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Deed of release – proper construction

It is common ground that the principles of construction of a Deed of Release flow from the decision of the High Court in Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 at 123 ff.

(a) [F]irst, the common law requires general words in a release to be construed by reference to the subject-matter of the particular dispute(s) which the recitals said the parties had resolved on the terms of the deed. In this way, ‘the general words of a release should be restrained by the particular occasion’. Regard will be had to the background facts known to the parties, to the nature of the claims made (and proceedings commenced) prior to the release being executed, and the particular objective intent of the parties by whom the release is executed. The intention of the parties ascertained from this process will control the operation of general words in a release. The general words should not be permitted to subvert what the parties should be taken to have intended when the release is properly construed in its context;

(b) secondly, Equity operates to achieve an analogous result. An alleged releasor enjoys an equity ‘to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances.’ The ‘state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor’ will be relevant matters in this context. Equity therefore ‘permits an investigation of the circumstances, including consideration of the actual intentions of the parties, in order to determine whether enforcement of the general words of a release would be against conscience’.”

Also relevant are the observations of Pembroke J in The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [2012] NSWSC 322 at [22] and [30] as follows:

“The principle for which Grant v John Grant & Sons (above) stands is sometimes described more widely than is justified. It is not, and never has been, authority for the proposition that the general words of a release can only ever apply to matters then known to the parties.

…

…the joint judgment in Grant v John Grant & Sons (above) also recognised that there will always be cases where, properly characterised, the parties should be taken to have intended that the general words of a release should operate to encompass all conceivable further disputes, whether disclosed or not and whether within the knowledge of a party or both parties, or outside of it… In such a case there is no room for the application of equitable principle. The equitable principle only has a role to play when it appears from the terms or the context or other admissible evidence, that the enforcement of the legal right would, by a literal application of the general words of a release, be against conscience. It would not be against conscience if the court is satisfied that the parties intended ‘upon a particular and solemn composition for peace’ to release uncertain demands and presently unknown claims…”. [Citations omitted]

Pembroke J’s observations were endorsed by the Victoria Court of Appeal in Doggett v Commonwealth Bank of Australia [2015] VSCA 351 at [63] per Whelan JA.

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Meaning of “relating to”

In Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, Taylor J, at 620 said of that phrase:

“.. the expression … is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used.”

His Honour went on to say, at 620, that “relating to” in the context there considered was not the ‘equivalent of “referring to”‘; the relationship between two different things must be based upon some more substantial ground.
In Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129 Fitzgerald JA said, at [56]:

“The width of the phrase ‘relating to’ is undoubted. Lord Macnaghten stated that ‘[t]here is no expression more general or far-reaching’: Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629; Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 329-330, although the addition of the words ‘or depending on’ was presumably intended to give the combined phrase ‘relating to or depending on’ a wider operation than ‘relating to’. The difficulties of construction presented by such language have also been noted. Taylor J observed that ‘… the expression ‘relating to’ … is … vague and indefinite …’ and ‘… leaves unspecified the plane upon which the relationship is [to be] sought and identified’: Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be ‘direct’ or ‘direct and immediate’: see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) [1977] FCA 6; (1977) 14 ALR 457 at 460, 462; 30 FLR 477 at 480, 483; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 364 and 370; Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285; see also Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474. Overall, the position judicially adopted has been that the operation of the phrase ‘relating to’ is determined by the statutory context and purpose: Butler v Johnston [1984] FCA 118; (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491.”

In Black’s Law Dictionary (5th ed.), the meaning of “relates to” includes “to have bearing or concern”, “to pertain” and “to bring into association with or connection”.

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The duty of principals to independent contractors

(Source: Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox [2009] HCA 35;
2 September 2009)

It is plain that the common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16).  However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.

The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd ((1986) 160 CLR 16 at 47-48 ):

“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity.  The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee.  The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury.  It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.  The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury.  But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.  If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.

It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force.

Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers.  An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken.

This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed.

While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee.

This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee (Kondis v State Transport Authority (1984) 154 CLR 672 at 686-687 per Mason J; [1984] HCA 61; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13.).  In this case, if the pipe had struck the forklift driver, an employee of Leighton, there may be little doubt as to Leighton’s liability in respect of the injury to him.

The distinction that the common law draws between independent contractors and employees has been the subject of criticism (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 366-367 per McHugh J; [1997] HCA 39. See also the discussion in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 36 [32] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, 53-58 [84]-[93] per McHugh J; [2001] HCA 44.).

