Cases and authorities

ADMINISTRATIVE LAW — Judicial Review – Costs orders – Jurisdictional error — Error on face of the record – Chorley Exception – Recovery of professional costs by self-represented solicitors – Jurisdiction of the Supreme Court under s 69 Supreme Court Act 2005 (NSW)

COSTS — Party/Party — Calculation of pre-judgment interest in accordance with s 100(1) of the Civil Procedure Act 2005 (NSW) — Dispute over liability for costs — Offer of compromise made in accordance with Uniform Civil Procedure Rules 2005 (NSW) — Plaintiff to pay the defendant’s costs of the proceedings (including the cross-claim) on the bases provided in the defendant’s draft order CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Judgment entered for the defendant — Dismissal inappropriate when judgment ought be entered

REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) ss 162, 173, 175, 176(1), 176(2) – where six sets of representative proceedings are the subject of a Deed of release and settlement – application for Preliminary Orders to facilitate proposed later application for approval of settlement

CONTRACT – where a defendant company (the first party) executes a written instrument (subscription agreement) and delivers it to the plaintiff company (the second party) on conditions that the second party will not do anything with it unless it hears from the first party that it may and the first party is misled into signing it by the misrepresentation that it is “not a proper document” and nothing would happen if it were signed – HELD – subscription agreement not binding – CONTRACT – terms – implied term – whether the subscription agreement included an implied term that the first party would not have to pay unless an investor made funds available – HELD – term not to be implied as not necessary to give the subscription agreement business efficacy – CONTRACT – performance – breach – readiness, willingness and ability to perform – where the first party’s obligations to subscribe and pay for shares under the subscription agreement are interdependent with the second party’s obligations to pass certain resolutions, issue shares and deliver documents and the second party does not tender performance – HELD – the second party cannot assert breach by the first party of its obligations where the second party was not ready, willing and able to perform – the second party has no right to recover from the first party – CONTRACT – discharge/abandonment – where parties execute another contract in substitution for the subscription agreement – HELD – if the subscription agreement was binding, it was discharged – CONTRACT – damages – quantification of loss – where second party’s obligation was to issue shares in return for money – whether it sufficiently quantified its loss – HELD – if it were otherwise entitled to succeed, loss sufficiently quantified CONSUMER LAW – Competition and Consumer Act 2010 (Cth) s 139B, sch 2 ss 4(1), 18(1) – misrepresentations by the second party that the subscription agreement was “not a proper document”, that nothing would happen if the first party signed it and that the natural person making the misrepresentation would do nothing with it until he heard from the signatory – authority of the natural person making the misrepresentation – HELD – second party engaged in conduct that was misleading or deceptive or likely to mislead or deceive – appropriate to make a declaration EQUITY – estoppel – where subscription agreement is signed on common understanding or convention that the first party will not have to subscribe and pay for shares unless funds are obtained from an offshore investor – funds not obtained – second party seeks to enforce agreement – HELD – such conduct is an attempt unconscionably to depart from the common assumption or convention and the second party is estopped from so acting

COSTS – satellite costs litigation, including application for costs of resisting costs orders sought – no question of principle

COSTS – follow the event – no point of principle

CONTRACTS – formation – acceptance of offer – whether offer to purchase vessel accepted orally or in writing prior to purported withdrawal of offer – binding contract formed by acceptance of offer prior to withdrawal CONTRACTS – express terms – precontractual statements – whether contract for sale of vessel included a term that the vessel would “fit” in a dock – no representation made that the vessel would “fit” in the dock CORPORATIONS – contracts – agency – whether contract entered into with the express or implied authority of the company – implied authority to bind company to contract through acquiescence of the board DAMAGES – mitigation of loss – whether costs incurred in mitigation are too remote to be recovered – mitigation results in crystallisation of loss

CIVIL PROCEDURE — Notices to produce — Before hearing — Application to set aside on the grounds of oppression and lack of legitimate forensic purpose — Application dismissed

DEEDS – execution – whether defendant signed deed – creditor and witness testified that defendant signed deed – defendant testified that she did not sign deed – uncontradicted expert evidence that defendant’s signature was not authentic – primary judge dismissed proceedings on basis of not being persuaded that debtor had signed deed – whether conclusion disclosed appellable error – appeal dismissed

