] In the face of all this the burden of taking precautions to avoid the risk of injury merely involved Council doing something which was as much in its interests as it was in its employee’s. Mrs Habermann had, in her email of 23 February 2017, spoon fed Council in demonstrating how easy it could be for Council to assemble facts demonstrating the falsity of the fabricated email and in turn reveal those facts to the very people who expected it would do so. The burden of doing so was light. It is extraordinary that Council botched what should have been such a simple exercise.
[284] I find Council breached its duty of care to Mrs Habermann to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way.
9. Did the breach cause the injury?
[285] Section 305D(1) Workers Compensation and Rehabilitation Act provides the elements of deciding that a breach of duty caused an injury are:
(a) the element of factual causation, namely that the breach was a necessary condition of the occurrence of the injury; and
(b) the element of scope of liability, namely that it is appropriate for the scope of Council’s liability to extend to the injury so caused.
[286] The section thus adopts the ‘but for’ test of causation. Mrs Habermann was accordingly required to prove that her psychiatric injury would not have occurred but for Council’s negligence in failing to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. I have found on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as they expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. I have found it was the perpetuating of the fabricated email in the public domain which caused Mrs Habermann’s psychiatric injury. It follows Mrs Habermann would not have suffered her psychiatric injury but for Council’s negligence.
[287] Further, for reasons already given in dealing with the scope of liability, it is appropriate that the scope of Council’s liability should extend to causation of a foreseeable injury which would not have occurred if Council had met the undemanding duty of care which the circumstances of this case placed upon it.
[288] I accordingly find Council’s breach of its duty of care to Mrs Habermann caused her injury. Council is liable for the consequences thereof.
…
(emphasis added)
A link to the full case is here.
1 Gungarde Community Centre Aboriginal Corporation.
2 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 , 53.
3 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 , 290 [105].
4 T6–74 L 30–75 L 28.
5 The failed steps in effect alleged at [20(b) and (d)] of the Second further Amended Statement of Claim.
6 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44.
7 (2000) 205 CLR 254 , 290.
8 (2000) 205 CLR 254 , 265 [26].
9 (1970) 92 WN (NSW) 1070.
10 [1997] 1 VR 168.
11 (1985) 39 SASR 57.
12 (1970) 92 WN (NSW) 1070.
13 [1997] 1 VR 168.
14 (1985) 39 SASR 57.
15 (2000) 205 CLR 254 , 292 [111].
16 (2000) 205 CLR 254 , 265 [26].
17 (2002) 211 CLR 317 (Council cited [2], [28], [58], [122], [123], [126], [323], [325]).
18 (2001) 207 CLR 562.
19 See in particular Sullivan v Moody (2001) 207 CLR 562 at 581 [55].
20 Exs 44, 45, 46, 48.
21 Exs 1, 34.
22 Ex 1.
23 Ex 21.
24 Ex 49 within a chain of emails commencing with the authentic email of 13 Sept 2013.
25 Ex 22.
26 Ex 51.
…
70 T 6–72 L29.
71 (2000) 205 CLR 254 , 290.
72 [2002] NSWCA 402 [15]–[31].
73 [1932] AC 562 , 580.
74 Wyong Shire Council v Shirt (1980) 146 CLR 40 , 47–48.
In Abbey Laboratories v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179 (24 September 2025), Jackman J, in the Federal Court of Australia, addressed the issue of whether a Ferrcom inference could be drawn in respect of evidence adduced from an expert, as opposed to a non-expert witness. The drawing of such an inference, generally, was canvassed by Martin J (later Martin SJA) in Sullivan Nicolaides Pty Ltd v Papa [2012] 2 QdR 48 at [162], [170]. In Abbey – concluding against the application of the Ferrcom principle in the case of experts – Jackman J wrote:
[214] In Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom) at 418E — 419F, Handley JA extended the principle of Jones v Dunkel (1959) 101 CLR 298 to the case of a party failing to ask questions of a witness in chief on a particular topic. His Honour said that where such a failure indicates as the most natural inference that the party fears to do so, that fear is then some evidence that such examination in chief would have exposed facts unfavourable to the party. Accordingly, inferences should not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions. The High Court has endorsed that reasoning in the less strongly worded form that where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ). That formulation better reflects the reasoning in Jones v Dunkel, whereby the relevant inference which may (not should) be drawn is that the evidence not called by a party would not have assisted the party (not that the evidence would have been adverse to the party).
[215] In Ferrcom, Handley JA drew on a line of United States decisions, noting that there is extensive case law in the United States on this question. It should be noted, however, that there is a principle in federal courts and many state courts in the United States (embodied in r 611(b) of the Federal Rules of Evidence) that cross-examination should not go beyond the subject matter of the direct evidence (ie, evidence in chief) and matters affecting the witness’s credibility, although the court may allow inquiry into additional matters as if on direct evidence. By contrast, the applicable Anglo-Australian principle is that a witness may generally be cross-examined on any issue in the case: Heydon JD, Cross on Evidence (14th Australian edition, LexisNexis, 2024) at [17500]. There is thus a potential tactical advantage in the United States in limiting the scope of cross-examination by the simple expedient of a party not putting questions on an awkward subject to that party’s own witness, which is not available in Australia. In my professional experience, the natural inference most typically to be drawn in Australia from a party not leading evidence in chief on a particular subject is merely the innocuous one that the significance of the subject was not appreciated when the evidence in chief was prepared. That is especially so in the context of the modern practice of evidence in chief being given by affidavits, which are usually made and served weeks or months before the trial. Judges are not usually well placed to determine whether that is the appropriate explanation, rather than some supposed fear of the evidence being given. Accordingly, in my view, the appropriateness of drawing a Ferrcom inference needs to be approached with great caution.
[216] In the present case, Abbey submitted in opening that a Ferrcom inference should be drawn on three matters which Professor Bunt had not addressed, although two of them fell away because certain claims of the Patent are no longer contested. The remaining matter concerns the issue of the obviousness of the range of concentration of the solvents in claim 2 of the Patent. I regard that as a misplaced criticism of Professor Bunt’s evidence. In the Formulation JER at [46], Professor Bunt explained that his response to the Task does not fall within claim 2 as he would not have selected the solvents referred to in claim 2, as he explained in his evidence concerning claim 1. There was therefore no need for him to deal with the concentration range of the nominated solvents in claim 2. Even on the widest possible view of Ferrcom inferences, such an inference could not be justified in the present case.
