Presented at the Bar Association of Queensland on 27 March 2025 – Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956; 418 ALR 639 signalled the demise of “salient features”, which was adopted as the approach in Australia more than 20 years ago when “proximity” was rejected as the conceptual determinant of a duty of care to avoid pure economic loss for the tort of negligence. Does it suggest other changes in the taxonomy of factors that have been most significant in testing for a duty of care in novel cases in recent years?
In this paper the Honourable David Jackson KC discusses the duty of care against pure economic loss.
Paper presented by John McKenna KC, Adjunct Professor, TC Beirne School of Law, University of Queensland, at the Macrossan Lecture for 2025 in the Banco Court of the Supreme Court of Queensland on 1 April 2025.
From 6 to 10 April, I attended the Commonwealth Law Association (CLA) Conference at the Hilton Hotel in St Julien, Malta. It was my first time at that conference. It was quite an experience. This is a rather personalised report.
My interest in the CLA arose from my work with the BAQ South Pacific Legal Education Committee. Members might not be aware of that Committee, but it is well established and active. Its flagship program is a one week commercial litigation intensive delivered in Port Moresby to graduates completing their practical legal training. The course was first delivered in 2014. Over time, the work of the Committee has expanded to include other in person and on-line teaching programs.
The work of the Committee now focuses on the whole of the South Pacific and that broader perspective made me receptive to the work of the CLA. Justice John Logan has been active in both Papua New Guniea and the CLA and he sparked my interest in the CLA conference.
It might come as a surprise to some that the CLA conference would be in Malta. However, Malta is a member of the Commonwealth. It was a British colony from 1800, when the French were evicted, until 1964. Prior to the British administration, it had a civil law system and its modern legal system is an interesting melding of the two. I spent much of my youth in Mackay, surrounded by Vellas, Zarbs, Bartolos and Camilleris. Everyone in Malta looked vaguely familiar.
My first impression of the CLA was the welcome drinks on the Sunday evening. It did not disappoint. All the variety and vitality of the Commonwealth was on show. There are over fifty countries in the Commonwealth, and most of them were present at the drinks. It was worth the trip just to mingle.
My strategy at the conference was to walk up to anyone who looked friendly and say hello. It was a successful strategy. Nearly everyone I approached was as curious about me as I was about them. My wife Hanne was a particular hit, as the only Norwegian at the conference.
To give you a flavour of the event, the first person we approached turned out to be a very experienced member of the Malawi Law Reform Commission. We spoke about Malawi, law reform in Malawi, her experiences as a lawyer, and as a mother and grandmother. What struck me then, and repeatedly thereafter, was that the legal and personal lives of the delegates were so similar despite the great variety in the places and systems in which we practiced. A Kenyan building lawyer I sat next to at the conference dinner described building litigation in a weary manner which was very familiar.
The format of the conference involved a plenary session in the morning, then streamed topics in smaller sessions over the balance of the day. There were six streams. The range of the content and the variety in the background and experience of the presenters was extravagant.
The plenary sessions frequently featured judicial and professional speakers of the highest authority. Appeal Judges, Chief Justices, Judges, serving politicians (including an array of current and former Attorneys-General) and senior UN and Commonwealth officials were speakers. A session on attacks on judicial independence featured the Chief Justice of Malaysia, the Chief Justice of England and Wales, the Minister of Legal and Constitutional Affairs of Jamacia and the UN Special Rapporteur on Independence of Judges and Lawyers. The address of the Chief Justice of Malaysia was particularly remarkable. The history she described of challenges to judicial independence in the late 1980s and the subsequent consequences was eye opening.
Generally, however, the plenary sessions were rather general. Some speakers tended to invoke the holy trinity of Judicial Independence, Rule of Law and Human Rights, without really saying too much of substance. However, asking around, I discovered that there was often a reason for that. It was pointed out to me by a CLA old hand that some of the speakers had to exercise great caution in what they said. He explained that the mere fact the speakers were speaking at the conference at all was important because it drew attention in their home country to the public involvement of the judiciary at a major Commonwealth event. The CLA seem to provide a venue for providing moral and diplomatic support for Judges and lawyers in challenging environments, just by being there. An idea which had not occurred to me before.
A stand out plenary session was the session on AI and the law. I have been to many AI and the law sessions and, with respect to others, this was the best (although maybe all the other lectures had given me the foundation to benefit from what I heard). There were two papers; one delivered by Professor Richard Susskind and the other by Mr Ian McDougall, President of the LexisNexus Rule of Law Foundation. Professor Susskind has been on the AI bus since his doctoral thesis in the 1980s and would be known to many. It would be fair to describe him as one of the foremost thinkers on law and AI. Mr McDougall has been working thoughtfully on AI in law for many years. I will not recount in detail what they said. Suffice to say it was inspiring and alarming to equal degrees.
The sessions in the individual streams could be a little banal at times, but mostly they were more direct and focussed on specific topics. I went to the judiciary stream. The topics were more practical than academic or theoretical. The sessions were always in a panel format, with two or three speakers, then questions and comments.
I was powerfully affected by one session on judicial delays. It was uniformly terrible news. A judge of one central African country explained that some of her cases were adjourned because the Court room leaked too much in heavy rain to keep sitting. A lawyer from the UK described the difficulties they have with the condition and size of court houses, particularly outside the major cities. Other judges spoke of the decay of the judicial estate. It made the problems we have in Queensland with Court houses appear modest.
Most of the other speakers and commentators from the audience told stories of delay which were extreme, with some almost unbelievable delays. The reports included the follows. One Carrbibean country has huge delays in delivery of judgments, with 113 case still outstanding after 5 years. Another large Southern African country is listing criminal trials in 2031! And rich countries are not immune. The UK is listing criminal trials out to 2027 at the Old Bailey. And Canada is listing civil trials out to 2028, largely because all resources are thrown at criminal trials after a Supreme Court decision that delay in trial of more than 2 years will lead to dismissal of criminal proceedings (presumably on abuse of process grounds), though I have been informed that that Court has walked that principle back recently. The sad news went on and on and was confirmed by my chats outside the session with other judges.
I was too embarrassed to report the position in Queensland’s State Courts. While any delay is too much delay and we are far from perfect, the state of the lists in the District Court (with which I am most familiar) is tolerable compared to the extreme problems elsewhere. I suspect the other Queensland Courts are in a similar position.