SENTENCING – solicitation and possession of child pornography – applicant used social media to solicit 12 year old girl to provide photographs using threats of exposure – two aggregate sentences imposed – sentencing judge accepted applicant affected by mental illness but did not accept causally connected to offending – whether erred in failing to find causal connection – whether sentencing judge misapplied principles concerning mentally ill offenders – no error established – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

CRIME – appeal against sentence – multiple sexual offences committed while victim detained for a lengthy period – Crimes Act 1900 (NSW), ss 86(2)(b), 61J(1), 61I – domestic violence – guilty plea – totality – critical feature is need for overall sentence to reflect totality of criminality – crushing sentence – severity of sentence not linear – no error in application of totality principle – express reference to specific errors which have been avoided by sentencing judge not required – ground rejected CRIME – appeal against sentence – manifest excess – aggregate sentence – partial accumulation – partial concurrency – offences above mid-range of objective seriousness – seven Form 1 offences – indicative non-parole periods less than standard non-parole periods – modest individual indicative sentences – greater need for accumulation – limited utility of comparable cases – comparable cases referred to easily distinguished – ground rejected – appeal dismissed

CRIMINAL LAW – appeal – appeal against sentence – three co-offenders sentenced contemporaneously – criminality in each of the offences was identical – different aggregate sentences imposed – alleged grievance at the disparity in the sentences – application of the principle of parity and equal justice – applicant re-sentenced – appeal allowed

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Drug supply offences – Where counsel for the applicant on sentence made a concession to the sentencing judge that the offending was in the mid-range – Where a finding was made by the sentencing judge in accordance with that concession – Whether exceptional circumstances had been established allowing the applicant to resile from that concession – Whether there had been a miscarriage of justice – Whether finding of the sentencing judge was reasonably open – Limited role played by applicant – Where offending had no upper limit in terms of quantity – Discussion as to the significance of the weight of the drug in such circumstances – Finding that the offending was in the mid-range not reasonably open on the evidence – Error established – Re-sentence – Unlikely to re-offend – Genuine remorse – Excellent prospects of rehabilitation – Finding of special circumstances

SUCCESSION — Administration of estates — Persons entitled on intestacy SUCCESSION — Administration of estates — Whether general gift of residue or intestacy

CIVIL PROCEDURE – summary disposal – application for claim to be summarily dismissed – frivolous and vexatious proceedings – no reasonable cause of action – abuse of process – where plaintiff had commenced similar proceedings in the Federal Court – where the effect of these proceedings is an attempt to re-agitate issues that failed in the Federal Court – where plaintiff seeks orders that cannot be made in this Court, including setting aside or “quashing” orders made in the Federal Court – where the Further Amended Summons does not disclose a cause of action against any defendant – where proceedings are otherwise an abuse of process

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Contention that debt is not due and payable — Whether defect in the demand — Whether some other reason to set aside the demand.

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 14.28 – Application for dismissal – Whether causes of action can be made out – Whether pleadings are defective – Requirements to plead actual knowledge – Application dismissed

MORTGAGES AND SECURITIES – powers of mortgagee – clogs on equity of redemption – collateral advantages – plaintiff advanced $289,915 to mortgagors – second ranking mortgages held over various properties – mortgage charged Lower Rate of Interest at 30% p.a. and Higher Rate of Interest at 60% p.a. in event of default – clause 18.3(h) which operates following default allowed plaintiff to pay out other mortgages – any money so paid to form part of the “Secured Money” – plaintiff pays out first ranking mortgages over three of mortgagors’ properties for total of $487,000 – plaintiff seeks to pay out first ranking mortgages over a further two properties – whether clause 18.3(h) provides a collateral advantage and is an impediment to redemption – held that plaintiff’s power to pay out first mortgages and charge interest at 60% p.a. on amounts paid out can be regarded as a collateral advantage and an impediment to redemption – whether clause 18.3(h) is unfair and unconscionable – held that reliance on power to charge interest at 60% p.a. on amounts paid out to first mortgagees is unfair and unconscionable – reliance on clause 18.3(h) in that fashion amounts to an unconscientious exercise of a contractual right – plaintiff entitled to rely upon clause 18.3(h) to redeem or acquire first mortgages but is confined to charging interest at the rate provided for in the first mortgage

