Hawking & Santana
[2024] FedCFamC1A 134
•9 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hawking & Santana [2024] FedCFamC1A 134
Appeal from: Santana and Hawking [2024] FCWA 63 Appeal number: NAA 105 of 2024 File number: PTW 35 of 2019 Judgment of: MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ Date of judgment: 9 August 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from final property orders – Challenges to weight in the assessment of contributions – Where the appellant submits the primary judge erred in not considering the appellant’s medical condition – Where the appellant did not adduce sufficient evidence about the medical condition – Where the appellant complains about the primary judge relying on both parties’ financial statements filed for the trial – Where the appellant submits the respondent’s de facto relationship was not considered – No appellable error identified – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 76 Date of hearing: 31 July 2024 Place: Heard in Perth, delivered in Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 105 of 2024
PTW 35 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HAWKING
Appellant
AND: MR SANTANA
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 2 May 2024 is dismissed.
2.The Application in an Appeal filed 25 July 2024 is dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawking & Santana has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ:
On 4 April 2024, the primary judge handed down reasons and orders in relation to the parties’ property and parenting dispute. The appellant takes issue with the property orders, in particular, the division of property being adjusted 70 per cent to the appellant and 30 per cent to the respondent. That meant the appellant was to receive a property at Suburb B, Western Australia, and pay the respondent $367,947. If she failed to make the payment, the property was to be sold.
Accordingly, the appellant filed a Notice of Appeal on 2 May 2024 setting out 13 grounds of appeal. The appellant sought orders before this Court that the cash amount be “decreased by 100% of $367,947 to the sum of $0...”.
The trial took place over eight days in April 2023, October 2023 and 24 January 2024. The first five days (in April 2023) included some interim applications brought by the appellant and respondent; all were dismissed. These interim applications included two from the respondent applying for the matter to proceed undefended on account of the appellant’s apparent failures to comply with orders and her tardy attendance at court. The appellant also brought interim applications to adjourn the case and sought an extension of time to issue New Zealand subpoenas by Trans-Tasman service.
Ultimately, the appellant cross-examined the respondent for the better part of three and a half days in the April component of the trial.
The appellant’s case was to occupy three days when the matter resumed in October 2023. However, on the seventh day of the trial, when the appellant was being cross-examined, she failed to attend court and the matter proceeded on an undefended basis. This was the respondent’s third application for an undefended hearing, given the appellant’s previously demonstrated lax attitude to arriving at court on time and non-compliance with orders, especially for specific items of disclosure.
As appropriate, the primary judge allowed the appellant to make submissions, with both parties doing so in January 2024.
At the end of the proceedings, the respondent sought a 62 per cent adjustment in the appellant’s favour. It is hard to discern what the appellant sought as a percentage, but it is clear she wanted to retain the Suburb B property in which she resided and there be no cash payment to the respondent.
BACKGROUND
The appellant is Ms Hawking born in August 1977 (“the appellant”). The respondent, Mr Santana, was born in October 1978 (“the respondent”).
The appellant is a tertiary student, but during the course of the trial indicated she did not intend on completing the degree. She had enjoyed a successful career in another field in well known organisations and assisted the respondent in securing employment in this industry. The respondent is a professional.
The parties commenced cohabitation in February 2007 in Sydney. In December 2007, the appellant bought a property at Suburb C, New South Wales, with considerable financial assistance from family. The parties completed the finance for the purchase by borrowing funds secured against the property in joint names.
They were married in January 2008.
Between early 2011 and 2014, the parties lived in Region D, where their child, X, (“the child”) was born in March 2013. The Suburb C property was rented during this time. When they returned to Australia they resumed residence in Sydney.
The appellant alleged that the respondent seriously assaulted her in February 2015, leaving her with a medical condition. She ceased working outside the home for remuneration in July 2015 and took up full-time care of the child.
The parties separated in March or April 2016 and were divorced in August 2019.
In April 2016, the parties sold the former matrimonial home in Suburb C and the appellant and child relocated to Perth in July 2016. Since then, the appellant has had the primary responsibility for meeting the child’s many needs.
In mid-2016, the appellant purchased a property at Suburb B, Western Australia with some of the proceeds from the sale of the Suburb C property.
The respondent relocated from Sydney to Perth in December 2016, then relocated again to City E, New Zealand in May 2021. He remains living there with his partner.
The respondent filed an Initiating Application on 18 December 2018 in relation to property and parenting.
During the trial, the respondent abandoned his pursuit of parenting orders and that aspect of the proceedings continued on an undefended basis. After the appellant’s failure to appear during her cross examination on day seven of trial, her various other late court attendances and failures to comply with orders for specific disclosure, the property aspect of the dispute was also heard on an undefended basis.