[217] More fundamentally, in my view, there would rarely (if ever) be any scope for drawing a Ferrcom inference in the context of the contemporary practice in relation to expert evidence. I recognise that Ferrcom inferences have been drawn in relation to expert evidence in Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202; (1999) 47 NSWLR 1 at [11] (Handley JA); Gordon Martin Pty Ltd v State Rail Authority of New South Wales [2008] NSWSC 343 at [322] (Hall J); and Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495; (2009) 84 IPR 222 at [417] (Jacobson J). The New South Wales Court of Appeal regarded a Ferrcom inference as available in principle in relation to expert evidence in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWSC 174; (2004) 60 NSWLR 127 at [72]–[73] (Ipp JA, with whom Bryson JA and Stein AJA agreed), but the question was left open in DIF III — Global Co-Investment Fund LP v DIF Capital Partners Ltd [2020] NSWCA 124 at [142] (Bell P, with whom Bathurst CJ agreed).
[218] In addition to the general reservations which I have already expressed in relation to Ferrcom inferences, there are particular features of contemporary practice concerning expert evidence which point strongly away from such inferences arising. The Federal Court’s Expert Evidence Practice Note (GPN — EXPT) is broadly representative of the practice throughout the Australian States and Territories, providing for conferences of experts and joint expert reports (section 7), concurrent oral evidence (section 8), and a declaration in expert reports that the expert has made all the inquiries which the expert believes are desirable and appropriate and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court (Annexure A, para 3(i)). Those elements are buttressed by clear restrictions on attempts by parties to interfere with the expert’s expression of opinion (section 3), and duties on the part of experts to provide relevant and impartial evidence (section 4). Contemporary practice thus does not leave any effective room for a party tactically to seek to ensure that certain subject matter is avoided by an expert witness engaged by that party, at least in circumstances where that subject matter is dealt with by a competing expert witness. Whatever scope there may once have been for the drawing of a Ferrcom inference in relation to expert witnesses, I regard that now as having been superseded.
A link to the full case is here.
In Ringelstein v Metro North Hospital and Health Service [2025] QCA 188 (10 October 2025), the Queensland Court of Appeal allowed an appeal by a plaintiff in respect of a refusal, in the Trial Division, to grant her an extension of the three year limitation in respect of her contended cause of action for medical negligence. The limitation period expired in 2007. The issue was whether the plaintiff had taken reasonable steps to put herself in a position to ascertain a relevant material fact of a decisive character. The key piece of reasoning of the court was this:
[91] In my view, a demoralised person in physical and mental distress, with no available evidence of negligence by the hospital, who has twice been unable to enlist the help of solicitors except on terms that she pay a sum she could never have paid, and whose health and mental condition continued to require her attention, cannot be said not to have acted reasonably by not trying yet another approach to another law firm which would itself be futile if (as was to then her only experience) she was to be called on to provide any funds.
The Court (Doyle JA, Bond JA and Crowley J agreeing) wrote:
…
[2] This is an appeal from the dismissal of an application for an order extending the limitation period for the commencement of proceedings until 23 June 2023.
The facts
[3] The appellant underwent surgery at the Caboolture Hospital on 15 June 2004. She was then 48 years of age, married with 4 children. The respondent is established under the Hospital and Health Boards Act 2011 (Qld) and conducted the Caboolture Hospital.
[4] Complications arose from that surgery. They are alleged to have arisen because of deficiencies in the care she received in and arising from the surgery. The appellant alleges that she experienced pain, numerous distressing symptoms and depression. Subsequently she has undergone a number of other surgical procedures which have not resolved her health issues. All of this has led to a significant impact on her physical health, her mental health and her life in general.
[5] The primary judge set out an abbreviated chronology of some of the core relevant events in his Reasons, which I gratefully adopt. I will return later to supplement the chronology, but the primary judge identified the following:
DateEvent18 November 1956Applicant’s date of birth.15 June 2004Applicant undergoes a total abdominal hysterectomy and posterior repair performed by the surgeon at the Caboolture Hospital.22 June 2004Applicant transferred to Kilcoy Hospital.8 July 2004Applicant transferred from Kilcoy Hospital back to Caboolture Hospital with what was discovered to be faeces in her vagina. Applicant diagnosed with rectovaginal fistula.18 July 2004Applicant transferred from the Caboolture Hospital to the RBWH for further consultation regarding her rectovaginal fistula.21 July 2004Applicant undergoes EVA rigid sigmoidoscopy and sigmoid loop colostomy.27 July 2004Applicant undergoes laparotomy refashion colostomy and debridement of stoma site.2 August 2004Applicant undergoes psychiatric review at RBWH. Applicant states she found it “hard to cope being in hospital, badly misses her family, feels lonely.”2004–2006Applicant continues to experience complications requiring further surgeries and attendance at numerous outpatient clinics. Applicant suffers from significant urinary incontinence and persistent issues with her stoma.24 September 2008Applicant approaches Clewett Lawyers, who agree to investigate a claim but require that she pay $2,200.00 for an expert’s report. Applicant says she did not have the money to pay for the report.7 January 2009Applicant approaches Clewett Lawyers asking for another copy of the letter and costs agreement to be sent to her.20 January 2009Clewett Lawyers write to her and request that the sum of $2,200.00 be paid within four weeks to enable a report on liability to be obtained otherwise they would be unable to represent her. Applicant did not have the money to pay for the report.4 October 2010Applicant approaches Slater & Gordon Lawyers.17 November 2010Correspondence from Slater & Gordon advising that they are unable to assist her.May 2022A friend of the applicant tells her that she had seen a television program about the surgeons and operations that have been performed at the Caboolture Hospital dating back to her initial surgery. Applicant subsequently contacts Michele Gardner (Executive Director, Clinical Governance, Safety, Quality and Risk of Metro North) and arranges a face-to-face meeting at Caboolture Hospital.27 June 2022Applicant meets with Michele Gardner and Dr Peter Ganter, Clinical Director of Obstetrics and Gynaecology of the respondent. Applicant says that he advised her that it was “terrible what had happened to me and it should not have happened”. Applicant was offered a goodwill payment of $10,000.00.16 August 2022Correspondence from the respondent advising that the care provided to the applicant was “care below the expected standard”.19 June 2023Consent order pursuant to s 43 of the (QLD) Personal Injuries Proceedings Act 2002 to permit the applicant to start proceedings without having completed the pre-Court procedures.23 June 2023Applicant commences proceedings in the Supreme Court.7 October 2023Report of Dr Geoffrey Reid, Gynaecological Surgeon16 October 2023Further report of Dr Geoffrey Reid, Gynaecological Surgeon
[6] The time within which proceedings for personal injury caused in these circumstances can be commenced would likely have expired in mid-2007. 2 The Limitation of Actions Act 1974 (Qld) (“the Act”) permits the court to extend that time in limited circumstances, identified materially in subsection 31(2) which provides as follows:
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court —
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
[7] For the purposes of that subsection, s 30(1)(c) provides:
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if —
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person — the person has taken all reasonable steps to find out the fact before that time.