I assumed that the better performance in Queensland was largely a matter of resources, and there is no doubt that Queensland is much richer than many of the other states in the Commonwealth. However, my discussions with lawyers and judges outside the sessions suggested that there was more to it. In civil, which was of particular interest to me, some jurisdictions have not embraced the substantive pleading approach evident in the Uniform Civil Procedure Rules. Nor is there broad adoption of mediation of commercial disputes. A Kenyan lawyer looked at me with amazement when I explained how effectively mediation of civil disputes operates in Queensland.
The informal discussions outside the sessions was perhaps the most interesting part of the conference. The Commonwealth is astounding in its diversity, having a foothold in almost every part of the world. The wealth of different experiences and perspectives made almost every conversation an adventure. One aspect of the conference with surprised me was the enthusiasm for the CLA evident in the attendees. Obviously, it was a group self selecting for positive attitudes to the CLA, but it remains the case that numerous countries participated energetically in the conference.
The black tie dinner on the last evening was a particularly colourful event, full of good will and spectacular attire. I am pleased to report I was not the only person there in a velvet tuxedo.
The capacity of the CLA and the Commonwealth to contribute to the rule of law in Commonwealth countries should not be underestimated. Nor should the excitement which the energy and diversity of the conference brings. I thought Australia under-represented, especially compared to the UK and Canada. The next CLA conference is in Darwin in 2027. I will attend if I can. I would urge you to do the same.
Paper delivered by His Honour Judge Glen Cash KC the at the North Quay Conference on 15 February 2025.
This paper by the Honourable Chief Justice Debbie Mortimer is an edited version of The Honourable Malcolm Blue Memorial Address to the South Australian Bar Association’s Annual Conference on 22 February 2025.
Pre-mediation notices to group members foreshadowing class closure applications – implications of the High Court’s decision in Lendlease Corporation Limited & Anor v Pallas [2025] HCA 19.
Many representative proceedings (or “class actions”) are commenced without any party to the proceeding knowing the number of group members caught by the action. Any person (including, often, corporate entities) who meets the pleaded definition of “group member” will be included in the class. Subject to certain statutory provisions, those group members – unless they take steps to opt out of the class action – will be bound by the outcome of the action, including any settlement.
The practical outcome of this is that, in the lead up to settlement discussions or mediation, the parties to a class action may not yet be in a position to know, at all or with any accuracy, the number of group members affected by a potential settlement. Knowledge of the number of group members in the lead up to mediation serves several purposes. It allows both the representative plaintiff and the defendant to estimate the quantum of any potential liability of the defendant, and to negotiate an amount that may be considered a suitable settlement sum once distributed between the group members. It also facilitates the Court’s approval of any settlement as fair and reasonable, and allows for practical orders to be made in relation to the distribution of the settlement sum.
In addition, for the defendant, knowing the number of group members who will be bound by any settlement (as opposed to those who have opted out of the proceeding and may separately bring an action against the defendant) allows for some certainty as to future risk and the potential quantum of any ongoing liability.
In earlier class actions, parties have sought to overcome the practical difficulties arising from an unknown class size by seeking that notices be published to group members prior to mediation, notifying group members that they should register their interest in receiving any outcome of the settlement. Such notices may seek to incentivise group members to register their interest by notifying group members that if they do not opt out and they fail to register their interest by a certain date, they will be bound by the outcome of a court-approved settlement, but may be unable to receive any payment or benefit of the settlement except by leave of the court. Under the statutory regimes in the Federal Court and the Supreme Courts of various states (including Queensland) which govern class actions, the Court is required to approve notices of certain matters that are to be sent to group members.
Until the recent decision of the High Court in Lendlease Corporation Limited & Anor v Pallas [2025] HCA 19, there was a divergence in authority between the New South Wales Court of Appeal[1] and the Full Court of the Federal Court of Australia[2] as to whether provisions of State and Federal class actions statutory regimes conferred on those courts the power to issue certain pre-mediation notices. Such notices essentially notified group members that upon settlement, one or more parties intended to apply for an order with the effect that a group member who had not registered by a certain date, and had not opted out, would remain a group member for all purposes but would not, without leave, be permitted to seek any benefit from the settlement.
The New South Wales Court of Appeal, in Wigmans v AMP Ltd,[3]had determined that it was beyond the Supreme Court’s power to make orders pursuant to ss 175 and 176 of the Civil Procedure Act 2005 (NSW) (CP Act) to approve such a pre-mediation notice. However, the Full Court of the Federal Court, in Parkin v Boral Ltd,[4] held that Wigmans was “plainly wrong”, and the Federal Court had power pursuant to the materially identical provisions of the Federal Court of Australia Act 1976 (Cth) to approve such a notice to group members.
The High Court’s recent decision in Lendlease has confirmed that the Courts have power to issue such notices to group members. In this article, we examine the reasons for the High Court’s decision, and its implications.
The issues in Lendlease
In the primary proceeding in the Supreme Court of New South Wales, the representative plaintiffs commenced the proceeding on behalf of a group of persons (“the group members”) who acquired an “interest” in certain securities issued by Lendlease Corporation and the Lendlease Trust (together, Lendlease) during the period from 17 October 2017 to 8 November 2018.[5] The plaintiffs alleged that Lendlease engaged in misleading or deceptive conduct and breached its continuous disclosure obligations, and as a result, that group members suffered loss and damage.
The proceeding was an open class action. The size of the class was unknown by the parties but was potentially very large. The group members included not only those who were registered as the owner of securities, but also those who held an equitable interest in such securities.[6]
The defendants sought to resolve the uncertainty of group member numbers and facilitate settlement[7] by seeking an order pursuant to ss 175(1), (5) and 176 of the CP Act requiring that a certain notice be issued to group members. The proposed notice provided that members of the class had three options: register to participate in the class action, opt out of the proceeding, or “do nothing”. Relevantly, in relation to the “do nothing” option, the proposed notice provided:
If you do nothing the parties, alternatively, Lendlease, will seek an order, which, if made, has the effect that you will remain a group member in the class action, but you may, subject to any orders of the Court, not be entitled to receive any payment or other benefit from a future settlement of the class action. If a settlement occurs, then a further notice will be distributed, or advertised, advising of the settlement, and there may or may not be another opportunity to register (this will be a matter for the Court and there is no guarantee any further opportunity will arise).”[8]
At the request of the parties to the proceeding, a judge of the Supreme Court (Ball J) stated as a separate question for the Court of Appeal of the Supreme Court of New South Wales whether the Court had the power pursuant to ss 175(1), (5) and 176(1) of the CP Act or otherwise, to approve the giving of a notice of the type proposed by Lendlease.
