Cases and authorities

PRACTICE AND PROCEDURE – Vexatious proceedings order – Whether vexatious proceedings order should be set aside – Whether leave required under ss 9(3) or 14 of the Vexatious Proceedings Act 2008 (NSW) – Basis for exercising jurisdiction to set aside vexatious proceedings order – Where application substantially repeated previously rejected submissions

WORKERS COMPENSATION — uninsured liability regime — Workers Compensation Act 1987 (NSW), s 140 — meaning of “work injury damages” — meaning of “injury” — where relevant injury is silicosis DUST DISEASES — dust diseases legislation — distinction between legislative treatment of dust diseases and general workers compensation

Queensland v Mr Stradford (a pseudonym) Commonwealth of Australia v Mr Stradford (a pseudonym) His Honour Judge Vasta v Mr Stradford (a pseudonym) Constitutional law (Cth) – Chapter III court – Judicial immunity – Status of orders of Federal Circuit Court of Australia – Where judge of Federal Circuit Court of Australia ("Judge Vasta") declared Mr Stradford in contempt of disclosure orders ("contempt declaration") and sentenced Mr Stradford to imprisonment ("imprisonment order") – Where Mr Stradford was imprisoned by various agents, employees or contractors of the Commonwealth and Queensland acting in reliance upon imprisonment order – Where Full Court of Family Court of Australia set aside contempt declaration and imprisonment order due to lack of power to make the declaration and order and for failure to afford procedural fairness to Mr Stradford – Where primary judge in Federal Court of Australia found Judge Vasta liable to Mr Stradford for false imprisonment and Commonwealth and Queensland vicariously liable – Where primary judge held that imprisonment order and warrant of commitment were affected by jurisdictional error, invalid and of no legal effect – Where primary judge found Judge Vasta lost protection of judicial immunity from civil suit – Where primary judge did not accept that persons acting in reliance upon the imprisonment order and warrant of commitment were protected from liability for their actions in imprisoning Mr Stradford – Whether effect of s 17 of Federal Circuit Court of Australia Act 1999 (Cth) was that contempt declaration and imprisonment order of Federal Circuit Court were valid unless and until set aside – Scope of common law immunity from civil suit arising out of acts done in exercise or purported exercise of judicial function or capacity – Whether persons acting in reliance upon imprisonment order and warrant of commitment liable to Mr Stradford despite acting pursuant to, or in accordance with, warrant of commitment which appeared regular on its face – Whether s 249 of Criminal Code (Qld) applied to warrant issued by Federal Circuit Court. Words and phrases – "collateral challenge", "constables", "contempt", "correctional officers", "defence of justification", "gaolers", "inferior court", "judicial function", "judicial immunity", "judicial officer", "jurisdictional error", "justification", "ministerial officer", "officer of the court", "order", "police officers", "sheriff", "subject matter jurisdiction", "superior court", "superior court of record", "warrant". Family Law Act 1975 (Cth), Pts XIIIA, XIIIB. Federal Circuit Court of Australia Act 1999 (Cth), s 17. Criminal Code (Qld), s 249.

EVIDENCE — expert evidence — requirement for directions under Uniform Civil Procedure Rule 31.19 — whether evidence "reasonably required to resolve the proceedings” — where defendants wish to answer expert testimony already filed by plaintiffs — where defendants require expert evidence in fields outside their normal business area — where the need for expert evidence arises from issues in the pleadings

SUCCESSION — Family provision — Notices of Claim — Disregarding power — Identification of the context and purposes of family provision legislation bearing upon s 61 Succession Act SUCCESSION — Family provision — Outline of the evolution of approach to consideration of possible applicants under family provision legislation in determining claims of applicants SUCCESSION — Family provision — Construction of s 61 Succession Act in light of context, purpose and text SUCCESSION — Words and phrases — Family provision — Meaning of “disregard the interests” of any other person (other than a beneficiary) — Meaning of “unnecessary, unreasonable or impracticable” — Examination of “unnecessary, unreasonable or impracticable” terms as applied in family provision caselaw SUCCESSION — Family provision — Service of Notices of Claim — Discussion of purposes underlying notification regime — Outline of requirements of Notices of Claim, including means and time of service SUCCESSION — Family provision — Discussion of types of searches to locate persons and limitations of such searches — Discussion of internet and social media searches — Discussion of property searches — Discussion of electoral roll searches — Meaning and discussion of “skip tracing” SUCCESSION — Family provision — Form of request for s 61 notation — In most cases the request is informally made by email or in proposed short minutes of order or outline of submissions and not formalised by notice of motion SUCCESSION — Family provision — Guidance as to practical application of search and notification requirements SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which another child had not been served with a Notice of Claim and evinced an intention of not being located by the plaintiff or others associated with dealings with his deceased father’s estate — Credible but untested evidence disclosed deceased had ex-nuptial children — Orders sought (and notation made) to disregard the interests of that other child — Further notation made to address position of such, if any, ex-nuptial children

EQUITY – where first defendant was sole director of plaintiff – where first defendant held moneys in a bank account in his name on trust for the plaintiff – where first defendant transferred those moneys to a joint account in name of first defendant and his wife, the second defendant – whether moneys were transferred to joint account pursuant to an agreement or arrangement for the plaintiff to pay fees to the third defendant in relation to a property development – breach of trust established CORPORATIONS – directors’ duties – whether the first defendant, in transferring moneys held for the plaintiff into the joint account, used his position as director of plaintiff to obtain an unauthorised benefit for himself and his wife – breach of duty established EQUITY – where moneys in joint account were used to purchase real property in name of second defendant – where second defendant did not have notice at time of purchase that any funds in the joint account had been misappropriated– whether, having subsequently been put on notice, second defendant was liable to restore the funds or their traceable products to the plaintiff pursuant to the principles in Black v Freedman – liability not established