[8] If an applicant establishes that a material fact of a decisive nature was not within the applicant’s means of knowledge (as defined) until a date after the limitation period expired, then the court may extend time to expire one year after the date when the material fact became known to or within the means of knowledge of, the applicant: s 31(2) of the Act. In this case, as the proceedings were commenced on 23 June 2023, the appellant in effect had to establish a material fact of a decisive nature was not within her means of knowledge (as defined) until after 23 June 2022.
…
[15] The respondent urged upon this Court that, the primary judge having exercised a discretion not to extend the limitation period, in order to succeed on the appeal the appellant needs to show reviewable error in the sense described in House v R (1936) 55 CLR 499 at 505. The respondent supported this submission urging that the question whether the appellant had “taken all reasonable steps to find out the fact before” the relevant time is an evaluative one in respect of which reasonable minds might differ. It followed, it was submitted, that this was correctly characterised as the exercise of a discretion and so to succeed on the appeal the appellant had to satisfy the test in House v R.
[16] That submission cannot, however, be accepted. Whilst ultimately, s 31 confers upon the Court a discretion to be exercised, the occasion to exercise it is dependent upon, inter alia, it appearing to the court that the third element of the requirements of s 31(2)(a) was satisfied. The question for this Court is whether the primary judge was correct or in error in determining that that requirement had not been satisfied. It was on that basis that the primary judge refused the application and in exercise of a discretion.
…
The 12 year period
[81] By the 17 November 2010 letter she was again advised of her need to act but seeking payment of a greater sum. She could not pursue that avenue.
[82] The third is the period from that letter until June 2022. In this period the medical records chronology has over 40 entries. These included:—
DateDescription13.05.2019Applicant presented to Kilcoy Hospital ED with referral from Dr Weller’s surgery for insertion of a permanent IDC due to severe perineal excoriation secondary to urinary incontinence.20.05.2019Applicant presented to Kilcoy Hospital ED with pain around IDC insertion site + bypassing.Plan: IDC to be removed permanently — no indication. Revert back to pads and barrier cream. GP to follow up — social isolation and problems at home beyond the scope of ED. Oral trimethoprim for 3–7 days. To represent if worse.Primary diagnosis of cystitis.25.11.2019Applicant presented to Kilcoy Hospital ED with vomiting. Large amount of fluid leaked out of stoma this morning. Triage priority 4.Diagnosed with gastroenteritis.09.04.2020Applicant required ongoing assistance with stoma wound care at the Caboolture Hospital.21.11.2021Applicant attended the Kilcoy Hospital emergency department for acute abdominal pain and possible obstruction related to her parastomal hernia. Left upper quadrant pain 10/10.
[83] It is this period to which the primary judge refers as the period of 12 years delay and principally which, as a result of the appellant not taking any step in that time, meant she had failed to discharge her onus of establishing the prerequisite, in s 30(1)(c) to the existence of the discretion to extend time.
[84] There are factors which support the conclusion of the primary judge.
(a) It is accepted that the appellant has suffered considerably and over a long time from her surgery and its sequela. This has included significant mental health issues.
(b) But she has retained the capacity to deal with significant matters in her own interests including her surgery and other treatment options.
(c) She has also shown herself able to interact with lawyers in 2008 to 2010 despite her conditions. Similarly, she had the capacity to complain to the Caboolture Hospital in 2004 and to take up a further complaint in 2022 followed by then engaging with lawyers in 2023.
(d) The appellant was aware of the urgency and importance of making an application for an extension of time and of the significance of an expert report to doing so. She knew as well that what stood in her way was her continuing inability to afford to do so and that those lawyers she had approached would not fund it themselves. There was an avenue of which she was informed, to seek to identify other lawyers (impliedly who might be willing to do so).
(e) It is correct to say the appellant did nothing to pursue that avenue.
[85] But that identifies something that might have been done, not that it was a reasonable step for the appellant to have done so.
[86] In my view, the appellant has established that, having regard to her circumstances she had taken all reasonable steps to find out the facts within the meaning of s 30(1)(c) by the steps she took. This is for the following reasons (many of which are touched on above).
(a) She had approached two law firms to represent her but in each case was confronted with a requirement to pay a sum she simply could not afford. Her financial situation was not improving, quite the reverse.
(b) There had been a striking negative impact on her health, both physical and mental, after the initial surgery. That continued throughout this 12 year period.
(c) Her mental condition was such that, while she had capacity to take steps especially in connection with her medical condition, she can be said to have been demoralised.
[87] Why then did she not pursue the avenue of approaching the Queensland Law Society to try to identify another law firm willing to act on a no win no fee basis?
[88] She offered a clear and materially unchallenged explanation in her first affidavit at [59] as follows:—
Despite attempts to seek legal advice and have my complaint addressed internally with Queensland Health I was unable to get anywhere. After the rejection from Slater and Gordon, I did not think there was any way I would be able to pursue a claim. I had tried to lodge a complaint with Queensland Health and tried two lawyers which got nowhere, so I gave up and didn’t pursue it any further and concentrated on my physical and mental health.
[89] This is consistent with her oral evidence to which I have referred which shows she was demoralised.
[90] It is no answer to that to point to her retaining a capacity to have called or contacted the Queensland Law Society. It is not in issue that she could have done so, but in my view it was reasonable not to have done so.
(a) Apart from the physical manifestations, she had no evidence of the surgery and her care having been negligently performed and no encouragement for that view from the Hospital’s response to her complaint in 2004.
(b) She had tried twice to engage law firms to act for her, including one at least which is well known to be one offering no win no fee retainers in some cases. Those approaches had led to failure.
(c) She had no experience dealing with lawyers and it is not suggested she had any degree of sophistication so as to appreciate a different outcome from approaching the Queensland Law Society. The letter from Slater & Gordon did not in fact advise her that through the Queensland Law Society there was a realistic prospect of another firm being willing to fund her obtaining an expert report.
(d) Her understanding of it in the witness box was that the letter of 17 November 2010 did not encourage a view that she would be likely to be able to mount a claim even if an expert report could be obtained.
(e) Her family had no money, living week to week to pay expenses. Her physical condition was poor and her mental state deteriorating.
(f) In those circumstances it was reasonable for her, as she swore she did, to have given up. She thereafter continued to focus on trying to recover her health to some degree, which was on the evidence a demanding activity.
[91] In my view, a demoralised person in physical and mental distress, with no available evidence of negligence by the hospital, who has twice been unable to enlist the help of solicitors except on terms that she pay a sum she could never have paid, and whose health and mental condition continued to require her attention, cannot be said not to have acted reasonably by not trying yet another approach to another law firm which would itself be futile if (as was to then her only experience) she was to be called on to provide any funds.
