Jacquet & Levitt (No 2)
[2023] FedCFamC1A 169
•5 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jacquet & Levitt (No 2) [2023] FedCFamC1A 169
Appeal from: Levitt & Jacquet [2023] FedCFamC2F 387 Appeal number(s): NAA 122 of 2023 File number(s): BRC 8429 of 2021 Judgment of: RIETHMULLER J Date of judgment: 5 October 2023 Catchwords: FAMILY LAW – APPEAL – Where the appellant alleges bias on behalf of primary judge – Challenges to the findings of fact – Whether trial miscarried as a result of conduct of appellant’s - Whether primary judge’s discretion miscarried– Whether primary judge erred in contributions assessment - No error demonstrated - No grounds established - Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 90SF(3) Cases cited: Branir Pty Ltd and Ors v Owston Nominees (No2) Pty Ltd and Anor (2001) 117 FCR 424; [2001] FCA 1833
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Fox & Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1976] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacquet & Levitt [2023] FedCFamC1A 125
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Number of paragraphs: 44 Date of hearing: 26 September 2023 Place: Parramatta, via Microsoft Teams Counsel for the Appellant: Litigant in person Counsel for the Respondent: Mr Mugford Solicitor for the Respondent: Jeff Horsey Solicitor ORDERS
NAA 122 of 2023
BRC 8429 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JACQUET
Appellant
AND: MS LEVITT
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
5 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Jacquet & Levitt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The appellant appeals from final property settlement orders where the primary judge divided the property of the parties (a total pool of $547,000, including superannuation) 25 per cent to the appellant and 75 per cent to the respondent.
Background
The parties commenced cohabitation in 2004 and had two children, who are now 16 and 18 years of age. The eldest child suffers from a disability and requires considerable assistance. Whilst the eldest child is now 18 years of age, it appears likely that even with the considerable support package from the National Disability Insurance Scheme (NDIS), he will continue to rely upon the respondent as his carer into the foreseeable future. At present, the respondent and the two children live in the home in which the parties cohabited, which was modified considerably to meet the needs of the eldest child.
The relationship of the parties was marked by significant family violence (including, for example, the appellant driving into a garage door with such force as to push the car behind it into the house). The primary judge had material before her supporting the respondent’s claim that her contributions were made more arduous as a result of the domestic violence. However, there was no evidence before the primary judge as to the costs of damage caused by the appellant when he rammed his car into the garage door, nor whether or not that damage was covered by insurance. The primary judge was left to do the best that her Honour could on the brief information put before her in the affidavit material in this regard.
The financial contributions of the parties to the relationship (beyond their earnings during the course of the relationship) were considerable. The respondent brought a home to the relationship, which, early in the relationship, was sold realising $80,000, enabling the parties to purchase the home in which they lived together. In order to purchase the home, the appellant’s parents contributed $6,000. In 2014, the appellant received a net payment of $366,000 from his personal injury settlement as a result of a physical injury, together with a $70,000 total and permanent disability payment from his superannuation ([13] of reasons).
The appellant’s conduct with respect to the use of funds was a significant issue. The respondent alleged that there was a debt incurred by the appellant after separation for around $50,000, which remained unexplained at trial, that the appellant had spent his personal injuries payment monies, and claims that the appellant had demanded money from her, the use of which was unexplained.
At trial, the appellant argued that an appropriate property settlement would be an equal split. His counsel did not make submissions as to what figure would be appropriate for a contributions assessment, although appears to have acquiesced to the submissions of the respondent’s solicitor that the adjustment, pursuant to section 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”), ought to be 15 per cent.
The solicitor for the respondent made submissions at trial that the contributions assessment ought to be 60 per cent in favour of the respondent and that the section 90SF(3) factors would result in an adjustment of 15 per cent in favour of the respondent, resulting in a property settlement of 75 per cent in favour of the respondent. The primary judge ultimately ordered a split of the property at 75 per cent to 25 per cent, in favour of the respondent.