In essence, the issue was whether the Court had power to approve a notice to group members which informed group members that the defendants intended, if the proceeding settled, to seek an order that any group member who had not opted out of the proceeding, but also had not registered for the class action, would remain a group member such that they would be bound by the settlement and their claims against the defendants be extinguished, but that they would not be permitted to seek any benefit of the settlement (without leave of the Court).
The relevant provisions
The key provisions at issue in the Lendlease decision were ss 175 and 176 of the CP Act. Section 175 has materially identical equivalents in s 33X of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and in the class action provisions introduced in 2017 in Queensland, namely s 103T of the Civil Proceedings Act 2011 (Qld).
Section 175 relevantly provides as follows:
175 Notice to be given of certain matters (cf s 33X FCA; s 103T CPA (Qld))
(1) Notice must be given to group members of the following matters in relation to representative proceedings—
(a) the commencement of the proceedings and the right of the group members to opt out of the proceedings before a specified date, being the date fixed under section 162 (1),
(b) an application by the defendant in the proceedings for the dismissal of the proceedings on the ground of want of prosecution,
(c) an application by a representative party seeking leave to withdraw under section 174 as representative party.
…
(5) The Court may, at any stage, order that notice of any matter be given to a group member or group members.
(6) Notice under this section must be given as soon as practicable after the happening of the event to which it relates.
Section 176(1) provides that the form and content of a notice given under s 175 must be approved by the Court, and is equivalent to FCA Act s 33Y(1) and CPA Act (Qld) s 103U(1)).
It is of note that the Victorian class actions provisions (not in issue in Lendlease) go further than the provisions in other State and Federal legislation, in that they expressly confer on the Supreme Court the power to make an order that a group member must take certain steps, including prior to judgment, in order to be entitled to any benefit arising from the proceeding.[9]
The High Court’s decision in Lendlease
In the Court of Appeal, Bell CJ, Ward P, Gleeson, Leeming and Stern JJA unanimously held that the Supreme Court doesnot have power to order that the proposed notice be given.[10] The High Court disagreed, unanimously allowing the appeal and resolving that the Court does have power to issue the proposed notice.
Gageler CJ, Gleeson and Jagot JJ delivered joint reasons for judgment, as did Gordon and Steward JJ (Edelman J agreeing, with further observations as to institutional rules of precedent and the Court of Appeal’s treatment of the High Court decision in Brewster[11]). Beech-Jones J delivered separate reasons for judgment.
In this article, we examine the reasons for the High Court’s determination by analysing three central issues – the issue of subverting the class actions statutory scheme by converting it into an “opt in” scheme; the issue of the notice leading the representative plaintiffs to inevitably contend with a conflict of interest; and a statutory construction issue regarding s 175(5) being qualified by the terms of s 175(6).
Subverting the “opt out” statutory scheme – conversion into an “opt in” scheme?
The Court of Appeal held that the “fundamental precept” of Pt 10 of the CP Act [the part of the Act specific to representative proceedings in the Supreme Court] is that it is an “opt out” statutory scheme,[12] and that the proposed notice would, “in practical terms at least”, have the effect of converting an “opt out” scheme into an “opt in” scheme by imposing a positive requirement on group members to opt in to the group prior to any settlement.[13] That is, the fundamental precept of Pt 10 that group members may do nothing prior to settlement and still reap its benefits, would be turned on its head.
In the High Court, Gageler CJ, Gleeson and Jagot JJ held, based on a number of considerations, that the proposed notice does not transform the “statutorily mandated opt out scheme into an impermissible opt in scheme”.[14] The proposed notice does not require a group member to opt out or register their participation. Rather, the notice is intended to inform group members that if they do neither of those things by a specified date and the proceeding settles as between the parties, then Lendlease (and potentially the representative plaintiffs) will seekan order from the Court to the effect that such group members will be bound by the settlement (thereby extinguishing their individual rights against Lendlease) but not be permitted without leave to benefit from the settlement.[15]
Their Honours also emphasised that the proceeding may notsettle and, even if it does, the Court is not bound to make the foreshadowed order, and will be sensitive to the potential for inconsistencies of interest between the representative plaintiffs and unregistered group members.[16]
Similarly, Justices Gordon and Steward (Edelman J agreeing) emphasised that the notice does not affect any legal right of a group member, and instead, is informative. There is no guarantee that the order that Lendlease foreshadows seeking will be made by the Court. Group members remain group members, there may be the possibility of further options to register (at the Court’s discretion) and unregistered group members will be able to seek leave from the Court that they be entitled to some part of the settlement amount.[17]
Gordon and Steward JJ also held that the New South Wales Court of Appeal made too much out of what it described as a “fundamental precept” of Pt 10 of the CP Act, and the observations of Gaudron, Gummow and Hayne JJ in Mobil[18] which “were not intended to establish a categorical principle of legislative presupposition that group members are always entitled to do nothing before benefitting from a settlement or favourable judgment, or limit the Court’s powers to give notice of any matter which may be relevant to group members in the proceeding.”[19] Further, even an opt out model, especially in the case of an open class, will require group members at some point to provide information in order to share in the benefit of any settlement or judgment. While ordinarily that will take place after settlement, or a favourable judgment, there will be cases where it is in the interests of a “just, quick and cheap resolution of the real issues” for that information to be supplied at an earlier stage. The issue of when is a matter for the trial judge.[20]
Beech-Jones J similarly cautioned against there being any “fundamental precept” or “basic principle” which implies restrictions on the relevant powers under the CP Act.[21]
Conflict of interest issue
The Court of Appeal held that a representative plaintiff’s obligation in the “opt out” system of Australian class actions is to act in the interests of all group members, which includes both registered and unregistered group members. The Court of Appeal determined that the incentive to bargain away unregistered group members’ claims for the purpose of resolving the proceedings to the benefit of registered group members creates an insoluble conflict.[22]
In the High Court, Gageler CJ, Gleeson and Jagot JJ acknowledged the inconsistencies of interest for the representative plaintiffs identified by the Court of Appeal,[23] but did not consider them insoluble. Their Honours observed that if the notice achieves the purpose of maximising the number of group members who register to participate in the proceeding, the notice will have actually have reduced conflict to the extent it ensures a maximum number of group members can benefit from a settlement.[24] Further, the Court retains the power not to grant the order foreshadowed by the notice.[25] The Court is able to manage any legitimate concerns as to inconsistencies of interest in accordance with the relevant legislative provisions which recognise the existence of inherent inconsistencies of interest between group members, but take a “functional rather than reflexively preclusive” approach to their management.[26]
