The proper approach of a trial judge to assessing and adjudicating the reliability of the evidence of oral witnesses – giving evidence about such events – was addressed in Toppi v Toppi (No 3) [2025] NSWSC 733 (10 July 2025). McGrath J wrote:
[19] This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the salient principles that guide this undertaking are the following:
(1) In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd(1999) 161 ALR 599; [1999] HCA 15, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].
(2) A proper understanding of the chronology of events is critical and contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung(2021) 388 ALR 128; [2021] NSWCA 24, Bell P (with whom Bathurst CJ and Leeming JA agreed) at [25].
(3) Judicial notice has been taken of scientific research which casts doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].
(4) There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic(2006) 66 NSWLR 186; [2006] NSWCA 187, by Ipp JA (with whom Mason P and Tobias JA agreed) at [26]:
These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.
(5) A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21], citing Sir Thomas Bingham in “The Judge as Juror: the Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 at 10–11. As was observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 [1924] 11 WLUK 83, by Atkin LJ at 152:
… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
This passage was quoted with apparent approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at [30].
(6) The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd[2020] NSWCA 277, Bell P (with whom White JA agreed generally at [154]–[156]) at [106], citing Goodrich at [16]–[27]. See also Admiral International Pty Ltd v Insurance Australia Ltd[2022] NSWCA 277, Bell CJ (with whom Ward P and Macfarlan JA agreed) at [102]–[103], citing White Constructions, at [106] and [138] and Goodrich, at [16]–[27].
(7) It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman(1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd[2024] NSWCA 160, Basten AJA at [18] (with whom White and Adamson JJA agreed)):
… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
(8) Oral recollection of conversations still plays an important role as evidence in a case, as explained inET-China.com, by Bell P (with whom Bathurst CJ and Leeming JA agreed) at [27]–[29] in the following terms (emphasis in original):
[27] Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):
the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose — though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. (emphasis added)
[28] Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.
[29] Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.
The recent Register of Disciplinary Action issued by the Office of the Legal Services Commissioner (NSW) listed that a Sydney Silk, Jamie Darams SC – who took Silk in 2023 – was found guilty of unsatisfactory professional conduct, on 5 June 2025, being fined $10,000, being reprimanded, ordered to issue a written apology to the victim of his conduct and her employer, and to undertake a minimum of 10 hours one-on-one counselling in respect of sexual harassment, respect for women and the excessive consumption of alcohol.
The subject matter of the charges are listed as follows:
On 7 December 2023, during a work Christmas function at a hotel in the eastern suburbs of Sydney, Mr Darams SC engaged in unsatisfactory professional conduct in that he engaged in the unwanted touching of a female solicitor (KE) as follows:
(a) by running his hand along KE’s body from the top of her back to down past her backside, while they were both standing; and
(b) shortly afterwards, KE sat on a stool at a tall bar table where Mr Darams SC and some of her colleagues were gathered. Mr Darams SC was standing next to KE. He then ran his hand along KE’s leg from her thigh to her knee. In doing so, his hand was underneath the table. KE moved her leg. He then ran his hand along KE’s leg from her thigh to her knee on two further occasions. KE pushed his hand away on these two latter occasions.
…
On 7 December 2023, during a Christmas function hosted by a Law Firm at a Hotel in the eastern suburbs of Sydney, Mr Darams SC engaged in unsatisfactory professional conduct when he:
Ground 3: Engaged in unwanted sexual touching towards a female solicitor when he grabbed her backside while she was on the dancefloor.
The links to the entry in the Register may be found here and here.
In Legal Services Commissioner v O’Brien [2025] QCAT 190 (17 June 2025), a solicitor who harboured a longstanding traffic history failed – in his application to renew his practising certificate – to disclose two recent traffic infringements. He had a history of failing to disclose traffic offences and had previously been issued a practising certificate on condition he undertook an ethics course because of failure to disclose those offences. QCAT – by Justice Williams – found he had thereby engaged in professional misconduct. A significant pecuniary penalty and other conditions were imposed. Justice Williams wrote:
[1] This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application includes four charges against the Respondent, Benjamin O’Brien (Respondent), being:
(a) two charges of failing to disclose a suitability matter within the meaning of s 9(1)(a) of the LP Act when applying to renew his practising certificate; and
(b) two charges of having made a false declaration in his applications to renew his practising certificate submitted to the Queensland Law Society (QLS).
[2] The key facts and characterisation of the conduct are not in dispute between the LSC and the Respondent.
[3] At the hearing of the discipline application, several concessions were made in respect of matters that were in dispute between the parties. Consequently, the hearing of the disciplinary application proceeded on the basis that:
(a) Charges 1 and 2 were limited to the second limb set out in the charge.1 That is, that the Respondent engaged in conduct in the course of practice or otherwise which is likely, to a material degree, to bring the profession into disrepute.
(b) The Respondent’s conduct underlying the charges was not deliberate and, in particular, that the Respondent did not make the declarations knowing them to be false.2
(c) The LSC did not press the particulars at [1.19], [1.21], [2.5] and [2.7] of the discipline application.3
(d) The Respondent accepts that, in the particular context that arises here, the additional traffic offences were suitability matters that he was obliged to disclose on the renewal applications.
[4] Both the LSC and the Respondent agree on the following matters:
(a) Taking a global approach, it is open for the Tribunal to be satisfied that the charges are proven and that the conduct is properly characterised as professional misconduct.
(b) The sanction should be:
(i) a public reprimand;
(ii) the Respondent undertake and successfully complete the QLS Remedial Ethics Course at his own expense; and
(iii) a pecuniary penalty.
(c) There are no exceptional circumstances justifying an order departing from s 462(1) of the LP Act and the Respondent should pay the LSC’s costs of and incidental to the discipline application.
…
[10] In considering the conduct, it is relevant that, pursuant to s 420(1)(a) of the LP Act, conduct consisting of a contravention of a relevant law,4 which includes the Australian Solicitors Conduct Rules 2012 (ASCR),5 is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.
[11] The LSC alleges the Respondent contravened Rule 5.1.2 of the ASCR and the conduct is capable of being unsatisfactory professional conduct or professional misconduct.
[12] Rule 5 of the ASCR states as follows:
Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
[13] Further, in determining whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct, the following authorities considering the general principles are of some assistance.
[14] In Legal Services Commissioner v Laylee[2016] QCAT 237, the Tribunal states the test required to establish unsatisfactory professional conduct as follows:
The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant ‘falling short’ does not embrace all cases of error but must be sufficiently substantial. There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct. An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct. Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.6
[15] In Legal Services Commissioner v Bradshaw[2009] QCA 126, McMurdo P considered what must be demonstrated by the applicant to establish whether conduct falls within the statutory definition of unsatisfactory professional conduct and stated as follows:
In establishing whether conduct is unsatisfactory professional conduct, the commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner. This is not something easily capable of direct proof. But in any case, s 418 refers to what ‘a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’. This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case.7
[16] The test for professional misconduct was described by Thomas J in Adamson v Queensland Law Society Inc (1990) 1 Qd R 498 as follows:
The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.8
…
[19] The charges in the discipline application are as follows:
(a) Charge 1: “On 12 May 2021 the Respondent engaged in conduct, in the course of practice or otherwise, … which is likely, to a material degree, to bring the profession into disrepute”.9
(b) Charge 2: “On 25 May 2022, the Respondent engaged in conduct, in the course of practice or otherwise, … which is likely, to a material degree, to bring the profession into disrepute”.
(c) Charge 3: “On or about 12 May 2021, the Respondent made false declarations in his application to renew his practising certificate submitted to the QLS”.
(d) Charge 4: “On or about 25 May 2022, the Respondent made false declarations in his application to renew his practising certificate submitted to the QLS”.
[20] The particulars in respect of each of the charges can be considered together. The relevant facts include:
(a) At all material times the Respondent was an Australian legal practitioner pursuant to s 6(1) of the LP Act, having been admitted as a lawyer in the Supreme Court of Queensland on 13 July 2015.
(b) Between 24 June 2015 and on or about 3 April 2019 the following occurred (Historical Context):
(i) On 24 June 2015, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $227 fine and accumulation of 3 demerit points (June 2015 Traffic Infringement).
(ii) On 17 July 2015, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $235 fine and accumulation of 3 demerit points (July 2015 Traffic Infringement).
(iii) On 13 August 2015, the Respondent applied to the QLS for a practising certificate for the 2015/16 financial year and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act and did not disclose the June 2015 Traffic Infringement and the July 2015 Traffic Infringement.
(iv) On 19 May 2016, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $235 fine and accumulation of 3 demerit points (May 2016 Traffic Infringement).
(v) On 31 August 2016, the Respondent used a handheld mobile phone while driving, the penalty being a $365 fine and accumulation of 3 demerit points (August 2016 Traffic Infringement).
(vi) On 26 September 2016, the Respondent became subject to a 1-year good behaviour period (Good Behaviour Period).
(vii) On 18 October 2016, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $243 fine and accumulation of 3 demerit points (October 2016 Traffic Infringement).
(viii) On 23 November 2016, the Respondent used a handheld mobile phone while driving, the penalty being a $365 fine and accumulation of 3 demerit points. He received a further penalty of an accumulation of 3 demerit points for having more than two mobile phone offences within 12 months (November 2016 Traffic Infringement).
(ix) On 21 December 2016, the Respondent’s drivers’ licence was suspended for accumulating 3 demerit points during the 1-year Good Behaviour Period (Suspension).
(x) On 4 July 2017, the Respondent applied to the QLS to renew his practising certificate for the 2017/18 financial year and declared that he had not been subject to any suitability matters in s 9 and s 46 of the LP Act and did not disclose the June 2015 Traffic Infringement, the July 2015 Traffic Infringement, the May 2016 Traffic Infringement, the August 2016 Traffic Infringement, the Good Behaviour Period, the October 2016 Traffic Infringement, the November 2016 Traffic Infringement and the Suspension (together, the 2015 to 2016 Traffic History).
(xi) On 29 May 2018, prior to submitting an application to renew his practising certificate for the 2018/19 financial year, the Respondent sent an email to the QLS and disclosed that:
A. His licence was suspended due to an accumulation of demerit points on or about 22 February 2017; and
B. He breached a good behaviour bond on or about 23 November 2017 (29 May 2018 Disclosure).
(xii) On 1 June 2018, the Respondent provided a copy of his traffic history which outlined the 2015 to 2016 Traffic History.
(xiii) On or about 6 August 2018, as a result of the failure to disclose the 2015 to 2016 Traffic History, the Respondent’s practising certificate was renewed with the condition that the Respondent undertake the next available QLS Ethics Course.
(xiv) On or about 3 April 2019, the Respondent undertook the QLS Ethics Course.
(c) In respect of Charge 1:
(i) On 27 March 2021, the Respondent exceeded the speed limit by less than 11km per hour, the penalty being a $177 fine and accumulation of 1 demerit point (2021 Traffic Infringement).
(ii) On 12 May 2021, the Respondent applied to the QLS to renew his practising certificate and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act in the previous 12 months “which may affect [his] eligibility or fitness to hold a practising certificate”.