However, as five Justices of this Court observed in Sweeney v Boylan Nominees Pty Ltd ((2006) 226 CLR 161; [2006] HCA 19.), whatever the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out (Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 173 [33] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.).

In particular, and as was emphasised in Sweeney ( (2006) 226 CLR 161 at 172 [29].), the authorities in the HighCourt do not support any principle that “A is vicariously liable for the conduct of B if B ‘represents’ A (in the sense of B acting for the benefit or advantage of A)”.

Earlier, in Scott v Davis ((2000) 204 CLR 333 at 342 [18], 422-424 [268]-[273], 440 [311], 459-460 [357]-[358]; [2000] HCA 52.) the Court refused to recognise an “agent” in a non-technical sense as an actor attracting principles of vicarious liability.  

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Alienation of real estate by gift

(Source: Isin v Ozen [2016] NSWSC 1480; [157]-[165] per Hallen J)

Alienation of real estate will be effective, in equity, by gift, if the gift is “complete”: Corin v Patton (1990) 169 CLR 540; [1990] HCA 12, at 558, 563 – 570, 582 – 583; Costin v Costin (1997) 7 BPR 15,167; [1997] NSW ConvR 55-811; Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 8 BPR 15,565.

To effect the gift, the donor must do everything that, according to the nature of the property, is necessary to be done in order to transfer the property and render the gift binding on the donor: Milroy v Lord (1862) 45 ER 1185; (1862) 4 De GF & J 264.

What that means, in the context of Torrens system land, was the subject of debate until, in Corin v Patton, Mason CJ and McHugh J held, at 559, that:

“… the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. ‘Necessary’ used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.”

Deane J, at 582, dealt with the way in which it can be determined that the stage had been reached when a gift of real property under an unregistered Transfer is complete and effective in equity:

“That test is a twofold one. It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title. In that regard, it is not a matter of equity ignoring the provisions of s 41 of the Act and treating the unregistered transfer as effective of itself to assign the beneficial interest in the land. It is simply that equity, acting upon the ‘fact or circumstance’ that the donor has placed the vesting of the legal title within the control of the donee and beyond the donor’s recall or intervention, looks at the substantial effect of what had been done and regards the gift as complete …”

It is, thus, now clear that for land held under the Torrens system, which is said to be the subject of the gift, the donee is unable to secure the registration of her or his title in her, or his, own name, without a transfer executed by the donors. The execution and delivery of the transfer is, therefore, to be regarded as “necessary” to be done by the donor.

In Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555; [1937] HCA 29, Dixon J (with whom Rich J agreed), wrote at 602-603:

“That delivery of the transfer to the donee or the donee’s agents is a condition which must be fulfilled before such a right will arise, appears to me to be clear. It is only by the control or possession of the instrument that the transferee could effect registration without any liability to interference or restraint on the part of the transferor. Further, I think that the donee must obtain property in the piece of paper itself and property in the paper could pass only by delivery (Cochrane v Moore (1890) 25 QBD 57). If property in the transfer remained in the transferor, his power of recalling it must also remain. For he would be entitled to possession of the paper, he could refuse to present it for registration, and he could destroy it. But, if by delivery to the donee or someone as bailee for her, the transferor has given her property in the instrument itself, then unless some further condition is expressly or impliedly prescribed by the statute, it would appear that the instrument, assuming it to be registrable, may be registered by the transferee independently altogether of the donor, and in spite of any objection on his part.”

The judgment of McTiernan J, at 609, was to like effect.

However, the delivery of the Transfer, on its own, is not enough. In Corin v Patton, Mason CJ and McHugh J continued, at 560-561:

“Whether or not it is correct to say that the production of a certificate of title is ‘necessary’ to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title … That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted.

In the present case Mrs Patton gave no authority for the mortgagee bank to hand the certificate of title to Mr Corin for the purposes of registration …

Accordingly, the transactions failed to pass the equitable property in the land to Mr Corin, and it is unnecessary to consider under whose control the instrument of transfer was after execution. Further, because the gift was incomplete, Mrs Patton could have recalled the transfer at any time. But it is not strictly relevant to ask whether or not Mrs Patton could have recalled the gift; that is not a criterion but rather a result of the efficacy or otherwise of the gift.”