Similarly, Steward and Gordon JJ (Edelman J agreeing) emphasised that conflicts of this kind will often feature in a class action, are anticipated by the statute and aren’t insoluble as they are addressed by the representative plaintiff’s duty not to act contrary to the interests of group members and by the Court’s supervisory and protective role. That role includes powers to, if necessary, decline to approve a settlement, replace a representative plaintiff, and appoint a contradictor.[27] Their Honours also found that the concern about possible conflicts was premature, because the order Lendlease seeks has yet to be made and may never be made.[28]
Beech-Jones J resolved the issue on the narrower basis that the supposed conflict on the part of the representative plaintiffs was irrelevant to determining the scope of the power under s 175(5) of the CP Act because it was the appellants/defendants (the Lendlease parties) who sought the proposed notice, and they “…do not owe fiduciary obligations to group members, and thus no potential conflict arises from the appellants forming that intention or seeking the proposed order.”[29]
Statutory construction issue
The Court of Appeal held that s 175(6) of the CPA constrains s 175(5) in two respects: the notice must relate to an “event”, and that “event” must be one that has happened, rather than a future event.[30] The Court of Appeal held that the Court does not have power to issue the proposed notice, because it is a notice of a present intention on the part of Lendlease, and perhaps the representative plaintiff, to participate in settlement negotiations, rather than notice of an “event.”[31]
In overturning the Court of Appeal’s construction of s 175(5), Gageler CJ, Gleeson and Jagot JJ held that the presence and terms of s 175(6) “are an insufficient basis to construe the words “any matter” in s 175(5) as confined to only a matter constituting an event that has happened.”[32] While s 175(6) imposes a temporal obligation on the giving of notice where an event has occurred, this does not mean s 175(5) is confined to the giving of notice of such events. Rather, “…in circumstances where the purpose of s 175(5) is to ensure that group members are kept informed of “any matter” relevant to them in the representative proceeding, the power in s 175(5) should be construed as liberally as its expansive language permits.”[33]
Similarly, Steward and Gordon JJ (Edelman J agreeing) rejected the distinction drawn by Bell CJ in the Court of Appeal between the “happening of an event” and the “formulation of an intention”.[34] Steward and Gordon JJ held that, to the extent the word “event” in s 175(6) qualifies the Court’s power in s 175(5), it is easy to satisfy the word “event”, including by an intention to seek an order. Further, the particular purpose of s 175(5) is to arm the Court with the power to order any other notice [i.e. as distinct from the specific matters about which notice is given pursuant to ss 175(1)-(4)] relating to the conduct of a class action which is before it, and is “facultative, not restrictive.”[35]
Beech-Jones J similarly found that there is no textual or other reason to treat the power conferred by s 175(5) to order notice of any “matter” as confined by the concept of an “event” referred to in s 175(6).[36] It is the steps referred to in ss 175(1), (3) and (4) that are the “events” to which s 175(6) applies. Section 175(5) does not use the word “event” but instead a word of wider import, namely the word “matter”.[37] Given the function of the Supreme Court under Pt 10 of the CP Act, in ensuring the protection of the interests of group members, s 175(5) confers a broad power on the Court to order that notice of any “matter” relating to the proceedings is given to group members, including the intention of a party to seek an order that may affect group members’ rights and interests.[38]
Takeaways
We have identified six main takeaways from the High Court’s decision.
First, the uncertainty from directly inconsistent authorities of intermediate appellate courts has been resolved, such that parties to a class action can be confident the Courts have power to approve notices encouraging registration and foreshadowing class closure applications.
Secondly, such notices do not restrict the rights of unregistered members or otherwise impose a positive requirement for registration such that they could be said to transform what is conceptually an “opt out” regime into an “opt in” regime.
Thirdly, the decision is only authority for the proposition that the Courts have power to approve proposed notices of the nature sought under s 175(5) of the CP Act and its equivalent provisions under Federal and State legislation. Whether the Court should exercise the power to approve such notices will still clearly depend on the facts of a particular case.
Fourthly,in cases where such notices are issued, parties and legal representatives should have greater clarity as to the number and quantum of claims at mediation, which may increase the chances of an early settlement and improve settlement outcomes for all parties.
Fifthly, when orders excluding unregistered members are sought upon Court approval of settlement, representative plaintiffs will need to consider carefully their obligations to act in the interests of all members, not just registered members, and the possible ways to avoid conflict.
Finally, a decision by the Court to approve a notice of the kind considered in Lendlease by no means guarantees that the Court will subsequently make an order excluding unregistered members from any benefit or amount payable on approval of a settlement of the claim. In Lendlease, the highest the Court put it is that the notice may give the defendants “a forensic advantage by being able to argue, on any settlement approval, that unregistered group members should not be able to participate as they had been given ample opportunity to opt out or in and had not done so”.[39] However, Justices Gordon, Steward and Edelman doubted the quality of any such advantage, given the Court will be fully aware of the reason why the defendants sent the notice, and their intention to make this argument, which might justify the Court giving it less weight in any settlement approval.[40]
Further, even if such an order excluding unregistered group members is made, it is yet to be seen whether the Courts will, in certain circumstances, also make orders allowing group members another opportunity, following settlement, to register their interest before they are excluded. It is also yet to be seen in what circumstances the Courts will grant leave to unregistered group members who have been excluded to nevertheless take the benefit of settlement.
Accordingly, while Lendlease has confirmed the Courts have power to approve this type of notice, the Courts’ treatment of a group member’s failure to register has not yet been fully tested in the context of subsequent applications. We anticipate that applications both by defendants to close the class of group members eligible to benefit from settlement, and by unregistered group members seeking leave, will likely be the next source of jurisprudential development in this area.
[10]David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83 (Court of Appeal Judgment).
[11]BMW Australia Ltd v Brewster (2019) 269 CLR 574.
[12] Court of Appeal Judgment at [97] – [101] per Bell CJ (Gleeson, Leeming and Stern JJA agreeing).
[13] Court of Appeal Judgment at [104] per Bell CJ (Gleeson, Leeming and Stern JJA agreeing).
[14] HCA Judgment at [47] per Gageler CJ, Gleeson and Jagot JJ.