(iii) In making the application to renew his practising certificate, the Respondent:
A. did not disclose the 2021 Traffic Infringement; and
B. was aware or ought to have been aware that he was required to disclose the 2021 Traffic Infringement having regard to:
I. the Historical Context; and
II. the fact that the Respondent accepts that the 2021 Traffic Infringement should have been disclosed.
(d) In respect of Charge 2:
(i) On 21 March 2022, the Respondent exceeded the speed limit by less than 13km per hour, the penalty being a $183 fine and accumulation of 1 demerit point (2022 Traffic Infringement).
(ii) On 25 May 2022, the Respondent applied to the QLS to renew his practising certificate and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act in the previous 12 months “which may affect [his] eligibility or fitness to hold a practising certificate”.
(iii) In making the application to renew his practising certificate, the Respondent:
A. did not disclose the 2022 Traffic Infringement; and
B. was aware or ought to have been aware that he was required to disclose the 2022 Traffic Infringement having regard to:
I. the Historical Context; and
II. the fact that the Respondent accepts that the 2022 Traffic Infringement should have been disclosed.
(e) In respect of Charge 3:
(i) On or about 12 May 2021, the Respondent applied to the QLS for renewal of his practising certificate by completing the approved form published by the QLS (Approved Form) and submitting the Approved Form to the QLS before 31 May 2021.
(ii) The Approved Form required the Respondent to:
disclose whether he had been subject to any of the suitability matters mentioned in sections 9 and 46 of the [LP Act] within the 12 months before the lodgement of his application to renew his practising certificate which may affect his eligibility or fitness to hold a practising certificate.10
(iii) The Respondent falsely declared in the Approved Form that:
A. he had not been subject to any of the suitability matters mentioned in s 9 and s 46 of the LP Act within the last 12 months which may affect his eligibility or fitness to hold a practising certificate; and
B. all information and particulars in the Approved Form were complete and accurate in every detail.
(iv) The statements were false because in the 12 months before the Respondent completed the Approved Form, he had been subject to a suitability matter within the meaning of s 9 of the LP Act.
(f) In respect of Charge 4:
(i) On or about 25 May 2022, the Respondent applied to the QLS for renewal of his practising certificate by completing the Approved Form and submitting the Approved Form to the QLS before 31 May 2022.
(ii) The Approved Form required the Respondent to:
disclose whether he had been subject to any of the suitability matters mentioned in sections 9 and 46 of the [LP Act] within the 12 months before the lodgement of his application to renew his practising certificate which may affect his eligibility or fitness to hold a practising certificate.11
(iii) The Respondent falsely declared in the Approved Form that:
A. he had not been subject to any of the suitability matters mentioned in s 9 and s 46 of the LP Act within the last 12 months which may affect his eligibility or fitness to hold a practising certificate; and
B. all information and particulars in the Approved Form were complete and accurate in every detail.
(iv) The statements were false because in the 12 months before the Respondent completed the Approved Form, he had been subject to a suitability matter within the meaning of s 9 of the LP Act.
[21] The Respondent admits:
(a) the relevant facts and the Historical Context;
(b) that the 2021 Traffic Infringement in conjunction with the Historical Context is a suitability matter within s 9(1)(a) of the LP Act; and
(c) that the 2022 Traffic Infringement in conjunction with the Historical Context is a suitability matter within s 9(1)(a) of the LP Act.
…
In respect of Charges 1, 2, 3 and 4, is the Respondent’s conduct properly characterised as professional misconduct?
[26] The parties contend that considering the Respondent’s conduct globally, the proper characterisation of the conduct is professional misconduct.
[27] A failure to declare a suitability matter and making a false declaration as to a suitability matter as part of an application to renew a practising certificate is serious. It goes to the very heart of the regulatory regime and the ability of a legal practitioner to practise as a solicitor.
[28] The characterisation exercise is done by a consideration of the seriousness of the conduct itself. Subsequent events, such as rehabilitation and reaffirmation of character, are to be considered at the sanction stage and not as part of the characterisation exercise.13
[29] The characterisation exercise requires consideration of whether the conduct fell short of, or substantially departed from, the accepted standard of competence and diligence expected of a lawyer.
[30] Relevant considerations include:
(a) Section 9 of the LP Act outlines suitability matters, including whether the person is currently of good fame and character.
(b) Section 46 of the LP Act deals with suitability to hold a practising certificate, including consideration of any suitability matter, the identified matters, and “other matters the authority thinks are appropriate” in respect of whether a person is, or is no longer, a fit and proper person to hold a practising certificate.
(c) A central component of the practising certificate regime is the candour of legal practitioners in disclosing matters for consideration by the QLS.
(d) The online application for a renewal of a practising certificate asks the question:
Have you been subject to any of the suitability matters mentioned in ss 9 and 46 of the [LP Act] within the last 12 months which may affect your eligibility or fitness to hold a practising certificate? (emphasis added)
(e) This question requires the legal practitioner to actively engage in a consideration of their own conduct and potential suitability matters to satisfy themselves of whether any matters need to be disclosed.
(f) The online application for a renewal of a practising certificate requires a solemn and sincere declaration by the legal practitioner, including that the information and particulars are “complete and accurate in every detail”.
(g) The declaration requires the legal practitioner to reflect on the completeness and accuracy of the information being provided and to actively engage with what is required by the LP Act, the ASCR, and any other matters relevant to the regulatory regime.
(h) The standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner includes an understanding of the suitability factors in the LP Act, the importance of candour in disclosing matters, and the ability to self-assess.
(i) The online renewal application for a practising certificate consists of a number of dialogue boxes to be completed and the insertion of the legal practitioner’s name to complete the declaration. It appears similar to many other online forms of a general administrative nature. However, the completion of an online renewal application for a practicing certificate is not a simple “tick and flick” exercise.
(j) The online renewal application for a practising certificate requires the legal practitioner to personally engage with the requirements of the application and to apply intellectual rigour to what is required.
[31] The obligation to make candid and comprehensive disclosure of matters was described in Heffernan v Law Society (NT) by Grant CJ, Blokland and Brownhill JJ as follows:
The duty of candour applies to each of the suitability matters … If one of those suitability matters applies to an applicant for a practising certificate, or the holder of a practising certificate, the duty of candour obliges them to disclose it to the Law Society in comprehensive fashion. That, however, is not the limit of the duty of candour. It also obliges such a person to disclose to the Law Society any circumstances which might reasonably be considered to bring such a person within one of those suitability matters or otherwise to bear or reflect adversely on an assessment of fitness. It is then for the Law Society to determine, with all of the relevant information, whether the person is a fit and proper person to hold a practising certificate.14
[32] In Prothonotary (NSWSC) v Montenegro, the New South Wales Court of Appeal in a joint judgment of Meagher JA, Leeming JA and Emmett AJA found that the practitioner in that case had “no appreciation of the content and importance of his obligation of candour”.15 The obligation required disclosure of:
… all of the circumstances of his past misconduct which were likely to reflect adversely on his character and fitness to practise as a lawyer …in making disclosure he was required to focus on and disclose the aspects of his past misconduct that involved dishonesty or revealed a disrespect for the rule of law or otherwise affected his suitability to engage in the activities and enjoy the privileges [of the legal profession].16
[33] The Queensland Court of Appeal in Legal Services Commissioner v Scott considered a potential failure to disclose relevant information in an application for admission. In that case the non-disclosure was admitted, and steps were taken to remedy it which were accepted by the QLS.17 The question on the application concerned what should be done about the admission and continuing practice as a lawyer in light of the non-disclosures. Relevantly to this matter Alan Wilson J, with whom Fraser JA and Atkinson J agreed, stated:
… it is critical that all practitioners understand that the burden of full and frank disclosure is extremely onerous and must be met in full and with all necessary particulars, regardless of an individual applicant’s circumstances.18
[34] The Tribunal accepts the submission by the LSC that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would:
(a) understand their disclosure obligations;
(b) understand the content and importance of the duty of candour;
(c) undertake adequate due diligence to satisfy themselves that they do, or do not, have any suitability matters to disclose;
(d) if already censured for non-disclosure, appreciate that matters of a similar nature would need to be disclosed in the future; and
(e) otherwise comply with their disclosure obligations.
[35] In respect of the solemn declaration, it is clear that the making of a false declaration by a legal practitioner is a serious matter. A legal practitioner is expected to carefully consider the questions asked on an application to renew a practising certificate and to take steps to satisfy themselves that any declaration made is true and correct. Making a false declaration is conduct which goes to the integrity of the legal practitioner and would involve a significant departure from accepted standards of competence.
[36] In Legal Services Commissioner v Telehus (Legal Practice), the Tribunal considered a false statutory declaration in support of an application for the issuing of a practising certificate and found that the seriousness of the conduct was “magnified by the circumstances in which [the] false statements were made”.19Whilst the declarations here were not statutory declarations, they were solemn declarations made to the QLS as part of the regulatory scheme for the issuing of practising certificates “whereby a solicitor is granted the privileges and takes on special responsibilities to the courts, clients and the community generally”.20 Accordingly, the seriousness of the conduct in the present case is similarly “magnified”.
[37] In Legal Profession Board of Tasmania v Haque, Blow CJ considered the conduct of a barrister providing false information in an application to renew a practising certificate.21 The conduct was found to be unsatisfactory professional conduct in that the conduct fell short of the standard of diligence to be expected of a reasonably competent Australian legal practitioner in the sense that:
practitioners must be expected to be diligent in providing accurate information, as distinct from misleading information, to the bodies that issue practising certificates.22
[38] In that case the legal practitioner contended that he was under a misapprehension of what was required to be disclosed. The LSC contends that here no such misapprehension could arise given the Historical Context. Accordingly, the conduct in the current case is more serious than in Legal Profession Board of Tasmania v Haque.
[39] Similarly, in Council of the Law Society (NSW) v Nguyen the Tribunal found the legal practitioner’s conduct in making a false declaration in applications for renewal of a practising certificate by failing to disclose disciplinary proceedings to be unsatisfactory professional conduct.23 The conduct was admitted and was not deliberate. The matter proceeded by way of consent order and the Tribunal noted that:
this case demonstrates the need for practitioners to be diligent, conscientious and careful with the documents they handle during the course of their practice, especially a document so fundamental to legal practice as the Application [for] renewal of a Practising Certificate.24
[40] It appears from that case that a considerable amount of leniency was extended to the legal practitioner in the particular circumstances. In contrast, here it is submitted that the Respondent had already been granted leniency in regard to his earlier non-disclosures which are part of the Historical Context. Accordingly, the conduct in the current case is more serious than in Council of the Law Society (NSW) v Nguyen.
[41] The Tribunal accepts the submission by the LSC that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would make appropriate and diligent inquiries to ensure they do not make false declarations.
[42] A competent and diligent legal practitioner would:
(a) be mindful in making disclosures and solemn declarations that information provided to the QLS was “complete and accurate in every detail”, particularly in relation to an application to renew a practising certificate to be able to undertake work as a solicitor; and
(b) take steps to check whether they had any suitability matters to declare when applying to renew their practicing certificate.