Application to adjourn appeal
The appellant was unrepresented in the appeal proceedings. At the hearing of the appeal, he sought an adjournment on the grounds that he had recently been released from jail (having been incarcerated with respect to domestic violence matters), and that he hoped to engage solicitors in the future. The appellant has had sufficient time to engage solicitors if he wished to do so, and he had not yet even identified a solicitor who would accept instructions. He has had the benefit of a transcript provided by the court, and the reasons given in the interlocutory application in the appeal (Jacquet & Levitt [2023] FedCFamC1A 125) to prepare submissions. I was not persuaded that it was appropriate to adjourn the appeal in these circumstances.
The Grounds of Appeal
The grounds of appeal in the original notice of appeal were not clear. When the matter came before me on 2 August 2023 for the hearing of the appellant’s Application in an Appeal filed 11 July 2023, I identified the following (see Jacquet & Levitt [2023] FedCFamC1A 125 at [7]):
In substance, the appellant appears to articulate two grounds of appeal: First, that the lawyer representing him conducted the case in a way that was unjustified or incompetent, and secondly, that the exercise of the primary judge’s discretion miscarried.
The appellant filed an amended Notice of Appeal on 3 August 2023, setting out his grounds as follows:
The reasons for judgment are wrong. Its not what happened at all and the judge said I agreed when I did not agree at all. I disputed everything.
Maybe it [is] the colour of my skin but the judge sided with [the respondent’s] lies without any supporting document when she had clearly lied changing her story.
Like [the] date of separation it was Dec 2013 and made final Jan 2014. It also say[s] I contributed some [-] this is also bullshit I paid for everything while [the respondent] lay in bed wasted on pills neglecting the kids.
Read my supporting docs.
The whole reasons, everything she has written, is a lie and the decision is so wrong.
I don’t know why the judge doesn’t look at the facts. The mother is a pill addict. Neglect is child abuse. The DVO is fraud.
The amended grounds of appeal do not clarify the appellant’s grounds of appeal, but largely set out a complaint as to the outcome of the trial. The appellant now complains of actual or apprehended bias by the primary judge and that various findings of fact by the primary judge were not available on the evidence. The amended grounds, taken with the appellant’s submissions, also raise the issues referred to in the interlocutory judgment. Whilst it is not for the appeal court to identify grounds of appeal, the matters addressed below appear sufficiently from the appellant’s material, bearing in mind the appellant is unrepresented.
CLAIM OF BIAS OR APPREHENDED BIAS
In the amended grounds of appeal, the appellant makes the remark “maybe it’s the colour of my skin”. As Gleeson and Emmett JJA and Tobias AJA noted in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68], “an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.” The test for reasonable apprehension of bias requires that a “fair minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions [the trial judge] was required to decide” (Charisteas v Charisteas (2021) 273 CLR 289 at [15]).
The transcript shows that the primary judge took care to manage the trial politely and efficiently, ensuring that the parties were heard. No claim of bias or apprehended bias was raised during the hearing before the primary judge. There is nothing in the material to indicate that the primary judge approached the matter in any way that would indicate bias or a basis for claim of a reasonable apprehension of bias. No other evidence was sought to be led on the appeal with respect to this claim.
The claim of bias or reasonable apprehension of bias on the part of the primary judge is wholly without foundation and must be rejected.
CHALLENGE BASED UPON THE FINDINGS OF FACT AND THE CONDUCT OF THE APPELLANT’S LAWYER
The trial of this matter was brief (heard in only 61 minutes). It appears that the primary judge had read the material in advance and ensured that the practitioners focused upon the relevant issues from the outset.
The transcript shows that there was a concession made with respect to the monies the appellant had received as a result of his physical injury. The concession was expressed as “that the money received by the [appellant] as his personal injuries and TPD claims – that there ought to be no adjustment in his favour for that because of subsequently being spent” (Transcript 30 March 2023, p.4 line 34). Whilst the use of the word “adjustment” is inapt, as an assessment of contributions does not commence from a particular starting point (such as equality) and then have “adjustments”, it is clear from the context of the concession that it was to the effect that the monies paid as a result of the appellant’s personal injuries were not to be considered a contribution by the appellant due to the manner in which he had spent the monies. This concession, as appears from the transcript, led to the respondent’s solicitor not cross-examining the appellant with respect to the expenditure of the relevant funds.