Both parties delivered closing addresses on 24 January 2024. Reasons and orders were delivered by the primary judge on 4 April 2024.
THE APPEAL
Deemed abandonment of the appeal and re-instatement
On 5 July 2024, the appeal was deemed abandoned because the appellant failed to file the Appeal Book on time.
The appellant successfully applied for the appeal to be re-instated, but on the basis she file the Appeal Book and Transcript by 4.00 pm on Monday 15 July 2024. She complied.
The Application in an Appeal
On 26 July 2024, the appellant filed a further Application in an Appeal, seeking, in summary, an extension of time to file a “Contested Appeal Book” by Monday 29 July 2024. The appellant had not referred to that document in her Summary of Argument.
The application was listed to the morning of the appeal. The appellant abandoned the application and it will be dismissed.
The grounds of the appeal
The appellant’s grounds of appeal can be conveniently grouped on thematic bases:
·Evidence, or the lack thereof, relating to the appellant’s medical condition (Grounds 1–3);
·Weight challenges to the assessments of contributions (Grounds 4–5 and 8–9);
·Complaints about Financial Statements (Grounds 6–7);
·“Future contributions” with respect to parenting (Grounds 10–11);
·The respondent’s de facto relationship (Ground 12); and
·The property adjustment order of 70 per cent to the appellant and 30 per cent to the respondent (Ground 13).
In her oral submissions, the appellant traversed a range of grievances, many of which were an effort to re-run her arguments at first instance. She also complained about matters falling outside of the grounds of appeal even on a generous construction of the complaints and grounds. We will not traverse those matters which fall outside of the grounds of appeal.
Importantly, the appellant makes no challenge to the constitution of the property pool as found by the primary judge, nor the primary judge’s conclusion that he could not find the respondent committed a serious assault on the appellant in February 2015. The alleged assault was central to the appellant’s case at trial.
The grounds of appeal largely arise from the exercise of the primary judge’s discretion. Principles arising from such asserted appellable errors are well settled (House v The King (1936) 55 CLR 499 at 504–505):
…It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
(Emphasis added)
Error is not demonstrated by persuading an appellate court that it would have made a different decision had it heard the matter; reasonable minds can reasonably differ. This sets a heavy burden on the appellant in seeking to establish that a discretionary decision is unreasonable or plainly wrong.
We now turn to the grounds of appeal.
Evidence, or the lack thereof, relating to the appellant’s medical condition (Grounds 1–3)
The gravamen of the appellant’s complaints in these grounds are in two interrelated parts: first, the primary judge ought have factored the wife’s medical condition into a consideration of s 75(2)(a) of the Family Law Act 1975 (Cth) (“the Act”); and second, the primary judge ought have received into evidence documents attached by the appellant to a Notice to Admit Facts and Authenticity of Documents filed 29 November 2022 (“Notice to Admit”). The appellant at that time was legally represented.
The currency of the Court is evidence. The essential problem for the appellant in these grounds is that she furnished the Court with little, if any. At trial, the appellant put on no affidavits from any medical professional about her medical conditions nor anything from a relevant expert about any consequent incapacity for remunerated employment outside the home. She also put on no evidence from Supreme Court proceedings concerning her mother’s will, which apparently touched on her future needs. A call for documents relating to the estate dispute was foreshadowed at least from day two of the trial on 18 April 2023 (Transcript 18 April 2023, p.84 lines 20–25).
The appellant was made acutely aware of the paucity of her evidence, in particular medical evidence, at the start of the trial in April 2023. For example, on the first day of trial on 17 April 2023 this exchange occurred (the effect of which was repeated several times later):
HIS HONOUR: Just pause right there. You’ve not filed a shred of medical evidence for trial in relation to that, have you?
[APPELLANT]: Yes, I have. I have the notice to admit, and I have it here, your Honour, if you like.
HIS HONOUR: That’s not evidence. That’s not evidence, ma’am. So I will deal with that later but, as I read your papers for the judicial officer, you’re relying on a trial affidavit that you filed last month. Correct?
...
[APPELLANT]: Yes. That’s correct, your Honour. Yes.
HIS HONOUR: And you haven’t filed any affidavits from any medical practitioners or specialists, have you?
[APPELLANT]: Your Honour, the notice to admit facts that [F Lawyers] - - -
HIS HONOUR: No, no. Just please listen to my question. You have not filed any affidavits from any medical practitioners or specialists, have you?