[43] Considering the Respondent’s conduct:
(a) The Respondent’s conduct “strikes at the heart” of the Respondent’s entitlement to practice as a solicitor. It occurred as part of the Respondent’s application to renew his practising certificate which increases the seriousness of the conduct.
(b) The conduct goes to a legal practitioner’s ability to hold themselves out and to practice as a lawyer and has the potential to damage the public’s trust in the legal profession.
(c) The failures to disclose and the false declarations impacted the ability of the QLS to make a proper assessment of whether he was, at the relevant time, a fit and proper person to hold a practising certificate.
(d) The failures to disclose and false declarations occurred after the Respondent completed the QLS Remedial Ethics Course on or about 3 April 2019 as a condition of his 2017/2018 practising certificate (being the Historical Context outlined above).
(e) The conduct involved a significant departure from accepted standards of competence and diligence.
…
[49] The discretion to make any order the Tribunal thinks fit is a wide discretion and is exercised primarily in the protection of the public.25 Principles of personal and general deterrence are also relevant.26
[50] The LSC concedes that the following matters, including mitigating factors, are relevant to the appropriate sanction:
(a) General and personal deterrence remain of paramount importance.
(b) An aggravating feature is that the Respondent has previously been dealt with by the QLS for identical conduct. As a consequence, specific deterrence remains an important factor.
(c) In shaping the orders, the Tribunal should have regard to the protection of the public by the maintenance of proper professional standards.27 The protection of the public includes both the protection of the public against further misconduct of the Respondent and also similar conduct by other practitioners.28
(d) Mitigating factors include:
(i) The Respondent admitted the facts establishing the charges.
(ii) The Respondent cooperated with the Legal Services Commission through the investigation and the proceedings.
(iii) The Respondent has developed insight and currently acknowledges that disclosure of the 2021 Traffic Infringement and the 2022 Traffic Infringement should have been at the forefront of his mind.
(iv) The Respondent has implemented reminders in both the firm bring up system and on his mobile phone to obtain a traffic history report prior to renewing his practising certificate in the future.
(v) The Respondent has shown remorse and is sorry and embarrassed by his conduct the subject of the charges.
(vi) The Respondent self-reported his non-disclosures to the QLS and, on his 2023 application for renewal of his practising certificate, he was granted an unconditional practising certificate.
(vii) The Respondent has positive references and support from more senior practitioners. The character references speak of the Respondent being full and frank about the matters the subject of the charges, the Respondent being remorseful, and the Respondent otherwise being an ethical lawyer.29
[51] An order publicly reprimanding the practitioner may be imposed pursuant to s 456(2)(e) of the LP Act. The Respondent concedes that a public reprimand is an appropriate order.
[52] The impact of a public reprimand has been recognised previously by the Tribunal. In Legal Services Commissioner v Cruise, the Tribunal30 referred to the observations made in Council of the New South Wales Bar Association v Lott as follows:
A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct.31
[53] Further, the Tribunal in Legal Services Commissioner v Challen, recognised the seriousness of a public reprimand as follows:
[39]First, there will be an order that the respondent be publicly reprimanded. The respondent conceded that this was an appropriate order in this case. The impact of such an order being made cannot be understated, particularly when it is made against a practitioner of significant seniority and an otherwise unblemished professional record. As this Tribunal has previously said:
The making of a public reprimand is a serious step by the Tribunal and not one which should be taken or regarded lightly. The public reprimand is and will continue to be a permanent public blemish on the respondent’s professional record. It is and will continue to stand as a permanent reminder to the respondent, to the profession and to the public at large that there are adverse personal consequences when one engages in professional misconduct of this kind.32
…
Orders
[77] For the reasons stated above, the Tribunal orders that:
1. The Respondent’s conduct identified in respect of each of Charges 1, 2, 3 and 4 in the discipline application is proved and is found to constitute professional misconduct.
2. The Respondent is publicly reprimanded.
3. The Respondent pay a pecuniary penalty in the sum of $4,000 within three months of these orders being made.
4. The Respondent successfully complete the next available QLS Remedial Ethics Course at his own expense and provide to the Applicant, within a month of having completed the course, evidence of his successful completion of the course.
5. The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.
1 T1-7 lines 10 to 42. In the circumstances where the Respondent was granted a practising certificate in 2023/2024 without conditions and it could be inferred that the Respondent was a fit and proper person to hold the certificate, and the LSC was not contending that the Respondent should be found to be, at the date of the hearing, permanently or temporarily unfit to practise.
2 T1-5 line 47 to T1-6 line 3 and T1–20 line 41 to T1-21 line 8.
3 T1-10 lines 8 to 9 (noting that the transcript incorrectly references [1.9] rather than [1.19]). That is, the LSC did not press for consideration and determination in this matter that a single traffic infringement was a suitability matter pursuant to s 9(1)(a) of the LP Act, or that a traffic infringement was a suitability matter pursuant to s 9(1)(e) of the LP Act as it constituted a conviction of an offence in Australia.
4 The term “relevant law” is defined in Schedule 2 of the LP Act to mean “this Act”. See also s 1 of the LP Act.
5 Being the version of the ASCR in force at the time of the Respondent’s conduct. Section 420(1)(a) of the LP Act includes a note that a contravention in relation to the LP Act includes a contravention of a regulation or legal profession rules.
9 Given the concession outlined at 3(a) above, the first limb of Charges 1 and 2 (being “the Respondent engaged in conduct, in the course of practice or otherwise, demonstrating that the Respondent is not a fit and proper person to practise law”) is not considered.
10 Application for Disciplinary Proceedings filed 28 June 2024, at 3.3.
Two recent decisions of intermediate appellate courts identified an arguably contrasting view of the extent to which (if at all) a court in a civil – cf criminal – cause should afford advice and assistance to a self-represented litigant, so as to obviate misconception as to sufficiency of evidence or argument.
In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94 (6 May 2025), the plaintiff was self-represented at trial upon a cause of action for negligence. The defendant succeeded in a no case submission on account of the plaintiff being unable to establish factual causation. The plaintiff’s appeal from that decision was allowed (he being represented by counsel on such appeal). The Court of Appeal of Victoria (Beach and Kennedy JJA and J Forrest AJA) wrote evincing a more indulgent approach:
[1] The applicant arranged for the installation of a septic tank system on his property in Seaton. He alleges that this system was missing a part — variously described as an ‘aerator arm’, or ‘aerator shaft’ – which caused him to suffer recurrent Helicobacter Pylori (‘HP’) infections, sickness, loss and damage.
[2] The applicant brought a case in negligence and contract against the manufacturer of the septic tank system in the County Court. He alleged that the system was improperly installed and maintained. By the time the matter came to trial, the applicant was self-represented. He gave evidence himself. He also adduced evidence from his friend, Ms Berry, who assisted him at the trial. However, at the conclusion of this evidence, the respondent made a no case submission on the basis that the applicant could not prove his case in respect of causation. More particularly, that he could not prove that the fitting of the aerator arm would have averted his injury.
[3] The judge upheld the no case submission and gave judgment for the respondent.
[4] The applicant now seeks leave to appeal the judge’s decision on the basis of two proposed grounds:
(1) the judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial;
(3) the judge erred in ruling in favour of the respondent’s no case submission:
(a) without having considered whether it was an appropriate case to invoke s 51(2)Wrongs Act 1958 (‘Wrongs Act’), as is required by the Act;
(b) without providing the applicant, as an unrepresented litigant, the opportunity of proving causation by an alternative means under s 51(2) if factual causation could not be established. .1
…
[17] In October 2018, Slater and Gordon filed a proceeding on behalf of the applicant against the respondent alleging the improper installation and maintenance of the septic system. The applicant’s case was brought in negligence and, alternatively, in contract. On 22 April 2021, Slater and Gordon ceased to act for the applicant.
[18] By orders made on 15 November 2022, Judge Tran set the proceeding down for trial commencing on 15 September 2023. She also ordered the respondent to file and serve a draft statement of issues which was subsequently filed. The issues identified included whether any breach of contract or duty of care by the respondent caused loss and damage to the applicant.
[19] The trial was subsequently conducted on 15, 18, 19, 20 and 21 September 2023. The applicant remained self-represented, but, as indicated already, was assisted by his friend, Ms Berry. The respondent’s counsel was Mr Makowski.
[20] Given the applicant alleged that he was denied procedural fairness, it is necessary to outline, in some detail, the course of the trial.
Course of the trial
[21] The judge raised at the outset whether the applicant was going to give evidence and, upon clarifying that he was, he told him that he needed to give ‘all [his] evidence’ which needed to cover ‘all aspects’ of his case. The judge explained the ‘ground rules’, indicating that the applicant would give evidence first, then he would be cross-examined by Mr Makowski, and that he would then be re-examined. The applicant could then make a decision about whether Ms Berry would give evidence and should also tell the judge what documents he wished to tender. After that, his case would ‘conclude’ and Mr Makowski’s case ‘will begin’. He added that it was ‘entirely up to him [Mr Makowski] how he runs his case. We’ll see.’
[22] After proceeding to explain the concept of opening submissions, the judge asked Mr Makowski if there was anything that should be elaborated upon so that the applicant could better understand the process. Mr Makowski replied ‘no’, but ensured that the judge had the statement of agreed issues. The judge then asked Mr Makowski: ‘you don’t have to commit to this, but if you were to go into evidence, how many witnesses do you anticipate calling?’ Mr Makowski replied that he had ‘potentially two’, being Mr John Taylor and his son, Andrew Taylor who had many dealings with the applicant and inspected the septic system in October 2011. As mentioned earlier, it was Mr Andrew Taylor who, on the applicant’s account, failed to install (or arrange for the installation of) the aerator arm of the system.
[23] Ms Berry then made an opening on behalf of the applicant.
[24] At the completion of this opening, the judge invited Mr Makowski to make a statement, but he indicated that he was not going to say anything at that stage and that he would prefer to do an opening at the close of the applicant’s case. When pressed as to what the central issues in dispute were, he identified a number, including the content of the duty and causation.
[25] The applicant then proceeded to give evidence, with the assistance of the judge. This assistance included the provision of transcript and the statement of issues, as well as the statement of claim. The applicant was then cross-examined.
[26] Following the cross-examination, there was an exchange between the judge and the applicant about his imminent re-examination during which time the judge inquired about whether Ms Berry was available. In the course of dealing with this matter, the applicant indicated that he had ‘one other question’. He was asked to stand up and the following exchange occurred (‘the first exchange’):
MR TURNER: Was about the two witnesses on your — when are they — they will likely to be called?
HIS HONOUR: Well, at this stage, Mr Turner, we’re uncertain if there will be any evidence from the [respondent]. I’ll wait to hear about that. But your case has to finish first before Mr Makowski makes a decision whether he calls anyone to give evidence.
MR TURNER: Is that right, Your Honour? Yeah.
HIS HONOUR: It is.
MR TURNER: Yep, yep. No — no problem, because — yes, yes.
HIS HONOUR: So we’ll just wait and see what happens when your case finishes.
MR TURNER: Yes, yes, Your Honour, no problems.