CATTLE – stock agisted on Council land – agreement with one company granting license to occupy – Council gave notice to vacate – company deregistered – Council impounded cattle – another company claimed ownership of cattle – asserted agreement with Council and Council trespassed – claim failed – no agreement – impounding of cattle – Council’s power to impound trespassing cattle – Impounding Act – ability to recover costs or fees from net proceeds of sale – whether Council mismanaged cattle – Council’s cross-claim upheld

BUILDING AND CONSTRUCTION – progress payment claim – payment schedule – email refusing payment until work completed – failure to say why payment withheld – other documents not incorporated – use of contextual material – Building and Construction Industry Security of Payment Act 1999 (NSW), s 14

CIVIL PROCEDURE – wide request for referral to solicitor and barrister on the Pro Bono scheme panel – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) rr 7.36 and 7.37 – applicant is a qualified solicitor with over eight years experience – applicant has not exhausted avenues for legal assistance outside the scheme – request for referral refused

CHILD WELFARE – Family Law Act 1975 (Cth) – recovery order sought in aid of secure accommodation and care orders – whether in child’s best interests to make recovery order

HIGH RISK OFFENDERS – application for an interim supervision order – no opposition by defendant - interim supervision order granted

MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Vesting – Extension of time – Companies in voluntary administration – Deeds of Company Arrangement entered into – Security interest registered on Personal Property Securities Register – Registration lapsed – Further registrations made eighteen months later – Companies subsequently went into liquidation – Application by secured creditor under Corporations Act 2001 (Cth), s 588FM, to fix later time for the purposes of vesting of security interest under s 588FL(2)(b)(iv) – Identification of “critical time” as date when administration which ended when Deeds of Company Arrangement executed began – Whether s 588FL applicable to security interests granted by security agreement made after critical time – Section 588FL not so applicable – No utility in s 588FM order CORPORATIONS – Voluntary administration – Deed of company arrangement – Effect on vesting of Personal Property Securities Act 2009 (Cth) security interests – Relevance of subsequent voluntary winding up MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Vesting – Extension of time – Whether just and equitable to fix later time in the alternative that s 588FL applicable – Prejudice to unsecured creditors and Deputy Commissioner of Taxation – Relevance of delay – Avoidance of unintended windfall to unsecured creditors to detriment of secured creditor – Intentions of parties – Inadvertence

COSTS – 8-day trial vacated – each party seeks orders for costs thrown away – principles at [3]-[7] – leave granted to amend defence at beginning of trial – cross-claimant then sought to join another cross-defendant – cross-claimant had previously decided to keep proceedings against cross-defendants separate – vacation caused by cross-claimant’s decision to join rather than amendment – cross-claimant to pay costs thrown away.

CIVIL PROCEDURE – subpoenas – to produce documents – application to set aside – whether legitimate forensic purpose – whether subpoena irrelevant, too broad or issued for improper purpose – apparent relevance to application for security for costs – documents relating to appellants’ source of funds – application to set aside subpoena dismissed

APPEALS – leave to appeal – representative proceedings – interlocutory orders – orders final with respect to the representative party – no finality as to group members claims – challenge to answers to common questions TORTS – negligence – standard of care – acts or omissions of public authority – exercise of statutory function – statutory protection – application of Wednesbury standard of care – Civil Liability Act 2003 (Qld) s 36 NEGLIGENCE – standard of care – conduct of flood operations – compliance with Flood Operations Manual – construction of Manual written by flood engineers for application by flood engineers – purposive construction – dual purposes of water supply and flood mitigation – concept of flood mitigation – releases not to exceed peak inflows – use of best available rainfall forecasts – degrees of tolerance – scope for professional judgment – role of the senior flood operations engineer in determining strategies NEGLIGENCE – causation – factual causation – cumulative effect of sequential breaches – series of acts jointly sufficient to cause harm – division of single course of conduct into discrete breaches artificial TORTS – damage to property – whether liability apportionable – concurrent wrongdoers – whether acting independently of each other – Civil Liability Act 2003 (Qld) s 30 TORTS – damages – prejudgment interest on damages – property damage – awards with respect to cleaning undertaken by volunteers – interest on such awards – interest on subventions in form of charitable relief COSTS – apportionment of costs – wrongful conduct governed by Queensland law – proceedings brought in New South Wales – Civil Procedure Act 2005 (NSW), s 98 applied