The final period
[92] The final period is that from June 2022 to the commencement of the proceedings. In this period the medical records chronology has 11 entries. These included:—
DateDescription –19.09.2022Applicant referred to stoma therapist by Dr Lindsay Cochrane.28.09.2022Applicant reviewed by Dr Tee. Current stoma issues:–Intermittent low volume bleeding.–Blow outs and leakage.28.09.2022Letter from Dr Robert Lawless (general surgery, Redcliffe Hospital) and Dr Jimmy (Chin Li) Tee to Dr John Warren (Kilcoy General Practice)The Applicant is seeking stoma care assistance closer to home. Current stoma issues include: intermittent low volume bleeding, blowouts and leakage from the stoma appliance, and the change in shape as her weight loss continues.She is worn down and fatigued by stoma cares, and is seeking reversible and definitive intervention in the future once she meets her weight loss goals. She describes ongoing brown, offensive vaginal discharge which she attributes to her colovaginal fistula.On examination with the stoma appliance taken down and refitted by stoma coordinator, skin was healthy and intact peristomally.Plan to see in four months to assess progress.07.11.2022Applicant was reviewed at the Caboolture Community Health Diabetes Clinic. Applicant is attending the TOMS Program at North Lakes Health for weight loss. She reportedly felt well, despite being disappointed that the bariatric surgery could not proceed due to intra-abdominal adhesions from her previous surgery.01.02.2023Letter from Dr Jimmy (Chin Li) Tee, Clinical Director of General Surgery at Redcliffe Hospital to Dr John Warren (Kilcoy General Practice).The Applicant presented to the Surgical Outpatient Clinic reporting increasing frequency of vaginal discharge affecting her mood with a long-standing para-stomal hernia and loose motion from the stoma. She was hoping for definitive surgery to treat the rectovaginal fistula and to reverse her stoma. Dr Jimmy noted that, due to the Applicant’s abdominal history and her body habitus, there were minimal surgical options and the success rate of such surgery would be extremely low.14.02.2023Applicant presented to the Kilcoy Hospital Emergency Department with pain in her right flank similar to previous kidney infection pains in 2019. Primary diagnosis: urinary tract infection.05.03.2023Applicant presented to the Caboolture Hospital Emergency Department at 0600 hours via ambulance with “abdo pain radiating to back region (pain near the stoma) – vomiting. Pain on urination. Urine dark. Pain moderate. QAS given morphine.” Applicant had flank tenderness on examination.Primary diagnosis: urinary tract infection.Applicant reported to the ambulance that she has had a “long history of medical surgery bungling 18 years ago with hysterectomy at Caboolture hospital and has caused problems ever since.”Observations were within normal limits. Applicant discharged the following day.13.03.2023Applicant presented to the Kilcoy Hospital emergency department having been unwell for a few days feeling nauseous and reporting shivers, reporting R flank pain. Similar symptoms one month prior but nil found on ultrasound.Impression: UTI – ? Pyelonephritis — assoc dehydration.Requires IV rehydration (active vomiting).Primary diagnosis: Urinary tract infection.
[93] In addition, as set out in the primary judge’s chronology, in this period the appellant was for some time in contact with the respondent with a view to reaching some compensation arrangement. That was inconclusive. The appellant attended a meeting on 27 June 2022 where a good will offer was made to her. She was contacted about this again on 4 August 2022 and then received a letter from the respondent on 16 August 2022. The chronology extracted from the medical records shows that her health continued to cause her significant difficulty throughout this period.
[94] Then on 3 March 2023 the appellant approached Slater & Gordon seeking advice (at that point about the offer received from the respondent). This led to that firm representing her, sending an Initial Notice under s 9A of the Personal Injuries Proceedings Act 2002 (Qld) on 14 April 2023, causing other pre-proceedings steps to be undertaken leading to the commencement of proceedings, in June 2023 and commencing proceedings.
[95] In the circumstances what the appellant did in the time presently under consideration constitutes all reasonable steps she could take in my view.
(a) She now had some indications that the care she received was substandard.
(b) She took time to receive and then consider with her lawyers the offer made to her.
(c) She then retained the solicitors who it can be inferred did not now require payment in advance, to represent her interests which they then set about doing promptly.
(d) She did all of this while dealing with her medical conditions.
Extension of time
[96] It follows that the primary judge’s conclusion was in error. Both parties accepted that this Court could (and urged that we should) in those circumstances exercise the discretion conferred by s 31 and no reason was advanced why that should not be exercised to grant the requested extension to 23 June 2023.
(emphasis added)
A link to the decision is here.
In Commissioner of Police v Naser [2025] NSWCA 224 (9 October 2025) the NSW Court of Appeal (Bell CJ, Harrison CJ at CL and Free JA) ordered, pursuant to s 25 of the Summary Offences Act 1988 (NSW), that the holding of a public assembly – advocating for the humanitarian crisis in Gaza in the Middle East – ought be refused. The court – by reference to ‘a public safety risk to participants and other members of the public’, having regard to the location of the proposed assembly in the area of the Sydney Opera House and subsequent crowd disbursement – was refused:
[1] The Summary Offences Act 1988 (NSW) (the Act) provides, in Part 4, a regime which seeks to regulate public assemblies. A public assembly is defined in s 22 to mean “an assembly held in a public place” and includes “a procession so held”. “Public place” means a “public road, public reserve or other place which the public are entitled to use”.
[2] The regime encourages early notification of proposed assemblies to the Commissioner of Police (the Commissioner) by prescribed notice (known as a Form 1 Notice) setting out the date of the proposed public assembly and, if the proposed public assembly is a procession, a statement specifying the time and proposed route of the procession, the purpose for which the proposed public assembly is to be held and the number of persons expected to be participants in the proposed public assembly and procession.
[3] In certain circumstances, a public assembly proposed in a notice of this kind may become an “authorised public assembly”. This depends on the application of s 23 of the Act. Putting aside the requirements going to the content of the notice in s 23(1)(a)-(e), the classification of a proposed public assembly as an “authorised public assembly” depends on the response of the Commissioner or a Court. There are three possibilities. One is that the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly: s 23(1)(f). Another is that the notice was served on the Commissioner at least seven days before the date of the proposed public assembly and the holding of the public assembly is “not prohibited by a Court under s 25(1)”: s 23(1)(f)(i). The third is that the notice was served on the Commissioner less than seven days before the date of the proposed public assembly and the holding of the public assembly is authorised by a Court under s 26.
[4] The significance of a public assembly being an “authorised public assembly” is the conferral of a statutory immunity under s 24. If an authorised public assembly is held substantially in accordance with the particulars furnished in the notice given to the Commissioner (or in accordance with amended particulars as agreed between the Commissioner and the organiser, together with any prescribed requirements), a person is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, “guilty of any offence relating to participating in any unlawful assembly or the obstruction of any person, vehicle or vessel in a public place”.