HIS HONOUR: All right, thank you.
[27] As will be seen, below, this exchange is one of two passages upon which the respondent places particular reliance.
[28] Ms Berry was then called and gave evidence for a relatively short time.
[29] Once Ms Berry withdrew from the witness box, the judge stated to the applicant that it was his case and he had to ‘prove every element of it’. The judge indicated that he wanted the applicant to be absolutely certain that Ms Berry could not give any other relevant evidence and therefore gave him overnight to consider this issue.
[30] Following this discussion, the judge also addressed Mr Makowski and said that he did not need to hear ‘a final position’ from him at that point, but asked ‘how does tomorrow look?’ Mr Makowski’s response was that they would continue going through tendering of documents and objections, see what Ms Berry said, and that he would ‘prefer to reserve [his] position until the [applicant’s] case is closed’. The judge then adjourned the court.
[31] The following day, the applicant sought to ask only one further question of Ms Berry who was recalled, at which point the applicant was asked if that was the only evidence he wished to call from Ms Berry. The following exchange then occurred (‘the second exchange’):
MR TURNER: Yes, Your Honour. The — my cross-examination of the [respondent’s] witnesses, all the relevant information is in there, because the — the rest of it’s all only hearsay. We’ve decided just to stick with the facts that we can bring to the court.
HIS HONOUR: All right, Mr Turner. As you know, you are a self-represented litigant.
MR TURNER: Yes.
HIS HONOUR: And while I can assist you to identify the issues in the case, I cannot step into your shoes and conduct your case for you.
MR TURNER: Yep.
HIS HONOUR: So, once again, I would remind you, it is your case to prove—
MR TURNER: Yes.
HIS HONOUR: – – – all the elements in your cause of action. One of the elements in your cause of action relates to what’s called your damages.
MR TURNER: Yes.
HIS HONOUR: Your compensation, and that is based around your pain and suffering.
MR TURNER: Yes.
HIS HONOUR: Now, I advised you about that on Friday, I gave you time yesterday to consider whether you could call evidence from Ms Berry that went to any of the issues in dispute in the statement of claim and in — set out in the statement of issues.
MR TURNER: Yes.
HIS HONOUR: I’ve given you that time. I’ve asked you again – -—
MR TURNER: Yes.
HIS HONOUR: – – – whether or not you want to call any evidence from Ms Berry, and you now indicated to me you don’t wish to call any further evidence from her?
MR TURNER: Yeah, no, Your Honour. There — the evidence that I’ve presented is — is the only evidence that we’ve got. I think there’s only one point left — left to prove.
HIS HONOUR: Well – – –
MR TURNER: And — and — and that’s because it — it — it with — and that — in the opposition, and when I can cross-examine then, or there’s a list of — of offence. I can’t give you any more than that, because the — the doctor’s evidence is the — three doctors and Dr Johnstone, his report, on me.
[32] The judge then indicated that he was only speaking to Ms Berry’s evidence. There was then no further evidence adduced from Ms Berry. Instead, a number of further documents were tendered, and the applicant was briefly recalled in order to effect such tender. The documents included medical reports of three gastroenterologists: Associate Professor Paul Desmond, Dr John Coleman and Dr Andrew Jakobovits.
[33] The judge then gave the applicant ‘one last chance’ to tell him if there was any further evidence he wished to call. A number of documents were discussed. At the conclusion of that discussion, the applicant indicated that those documents were all that he wanted to add. The judge then stated:
All right, so that means once you’ve put all of your evidence in, I will ask you a formal question, which is, ‘Have you closed your case, Mr Turner?’ And when you say to me, ‘Yes, I have’, that means that all the evidence in your case is in and you will not be permitted to call further evidence, unless during the course of the [respondent’s] case something comes up and you wish to put additional documents to them which you can prove through one of those witnesses. All right?
[34] The applicant responded, ‘yes’, whereupon the judge said that once his case was closed it was an indication that the evidence that he had called was sufficient to succeed in his case. The applicant then agreed that he was ready to close his case, and the judge stated that he marked his case as closed.
[35] The judge then turned to Mr Makowski, asking him what was ‘the situation’, whereupon Mr Makowski immediately responded (without taking instructions, or asking for time) that the respondent ‘proposes to make a no case submission’. He also indicated that he was content to be put to his election.
[36] The judge then explained to the applicant that the respondent had applied to proceed to a ‘no case’ submission. By that, the respondent was saying that the applicant had not made out the elements required to be successful so that it was pointless to go on and that the respondent was ‘not obliged to call any evidence’. In response to this explanation, the applicant stated:
Yes. No, Your Honour, the cross-examination of his clients, to me, will be the whole approach of the whole case.
[37] The judge replied that there was no obligation on the respondent ‘to call any evidence’. He also stated that he had stressed from the outset that the applicant had to satisfy all the elements in his cause of action set out in the statement of claim and statement of issues. Following these statements, the applicant stated:
I was waiting — waiting for the cross-examination of them. That — I – I don’t understand the law the way youse [sic] people do, no.
[38] The judge subsequently granted leave to the respondent to make the no case submission, heard submissions and reserved his decision.
[39] By reasons delivered on 18 October 2023, the judge accepted the no case submission and gave judgment for the respondent.
Judge’s reasons
[40] The judge noted that the respondent’s no case submission was based on a failure in respect of causation. More particularly, the respondent’s submission was that the applicant had not adduced evidence in relation to the following matters:
(a) assuming the septic system was missing the aerator arm until January 2017, whether it emitted any HP through the effluent pipes which were located in the lawn areas; and
(b) even if the system did emit HP, whether it caused the applicant’s HP infection ie whether the applicant ingested HP coming from that system.6
…
Whether the trial judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial (ground 1)
Applicant’s submissions
[47] In written submissions, the applicant submitted that he was confused in relation to the procedural aspects of the trial. He highlighted various extracts from the transcript where he indicated that the cross-examination of the respondent’s witnesses was important to his case. He submitted that he only became aware for the first time when the respondent was making its no case submission that there was a possibility that the respondent would not call a witness. He submitted that this then exposed the shortcomings in his case, which had not previously been brought to his attention.
[48] The applicant accepted that the judge extended a considerable degree of latitude towards him, but emphasised that it was the occasion when judicial assistance was required, but not provided, which was critical and that point in time arose in the opening submissions of the parties. Thus the applicant’s submission was that the judge was made aware at the commencement of the trial of the evidence to be adduced on the part of the applicant, with no expert reports filed on questions of liability. Given that the respondent informed the court that causation was in issue, the absence of expert evidence was a powerful indicator of a potential hiatus in the applicant’s case, and this must have been apparent to the judge and to counsel for the respondent. The provision of expert evidence was also not a task one could expect a self-represented litigant to properly undertake without assistance.
[49] The applicant submitted that there were two solutions. First, the judge ought to have declined the request for a no case submission and required the respondent to lead evidence. Secondly, the trial could have been adjourned to allow expert evidence to be obtained by the applicant.
[50] However, the applicant also submitted that the adjournment might be avoided if processes were adopted to ensure the applicant was fully aware of the relevant procedural steps, including the need to ensure that he was able to prove all aspects of his case without being reliant on cross-examining the respondent witnesses. The applicant also submitted that the requirement to ensure that the applicant was aware of such matters further rested on counsel for the respondent. Thus the obligation of ensuring a fair trial could be discharged by the judge seeking an indication from opposing counsel as to whether anything other than what might be perceived as ‘the usual trial process’ was to be employed. The applicant submitted that if the judge had raised the possibility of a no case submission and counsel declined to respond, then that might have been relied upon to refuse the submission were it to be made.
[51] In oral submissions, counsel15 clarified that the real complaint was that the applicant had laboured under a misapprehension that he had the entitlement to cross-examine the respondent’s witnesses.
[52] The applicant again accepted that the judge offered a significant degree of assistance to the applicant, but that it was found wanting when it was actually required. Hence, simply saying that the applicant had to ‘prove his case’ was insufficient where the applicant was aware that he had to adduce all the evidence that he had, but had an expectation that he would be able to cross-examine the respondent’s witnesses. There was no timely warning that the respondent might not call evidence and might elect to make a no case submission.
[53] Counsel submitted that the warning to the effect that it was the applicant’s ‘case to prove’ was insufficient, where the applicant was plainly labouring under a misapprehension that the evidence he had to give was that which he was able to personally offer. In those circumstances, the judge should have identified the consequences of either a no case submission, or a decision on the part of the respondent to not call evidence. The judge did not correct the applicant’s misapprehension that he was entitled to cross-examine the respondent’s witnesses to support his case.
[54] Counsel also submitted that, given the changes in approach to litigation reflected by the Civil Procedure Act 2010, counsel for the respondent should have also informed the court of his intention, or at least informed the judge that he might not call any evidence in support of his case.
[55] Counsel submitted that the matter should be remitted because it was possible that some other step might have been taken once the applicant properly understood his rights. Various possibilities were canvassed, including the possibility of applying for a short adjournment and/or relying on the medical evidence to fill the causation ‘gap’.
…
Legal framework
[63] When considering the obligations of a judge in respect of a self-represented litigant, the authorities highlight the flexibility of the applicable requirements.
[64] In Trkulja v Markovic (‘Trkulja’)17, this Court examined a number of authorities, as well as the rationale for a judge’s duty in respect of self-represented litigants, before also highlighting the protean nature of the duty:
Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case. 18
[65] The Court further stated:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.19
[66]The Court also observed that the judge should not become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times and to all parties.20
[67]In 2018, this Court delivered two further decisions where a self-represented litigant complained about a lack of procedural fairness: Roberts v Harkness21 and Doughty-Cowell v Kyriazis (‘Doughty-Cowell’)22. In the second of these decisions, that of Doughty-Cowell, the Court helpfully collated the following relevant principles, highlighting the need to avoid ‘practical injustice’:
Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
the nature and complexity of the issues in dispute;
the nature and complexity of the submissions which the party wishes to advance;
the significance to that party of an adverse decision; and
the competing demands of the time and resources of the Court.
The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.23
Analysis
[68] It may be accepted that the judge was courteous and patient, and provided extensive assistance to the applicant. It may also be accepted that the judge informed the applicant that he needed to prove his case.
[69] Nevertheless, the critical issue was whether the judge’s assistance was sufficient given the persistent statements made by applicant that he wanted to elicit evidence from witnesses whom he believed would be called by the respondent. More particularly, where the applicant appeared to be labouring under a misconception that he would have an entitlement to elicit that evidence.
[70] The first issue which arises is whether the applicant was evincing any such misconception which should have been apparent to the judge. In challenging such a conclusion, the respondent pointed to the first exchange where the judge expressly told the applicant that it was ‘uncertain’ if there would be any evidence from the respondent.
[71] If this was the only exchange there may be some force in the respondent’s position. However, it was not the only exchange. Rather, on the following day, during the second exchange, the applicant indicated that ‘all the relevant information’ he sought to adduce would be derived from his ‘cross-examination of the [respondent’s] witnesses’. After being told that it was his case to prove, the applicant then reiterated that he could ‘cross-examine then’.