[17] HCA Judgment at [81] – [82] per Gordon and Steward JJ (Edelman J agreeing).
[18]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 32 [40] per Gaudron, Gummow and Hayne JJ.
[19] HCA Judgment at [95] per Gordon and Steward JJ (Edelman J agreeing).
[20] HCA Judgment at [97] per Gordon and Steward JJ (Edelman J agreeing).
[21] HCA Judgment at [139] – [143] per Beech-Jones J.
[22] Court of Appeal Judgment at [106] – [117] per Bell CJ (Gleeson, Leeming and Stern JJA agreeing); cf. [128] – [136] per Ward P: such conflicts would crystallize only upon application to the Court to exclude the unregistered group members.
[23] HCA Judgment at [44] per Gageler CJ, Gleeson and Jagot JJ.
[24] HCA Judgment at [45] per Gageler CJ, Gleeson and Jagot JJ.
[25] HCA Judgment at [45] per Gageler CJ, Gleeson and Jagot JJ.
[26] HCA Judgment at [46] per Gageler CJ, Gleeson and Jagot JJ.
[27] HCA Judgment at [98] per Gordon and Steward JJ (Edelman J agreeing).
Digital platforms like X Corp (formerly Twitter), which facilitate social interaction and public discourse around the world, are subject to increasing regulatory scrutiny by governments seeking to address harmful content, ensure user safety, and hold tech giants accountable. Yet efforts to regulate these platforms are fraught with complexity. The global nature of their operations raises questions about the limits of jurisdiction, the powers of enforcement and the right to freedom of expression, together with widespread and sometimes heated controversy about the restriction of access to certain material by government officials. Australia, like many jurisdictions, is required to grapple with how to target platforms’ responsibility for the content they host whilst balancing these considerations.
Australia’s Online Safety Act 2021 (Cth) (the OS Act) establishes a set of Basic Online Safety Expectations (BOSE) for online service providers. These expectations require providers to take reasonable steps to ensure user safety, reduce harmful content and report on compliance. The OS Act empowers the eSafety Commissioner to issue a removal notice for certain material, to require internet service providers to restrict access to this material, and to issue civil penalties for non-compliance. The OS Act has extraterritorial reach, applying to platforms accessible within Australia, even if they are not based in the country.
The Australian Federal Court considered the legal meaning and scope of a removal notice to X Corp last year in eSafety Commissioner v X Corp [2024] FCA 499, a matter which garnered significant public interest and caused the Court to maintain a publicly available online file. The content the subject of the removal notice was a video, accessible via URLs hosted on X, depicting a violent stabbing attack on Bishop Mar Mari Emmanuel, leader of the Assyrian Orthodox Christ the Good Shepherd Church, during a livestreamed church service in Wakeley, Sydney, on 15 April 2024. The footage showed a teenage male rushing at the Bishop and attacking him. It showed the assailant raising their arm and striking the Bishop several times with a downward motion and the Bishop falling backwards. It is not clear from the video that a knife is being used, although that can be inferred. The reactions of witnesses can be heard.
On 16 April 2024, a delegate of the eSafety Commissioner issued a removal notice under section 109 of the OS Act to X Corp, requiring it to take all reasonable steps to ensure the removal of the material from its platform within 24 hours. X Corp responded by geo-blocking the URLs in Australia, thereby preventing access to the material by users with Australian IP addresses. However, the company did not take steps to prevent access by Australian users employing virtual private networks (VPNs) or other circumvention tools, nor did it remove the content entirely from its platform or limit its visibility through other technical means. The Commissioner raised concerns regarding the platform’s compliance under the OS Act, given the nature of the material – which the New South Wales Police Commissioner had described as a terrorist act.
The eSafety Commissioner applied to the Court seeking a declaration to the effect that X Corp had not complied with the notice, a pecuniary penalty and an injunction, which effectively required X Corp to carry out certain removal steps.
The arguments raised by the eSafety Commissioner included that X Corp’s actions did not satisfy the statutory requirement to remove the material, as defined in section 12 of the OS Act, which provides that material is considered removed only when it is neither accessible to, nor delivered to, any end-users in Australia. It was submitted that X Corp was capable of taking additional technical measures, such as removing or restricting the material entirely, obscuring it with a warning notice, or reducing its discoverability on the platform. It was also submitted that geo-blocking was insufficient in light of the ease with which Australian users could circumvent such restrictions.
The arguments raised by X Corp included that its actions—geo-blocking the URLs in Australia—were reasonable and sufficient under the OS Act, and that global removal or further restrictions were not reasonable. It emphasised the Bishop’s consent and support for the publication of the video, freedom of speech, the relevance to public discourse and the availability of the video on other platforms.
The case raised interesting issues, notably the extraterritorial reach of Australian online safety laws and the implications for global internet governance and freedom of expression. However, on this occasion the Court’s role was confined to construing the legal meaning and scope of the removal notice issued under section 109 of the OS Act, which authorised the eSafety Commissioner to issue a notice requiring a service provider to take “all reasonable steps” to ensure specified material is “removed” from the service—defined under section 12 to mean that it is no longer accessible to or delivered to “any end-user in Australia”:
[40] The policy questions underlying the parties’ dispute are large. They have generated widespread and sometimes heated controversy. Apart from questions concerning freedom of expression in Australia, there is widespread alarm at the prospect of a decision by an official of a national government restricting access to controversial material on the internet by people all over the world. It has been said that if such capacity existed it might be used by a variety of regimes for a variety of purposes, not all of which would be benign. The task of the Court, at least at this stage of the analysis, is only to determine the legal meaning and effect of the removal notice. That is done by construing its language and the language of the Act under which it was issued. It is ultimately the words used by Parliament that determine how far the notice reaches.
[41] Section 109(1), which is set out above, determines what a removal notice is and does. The only notice that may be given is a notice “requiring the provider” to “take all reasonable steps to ensure the removal of the material from the service”. The Commissioner chooses the material to which the notice is to apply (based on whether it is “class 1 material”) but does not have a discretion concerning how stringent or widespread the restrictions on access to that material are to be. The notice necessarily requires “all reasonable steps” to “ensure the removal” of the material.
[42] “Removed”, as noted above, is defined by s 12 of the OS Act. Section 18A of the Acts Interpretation Act requires (as common sense would suggest) that other grammatical forms of the same word be given corresponding meanings. “Removal” of material from a social media platform is a process that results in the material being “removed” in the defined sense: that is, a state of affairs where “the material is neither accessible to, nor delivered to, any of the end-users in Australia using the service”.