[5] Service of a Form 1 Notice on the Commissioner therefore gives the Commissioner an opportunity to assess and decide whether he or she does or does not oppose the holding of the public assembly. If the Commissioner, having received the notice seven days or more before the date of the proposed assembly, does oppose the holding of the proposed public assembly, provided that he or she has engaged with its organisers by way of conferral and has taken into consideration any matters or representations made by the organiser(s), the Commissioner is empowered by s 25(1) of the Act to apply to this Court for an order prohibiting the holding of the public assembly. One feature of the statutory scheme to be noted is that the Commissioner is not authorised to apply to the Court for such an order if the Form 1 Notice was served fewer than seven days before the date of the proposed assembly. Where an application is made under s 25(1) the onus lies upon the Commissioner to convince the Court that the proposed assembly should be prohibited: Raul Bassi v Cmr of Police (NSW) [2020] NSWCA 109; (2020) 283 A Crim R 186 at [17(vi)] (Bassi).
[6] Section 25 of the Act is also the source of this Court’s power to prohibit the holding of a public assembly. Powers conferring jurisdiction on a Court should be interpreted liberally and not as subject to implications or limitations which are not found in the express words: Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36; Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [35]; Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299 at [55]; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283 –284 , 290; [1988] HCA 13; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185 , 202 –203 , 205; [1992] HCA 28.
[7] A significant issue between the parties was the effect of an order made under s 25. The form of the order follows from the terms of s 25(1) – it is an order “prohibiting the holding of a public assembly”. On its face the effect of an order of this kind is clear. The defendants submitted that notwithstanding the ordinary connotations of an order “prohibiting” something from occurring, the legal effect of an order under s 25(1) is more modest. Its effect was said to be confined to depriving the proposed public assembly of the status of being an “authorised public assembly”. There is no doubt that this is at least part of the effect of an order under s 25(1). So much follows from the application of s 23(1)((f)(i). As explained above, if notice of an assembly has been served at least seven days before the proposed assembly and the holding of the public assembly is “not prohibited” by a Court under s 25(1) the assembly will be an “authorised public assembly”. An order prohibiting the public assembly therefore precludes the application of the immunity provision in s 24 from the assembly in question.
[8] The controversy between the parties is whether that is the only legal consequence of an order prohibiting the holding of a public assembly. The language chosen by the legislature points strongly to the conclusion that an order made under s 25(1) does exactly what the wording of the order suggests, namely it prohibits in a more general way the conduct of holding the proposed public assembly. If the legislature had intended to confine the consequences of an order under s 25(1) to precluding the assembly from qualifying as an “authorised public assembly”, it would have been expected to use language other than “prohibit”. For example, it would have been sufficient and clear to provide that the Commissioner may apply for an order that the proposed public assembly is unauthorised or not authorised.
[9] Ms Graham, who appeared for the first to third defendants, submitted that a breach of a s 25 prohibition order would not lead to a contempt of court, and finding that it did would be inconsistent with Simpson J’s decision in Commissioner of Police v Rintoul [2003] NSWSC 662 (Rintoul). This necessarily involved a submission that a prohibition order does not mean what it says. The following exchange occurred in the course of final address:
BELL CJ: Why wouldn’t the organisers be in contempt if they continue to organise on the face of a prohibition order after the time and expense has been spent on a hearing of this kind?
GRAHAM: It depends on what the effect of the order actually is, because if all the order does is remove the authorisation status, then there’s no order to breach by engaging in the conduct.
BELL CJ: So the order doesn’t mean what it says? An order that this Supreme Court of New South Wales prohibits the holding of a public assembly, that an order expressed in the terms of the statute doesn’t mean what it says?
GRAHAM: That’s right.
[10] Ms Graham’s submission should be rejected.
[11] Where an order is made pursuant to s 25, breach of that order may render a person in contempt of court: Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 (Allen); New South Wales Commissioner of Police v Bainbridge (2007) 175 A Crim R 226; [2007] NSWSC 1015 at [17] (Bainbridge); see also more generally Australian Competition and Consumer Commission v Hughes [2001] FCA 38 at [15], quoted with approval in Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655 at [20]; see also Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [60] , [75] , [116]. This may extend, in certain circumstances, to persons who were not parties to the proceedings in which the order was made: see Zhu v Treasurer (NSW) (2004) 218 CLR 530; [2004] HCA 56 at [121]; Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113 at [149]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [46]; Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015) at 786 [21–490] fn 808.
…
Overview of arguments and evidence
[37] The Act does not specify the criteria by reference to which prohibition orders may be made pursuant to s 25. The jurisprudence which has developed in the application of this Act establishes that the Court must weigh the important democratic right of free speech and public assembly against competing public policy considerations. Competing public policy considerations may include rights to privacy (Rintoul) and preservation of property, considerations of public health or public order (Bassi;Padraic Gibson (on behalf of Dungay family) v Cmr of Police (NSW Police Force) [2020] NSWCA 160), and considerations of public safety (NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5).
[38] In the present case, the Commissioner’s opposition to the proposed procession is principally based upon public safety considerations. Those safety considerations in turn are a function of the anticipated number of participants, the nature of the route and the proposed destination of the procession.
[39] While the defendants took issue with the proposition that the public assembly in this case will involve unacceptable safety risks, they did not seek to argue that public safety is an irrelevant consideration when it comes to the exercise of the Court’s power under s 25 of the Act.
…
Determination
[61] The Court approaches the application on the basis that allowing and facilitating political expression in the form of public assemblies is a matter of fundamental importance and public interest. As noted above, the Court also proceeds on the basis that the proposed public assembly that is the subject of the present application involves organisers and likely participants with deeply and sincerely held views about a matter of undeniable significance and humanitarian concern. There is also an established pattern of orderly public assemblies reflecting goodwill and cooperation between the organisers, participants and NSW Police. These are all powerful considerations weighing against the Commissioner’s application. But they are not absolutes. The regime in Part 4 of the Act, including the power conferred on the Court to prohibit certain proposed public assemblies, reflects the need to balance countervailing considerations.
[62] The Court is unanimously of the view that, in view of the likely numbers estimated by the first defendant to participate in the procession and public assembly and given the route and in particular the proposed destination of the Procession and its capacity and physical constraints, the public safety risk to participants and other members of the public is extreme. The extremity of that risk is only magnified if the first defendant’s estimate of participation levels is exceeded. The degree to which the estimate was exceeded on the Sydney Harbour Bridge march has already been noted. On the estimates of the police, the number of participants was twice the number anticipated as being likely to attend. On the first defendant’s estimate, it was six times the number of anticipated attendees. There is a real risk that the current estimate of 40,000 will be exceeded, particularly having regard to the timing of the march, on approximately the second anniversary of the bombing of Gaza, the iconic nature of the proposed destination of the procession and the heightened attention that will inevitably be given to the proposed procession by these proceedings.