[72] There are limits to how many times a judge should be expected to correct any misconception. However, it was apparent that the applicant continued to be under his misconception despite the judge’s earlier reference (to the situation being ‘uncertain’). The judge’s statement that it was the applicant’s case to ‘prove’ failed to squarely address that misconception. The applicant might have believed that he could still ‘prove’ his case through the respondent’s witnesses. In fact, he continued to make reference to being able to ‘cross-examine’ after being told that it was his case to prove.
[73] In our view, then, the applicant evinced a serious misconception that he would be able to adduce further evidence through the respondent’s witnesses. In fact, it was only after the no case submission commenced (and the judge explained that there might be no obligation on the respondent to call any evidence) that the applicant appeared to appreciate that he could not cross-examine the respondent’s witnesses (the Taylors) whom he had been ‘waiting for’ and whom counsel for the respondent had said he proposed to call as part of its case — admittedly with qualifications but such that were not readily apparent to a layperson.
[74] For reasons given already, the judge’s statement that the applicant needed to ‘prove his case’ was insufficient to disabuse the applicant of his serious misconception. In fact, the judge appears to have (inadvertently) compounded the applicant’s misconception shortly prior to the closure of his case by referring to ‘the course of the [respondent’s] case’ and indicating that the applicant might want to put additional documents to ‘them’, which the applicant could prove ‘through one of those witnesses’.
[75] We thereby consider that the judge failed to appropriately correct the apparent misconception and thereby failed to ensure that the applicant, as an unrepresented litigant, had the degree of assistance required to ensure a fair trial and avoid ‘practical injustice’.
[76] It is unnecessary to be prescriptive about what the judge ought to have done. However, at the very least, we consider that the applicant should have been expressly told, prior to closing his case, that the respondent might not call witnesses at all, in which case the evidence would be finished at the end of his case. Given that the applicant clearly wished to adduce ‘all the relevant information’ from the respondent’s witnesses, we also consider that the judge should have told the applicant that he was able to, and might choose to, call those witnesses himself. If such a path was taken, he could then have been advised about his ability to subpoena the Taylors (and particularly Andrew Taylor) and if necessary, in the course of their evidence to make an application to cross-examine them under s 38 (or perhaps to ask leading questions of them under s 37) of the Evidence Act 2008.
[77] In its supplementary submissions delivered subsequent to the hearing, the respondent spent three pages arguing that the calling of either of one or other of the Taylors would not have affected the ultimate result. To a large extent, the submissions make good the argument of the applicant. Much is said in these submissions (or, to put it bluntly, speculated) about the evidence that they could or could not have given and their expertise in relation to the operation of the septic system and the dispersal of effluent from the septic system.
[78] The Taylors were involved in the manufacture and inspection of the septic system. Contrary to the respondent’s submission, it may well be that their experience would have enabled them to give evidence as to not only the manner in which the septic system operated, but also the potential for the dispersal of effluent This, in conjunction with the evidence of the gastroenterologists (discussed later) and the drawing of reasonable inferences, may well have advanced the applicant’s case significantly. At the very least it simply cannot be said that their evidence could have made no possible difference to the result.24 In such circumstances, the matter ought be sent back to the judge.25
[79] In coming to these views, we are acutely aware of the difficulties faced by a judge in the intense and dynamic atmosphere of a trial court. It is important not to set unrealistic standards in such a setting. Thus, we do not accept the applicant’s submission that the specific possibility of a ‘no case submission’ should be expressly acknowledged in openings. We would however observe that some of the difficulties in this case might have been avoided if a clearer statement was made about the way the case would proceed at the time of those openings when the judge was outlining the ‘ground rules’. Such a statement would ordinarily include some of the matters the judge referred to (about the applicant making an opening address and adducing evidence). However, such a statement should also include a statement to the effect that, at the conclusion of a plaintiff’s case, a defendant will have a decision about whether they call evidence or not. If a defendant calls witnesses, then a plaintiff will be entitled to cross-examine those witnesses, but if they do not, then the plaintiff will not have such an opportunity and the evidence will be finished at the conclusion of a plaintiff’s case.
[80] Insofar as the applicant made complaint about the conduct of respondent’s counsel, it may be accepted that a no case submission is ordinarily not made until after a plaintiff closes their case. Judges and trial lawyers understand how the rule operates. However, consistent with the overarching purpose, there is much to be said for the proposition that counsel ought ensure that a self-represented litigant has, at least, some notice in clear language of the possibility that a defendant might not call any witnesses at all. References to a ‘no case submission’ without any mention as to how in real terms it will impact on a self-represented litigant’s case is inadequate. This is particularly so when the Taylors had been flagged by counsel as potential witnesses at the commencement of the trial. We also consider that some of the exchanges between the judge and counsel in this case were unlikely to have been understood by the applicant (eg as to whether counsel had a ‘final position’). This tended to underscore the comparative disadvantage of the applicant as a self- represented litigant.
[81] Suffice to say, then, that counsel’s reticence fortifies us in our conclusions.
[82] The result is that the applicant has made out proposed ground 1 and the proceeding should be remitted to the judge.
…
Conclusion and disposition
[136] The applicant should be granted leave to amend his notice of appeal to include proposed ground 3(b). Leave to appeal on grounds 1 and 3(b) should be granted, and the appeal allowed. The order of the County Court dismissing the proceeding should be set aside. The proceeding should be remitted to the County Court for further hearing by the judge in accordance with these reasons.
(emphasis added)
1 The applicant originally advanced a further proposed ground (2) that the judge improperly applied the wrong test in considering the no case submission because the test should have been applied more favourably to the Applicant as an unrepresented litigant. However, this was abandoned at the hearing of the application. How proposed ground 3 came to be advanced is described later in these Reasons.
24Stead v State Government Insurance Commission (1986) 161 CLR 141, 146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54.
25 In oral argument, the parties agreed that, in the event this Court decided that the appeal should be allowed and the proceeding remitted, then the matter should be sent back to the trial judge for further hearing and determination in accordance with these reasons.
In contrast, in Chalik v Chalik [2025] NSWCA 136 (19 June 2025), Bell CJ – in the New South Wales Court of Appeal – wrote by way of obiter dicta:
[63] Even if there were any merit in the Appellant’s pleading points (which there is not), if parties fight their cases in a manner that departs from the pleadings in a way that does not excite protestation at the time, that departure cannot generally be the subject of legitimate complaint on appeal: Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; [1916] HCA 81; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 –7; [1990] HCA 11; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; [2010] FCAFC 133 at [50] –[52]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company(2022) 108 NSWLR 342; [2022] NSWCA 118 at [24]; Nitopi v Nitopi(2022) 109 NSWLR 390; [2022] NSWCA 162 at [102] –[104]. There was no objection of the kind sought to be raised on appeal in relation to any claimed departure from the pleadings and there was no merit to these grounds of appeal.
…
[65] Before leaving this topic, it should be noted that the Appellant pointed out that he was “appealing self-represented” and emphasised his status as a layperson. He had also represented himself in final submissions before the primary judge, having parted with his solicitor who represented him on the first three days of the trial. Mr Chalik presented as an articulate advocate. He answered “Absolutely” when it was put to him that he knew about Banks v Goodfellow(1870) LR 5 QB 549 (Banks v Goodfellow) and said that he had read it many times.
[66] At one point in his oral submissions, the Appellant who, as has been seen, contended on appeal that parts of the Amended Defence should have been struck out at first instance on the basis that it was frivolous, said:
I couldn’t know that they were frivolous because I didn’t know what the pleadings were supposed to be. That’s why you hire a lawyer and that’s why [you] get legal advice but I wasn’t provided with that legal advice and the lawyer failed to do his duty and so did the Court because the Court should have made orders for the pleadings to be repleaded so I actually didn’t know about lack of testamentary capacity until I saw the judgment. (emphasis added).
[67] Plainly enough, the Appellant, when represented, was bound by the actions of his legal representative. When unrepresented, the Court was not under an obligation of the kind referred to. In this context, we note that, in a recent judgment (MTH v New South Wales[2025] NSWCA 122 at [66]), Adamson JA has stated that:
the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47]. (emphasis added)
[68] With respect to her Honour, this passage, in our view, significantly overstates a court’s responsibility to an unrepresented litigant and is far too absolute in its use of the expression “an obligation to ensure …”. Such a statement finds no support in the High Court’s decision in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 (Nobarani) referred to nor is it supported by the passage from the judgment of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 25 (Rajski) which was quoted with approval in Nobarani at [47]. That passage was as follows:
the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[69] The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha[2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council[2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12 [2018] 1 WLR 1119 at [18] per Lord Sumption.
[70] In Bauskis v Liew[2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant “does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”. In Cicek v Estate of late Solomon[2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.
[71] Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp[1993] NSWCA 240:
Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge’s role, as I have said, is that of an umpire.
[72] See also Hamod v New South Wales[2011] NSWCA 375 at [315] –[316]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd[2014] WASCA 65 at [51]; Stone v Braun[2015] WASCA 103 at [62] –[69] per Beech J, Buss and Mazza JJA agreeing; Zerjavic v Chevron Australia Pty Ltd[2020] WASCA 40 at [74] –[75]. More recently, in Mendonca v Legal Services Commissioner[2020] NSWCA 84 at [21] McCallum JA (Basten and Leeming JJA agreeing) observed that“the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”.
Being issue 100 – published 19 years after Hearsay was first published in 2006 – this is a notable occasion for both Hearsay and the Bar Association of Queensland.
This milestone reflects, principally, the effort of Hearsay’s many contributors over the years, be they BAQ barrister members, the judiciary, solicitors or our sponsors.
Thanks go also to the Association’s Dianne Lyndon, (Chief Executive) Kelsey Rissman and Kasey Rowland – and their predecessors – for their diligence and assistance to successive editors in the production of Hearsay over such 100 issues. Hearsay’s deputy editor Philip O’Higgins KC, sub-editor Stephen Keim S.C. (who has been in that role since Hearsay’s inception) and other editorial team members Carolyn Conway and Seraphina Noble join us in expressing such gratitude.
Hearsay 100, we believe, meets the occasion.
The article ‘The Communist Party Case, the Role of the Advocate and the Rule of Law’ by the Honorable Justice Glenn Martin AM SJA is worthy of its lead billing. As with his Honour’s earlier article on ‘The Art of Written Submissions’ (Issue 88, June 2022, which now has enjoyed over 14,000 views), it is anticipated that this article will receive broad interest – it is a pertinent discussion of professional obligation by reference to a seminal decision of the High Court of Australia.
Hearsay is proud to showcase Australian – in particular Queensland – art. This issue’s featured artwork is titled ‘Summer, Frenchman’s Beach’ and was painted by Brisbane Artist Ralph Wilson in 2019. Ralph’s art is exhibited at Philip Bacon Galleries and the subject is timely given the fast-approaching June holidays. If any further inspiration is needed to get away, hopefully this will assist. A profile of Ralph Wilson is included.
Hearsay’s interviewee this issue in ’10 Minutes with …’is the highly regarded Honorable Hugh Fraser KC, now retired and enjoying his extra-curricular activities post Court of Appeal. He canvasses his time at the bar and on the bench.