Deane J, after the passage quoted above, continued, at 583:

“In the present case, the fact that Mrs Patton had taken no step to enable Mr Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr Corin’s control … The plain fact remains however, that registration of the transfer and vesting of the legal title could not be said to be within Mr Corin’s control for so long as he was not entitled to procure production of the document of title. In any event, it is apparent that it remained in Mrs Patton’s power to intervene to prevent the vesting of any legal interest in him.”

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Witness credibility (deceased estates)

(Source: Isin v Ozen [2016] NSWSC 1480)

It is plain that the credibility of witness evidence is critical (lets say determinative) in cases where conversations are alleged with a deceased (for want of a better word!).

There may or sometimes will usually be contemporaneous documents including where authenticity of such documents is not in issue.

What follows is some relevant considerations to keep in mind in how these conversations are assessed and effect creditibility.

Black J has recently repeated in Coyte v Norman; Centre Capital (Newcastle) Pty Ltd v B Scorer [2016] NSWSC 1242 at [9]:

“…the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness’s motives and the overall probabilities”.

Where conversations are alleged with a party who is deceased, it was important to remember the principle expressed by Bryson AJ in Zahra v Francica [2009] NSWSC 1206 at [1] – [2]:

“In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

“… in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”

A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson ,see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA’s par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities.”

Further, Bryson J had said in Day v Couch [2000] NSWSC 230 at [9]:

“Where a claim is made against the estate of a deceased person and knowledge of the facts on which the claim is based is no longer available to the legal personal representative of the deceased, judicial experience requires a careful approach to fact-finding, although there are no special rules relating to the burden or to the standard of proof: “[I]n cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue”: Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 at 548-549 per Isaacs J. In Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, which related to mutual wills, there were also expressions of caution: see per Latham CJ at 674 and Dixon J at 681-682. See too Grundel v The Registrar General(1990) BPR 97-340 at11,219 per McLelland J. These observations do not establish any legal standard of proof differing from the ordinary civil standard relating to the balance of probabilities, and there is no legal requirement for corroborative evidence.”

As was stated by Hallen J in Isin v Ozen [2016] NSWSC 1480 these principles need to be considered where conversations involve a deceased.

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Marketing practices in initial public offerings (IPO) of securities Report 494

From Report 494 Marketing practices in initial public offerings of securities September 2016.

The report outlines the key findings from reviews we conducted by ASIC to examine how initial public offerings (IPOs) are marketed to retail investors. ASIC particularly considered the extent to which social media has become important for marketing. The report identifies some risks and recommendations that may be useful for firms and issuers to consider when developing an IPO marketing strategy.

Of particular importance was the area of concern identified in the report. They are summarised below.

Oversight weakness: Telephone communications

Firms should apply tighter controls over the marketing and selling of IPOs by telephone, such as:

  1. providing employees with standardised telephone scripts;
  2. recording and routinely reviewing telephone calls with clients;
  3. applying stricter requirements on documenting telephone calls with clients; and
  4. compliance staff routinely sitting at the sales desk when telephone calls are made
    to clients.

Oversight weakness: Social media posts

Firms should apply controls on social media posts similar to those in place for other
marketing, such as:

  1. educating employees on using social media for marketing IPOs in compliance
    with the Corporations Act; and
  2. ensuring that social media posts are reviewed before being posted.

Misleading communication: Marketing an IPO other than on its merits

Firms should ensure that marketing:

  1. is based on the merits of the IPO itself; and
  2. is not based primarily on asking investors to assist with meeting spread
    requirements, or on comparisons with other successful IPOs conducted by
    the firm.

Misleading communication: Prominence of forecasts

Firms and issuers should:

  1. take care when using forecasts to market IPOs, and not give undue weight to
    forecasts in the marketing messages; and
  2. if forecasts are used, ensure the assumptions and risks of the forecasts are also
    included in the marketing material.

Misleading communication: Marketing of emerging market issuers

Firms and issuers targeting investors from a non-English speaking background
should:

  1. ensure that communications are clear and accurate (including any statements
    about the regulatory framework in Australia and about ASIC’s role); and
  2. if marketing material is being produced in a language other than English, ensure
    these materials are fully understood by the firm or issuer, including getting
    translations before publication (if necessary).