SUCCESSION – family provision – practice and procedure – plaintiff shared deceased’s home – alleged promise of continued occupation – plaintiff commences family provision proceedings – no specific claim in summons for continued occupation of deceased’s home in summons – claim for continued occupation made in in correspondence – caveat lodged but permitted to lapse – no injunction sought – executor commences separate proceedings for possession – family provision proceedings remain pending – possession granted, with costs

COSTS – leave to appeal – no question of principle

APPEALS — Leave to appeal — Whether leave required LAND LAW — Easements — Substantial interference with easements — dominant owner proposes extended width of driveway on their own land — proposal that drivers from servient tenement will cross onto dominant owner’s land — alleged that the development application contains certain deficiencies— servient owner’s consent required for making of development application pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) — whether servient owner’s refusal to consent to the making of a development application constitutes a substantial interference in the dominant owner’s rights

CRIME – appeals – appeal against sentence – assistance to authorities – discount under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – where the sentencing judge failed to consider the applicant’s assistance to authorities while on remand – negligible connection between the applicant’s offences and the offending in respect of which the applicant is said to have provided assistance – exercise of discretion to decline to provide a discount on re-sentence

TAXES AND DUTIES — Administration — Collection and recovery — Whether defendant should be prevented from taking recovery action until the process of objection and review completed — Whether certain notices issued under s 46 of the Taxation Administration Act 1996 (NSW) should be stayed — Where none of the plaintiffs have sought to reduce their payroll tax liabilities to the defendant —Where fourteenth plaintiff claims it will be unable to trade if the notices are not stayed

ADMINISTRATIVE LAW – Marine Safety Act 1998 (NSW) – marine notice under s 12(2) Marine Safety Act 1998 (NSW) – exclusion zone – Newcastle Harbour – protest activity – whether the Notice is invalid and of no legal effect on the grounds it exceeds the powers granted to the Minister for Transport by the Marine Safety Act 1998 (NSW) – whether notice would frustrate or prevent special event from being carried out – notice declared invalid and of no legal effect – no order as to costs made

CIVIL PROCEDURE – application for summary dismissal – where plaintiff is undischarged bankrupt ­– whether proceedings come within exception in s 116(2)(g) of Bankruptcy Act ­– no question of principle – where alleged injuries said to be caused by bankruptcy – not a category of exception – no standing ­– proceedings untenable ­– abuse of process – application granted for summary dismissal as against third defendant

EQUITY — Equitable remedies — Specific performance — Contract for the sale and purchase of land 2022 edition — where vendor issued a notice to complete — where completion did not occur — where vendor issued a notice of termination — where purchaser sought specific performance of contract in circumstances where vendor said to be in breach of contract — where purported breach related to the requirement that a notice of attornment be served by the vendor and held in escrow at least two business days prior to completion — whether vendor’s failure to serve notice of attornment a “disentitling breach” such that it was relevant to or connected with the securing of completion

CONTEMPT — Criminal contempt — Contumacious breach of orders and undertaking given to the Court — Penalty

COSTS – application for certificate under the Suitors’ Fund Act 1951 (NSW) – qualifications for issue of a certificate – whether proceeding in this Court an “appeal” under that Act – whether Appeal Panel of NCAT a “court” under that Act

ADMINISTRATIVE LAW – judicial review – decisions of medical assessors referred to review panels – review panels issue certificates – applications for judicial review under s 69 of the Supreme Court Act 1970 – errors by review panels not clearly identified – no jurisdictional error – no error of law on the face of the record – application dismissed – no point of principle

CONTRACTS — construction — where parties entered into initial agreement for sale of two coconut milk production plants — where two parts of a plant were delivered — where initial agreement was terminated by deed of settlement and a new supply of two plants was to be provided — whether “new supply” meant a supply that was independent of the supply under the initial contract — whether vendor could rely on delivery of parts under initial agreement in part satisfaction of its obligations under settlement documents CONTRACTS — construction — construction of release clause in deed of settlement — application of Grant v John Grant & Sons Proprietary Limited (1954) 91 CLR 112; [1954] HCA 23 — where parties agreed they had “no further obligations” in respect of a primary contract for sale of two coconut milk production plants — where vendor released seller from “all Claims and actions arising from or in connection with” settled matters — where title to plants under initial agreement did not pass to purchaser until full purchase price was paid — whether release clause extinguished vendor’s claim to title to the plants in circumstances where full purchase price was not paid under initial agreement

CRIME – appeals – appeal against conviction – judge alone trial - where the applicant was convicted of 11 counts of sexual intercourse with a child and 1 one count of indecent assault – whether the applicant did not have a trial according to law due to the trial judge reversing the evidentiary and persuasive burdens of proof – where the judgment was effectively an ex tempore judgment – where the posing of rhetorical questions did not insinuate that there was an onus on the applicant – where the trial judge clearly stated the correct principles regarding onus and burden of proof – ground of appeal rejected CRIME – appeals – appeal against conviction – whether the trial judge erred by failing to expose his reasoning linking the relevant legal principles to the findings – where applicant highlighted four areas where directions were not given or were said to be inadequate – where the trial judge’s reasons made clear that reliance on an alibi does not shift the burden of proof – where the trial judge was not obliged to direct himself how character evidence was to be used – where a Liberato direction was not required – where no occasion arose to apply the Markuleski direction because complainant’s evidence not found unreliable on any count – ground of appeal rejected – appeal dismissed