[APPELLANT]: Four exhibits and they are actually reports from medical practitioners have been provided to the court and been filed. And - - -
HIS HONOUR: What’s the answer to my question. You haven’t filed an affidavit from any of these people, have you?
[APPELLANT]: Not that I was aware of. I was aware that this was the document I was advised by my previous practitioners - - -
HIS HONOUR: Well, I don’t want to know what you’ve been advised. But I just want to be very clear so I’m not missing anything in your papers. There’s no affidavits from any treating practitioners, is there, or specialists.
[APPELLANT]: No. There is a notice to - - -
HIS HONOUR: No.
[APPELLANT]: - - - admit facts …
(Transcript 17 April 2023, p.21 line 1 to p.22 line 8)
In this April tranche of the hearing, the respondent’s case was presented and tested. The appellant’s case did not commence until October 2023, but she did nothing in the interim to file affidavits to deal with the evidential failings in her case.
In short, it was for the appellant to adduce sufficient evidence to establish her contentions, and she did not. After a call from the respondent was answered, the primary judge did have a document from the appellant’s General Practitioner, Dr G, who had completed a H University proforma “Treating Health Practitioner’s Report” to assist in securing support for the appellant’s University studies. The doctor ticked boxes for a medical condition and ADHD and added the “expected duration of disability” was “permanent”. It says nothing about causation. The appellant signed the document. It became Exhibit 3.
The proforma report was produced for the appellant’s use in her studies and included recommendations that she have more time for assignments.
The primary judge accepted the diagnoses, but added, “[t]he causes of the [medical condition] are not established by the admissible evidence” (at [167]). The relevance of this is that it was the appellant’s case the respondent had assaulted her in February 2015, and this was the cause of her medical condition. The respondent denied the assault. Other than the appellant’s say so, no documents came into evidence which supported the asserted causal connection.
Importantly, the appellant does not challenge the primary judge’s finding that, “[t]he Court does not accept that the evidence before the Court establishes that she was assaulted by the [respondent] or was injured by him, or that she is attending upon medical practitioners as a result of such an assault or injuries” (at [166]).
Nevertheless, the primary judge was acutely aware of the appellant’s medical condition and referred to it several times (see for example, [51], [83], [97] and [103]), including in his consideration of s 75(2)(a) factors (see for example, [166] and [167]). The primary judge did exactly what the appellant now complains about – took the fact of the medical condition into consideration.
The appellant also complained about the findings of the primary judge at [173], where the primary judge found the appellant had failed to “adequately explain why she is not engaged in appropriate gainful employment.... at least casual or part-time employment”. That finding was amply open on the appellant’s evidence.
As for the documents attached to the Notice to Admit, the Notice asked the respondent to admit that the appellant attended certain medical practitioners on certain dates. The medical reports attached to the Notice were taken by the respondent as assisting him to verify the attendances.
However, the mere attaching of documents to such a Notice does not make those documents automatically admitted in the trial as the appellant contended numerous times before the primary judge and before us. Indeed, it would have been procedurally unfair to the respondent if the primary judge had received the medical documents into evidence (absent consent) without the makers on affidavit and available for cross-examination. The appellant’s ground concerning the Notice is misconceived.
During the course of the appeal hearing, the appellant seemed to accept she had not filed affidavits from medical practitioners and the Notice to Admit did not mean the attachments automatically became evidence at trial.
We see no error in the primary judge’s consideration of the appellant’s medical condition nor error in the entirely orthodox way he dealt with the documents attached to the appellant’s Notice to Admit.
These grounds fail.
Weight challenges to the assessments of contributions (Grounds 4–5 and 8–9)
At their heart, these grounds are challenges to weight, which is a matter for the primary judge and exceedingly difficult to disturb on appeal: Gronow v Gronow (1979) 144 CLR 513 at 519–520).
Grounds 4 and 5 concern the primary judge’s finding that the respondent had made an indirect contribution to the acquisition of a property at Suburb B, Western Australia.
In her Summary of Argument, the appellant complained the primary judge used some incorrect figures for sums gifted by the maternal grandfather for the purchase of a different property at Suburb C (at [80]), the nett effect of which, she contends, is that her equity in Suburb C was greater and the respondent’s was “negative”. In the Reasons, the primary judge referred to $1,000,000 gifted to her for this purchase, but the appellant contends it was “more than $1,200,000” (appellant’s Summary of Argument filed 4 July 2024, paragraph 31). It is not hard to see how the primary judge arrived at the $1,000,000 figure given the appellant deposed to this in her trial affidavit filed 10 February 2023:
29.[I]n [...] November 2007, my father gifted me $250,000 for a deposit for the property chosen by me at [Suburb C], New South Wales (the [Suburb C] property), which I purchased for [over] $1,3[0]0,000.