[63] A matter of particular concern to the Court is the prospect that participants in the procession will not disperse from the Opera House forecourt and move away to other places in an orderly, efficient and predictable way. The defendants in seeking to address the safety concerns raised by the Commissioner sought to emphasise that the organisers of the procession are planning for the procession to come to an end at the Opera House forecourt, such that participants can be expected to leave the forecourt soon after arrival.
[64] The Court finds that this is an unrealistic assumption, with potentially grave consequences when it comes to the safety of march participants and other members of the public. The promotional material being used by the organisers of the procession has emphasised the Opera House as a focal point of the event. The evidence and submissions relied on by the defendants have likewise emphasised the iconic significance of the Opera House as a matter that is critical to understanding the political gravity of the event.
[65] Given that context, there is a high risk, if not a probability, that substantial numbers of participants in the procession will be strongly disposed against an immediate dispersal from the site. Instead they will stay on the Opera House forecourt for a prolonged period before leaving. If that occurs, there is likely to be a serious problem with a backlog of march participants arriving at the forecourt and wanting to enter. There will not be an orderly staggering of sections of the crowd through the forecourt in controlled quantities, as the defendants submitted. Instead the crowd of march participants who would be understandably eager to enter the forecourt is likely to grow (and grow in frustration) which in turn will increase the risk that the areas surrounding the forecourt will become blocked with people, including potential points of egress to the west towards Circular Quay. That will only exacerbate the pressure on narrow points of egress in one corner of the forecourt. It will also exacerbate the risk of the crowd being turned back on itself, a scenario which Assistant Commissioner McKenna cogently described as highly undesirable.
[66] There is, more generally, the risk of crowd crush. This risk will be heightened if the Trust carries out inspections of all persons entering the forecourt as it is entitled to do and is its standard protocol for mass events. This will be likely to have a significant slowing effect on those being funnelled into the forecourt via Macquarie Street. That funnel will be narrow, especially if an emergency lane is able to be preserved without being swamped by participants in the procession. If the Trust did not follow its protocol and carry out inspections, the risk of bad actors infiltrating the march and bringing items such as flares to the forecourt, as has happened in the past, will increase significantly.
[67] The defendants properly accepted that there were risks associated with the proposed public assembly, but submitted that this is true of any large gathering and that the risks in the present case were acceptable. To some extent the defendants appeared to urge the Court to find that the significance of the political cause, and the urgency of the political moment from the perspective of those participating in the assembly, are considerations that are so compelling that the Court ought to decline to prohibit the assembly from being held, even if there are safety concerns that might otherwise be regarded as unacceptable. It is unnecessary to say whether reasoning of that kind might ever be thought persuasive under the statutory scheme. It is sufficient to say that on the facts of this case the risks to public safety associated with the public assembly are so significant that it would be irresponsible to allow the public assembly to proceed, irrespective of the political significance of the event.
[68] The Court is also not persuaded by the defendants’ submission that there are sufficient mitigatory factors present to address the perceived safety risks. The defendants emphasised in this regard the history of cooperation between PAG organisers, the police and participants in PAG assemblies, the demonstrated capacity of PAG marshalls to assist police in maintaining order and control over assembly participants, the goodwill with which participants in PAG assemblies have acted and would be expected to act and the powers available to police, including as authorised officers under the 2021 By-law, to take appropriate actions if and when necessary in the course of the assembly.
[69] The Court accepts that there is a reasonable evidentiary and logical foundation for each of these propositions, and that they would serve as mitigating factors in relation to the risks posed by the assembly. But it is a significant overstatement to say that these factors will in combination serve to reduce the risk to public safety to an acceptable level.
[70] While PAG organisers and marshalls have experience in dealing with a number of public assemblies, including regularly in Hyde Park, there is no evidence that they have managed an assembly with anything analogous to the logistical challenges and risks associated with a large scale march from Hyde Park culminating at the Opera House forecourt with all of its physical constraints. It is the exceptional risks associated with the particular route and ultimate destination of the procession, considered in the context of the likely size of the crowd and its potential movement, that give rise to the Commissioner’s application and the Court’s conclusions as to the unacceptable nature of those risks.
[71] As to the powers of NSW Police to respond to problems as and when they emerge, again that would be a mitigating factor but the Court was not given any basis in the evidence to conclude that this would be an effective answer to the practical problems that may well be faced by the organisers and the police in managing a large crowd in the particular physical environment of the Opera House precinct and surrounds, even assuming that adequate resources could be summoned and deployed in the very short period of time between now and the proposed assembly and procession.
[72] In reaching our conclusion, we have also taken into account the paucity of information from organisers as to specific measures to be taken to control the estimated crowds other than confident assertions that there will be at least 100 marshalls who have co-operated successfully with police in respect of past protests, including that which recently occurred on the Sydney Harbour Bridge. It was accepted that the organisers of the planned procession have not engaged in any discussions with either the Trust or the RBGD Trust.
[73] The first to third defendants emphasised in submissions that they have dealt with NSW Police, who are the appropriate conduit for communications about the organisation of the march. The defendants also emphasised that in circumstances where the Commissioner bears the onus in bringing an application under s 25, it ought not tell against the defendants that they have not engaged with the Trust or the RBGD Trust. These submissions do not allay the Court’s concerns about the lack of such engagement, and what that entails for the overall assessment of the evidence.
[74] In circumstances where the defendants were aware of the concerns of NSW Police about the acute logistical challenges of the Opera House environment and the problems associated with relying on egress into the Royal Botanic Gardens (and where those challenges are reasonably obvious given the anticipated number of participants and the nature of the ultimate destination), it was incumbent on the organisers of the proposed assembly, in answer to the Commissioner’s concerns supported by detailed evidence, to give a cogent account of how the event would practically play out, including on critical questions about site capacity, regulation of access and appropriate points of ingress and egress, and provision for emergencies, including access of emergency vehicles. Because of the identified difficulties with the site, that necessarily required an understanding of the arrangements that would be in place with the Trust and the RBGD Trust. The absence of consultation in this regard reinforces the conclusion that there are significant risk factors and the Court has no proper basis to be satisfied that they have been addressed and will be capable of effective management. It is not a question of hoping for the best or hoping that things don’t go wrong.
[75] The Court’s assessment, based upon the evidence led by the Commissioner including that given by Assistant Commissioner McKenna under cross examination, is that the proposed public assembly will involve a significant and unacceptable risk to public safety. There are obvious reasons why, consistent with the Commissioner’s evidence, mass events at physically constrained venues require extensive and detailed planning including close consultation between stakeholders, often extending over many months. In the face of credible assessments of real safety concerns and risks, optimistically asserting that, without such planning but with goodwill and cooperation, a procession and assembly of the magnitude and complexity proposed is capable of being safely conducted is not sufficient.