The ‘Thought for this Issue’ is Sir Owen Dixon’s observation – if not adjuration – that ‘counsel brings their learning, ability, character and firmness of mind to the conduct of causes’. So much ought spawn reflection by every barrister.
The sub-articles include ‘Ethics as Advocacy’ by Phillip O’Higgins KC, who explains cogently how ethical practice in advocacy can be a powerful weapon in Counsel’s armoury in successful pursuit of their client’s litigious interests.
Matthew Hickey OAM KC pays tribute to the memory of the Honourable Peter Hilton of the Family Court of Australia, and invites the profession to support a charitable endeavour set up in his memory. Please do support this worthwhile cause.
The ‘Regional Bar’ section item is afforded by the highly regarded regional silk Justin Greggery KC, concerning having chambers regionally and in Brisbane. Food for thought here!
The usual eclectic mix of informative and entertaining articles and case notes on Professional Conduct and Practice, Advocacy, Reviews and the Arts and Inter Alia (including Mintie celebrating Issue 100) are included.
Enjoy, and happy 100 to Hearsay!
We do request your contributions to the editors, deputy editor or editorial team:
Editor – Richard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). Editor – John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). Deputy Editor – Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au); Sub-Editor – Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) book and podcast reviews. Editorial Team – Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com) and Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)
In Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 (15 April 2025), the New South Wales Court of Appeal overturned a trial judge’s adjudication that a tortious duty of care was owed by a Catholic Diocese in respect of alleged sexual abuse by an assistant priest. Such abuse was alleged to have occurred when the plaintiff, in about 1968, was in attendance with the assistant priest, Father Pickin, at the presbytery of the local Catholic Church on a Friday night. While a lengthy decision dealing with other issues, the point given treatment here concerns the obligation of another priest in the parish to pass on to his superiors a prior complaint by another child of sexual conduct by Father Pickin.
The court wrote:
The knowledge from Mr McClung’s report (notice of contention, para 5)
[219] The plaintiff relied on the knowledge of Fr Pickin’s misconduct, which Mr McClung had reported at the time, to support the existence of a duty. This was the subject of paragraph 5 of the notice of contention, which was:
The Primary Judge erred in failing to find that, prior to the sexual abuse of the respondent by the late Father Ronald Pickin in 1969, the Diocese of Maitland-Newcastle knew or ought to have known that Father Pickin had sexually abused Mr Stephen McClung.
[220] Mr McClung was not cross-examined so as to invite the rejection of his account, and the primary judge regarded Mr McClung’s evidence as credible and reliable. Mr McClung said that Fr Pickin touched his genitals, outside his trousers, repeatedly, in 1965, when he was 16 or 17, when Fr Pickin was an assistant priest at St Columba’s Church in Adamstown.
[221] The primary judge accepted Mr McClung’s evidence, but did not rely upon it to establish that there was a foreseeable risk.
[222] Mr McClung said that in 1966:
… I went to speak to Father Doran at St Columba’s. Father Doran had been my science teacher at St Pius and was a practical, level-headed guy who I respected a lot.
I cannot remember the words that I said, but I told Father Doran that I was being sexually touched by Ron. I did not disclose the abuse by Hodgson because I felt I was burying that and leaving the abuse at St Pius behind me.
[223] The plaintiff submitted that Mr McClung’s disclosure to Fr Doran ought to have led to a finding of actual or, at least, constructive knowledge by the Diocese, because Fr Doran was a priest in the Diocese, and, according to Fr Dillon, “the responsibilities of priests towards their parishioners … were consistent with the normal and traditional practice of the Church and the expectations of the people of the Parish”.
[224] The plaintiff submitted that child sexual abuse was abhorrent, and any right-thinking person would find any disclosure of such conduct deeply disturbing, and requiring report and investigation. He asserted that “it cannot be said that a reasonable person would have taken a contrary view in 1969”.
[225] The plaintiff submitted that:
the evidence was sufficient to find that the notification to Fr Doran by Mr McClung put the Diocese on notice of the risk posed by Fr Pickin because Fr Doran was a representative of the Diocese (particularly in the eyes of a minor) who operated “in communion” with the Bishop, to be regarded by the Bishop as his “co-worker”. Fr Doran, as a priest, was also a person of sufficient responsibility and duty within the Diocese to establish notice for the Diocese.
[226] The appellant disagreed. The appellant submitted that what Mr McClung told Fr Doran was insufficient. It was not suggested that Fr Doran was a senior member of the clergy, “let alone a Trustee”, or that he in fact told anyone. The appellant’s submissions continued:
Further, it is worth noting that the Respondent’s expert Father Dillon observed that reservations and fears now held about children being alone with a non-family member adult were a rarity. And that the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980s was still virtually unknown (in the late 1960s).
It’s not to the point that Father Pickin was engaging in conduct that with the benefit of hindsight reasoning ought to have raised a red flag amongst the Trustees and senior members of the clergy. The question is whether the Trustees, as the individuals who are said to be liable, had relevant actual or constructive knowledge of Father Pickin’s alleged offending and there is no evidence that they did.
[227] (It was said or at least implied by both sides during the hearing that Mr McClung’s reporting of abuse during the confessional concerned Fr Pickin (including 27 February 2025 T 58.6 “reported the same thing to Father Doran and to another Father who had been giving confession”; see also T 25.23). That was an (inadvertent) error. Mr McClung said that he had been sexually abused by another priest, Fr Hodgson, in 1963, while a student at St Pius X High School, and had confessed that. That did not concern Fr Pickin, and in any event nothing was put to suggest that the priest who took Mr McClung’s confession was at liberty to pass on the information concerning that other priest to anyone.)
Consideration
[228] I shall pass over the lack of precision in the submissions as to the meaning of “actual” or “constructive” knowledge of “the Diocese”, which were asserted but not explained in submissions. This issue may be resolved on the basis that (a) the mere report to Fr Doran of itself did not amount to the imputation of any form of knowledge to “the Diocese”, and (b) it was not established that Fr Doran was under any obligation to report what Mr McClung told him.
[229] Knowledge on the part of Fr Doran is not knowledge of the appellant, whether in its own right or as the “proper defendant”. The Roman Catholic Church was and is hierarchical. The knowledge of each and every priest is not taken to be the knowledge of the institution as a whole.
[230] Fr Doran was a parish priest. The plaintiff’s case turned on establishing knowledge by the Bishop or senior members of the Diocese. No attempt was made by the plaintiff to establish who they were. Whoever they were, it was not suggested that Fr Doran was one of them. So far as the evidence suggests, he was not. The yearbook for 1969–1970 identifies seven Diocesan Consultors, the Diocesan Chancellor, and the members of a large number of committees (including the Vicars Forane, the Synodal Judges and Examiners, the Pro-Synodal Judges and Examiners, the Parish Priest Consultors, the members of the Tribunal for Matrimonial Causes, the Diocesan Commission for Sacred Liturgy, the Censor of Books, the Diocesan Director of Pontifical Mission Aid Societies, the Diocesan Directorate of Education, the Director of the Diocesan Priests’ Eucharistic League, the Director of Pastoral Course for Priests, the Director of Priestly Vocation Campaign, the Catholic Family Welfare Bureau and the Sick Clergy Relief Fund Trustees) and Fr Doran was a member of none of them.
[231] If Fr Doran were an employee, it would not follow that his knowledge would be imputed to his employer. The question of imputation of knowledge of a company’s officers and employees to the company depends in every case on context, and is not automatic. That fundamental proposition was emphasised by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission[1995] 2 AC 500 [1995] UKPC 5 and has been repeatedly applied in this jurisdiction: see for example Anderson v Canaccord Genuity Financial Ltd(2023) 113 NSWLR 151; [2023] NSWCA 294 at [255] and Aidzan Pty Ltd (in liq) v K. & A. Laird (NSW) Pty Ltd (in liq)[2024] NSWCA 185 at [70]. In South Sydney Junior Rugby League Club Ltd v Gazis[2016] NSWCA 8, Basten JA said for this Court at [112] that:
It is not correct that the knowledge of every employee of the company, particularly as to the activities of independent contractors having different functions on the company’s premises, becomes the knowledge of the company. As Spigelman CJ noted in Nationwide News Pty Ltd v Naidu “[w]hether a principal is affected by an agent’s knowledge depends upon the context.” Further, “[w]hether the knowledge of a particular person should be imputed to a corporation depends on the scope of that person’s employment.” The Chief Justice continued, by contrasting the functions of specific officers who gave evidence with, “[a] person in a supervisory position … [who] has duties which encompass the receipt of the relevant knowledge and accordingly, could be said to have a duty to communicate and/or act upon it … [t]hat cannot be said to be the case for the other employee witnesses.” [footnotes omitted].
[232] Parish priests are not employees, and there is no reason why, in the absence of a duty to communicate a complaint, more senior priests within a diocese should have the parish priest’s knowledge attributed to them. No submission was made that the effect of s 6O(b) was that the knowledge of each and every priest in a diocese was to be imputed to the proper defendant. If so, that would place unincorporated associations in a different position than incorporated organisations, which would be contrary to s 33 of the Interpretation Act 1987 (NSW). It would also be unrealistic. It is to be borne in mind that the Diocese of Maitland took in the entirety of one of Australia’s largest cities, and more than 12,000 square miles, and there were in the order of 55 parishes and some 200 priests and nuns.
[233] The analysis of the position at law is not assisted by invoking metaphor. The Bishop may as a matter of canon law be in “communion” with a priest who learns of an allegation (just as he may be in “communion” with the assistant priest who committed the assault). That does not mean as a matter of the law of negligence that the knowledge of the priest (or the assistant priest) is imputed to the Bishop.
[234] Nor do I accept the assertion that in the late 1960s it was clear beyond any argument that a priest to whom a complaint was made of sexual abuse such as that told to him by Mr McClung, a first year undergraduate, concerning touching of his genitals the previous year when he was around 17, should have been passed on.
[235] This is a question of evidence. It turns on what a reasonable person in the position of Fr Doran in 1969 would have done. It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025. The plaintiff did not adduce any evidence that in response to the report of the abuse described by Mr McClung, Fr Doran or some other parish priest would take the matter further. Such evidence as there was pointed in the opposite direction. As the appellant pointed out, Fr Dillon confirmed that in the late 1960s, “[a]mong Catholic people and even among the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980’s was still virtually unknown”.
[236] A further matter bearing upon whether a reasonable person in the position of Fr Doran would have taken further steps was the attitude of Mr McClung. There was no reason to think that Mr McClung sought to take the matter further. To the contrary, Fr Pickin officiated at Mr McClung’s wedding in 1972, and his family continued to be involved in the church, including with Mr McClung reading Epistles on Sundays at Merewether where Fr Pickin was parish priest in the 1980s. Of course, Mr McClung’s subsequent conduct was not known in around 1966. Nonetheless, Mr McClung’s conduct after 1966 tends to confirm that when he reported the allegation to Fr Doran he did not expect any further steps to be taken.