[43] The phrase “any of the end-users in Australia” must be read in context.
One aspect of the context is s 23, which provides that the OS Act extends to acts, omissions, matters and things outside Australia.
A second aspect of the context is the objects of the OS Act, set out in s 3, which are to promote and improve “online safety for Australians”. The reference to “Australians” suggests that the Act directs its attention to all Australian residents, not only those who use Australian service providers to connect to the internet.
A third aspect of the context is the Explanatory Memorandum to the Bill for the OS Act (the Online Safety Bill 2021 (Cth)). The Explanatory Memorandum does not cast any direct light on the intended scope of a removal notice under s 109 (other than by observing that the section was intended to apply whether or not the relevant service is provided from within Australia). It notes that the provisions in what became Part 9 of the OS Act were substantially a re-enactment of earlier provisions in Schedules 5 and 7 to the Broadcasting Services Act 1992 (Cth) (the BS Act). Within the time frame of an urgent interlocutory decision, the extent to which I have been able to do my own research on the legislative history is limited. With the parties (both represented by competent counsel) not having submitted that any part of the legislative history would assist me in resolving the constructional issues as to what a removal notice requires to be done, I have proceeded on the basis that analysis of the former provisions of the BS Act would not be illuminating.
[44] The breadth with which the objects of the OS Act are expressed indicates that “any of the end-users in Australia” in s 12 should not be read narrowly. I was not taken to anything in the Act suggesting that the location of the IP address through which a person physically located in Australia connects with the internet was intended to make a difference as to whether they were to be denied access to class 1 material by operation of a removal notice. The Act does not use concepts derived from the structure of the internet, in lieu of ordinary geographical or territorial notions, to describe where people are. I have concluded that the phrase was intended to have its ordinary meaning and that “removal” therefore means making the material inaccessible to all users physically located in Australia. The original location of the relevant provisions in the BS Act, which regulates traditional broadcast media, tends (albeit not very strongly) to confirm this conclusion.
The Court considered that the context of the OS Act supported construing “any end-user in Australia” by reference to users’ physical location, rather than IP routing or service origin. Accordingly, “removal” required the material to be inaccessible to all users physically located in Australia.
In relation to what constituted “reasonable steps”, the Court considered that although the global removal of URLs may be a reasonable course of action for X Corp as a matter of business discretion, it did not follow that it was a required step under section 109. The eSafety Commissioner’s construction—that reasonable steps included global removal to ensure local inaccessibility—would confer upon the Commissioner powers with extraterritorial consequences incompatible with the comity of nations. Such a reading would require clear legislative language, which was absent. Ultimately, it was found that “reasonable steps” required by a removal notice issued under section 109 did not include the steps which the Commissioner sought to compel X Corp to take, such as a global removal:
[45] What the removal notice requires, therefore, is “all reasonable steps to ensure” that the 65 URLs are not accessible to any users physically in Australia. What is meant by “reasonable” steps is therefore critical.
[46] I have no doubt that removing the 65 URLs from its platform altogether would be a reasonable step for X Corp to take, in the sense that a decision by X to take that step could readily be justified. There is uncontroversial evidence that this is what other social media platforms have done, and that X Corp would not be in breach of any United States law if it took this step. However, this is not the test. The OS Act pursues a policy. It is not bounded by the policies of service providers or their contractual relationships with their users. Section 109 imposes its requirements regardless of the wishes of providers and of individual users.
[47] The qualifier “reasonable” should therefore be understood as limiting what must be done in response to a notice to the steps that it is reasonable to expect or require the provider to undertake. That understanding is consistent with how duties arising under the general law to take “reasonable” steps commonly work. Identification of the steps that are “reasonable” in this sense may involve consideration of expense, technical difficulty, the time permitted for compliance (which may be short: see s 109(2)) and the other interests that are affected. It is the last of these factors that is the focus of the parties’ disagreement.
[48] The argument that making the 65 URLs inaccessible to all users of X Corp’s platform everywhere in the world is not a step that it is “reasonable” to require X Corp to perform in order to ensure that the URLs are inaccessible to Australian users (and therefore is not a step required by the removal notice) is powerful.
[49] If s 109 of the OS Act provided for a notice imposing such a requirement, it would clash with what is sometimes described as the “comity of nations” in a fundamental manner. That concept, and the principle of statutory construction that arises from it, were recently discussed by reference to earlier cases in BHP Group Ltd v Impiombato [2022] HCA 33; 96 ALJR 956 at [23]-[32] (Kiefel CJ and Gageler J). It is not limited to the familiar presumption against the extraterritorial operation of statutes and is therefore not excluded here by the express provision for extraterritorial operation in s 23 of the OS Act. It is useful to set out their Honours’ recitation of the authorities at [27]-[31].
Exposition of the common law presumption in play in Morgan v White and in Meyer Heine can be traced in Australia to Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association. There O’Connor J said:
Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits. Under the same general presumption every Statute is to be so interpretated and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law: Maxwell on Statutes, 3rd ed, p 200.
Plainly, O’Connor J did not see the implied restriction on the territorial operation of a statute to which he referred in the first sentence as freestanding but rather as a reflection of the “general presumption” which he expressed in the second sentence with reference to Maxwell on Statutes. There, the presumption appeared in the precise terms adopted by O’Connor J under the heading “Presumption against a Violation of International Law”.
In Barcelo v Electrolytic Zinc Co of Australasia Ltd, Dixon J expressed the presumption in the same language drawn from Maxwell on Statutes as had been adopted by O’Connor J in Jumbunna. His Honour did so interchangeably with language drawn from 19th century English authority to the effect that “[i]t is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”.
Dixon J returned to the presumption in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society. The “well settled rule of construction”, his Honour there explained, is that “an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control”.
In R v Foster; Ex parte Eastern and Australian Steamship Co Ltd, Dixon CJ expressed the presumption yet again. He did so, more pithily, in terms which he said were appropriate to be applied to a Commonwealth statute after the Statute of Westminster Adoption Act. He described it as “a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers”.
(Footnotes omitted.)
[50] If given the reach contended for by the Commissioner, the removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp’s corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world. The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services. The content to which access may be denied by a removal notice is not limited to Australian content. Insofar as the notice prevented content being available to users in other parts of the world, at least in the circumstances of the present case, it would be a clear case of a national law purporting to apply to “persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”. Those “persons or matters” can be described as the relationships of a foreign corporation with users of its services who are outside (and have no connection with) Australia. What X Corp is to be permitted to show to users in a particular country is something that the “comity of nations” would ordinarily regard as the province of that country’s government.