[76] An additional consideration that reinforces our conclusion is the substantial impact and financial burden that would fall on the Trust, its patrons and performers scheduled to be involved in events that would need to be cancelled if the procession were to go ahead. These adverse impacts would not on their own justify the making of a prohibition order, and we are mindful that inconvenience and disruption to others will not ordinarily be sufficient to justify prohibiting others from engaging in important acts of political assembly and communication. But nor should it be overlooked that the proposed procession in this particular case would have significant adverse impacts on a number of people which go beyond merely trivial inconvenience.
[77] We are comfortably satisfied that an order should be made pursuant to s 25 of the Act, in the terms sought by the Commissioner, prohibiting the holding of the proposed public assembly.
…..
(emphasis added)
A link to the full decision is here.
In Thomas v State of Queensland [2025] QSC 242 (29 August 2025), Freeburn J adjudicated an application made pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld) whereby a plaintiff in a person injury action was a nurse who alleged she injured her back while employed at the defendant employer’s hospital in the course of adjusting a Mayo lifting stand. The plaintiff sought inspection of a section of the hospital, where such stands were located, despite being unable to identify the particular stand – which were of various types – or the specific defect. His Honour refused such application:
[19] The maintenance of the [Mayo] stand is said to be at the forefront of the issues.1 However, no particular defect in the stand is alleged and no particular lapse in maintenance is alleged.2
[20] The particular Mayo stand is not identified by Ms Thomas’ pleading or her lawyers. Not even the brand or type of Mayo stand is identified. What seems to be proposed by the inspection is that, if Ms Thomas is shown the various Mayo stands that reside on level four of the RBWH then she will be able to identify the type of Mayo stand that she was using at the time of her injury.3 And then, having identified the type of Mayo stand used, the expert will examine it for its suitability and possible defects or perhaps aspects of that Mayo stand that need maintenance. Ms Thomas’ lawyers will then, it is submitted, obtain the expert’s opinion on “the suitability and ergonomics of such stands” [emphasis added].4 Then, once the expert evidence is obtained, assuming it assists Ms Thomas’ case, “there may be a need to amend the pleadings to reflect the findings of the expert”.5
[21] There is something incredible and surprising about the idea that, even now, Ms Thomas and her lawyers have not identified the type of Mayo stand involved, let alone the unsafe aspect of the Mayo stand or the lapse in maintenance said to be at the core of Ms Thomas’ case. After all, it is now more than five years after the incident, and nearly 18 months after the litigation was commenced and pleaded.
[22] There are at least three dimensions to the problem. The first is that when rule 149(1) of the UCPR specifies that a pleading is to contain all of the material facts on which a party relies, the underlying requirement is that the pleading specify facts, not mere assertions that the party hopes may be later shown to be factual. The second is that one of the hallmarks of the legal profession is that, as officers of the court, lawyers do not make unsubstantiated allegations.6 That ethical rule is reinforced in a number of ways.7 The third is that under rule 5(3) of the UCPR the parties impliedly undertake to proceed in an expeditious way. That purpose can hardly be achieved by filing and serving a pleading which does not reflect the facts but instead represents a rather rudimentary estimation of what that party hopes to prove to be the facts at some time in the future.
[23] In the light of that vague and broad case, which seems to anticipate substantive amendments, it is necessary to consider the court’s power under rule 250 of the UCPR.
Rule 250
[24] Rule 250(1) of the UCPR is as follows:
(1)The court may make an order for the inspection, detention, custody or preservation of property if—
(a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b) inspection of the property is necessary for deciding an issue in a proceeding.
[25] As can be seen, rule 250(1) specifies that the discretion to order an inspection arises if either of the two preconditions are fulfilled. Those preconditions are that (1) either the property to be inspected is property about which a question which may arise, or (2) the inspection is necessary for deciding an issue in the proceeding.
[26] The preconditions to the exercise of the discretion are the start of the problems for the plaintiff’s application under rule 250.
Preconditions to the Exercise of the Discretion
[27] Rule 250(1) enables the court to make an order permitting the inspection of ‘property’.8 Ms Thomas does not seek to inspect any specific Mayo stand. Instead, she seeks to enter and inspect the ‘premises’ at level four of the RBWH. She seeks to enter and inspect that level of the RBWH for the purpose of:
(a) inspecting, photographing, and measuring a Mayo stand of the same or similar model to the stand involved in the incident on 26 June 2020; and
(b) observing and documenting the typical method of height adjustment and associated force requirements relevant to the use of the Mayo stand.
[28] No issue in the proceeding makes level four of the RBWH relevant. The features or condition of that floor of the hospital are not raised in the pleadings. The only relevance of level four of the RBWH is that it is assumed that there may be, located somewhere on that floor, a Mayo stand that is the same as, or similar to, the Mayo stand involved in the incident on 26 June 2020.
[29] And so, the oddity is that Ms Thomas seeks an order to inspect level four of the RBWH when that part of the RBWH:
(a) is not the subject of the proceeding; and
(b) is not property about which a question may arise in the proceeding.
[30] The question, then, is whether the proposed inspection of level four is necessary for deciding an issue in this proceeding. It is difficult to see how it can be concluded that such an inspection of level four is necessary. The inspection may or may not identify a Mayo stand that is the same or similar to the stand involved in the incident on 26 June 2020.
[31] The evidence is that, as at June 2020, there would have been in excess of 20 Mayo stands available for use on level four. There were three main types of Mayo stands. They are regularly moved throughout the operating suites. Some surgeries require multiple Mayo stands. Some require none.
[32] There are currently 26 different ‘manual’ Mayo stands in use with, now, four different models.9
[33] One could understand the application under rule 250(1) if Ms Thomas sought access to level four of the RBWH in order to inspect the particular Mayo stand involved in the incident in June 2020.10 Similarly, one could understand the application for access to level four so that Ms Thomas and the expert could inspect the particular type or model of Mayo stand involved in the incident.
[34] However, what is proposed here is entry and inspection of level four of the hospital in order to inspect, photograph, measure and test the height adjustment of some as yet unidentified Mayo stand, or stands, that will presumably be identified by Ms Thomas as the same Mayo stand or a similar Mayo stand.
[35] Rule 250 cannot be used by a plaintiff to, in effect, fish for a case.11
[36] The discretion under rule 250 has been described as a wide discretion.12 However, for that wide discretion to be engaged, the court must be able to conclude that this inspection is necessary for deciding an issue in the proceeding. That is impossible when:
(a) the claim made by the plaintiff is clouded in so much vague and broad language; and
(b) the proposed inspection is unduly wide and lacking in any focus.13
[37] I am not satisfied that the preconditions to the exercise of the discretion have been made out.