[237] I am inclined to agree that what was said by Lord Neuberger MR in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 [2010] 1 WLR 1441 at [65] was equally applicable in Newcastle in 1969:
In the mid-1970s, an allegation by one boy that a priest had fondled his genitals should plainly not have been simply dismissed, but it would not have been treated nearly as seriously then as it would be now. As Lady Hale said in A v Hoare[2008] AC 844 at [54], “until the 1970s people were reluctant to believe that child sex abuse took place at all.” In my view, Father McTernan would have been acting properly, according to the standards of the time, if he had taken the allegation up with Father Clonan and, provided that he was given a convincing denial, he then took the matter no further either in the Archdiocese or through the police. The alleged abuse, though serious, was not of the grossest type, and such allegations are all too easy to make, and if they are passed on and investigated, they can cause considerable damage to the person against whom they were made and to the institution for which he works. By the standards of 1974, such considerations could reasonably have been accorded greater weight than they would today.
[238] It is to be borne in mind that the abuse of which Mr McClung complained was the repeated touching of his genitals, outside his trousers, when he was aged around 16 or 17. It was very wrong of Fr Pickin to do so. It was a crime, it was contrary to Fr Pickin’s vocation, and it was contrary to the relationship of trust which Mr McClung was entitled to expect from a priest. But the wrongness of what Mr McClung reported does not mean that the plaintiff is released from his obligation to establish by evidence all elements of his case.
[239] The issue is whether the plaintiff established that Fr Doran was under any obligation to report what he had been told. Let it be assumed that Fr Doran considered that Mr McClung’s account of what Fr Pickin had done a year before was credible. He should have raised it with Fr Pickin. He may have done so. Fr Pickin may have denied it. He may have said that he could recollect a time when he accidentally touched Mr McClung, but denied any intention to do so. He may have said that he had touched him deliberately, had been in a deal of internal turmoil about it, and said that it would not recur. It is most unlikely that Fr Pickin told Fr Doran that he took every opportunity to indecently assault children entrusted into his care, and would continue to do so. All this is speculation, serving to emphasise what is absent from the evidence relied on at trial.
[240] It may fairly be said that establishing that Fr Doran did something, or ought to have done something, some 60 years ago, is a heavy burden for the plaintiff in a case such as the present. But it is a consequence of the fact that the plaintiff has sued someone other than Fr Pickin in relation to a tort committed many decades ago by Fr Pickin, of which he made no complaint until 2023, leading to the result that he needs to establish that the Bishop or senior priests in the Diocese of Maitland had some level of knowledge, in 1969, that Fr Pickin posed a risk to children.
[241] In the absence of evidence of any knowledge or belief or suspicion by the Bishop or senior priests in the Diocese that Fr Pickin posed a risk to children, I do not see how the appellant, making every assumption in the plaintiff’s favour as to the effect of Part 1B of the Civil Liability Act and the parties’ agreement that it was the “proper defendant” for a claim against the Catholic Church insofar as it operated in the Diocese of Maitland in 1969, owed a duty of care to the plaintiff. …
In David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 (25 May 2025), the NSW Court of Appeal dealt with a dispute between two families which had set up a trading trust to engage in investment. The families fell out – rendering it difficult to manage the trust assets at monthly meetings – but continued to invest and protect the trust assets. The case points up the need to carefully draft the trust deed – depending on the requirements of the parties – and to the need to point to clear evidence of deadlock short of gaining corporate remedies. Given the complexities of the matter, it suffices, for the purpose of this case note, to set out the lengthy headnote, followed by the link to the case if the reader wishes to descend further into the case or any particular issue.
The headnote provides:
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2010, Mr and Ms Carr and Mr and Ms Ritossa constituted Darbalara Holdings Pty Ltd as the corporate trustee of a unit trust – the Darbalara Property Trust – for the management of farmland near Gundagai, NSW. The two families are equal unit holders. Each of the Carrs and the Ritossas are directors of Darbalara Holdings. Clause 2 of the trust deed provided that “The Unit Holders are presently entitled to the Income [and Capital] of the Trust” and “may require the Trustee to wind up the Trust and distribute the Trust property or the net proceeds of the Trust property”. In 2019, disagreements emerged between the Carrs and the Ritossas, and they had a falling out in a meeting in December 2019. The Carrs expressed an intention to terminate the trust relationship; the Ritossas wished to continue their investment.
In 2020, the Carrs commenced proceedings in the Equity Division seeking the winding up of the trust relationship on the basis that (a) clause 2 of the trust deed allowed a unit holder to unilaterally call for a winding up, (b) the corporate trustee’s conduct was oppressive so as to justify orders under s 233 of the Corporations Act 2001 (Cth), and (c) a receiver should be appointed to wind up the trust given jeopardy to the trust assets.
The primary judge held that cl 2 of the trust deed did not entitle a unit holder to unilaterally call for a winding up. The primary judge found that the evidence did not establish deadlock. Even if there was deadlock, that would not be a sufficient basis for a realisation of the trust assets under s 233. Because the primary judge found that the assets were being adequately managed in monthly board meetings between the directors, there was no jeopardy to the trust assets justifying the appointment of a receiver to liquidate the trust assets and make final distributions to unit holders.
On appeal, the appellants submitted that the primary judge erred in failing to find that (a) cl 2 entitled each unit holder unilaterally to bring the trust to an end (Ground 1), (b) there was a series of deadlocks in the management of Darbalara Holdings Pty Ltd such that the conduct of the corporate trustee, including its failure to allow a redemption of units when requested, was oppressive to the Carrs and contrary to the interests of members as a whole (Grounds 2-8), and (c) a receiver could be appointed, either under s 67 of the Supreme Court Act 1970 (NSW) or in the Court’s inherent jurisdiction over trusts, to “wind up” the trust where there was an irretrievable breakdown in mutual trust and confidence between unit holders who were “quasi-partners” (Ground 9).
The Court (Leeming JA, Stern JA and Griffiths AJA agreeing) held, dismissing the appeal:
As to Ground 1:
On its proper construction, cl 2’s reference to unit holders being “presently entitled” to require the trustee to wind up the trust means the unit holders collectively, rather than individually. The purpose of including the clause was only to make the unit holders owners of an equitable estate under a fixed trust, and thereby eligible for the tax-free threshold under s 3A(3B) of Land Tax Management Act 1956 (NSW). It did not have the effect of allowing a unit holder unilaterally to wind up the trust and claim their own interest: [66]-[93] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111, distinguished.
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98; [2005] HCA 53; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10; Vanderstock v Victoria [2023] HCA 30; 98 ALJR 208, considered.
As to Grounds 2-8:
There is no basis to exclude from the scope of “the conduct of a company’s affairs” the conduct of a corporate trustee in the management of the trust or to exclude from the scope of orders “in relation to the company” an order concerning the interests of the trust beneficiaries: [105]-[112] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Kizquari Pty Ltd v Prestoo Pty Ltd (1993) 10 ACSR 606; Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334, disapproved.
Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [2022] SASCA 29; Wain v Drapac [2012] VSC 156, approved.
Mr Carr as a discretionary object of the Carr Family Trust, which was one of the unit holders of the trust, did not have standing to complain of any oppression: [135]-[139] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Mere deadlock in the operation of the corporate trustee or a breakdown in the relationship between its managers does not constitute “oppression” under s 232. The deadlock must be one which leads to further consequences in order to reach the evaluative judgment required by s 233. Mere differences in opinion as to the sale of investments, the unpleasantness of board meetings, and delays in the finalisation of leases, are insufficient: [113], [159]-[177] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
As to Ground 9:
The principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360concerns the scope of the statutory power to wind up a company, rather than a proposition at general law that a trust can be terminated where there has been a breakdown in an original relationship of mutual trust and confidence. No such general law proposition can be developed by analogy with statute: [215]-[236] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Because the purpose of the inherent jurisdiction is to preserve trusts and not destroy them, a receiver cannot be appointed in the court’s inherent jurisdiction over trusts to terminate the trust merely because there has been a breakdown in mutual trust and confidence. The position is not otherwise under section 67 of the Supreme Court Act 1970 (NSW): [237]-[254] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Mir v Mir [2023] NSWSC 408; Baba v Sheehan [2019] NSWSC 1281; Re Austec Wagga Wagga Pty Ltd (in liq) [2018] NSWSC 1476, approved.
In Turner v Richards [2025] NSWCA 83 (1 May 2025), the New South Wales Court of Appeal wrote concerning the vexed issue of adjudicating an agreement made orally in a commercial context. The trial judge found the agreement was made. Payne JA (Leeming and Adamson JJA agreeing) wrote:
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[2] These proceedings involve a narrow question relating to several corporate entities associated with the Heartland Motor Group. Ms Joanne Richards and Ms Bernice Hooker, the first and second respondents, are sisters. The applicant is Mr Kieran Turner, who I will refer to as KT to distinguish him from his brother Anthony Turner, the fifteenth respondent, who I will refer to as AT. KT is the nephew of Ms Richards and Ms Hooker; his mother, the late Ms Kathryn Turner, was the sister of Ms Richards and Ms Hooker.
[3] The issued share capital of the holding company of the Heartland Motor Group, B.G. Webb Pty Ltd (“BG Webb”), is owned by Mr and Mrs Webb’s descendants. Ms Richards and Ms Hooker (Mr and Mrs Webb’s surviving daughters) hold the majority of the shares in BG Webb. KT, personally and through his ownership of the shares in Turnercorp Pty Ltd, owns or controls a minority of the issued shares in BG Webb.
[4] BG Webb in turn owns all the shares in the third respondent, Bernley Corporation Pty Ltd (“Bernley”). Since 28 June 2013, Bernley has owned 599 of the issued shares in the fourth respondent, Heartland Group Pty Ltd (I will refer in these reasons to this company as “Heartland Group” and to the corporate group of related entities, including Heartland Group, as “the Heartland Motor Group”). One share in Heartland Group is owned by its wholly owned subsidiary, the fifth respondent, Boyded Industries Pty Ltd (“Boyded”) as trustee for the Rossfield Group Trust (“Trust”). The remaining corporate respondents, the sixth to thirteenth respondents inclusive, are all (directly or indirectly), subsidiaries of Heartland Group.
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[6] The narrow issue in this case relates to the purported appointment of AT as a director of various Heartland Motor Group companies on 6 December 2022. That narrow issue turns on the acceptance or rejection of a single conversation in 2019, which was not recorded in any contemporaneous document, in which KT asserted that he had been validly appointed as chair of the board of directors of all of the companies in the Heartland Motor Group for so long as he retained his direct or indirect shareholding in BG Webb. Two of the participants in that alleged conversation, KT’s grandmother and KT’s mother, had died before the hearing. The primary judge was not satisfied that a conversation occurred in the terms asserted by KT.
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[9] For the reasons that follow, the appeal should be dismissed.
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Grounds of appeal
[56] The applicant’s draft notice of appeal, contained two grounds:
1 The primary judge erred in failing to find that the Appellant was the chairman at meetings of Heartland Group Pty Ltd (Heartland Group), Rossfield Nominees (ACT) Pty Ltd (Rossfield Nominees) and Boyded Industries Pty Ltd held on 6 December 2022, because a meeting had occurred in 2019 at which it was agreed that the Appellant was to be the chair of the companies in the group so long as he held shares in BG Webb Pty Ltd.