SUCCESSION — Administration of estates – the deceased’s will leaves the whole of her estate to her two daughters, the plaintiff and the defendant and appoints them as her joint executors – plaintiff and the defendant cannot cooperate in the administration of the estate – the substantial asset in the estate is a residential property occupied by the defendant since the death of the deceased – the defendant refuses to engage with the plaintiff on matters of estate administration – an independent administrator of the estate cum testament annexo is appointed in 2023 upon the plaintiff’s application – the defendant refuses to communicate with the independent administrator and continues to occupy the residential property of the estate – the independent administrator is given judicial advice authorising her to bring proceedings for judgment for possession of the estate’s residential property – proceedings for possession commenced by the cross claimant and served upon the defendant – the defendant does not appear in response to the Summons and does not appear when ordered to do so – whether the Court should proceed to authorise judgment for possession and the issue of a writ for possession or whether the Court should issue a warrant for the arrest of the plaintiff to require her deal early with the relief sought in the proceedings.

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether consent of father should be dispensed with, in circumstances where father cannot, after reasonable inquiries, be found or identified – whether change of name should be approved

CRIMINAL LAW – sentence – constructive murder – robbery in company whilst armed with shotgun – where offender discharged gun into front door of house – where offender unaware that victim standing close to other side of door – victim shot in leg and died en route to hospital – no intention to inflict harm, death or grievous bodily harm – assessment of objective criminality CRIMINAL LAW – sentence – where offender young, exposed to drug use and violence in his infancy and childhood and probably suffering intellectual disability – impact on sentence – where offender institutionalised – 5 months in the community between the ages of 17 and 23 – hopelessly sad personal circumstances – balancing gravity of crime and devastating impact on victim’s family against compelling personal history CRIMINAL LAW – sentence – delay in charging – totality principle – unusual circumstances – where offender arrested for unrelated offending shortly after the murder – no murder charge for two years – where sentence for temporally proximate crimes served by the time of current proceedings – where further sentence required by statute to be served cumulatively – application of authority – whether backdate appropriate in circumstances – application of totality principle – better course to reduce sentence rather than back-dating in unusual circumstances of case

NEGLIGENCE —solicitor’s negligence – scope of solicitor’s retainer – purchase of land and business –failure to provide advice prior to exchange – defective premises – whether Council owed duty of care – contributory negligence – limitation of liability

ADMINISTRATIVE LAW – Police powers – search warrant – whether invalid – where mobile telephone of legal practitioner seized from police station – client legal privilege – whether issuing officer had reasonable grounds – where warrant sought all data on the telephone pertaining to specified offences – whether warrant too wide – whether mobile telephone should be returned – warrant invalid – mobile telephone to be returned

COSTS – party/party – court’s discretion – whether r 42.7 of the UCPR had been displaced – where each party had a measure of success – where each party to bear their own costs

BAIL – 14 year old Aboriginal child – charged with police pursuit and knowingly carried in conveyance while on bail – these charges to be dropped – Court is still required to apply s 22C of the Bail Act 2013 (NSW) because charges not yet dropped – tension between s 22C Bail Act and s 6 Children (Criminal Proceedings) Act 1987 (NSW) – s 22C requires a child not to be treated equally before the law when accused of certain crimes – child in custody for 3 months as a result of charges that are to be withdrawn – consideration of unacceptable risk – prosecution not established bail should be refused – conditional bail granted

CIVIL PROCEDURE – interim preservation – freezing orders – where plaintiff owners corporation seeks freezing order against defendant developer – where reasonable to infer defendant developer will sell remaining four residential units and not retain the proceeds of sale – whether a danger that prospective judgment will be unsatisfied – meaning of “danger”

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Recognition and enforcement of foreign judgment – Enforcement at Common Law – People’s Republic of China – People’s Court – Whether judgment to be registered must be determined to be a judgment by reference to the law of the foreign jurisdiction or the law of the forum- Judgment to be enforced

OCCUPATIONS — Medical practitioners — Health Practitioner Regulation National Law (NSW) — physiotherapist — employment of the Barral technique during treatment of a back injury — unsatisfactory professional conduct — where allegation made that patient’s pubic bone was exposed inappropriately and without prior explanation — where finding made that practitioner inappropriately and without adequate explanation palpated and/or massaged on or around the patient’s labia majora inappropriately — whether NCAT erroneously conflated two aspects of the plaintiff’s expert evidence regarding whether the exposure of pubic hair alone amounted to an inappropriate use of the Barral technique — professional misconduct — where NCAT found that the plaintiff engaged in inappropriate conduct of a sexual nature that was sufficiently serious to justify the suspension or cancellation of his registration — whether NCAT made a sufficiently serious error in fact finding to warrant the grant of leave to appeal — whether NCAT’s approach in determining that the impugned conduct was sexual in nature required consideration of the plaintiff’s state of mind and the context of the conduct — whether NCAT’s errors constituted jurisdictional errors or errors of law on the face of the record

TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff’s application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act

APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable

EQUITY — Trusts and trustees — Express trusts — Intention to create — Question of fact — No issue of principle