COSTS – party/party – general rule that costs follow the event

CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – where notice declaring the offer free of conditions was given within the seven day period of the close of the offer – whether the notice was effective to free the offer of a condition – Corporations Act 2001 (Cth), s 650F CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – whether the condition related to the happening of an event or circumstance in s 652C(1) of the Corporations Act 2001 (Cth)

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Driving offences – Drug supply offence – Domestic violence offence – Where applicant was on parole at the time of the entirety of his offending – Where the applicant was also on bail at the time of the domestic violence offending – Where the sentencing judge took into account the applicant’s conditional liberty when assessing the objective seriousness of his offending – Error conceded by the Crown – Resentence – Objective seriousness of the offending – Aggravating factors – Limited subjective case – Absence of insight into the offending – Guarded prospects of rehabilitation – Limited remorse – No lesser sentence warranted and should have been passed – Leave to appeal granted – Appeal dismissed

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentences imposed upon co-offenders – Where the fact that all co-offenders were sentenced by the same judge presents a hurdle to an applicant for leave to appeal based on a complaint of unjustified disparity – Where there were distinguishing features between the respective subjective cases – No justifiable sense of grievance made out – Leave to appeal granted – Appeal dismissed PRACTICE AND PROCEDURE – Observations as to the practice of an offender tendering a statement to a sentencing judge in the absence of giving sworn evidence – Practice to be discouraged – Material of that nature deserving of little or no weight

CRIME – Appeals – appeal against sentence –alleged incompetence of counsel resulting in a miscarriage of justice – tender of ERISP which adversely affected the applicant’s case – whether sentencing judge erred in assessing the objective seriousness of the offences – whether applicant was punished for an offence of which he had not been convicted – whether sentence is manifestly excessive – leave to appeal is granted – appeal dismissed

COSTS – defendant lodged a caveat claiming interest of an estate in fee simple pursuant to an agreement with registered proprietor of the land – no evidence of any such agreement – no serious question to be tried – defendant capitulated and withdrew caveat before hearing – order that defendant pay costs on an indemnity basis

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers COSTS — Party/Party — Exceptions to general rule that costs follow the event — Special costs orders

COSTS – representative proceedings – proceedings dismissed – whether funder to be jointly and severally liable for defendant’s costs – whether defendant should have certain costs on an indemnity basis – whether plaintiff should have appreciated his case on loss and damage would fail following service of defendant’s expert report – Calderbank letter – whether plaintiff unreasonably failed to accept offer CIVIL PROCEDURE – representative proceedings – common questions – how questions should be answered

COSTS – plaintiff commenced proceedings to extend the operation of his caveat – caveat recorded on title of Lot in strata development of which the defendant was registered proprietor – parties settled caveat dispute but not the costs of the proceedings – plaintiff’s caveat failed to specify his interest in the Lot and was therefore fundamentally defective – continuation of caveat would also prejudice the defendant’s ability to obtain refinancing and therefore imperil completion of the development – such an outcome would prevent the defendant from conveying the Lot to the plaintiff – continued operation of caveat highly inconvenient in these circumstances – defendant offered to protect the plaintiff’s interest in the Lot in exchange for removal of the caveat – held that it was inevitable the caveat would have been ordered to be withdrawn – order made that the plaintiff pay the defendant’s costs

BUILDING AND CONSTRUCTION – residential building work – construction of duplex – whether proceedings brought out of time – whether building work carried out with due care and skill

CIVIL PROCEDURE – Application for substituted service – Whether document cannot practicably be served – Whether so futile as not to warrant attempt at service