[51] The potential consequences for orderly and amicable relations between nations, if a notice with the breadth contended for were enforced, are obvious. Most likely, the notice would be ignored or disparaged in other countries. (The parties on this application tendered reports by experts on US law, who were agreed that a US court would not enforce any injunction granted in this case to require X Corp to take down the 65 URLs.)
[52] Section 23(2) of the OS Act extends the operation of its provisions to “acts, omissions, matters and things outside Australia”. It confirms that X Corp is in breach of the removal notice if it fails to take some “reasonable step” notwithstanding that the act or omission constituting that failure occurs overseas. However, s 23(2) does not control the meaning of “all reasonable steps”. A clear expression of intention would be necessary to support a conclusion that Parliament intended to empower the Commissioner to issue removal notices with the effect for which she contends.
[53] The result is that, read in context and in the light of normal principles of statutory construction, the “reasonable steps” required by a removal notice issued under s 109 do not include the steps which the Commissioner seeks to compel X Corp to take in the present case.
[54] For these reasons I have come to the view, based on the arguments advanced at this interlocutory stage, that the Commissioner will not succeed in establishing that compliance with the removal notice entails blocking access to the 65 URLs by all users of X Corp. It follows that there is not a prima facie case for the grant of a final injunction in the terms sought.
The Court declined to grant the interlocutory injunction. The case did not justify such relief, considering the principle of the comity of nations and the fact that such relief could potentially affect millions of users, where ultimately, the eSafety Commissioner had failed to establish that there were strong prospects of success – or effectiveness.
As to the potential effectiveness of the injunction, the Court considered, based on legal expert evidence from both sides, that a U.S. court would be unlikely to enforce any injunction to require X Corp to take down all URLs. The expert U.S. lawyers agreed that the removal notice would be contrary to the First Amendment if it were imposed by a government actor in the U.S. and if it restricted the ability of users in the United States to access the video, and that it was highly likely that courts in the U.S. would decline to enforce an Australian court order enforcing the removal notice – either because they would view such an order as repugnant to the public policy of the U.S. or because they might view such an order as penal in character (and U.S. courts do not enforce foreign penal orders).
Even on the assumption that the proposed injunction was not enforceable in the U.S., while a potential educative or deterrent effect was considered, the Court did not find that this was a relevant consideration for the making of interlocutory orders.
The application for an injunction was refused:
[56] If the considerations relating to the comity of nations (discussed at [48]–[51] above) had not led me to the view that the Commissioner has not made out a prima facie case, the same considerations would have led me to conclude that the balance of convenience does not favour extending the interlocutory injunction in its current (or any similar) form.
[57] On the one hand the injunction, if complied with or enforced, has a literally global effect on the operations of X Corp, including operations that have no real connection with Australia or Australia’s interests. The interests of millions of people unconnected with the litigation would be affected. Justifying an interlocutory order with such a broad effect would in my view require strong prospects of success, strong evidence of a real likelihood of harm if the order is not made, and good reason to think it would be effective. At least the first and the third of these circumstances seem to be largely absent. The first is discussed above. As to the third, it is not in dispute that the stabbing video can currently be viewed on internet platforms other than X. I was informed that the video is harder to find on these platforms. The interim injunction is therefore not wholly pointless. However, removal of the stabbing video from X would not prevent people who want to see the video and have access to the internet from watching it.
[58] On the other hand, there is uncontroversial expert evidence that a court in the US (where X Corp is based) would be highly unlikely to enforce a final injunction of the kind sought by the Commissioner; and it would seem to follow that the same is true of any interim injunction to similar effect. This is not in itself a reason why X Corp should not be held to account, but it suggests that an injunction is not a sensible way of doing that. Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute.
[59] It was suggested that an injunction, even if not enforceable, could have an educative or deterrent effect. X Corp’s amenability to education and deterrence might be thought to be open to doubt. In any event, while these are sometimes important considerations in the framing of final relief, I doubt whether they have a proper role in the making of interlocutory orders.
The judgment was delivered on 13 May 2024.
Shortly prior to the delivery of this judgment, on 6 May 2024, X Corp challenged the removal notice in the Administrative Appeals Tribunal (AAT) on the basis that the video did not meet “Class 1” under the Australian classification regime which encompasses “extreme violence material” and that the removal notice was invalid.
On 5 June 2024, the eSafety Commissioner filed a notice of discontinuance of the whole of the Federal Court proceeding for the stated reason that it intended to focus on the AAT matter.[1] At this time, it was reported by the eSafety Commissioner to the Guardian Australia that eSafety had several legal fights with X, “Litigation across multiple locations, multiple cases, prudent use of public funds,” she said. “[X] had a phalanx of lawyers plus the most expensive barrister in Australia [Bret Walker SC].”[2]
Ultimately, the AAT proceeding was resolved by agreement. The office of the eSafety Commissioner said in a statement published on its website on 11 October 2024 that, “eSafety believes that rather than test the interaction of the National Classification Scheme and the Online Safety Act in the context of this particular case, it is more appropriate to await the Federal Government’s consideration of a pending review of Australia’s statutory online safety framework”.[3]
The 2024 Statutory Review of the Online Safety Act 2021, released on 4 February 2025, proposes significant obligations on online platforms such as Facebook, Instagram, TikTok, and X. The recommendations include the introduction of a duty of care by service providers to take reasonable steps to address and prevent foreseeable harms arising from the content on their platforms—such as harm to people’s mental and physical wellbeing and threats to national security and social cohesion—with penalties for a breach of the duty of care of up to 5% of global turnover or $50 million (whichever is greater).
The Report also proposes the creation of a new Online Safety Commission, with powers to impose higher penalties for non-compliance with removal notices—up to $10 million. Platforms with significant reach would be subject to stricter compliance obligations, such as mandatory annual risk assessments, mitigation of risks, measurement of success (or otherwise) and strong transparency reporting. Further, the Report recommends requiring overseas platforms to establish a local presence in Australia.