Failure to monitor: Failing to update multimedia marketing including videos

Firms and issuers should check that:

  1. the content of videos used to market IPOs is accurate and consistent with
    disclosure in the prospectus; and
  2. the content of any videos remains correct after any changes or updates are made
    to a prospectus.

Inadequate controls on access to information: Access to institutional roadshows

Firms should apply tighter controls and educate their employees to limit access to
institutional roadshows to AFS licensees and their representatives.

Inadequate controls on access to information: Potential access to pathfinder prospectus

Firms should:

  1. apply tighter controls and educate their employees to limit access to restricted
    material (including pathfinder prospectuses) to sophisticated or professional
    investors;
  2. educate their employees about the need to limit circulation of restricted material
    (including pathfinder prospectuses) before the prospectus is lodged with ASIC;
    and
  3. ensure that restricted material (including pathfinder prospectuses) or passwords
    to access restricted material are not distributed by email.

Inadequate controls on access to information: Disseminating information
before a prospectus is lodged

Firms and issuers should not provide materials about an upcoming offer to the
media. If marketing is given to persons before a prospectus is lodged with ASIC, on the
basis of those persons being a sophisticated or professional investor, firms and
issuers should ensure that the recipient actually falls within this category.

Before providing the information, firms and issuers should undertake additional
verification (e.g. obtain an accountant’s certificate) to ensure that the person is a
sophisticated or professional investor. Self-certification by a person is not sufficient.

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Occupiers duty of care

See McKenzie v Day (No 2) [2016] NSWDC 236 where Neilson DCJ provides a salient summary of an occupiers duty of care.

The most recent statement of the applicable law is contained in the judgment of McColl JA, with whom Macfarlane JA and Beech-Jones J concurred, in Schultz v McCormack [2015] NSWCA 330, where her Honour said this:

“73 As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs.

74 The scope of the duty occupiers owe entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus, it is emphasised that the occupier’s obligation is one of reasonable care, not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”. It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case.

75 Just as stairs are inherently but obviously dangerous and the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety,[68] so too are wet surfaces, or surfaces which may be wet by reason, among other matters, of rainfall. Thus, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent.[69] Further, it does not follow from the fact that the porch was wet, that there was some precaution that the respondents did not take that a reasonable person in their position would have taken.”[Endnotes omitted]

  1. However, it is worthwhile to consider some earlier cases. Perhaps the appropriate starting point is the decision of the Court of Appeal in Stannus v Graham (1994) Aust Tort Reports [81-293]. In that case, the plaintiff and her husband were renting premises owned by the defendant as a holiday flat. The plaintiff, who had fallen when she trod on a step on the premises, sued to recover damages for personal injuries. The trial judge found for the plaintiff because the top step had moved and because the defendant had failed to exercise reasonable care for the safety of the plaintiff and persons like her and that negligence had caused the fall. The trial judge found that a close inspection before the accident would have revealed movement in the top step, and the installation of a handrail would have been an easy matter and would have prevented the plaintiff’s fall. The appeal was allowed. The principal judgment was given by Handley JA, with whom Priestley and Meagher JJA concurred.
  2. Commencing at 61, 564, his Honour said this:

“This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.”

His Honour then referred to Aslanidis v Atsidakos and continued thus:

“Subsequently, in Short v Barrett (5 October 1990, unreported), Meagher JA held that householders do not act unreasonably in taking their house as they find it and assuming it to be perfectly safe unless and until they either know it is unsafe, ‘or else receive a warning that it may be unsafe.’ The other members of the Court, Clarke JA and myself, agreed. The High Court granted special leave to appeal, but the appeal did not proceed … Mr Black did not refer us to any authority to the contrary of these decisions and, in particular, did not refer us to any case which establishes that an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects.

Indeed, the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna […] but was not referred to in that case and I see no reason why it should be treated as impliedly overruled.

In that case, a paying guest in the defendant’s boarding house died from carbon monoxide poisoning due to a defective gas bath heater. The plaintiff relied upon the duty owed to persons who enter premises for reward to the occupier. This duty is not less onerous than the duty established by Australian Safeway Stores v Zaluzna. The Court held that the contract contained an implied warranty that the premises are as safe for their intended purpose as reasonable care and skill on the part of anyone can make them, although the occupier is not responsible for defects which could not have been discovered by reasonable care or skill on the part of any person connected with the construction, operation, or maintenance of the premises.”