CIVIL PROCEDURE – jurisdiction – declaration that court has no jurisdiction to decide claim – claim for death or injury – carriage by air – occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Supreme Court claim brought more than two years after relevant carriage by air – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether claim in the Supreme Court was extinguished by s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – Supreme Court proceedings pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where those proceedings are linked to incompetent Federal Court proceedings but operate independently of them – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operates to extinguish any claim for damages under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) if not brought within two years after an accident – whether order made under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) undermined the purpose of s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – order under s 11(2) not a discretionary extension of time to bring a proceeding otherwise out of time LIMITATION OF ACTIONS – operation of bar – action for compensation for death under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that the right to damages is extinguished if a party does not bring an action within two years of an aviation accident – characterisation of statutory bar – whether s 34 is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where the law recognises a distinction between the barring of a right of action and its extinguishment STATUTORY INTERPRETATION – contextual approach – context to be considered in the first order – context understood in a broad sense – including the existing state of the law, legislative purpose, legislative history and extrinsic materials STATUTORY INTERPRETATION – departure from literal meaning – where literal reading of “relevant order” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) does not conform to the legislative purpose – where purpose determined by reference to immediate context and extrinsic materials STATUTORY INTERPRETATION – legislative purpose – remedial legislation – where statute passed to remedy the effect of the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 – whether “want of jurisdiction” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) refers to the conferral of jurisdiction held to be invalid by the High Court TRAFFIC LAW AND TRANSPORT – aviation – carriage by air – death or personal injury – intra-state carriage by air occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) TRAFFIC LAW AND TRANSPORT – aviation – statutory liability – limitation of actions – characterisation of statutory bar – whether s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) WORDS AND PHRASES – “relevant order” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) WORDS AND PHRASES – “limitation law” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1)

CORPORATIONS – application for leave to proceed against companies in liquidation – s 471B Corporations Act – plaintiff sues for personal injury – proceedings commenced shortly before expiration of limitation period – one company already in liquidation – other company went into liquidation – companies insured – plaintiff only seeks to recover from insurance policy – leave sought nunc pro tunc – principles at [3]-[7] – leave granted.

SUCCESSION – executors and administrators – application for removal of executor – executor charged with criminal offences – executor has no financial interest in the estate – plaintiff has a direct pecuniary interest in the estate and has pursued a successful claim on behalf of the estate – executor removed and replaced as administrator by plaintiff JUDGMENTS AND ORDERS – form of final orders to give effect to principal judgment – interest – defendant found liable to repay six payments received by deceased prior to his death – whether statutory interest should run from the date of each payment or from the date the judgment is entered COSTS – party/party – scope of costs order where plaintiff only partially successful – whether part of the costs should be awarded on an indemnity basis due to an offer of compromise made prior to the trial

COSTS – general rule that costs follow the event – where the liquidator instigated the proceedings and was unsuccessful – costs order against the liquidator personally

CRIMINAL PROCEDURE — application to exclude evidence – hearsay evidence of statements made by a Crown witness regarding his involvement in the alleged murder – where witness was charged as an accessory before the fact but charges were no-billed – whether second-hand hearsay or implied admissions – held, statements are first-hand hearsay and not admissions – whether admissions made with authority in furtherance of common purpose – held, common purpose ended upon death of deceased – narrative statements made after the event not made in furtherance of common purpose – whether fresh in the witness’ memory – statements made up to seven years after the event – held to be fresh in the memory due to nature of events – whether admissible as credibility evidence in the alternative – whether evidence should be excluded under s 137 – held, probative value outweighs unfair prejudice – s 165 warning appropriate due to hearsay nature

CRIMINAL PROCEDURE — Suppression and non-publication orders – whether necessary to prevent prejudice to proper administration of justice – whether necessary to protect the safety of the witness – whether orders in public interest – where witness is “akin” to rollover witness – where witness has provided assistance in other matters – orders granted

COSTS — Party/Party — Application for a gross sum costs order — Principles for fixing costs in a gross sum — Order made with reduction

AGENCY – ostensible authority – man used company email address and corporate signature – man closely involved with company’s sole director in finalising orders of building materials – whether man had ostensible authority to bind company CONTRACT – company purchased building materials from South Australian company – sole director guaranteed company’s obligations to supplier – guarantee expressed to be with Queensland company and “each related body corporate that supplies goods or services to the Customer” – South Australian supplier was related to Queensland company and had similar name – whether South Australian company could enforce guarantee

CRIME – Appeals – appeal against conviction –whether verdicts unreasonable – trial for offences of unauthorised possession of firearms – where sole issue at trial was whether applicant was in possession of firearms – circumstantial Crown case – whether Crown excluded reasonable possibility of secondary transfer of DNA – expert evidence as to possible contamination of DNA evidence

CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – form and content of pleading – whether the proposed amended statement of claim properly pleads the causes of actions alleged – whether requisite detail and specificity of pleadings – leave refused

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Where parties advanced competing interpretations as to the operation of clauses in the subcontract between them.

CIVIL PROCEDURE – settlement – no question of principle