Only the parties were called to be cross-examined. The transcript demonstrates that many of the matters in issue, when put to the respondent by counsel for the appellant, were accepted by the respondent in cross-examination, and thus did not require detailed cross-examination. The solicitor for the respondent only asked the appellant a few short questions on one limited topic in cross-examination that would have only taken a few minutes.
There are complaints made by the appellant about a number of factual issues. The first is that he claims the respondent was addicted to sleeping medications throughout the relationship and that this was not accepted by the primary judge. This was a topic of cross-examination by the appellant’s counsel, where the following exchange took place:
Now, when you were in a relationship with [the appellant] in 2013, there were a number of arguments about your use of prescription medication; yes?---Yes.
What prescription medication were you taking at the time?---Stilnox.
Okay. And what was that taken for?---Sleep.
And were you taking that in accordance with the doctor’s directions?---Yes.
And did it impact your parenting?---No.
Madam, I suggest to you that it did impact your parenting?---No.
(Transcript 30 March 2023, p.15 line 43 to p.16 line 7)
Counsel then told the primary judge that “It’s a question I put under instructions.” (Transcript 30 March 2023, p.16 line 17).
The second issue goes to the date of separation. The respondent maintained that the parties were not separated until 2017 and the appellant claimed that separation occurred under one roof in 2013 when the parties occupied separate bedrooms. This was also the subject of brief cross-examination:
And you say that you separated in – on or about 21 September 2017?---‑‑Yes‑.
And that’s the date that he was ousted from the house pursuant to a protection order; is that right?---‑‑Yes‑.
…
And you’ve seen a copy of the domestic violence application extract that was on that document?---‑‑Yes‑.
Now, that document, you would accept, says that you had been – you had separated five years earlier?---‑‑It says that. Yes‑.
Okay. Did you tell the police that?---‑‑‑No.
Okay. You were sleeping in separate rooms for the past five years leading up to the police coming to your house; is that right?---‑‑Yes‑.
And there weren’t any times that you would have sexual relations; that’s correct?---‑‑‑Not a lot.
Okay. So do you accept, madam, that you, in fact, separated in 2013?---‑‑‑No.
(Transcript 30 March 2023, p.13 lines 4-29)
The third issue the appellant argues on appeal is with respect to the family violence claim. The respondent’s affidavit of 8 March 2023 set out considerable allegations of family violence (see [29]-[58]). The claims were not disputed in the appellant’s affidavit filed on 24 March 2023, nor were they the subject of cross-examination, save with respect to the point (which the respondent conceded) that withdrawals could only be made from various bank accounts with her authority. Counsel for the appellant did not make submissions disputing the family violence alleged by the respondent.
The fourth issue raised by the appellant on the appeal is that the respondent had misused or wasted monies. This was not an issue raised in his trial affidavit nor was it the subject of cross-examination or submissions.
An appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made (Gronow v Gronow (1979) 144 CLR 513). This has been expressed as high as “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43], at least where it is a finding based in part upon assessment of the witness in the witness box). It must be recognised that appellate judges are in a “permanent position of disadvantage as against the trial judge” when assessing the evidence and the credibility of witnesses (Fox & Percy (2003) 214 CLR 118 at [77]). However, an appeal court is in as good a position as a trial judge with respect to some findings of fact, as the High Court explained in Lee v Lee (2019) 266 CLR 129 at [55]:
A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.
(Citations omitted)
Where the finding of fact does not turn on the assessment of a witness’s evidence and the appeal court is in as good a position as the trial judge, the appeal court should only overturn the finding if positively satisfied that it is in error: see Branir Pty Ltd and Ors v Owston Nominees (No2) Pty Ltd and Anor (2001) 117 FCR 424 at [22] and [30].
On the limited material before the primary judge as to the claims relating to the respondent’s alleged use of medication and the date of separation, it was well within her Honour’s discretion to accept the evidence of the respondent and reject the appellant’s allegations. The family violence allegations were accepted by the primary judge (at [22]), a course that was clearly open on the unchallenged material before her Honour. The allegations with respect to the respondent’s use of funds were not put at the hearing and thus there can be no complaint that the primary judge did not deal with these allegations in the reasons for judgment.