Practice and procedure – Costs – Work performed by employed solicitor – Where first and second respondents are remaining partners of unincorporated law firm which obtained costs order against appellants – Where costs were sought for work undertaken by employed solicitors of unincorporated law firm – Whether order for costs in favour of an unincorporated law firm entitles firm to obtain recompense for legal work performed by employed solicitors of firm. Words and phrases – "assessment of costs", "Chorley exception", "employed solicitor", "general common law principle", "general rule", "in-house lawyer rule", "in-house solicitor rule", "indemnity", "lawyer-client relationship", "legal services", "order for costs", "partner", "professional detachment", "professional fees", "quantification", "remuneration", "self-represented litigant", "unincorporated law firm". Civil Procedure Act 2005 (NSW), ss 3, 98. Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7, Div 3. Supreme Court Act 1986 (Vic), s 3. GAGELER CJ, GORDON, EDELMAN, GLEESON AND BEECH-JONES JJ. A partner in an unincorporated law firm represents the firm in litigation against a former client. The firm is successful in the litigation and procures an order for costs in its favour. The order for costs does not entitle the firm to obtain recompense for legal work performed by the partner: that much is clear from Bell Lawyers Pty Ltd v Pentelow.[1] But does the order for costs entitle the firm to obtain recompense for legal work performed by an employed solicitor of the firm? Intermediate courts of appeal have divided on that question since Bell Lawyers. For reasons to be explained, the better view is that an order for costs in favour of an unincorporated law firm entitles the firm to obtain recompense for legal work performed by an employed solicitor of the firm. This appeal Atanaskovic Hartnell is an unincorporated legal practice. The first and second respondents, Mr Atanaskovic and Mr Jepps, are its only remaining partners. The appellants, Birketu Pty Ltd and WIN Corporation Pty Ltd (together, "Birketu"), are its former clients. By proceedings commenced in the Supreme Court of New South Wales in 2018, Atanaskovic Hartnell claimed to recover fees and disbursements for legal services rendered to Birketu. Mr Atanaskovic was the solicitor on the record for Atanaskovic Hartnell throughout those proceedings. In judgments delivered in 2019[2] and 2020,[3] Hammerschlag J upheld most of Atanaskovic Hartnell's claim, ultimately awarding it the sum of $943,912.15 together with interest. Later in 2020,[4] Hammerschlag J made orders for costs which included an order that Birketu pay Atanaskovic Hartnell's "costs of the proceedings" up to and including a specified date in 2019 "assessed on the ordinary basis". In 2022, Atanaskovic Hartnell filed an application under Div 3 of Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW) for assessment of the costs so ordered by Hammerschlag J. Atanaskovic Hartnell sought in the assessment costs in the sum of $500,408 including $305,463 for professional fees. Its claim for professional fees was limited to professional fees for work done by its employed solicitors. It made no claim for work done by Mr Atanaskovic or any other partner. The assessment was referred to the third respondent, Mr Castagnet, a costs assessor. Mr Castagnet refused to accede to a request by Birketu that he determine as a preliminary issue whether Atanaskovic Hartnell was entitled to claim professional fees for work done by its employed solicitors. The refusal led to Birketu commencing further proceedings against the current partners of Atanaskovic Hartnell and Mr Castagnet in the Supreme Court of New South Wales in 2022. The further proceedings were heard at first instance by Brereton JA.[5] His Honour declared that, under the costs order made by Hammerschlag J, the current partners of Atanaskovic Hartnell "are not entitled to recover costs for work done by the employed solicitors of their own firm". The conclusion of legal principle embodied in the declaration made by Brereton JA was in accord with the earlier holding of the Court of Appeal of the Supreme Court of Victoria (Whelan, McLeish and Niall JJA) in United Petroleum Australia Pty Ltd v Herbert Smith Freehills[6] that a litigant law firm was not entitled to recover costs of work done by its own employed solicitors. Brereton JA considered United Petroleum to be indistinguishable and correct in principle.[7] Atanaskovic Hartnell appealed to the Court of Appeal of the Supreme Court of New South Wales, which by majority (Kirk JA and Simpson A-JA, Ward P dissenting)[8] allowed the appeal and set aside the declaration and other orders made by Brereton JA. In their place, it ordered that the further proceedings be dismissed with costs. Kirk JA[9] and Simpson A-JA[10] each considered that the statutory context applicable to an order for costs made by a New South Wales court rendered an order made in favour of an unincorporated law firm one that, consistently with Bell Lawyers, entitled the firm to be compensated for legal work done by an employed solicitor of the firm. Each considered United Petroleum to be distinguishable by reference to the different statutory context in Victoria.[11] Ward P,[12] like Brereton JA, considered United Petroleum to be both indistinguishable and correct in principle. The question of legal principle involved in this appeal, by special leave from the majority decision of the New South Wales Court of Appeal, is therefore archetypically[13] a question in respect of which a decision of this Court, as the final appellate court, is required to resolve differences of opinion both between different intermediate courts of appeal and within the one intermediate court of appeal. The statutory context The general power to make an order for costs in civil proceedings was noted in Bell Lawyers[14] to be conferred on New South Wales courts[15] by s 98(1) of the Civil Procedure Act 2005 (NSW). Section 98(1) relevantly provides that "costs are in the discretion of the court", which "has full power to determine by whom, to whom and to what extent costs are to be paid" and "may order that costs are to be awarded on the ordinary basis or on an indemnity basis". The "ordinary basis" on which a court may order costs is defined in s 3(1) of the Civil Procedure Act to mean the basis of assessing those costs in accordance with Div 3 of Pt 7 of the Legal Profession Uniform Law Application Act. An assessment of costs is to be made in accordance with Div 3 of Pt 7 of the Legal Profession Uniform Law Application Act on application by either a person who has paid or is liable to pay those costs or a person who has received or is entitled to receive those costs.[16] In conducting the requisite assessment, the costs assessor "must determine what is a fair and reasonable amount of costs for the work concerned".[17] The definition of "costs" in s 3(1) of the Civil Procedure Act was noted in Bell Lawyers[18] to be that "costs, in relation to proceedings, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration". The plurality in Bell Lawyers highlighted two features of that definition.[19] The first is that the reference to "costs payable" in the "means" part of the definition embodies the "general principle", stated in Cachia v Hanes,[20] that costs are only awarded "by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation". The second is that the reference to "remuneration" in the "includes" part of the definition encompasses "remuneration for professional services rendered under a contract of service as well as remuneration for professional services rendered under a contract for services" and so puts beyond doubt that "the cost of professional legal services rendered by an employed lawyer" is to be taken to be within the general principle. Those two features were absent from the definition of "costs" in s 3(1) of the Supreme Court Act 1986 (Vic), considered by the Victorian Court of Appeal in United Petroleum.[21] The absence of those features, however, is an insufficient basis upon which to treat the holding in United Petroleum as inapplicable to the statutory context in New South Wales. In the first place, the Victorian Court of Appeal stated in United Petroleum that it was "clear" that the answer to whether a litigant law firm is or is not entitled to recover costs of work done by an employed solicitor "does not lie in any differences between the statutory powers to award costs in Victoria and those of New South Wales considered in Bell Lawyers" and that the Victorian definition "does not provide any basis for recovery independently of the [applicable] common law principles".[22] In the second place, as Ward P pointed out in dissent in the decision under appeal, the Victorian Court of Appeal approached the question in United Petroleum "on the premise that costs referable to employed solicitors were capable of falling within the statutory provision for costs in that State".