30.[I]n [...] December 2007, my father gifted me with $750,000 as a further contribution towards the purchase of this property and settlement occurred [shortly after].
It is clear the appellant received other funds for wedding planning, a motor vehicle and so on from family in addition to the above, but in the paragraphs from the appellant’s affidavit just extracted, she makes a direct link between monetary gifts totalling $1,000,000 and the Suburb C property.
In any event, the equity is not what the primary judge found to be the indirect contribution by the respondent to the Suburb B property. Instead, the primary judge determined the indirect contribution was his joint liability for the mortgage secured over the Suburb C property, the proceeds from which were applied to the purchase of the Suburb B property. It is not the figures or equity but the fact the respondent exposed himself to the joint liability for the Suburb C property, the proceeds from which were then used to fund the purchase of the Suburb B property.
Grounds 4 and 5 fail.
Ground 8 again relates to the Suburb B property and is the flip-side of Grounds 4 and 5, in that the appellant submitted the primary judge did not have proper regard to her contributions to the acquisition, conservation and improvement of the Suburb B property. The primary judge was well alert to the appellant’s contributions to the Suburb B property and this was one of the reasons why the primary judge determined a 70 per cent adjustment in the appellant’s favour would be made when holistically assessing contributions.
The appellant also submitted that her contributions increased the value of the Suburb B property from separation to trial. However, at the start of trial, the wife had deposed in her trial affidavit that it was bought for $1,225,000 in July 2016, but then entered it into her Schedule of Assets for the trial at $1,000,000 (Financial Statement filed 10 February 2023, ‘Schedule A’). The appellant also served a Notice to Admit Facts in December 2022 on the respondent that the property was worth $1,000,000. On her case, the property decreased in value.
By the October 2023 tranche of the trial, the property had been valued by a Single Expert at $1,600,000.
As there was no cogent evidence to support the idea that the appellant’s contributions increased the value of the property (as opposed to say, usual market forces), the proposition must fail. Accordingly, the appellant has failed to demonstrate how the primary judge’s discretion miscarried. This ground fails.
Ground 9 contends there was an undervaluing of the appellant’s contributions as a homemaker pursuant to s 79(4)(c) “particularly as it related to the contributions made by the Appellant mother from separation to Trial” (Notice of Appeal filed 2 May 2024). The complaint runs counter to the primary judge’s finding at [163]:
163.The Court also finds that the [appellant]'s contributions to the welfare of the family, in particular the care of the parties' child, are greater than those of the [respondent], until the date of trial. The [appellant] has had the exclusive primary care of the child since separation.
Accordingly, the appellant has failed to demonstrate how the primary judge’s discretion miscarried. This ground fails.
Complaints about Financial Statements (Grounds 6–7)
The appellant complained that the primary judge relied upon her Financial Statement sworn 9 February 2023 (which included $50,000 in trust with a law firm) as opposed to one she tried to hand up in submissions on 24 January 2024 – this is after the evidence had closed and the parties were to make their final submissions. There is nothing erroneous in the primary judge ruling as follows:
[APPELLANT]: Excellent. Thank you, your Honour. Your Honour, before we commence proceedings, just one small procedural matter. Given that there has been some time between the commencement of the hearing in April, it was salient and appropriate that I gave an updated financial statement to the court.
HIS HONOUR: I’m not taking that into account, [appellant]. The evidence is before me based on the trial, and that’s the material that I have before me. I don’t have any application to reopen to adduce further evidence. I don’t propose to entertain a further application now in that respect.
[APPELLANT]: Well - - -
HIS HONOUR: I’m going to decide the case based on the existing evidence that is before me, in the absence of any properly filed application.
[APPELLANT]: Excellent. Well, if your Honour would like to receive the financial statement form 13 which has been lodged and accepted on the portal.
HIS HONOUR: No, [appellant]. I don’t want to receive it. And as I will just say to you a second time, I’m not going to accept the form 13 financial statement for filing. You can upload what you like to the portal, it doesn’t mean it’s accepted in these proceedings. So I’m indicating to you I’m not taking into account that document. Thank you.
[APPELLANT]: Thank you. Excellent.
(Transcript 24 January 2024, p.655 lines 13–44)
The appellant also complained the primary judge found the respondent’s nett property and superannuation were as set out in his Financial Statement sworn 17 January 2023. That is after the appellant cross-examined the respondent for more than three days. It was entirely open on the evidence for the primary judge to find as he did.