The appellant’s challenges to the findings of fact by the primary judge are not well founded and the appeal must fail in this regard.
The appellant’s Written Submissions did not address any instructions that he gave his counsel at the trial, nor make any specific claims that his counsel at the trial conducted the trial contrary to instructions, made concessions without instructions, or was otherwise unjustified or incompetent. There is no evidence as to whether the limited nature of the cross-examination was a strategy adopted at trial. In the context of this case, involving extreme domestic violence, which was not disputed in the appellant’s affidavit, nor at trial, the course undertaken by counsel may well have been a deliberate strategy and would not support an inference that counsel was incompetent, or acted in an unjustified way or that there was a miscarriage of justice.
The appellant was on notice of the need for material specifically addressing any alleged failure by his counsel to properly represent him in the proceedings, as it was clearly identified in the interlocutory judgment (Jacquet & Levitt [2023] FedCFamC1A 125), where I said (at [9]):
In the absence of particulars of the conduct of the lawyer (that is, a list of the specific things it is alleged the lawyer did or failed to do that resulted in an unfair trial or miscarriage of justice) the first ground is likely to fail.
I set out a summary of the relevant cases on this issue (at [8]) in the interlocutory judgment:
Ordinarily, in civil proceedings, a complaint as to the conduct of one’s own lawyer (the effect of the appellant’s primary argument) is a matter between the litigant and their lawyer and would not be the basis for an appeal: see Smits v Roach (2006) 227 CLR 423 at [46]. Unjustified or incompetent conduct of a lawyer may be a basis for an appeal if it were so serious as to cause a “trial to miscarry” (see Clark v New South Wales [2012] NSWCA 139 at [74]) or “an actual miscarriage of justice” (see Mawhinney v Australian Securities and Investments Commission and Ors (2022) 405 ALR 292) and analogous with s 79A of the Act or in “exceptional circumstances” (see Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [40]). However, the test in property cases (like civil cases generally) is far more constrained than that in criminal law and children’s cases (see OP v TP and Anor (Conduct of Counsel) (2003) 30 Fam LR 281). I am not presently aware of an Australian civil case where an appeal has been allowed on this basis. Despite the lack of authorities on this point with respect to civil cases, it appears arguable that an appeal lies where the minimum standards of procedural fairness required in a trial are not achieved due to wrongful conduct of a lawyer. It is not necessary or desirable, at this point, to make findings as to the precise test to be applied, however, the appellant would be wise to carefully reflect upon the terms of the findings in Mercier & Deagan [2015] FamCAFC 207 at [114] that:
These tests pose a significant hurdle. The [appellant] called no evidence in attempting to meet them. Rather [the appellant] merely relied on … written submissions which were general in the extreme. For example it was alleged that the solicitors “failed to prepare for trial proceedings and failed to prepare Affidavits”. Without specific evidence as to what the solicitors are alleged to have done or not to have done and what prejudice arose from those failures, there cannot even be a consideration of whether, with appropriate representation, there would have been a different outcome to the hearing, let alone a finding to that effect.
As this is not a children’s case (nor a criminal law matter or migration protection visa application), the appellant’s right to bring an action against his counsel in the civil courts, if he alleges that she undertook the case in a negligent or incompetent fashion, remains an effective remedy. There is no evidence before this court of misconduct or specific failings of counsel for the appellant at the trial. I am not persuaded that the trial could be said to have miscarried nor that the conduct of the trial was such that there was, in substance, no real trial of the issues. As a result, I am not persuaded that the appellant has established a basis for setting aside the judgment of the primary judge on this ground.
WHETHER THE PRIMARY JUDGE’S DISCRETION MISCARRIED
When considering the exercise of the primary judge’s discretion, it is important to bear in mind that a party is ordinarily bound by the conduct of their matter in the court below (see Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). In Metwally v University of Wollongong (1985) 60 ALR 68 the High Court said at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Thus, it is generally not open to the appellant to seek to withdraw concessions that were made at trial or lead new evidence on appeal.