His Honour then went on to quote further from Watson v George. His Honour then went on to say this:

“A concrete step such as this is more commonplace and less dangerous than a defective gas bath heater. It was regularly walked on by both caretaker, tenants, and others. It was not even established that a close inspection by an expert the day before this accident would have revealed that it was likely to move in the near future. Again, in the words of Fullagar J inWatson v George at 425:

‘… no other negligence being established, the case resolved itself into a question of whether the defendant’s (caretaker) had been negligent in that he had not observed or remedied the defect …’

In my judgment, this Court cannot hold that the defendant by her caretaker had been negligent in failing to observe and remedy any defect in its step prior to the accident.

The remaining ground on which the liability of the defendant was supported was her failure to install a handrail next to the steps. Since, in my view, there was no negligence in failing to observe and remedy any defect in the step, it cannot, in the circumstances of this case, have been negligent for the defendant and her caretaker to fail to install a handrail. The steps were not otherwise dangerous and there were but four of them. Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public avoid by taking care for their own safety. There is a step between kerb and gutter in city street and extensive steps outside public buildings in Sydney, such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House, and the Opera House.”

His Honour then went on at some length to point out that handrails were not to be found within reach of every person using a set of steps.

  1. The important point to note, of course, is that persons using steps may misjudge their footing and slip and trip, but that is an ordinary, everyday risk. The “Joint Law Courts” subsequently became a defendant in a fall on steps. The decision is Wilkinson v Law Courts Ltd [2001] NSWCA 196. In that case, the plaintiff, on 30 May 1995, fell down the steps outside the Joint Law Courts Building in Sydney. He sustained a broken ankle. At the time, the plaintiff was 34 years of age and was able bodied with full sight. At the time, there was no handrail, edge-delineation strips, nor warning signs present on or near the steps. The plaintiff was unsuccessful in this Court and his appeal to the Court of Appeal was dismissed by Heydon JA (as he then was), with Meagher JA and Rolfe AJA concurring. At [32], Heydon JA said this:

“In my opinion, the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact:

‘Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public by taking care for their own safety:’

Stannus v Graham … There are many places in Sydney where steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James’ Church, and St Mary’s Cathedral.”

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Breach of duty of care – motor vehicle accidents – you decide?

You decide ?Mr Kidd gave evidence that he was driving a yellow bus, proceeding south-easterly on Talavera Road when he faced a red light at the Herring Road intersection and came to a stop. He had been a professional bus driver for six years and was well familiar with the intersection. He said the green arrow allowed two buses through on each phase. He was the first vehicle in the right-hand turn bus lane at the lights. He waited until he received a green arrow to turn right, and when that appeared he proceeded into the intersection. When he was about 15 metres into the intersection, he first noticed Mrs Aziz’s car proceeding in the opposite direction towards the intersection about 100 metres away. As he continued he became concerned that she might not stop, contrary to the red light he believed she must have been facing, and shortly before she entered the intersection, he proceeded to stop the bus when its front was about a third of the width of the lane or about a metre across the continuation of Mrs Aziz’s lane. He said she had room to drive around the bus. Mrs Aziz did not stop but collided with the front of the bus on the driver’s side. When she exited her car, she swore at and abused Mr Kidd, maintaining she had a green light.

Mrs Aziz agrees with Mr Kidd’s account of her conduct after the collision. She gave evidence that she proceeded into the intersection because she faced a green light and had right of way. She did not see the bus until she was in the intersection and could give no evidence of other vehicles. She made no attempt to drive around the bus.

Both Mr Kidd and Mrs Aziz were faced with two witnesses whose recollections differed from theirs. Esme Wilson and Loan Yen Banh were traffic officers located on the north-west side of the intersection not far from and to the north of where Mr Kidd allegedly stopped his bus at the red light. Both believed that Mr Kidd had entered the intersection against a red light. Ms Wilson was an experienced traffic controller who was controlling pedestrian traffic across Talavera Road on the north-western side. She was being assisted by Ms Banh.

Did the driver in the circumstances breach his duty of care?

In Aziz v Kidd [2016] NSWDC 254 Taylor DCJ made the following observations about breach of drivers duty of care.

  1. As was stated in Marien v Gardiner [2013] NSWCA 396 at [34]-[37], quoted in Warth v Lafsky [2014] NSWCA 94 at [55]:

“[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 – 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s5B(1).