Elon Musk, the owner and executive chairman of X Corp, has previously publicly criticised Australia’s online safety regulations, such as in a post on X dated 20 April 2024, by referring to the eSafety Commissioner as the “Australian censorship commissar“[4], and continues to challenge Australian online safety regulations. Very recently, in May 2025, X Corp initiated legal action seeking a declaration that a new safety standard for harmful online content (called the Relevant Electronic Services (RES) Standard) does not apply to it. The RES covers two categories of Class 1 material linked to serious harm: Class 1A material, including child sexual exploitation and pro-terror content, and Class 1B material, such as crime, violence, and drug-related content.
The action is ongoing.
In conclusion, digital platform regulation will continue to require courts and regulators to grapple with the balance between national interests, the rights of individuals, and platform responsibility. While the First Amendment in the U.S. robustly protects free speech in the U.S., other countries like Australia appear to place greater emphasis on curbing harmful content to protect the public. This tension becomes apparent when digital platforms such as X Corp argue that complying with removal notices infringes on the free speech rights of users in jurisdictions with more permissive content regulations.
The decision in eSafety Commissioner v X Corp [2024] FCA 499 and the publicly available Court file can be found here.
[2] Guardian Australia article entitled “X says ‘free speech has prevailed’ after eSafety commissioner drops case over Wakeley church attack posts”, published on 5 June 2024.
While Queensland barristers regularly travel – to and between regional centres, to Brisbane and interstate – to conduct cases, a raft of our Bar colleagues have chambers in more than one location. In the regions, a barrister may have home chambers in one city, and satellite chambers elsewhere. Some have home chambers in a regional city and in Brisbane. Some also have chambers interstate. This article seeks to address the considerations, and vicissitudes, involved in such endeavour. Justin Greggery KC was admitted to the Bar in 2000, and took silk in 2017. He is the leader of the Bar in Townsville. He is now a civil lawyer by practice but harbours extensive regulatory and criminal experience. Justin lives in Townsville, but has chambers in both Townsville and Brisbane. At Hearsay’s request, Justin has written this piece describing such dual chamber existence:
Justin Greggery KC. Picture: Shae Beplate from the Townsville Bulletin.
Last December my phone pinged with a Qantas notification about my travel in 2024: ‘Your year in review’. I had flown 67 times and covered more than 78,000 kilometres. A clear reminder of ‘the long commute’ necessary for a court-based practice equally shared between Brisbane and North Queensland.
Practice in regional Queensland only requires a short flight between centres. The trip from Townsville to Cairns is less than 40 minutes and the flight to Mackay is not much longer. Regional chambers generally have an open-door policy for visiting barristers and provide a room and printing facilities. When working in Cairns, Mackay or Rockhampton I had little need to join a second regional group or to take up a door tenancy.
The decision to join chambers in Brisbane involves different dynamics to travel in regional Queensland. The flight is almost two hours from Townsville. The airport/city commute, setting up and getting to and from court all takes time. The briefs generally require longer appearances. An increase in the volume of my work in the Brisbane jurisdiction and its complexity created the desire for a sense of constancy of surroundings and the need to replicate the numerous advantages of working from chambers rather than a hotel room. That said, I have always found those instructing me to be very generous with the offers of rooms and the use of the firm’s administration support but this category of assistance only goes so far. I have found that the intangible benefits of interactions within chambers to be well worth the additional cost.
8 Petrie Terrace Chambers, Brisbane
The next issue was which chambers to join? My practice spans a number of areas in order to meet the expectations of regional solicitors who are more comfortable briefing someone they know rather than unknown counsel from Brisbane who might specialise. I was conscious that my choice of chambers would create its own perception of my practice. 8 Petrie Terrace was an attractive option. First, I had a good relationship with the head of chambers, Saul Holt KC. Second, the chambers planned to expand the floor space and increase their numbers of junior counsel. Third, the group took a proactive approach to the career development of law students who are employed as reception and administration staff. All were indicators of a commitment to the profession more broadly which aligned with the approach of 31 Sturt Chambers in Townsville. The conversations about the important practical matters of cost and invoicing were candid. The arrangement was reduced to writing for clarity. These are steps I highly recommend for those considering having a foot in two chambers. Life is much easier when you fit the culture of a new group and there are no potential misunderstandings about money. The arrangement did not require any active involvement in running chambers. I have that responsibility in Townsville and one of those responsibilities is enough.
The planned commencement date was delayed for over a year with the onset of the pandemic. Thereafter courts promoted remote appearances in most interlocutory hearings and some short final hearings which caused me to reconsider whether a second chambers was necessary. The following year (still not being certain either way) I decided to stick with the original plan. I found a second chambers simply doubled the collegiate experience and I looked forward to working between two chambers despite the drawback of repetitive travel.
A further development took place two years later when I moved to a door tenancy to accommodate additional ‘permanent’ members of chambers. I now work from a spare room or the conference room with the same access to administrative support. It has not been a negative experience compared to a permanent room although a door tenancy might not give the same sense of being settled if one was spending more than two days a week on average working from a second chambers.
As I mentioned, the primary negative of having two chambers is the repetitive travel. It can be tiring and impacts personal routine and family life. I was fortunate that my children were finished high school by the time I took up chambers as it would have otherwise imposed a substantially unequal burden in the home. A foot in two camps is unlikely to be as viable for barristers with young children.
31 Sturt Chambers, Townsville
In my experience, the downside of travel is clearly outweighed by the opportunity to forge new friendships, gain a sense of connection with beating heart of practise in Brisbane and be exposed to the breadth of work which is not available in the regions. This is best achieved by way of personal introductions and face to face conversations which are made much easier by being part of a Brisbane chamber group. Exposure to a wider range of judicial figures tends to hone one’s advocacy and improves practical skills. These experiences are not readily available to most barristers in the regions. To most, the Bar in Brisbane is perceived rather than experienced. As an example, the almost daily opportunity to observe the Court of Appeal is not available to barristers in the regions except for the one week each year when the Court sits in either Cairns or Townsville. Federal Court hearings and oral applications for special leave are in the same category of distant events.
I also believe that there is merit in the reverse scenario. Our chambers has door tenants from outside of Townsville who have the benefit of personal introductions to local solicitors. It is not possible for the comparatively few barristers in the regions to provide all the services required locally by solicitors based in Townsville or Brisbane. There are opportunities for counsel who wish to broaden their practice areas in Mackay and Townsville and taking up a door tenancy is a cost-effective approach for those want to test the waters without an obligation for lengthy commitment. Barristers who practise in commercial, succession and personal injury litigation will have work in Townsville if they are approachable and diligent problem solvers.
A foot in both camps has enhanced my experience of practising in Queensland. I recommend it.