It is well settled that a challenge to the exercise of a discretion requires the appellant to show an error of the type identified in House v The King (1936) 55 CLR 499 at 505, where the High Court said:
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.
In this case it is not alleged that the primary judge acted on wrong principle, failed to take a relevant consideration into account, nor that her Honour took into account an irrelevant consideration (on the evidence before her), rather that the outcome was “unreasonable or plainly wrong”. However, as Brennan J said in Norbis v Norbis (1986) 161 CLR 513, at 540:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The primary judge identified the many factors that required consideration in determining the property settlement orders that would be appropriate. First, during the course of the relationship, each party committed their time and energy into caring for the children and maintaining the household. It was accepted on the material that the appellant had undertaken extensive renovations to the property to better meet the needs of their eldest child. Whilst the appellant challenges the extent to which the respondent contributed to the household, as a result of his allegations of her overuse of medications, the primary judge rejected such a claim on the evidence. It appears that, at least until late in the relationship, both parties committed their time and energy to the relationship.
Secondly, there was a very large difference in the contributions to the relationship at its commencement. The respondent brought a home with considerable equity to the relationship (the parties obtaining $80,000 from the sale of the home after the mortgage was paid). During the course of the relationship, both the parties benefited from $6,000 from the appellant’s parents to assist in purchasing a home. Whilst the appellant received a significant payment for personal injury (and a superannuation payment), equivalent to a very large proportion of the property pool, it was conceded that the personal injuries payments should not be taken up as a contribution of the appellant to the assets of the parties due to his use of the monies (see above at para 16). There was also evidence of specific financial wastage, in the form of a $50,000 debt incurred by the appellant after separation, for which he gave no explanation.
Thirdly, the evidence of family violence was extensive. The violence was significant. The family violence was unchallenged before the primary judge. The primary judge carefully reviewed the family violence claims, which resulted in her Honour rejecting the proposition that the appellant was generally financially controlling given that he had ceded control over the parties’ bank accounts and finances to the respondent and that he could not access the accounts without her approval.
There can be no realistic challenge to the findings of the primary judge that the domestic violence in this case would have made the contributions by the respondent far more difficult and therefore was a factor to take into account when assessing contributions.
Fourthly, as the primary judge recounted, the respondent had the use of the parties home after separation, although she also reduced the mortgage and cared for the children without child support during this period.
The primary judge concluded that the respondent’s contributions were “significantly greater than the [appellant’s] contributions” (at [30]). The argument against this finding by the primary judge can only be based upon a comparison of the amounts received by the appellant for his injuries (around $436,000) and the value of the assets of the parties at the time of trial (around $547,000). However, once the concession made at trial is considered (that the personal injuries payments should not be taken into account due to their expenditure by the appellant), this comparison leads nowhere. The other factors weigh in favour of the respondent, particularly her initial contribution of a home that later sold realising $80,000, the impact of the family violence, and her care for the children after separation (without child support). I am not persuaded that the primary judge’s finding with respect to contributions is unreasonable nor plainly wrong, in light of the concession with respect to the personal injuries monies.
There was no argument addressed to the Act’s s 90SF(3) factors on appeal. They are not insignificant in this case for the reasons set out by the primary judge. The eldest child’s special needs are significant, and the respondent will likely be his carer into the future. The importance of the respondent maintaining the home cannot be underestimated, given that it has been modified with the eldest child’s needs in mind. The respondent has only modest earnings and earns less than the appellant. The respondent receives no child support, and there is no indication that she is likely to receive regular child support in the future. There is no suggestion that she is likely to receive adult child maintenance for her ongoing care of the eldest child.
On the material before the primary judge, her Honour’s exercise of discretion was well within the reasonable range of outcomes open to her Honour. As a result, this ground of appeal must also be refused.
Conclusions
The appellant has not established a ground of appeal and therefore the appeal must be dismissed.
As the respondent was represented by solicitors acting pro bono, and thus incurred no legal expenses in responding to the appeal, there is no basis for a costs order.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 5 October 2023
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