[23] It follows that the critical question that arises is whether the general principle embodied in the reference to "costs payable" in the "means" part of the definition of "costs" in s 3(1) of the Civil Procedure Act is engaged where an unincorporated law firm acts for itself in litigation. The general principle embodied in the reference to "costs payable" being "a judicial creation of considerable antiquity",[24] that critical question is properly characterised and addressed (as it was addressed in United Petroleum) as a question of common law principle calling for contemporary judicial resolution.[25] The general common law principle, the "general rule" and its supposed "exceptions" To repeat the formulation in Cachia v Hanes[26] as endorsed in Bell Lawyers,[27] the general common law principle embodied in the reference to "costs payable" in the definition of "costs" in s 3(1) of the Civil Procedure Act is that costs are awarded only by way of indemnity or partial indemnity "for professional legal costs actually incurred in the conduct of litigation". The general common law principle limits the costs that can be ordered in two respects. First, it confines the costs that can be ordered to the costs of professional legal services rendered to a litigant in the conduct of litigation. Second, it confines the costs of professional legal services rendered to a litigant in the conduct of litigation to those "actually incurred" by the litigant so as, for example, to exclude professional legal services which have been agreed to be rendered to a litigant for free.[28] The outworking of the general common law principle has the result described by the plurality in Bell Lawyers[29] that "[a]s a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation". That "general rule", which results from the outworking of the general common law principle, was commonly acknowledged before Bell Lawyers to admit of two "exceptions". One, known as the "Chorley exception",[30] was that a self-represented solicitor could obtain recompense for legal work performed by the solicitor on his or her own behalf. The other, known as the "in-house solicitor rule" or "in-house lawyer rule", was that a litigant represented by a lawyer employed by the litigant could obtain recompense for legal work performed by the lawyer on behalf of the litigant. The unequivocal holding in Bell Lawyers was that "the Chorley exception is not part of the common law of Australia".[31] Underlying that holding was recognition that compensation of a litigant solicitor for legal work performed by the solicitor on his or her own behalf was inconsistent not only with the general common law principle by which professional legal costs are confined to those actually incurred by a litigant for legal services rendered to the litigant in the conduct of litigation,[32] but also with the fundamental principle of "the equality of all persons before the law".[33] The arguments that had traditionally been proffered as justifications for treating solicitors differently from other litigants who were subject to the general common law principle were noted and rejected. One such argument was that to recompense a litigant solicitor for legal work done by the solicitor encouraged efficiency in that it saved an unsuccessful litigant the added cost of the solicitor engaging another solicitor. The argument was rejected as "not self-evidently true"[34] and as "contrary to the modern orthodoxy that it is undesirable, as a matter of professional ethics, for a solicitor to act for himself or herself in litigation".[35] Another such argument was that the value of the time of a litigant solicitor was more readily quantifiable than that of another litigant. The argument was rejected because it failed to engage with the general common law principle which was "the basis for the general rule"[36] and for the further reason that "there is no reason why, in principle, the reasonable value of the time of any litigant cannot be measured".[37] Nevertheless emphasised in Bell Lawyers was that rejection of the Chorley exception did not entail any disturbance of the in-house solicitor rule, which was noted by Gageler J to have been established before the introduction of the Chorley exception[38] and which was described by the plurality in terms of "the well-established understanding in relation to in-house lawyers employed by governments and others, that where such a solicitor appears in proceedings to represent his or her employer the employer is entitled to recover costs".[39] The in-house solicitor rule was referred to as being applied in practice "on the footing that the actual cost to [the employer] of the legal services provided by its employed solicitor would not exceed, in any substantial amount, the sum recoverable by [the employer] for professional legal costs".[40] The explanation given in Bell Lawyers for the prior and continuing existence of the in-house solicitor rule, notwithstanding the rejection of the Chorley exception, involved no tension between the description by the plurality of the in-house solicitor rule as "outside the general rule" that recompense is unavailable to a litigant for the value of his or her time spent in litigation[41] and the description by Gageler J of the in-house solicitor rule as "an application of ... rather than an exception to" the general common law principle by which professional legal costs are confined to those actually incurred by a litigant for legal services rendered to the litigant in the conduct of litigation and from which that general rule results.[42] That is because the general rule and the in-house solicitor rule are equally applications of the general common law principle. The general common law principle applies to result in the in-house solicitor rule: first, because the costs of legal work done by an in-house solicitor are costs of professional legal services rendered by the employed solicitor to the litigant employer; and second, because those costs are actually incurred by the litigant employer, albeit that they are "not reflected in a severable liability".[43] Understanding the in-house solicitor rule as an application of the general common law principle by which professional legal costs are confined to those actually incurred by a litigant for legal services rendered to the litigant in the conduct of litigation accords with the explanation given for the in-house solicitor rule in the seminal decision of the Court of Exchequer Chamber in Attorney-General v Shillibeer.[44] Holding that the Crown was entitled to be recompensed for the professional services of its employed solicitor who received an annual salary, Parke B there said that it was "perfectly clear that the Crown incurred [legal] expenses about [the] suit, and that, unless the Crown [was] compensated by payment of the ordinary costs, there would be no mode of compensation; because it [was] impossible to say what proportion the expense of conducting [the] particular suit would bear to the entire salary for the year, until the end of the year, when all the suits [were] known, and when the expense of each [could] be calculated".[45] As later summed up by Nicholls CJ in The "Bengairn",[46] the Crown was "not in any way getting its cases conducted free of cost but ... paid salaries [to] its officers who conduct its cases for it" such that the Crown was "in the position of having paid the costs and [was] entitled to recover them from the unsuccessful party by way of indemnity". Rejection of the Chorley exception in Bell Lawyers has therefore left the general common law principle embodied in the reference to "costs payable" in the definition of "costs" in s 3(1) of the Civil Procedure Act relevantly unqualified. The costs that can be the subject of a costs order in the application of the common law principle are the professional legal costs actually incurred by the party in whose favour the costs order is made for legal services rendered to that party in or in relation to the proceedings in which the order is made. Application of the general common law principle For so long as the Chorley exception was accepted to have been part of the common law of Australia, it seems not to have been doubted that a litigant solicitor to whom costs were awarded, being entitled to obtain recompense for the solicitor's own legal work, could also obtain recompense for the legal work of the solicitor's employees. The entitlement of the solicitor extended to work "done by his own clerk".[47] The rejection of the Chorley exception in Bell Lawyers means that the general common law principle that costs are awarded by way of indemnity or partial indemnity for professional legal costs actually incurred in the conduct of litigation now falls to be applied to litigant solicitors or unincorporated law firms in the same way as it applies to other litigants. Like any other litigant, the solicitor or firm cannot obtain recompense for their own legal work. And like any other litigant, the solicitor or firm can obtain recompense for legal work done by their employees, on the basis that the expenses of the salaries and overheads associated with having that legal work done by their employees constitute professional legal costs actually incurred by the solicitor or firm. The proposition that the general common law principle applies to a litigant solicitor or unincorporated law firm in the same way as it applies to any other litigant follows from the general common law principle now being relevantly unqualified and is consistent with the emphasis placed in Bell Lawyers on the fundamental principle of equality of all persons before the law. The proposition is not inconsistent with the plurality in Bell Lawyers having left open a question as to the position of an incorporated legal practice of which the sole employed solicitor is also the sole director and shareholder.