The Discretionary Factors
[38] Even assuming the preconditions to the discretion were satisfied, there are a number of reasons why the discretion ought not be exercised here.
[39] First, what is proposed is an inspection of the whole floor of an operating hospital virtually without limitation. The inspection proposed would permit Ms Thomas and her expert to inspect anywhere on the floor, even surgical theatres, whether operating at the time or not. Logically one can assume some tailoring of the proposed order, but none appears to be proposed by Ms Thomas, beyond that a time for the inspection is to be agreed.
[40] Second, even agreeing the time for the inspection may be problematic. Surgeries are undertaken day and night during the week, and after hours for emergencies.
[41] Third, there is no limit on the proposed physical limits or the duration of the inspection. The inspection seems to be sought without regard to the fact that this is an operating hospital attending to the care of patients. At the least, such an inspection would need to be supervised by a Nurse Unit Manager or equivalent and that person would need to have power to direct the inspection. Nothing of that kind has been proposed.
[42] Fourth, there is no evidence that Ms Thomas and her lawyers have investigated alternatives to an inspection of an operating hospital. There is no suggestion that the manufacturers or suppliers of Mayo stands have been approached. Nor is there evidence of considering inspection of other hospital facilities without emergency surgeries.
[43] Fifth, this application for an inspection comes at a very late stage in the proceeding — and even after the defendant sought orders dispending with the request for trial. The defendant made its position clear regarding the proposed inspection by the end of March 2025. No application was made until the defendant forced Ms Thomas’ hand by bringing its own application at the end of July 2025.
[44] Sixth, there is the potential for even more delays. The claim has been pleaded seemingly without any evidence establishing the type and model of Mayo stand said to be unsafe or the proper detail of the negligence alleged. Ms Thomas’ proposal is that she inspect, obtain a report, and then amend. It is too late for such an excursion.
The Utility of the Proposed Inspection
[45] Seventh, there is the issue of whether there is some utility in the proposed expert report in that it will promote the efficient and economical conduct of the litigation.14 In Evans Deakin Pty Ltd v Orekinetics Pty Ltd Chesterman J said this:
[19]…The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some counter-vailing circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is ‘mere suspicion’ of an infringement, but allow it where there is ‘strong suspicion’ or ‘proof’ of it, even if the proof be weak. The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.15 [emphasis added]
[46] The defendant submits that any report which is the product of the proposed inspection of level four of the RBWH would be inadmissible. I am not sure that can be stated with any certainty. On the present state of the pleadings, it is impossible for the court to be satisfied that any report produced would be relevant or not. The allegations are so broad and vague as to make it impossible to tell whether such a report would be relevant or not.
[47] A case which bears some similarities with this case is Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc.16 In that case the allegation of the plaintiff, the owner of the premises, was that a coffee machine installed in a bowls club had caused a fire which damaged the bowls club. There were a number of reports from four experts. A central question in the case was “how did it come about that combustible material was in the electrical compartment of the coffee machine?”. There were at least two possibilities: the coffee machine was manufactured that way; or post-manufacture, non-compliant parts were introduced presumably during maintenance so that the machine did not comply with the relevant safety standards. In that context, the plaintiff sought to inspect and carry out destructive testing of a second coffee machine of the same type as the coffee machine installed in the bowls club.
[48] The parties accepted that the second coffee machine is not “the subject of a proceeding”, but that it was “property about which a question may arise in [the] proceeding”. And so, the preconditions to the exercise of the discretion under rule 250 were satisfied.
[49] However, in exercising his discretion under rule 250, Davis J pointed out the lack of utility in the proposed tests. His Honour pointed out that, even though the second coffee machine was the same type as the coffee machine at destroyed in the fire, the second coffee machine, like the coffee machine destroyed in the fire, had undergone maintenance and alteration. That raised, in respect of the second coffee machine, exactly the same enquiries as were necessary in relation to the coffee machine destroyed in the fire, namely: what maintenance was done and were genuine parts used? Thus, his Honour concluded:
[53] The testing of the second coffee machine will raise a new controversy, namely the maintenance history of that machine and whether that machine is practically in its immediate post-manufacture state.
[54] Therefore, the making of the order sought is likely to widen the dispute between the parties and lead to further expense in circumstances where it cannot be said to be likely that probative evidence relevant to the case will be obtained. The destructive testing of the second coffee machine does not promote the just and expeditious resolution of the issues in the case.
[50] Here, though, the problem is slightly different and perhaps more acute. The proposal is to inspect level four of the RBWH in order to assess whether there are Mayo stands that are of the same type as the one involved in the incident located there. And then the expert is to make an assessment of that stand. That is all in the context of vague and rather general allegations of negligence.
[51] There is no demonstrated utility in the inspection. The best that can be said is that, if the inspection goes well Ms Thomas may find some evidence that assists her case. To allow the inspection would be to assist a fishing expedition.
[52] For those reasons, even if there were no difficulty with the preconditions to the exercise of the discretion, I would refuse the application on the basis of those discretionary factors.
A link to the full case is here.
1 Plaintiff’s submissions at [22].
2 The assumption is that maintenance was required. That may or may not be the case.
3 Plaintiff’s submissions at [10].
4 Plaintiff’s submissions at [8].
5 Plaintiff’s submissions at [8]. This submission illustrates that the plaintiff’s case has an element of fishing for a case rather than a properly pleaded case needing some detail.
6 See, for example, the discussion by Dal Pont, Lawyer Discipline (2020) LexisNexis at [14.34]. Note that I am not suggesting that a party must have evidence that supports each pleaded obligation. However, the requirement that allegations be substantiated does require evidence or some instructions that mean that there is a proper basis for the allegation.
7 See, for example, r 63 of the Barristers’ Conduct Rules 2018.
8 Property is defined by sch 1 of the Acts Interpretation Act 1954.
9 In June 2020 there were three types of Mayo stands in use on level four.
10 Of course, both parties appreciate that the identification of the stand is near impossible after all this time.
11 Marconi’s Wireless Telegraph Co Ltd v Commonwealth [No 1] (1912) 15 CLR 685.
12 Civil Procedure Queensland at [r 250.10]; see also Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345 at [19].
13 The application seeks an inspection of level four for the purposes of inspecting, observing and documenting.
14 The words of rule 5(3) of the UCPR could also be used here — that is, promote the “expeditious” resolution of the litigation.
15 [2002] 2 Qd R 345 at [19]. This passage was quoted with approval by Davis J in Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc [2022] QSC 71 at [31] — discussed below.
16 [2022] QSC 71.