The trial began in April 2023, whereby each parties Financial Statements of January and February 2023 were as up to date for the trial as they could be. We cannot discern error on the part of the primary judge in using the Financial Statements filed just before trial. Ground 6 fails.
Ground 7 is related and touches on the respondent’s non-disclosure leading to a contended error on the part of the primary judge in finding the respondent’s pool as he did. As is evident from the Reasons, neither party bathed themselves in glory with respect to disclosure. But it is rich of the appellant to complain about the respondent’s non-disclosure (even calling it “frankly malfeasance”, (Papers for the Judicial Officer (Financial Case Only) filed 13 April 2023, p.2)) when she was also found to have not complied with orders about specific disclosure. For example, in the ex tempore reasons of 4 December 2023, he said the below at [4] with respect to the respondent’s successful application on 3 October 2023 that the matter proceed undefended:
4.In summary, the Court made the order for the [respondent] to be granted leave to proceed undefended for the following reasons:
(a)The [appellant] has been unable to produce items from her disclosure list when required during the trial within a reasonable period of time.
(b)The [appellant] failed to attend Court without explanation on 3 October 2023.
(c)The [appellant]’s conduct during the trial and serial non-compliance with directions made on 17 April 2023, 18 April 2023, 21 April 2023 and 29 April 2023.
As we have determined under Ground 6, after three and a half days of cross examination by the appellant of the respondent, it was entirely open to the primary judge to determine the respondent’s pool was as set out in his Financial Statement filed just prior to trial. There is no merit in either of these grounds.
Future contributions with respect to parenting (Grounds 10–11)
Grounds 10 and 11 rest on a notion of future contributions. We do not understand such a concept is known to family law. Doing the best we can, we will consider these grounds as factors relevant to s 79(4)(f) and s 75(2)(d)(ii) of the Act. The primary judge’s discussion of these provisions is set out after the heading at [165] of the Reasons.
The primary judge was well alive to the reality, that going forward, the appellant will have the lion’s share of the child’s costs (save for the respondent’s payment of child support as assessed) and will be the exclusive carer of the child.
In the premises of the Reasons, where [107]–[137] are specifically devoted to determining what arrangements will be in the child’s best interests and the flow on to s 75(2) factors at [174], [181] and [182], it is hard for the appellant to maintain that the primary judge failed to have proper regard to these matters.
It is correct that the primary judge found the respondent had no outstanding child support payments due for the child at the time of trial (at [130]), but previously had arrears of $2,283.45 as at September 2023 (at [186]). As the appellant herself explained to the primary judge, the arrears were “paid swiftly in a run before trial” (Transcript 24 January 2024, p.683 line 25). Even if the primary judge was wrong at [130] (which he is not), the amount is de minimis and cannot yield to appellable error.
These grounds fail.
The respondent’s de facto relationship (Ground 12); and
The appellant submitted:
80.The primary judge erred in failing to have proper regard to the financial circumstances relating to the [respondent’s] de facto’s cohabitation, and should have held that those considerations supported the [appellant’s] case in relation to Section 75(2)(m) of the Family Law Act 1975.
81. Since the Trial the [respondent] has married his de facto.
(Appellant’s Summary of Argument filed 4 July 2024)
The appellant asked many broad ranging questions about the respondent’s fiancé and their circumstances at trial, but nothing of any probative value was revealed.
The primary judge concluded at [183]:
183.The [respondent] is cohabitating with his fiancé, Ms [J]. The financial circumstances relating to the cohabitation were not adequately disclosed by the evidence.
It is hard to understand what the primary judge was to make of the circumstances of cohabitation when he had little, if any, cogent evidence to do so.
This ground fails.
The property adjustment order of 70 per cent to the appellant and 30 per cent to the respondent (Ground 13).
By reference to the appellant’s Summary of Argument at paragraph 83, Ground 13 is conditioned on success of her earlier grounds. As we have not found merit in any of the preceding grounds, this ground must fail too.
DISPOSITION
As no grounds of appeal have been made out, the appeal will be dismissed.
COSTS
On 24 May 2024, the following Order was made by a senior appeal judicial registrar:
12.Any party who intends to seek an order for costs at the conclusion of the hearing of the appeal, subject to the outcome of the appeal, must file and serve no later than seven [7] days prior to the date the appeal is listed for hearing, an itemised Schedule of Costs sought on a party/party basis at the scale prescribed by the Rules and be in a position to address the Court as to costs (including quantum) whether sought by or against that party, at the conclusion of the hearing.
(Emphasis in original)
Neither party complied with that Order. There will be no order as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge and Brasch. Associate:
Dated: 9 August 2024
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