[48] As has since been recognised,[49] the question left open was focused on the separate legal personality of the incorporated legal practice. The resolution of that question, one way or the other, could have no bearing on the present question of the application of the general common law principle. To adopt the approach preferred by the Victorian Court of Appeal in United Petroleum and by Brereton JA and Ward P in the present case, and thereby to deny the entitlement of a litigant solicitor or unincorporated law firm to recover costs of work done by their employed solicitors, would be to depart from the application of the general common law principle. Moreover, it would be to depart from the principle in a manner which would run counter to the fundamental principle of equality which underlay the rejection of the Chorley exception in Bell Lawyers. It would replace the advantage afforded by the Chorley exception to litigant solicitors in comparison to other litigants with a disadvantage imposed on litigant solicitors in comparison to other litigants. The considerations proffered in support of the alternative approach are insufficient to justify its adoption. There is no doubt that a distinction can be drawn between solicitors who act in litigation for themselves and unincorporated law firms who are represented in litigation by one or more partners, on the one hand, and litigants who are represented in litigation by their employed solicitors, on the other hand, insofar as the former can be described as "self-represented" whereas the latter can be described as neither self-represented nor unrepresented.[50] There is no difficulty accepting that solicitors in the employment of self-represented solicitors or unincorporated law firms can be subject to direct supervision by their employers in doing legal work, including in the exercise of their professional judgment, to an extent to which solicitors employed by other litigants cannot.[51] It can also be accepted that "there is a risk of a lack of objectivity and professional detachment when lawyers appear for themselves in litigation".[52] And it can further be accepted that the availability of recompense for work done by employed solicitors has the potential to create an incentive for some solicitors and unincorporated law firms to self-represent despite the unavailability of recompense for legal work they do themselves.[53] The short point is that none of those considerations impacts on the general common law principle of costs being awarded to a litigant by way of indemnity or partial indemnity for professional legal costs actually incurred. It is not any part of the function of making or withholding an order for costs to encourage or discourage representation of a litigant or to encourage professional detachment or independence from a litigant beyond that which is required by the legal and ethical framework for the provision of legal services. The rejection in Bell Lawyers of the notion that lawyers should be encouraged to act for themselves in litigation as a justification for the Chorley exception's departure from the general common law principle of costs being awarded by way of indemnity or partial indemnity for professional legal costs actually incurred does not entail acceptance of the notion that lawyers or law practices should be discouraged from having employed solicitors act for them by denying them costs. Nor can it be said, without blurring the distinction between a solicitor or firm and its employees and ignoring the reality of the salaries and overheads attributable to legal work done by employed solicitors, that "to allow a solicitor to recover costs referable to the work done by its employees would recompense that solicitor for its time spent in the litigation"[54] or that "[t]o enable an unincorporated law firm to recoup the cost of employed solicitors amounts to recovery of the partnership's own time and effort (albeit through the partnership's employed solicitors) as professional legal costs".[55] The time spent on the doing of legal work that is capable of recompense is not that of the solicitor or firm but that of employees of the solicitor or firm in respect of which the solicitor or firm incurs expenses of remuneration and overheads. The recompense is to the solicitor or firm for professional legal costs thereby actually incurred by the solicitor or firm. Quantification Finally, there is a need to respond to an argument that to allow litigant solicitors and unincorporated law firms to obtain recompense for legal work done by their employees would violate the general common law principle that costs are awarded only by way of indemnity or partial indemnity for professional legal costs actually incurred in the conduct of litigation insofar as they are in the business of litigation and insofar as it would enable them to profit from the conduct of their own litigation. On the approach described above, which is concerned with professional legal costs actually incurred by way of expenses and remuneration, the argument is properly directed not to the availability of such recompense by way of an order for costs but to its quantification by way of assessment. Concern that awards of costs for legal work done by solicitors employed by litigants should not result in profit to litigants is not confined to concern about employed solicitors of litigant solicitors or unincorporated law firms. The concern has repeatedly been raised in relation to other employer-litigants[56] and has repeatedly been addressed in the broader context of the outworking of the general common law principle in the in-house solicitor rule. The plurality in Bell Lawyers noted that "the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed ... had an independent solicitor been engaged"[57] on the "assumption", or more accurately the "sensible and reasonable presumption",[58] that application of the approach will not ordinarily result in an employer-litigant obtaining more than an indemnity for expenses actually incurred. The presumption on which the traditional approach is founded has never been treated as more than a presumption of fact, it being open to an objecting party to show that application of the approach in a particular case would in fact result in the employer-litigant receiving more than an indemnity for expenses actually incurred.[59] In the application of the traditional approach in the context of an assessment of costs in accordance with Div 3 of Pt 7 of the Legal Profession Uniform Law Application Act, it has rightly been said that "[a]lthough there may be cases where it would be open to an assessor to investigate the issue of the costs of [an employer-litigant], so as to ensure that the principle of indemnity is not infringed, this task is not one which should be undertaken without a good and sufficient cause".[60] However, the mere fact that the costs to be assessed are the costs of legal work done by employees of a litigant solicitor or unincorporated law firm cannot be sufficient to trigger such an investigation. Although this appeal was argued, and should be decided, by reference to the traditional approach concerning professional legal costs actually incurred by way of expenses, there may be an alternative approach for the recovery of costs involving a different conception of "indemnity" which, in other cases, could have a different effect on quantification. In particular, in Cachia v Hanes[61] the majority described costs as "reimbursement for work done or expenses incurred". The former part of that phrase might be taken to include the reasonable value of non-gratuitous legal work done by another such that, like an award of interest on a judgment sum as an indemnity for being kept out of money even if the judgment sum would not have been used by the recipient to accrue interest,[62] the award of costs as an indemnity for work done would not be concerned with expenses incurred or remuneration paid and, therefore, would not be rebuttable by proof that expenses or remuneration were less than the reasonable value of the work. The costs would be awarded in the same manner as a quantum meruit, upon which "usually the value of services is assessed by reference to charges commonly made by others for like services".[63] In the absence of any argument or any quantification issues in this case, it is unnecessary to consider this point further. Conclusion The decision of the Victorian Court of Appeal in United Petroleum must be overruled. The appeal must be dismissed with costs.