2 The primary judge erred in finding that, on the proper construction of the articles of association of Heartland Group and Rossfield Nominees, any appointment of Anthony Turner as a director expired by 31 December 2023.
[57] It was common ground that unless the applicant succeeded in relation to ground 1, ground 2 did not arise.
Ground 1 of the notice of appeal
[58] The primary judge adopted a conventional approach to fact finding in a case based on an alleged oral agreement. His Honour had regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman(1995) 49 NSWLR 315 at 318 –319; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2)[2008] FCA 810 at [41]; Varma v Varma[2010] NSWSC 786 at [424] –[425].
[59] His Honour also had regard to the fact that objective evidence, where available, is likely to be the most reliable basis for determining matters of credit that arise as to the affidavit evidence: Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 at 57; Re Colorado Products Pty Ltd (in prov liq)[2014] NSWSC 789 at [10]. The primary judge noted the matters relevant to the assessment of spoken words in the context of a contractual dispute, which were identified by Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd[2015] NSWSC 451:
[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman(1995) 49 NSWLR 315 at 319.
[60] His Honour bore in mind the observations of Bell P (with whom Bathurst CJ agreed) in ET-China.com International Holdings Ltd v Cheung[2021] NSWCA 24 at [27] –[29] quoting with approval Legatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22]:
…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose — though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
[61] There was every reason for the primary judge not to be satisfied about the reliability of KT’s evidence of an asserted 2019 agreement. I do not accept the applicant’s submission that the decision of this Court in Tjiong v Chang[2025] NSWCA 25 at [41] and [502] intended to change the method of fact-finding in cases involving alleged oral agreements. The Court in Tjiong was not describing a new legal principle. The application of Tjiong leads to no different conclusion in this case. The point made by Basten AJA in Tjiong at [41] was that in a case where there is disputed oral evidence, all the evidence must be considered together. This task, the primary judge undertook here. Price AJA in Tjiong at [502] made the point that oral testimony should not lightly be disregarded in a case where there was no cross-examination casting doubt on the evidence and where there was no question of the reliability of the evidence. Here there was cross examination of KT about his account and a significant question about the reliability of that account.
[62] No error has been shown in the conclusion of the primary judge, essentially for the reasons his Honour gave, that he was unable to reach a state of actual persuasion that the 2019 Meeting took place in the manner or substantially in the terms set out in KT’s evidence.
[63] KT’s case was essentially a simple one. Shortly put, it was that in the absence of an adverse credibility finding about KT’s evidence there was no reason not to accept his evidence about the 2019 agreement. KT stressed that the primary judge made no adverse finding about his credibility. KT emphasised that what he said was a realistic possibility, namely that the meeting could have occurred before 14 February 2019. Accordingly, it was submitted that the primary judge erred in not reaching a state of actual persuasion that the alleged 2019 oral agreement had been reached in the terms asserted by KT.
[64] I am unable to accept this submission. The primary judge made a finding of fact. Although no adverse credibility findings were made against KT or Ms Richards, the primary judge’s failure to be persuaded by KT’s evidence was affected by his Honour’s assessment of the reliability of that evidence, having seen and heard KT and Ms Richards being cross-examined.
[65] As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431:
‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be… Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.
[66] In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55], Bell, Gageler, Nettle and Edelman JJ made clear that a court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint is, however, warranted in relation to a trial judge’s findings of fact unless those findings are “glaringly improbable” or “contrary to compelling inferences” if those factual findings “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence” (emphasis added).. This principle of restraint applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
[67] KT’s evidence was given more than five years after the date of the alleged conversation in a context of ongoing hostility and litigation between the parties. The conversation was unsupported by any contemporaneous record and was inconsistent with a number of such records. I reject the applicant’s submission that the reliability of KT’s account was not challenged before the primary judge. The principal submission on behalf of Ms Richards at the trial was that KT’s evidence about this conversation should not be accepted as reliable. The reliability of KT’s account was expressly challenged in cross-examination.
[68] The applicant submitted that there was nothing exceptional about the subject matter of the 2019 Meeting that might cause anyone to wish to record it. I do not agree. If such an agreement had been reached, it would have been a significant matter in the history of the Heartland Motor Group. While the Heartland Motor Group had a practice of the CEO of each company in the group acting as chair of the company, never before had there been a formal agreement to appoint a chair, in advance, dependent upon the CEO continuing to hold or control shares in BG Webb. There would have been every reason to have documented such a significant change.
[69] Such contemporaneous documents as there are do not support the existence of an agreement in the terms asserted by KT. The high point of the applicant’s case is what the applicant submits is “a relatively contemporaneous” email of 27 June 2019 recording KT’s understanding that he was chair of the Heartland Group of companies. While this document does contain a reference to a subjective belief on KT’s part consistent with his case, at best it is neutral. The date of the email, 27 June 2019, is months after the conversation, if it occurred, must have taken place. The document is more consistent with the primary judge’s finding that it was a reflection of a long standing informal company practice of the CEO acting as chair, rather than a result of the asserted agreement.
[70] It is true that the minutes of a directors’ meeting of BG Webb on 30 November 2022 contain the following:
(KT) opened the meeting and stated that he was the chairman, (JR) advised she would put herself up as chair for the meeting and voted in favour of her appointment. (BH) voted in favour of (JR) being appointed chair. (KT) said is the paid and appointed chairman.
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Meeting proceeded with (KT) saying he was the chair.
[71] By November 2022, relations between KT and Ms Richards had become fraught. Despite the claim by KT the “he was the chair” there is no record of his asserting that an agreement had been made with, inter alia Ms Richards, that he be appointed chair for so long as he held or controlled shares in BG Webb.
[72] There is also a recorded claim by KT of the existence of the asserted agreement on 29 May 2024, where KT is recorded as saying he was “voted Chairperson in 2018 for the duration of while he is a shareholder”. As well as referring to the wrong year, the primary judge observed that by 2024, the dispute between KT and Ms Richards was well-advanced. Further, KT participated in and signed minutes in a series of 2021 meetings of various of the Heartland Group of companies which record the separate election of KT as chairperson “of the meeting”: Boyded Industries Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021); Chicago Properties Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021); Heartland Blacktown Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021). These company records are inconsistent with the existence of the oral agreement KT asserts was made. If such an agreement existed there would be no need separately for KT to be elected as chairperson “of the meeting”.
[73] The primary judge was entitled to find, having considered all of the evidence, that his Honour was simply not persuaded that KT had proved to his satisfaction that a conversation occurred in the terms asserted by KT. The case was decided by considering whether KT had discharged his onus of proof. No doubt if his Honour had made a credibility finding, it would have been difficult for him to sit on the potential future stages of the proceedings. His Honour was also no doubt conscious that there was a possibility that more cogent evidence might come to light in the continuation of the trial that bore upon findings his Honour might have made as to credibility or reliability of the evidence he was considering.
[74] The primary judge had the advantage of seeing and hearing KT and Ms Richards give evidence. Weight must be given to the advantage that the primary judge had in those circumstances. No error has been shown in the conclusion of the primary judge that his Honour was not satisfied of the existence of the oral agreement KT asserts was made.
Since 1912 the Royal Horticultural Society has conducted in the month of May – in the grounds of the Royal Hospital Chelsea, on an 11 acre site – the RHS Chelsea Flower Show. It was formerly known as the ‘Great Spring Show’.
The show is attended by the British Royal Family and guests on the first day, by RHS members on the next two days and by the general public on the final two days. Usually more than 150,000 people attend over the duration of the show.
Highlights include the avant-garde show gardens designed by leading members of the horticultural community. The centre piece of the display is a huge floral marque.
The show also features smaller gardens such as the Artisan and Urban gardens. There is a series of stalls displaying garden and country wares.
The writer attended in May this year. While not a gardener by disposition, he was taken by the spectacular floral displays. So much is apparent from the photographs which accompany this piece.
This year a highlight was the unveiling of ‘The King’s Rose’ – 11 years in development by leading rose grower David Austin, and a tribute to his Majesty King Charles III – as seen here.
The reader – if visiting the United Kingdom in May – would do well to consider visiting. Booking in advance online is essential. A very pleasurable three or more hours can be spent enjoying the display.
It is probably fair to say that this review is the first of its type for Hearsay, but for those readers desperately looking to entertain – at weekends or during school holidays – young children, grandchildren, nieces and nephews, it may well be the most important item they read in this Issue.
The ‘Bluey’s World’ experience is an interactive exhibition which allows single digit aged children to enjoy a hands on experience second to none.
The theme, of course – at least in broad terms – is the spectacularly successful ‘Bluey’ animation. Such animation series is written and produced in Brisbane, and distributed globally.
The website describes the experience as follows:
This For Real Life interactive experience immerses you in the playful and hilarious world of Bluey, where things don’t always go to plan, but with a little teamwork and a lot of games, every day is fun.
As soon as you arrive at Bluey’s beloved Queenslander home the excitement begins. With a bit of help from the mischievous Fairies, you’ll bring one of the Garden Gnomes to life and help them to have their bestest day ever by going inside the house to play with Bluey and Bingo!
But you’ll have to find Bluey and Bingo first… and Unicorse is determined to make that as hard as possible. With games, clues and surprises to discover around every corner you must find Bluey and Bingo before it’s too late and the Gnome must return to their gnome-home in the backyard. This is your gnoment!
Venture through the Heeler’s living room, the girls’ bedroom, playroom, kitchen, backyard and more in this original guided Bluey experience, where you will live and play like Bluey and the Heeler Family.
Finish your day in Bluey’s Brisbane neighbourhood complete with the Golden Crown takeaway, Alfie’s Gift Shop, indoor playground and more.
The writer attended with his spouse and three grandchildren aged 5, 7 and 9 years respectively. All children must attend with an adult over the age of 18 years. The admission price is paid for each attendee (adult and child). On Saturdays and Sundays that price is $64.90.
While not cheap by any means, the writer found “money’s worth” afforded. The experience lasts about two or more hours, including in the shop and play area after passing through the eight or so sections therein.
“Bluey” and his family, in fact, are not seen until the latter half of the experience, but that does not detract from the enjoyment entailed.
Visually, the experience is quite spectacular, even for the supervising adults.
My feeling was that the experience is too much for children under 5 years, and not sufficiently engaging for children much over 8 years. So much, of course, depends upon the child in question.
The experience venue is at Hamilton. There is ample (free) parking. The experience is conducted within a large airconditioned temporary structure. The food and drink on sale in the shop is of a high standard – both for adults and children – and surprisingly reasonably priced. A visiting family or group could spend at least an hour in the play area and shop afterwards, the same contained within the airconditioned structure (we spent about 45 minutes therein).
Best to book if proposing to attend.
The writer’s group attended in January. While the experience was expected to conclude mid-year and move interstate, the season has been extended to this Christmas. Having enjoyed the experience, the writer can understand why.
The link to the Bluey’s World website and ticketing is here.