[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], ‘reasonable attention to all that is happening on and near the roadway that may present a source of danger’. That in turn requires ‘simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle’s path’.

[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the ‘limits of visibility and control’ so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 andMorris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”

  1. Certainly, under s 5B of the Civil Liability Act 2002, Mr Kidd was required to take reasonable care for the safety of other road users:Marien v Gardiner at [33]. He was required to “exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections” (Turkmani at [28], Warth at [56]). Here, Mr Kidd did that, observing Ms Aziz’s vehicle 100 metres away, observing that she seemed to be travelling fast, growing increasingly concerned that she might not stop at the intersection.
  2. The real question is whether a reasonable person would have taken precautions other than or in addition to those taken by Mr Kidd: see s 5B(1) of the Civil Liability Act 2002. In answering this question, one must bear in mind the circumstance that Mr Kidd is facing a green arrow and has the general right of way that is occasioned by that green light. It is far less significant, in my view, that Mr Kidd was turning across a lane of traffic, unlike in a situation where a driver is turning across a lane of traffic at an uncontrolled intersection: see Tran v Government Insurance Office (NSW) (1994) 20 MVR 182, Ilsley v Boots [1970] 2 NSWR 551, David v Hartman [1953] SASR 109. As the intersection in Tran was not controlled by traffic lights, the turning vehicle in that case had no general right of way over oncoming traffic. Here, Mr Kidd was not “disturbing the flow of traffic” (Tran at 183), as was the driver in Tran; rather, it was the traffic lights that had that effect on the flow of traffic.
  3. Some guidance is provided, in my view, in the decision of Tromp v Liddle (1941) 41 SR(NSW) 108. The headnote relevantly notes:

“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop; and he may, unless he gets some indication to the contrary, reasonably assume that the driver on his left is advancing to serve the normal purpose of seeing whether cars are approaching on the right.”

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Truth and Credibility of witnesses

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 is a medical negligence case which involved an alleged failure to diagnose a melanoma on the sole of the foot of the plaintiff.

In Coote Davies J had to weigh up the competing evidence of the Plaintiff and the deceased on the one hand and the four doctors on the other hand about the state or condition of a lesion – whether the lesion had appearance of plantar wart or melanoma.

His Honour made the following salient and considered observations.

  1. In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431):

Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

  1. In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said:

[15]   An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

 

[16]   While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

 

[17]   Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

 

[18]   Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

 

[19]   The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

 

[20]   Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

 

[21]   It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

 

[22]   In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

 

  1. In Campbell v Campbell [2015] NSWSC 784 Sackar J said:

[73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:

 

…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

 

[74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]:

 

[140]   Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions.

 

[141 In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted):

 

[30]   It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The “Palitana”):

 

“… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

 

[31]   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility…

 

[142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, and the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).

 

[75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.” This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56].

 

[76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said:

 

[71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of theFair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] – [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

 

[72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

 

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

 

[73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].

 

[74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at[157].

 

[75]   …

 

[76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 – 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

 

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

 

[77]   Finally, I should mention an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

 

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

Ultimately, His Honour formed the view that if the melanoma was present it was not discernible by the exercise of reasonable care on the part of the doctor.

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Class Action – payment to the class rep ?

The scheme provides for payment to the class representative. For example, in Johnston v Endeavour Energy [2016] NSWSC 1132 it amounted to $25,000. This payment is intended to compensate the representative for their time, inconvenience and burden associated with taking on and discharging the obligations of lead plaintiff in attending to matters on behalf of group members.

The appropriateness of compensating class representatives was established in Darwalla Milling Co Pty Ltd v F Hoffman-La Roche & Ors Ltd (No 2) [2006] FCA 1388; 236 ALR 322 where Jessup J recognised that he was dealing with a then novel request for payment outside the normal categories allowed in litigation. His Honour held that it was:

“76 … prima facie reasonable that particular parties who have sacrificed valuable time and incurred expenses in the interests of prosecuting [a] proceeding on behalf of group members as a whole should be able to look to the corpus of the settlement sum for some degree of compensation and reimbursement. More importantly, perhaps, I would hold that group members who have benefited from the proceeding could not be heard to deny the reasonableness of such a proposition.”

The circumstances of the case dicate the quantum of payment. in Johnston v Endeavour Energy [2016] NSWSC 1132 there were 54 personal injury (PI) claims!

You be the judge. Was $25,000 fair. I suspect so.