Equity – Fiduciary obligation – Successor trustee and former trustee – Where former trustee has entitlement in equity to be indemnified out of trust assets for expenses and liabilities properly incurred – Where trustee has beneficial interest in trust assets commensurate with that entitlement to indemnification – Where appellant is judgment creditor of former trustee and subrogated to former trustee's entitlement to indemnification – Where successor trustee transferred trust assets to third parties leaving insufficient trust assets to satisfy former trustee's entitlement to indemnification – Whether successor trustee owes fiduciary obligation to former trustee – Whether fiduciary obligation owed in respect of entitlement of former trustee to indemnification out of trust assets or commensurate beneficial interest in trust assets retained by former trustee following replacement by successor trustee. Words and phrases – "beneficial interest", "cestui que trust", "dishonest and fraudulent design", "equitable proprietary interest", "exoneration", "fiduciary obligation", "fiduciary relationship", "former trustee", "incoherence", "indemnification", "knowing assistance", "priority", "security interest", "successor trustee", "vulnerability". Trustee Act 1925 (NSW), ss 6, 59.

CIVIL PROCEDURE – application for suppression orders – where interim suppression order had been made – ex parte proceedings – principle of open justice primary objective – prejudice to the proper administration of justice – meaning of “necessary” – orders made

CONTRACTS – Termination – Relief against forfeiture – Repayment of money – Debt enforcement – Loan – Oral agreement -

CIVIL PROCEDURE – Court of Appeal – application for pro bono referral – where application made shortly before listed hearing date – whether the respondent will suffer prejudice if hearing date is vacated – where applicant has recently directed substantial sums through his accounts – application refused

CRIME – investigation of offences – New South Wales Crime Commission- application for leave pursuant to s 35A (4) Crime Commission Act 2012 (NSW) to examine a person in respect of offences with which they have already been charged – leave granted CIVIL PROCEDURE – nondisclosure orders – s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) – orders made on grounds in s 8(1)(a), (c) and (e)

CIVIL PROCEDURE – judgments and orders – where dispute whether injuries sustained in motor vehicle accident give rise to permanent impairment greater than 10% – order setting aside review of medical assessment by the Personal Injury Commission Motor Accidents Division – order remitting review of medical assessment to a differently constituted Review Panel

APPEAL – question of law - Civil and Administrative Tribunal – internal appeal – claim of procedural unfairness – failure of Appeal Panel to identify claim as raising a question of law – application treated as requiring leave – refusal of leave did not mean there was no appeal – plaintiff party to an internal appeal – failure of Appeal Panel to identify appeal before it as of right constituted error on a question of law

INSURANCE — miscellaneous indemnity insurance — buyer’s warranty and indemnity insurance policy — acquisition of international property services business with facilities management contract in Singapore — warranties given by sellers in share sale agreement — claim against first, second, third and fourth excess layer insurers for damages in respect of breach of warranties by sellers — breach of warranty established in relation to information disclosed and not disclosed about facilities management contract — assessment of damages — amount of any damages less than threshold of first excess layer policy — claim dismissed CONTRACTS — breach of contract — breach of warranty — breach of warranty given by sellers in share sale agreement that Disclosure Materials were not misleading — proper measure of damage

TORTS – assessment of damages – injury caused by State Transit Authority bus colliding with bicycle – whether damages to be assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) or under the Motor Accident Injuries Act 2017 (NSW) STATUTORY INTERPRETATION – scheme regulating awards of damages by reference to two distinct categories – scope of categories of “motor vehicle” accidents and “public transport” accidents – government bus capable of satisfying each criterion – special or specific category to prevail – result not inconsistent with primary purpose of later legislation

JUDGMENTS AND ORDERS – Adjudication determination entered as a judgment – Adjudication determination affected by jurisdictional error – Judgment set aside on the basis that adjudication determination affected by jurisdictional error RESTITUTION – Where moneys paid under a garnishee order pursuant to a judgment – Where judgment subsequently set aside – Right to restitution of moneys paid under a judgment subsequently set aside – No discretion to refuse relief under general law – Alternative basis for restitution pursuant to s 124A of the Civil Procedure Act 2005 (NSW)

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of offences relating to misappropriation of trust funds – where Respondent engaged in, or represented that he was entitled to engage in, legal practice following the suspension of his practising certificate and the issue of Supreme Court injunctions restraining him from legal practice

SUCCESSION — Family provision — Standing — Leave to commence and maintain proceedings — Consideration of whether a plaintiff who commenced family provision proceedings prior to being convicted of, and serving imprisonment in respect of, serious Commonwealth offences is able to maintain and settle such proceedings whilst he is still in custody — Consideration of common law and Felons (Civil Proceedings) Act 1981 (NSW) regarding persons in custody in respect of serious offences — It is doubtful that the terminology of common law “felony offences” (capital or non-capital) and any disabling effects of convictions for such offences applies to the offences with which the defendant was convicted and in custody — There is some doubt that the Felons (Civil Proceedings) Act 1981 (NSW) applies to the Commonwealth offences to which the defendant was convicted and in custody — However, if so applicable leave ought be given nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings SUCCESSION — Family provision — Orders designating property as notional estate — Operation of ss 63, 79 and 90 Succession Act explained SUCCESSION — Family provision — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a son of the deceased, currently in custody — Orders sought (and made) finalising proceedings and addressing standing issue

VACATE TRIAL – defendant seeks to vacate 5-day trial – blames former solicitor for failing to file lay and expert evidence and not informing defendant that he had ceased to act – principles at [23]-[25] – in fact, defendant had terminated solicitor’s retainer six-months earlier – inadequate explanation – application refused. LEAVE TO ADDUCE FURTHER EVIDENCE – defendant serves 3,000 pages of lay and expert the day before trial – plaintiff cannot meet evidence without vacating trial – principles at [22] – application refused.

EVIDENCE – client legal privilege – waiver – principles at [6]-[8] – defendant seeks to vacate hearing and adduce further evidence – blames former solicitor for predicament – whether defendant thereby waived privilege over communications with former solicitor – maintenance of privilege unfair in the circumstances.

HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 – application for an interim supervision order – interim supervision order granted

PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – whether expulsion valid – interpretation of Partnership Deed – where resolution to waive time and expulsion resolution were voted by a single voting button – whether resolutions required approval of not less than 80% of all Capital Partners PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – findings of fact – whether appellant lost the opportunity to increase calibration points – whether resolutions proposed for an improper purpose PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership – whether date of dissolution is the date of the statement of claim or the date of the expulsion resolution – dissolution on just and equitable ground APPEALS – from exercise of discretion – separate question order – whether primary judge erred in making order for costs for hearing the separate question – whether appellant’s claim sufficiently heard – whether relief granted incomplete

CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – where the amendment would join a second defendant to the proceedings – where the application was made early in proceedings – where the amendment would avoid multiplicity of proceedings – where there would be no material prejudice to the defendant – leave to amend granted – costs